Religious Organizations Challenge NY Regulator's Required Abortion Coverage

In a May 10 press release, the Roman Catholic Diocese of Albany, New York announced that it, along with the Episcopal Diocese and several other religious groups has filed suit in New York state court challenging the constitutionality of Model Language adopted by the New York State Department of Financial Services that requires individual and small group employers offering health insurance to their employees to include in renewal contracts coverage for therapeutic abortions, and for non-therapeutic abortions in the case of rape, incest or fetal malformation. The complaint (full text) in Roman Catholic Diocese of Albany v. Vullo, (NY Sup. Ct. Albany Cty., filed 5/4/2016), contends that the abortion mandate violates religious freedom and liberty of conscience in violation of various provisions of the state and federal constitutions as well as of New York law. [Thanks to Jeff Pasek for the lead.]

Hasidic Challengers To Zoning Law Suffer a Defeat on Appeal

LostMessiah blog reports:

A [New York] state appeals court has upheld the Village of Woodbury’s Comprehensive Plan and zoning laws, reversing a 2014 ruling that branded the zoning “exclusionary” for failing to accommodate the high-density housing needs of the Hasidic residents of neighboring Kiryas Joel.

In Matter of Village of Kiryas Joel, N.Y. v Village of Woodbury, N.Y., (NY App. Div., April 10, 2016), the appeals court concluded that the trial court should not have annulled the village's zoning action on environmental review and other procedural grounds. It sent the case back to the trial court, holding that "triable issues of fact exist as to whether the Comprehensive Plan and the Zoning Amendments amount to unconstitutional exclusionary zoning." (See prior related posting).

New York Court Refuses To Dismiss Suit To Declare Muslim Marriage Valid

In Jackson K v. Parisa G, 2016 N.Y. Misc. LEXIS 1487 (NY Sup Ct New York County, April 8, 2016), a New York state trial court refused to dismiss a suit by plaintiff who believed he had validly married defendant in an elaborate Iranian Islamic ceremony in New York, attended by 200 guests, even though the couple did not obtain a New York marriage license.  Alternatively plaintiff sought damages for fraud and conversion of a $25,000 engagement ring. A 20-minute ceremony was performed by Ms. Sholeh Sham, who now says she is not a member of the clergy and had no authority to marry the couple. Plaintiff however claims the marriage was valid under NY Domestic Relations Law Sec. 12 that validates marriages solemnized "in the manner heretofore used and practiced" by a particular religious denomination. The court said in part:

The court need not decide at this point whether it is possible for the court to determine the validity of the purported marriage on neutral principles. The ultimate issue is whether the ceremony meets the requirements set forth in DRL §12. Plaintiff argues that, in Defendant's denomination, no particular religious leader must solemnize a wedding ceremony. Under New York law, an officiant at a religious wedding ceremony need not be limited to a traditional concept of a member of the clergy or a minister ordained by a religious order..... Whether Ms. Shams was qualified to solemnize the marriage is an issue of fact....

The court also allowed plaintiff to move ahead with his claim of fraud, saying:

Here, the complaint includes detailed allegations to the effect that the Defendant accepted Plaintiff's marriage proposal and engagement ring on July 29, 2009...; that the Defendant told him that her family wanted to select the wedding  officiant to be certain that the marriage would be recognized in the Islamic Republic of Iran and valid under Iranian law.... 

... Plaintiff alleges that Defendant convinced him that Ms. Shams was authorized to marry them at the time she officiated at the September 4, 2010 Ceremony, and that they were actually married on September 4, 2010. Only after years of purported marriage did Defendant tell Plaintiff they were not married.

Former Kosher Supervisor At Manischewitz Sues Over Pressure To Compromise Standards

A lawsuit was filed Wednesday in state court in New York by Rabbi Yaakov Horowitz who was a kosher supervisor for the Union of Orthodox Jewish Congregations ("OU") and who certified products of Manischewitz Co.-- a major producer of Passover foods-- for more than 20 years.  As reported by NJ Advance Media and AP, the suit, filed just days before Passover, claims that Horowitz was forced to take a long leave of absence after complaining that he was being pressured by the OU to be more lax in his inspections of certain products.  Horowitz claims that OU cooperated because it was afraid that Manischewitz would move to a different kosher certifying agency.  Manischewitz denies the charges. The lawsuit seeks millions of dollars in damages for emotional distress and damage to reputation.

