Supreme Court Rejects Asylum Seeker's Challenge To Limits On Review Of Claims

The U.S. Supreme Court today in Department of Homeland Security v. Thuraissigiam, (US Sup. Ct., June 25, 2020) upheld against constitutional attack a provision in the immigration law that prevents applicants for asylum from appealing to federal courts through a habeas corpus petition an immigration judge's conclusion that the applicant lacks a "credible fear of persecution".  The court rejected arguments that the limitation violates the Constitutional ban on suspending habeas corpus and violates due process. Justices Breyer and Ginsburg concurrd, but would limit the holding to the facts of this case. Justices Sotomayor and Kagan dissented. NPR reports on the decision.

Texas Judge Sues Over Right To Oppose Same-Sex Marriage

A county judge in Jack County, Texas has filed suit in a Texas federal district court seeking declaratory and injunctive relief to prevent any future enforcement action by the Texas State Commission on Judicial Conduct against him. The complaint (full text) in Umphress v. Hall, (ND TX, filed 3/18/2020) alleges in part:

A few months ago, the Texas State Commission on Judicial Conduct issued a “public warning” to Dianne Hensley, a justice of the peace who recuses herself from officiating at same-sex marriage ceremonies on account of her Christian faith....  The Commission’s interpretation of Canon 4A(1) threatens every judge in Texas who refuses to perform same-sex marriages, as well as those who publicly evince disapproval of same-sex marriage or homosexual conduct in their extra-judicial activities.....

The Court should therefore declare that the First Amendment protects Judge Umphress’s right to conduct his extra-judicial activities in a manner that evinces disapproval of same-sex marriage and homosexual conduct.

Pink News reports on the lawsuit.

German Top Court Upholds Hijab Ban For Legal Interns Involved In Official Proceedings

In a decision handed down last month, but not published until yesterday, Germany's Federal Constitutional Court in a 7-1 decision rejected a challenge by a legal intern to the requirement that she remove her hijab when involved in court hearings.  The full decision in German is here. In a press release, the court summarized the decision:

In an order published today, the Second Senate of the Federal Constitutional Court rejected as unfounded the constitutional complaint of a female legal trainee (Rechtsreferendarin) in the Land Hesse; the complaint was directed against the ban on wearing a headscarf when performing certain official tasks. Under constitutional law, the legislature’s decision to establish a duty of neutral conduct with respect to ideological and religious matters for legal trainees must be respected. While this duty amounts to an interference with the complainant’s freedom of faith and other fundamental rights, it is justified. Such an interference can be justified by the constitutional principles of the state’s religious and ideological neutrality and of the proper functioning of the justice system as well as by the negative freedom of religion of others. In the case at hand, none of the conflicting legal interests outweighs the others to such an extent that it would be required under constitutional law to prevent the complainant from wearing religious symbols in the courtroom, or to allow her to do so.

Attorney Has Standing To Challenge Judge's Prayer Practices

In Freedom From Religion Foundation, Inc. v. Mack, (SD TX, Jan. 13, 2010), a Texas federal district court held that an attorney has standing to challenge a Texas Justice of the Peace's practice of having his court sessions opened with a prayer. The attorney, who is non-religious, has declined clients in order to avoid the judge's courtroom. The court said in part:

Here, Attorney Roe has offered testimony that he practices law in Montgomery County, Texas, has appeared in Judge Mack’s courtroom on several occasions, and that he avoids the courtroom because of Judge Mack’s practice. The harm alleged does not occur only because he enters the courtroom, but also because he must avoid the courtroom since the practice continues. Therefore, there is a substantive risk that were he to accept a case in Judge Mack’s court, he will be exposed to the prayer practice. Hence, Attorney Roe has satisfied the standing requirements.

Judge Mack also challenges the FFRF’s standing. Because the Court has determined that Attorney Roe has standing, the FFRF has associational standing.

Cuomo Vetoes Expansion of Federal Judges Who Can Officiate At Weddings

On Dec. 20, that New York Gov. Andrew Cuomo vetoed S6330 which would have expanded the federal judges who can officiate at marriage ceremonies in New York.  Currently only federal judges sitting in New York districts or on the 2nd Circuit can officiate. The vetoed bill would have expanded this to all federal judges. According to yesterday's New York Times, Cuomo said in his veto message:

I cannot in good conscience support legislation that would authorize such actions by federal judges who are appointed by this federal administration. President Trump does not embody who we are as New Yorkers.

