Same-Sex Marriage Developments Continue

Developments stemming from the U.S. Supreme Court's recent same-sex marriage decisions continue to be reported:

According to yesterday's Deseret News, Utah businessman Jonathan Johnson, executive vice chairman of  Overstock.com, is undertaking a national campaign, beginning in Utah, urging states to amend their constitutions to protect religious organizations from being required to  "solemnize, officiate in, or recognize any particular marriage or religious rite of marriage in violation of its beliefs."

Under American immigration law, an individual may receive a derivative visa if his or her spouse or first-degree relative is eligible for U.S. residency.  Haaretz reports that the American embassy in Israel has issued its first derivative visas to Israeli same-sex spouses who were married legally outside of Israel.

Court Invalidates Temporary Land Use Limits On Pregnancy Center As Overbroad and Vague

In The Life Center, Inc. v. City of Elgin, Illinois, (ND IL, Aug. 8, 2013), an Illinois federal district court invalidated Elgin's temporary land use provision as unconstitutionally overbroad and vague. The ordinance was challenged by The Life Center, a religiously-based organization that furnishes pregnant women with religious literature and certain prenatal services. Its mobile facility operates from commercial parking lots with the consent of the owners.  The ordinance limits the number of days the facility can operate. The court held:

The definitions under the Code for the terms "land use" and "structure" are so broad, they would encompass virtually all types of activity, including a substantial amount of activity protected under the First Amendment.

Plaintiffs claim that the 2012 amendments to the city ordinance that put in place the challenged provisions were targeting The Life Center. Christian Newswire carries TLC's press release on the decision.

U.S. Amicus Brief In Supreme Court Supports Town's Invocation Policy

Some two dozen amicus briefs in support of the Town of Greece, New York's prayer policy have been filed with the U.S. Supreme Court in Galloway v. Town of Greece. The case is scheduled to be argued this term.  (Amicus briefs in support of plaintiffs challenging the policy are not yet due.) Among the most interesting of the briefs supporting the town is the one filed by the Solicitor General on behalf of the United States. (Full text.) In the brief filed Aug. 2, the SG argues that legislative prayer which does not proselytize, disparage any religion or advance a particular faith does not violate the Establishment Clause "merely because most prayer-givers are Christian and many or most of their prayers contain sectarian references." The brief adds: "Neither federal courts nor legislative bodies are well suited to police the content of such prayers." The Second Circuit held that the town's invocation practices convey the impression that it is endorsing Christianity. (See prior posting.)

Obama Sends Muslims Eid-al-Fitr Greetings

The White House yesterday released a statement (full text) sending warmest greetings from the President and First Lady to Muslims in the U.S. and around the world celebrating Eid-al-Fitr. The President also used the statement to highlight the humanitarian food and other aid being sent to the people of Syria.

Plaintiff Gives Up On Trying to Hold Vatican Liable In Priest Abuse Case

On Aug. 5, the U.S. 9th Circuit Court of Appeals dismissed at the request of the parties the appeal in Doe v. Holy See which sought to hold the Vatican vicariously liable in a priest sexual abuse case. AP reports that plaintiff's lawyer Jeff Anderson said that his client has grown tired after ten years of litigation. Vatican Radio has published an interview about the case with the Vatican's lawyer Jeffrey Lena. (See prior related posting.)

Suit Challenges Revised Contraceptive Coverage Mandate Accommodation for Non-Profits

In June, the Department of Health and Human Services issued final rules providing a compromise for religiously sponsored non-profits such as hospitals and colleges that object to the Affordable Care Act's contraceptive coverage mandate. (See prior posting.) The Becket Fund announced yesterday that a lawsuit challenging these revised rules has been filed by Colorado Christian University whose attempt last year to challenge the mandate was dismissed on ripeness grounds. The complaint (full text) in Colorado Christian University v. Sebelius,  (D CO, filed 8/7/2013) contends that the final compromise is "meaningless,"  saying in part:

147. In sum, for both insured and self-insured organizations, the accommodation is nothing more than a shell game that attempts to disguise the religious organization’s role as the central cog in the government’s scheme for expanding access to contraceptive and abortifacient services.