Suit By Man Injured Through Faith Healing May Proceed

In Sung-Ho Hwang v. Grace Road Church, (ED NY, March 14, 2016), a New York federal district court allowed a mentally ill man (in a suit through his conservator) to move ahead with negligent infliction of emotional distress and negligent supervision claims against a Korean-based church and its members who forced him off his prescription medications and attempted to cure him through religious healing. Plaintiffs' treatment of defendant-- including tying his wrists, ankles, and knees in a chair or bed with duct tape, and placing a sock in his mouth to restrain his screams at night-- led to amputation of his right leg and exacerbation of his psychotic symptoms.  The court rejected a number of procedural defenses and, in permitting the negligent infliction claim to move forward, said:

Even if the church and its members had no duty to plaintiff until the moment they restrained him, they acquired a duty to exercise reasonable care to secure his safety during the period of his restraint.

New York Law Journal reports on the decision.

2nd Circuit Affirms Win By Rockland County Villages Charged With Anti-Hasidic Discrimination

In the long battle between Hasidic residents and others in parts of Rockland County, New York, the Second Circuit has affirmed the district court's dismissal (see prior posting) of a complaint by Mosdos Chofetz Chaim, a Hasidic religious educational institution, that local villages discriminated against Hasidic Jews in actions opposing the building of a 60-unit adult student housing development.  In Bernstein v. Village of Wesley Hills, (2d Cir., March 23, 2016), the U.S. Second Circuit Court of Appeals concluded that plaintiffs' had not produced sufficient evidence for a jury to find disparate treatment or discriminatory animus.  Instead, it said the villages had a genuine concern about environmental impact of the development. Lower Hudson Journal News reports on the decision.

Suit Charges NY Community College With Anti-Semitic Hiring Practices

A lawsuit filed last month in federal district court in New York charges the Brooklyn-based Kingsborough Community College and Stuart Suss (who served variously as its Provost, Vice President for Academic Affairs and Interim President) with discrimination against faculty and faculty candidates whose dress or appearance was obviously Jewish (labeled in the complaint as "Outward Jews").  The complaint (full text) in Lax v. City University of New York, (ED NY, filed 2/16/2016) alleges that in 2000 Jews comprised a large percentage of department chairs and of the college-wide Personnel & Budget Committee, but that since then Suss has engaged in hiring and personnel practices designed to reduce or eliminate the number of outward Jews on the faculty and on the P&B Committee in violation of Title VII and New York state and city anti-discrimination laws. Yesterday's Algemeiner has more on the lawsuit.

Zoning For "Houses of Worship" Does Not Include Homeless Services Site

The Albany Times-Union reports that a New York state trial court judge last week overruled the Albany Board of Zoning Appeals decision that would have allowed the non-profit group Family Promise of the Capital Region to use a building in an area zoned to include "houses of worship" to provide services to homeless families.  The site-- a parsonage of the Bethany Reformed Church-- was used to provide daytime child care, access to computers, career and life counseling and a place to pick up mail and make phone calls.  The Board of Zoning Appeals held that the outreach services were part of Bethany's religious mission.  However the court disagreed, saying that a "house of worship" is a place set aside for for some form of religious devotion, ritual or service showing reverence. Critics of the court's decision say the ruling could create problems for all sorts of congregations that make their basements and meeting rooms available for social programs they deem part of their missions.  Family Promise can still apply for a zoning variance to allow it to continue its operations.

New York Regulations Aim To End Conversion Therapy

On Feb. 6, New York Governor Andrew Cuomo announced a series of executive actions to prevent the practice of LGBT conversion therapy in the state:

The New York State Department of Financial Services is issuing regulations barring New York insurers from providing coverage for conversion therapy given to an individual under the age of 18. Additionally, the New York State Department of Health is prohibiting coverage of conversion therapy under New York’s Medicaid program and the New York State Office of Mental Health is issuing regulations prohibiting facilities under its jurisdiction from providing conversion therapy treatment to minors.

Christian News reports on the governor's actions.

