Thursday, August 27, 2015

Brief In Polygamy Appeal Garners Attention

In 2013 in Brown v. Buhman, a Utah federal district court  struck down much of Utah's statute which criminalizes polygamy.  The decision limits the statute's applicability to cases in which an individual has multiple marriage licences, concluding that the statute's broader ban on cohabiting while married to another person is unconstitutional. (See prior posting.) The state of Utah filed an appeal with the 10th Circuit in September 2014.  Yesterday, appellees filed their brief with the 10th Circuit. It is gaining particular attention (as in this Fox 13 piece) because of (1) the celebrity status of appellees -- the polygamous family that is the subject of the popular reality television series "The Sister Wives; (2) the high profile counsel who filed the brief-- law professor and frequent legal commentator Jonathan Turley; and (3) the Supreme Court's same-sex marriage decision which was handed down subsequent to the district court's ruling on the anti-polygamy statute.  Some opponents of same-sex marriage argued that its legalization would create a "slippery slope" toward other marital arrangements.  The Supreme Court's Obergefell decision is cited extensively in the brief, but appellees emphasize: "This case is about the criminalization, not recognition, of plural relationships."  The full brief may be read here.

Canadian Court Says Charter Does Not Protect Proselytizing In Primary School During School Hours

In Bonitto v. Halifax Regional School Board, (NS Ct. App., Aug. 26, 2015), the Nova Scotia (Canada) Court of Appeal rejected the claim by Sean Bonitto, a fundamentalist Christian parent of school children, that Secs. 2(a) and (b) of the Canadian Charter of Rights and Freedoms protect his right to hand out religious literature during school hours to elementary school students.  He sought to distribute his literature in a school in which 25% of the students were Muslim.  The court said in part:
Mr. Bonitto’s model envisages a theological midway with rivals beckoning nine year olds walking to their classrooms. The Minister, Board and school would have no control over the messages. That would contradict a basic premise of public schooling under the Education Acti.e. on school premises during school hours, the inculcated message must pertain to the approved scholastic program.
Mr. Bonitto’s message is that non-Christians will burn in a sea of flames for eternity. The Board’s witnesses held the view that elementary students, especially non-Christians, hearing this on the steps would entertain an unsettling distraction from their classwork. The message would undermine the “orderly and safe learning environment” and the “positive and inclusive school climate” proclaimed by the preamble to the Education Act. That view makes good sense to me.
CBC News reports on the decision.

Hamptons Town Board Drops Opposition To Eruv

Since 2011, a Suffolk County, New York, Jewish organization known as the East End Eruv Association (EEEA) has been attempting to obtain approval to erect an eruv (a symbolic boundary) in three towns in the Hamptons. It has been opposed by a citizens group known as Jewish People Opposed to the Eruv. The clash between groups has spawned extensive state and federal litigation.  According to 27 East, on Tuesday EEEA moved significantly closer to success. The Southampton Town Board voted not to pursue an appeal of an adverse state trial court decision.  That decision held that the town's sign ordinance does not bar construction of the eruv. The town also will drop its federal lawsuit challenging the eruv on Establishment Clause grounds. The Town Board's decision will permit expansion of an eruv currently in  Westhampton Beach Village to also include the hamlets of Quiogue and Westhampton.

Court Upholds City's Decision To End Display of Christian Cross

On Tuesday, an Ottawa County, Michigan trial court judge dismissed a lawsuit seeking to force the city of Grand Haven to resume displaying a 48-foot Christian cross on Dewey Hill, a city-owned sand dune. Plaintiffs object to City Council's decision to turn the cross into a Coast Guard anchor. (See prior posting.) As reported by MLive, a group of seven residents sued the city alleging that the city's decision amounted to unconstitutional regulation of  speech in a traditional public forum and discriminated on the basis of religion. However the court held that the display is governmental speech and "the City has the right to determine what messages it sends through the use of its own governmental property." (See prior related posting.)