148. Despite the accommodation’s convoluted machinations, a religious organization’s decision to offer health insurance and its self-certification continue to serve as the sole triggers for creating access to free contraceptive and abortifacient services.

State Department Launches New Office of Faith Based Community Initiatives

Last October, the U.S. State Department's Religion and Foreign Policy Working Group issued a White Paper recommending creation of an institutionalized mechanism for the State Department to use in communicating and collaborating with religious communities around the world. At a press conference today, Secretary of State John Kerry announced the launching of the State Department's Office of Faith Based Community Initiatives whose mission is to partner with faith communities to solve global challenges. The Office will be headed by Dr. Shaun Casey.  Also speaking at the press conference, Melissa Rogers, Director of the White House Office of Faith-Based and Neighborhood Partnerships, issued some 1st Amendment cautions, saying:

[A] guiding principle for all of this work will be that our actions must be consistent with the United States Constitution. Employees of our government can and should engage faith-based leaders and communities on US policy priorities just as they do other civil society leaders and communities. At the same time, our precious religious freedom guarantees of the First Amendment mean that we must observe some special rules when we engage religious actors and matters, such as ensuring governmental neutrality toward faith. All diplomatic and consular posts will receive guidance and continuing assistance on these important issues.

The exact relationship of the new office to existing State Department officials concerned with religious issues is not clear, though both Secretary Kerry and Dr. Casey assured cooperation with them.  Currently serving in roles related to religion are  Ambassador-at-Large for International Religious Freedom Suzan Johnson Cook, Special Envoy to the Organization of Islamic Cooperation Rashad Hussain, Special Envoy to Monitor and Combat Anti-Semitism Ira Forman, and Special Representative to Muslim Communities Farah Pandith.

Meanwhile, The Immanent Frame has published an exchange between 17 experts on the prospects for the new Office and its implications for religious diversity and non-religious civil society organizations.

Federal Faith-Based Partnership Reforms Grind Slowly Ahead With New OMB Memo

As previously reported, in April 2012 the White House issued the Recommendations of the Interagency Working Group on Faith-Based and Other Neighborhood Partnerships which provides federal agencies with guidance on carrying out Executive Order 13559 (Nov. 17, 2010)-- the executive order that adopted a number of recommendations of the President's faith-based task force. Now, as announced last week by the White House Office of Faith-based and Neighborhood Partnerships, the Office of Management and Budget has finally issued a Memorandum (full text) instructing federal agencies to take steps, consistent with that Report, to carry out the 2010 Executive Order.  However, further delay is likely since the Memorandum states that the Working Group that created the 2012 Report will now be reconvened to develop a plan for agency implementation of the Executive Order. After that plan is issued, agencies will have 120 days to send OMB their agency-specific plan for amending their rules and guidance documents. Religion News Service yesterday reported on  these developments. [Thanks to Michael Lieberman for the lead.]

Kenyan Lawyer Wants International Court To Vindicate Jesus

According to a report last week in the Jerusalem Post and an earlier report by Standard Digital News, a Kenyan lawyer is attempting to get the International Court of Justice (ICJ) to give legal vindication to Jesus by declaring his trial before the Roman courts centuries ago a legal nullity. The suit was originally filed in the High Court of Kenya in 2007. (Full text of complaint.) When the Kenyan courts rejected the suit, lawyer Dola Indidis petitioned the ICJ.  The suit names , Tiberius (emperor of Rome, 42 BC-37 AD), Pontius Pilate (Governor of Judea), Annas, Jewish Chief Priest, Elders and Teachers and King Herod as defendants. It also names the Republic of Italy and the State of Israel on the theory that they are the successors to the laws of the Roman Empire that were in force at the time of Jesus' crucifixion. An ICJ spokesman says it only has jurisdiction in suits between states, and not here where a private party is suing. However Indidis says that the ICJ has constituted a panel to hear the case.

Former School Employee Who Suffered Religious Pressure Can Proceed On Discrimination and Retaliation Claims

In Scott v. Montgomery County School Board, (WD VA, Aug 5, 2013), a Virginia federal district court allowed a former school library media aide to move forward with her religious discrimination and retaliation claims growing out of alleged Christian religious pressure from her immediate supervisor. The court however dismissed plaintiff's hostile work environment claim, as well as her claim for punitive damages.