Judge Who Refused To Perform Same-Sex Ceremonies Sues Over Reprimand

As previously reported, in November the Texas State Commission on Judicial Conduct issued a Public Warning to Justice of the Peace Dianne Hensley because of her refusal to perform same-sex marriage ceremonies. Now a lawsuit has been filled challenging the Commission's action.  The complaint (full text) in Hensley v. Texas State Commission on Judicial Conduct, (TX Dist. Ct., filed 12/16/2019) contends that the Commission's action violates Judge Hensley's rights under the Texas Religious Freedom Restoration Act. The complaint also seeks a class-wide declaratory judgment. Fox 44 News reports on the lawsuit.

Texas Justice of the Peace Warned Over Her Refusal To Perform Same-Sex Weddings

Last month, the Texas State Commission on Judicial Conduct issued a Public Warning (full text) to Justice of the Peace Dianne Hensley. The Nov. 12 warning reads in part:

Beginning on about August 1, 2016, Judge Hensley and her court staff began giving all same-sex couples wishing to be married by Judge Hensley a document which stated "I'm sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same sex weddings." The document contained a list of local persons who would officiate a same-sex wedding....

... Judge Hensley testified that she would recuse herself from a case in which a party doubted her impartiality on the basis that she publicly refuses to perform same-sex weddings.....

... [T]he Texas State Commission on Judicial Conduct has determined that the Honorable Judge Dianne Hensley ... should be publicly warned for casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person's sexual orientation in violation of Canon 4A(l) of the Texas Code of Judicial Conduct.

Judicial Ethics Complaint Filed Over Judge's Gift of Bible To Convicted Murder Defendant

On Oct. 3, the Freedom From Religion Foundation filed a complaint with the Texas State Commission on Judicial Conduct (full text) asking it to investigate the actions of state trial judge Tammy Kemp at the widely covered murder trial of Former Dallas Police Officer Amber Guyger.  The complaint states in part:

We write to raise your awareness of Judge Kemp’s actions at the close of the trial — during which she gifted a Christian bible, instructing the convicted criminal on how to read the bible and which passages to pay attention to, and witnessing to that convicted murderer. These proselytizing actions overstepped judicial authority, were inappropriate and were unconstitutional....

We understand that it was an emotional moment, particularly when the victim’s brother, Brandt Jean, publicly forgave and hugged Guyger. It is perfectly acceptable for private citizens to express their religious beliefs in court, but the rules are different for those acting in a governmental role. We, too, believe our criminal justice system needs more compassion from judges and prosecutors. But here, compassion crossed the line into coercion. And there can be few relationships more coercive than a sentencing judge in a criminal trial and a citizen accused and convicted of a crime.

FFRF issued a press release announcing the filing of the complaint.

Pro-Life Advocate Nominated For Missouri Federal District Judgeship

On Wednesday the White House announced a number of intended judicial, US Attorney and US Marshall nominations. Among these are the nomination of  Sarah Pitlyk for a judgeship on the U.S. District Court for the Eastern District of Missouri. The St. Louis Post-Dispatch details her past work on pro-life and religious liberty issues:

Pitlyk is special counsel to the Chicago-based Thomas More Society, a not-for-profit law firm "dedicated to restoring respect in law for life, family, and religious liberty." At the society, she worked to defeat an "abortion sanctuary city" ordinance in St. Louis, and on "several landmark pro-life and religious liberty cases." ...

Pitlyk was involved in a dispute over whether a divorced St. Louis County couple's frozen embryos were property or "unborn children" under Missouri law; a civil lawsuit filed against Planned Parenthood by a man acquitted of a bomb threat charge; and the defense of a man accused in California of making a false exposé claiming Planned Parenthood was selling fetal tissue....

Pitlyk graduated summa cum laude from Boston College before receiving master’s degrees in philosophy from Georgetown University and in applied biomedical ethics from the Katholieke Universiteit Leuven in Belgium, where she was a Fulbright Scholar...

She graduated from Yale in 2008 ... [where she] founded Yale Law Students for Life.