6th Circuit Refuses To Stay Injunction Against Recalcitrant Kentucky County Clerk

In Miller v. Davis, (6th Cir., Aug. 26, 2015), the U.S. 6th Circuit Court of Appeals refused to grant a stay pending appeal of a preliminary injunction (see prior posting) issued against a Rowan County, Kentucky, Clerk who has religious objections to issuing marriage licenses to same-sex couples.  The 6th Circuit explains:
As the County Clerk ..., Davis’s official duties include the issuance of marriage licenses. In response to the Supreme Court’s holding in Obergefell v. Hodges ..., Davis unilaterally decided that her office would no longer issue any marriage licenses. According to Davis, the issuance of licenses to same-sex marriage couples infringes on her rights under the United States and Kentucky Constitutions as well as the Kentucky Freedom Restoration Act.... The Rowan County Clerk’s office has since refused to issue marriage licenses to the plaintiffs, and this action ensued.
The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity. The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.....
USA Today reports on the decision. [Thanks to Tom Rutledge for the lead.]

Wednesday, August 26, 2015

No Establishment Clause Problem In Indictment of Halal Meat Exporter For False Statements

In United States v. Aossey, (ND IA, Aug. 25, 2015), an Iowa federal district court rejected Establishment Clause and Free Exercise challenges to a 92-count indictment against various affiliated companies and individuals charging them with making false statements on export certificates and on a website regarding Halal-slaughter of meat being exported. The court said in part:
[N]either the court nor the jury will be required to decide what Halal means. The government is not claiming merely that Defendants represented that they were selling Halal products that were not in fact Halal....  Rather, the government is alleging that Defendants made specific, false representations, including: (1) Defendants did not use penetrative captive bolt stunning; (2) all of Defendants’ beef products were hand-slaughtered; (3) a practicing Muslim recited a specific prayer while slaughtering; (4) Defendants did not sell leftover hindquarters from Kosher slaughters as Halal; (5) Defendants’ meat products complied with the laws and requirements of Malaysia, Indonesia, Kuwait and the United Arab Emirates; and (6) the animals slaughtered were vegetarian fed. The government believes that Defendants made these allegedly false representations to convince their customers that their meat products were Halal.
(See prior related posting.)

2nd Circuit Affirms Dismissal of Class Action By Sikh Victims of 1984 Riots In India

In Sikhs for Justice, Inc. v. Gandhi, (2d Cir., Aug. 25, 2015), the U.S. 2nd Circuit Court of Appeals affirmed the district court's dismissal of a putative class action on behalf of victims of 1984 anti-Sikh riots in India brought against Sonia Gandhi, president of India's ruling political party.  Claims under the Alien Tort Statute were dismissed because all relevant conduct took place outside the United States. Torture Victim Protection Act claims were dismissed on standing grounds.  The court added:
Moreover, plaintiffs failed to plausibly allege that defendant is liable for the anti-Sikh riots. At best, the amended complaint alleges that certain attacks were carried out on defendant’s “orders,” and that defendant was present at one of several meetings at which the riots were planned.

Burma's Parliament Passes Controversial Religious Conversion and Monogamy Laws

According to Human Rights Watch, on Aug. 21 Burma's joint parliament passed two bills that violate human rights and threaten to entrench religious discrimination.  The Religious Conversion Bill will require anyone wishing to change religion to be over 18, and then to file an application with a local Religious Conversion Scrutinization and Registration Board.  It is feared that many local boards will be dominated by ethnic Buddhists who will be biased against conversion to other faiths. The second bill, the Monogamy Bill, is seen as targeting religious minorities that practice polygamy. These two laws, along with the Population Control Law which became law in May, and the Interfaith Marriage Law, passed in July but not yet signed into law, were promoted by the Association for Protection of Race and Religion ("Ma Ba Tha"), an organization of Buddhist monks with an anti-Muslim and ultra-nationalist agenda. Human Rights Watch urges Burma's President Thein Sein to refuse to sign the two newly-passed bills.

The U.S. Commission on International Religious Freedom also issued a statement this week condemning Burma's Religious Conversion Bill.

EEOC Sues National Federation of the Blind For Refusing To Accommodate Employee's Sabbath Observance

The EEOC announced last week that it has filed suit in a Maryland federal district court against the National Federation of the Blind for religious discrimination.  The EEOC summarizes the charges:
Joseph R. Massey II is a practicing Hebrew Pentecostal, a Christian denomination, and abstains from working from sunset Friday to sunset Saturday based on his sincerely-held religious beliefs.  The National Federation of the Blind hired Massey for a bookkeeping position at its Baltimore office in November 2013.  In January 2014, the Federation told Massey he had to work certain Saturdays.  Massey explained he could not work Saturdays due to his religious faith and suggested alternatives such as working on Sundays or working late on week nights other than Fridays.  EEOC charged that the Federation refused to provide any reasonable accommodation and instead fired Massey because he could not work Saturdays due to his religious beliefs.