Wire Service Exempt From State Anti-Discrimination Ban In Refusal To Publish Article On Religious Beliefs

In Medhi v. Commission on Human Rights and Opportunities, (CT App., official release date: Aug. 13, 2013), the Appellate Court of Connecticut dismissed a suit in which plaintiff claimed he had been discriminated against on the basis of religion when the Associated Press refused to publish articles he had written regarding his religious beliefs.  The court affirmed the Human Rights Commission's holding that AP was exempt from the ban on religious discrimination in public accommodations (CT Stat. § 46a-64 (a)) where the complaint alleged a matter reserved for journalistic discretion. Ordering AP to print the material would have violated the 1st Amendment.

Air Force Agrees That Officers May Take Secular Version of Commissioning Oath

The American Humanist Association reports today that the U.S. Air Force has responded positively to its letter complaining on behalf of an Officer Trainee about Air Force Form 133 (Oath of Office).  The oath of office on the form (while allowing the individual signing it to "affirm" rather than "swear") ends with the phrase "so help me God." AHA's letter, complaining on constitutional grounds, was sent on behalf of an officer trainee who was required by his flight commander to sign the oath, even though the theistic reference violates his beliefs. The Officer Trainee was also told he would be required to take an identical verbal oath.  Air Force officials, admitting their mistake and apologizing, now assure AHA that the Officer Trainee will be permitted to take a secular version of the verbal oath that is administered, and will be allowed to revise the written version he signed. Other members of the graduating class are also being advised of the secular option.

Russian Kopimists Plan To Challenge Internet Piracy Law As Insult To Religious Feelings

In Russia, a new law that takes effect this week aimed at stopping Internet piracy has given a stronger hand to copyright holders. (Hollywood Reporter.)  Opponents of the law have devised an ingenious new strategy.  As reported by RT and by Network World, activists in 5 Russian cities will apply to register the Missionary Church of Kopimism as a religion. Kopimism is a movement, centered in Sweden, that believes sharing information is a sacred value. Once the Kopimists complete the paperwork, they then plan to file suit to invalidate the new anti-piracy law on the ground that it violates another recent law that prohibits insulting the religious beliefs and feelings of citizens. (See prior posting.)

County Commissioners Pray In Another Room To Technically Comply With Court Order

As previously reported, last month a federal district court issued a preliminary injunction barring the Rowan County, North Carolina Board of Commissioners from opening Board meetings with sectarian prayers. According to the Salisbury Post, at yesterday's Board meeting the commissioners showed technical compliance. After opening the meeting and reading a statement saying they believed the injunction was unconstitutional, the commissioners briefly recessed the meeting so that they could go into another room and pray. During the three minutes they were gone, someone attending the meeting stood up and offered their own prayer, ending "in Jesus' name." The commissioners returned before that prayer was completed.

Indicted Minister of Cannabis Church Wins Partial RFRA Victory

Hawai'i Daily News reports that last Wednesday a Hawaii federal district court gave a partial victory to Rev. Roger Christie who is charged with distributing marijuana to his parishioners as part of his religious ministry.  Judge Leslie E. Kobayashi ruled that as a matter of law, two of the elements of a Religious Freedom Restoration Act defense have been shown.  Christie's actions stem from a sincere belief in a legitimate religion, and the government has substantially burdened his religious exercise. The government can still prevail if at trial it shows that it had a compelling interest in barring the religious use of cannabis here, and that it used the least restrictive means to further that interest.

Australian Election Date Moved, Avoiding Conflict With Yom Kippur

Australia's Prime Minister Kevin Rudd yesterday called elections for Sept. 7, instead of the Sept. 14 date that had been set by former Prime Minister Julia Gillard.  The Sept. 14 date conflicted with the Jewish holy day of Yom Kippur. As reported by the Times of Israel:

Australia, home to more than 100,000 Jews, has compulsory voting, meaning all citizens must cast their vote in national elections or face a penalty, usually a fine or community service. Since elections are always held on Saturdays, Orthodox Jews are already used to casting their votes via the mail, but there was concern that [if elections were scheduled for Yom Kippur] less observant members of the community may fail to follow suit and miss voting by going to synagogue.