Ministerial Exception Applies To Hospital Chaplain's Discrimination Lawsuit

In Penn v. New York Methodist Hospital, (SD NY, Jan. 20, 2016), a New York federal district court invoked the ministerial exception doctrine to dismiss a discrimination suit brought by an African-American Methodist pastor employed as a part-time chaplain by a Methodist hospital.  Plaintiff claimed that he was not promoted to a vacant full-time position because of his race and religion. The court held that the hospital is a "religious institution" for purposes of the ministerial exception doctrine even though it had severed its formal ties with the United Methodist Church:

Severing a formal affiliation with the Church does not necessarily imply that the Hospital does not maintain any church-based relationship or have any religious characteristics.

It went on to find:

insofar as Plaintiff is a Methodist and was responsible—at least in part—for preaching the Christian faith, the relationship between Plaintiff and NYMH (specifically, the pastoral care department) was that of a religious employee and a religious institution. This case does not present the Court, nor will the Court venture out to decide, whether this holding would apply to a religious institution’s employment of a minister, pastor, or chaplain of a different faith.

NY Appeals Court Upholds Penalty On Wedding Venue That Refused To Host Same-Sex Ceremony

In Matter of Gifford v. McCarthy, (NY App. Div., Jan. 14, 2016), a New York state intermediate appellate court upheld a decision by the State Division of Human Rights imposing compensatory damages of $3000 and a civil fine of $10,000 on a for-profit wedding venue for refusing to host a same-sex marriage ceremony.  Liberty Ridge Farm rents space for, among other things, religious and secular wedding ceremonies and receptions.  One of the farm's owners told Melissa McCarthy that the farm did not host same-sex marriage ceremonies, though apparently it would have been willing to host the reception.  The court held that Liberty Ridge's wedding facilities are a "place of public accommodation" under the NY Human Rights Law and that discrimination against same-sex weddings is discrimination on the basis of sexual orientation.

The court went on to reject respondents federal and state free exercise claims, as well as their First Amendment compelled speech and expressive association defenses. It found the Human Rights Law to be a neutral law of general applicability.  The New York state constitution's free exercise clause requires a balancing of interests.  The court said:

While we recognize that the burden placed on the Giffords' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the Giffords' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination....  Balancing these competing interests, we conclude that petitioners failed to show that SDHR's determination constituted an unreasonable interference with the Giffords' religious freedom.

Rejecting respondents' First Amendment compelled speech argument, the court said:

Here, SDHR's determination does not compel the Giffords to endorse, espouse or promote same-sex marriages, nor does it require them to recite or display any message at all. The Giffords remain free to express whatever views they may have on the issue of same-sex marriage. The determination simply requires them to abide by the law and offer the same goods and services to same-sex couples that they offer to other couples. Despite the Giffords' assertion that their direct participation in same-sex wedding ceremonies would "broadcast to all who pass by the Farm" their support for same-sex marriage, reasonable observers would not perceive the Giffords' provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage.

The Blaze reports on the decision.

Settlement In Voter Registration Suit Brought By Disenfranchised Hasidic Jews

The Forward and JTA reported yesterday that a settlement has been reached in a lawsuit filed last year against the Sullivan County, New York, Board of Elections by 27 Hasidic Jews whose voter registrations were among 156 in the Village of Bloomingburg that the Board of Elections had taken steps to cancel.  The Election Board claimed that the voters were not really residents of the Village, which had a population of only 420 in the 2010 census. (See prior posting.)  Under the settlement agreement the names will remain on the voter rolls.  This is part of a larger dispute over the building of a high density 396-unit apartment development in Bloomingburg that will be marketed to members of the Satmar Hasidic community.

UPDATE: A Feb. 2 report by the New York Post says that the settlement, which the court has approved, includes the appointment of a monitor for 5 years to oversee the voting process (including review of the voter challenge questionnaire). Also voting materials and signs will be in both Yiddish and English. The county will pay damages of $25,000 and $550,000 in attorneys' fees.