Malaysian Federal Court Upholds Death Sentence of Gardener Who Killed Doctor For Insulting Islam

Yesterday a 5-judge panel of Malaysia's Federal Court upheld the death sentence that had been imposed on a Pakistani Muslim gardener who in 2011 beheaded a doctor for whom he was working. The murder stemmed from a conversation between the two men in which the doctor had insulted the Kaabah, the building at the center of Islam's most sacred mosque. The New Straits Times reports on the decision.

Tuesday, August 25, 2015

Bankruptcy Code's Automatic Stay Applies To Proceedings In Jewish Religious Court

In In re Congregation Birchos Yosef, (SD NY Bkrptcy, Aug. 24, 2015), a New York federal bankruptcy court held that the statutory automatic stay of proceedings against a debtor that is triggered by the filing of a petition in a bankruptcy reorganization applies to invalidate proceedings against a debtor and its principals in a Jewish religious court (beis din).  In the case, a religious organization in Monsey, New York that had filed for bankruptcy reorganization, as part of the bankruptcy proceedings, instituted suit against a Jewish school, Bais Chinuch L'Bonois, asserting claims for fraud, breach of fiduciary duty and looting of the Debtor’s assets.  In response, Bais Chinuch invoked a beis din which issued a hazmana or summons to individuals controlling Congregation Birchos Yosef inviting them to adjudicate their dispute in the Jewish religious court.  The beis din also issued an ekul or injunction against the parties continuing to pursue the dispute through the Bankruptcy Court.

The Bankruptcy Court held that:
Bais Chinuch and the individuals’ invocation of the beis din proceeding - and the issuance of the beis din's ekul, or injunction - are actually directed at the Debtor through its principals with the intention of wresting control of the Debtor’s adversary proceeding and exerting pressure to have it dismissed....  Because of the principals’ identity of interest here with the Debtor, the automatic stay applies to protect them from the beis din
The court went on to hold that enforcement of the automatic stay does not violate the Free Exercise or Establishment Clause of the First Amendment.  It held that RFRA is not applicable, because it does not apply to the Debtor's motion, a private action between private parties.  Even if applicable, application of the automatic stay survives RFRA strict scrutiny.  The court added, "The automatic stay’s enforcement here does not substantially burden the objectors’ free exercise of religion, moreover, when they have invoked a rabbinical court to decide (and interfere with) an essentially commercial dispute."

Proposed Hindu Statue At Arkansas Capitol Turned Down Initially

In Arkansas, a request by the Universal Society of Hinduism to place a privately-financed statute of the Hindu god Lord Hanuman on the grounds of the state Capitol has been rejected by the Secretary of State's office.  Arkansas News Bureau reported last Friday that Chief Deputy Secretary of State Kelly Boyd told the Hindu group that it is the State Capitol Arts and Grounds Commission that is responsible for approving monuments on the Capitol grounds.  The Hindu group's request follows the state legislature's approval in April of a Ten Commandments monument at the Capitol. (See prior posting.) The Secretary of State's office suggested that the Hindu group seek similar legislative approval. The group says it may send its request to the governor.  According to Merinews, Christian, Buddhist, Jewish, Baha'i and other faith leaders have backed the Hindu group's request.  [Thanks to Scott Mange for the lead.]

Mirror of Justice Blogger Robert Araujo Posts Sad Farewell

On Sunday, Loyola University Chicago Law Professor Robert John Araujo, S.J., posted a sad farewell on Mirror of Justice to which he has contributed for ten years.  Mirror of Justice is a wonderful blog dedicated to the development of Catholic legal theory, and Prof. Araujo's posts have been an important part of the blog's contribution to thinking about law and religion.  Prof. Araujo writes that he is now in palliative/hospice care while finishing his final scholarly project -- a book on the Declaration on Religious Liberty and its relevance to the law. We all salute Prof Araujo for his scholarly contributions on Papal diplomacy, religious liberty and Catholic social thought.  Even more so, we salute him for the courageous example he has set in facing impossibly difficult health care decisions.

