Challenge To "Under God" In Pledge Rejected

In American Humanist Association v. Matawan-Aberdeen Regional School District, (NJ Super. Ct., Feb. 4, 2015), a New Jersey state trial court dismissed a lawsuit that claimed the daily recitation of the pledge of allegiance in public schools violates the equal protection guaranties of the New Jersey constitution to atheist and humanist students, even when they are not required to participate in the pledge.  The court said in part:

the court is not insensitive to the Does and Doechild's claim that they feel marginalized by the inclusion of the words "under God" in the text of the Pledge.  Subjective feelings, however, do not and cannot serve as a constitutional litmus test for equal protection in the absence of some invidious classification because potentially anything offensive to one's subjective sensibilities could be struck down as unconstitutional.

The Becket Fund issued a press release announcing the court's decision.

UPDATE: Here is a link to the full opinion and court's order.

Defendant's Failure To Touch Bible During Oath Leads NJ High Court To Remand

In Davis v. Husain, (NJ Sup. Ct., Dec. 23, 2014), the New Jersey Supreme Court remanded a case to the trial court for a different judge to consider whether religious considerations tainted a $12,500 verdict in a sexual harassment suit by a woman against her former employer. As described by the Supreme Court:

After the verdict was rendered and the jury was discharged, but before post-trial motions were argued and the judgment was entered, the trial judge conducted an ex parte discussion with the jurors, which was not recorded. According to the judge, one juror noted during that discussion that she was surprised that defendant had not placed his hand on the Bible before he testified. The judge did not make a record of the juror’s observation, but he did inform counsel as later events reveal.

The court indicated in a footnote:

Husain’s certification, submitted during post-verdict motion practice, indicates that Husain’s action was based on his religious beliefs. He states that it is his religious belief that the left hand should never be placed on a holy book.” He also states that he is “of Indian descent and the left hand is not used for any official purpose because of our culture.” 

The Supreme Court also banned for the future any post-verdict communications between a trial judge and jurors outside the presence of counsel. New Jersey Advance Media reports on the decision.

Cert. Petition Filed In Challenge To New Jersey Ban On Reparative Therapy For Minors

On Wednesday, a petition for certiorari (full text) was filed with the U.S. Supreme Court in King v. Governor of New Jersey.  In the case, the 3rd Circuit upheld New Jersey's statute barring professional counselors from engaging in sexual orientation change therapy with minors. (See prior posting.)  Liberty Counsel issued a press release announcing the filing of the petition for review.

3rd Circuit Upholds New Jersey's Ban On Reparative Therapy As Permissible Regulation of Professional Speech

Yesterday, the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges New Jersey's statute barring professional counselors from engaging in sexual orientation change therapy with minors. In King v. Governor of the State of New Jersey, (3rd Cir., Sept. 11, 2014), the court affirmed the district court's decision, while disagreeing with its 1st Amendment free expression analysis. Rejecting the district court's conclusion that talk therapy is not speech, the court instead concluded that it is "professional speech" which is subject to the same intermediate scrutiny as commercial speech.  Applying that test, the court found that the law directly advances New Jersey’s interest in protecting minors from harmful professional practices and is narrowly enough tailored to survive intermediate scrutiny.  The court rejected plaintiffs' free exercise challenge, finding that the law is neutral and generally applicable, and rejected plaintiffs' overbreadth challenge as well. Finally it agreed with the district court that plaintiffs lacked standing to bring suit on behalf of their minor clients. Bloomberg News reports on the decision. Liberty Counsel which represented plaintiffs announced that it would seek Supreme Court review.

Summary Contempt Finding For Wearing Religious Head Covering Reversed

Without reaching the free exercise issue, in State of New Jersey v, Graham, (NJ App., Aug. 12, 2014), the New Jersey Superior Court Appellate Division held that a municipal court judge acted improperly in summarily holding a defendant facing a disorderly persons charge in contempt.  As explained by an ACLU press release:

When Matthew Graham went before Egg Harbor City Municipal Judge William Cappuccio in Oct. 2013, the judge held Graham in contempt for not removing his hat, despite Graham’s explanation that he wore it for religious purposes. When Judge Cappuccio stated that he knew of no religion that required the wearing of a “ski cap,” Graham attempted to explain that he lacked the funds to travel to the store where he could purchase a more traditional religious cap.

On apppeal (after a battle over indigency status of the defendant), the appeals court in a brief order said:

We do not beleive that wearing of what the municipal judge called a "ski cap" during the proceeding, compelled invocation of the extraordinary judicial contempt powers to summarily adjudicate a defendant's conduct. A contempt proceeding on notice and an order to show cause was available to deal effectively with defendant's conduct, if warranted.