Suit Says Proposed Annexation By Hasidic Town Violates Establishment Clause

As reported by the Wall Street Journal, in a lawsuit filed this week in state court in New York, an environmental group charges that the proposed annexation of 507 acres of land (and an alternative proposal to annex 164 acres) in the town of Monroe by the predominantly Hasidic village of Kiryas Joel violates the Establishment Clause. The 89-page complaint (full text) in Preserve Hudson Valley v. Town Board of the Town of Monroe, (NY Sup Ct Westchester County, filed 10/5/2015) alleges, in addition to challenges to the environmental analysis, that:

The Town Board’s and the Village Board’s determinations on the Annexation Petitions would unconstitutionally cede electoral territory and political power to a political subdivision whose franchise is, in effect, determined by a religious test. See Board of Education of Kiryas Joel Village School District v. Grument, et al. ..., 512 U.S. 687, 114 S. Ct 2481 (1994) (holding that legislative action that created a separate school district solely to serve the Village’s “distinctive population” impermissibly delegated political power “to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism”). The unconstitutional result  posed by the Annexation Petitions, in and of itself, renders their form and content noncompliant with Article 17 of the General Municipal Law....

The lawsuit, growing out of petitions by Hasidic Jewish residents of Monroe to have their property annexed by Kiryas Joel, also raises other challenges to the annexation attempt.  In a separate lawsuit filed last week, ten municipalities also challenged the annexation.

NY Education Commissioner Grants Religious Exemption From MMR Vaccination Requirement

In Appeal of N.C., (NYSED, Aug. 3, 2015), the New York Commissioner of Education granted a religious exemption from the public school immunization requirement to the son of a woman who had developed religious objections after her son had all of his immunizations except his second dose of the MMR vaccine.  The mother is an immigrant and a member of the Russian Orthodox Church. Her religious objections were formed after a conversation with a friend and research "on a few Bible and Christian blogs."  The Commissioner described petitioner's objections as follows:

Petitioner states that “our fate is in the hands of our Lord, even if He decides that we should have a flu or measles.”  She further states that “mortality is, and should be, in God’s hands” and thus “vaccination intercedes upon God’s rightful realm, as if being in God’s care alone is not assurance enough for us.”  In addition, petitioner states that she objects to vaccinations because they “contain cells of animal origin” which is counter to religious teachings that “blood [is] sacred” and should not be mixed “with foreign blood or any other impure matters.”  Petitioner further states that the “final straw” is that “a number of vaccines contain cells from aborted fetuses” and “abortion is clearly considered a mortal sin and is [an] abhorrent act to any Christian.”

Specifically petitioner alleged that "the MMR vaccine, the only vaccine at issue in this case, does contain human diploid cells that use aborted fetal cell lines."

The Commissioner held:

Based on the record before me, I conclude that the weight of the evidence supports petitioner's contentions that her opposition to the MMR vaccine stems from sincerely held religious beliefs.

New York Post last week reported 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.

Sympathetic Court Nevertheless Rejects Claim That Chimpanzees Are "Persons" Entitled To Habeas Relief

A New York state trial court judge yesterday in a 33-page opinion sympathetic to plaintiffs' claims nevertheless rejected attempts by animal rights activists to obtain a writ of habeas corpus on behalf of two chimpanzees used in scientific studies at State University of New York at Stony Brook.  In Nonhuman Rights Project, Inc. v. Stanley, (NY Cty. Sup. Ct., July 30, 2015), after dealing with a number of procedural and jurisdictional issues, the court moved to the central question in the case: "whether a chimpanzee is a legal person entitled to bring  writ of habeas corpus." The court pointed out that "'legal personhood' is not necessarily synonymous with being human..."  Courts use the legal fiction of personhood to treat corporations as persons. However the court decided it was bound by appellate precedent to reject the claim of personhood here. The opinion concluded:

The similarities between chimpanzees and humans inspire the empathy felt for a beloved pet.  Efforts to extend legal rights to chimpanzees are thus understandable; some day they may even succeed.  Courts, however, are slow to embrace change, and occasionally seem reluctant to engage in broader, more inclusive interpretations of law, if only to the modest extent of affording them greater consideration.  As Justice Kennedy aptly observed in Lawrence v. Texas, albeit in a different context, "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress."... The pace may now be accelerating. (See Obergefell v. Hodges....)

In a press release on the decision, the Nonhuman Rights Project said it will promptly appeal the decision to the Appellate Division.  New York Times reports on the decision.