Judge Preventing Church Leader From Obtaining Unusual Name Change

According to the Rome News-Tribune, in Rome, Georgia an 81-year old resident whose current name apparently is "Serpentfoot" is petitioning a Floyd County (GA) court to change her name to:
Nofoot Allfoot-69-mouth-tail-solids-liquids-gases-animal-vegetable-mineral-going-over-under-around-and-through-Our-Greater-Self-our-habitat-the-cosmos-of-which-we-are-but-part-and-where-all-life-feeds-upon-other-life-from-the-smallest-bacteria-to-the-great-black-holes-and-dog-eat-dog-and-last-suppers-where-we-are-what-we-eat-or-consume-and-each-lives-on-in-the-other … ∞ Serpentfoot.
Serpentfoot who is the leader of her own church, "Our Greater Self Co-op," says that the name change will further her ministry. The court however apparently turned down the request in on Aug. 6 when Serpentfoot was a few minutes late for her 8:30 am hearing. She has now filed a petition asking the judge to reconsider his ruling or else recuse himself.  This is the latest in a series of requests by Serpentfoot to change her name.  Her last request was denied in May by the court when she could not remember her proposed name.

Monday, August 24, 2015

Haredi Rabbis Urge Reporting of Child Abuse To Secular Authorities

Countering what has sometimes been a reluctance in the haredi (ultra-Orthodox) Jewish community to report suspected child abuse to civil authorities, over 100 prominent haredi  rabbis and educators from across the United States have signed a public pronouncement calling for prompt notification to law enforcement. The statement (full text in report from Arutz Sheva) says in part;
We, the undersigned, affirm that any individual with firsthand knowledge or reasonable basis to suspect child abuse has a religious obligation to promptly notify the secular law enforcement of that information. These individuals have the experience, expertise and training to thoroughly and responsibly investigate the matter. Furthermore, those deemed “mandated reporters” under secular law must obey their State’s reporting requirements.
Many more rabbis are expected to sign the statement in coming weeks. (See prior related posting.)

School District Drops Band's Planned Half-Time Show Fearing It Violates Consent Decree

Having been held in contempt last month for violating a 2013 consent decree  in which it was ordered to comply with a newly adopted policy on Religion in Public Schools (see prior posting), the Rankin County, Mississippi School Board last week told the Brandon High School band that it could not perform its planned half-time show at the season's opening football game.  According to yesterday's Christian News, the band had planned to perform "How Great Thou Art" during half-time. While the song was selected last February with administrative support, the school district more recently said it would risk heavy fines if it were performed and would be required to terminate the employment of anyone connected with the performance.  At last Friday's game, while the band did not perform, dozens of parents and students began singing the song from the stands.

Suit Threatened Against Catholic Hospital For Refusing Sterilization Procedure

The San Francisco Chronicle reported yesterday that the ACLU is threatening to sue a Catholic hospital in Redding, California because it refuses to perform sterilization procedures. Rachel Miller who is scheduled to have her second child in late September wants a tubal ligation performed at the same time.  Her Catholic hospital in Redding, California-- owned by Dignity Health-- refuses to permit the procedure under its Ethical and Religious Directives.  Miller would have to travel 160 miles to find a hospital that will take her insurance and perform the procedure. California law permits Catholic hospitals to refuse to perform abortions, but not other pregnancy-related procedures.  The ACLU contends that the hospital's refusal amounts to sex discrimination and violates California's ban on the corporate practice of medicine by allowing a corporate entity's religious beliefs to override a doctor's medical decision.

UPDATE:  CBS San Francisco reported on Aug. 25 that Mercy Medical Center has now approved the tubal ligation procedure for Rachel Miller.

Recent Articles of Interest

From SSRN:
From SmartCILP:

Sunday, August 23, 2015

Recent Prisoner Free Exercise Cases

In Mitchell v. Daniels, 2015 U.S. Dist. LEXIS 108599 (MD AL, Aug. 18, 2015), an Alabama federal district court adopted a magistrate's recommendation and dismissed an inmate's complaint about inadequate security to prevent desecration of the Native American ceremonial grounds.