The ACLU's brief discusses the 1st Amendment issues involved.

Court Upholds New Jersey's Reparative Therapy Ban For Second Time

 In Doe v. Christie, (D NJ, July 31, 2014), a New Jersey federal district court for the second time (see prior posting) rejected constitutional challenges to New Jersey's law barring mental health professionals from treating minors using Sexual Orientation Change Efforts. This challenge was brought by parents seeking reparative therapy for their 15-year old son.  The court said in part:

A3371 does not implicate Plaintiffs’ free speech rights  because the statute (i) does not regulate speech, directly or indirectly, but rather only regulates a mental health procedure performed by licensed counselors or therapists, and (ii) does not prevent the receipt of information regarding SOCE outside  the counseling or therapy setting. Accordingly, Plaintiffs’ claim that the statute violates their right to receive information is  without merit.....

The court also rejected free exercise and parental rights challenges to the law. NBC10 reports on the decision.

Meanwhile, as reported by BuzzFeed yesterday, 9 former leaders of the ex-gay movement signed a letter stating that conversion therapy is both ineffective and harmful.

Conversion Therapy Victims Can Recover Treble Damages Under New Jersey Consumer Fraud Act

In Ferguson v. JONAH (Jews Offering New Alternatives for Healing), (NJ Super., June 6, 2014), a New Jersey trial court held that plaintiffs who paid defendant for counseling and other methods to purge unwanted same-sex attractions can recover treble damages under the New Jersey Consumer Fraud Act, Sec. 56:8-19 for money spent on therapy to repair the damage done by JONAH's original conversion therapy. The court concluded that those costs constitute the kind of "ascertainable loss" required by the statute before treble damages may be recovered. The Southern Poverty Law Center issued a press release announcing the decision.

Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

In Valent v. Board of Review, Department of Labor, (NJ App., June 5, 2014), the New Jersey Superior Court Appellate Division held that a nurse employed by a hospital was entitled to unemployment compensation after she was fired for refusing to obtain a flu vaccination as required by the hospital's policy.  The hospital policy allowed exemptions for religious or medical reasons, however here the nurse's objections were based on secular non-medical concerns.  The court wrote in part:

By exempting employees who can produce religion-based documentation, the employer's flu vaccination policy is clearly not exclusively driven by health-related concerns. The Board cannot therefore accept the policy as a proper basis to find appellant committed an act of insubordination of sufficient magnitude to render her disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(b)....

The religion exemption merely discriminates against an employee's right to refuse to be vaccinated based only on purely secular reasons.  Our Supreme Court has clearly cautioned that "[g]overnment may not, under the First Amendment, prefer one religion over another or religion over non-religion but must remain neutral on both scores.".... Under these circumstances, by denying appellant's application to receive unemployment benefits based only on her unwillingness to submit to the employer's religion-based policy, the Board violated appellant's rights under the First Amendment.

AP reports on the decision.

Court OK's Sale of Mausoleum Space and Headstone Inscriptions By NJ Catholic Cemeteries

In Monument Builders of New Jersey v. Roman Catholic Archdiocese of Newark, (NJ Super., April 29, 2014), a New Jersey trial court upheld the right of the Newark Catholic Archdiocese to sell monument inscription rights and burial rights in mausoleums at Catholic cemeteries. Commercial monument builders argued that the Archdiocese has engaged in unfair competition with them, and that the sale of monuments by the Archdiocese is ultra vires and against public policy. (See prior posting.) The court held first that the state's statutory ban on cemeteries selling monuments or mausoleums is inapplicable to religiously owned cemeteries that restrict burial to members of the religious faith and their families.  Secondly, the court concluded that if the Archdiocese is statutorily authorized to engage in its monument and mausoleum programs, its alleged competitive advantage is irrelevant.  The court went on to conclude that the state's religious corporation law grants the Archdiocese the authority to acquire and install mausoleums and monuments and to sell inscription rights. Newark Star-Ledger reports on the decision.

Head of Jewish Free Loan Society Pleads Guilty To Operating An Unchartered Bank In Money Laundering Case

The New Jersey U.S. Attorney's Office announced that on Wednesday criminal defendant Moshe Schwartz pleaded guilty to charges of operating an unchartered bank and aiding in the filing of a false tax return. As reported by the Newark Star-Ledger, the case grows out of the arrest of 46 politicians and Jewish religious leaders in 2009 in an investigation of  money laundering and corruption. (See prior posting.) Schwartz, who was not among those initially arrested, headed a supposed charitable organization, Gemach Shefa Chaim. The organization was created to provide interest-free loans to needy members of the Sanz Hasidic community in Union City, New Jersey.  However it was also used to launder millions of dollars, free from oversight by banking regulators.  By 2009, the Gemach had 350 client accounts. It accepted deposits from the clients and then made wire transfers and wrote Genach checks at the direction account holders to disburse funds. Schwartz, who will be sentenced in July, could face up to 5 years in prison.