Decision Is Step Toward Success For Group Seeking To Erect Eruv In The Hamptons

In Suffolk County, New York, a Jewish group seeking to construct an eruv in parts of three towns in the Hamptons moved a step closer to succeeding when a state trial court judge ruled last week that the Town of Southampton Zoning Board of Appeals improperly invoked the local sign ordinance to prevent the construction.  New York Jewish Week reports:

Acting Suffolk County Supreme Court Justice Joseph Farneti ruled June 30 that the board was wrong when it affirmed a town inspector’s opinion that lechis are signs that fall within the town’s sign ordinance. Lechis are wooden or plastic strips affixed to telephone and utility poles to form the boundaries of an eruv, within which observant Jews may carry items on the Sabbath. The association had sought to put 28 of them on 15 poles.

Such a finding is “irrational and unreasonable in that it does not comport with the sign ordinance’s intent,” the judge wrote. “The Court finds that the boundaries are invisible as the lechis are not discernable. … Neither drivers nor casual observers would be able to differentiate the poles which have lechis attached from the other poles.”

Farneti added: “It is well-settled that, while religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for a religious use and every effort to accommodate the religious use must be made.”

The East End Eruv Association has been litigating in state and federal courts since 2011 in an attempt to get approval. (See prior posting.)

Film Producer Says Its Ads For Comedy About U.S. Muslims Is Permitted Under New York MTA Revised Guidelines

As previously reported, in late April the New York Metropolitan Transportation Authority changed its policy on display advertising to exclude all ads of a political nature. Yesterday a lawsuit was filed on behalf of a movie production company that claims ads for its movie "The Muslims Are Coming!" was wrongfully rejected under that policy.  The complaint (full text) in Vaguely Qualified Productions LLC v. Metropolitan Transportation Authority, (SD NY, filed 6/25/2015), alleges that acceptance of ads for the film-- created by two American Muslim comedians-- was unconstitutionally delayed before the policy change, and then wrongfully rejected under the new policy because the ads are not political.  The complaint alleges in part:

55. With its Revised Policy, Defendants seeks to convert the MTA’s property from a designated public forum into a limited public forum....

57. In a limited public forum, strict scrutiny is accorded to restrictions on speech that fall within the designated category for which the forum has been opened. Restrictions on speech that fall outside that designated category must only be viewpoint neutral and reasonable.

58. VQP’s Advertisements fall within a designated category for which Defendants have opened the forum. Specifically, VQP’s Advertisements are “commercial advertising,”... because, in a manner consistent with VQP’s brand, the Advertisements “promote” and “solicit the sale” of VQP’s product, “The Muslims Are Coming!,” by promoting the underlying message of the film—that American Muslims are ordinary people.

A Muslim Advocates press release announced the filing of the lawsuit. Newsweek reports on the lawsuit.

Cert. Petition Filed In Challenge To Differential NY Child Protection Safeguards For Private Schools

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in U.L. v. New York State Assembly.  In the case, the U.S. Second Circuit Court of Appeals rejected 1st and 14th Amendment challenges to New York's statutory exclusion of private schools (including religious schools) from some of the state child protection requirements that are mandatory in public schools. (See prior posting.) [Thanks to Elliot Pasik for the lead.]

Local Board Loses Suit Against NY Education Department Over Placement of Jewish Special Needs Students

As reported by yesterday's Lower Hudson Journal News, the East Ramapo, New York school board's battle with  the state Education Department continues as the local school board loses a lawsuit challenging state interference in its placement of special education students.  Last year a state-appointed monitor filed report critical of the East Ramapo board whose Orthodox Jewish majority has been charged with aiding yeshivas at the expense of public schools. (See prior posting). The latest round involves intervention by the state challenging the East Ramapo board's practice of paying for special needs students from ultra-Orthodox families to go to private Yiddish-speaking schools when placements were available in public schools. (Background.) The district had argued that the cost of placing students in private schools that accommodate their cultural and language preferences is no more than placement in public schools, and fighting parental requests would have cost the district tens of thousands of dollars.  In Matter of East Ramapo School District v. King, (App. Div., June 4, 2015), a New York appellate court held that the federal Individuals With Disabilities Education Act does not grant the local school board a right of action to challenge the state's enforcement of federal law assuring students with disabilities a free appropriate public education.