In Green v. Fox, 2015 U.S. Dist. LEXIS 109131 (CD CA, Aug. 17, 2015), a California federal district court dismissed without prejudice an inmate's habeas corpus petition seeking release so he could obtain medical treatment from a Christian Science practitioner that he was denied in prison.

In Avery v. Paramo, 2015 U.S. Dist. LEXIS 109127 (SD CA, Aug. 18, 2015), a California federal district court dismissed a Pagan-Wiccan inmate's retaliation claim, but permitted him to proceed with his complaint regarding refusal to accommodate Pagan/ Wiccan/ Asatru practices by providing a fence perimeter, fire pit, water line, and herb cultivation, and by providing him a monthly supply of honey, nuts, dried fruit, trail mix and non-yeast crackers.

In Allah v. Christburg, 2015 U.S. Dist. LEXIS 108590 (MD AL, Aug. 18, 2015), an Alabama federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 109611, July 27, 2015), and dismissed a complaint by an inmate who complained that he was not permitted to observe Ramadan, participate in Muslim prayer services or receive a Qur'an, prayer rug or Islamic literature. The inmate had failed to specify his religious affiliation when he was booked into the facility.

In Hosey-Bey v. Williams, 2015 U.S. Dist. LEXIS 109363 (MD AL, Aug. 19, 2015), an Alabama federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 110146, July 30, 2015) and dismissed an inmate's complaint that defendant ordered the Sunday school service of the Moorish Science Temple of America closed down after only 10 to 13 minutes because of a shortage of officers for security for the chapel.

In Hoeck v. Miklich, 2015 U.S. Dist. LEXIS 110921 (D CO, Aug. 20, 2015), a Colorado federal district court denied injunctive relief to an inmate who complained that he was not permitted to observe the holy days and diet of his Biblical Christian faith.

In Shabazz v. Cruzen, 2015 U.S. Dist. LEXIS 111210 (ND CA, Aug. 21, 2015) and Fadan v. Cruzen, 2015 U.S. Dist. LEXIS 111213 (ND CA, Aug. 21, 2015), a California federal district court permitted inmates to move ahead with their complaint that correctional officers would not allow Muslim inmates to pray in groups larger than four, despite a contrary ruling by the Religious Review Committee.

Church May Continue With Its RLUIPA and State RFRA Claims

In Church of Our Lord and Savior Jesus Christ v. City of Markham, Illinois, (ND IL, Aug. 19, 2015), plaintiff claimed that after it had operated in the same location for ten years without issue, it received a summons telling it to close on safety grounds because it had not received a conditional use permit. An Illinois federal district court allowed plaintiff to proceed with its "substantial burden" claims under RLUIPA and Illinois' RFRA, but dismissed its discrimination claim. It also allowed plaintiff to move ahead with its claim under the state constitution that the city's refusal to amend its zoning ordinance was arbitrary and capricious.

Obergefell Will Be Applied Retroactively To Social Security Claims

42 USC Sec. 416(h)(1)(A)(i) provides that whether a person is the spouse of another for Social Security purposes depends on the law of their state of domicile.  Until now this has led the Social Security Administration to deny benefits to same-sex spouses who moved to or lived in a state which did not recognize their marriage.  However, in an Aug. 20 press release, Lambda Legal reported:
Today, in a status conference with Lambda Legal in federal court in Chicago, the Department of Justice announced that the Social Security Administration (SSA) will apply the U.S. Supreme Court's recent landmark marriage ruling retroactively and process pending spousal benefits claims for same-sex couples who lived in states that did not previously recognize their marriages. According to the Department of Justice, the new policy will apply to previously filed claims still pending in the administrative process or litigation.

Muslim Leaders Issue Declaration On Global Climate Change

As reported by the Washington Post, last week Muslim leaders and scholars from 20 countries issued an Islamic Declaration on Global Climate Change. Issued in anticipation of the Conference of the Parties to the United Nations Framework Convention on Climate Change and the Meeting of the Parties to the Kyoto Protocol taking place in Paris this December, 2015, it urges well-off nations and oil-producing states to lead the way in phasing out greenhouse gas emissions.  It calls on governments and business to commit themselves to 100 % renewable energy and/or a zero emissions strategy as early as possible.

10th Circuit Grants Stay In Contraceptive Mandate Case Pending Supreme Court Action On Cert.