Suit Challenges Daily School Recitation of Pledge of Allegiance

The American Humanist Association announced yesterday that it has filed suit in a New Jersey state court challenging New Jersey's statutory requirement that schools open each day with the Pledge of Allegiance that includes the phrase "under God."  The complaint (full text) in American Humanist Association v. Matawan-Aberdeen Regional School District, (NJ Super Ct., filed 4/19/2014) which raises only state constitutional claims contends that the daily classroom exercise unconstitutionally discriminates on the basis of religion against plaintiffs who hold Humanist or atheist religious views.

Atheist Sues New Jersey Over Refusal of Vanity License Plate

A New Jersey woman yesterday filed suit in federal district court against the New Jersey Motor Vehicle Commission over its refusal to issue her a vanity license plate reading "8THEIST".  The complaint (full text) in Morgan v. Martinez, (D NJ, filed 4/17/2014), contends that in rejecting the plate because it "may carry connotations offensive to good taste and decency" the state violated plaintiff's rights under the 1st and 14th Amendments.  The state was willing to issue a vanity plate reading "BAPTIST".  Americans United issued a press release announcing the filing of the lawsuit.

Negligence In Identifying Son's Body Did Not Deprive Mother of Free Exercise Rights

In Simkova v. City of Newark, (D NJ, March 31, 2014), a New Jersey federal district court dismissed free exercise and due process claims against the city, police officials, the state medical examiner and others. The court described the facts as follows:

In January 2012, plaintiff Zdenka Simkova ... learned that her son, Michael ... who went missing in 2007 over the Thanksgiving holidays and had never been located—had died years earlier and was buried in a mass grave in Hackensack. She filed a federal lawsuit detailing both the resistance she faced after she reported him missing within days after he failed to show up at her house and the misinformation she received from official sources..... Simkova alleged that the defendants failed to follow proper procedures for the identification and investigation of missing persons—a result, in part, of the municipal defendants’ policies and their failure to train their employees—thereby depriving her of her right to possess her son’s body and to bury him in accordance with her religion.

In rejecting plaintiff's free exercise claim, the court emphasized that plaintiff had not alleged defendants were aware of her religious concerns, or had any idea that their actions might affect her religious practice.

Hearing This Week On Injunction Against New Jersey Archdiocese Selling Headstone and Mausoleum Rights

Yesterday's Newark Star Ledger reports that a hearing is scheduled April 1 in a New Jersey Superior Court on an action by three cemetery monument companies against the Roman Catholic Archdiocese of Newark seeking to enjoin the Archdiocese from selling monuments and private mausoleums at Catholic cemeteries.  The complaint (full text) in Monument Builders of New Jersey, Inc. v. Roman Catholic Archdiocese of Newark, (NJ Super Ct), filed last  year argues that the Archdiocese has engaged in unfair competition with private monument companies:

The sale of the monuments and the private mausoleums is in direct competition with Plaintiff entities and because of its tax-exempt status and the close contact with the family of the deceased before, at the time of, and after the burial give the Archdiocese preferred economic position and ease of access to prospective customers in promoting sales.

The complaint also alleges that the sale of monuments by the Archdiocese is ultra vires and against public policy.

The Archdiocese's answer (full text) filed Sept. 4, 2013, says that the Archdiocese is not selling monuments and mausoleums. Rather it is selling inscription rights to monuments and burial rights in mausoleums that the Archdiocese owns.  This arrangement makes it responsible for repairs when there is damage to headstones of mausoleums.  The Archdiocese admits that it is subject to New Jersey's 7% use tax on the monuments and mausoleums it purchases, even though apparently it has not yet paid the tax. (Deposition.)

Court Rejects Challenges To New Jersey Ban On Conversion Therapy for Minors

In King v. Christie, (D NJ, Nov. 8, 2013), a New Jersey federal district court dismissed a challenge to the state's ban on sexual-orientation change therapy for minors.  It held that psychotherapy carried out through talk therapy is not speech under the 1st Amendment.  Instead it is conduct.  In so holding, the court in part pointed to the 9th Circuit's recent decision upholding a similar California statute. The court went on to reject claims that the New Jersey statute is overbroad and vague.  Finally the court rejected the claim that the New Jersey statute violates the Free Exercise clause by preventing mental health providers from exercising their sincerely held religious beliefs that changing same-sex attraction or behavior is possible. The court concluded that the statute is a neutral law of general applicability. The Newark Star Ledger reports on the decision.