Conservatives Oppose Trump's 5th Circuit Nominee Because of His Contraceptive Mandate Decision

The Washington Times yesterday reported that federal district court judge Halil Suleyman Ozerden, who has been nominated by President Trump for a seat on the U.S. 5th Circuit Court of Appeals is facing opposition from some Republican members of the Senate Judiciary Committee. They have questioned Ozerden's record on religious liberty because of an opinion he wrote in 2012 in Catholic Diocese of Biloxi, Inc. v. Sebelius, (SD MS, Dec. 20, 2012). In that case he dismissed on ripeness grounds a Catholic diocese's challenge to the Affordable Care Act contraceptive coverage mandate.  Conservative advocacy groups such as the American Family Association and the First Liberty Institute are opposing his selection.

Senate Confirms Controversial Nominee For Texas Federal Court Seat

As reported by Bloomberg Law, the U.S. Senate yesterday confirmed the nomination of Matthew Kacsmaryk for a seat on the U.S. District Court for Northern District of Texas by a vote of 52-46. The controversy surrounding Kacsmaryk's nominations is summarized by Courthouse News:

Kacsmaryk has since 2014 served as deputy general counsel at the First Liberty Institute, a legal group that offers free representation to people raising religious liberty claims in court....

His time at the group has put him at the center of several high-profile clashes between gay rights and religious liberty, which has become an increasing flashpoint in federal courts in recent years.

This includes work on the case of a couple that owns a bakery in Oregon and refused to make a custom cake for a same-sex wedding.

Bavarian Court Upholds Ban On Judges and Prosecutors Wearing Hijab

In Germany, Bavaria's constitutional court yesterday upheld a Bavarian law banning judges and prosecutors from wearing religious symbols in the courtroom. The court said that officials administering justice have a special obligation to be neutral in religion and ideology.  The ban was challenged a Muslim group that objected to the ban's application to the wearing of Islamic head scarfs. DW reports:

The judge voiced the opinion that the ban, which also forbids officials to wear religious symbols such as crosses or a kippa — or yarmulke — during court proceedings, did not go against laws on religious freedom or equality....

The Islamic group had argued that the ban violated both laws, as the Christian symbol of the cross hangs in Bavarian courtrooms.

This argument was not accepted by the court, which maintained that the presence of crosses was a different matter, as it was determined by the court administration and cast no doubt on the neutrality of individual judges or lawyers.

The court also said the ban did not discriminate against women, as other items of clothing with religious significance that were worn by men were also forbidden.

Cert. Denied In Attempt To Subpoena Bishops' Documents

The U.S. Supreme Court today denied review in Whole Woman's Health v. Texas Catholic Conference of Bishops, (Docket No. 18-622, certiorari denied 2/19/2019) (Order List).  In the case, the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, held that a Texas federal district court should have quashed a document discovery order in a case in which several health care providers challenged the state's fetal remains regulations. (See prior posting). While discussing the Bishops' constitutional claim that internal deliberations of religious organizations should be protected, the 5th Circuit ultimately relied on  Federal Rules of Civil Procedure 45(d) which calls for quashing a subpoena when it imposes an undue burden. Becket issued a press release discussing the Supreme Court's denial of certiorari.

Pakistani Judges Receive Threats Over Upcoming Blasphemy Decision

According to DAWN, last week, a 3-judge panel of Pakistan's Supreme Court heard the appeal in Aasia Bibi's blasphemy case.  Bibi, a Christian, had been sentenced to death by lower courts. (See prior posting). After the hearing, the Supreme Court enjoined electronic and print media from discussing or commenting on the case until the Court's decision is handed down. Christian Post reported yesterday, however, that Supreme Court justices are receiving threats of death if they grant clemency to Bibi. The threats are coming from "hardline Muslim extremists affiliated with political parties like Tehreek-e-Labaik Pakistan."  TLPis threatening paralyzing nationwide sit-in protests if Bibi is freed. Leaders of Pakistan's Red Mosque movement have petitioned the court to place Bibi on a no-fly sit to prevent her from taking advantage of asylum in another country if she is freed.

Arkansas Commission Refuses To Dismiss Complaint Against Anti-Death Penalty Judge

In an Aug. 20 Order (full text begins at pg. 5) the Arkansas Judicial Discipline and Disability Commission refused to dismiss Allegations (full text) filed in June against Circuit Court Judge Wendell Griffen complaining about his granting of a temporary restraining order barring use for executions of vecuronium bromide sold to the state. (Background).  Griffen is charged with violating the Judicial Canon requiring impartiality through his participation in religious anti-death penalty rallies and vigils. Magnolia Banner News reports on the Commission's order.