As previously reported, in July a petition for certiorari  was filed with the Supreme Court in Little Sisters of the Poor Home for the Aged v. Burwelll.  In the case, the 10th Circuit upheld  the Obama Administration's Affordable Care Act accommodation for religious non-profits that object to furnishing contraceptive coverage. On Friday, the 10th Circuit issued an order (full text) staying issuance of its mandate until the Supreme Court's either denies review or decides the case. Becket Fund issued a press release on the 10th Circuit's action.

Friday, August 21, 2015

6th Circuit Again Upholds ACA Accommodation For Religious Non-Profits

The U.S 6th Circuit Court of Appeals today, deciding a case that had been remanded to it (see prior posting) by the Supreme Court after that Court's Hobby Lobby decision, reaffirmed its earlier decision upholding against a RFRA challenge the Obama administration's Affordable Care Act accommodation for religious non-profits that object to furnishing their employees insurance coverage for contraceptives.  In Michigan Catholic Conference v. Burwell, (6th Cir., Aug. 21, 2015), the 6th Circuit said in part:
Despite our attempts to describe how the accommodation actually works, it is perhaps inevitable that some Plaintiffs will still believe that they are morally complicit in sin, by being a part of a system that provides access to contraceptives.... However, it is not our role to determine a party’s moral complicity; we do not question here Plaintiffs’ “desire not to participate in the provision of contraception.” ... Our role is a more limited one: to determine whether, as a legal matter, the regulation represents a substantial burden to Plaintiffs’ rights under RFRA. That requires us to determine how the law works and what it asks of various actors. On this point, as we held before, “[t]he government’s imposition of an independent obligation on a third party does not impose a substantial burden on the appellants’exercise of religion.”
[Thanks to How Appealing for the lead.]

Illinois Becomes 4th State To Ban Gay Conversion Therapy For Minors

As reported by the Huffington Post, yesterday Illinois became the fourth state to ban gay conversion therapy for minors.  Governor Bruce Rauner signed HB 217 (full text), the Youth Mental Health Protection Act which prohibits any mental health provider from engaging in sexual orientation change efforts with a person under the age of 18. The new law also broadly prohibits misleading advertising of conversion therapy:
No person or entity may, in the conduct of any trade or commerce, use or employ any deception, fraud, false pretense, false promise, misrepresentation, or the concealment, suppression, or omission of any material fact in advertising or otherwise offering conversion therapy services in a manner that represents homosexuality as a mental disease, disorder, or illness, with intent that others rely upon the concealment, suppression, or omission of such material fact. A violation of this Section constitutes an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act.
The new law, which becomes effective Jan. 1, 2016, includes extensive legislative findings supporting the therapy ban.

Illinois Statute Expands Permissible Student Prayer

Yesterday Illinois Governor Bruce Rauner signed HB 165 (full text) amending the Silent Reflection and Student Prayer Act to permit students during non-instructional time before or after school to engage not only in individually initiated prayer, but also "collectively initiated, non-disruptive prayer or religious-based meetings, including without limitation prayer groups, B I B L E (Basic Instruction Before Leaving Earth) clubs, or "meet at the flagpole for prayer" days," However these may not be "sponsored, promoted or endorsed in any  manner by the school or any school employee."

Court Says Sale of Boston Church Was Invalid

In First Bostonview Management, LLC v. Bostonview Corp., (MA App., Aug. 19, 2015), the Massachusetts Appeals Court held the purported sale of the property of Boston's Swedenborgian Church on the Hill invalid.  The court said in part:
[T]he sale of substantially all of the Bostonview church property (consisting of a church sanctuary, a parish meeting hall, a large apartment complex, offices, and parking spaces on prime land on Beacon Hill near the Massachusetts State House) was indisputably an "extraordinary transaction," and, if completed to the end would have stripped Bostonview of the very essence of its existence as a charitable corporation.... We conclude that the authority to make such a divesting asset/property sale contract ... was beyond the power of the charitable corporate board to delegate to two of its officers. The contract was void. The "shady" nature of the underlying prenegotiations to sell the church's very valuable (but sole) asset for $30 million -- including combined cash payments of close to $100,000 to two of the executive officers, and the purchase of the $94,000 luxury car for the church secretary -- only serves to demonstrate why restrictions on "extraordinary transactions" must be closely scrutinized by the charity's corporate board. 
The court also held that: "subsequent approval or other conduct by the board of directors of a charitable corporation will not substitute for prior specific authorization to commit the charity to an extraordinary transaction."

Boston Business Journal gives additional background:
The case centered on developer Michael Perry’s 2004 agreement to pay $30 million to purchase the property....  Perry struck the agreement with Thomas J. Kennedy and Edward J. MacKenzie Jr., who were then officials at Bostonview Corp., the charitable organization that conducted business on behalf of the Swedenborgian church. MacKenzie, who has claimed he was an enforcer for incarcerated mobster Whitey Bulger, was later sentenced to 12 years in prison for allegedly stealing millions from the church.

130 Organizations Urge Obama To Rescind 2007 Justice Department Interpretation of RFRA

Yesterday a coalition of 130 religious, civil rights and advocacy organizations sent a letter (full text) to the President urging that the Justice Department's Office of Legal Counsel reconsider a 2007 Memorandum interpreting the interaction of the Religious Freedom Restoration Act with non-discrimination provisions in federal grant programs.  The letter reads in part:
[T]he OLC Memo relies on flawed legal analysis and wrongly asserts that RFRA is “reasonably construed to require” a federal agency to categorically exempt a religiously affiliated organization from a grant program’s explicit statutory nondiscrimination provision, thus permitting the grantee to discriminate in hiring with taxpayer funds without regard to the government’s compelling interest in prohibiting such discrimination....
...[S]ome have cited the OLC Memo in arguing that RFRA should broadly exempt religiously affiliated contractors from the nondiscrimination requirements in Executive Order 11246, including those you added just last year that bar government contractors from discriminating against LGBT workers. And, some are trying to extend its reach beyond the context of hiring: Several grantees and contractors have cited the OLC Memo to support their arguments that the government should create a blanket exemption that would allow them to refuse to provide services or referrals required under those funding agreements, specifically in the context of medical care for unaccompanied immigrant children who have suffered sexual abuse. 
 ADL and Americans United each issued its own press release on the letter.

Thursday, August 20, 2015

Texas Supreme Court Rules On Houston Equal Rights Referendum Ballot Language

In yet another ruling on the referendum calling for the repeal of Houston, Texas' controversial Equal Rights Ordinance, the Texas Supreme Court yesterday in In re Williams and Woodfill, (TX Sup. Ct., Aug. 19, 2015), ruled on proper ballot language. It held that the vote must be on whether or not to approve the Ordinance, not on whether or not to approve its repeal. The Court also held that the city did not abuse its discretion by referring in the ballot language to the "Houston Equal Rights Ordinance." Houston Chronicle reports on the decision. (See prior related posting.)

Report Criticizes Collegiate Football Chaplaincy Programs

On Monday, the Freedom From Religion Foundation released  a report titled Pray to Play: Christian Coaches and Chaplains Are Converting Football Fields Into Mission Fields. According to the Report:
Public universities and their employees cannot endorse, promote, or favor religion. Yet, many football coaches at public universities bring in chaplains—often from their own church or even members of their own family—to prey on and pray with students, with no regard for the rights of those students or the Constitution. These coaches are converting playing fields into mission fields and public universities are doing nothing to halt this breach of trust. They are failing their student athletes.
FFRF sent copies of the Report, which includes a Model Policy On Religion In Athletics, to 15 schools that appear to have the most problematic chaplaincies.

Slovakia Will Reject Muslim Migrants In EU Redistribution Plan

Last month, the European Union ministers agreed to a plan to redistribute some 32,000 of the 150,000 migrants from war-torn Syria, Iraq, Eritrea and Somalia that have found their way across the Mediterranean to Greece and Italy.  As reported by TRT World, the EU hopes to reach agreement by the end of the year on redistribution of an additional 8,000.  Meanwhile, The Telegraph reported yesterday that while Slovakia has agreed to accept 200 of the migrants, it says it will not accept any Muslims.  An Interior Ministry spokesman said:
[W]e don't have any mosques in Slovakia so how can Muslims be integrated if they are not going to like it here?
EU sources say that while it would be legal to prioritize Christians because they are at extra risk of persecution, rejecting Muslims would be impermissible discrimination. But the Slovakian government says it plans to ask arriving migrants their religion.