Catholic Politicians and the New Church Stance On The Death Penalty

As previously reported, last week the Vatican's Congregation for the Doctrine of the Faith made a change to the Catechism of the Catholic Church so that it now rejects capital punishment in all cases. An AP report now looks at the impact this change may have on politicians in the United States who are Catholic, saying in part:

Pope Francis' decree that the death penalty is "inadmissible" in all cases could pose a dilemma for Roman Catholic politicians and judges in the United States who are faced with whether to strictly follow the tenets of their faith or the rule of law.

Some Catholic leaders in death penalty states have said they'll continue to support capital punishment. But experts say Francis' change could shift political debates, loom over Supreme Court confirmation hearings, and make it difficult for devout Catholic judges to uphold the law as written.

The question of whether or not Catholic political and judicial leaders would be sinning if they continue to support the death penalty is up for interpretation.

"It's going to be a matter of conscience," said the Rev. Peter Clark, director of the Institute of Clinical Bioethics at St. Joseph's University in Philadelphia. "Judges may have to recuse themselves from many cases, if they truly think it's in conflict with their conscience."

No Free Exercise Violation In Refusal To Adjourn Trial For Defendant's Holy Day

In an opinion which sets out few of the facts involved, a New York state appeals court held that the Free Exercise rights of a robbery defendant were not infringed when the trial court denied his request to adjourn court proceedings from Thursday until Monday to accommodate his religious beliefs and practices.  The unanimous decision or the Appellate Division is People v. Webb, (NY App., July 18, 2018).

Malaysia Swears In First Non-Muslim Chief Justice

According to Benar News, Malaysia this week swore in its first non-Muslim Chief Justice of its highest court, the Federal Court of Malaysia.  The new chief justice is Richard Malanjum, a Christian member of the Kadazandusun tribe from Malaysian Borneo.

Permanent Injunction Issued In Ethics Battle By Alabama Justice

As previously reported, in March an Alabama federal district court issued a preliminary injunction, holding that provisions in the Alabama Canons of Judicial Ethics that were invoked against Alabama Supreme Court Justice Tom Parker are unconstitutional.  At issue was a ethics complaint over comments by Parker about the impact of the U.S. Supreme Court's Obergefell decision on an earlier Alabama Supreme Court order barring probate judges from issuing licenses for same-sex marriages.  Now the parties have agreed on the scope of a permanent injunction, and this week in Parker v. Judicial Inquiry Commission of the State of Alabama, (MD AL, June 11, 2018), the court issued an opinion and the consent injunction, barring the state Judicial Inquiry Commission from enforcing Canons 1, 2A and 3A(6):

to proscribe or punish any public comment by a judge unless the public comment can reasonably be expected to affect the outcome or impair the fairness of a proceeding pending or impending in any court. Public discussion by judges or judicial candidates of an issue of public importance cannot be proscribed or punished ... merely because that issue may happen to be the subject of a pending or impending proceeding in any court.

Liberty Counsel issued a press release on the court's action.

Israel's Knesset Passes Bill Urging Judges To Use Jewish Law In Absence of Other Precedent

Haaretz [subscription required] reports that Israel's Knesset yesterday, by a vote of 39-32, gave final approval to a controversial bill that recommends, but does not require, judges to decide cases according to principles of Jewish law when there is no other relevant legislation or judicial precedent.  It also continues the provision that is in current law urging judges to also look at "the principles of Jewish heritage."  Bill sponsor MK Nissan Slomiansky (Habayit Hayehudi) explained:

The goal is that if there’s a lacuna in the law, instead of the judge running to look all over the world for compatible legal systems, he should look at Jewish law.  If the judge wants to, he’ll use it, and if not, he’ll use his judgment and do as he sees fit. This isn’t a big revolution and there’s nothing here that ought to scare people.

However, opposition Knesset member Merav Michaeli (Zionist Union) argued:

This is one small step ... on the way to an undemocratic state governed by Jewish law.... In a democratic country, the law is whatever is decided by the people’s representatives, not what a mere minority believes that God has decided.

And Knesset member Dov Khenin (Joint List , a coalition of Arab parties) said:

This bill is part of a creeping, dangerous move. This government has proposed a series of bills whose goal is to change the foundations of the system, to distance the system as much as possible from progressive views of democracy and make it more nationalist, conservative and religious.