Recent Articles of Interest

From SSRN:

• Pasquale Annicchino, Recent Developments Concerning the Promotion of Freedom of Religion or Belief in Italian Foreign Policy, (The Review of Faith & International Affairs (Forthcoming)).
• Asad Zaman, Islam Versus Economics, (Oxford University Handbook on Islam and the Economy, Kabir Hassan and Mervyn Lewis, eds., 2013 Forthcoming).
• Petur O. Jonsson, Some Thoughts on Hamill, the Two Kingdoms, and the Ethics and Logic of Higher Tax Rates and Redistribution, (Journal of Accounting, Ethics and Public Policy, Vol. 14, No. 3, 2013).
• Douglas Laycock, Religious Liberty and the Culture Wars, (U. Ill. L. Rev., 2014, Forthcoming).
• Perry Dane, Allan R. Stein & Robert F. Williams, Saving Rutgers Camden, (Rutgers Law Journal, Forthcoming).
• Howard Kislowicz, Freedom of Religion and Canada's Commitments to Multiculturalism, (31 National Journal of Constitutional Law 1, 2012).
• Reva B. Siegel, Dignity and the Duty to Protect Unborn Life, (in Understanding Human Dignity, Christopher McCrudden ed., Forthcoming 2014).

From SmartCILP and elsewhere:

• Jack M. Beermann, Jewish Identity and Judging: Seymour Simon of Illinois, 44 Loyola University Chicago Law Journal 939-964 (2013). 
• Edward J. Larson, Teaching Creation, Evolution, and the New Atheism in 21st Century America: A Window On an Evolving Establishment Clause, 82 Mississippi Law Journal 997-1048 (2013).
• Peter P. Meringolo, Catholic Moral Teaching and Natural Law: Changing the Way We Think About and Teach Professional Legal Ethics, 44 Loyola University Chicago Law Journal 1067-1091 (2013).
• Niaz A. Shah, The Use of Force Under Islamic Law, [Abstract], 24 European Journal of International Law 343-365 (2013).
• Rex Adhar, Is Secularism Neutral?, [Abstract], Ratio Juris, Vol. 26, Issue 3, pp. 404- 29, Sept. 2013.

[Updated]

British Appeals Tribunal Says Firing of Chef For Using Non-Kosher Jam Was Pretext For Disability Discrimination

In Carmelli Bakeries Ltd. v. Benali, (EAT, July 31, 2013), Britain's Employment Appeal Tribunal upheld the finding of an Employment Tribunal that a kosher bakery's discharge of a pastry chef for intentionally using non-kosher jam in a cake was unfair.  It concluded that the employee's treatment was in fact motivated by the employer's dislike of accommodations that had to be made for the employee's medical disability caused by sciatica.  However, the Appeal Tribunal held that the Employment Tribunal should have considered whether the £35,567 award for compensation should have been reduced for contributory fault of the employee.  Hendon & Finchley Times reports on the decision.

Recent Prisoner Free Exercise Cases

In Williams v. Bragg, (5th Cir., July 29, 2013), the 5th Circuit rejected an inmate's claim that his free exercise and RFRA rights were infringed when the prison's regular weekly Muslim congregational prayer service was cancelled on several occasions.

In Native American Council of Tribes v. Weber, 2013 U.S. Dist. LEXIS 105712 (D SD, July 29. 2013), a South Dakota federal district court denied the South Dakota Department of Corrections motion to stay pending appeal to an injunction that was awarded requiring that it allow tobacco to be used in Native American rituals.

In Field v. Beneze, 2013 U.S. Dist. LEXIS 105897 (D CO, July 29, 2013), a Colorado federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 105938, June 24, 2013) and dismissed an inmate's claim that his free exercise rights were infringed when, as he was removed from the general inmate population, his property was confiscated including religious materials.

In Giorgio v. Clarke, 2013 U.S. Dist. LEXIS 107262 (D MA, July 31, 2013), a Massachusetts federal district court allowed former Native American inmates to proceed against certain defendants on their complaint that while incarcerated they were denied access to sweat lodge ceremonies, use of prayer feathers, sage cleansing, and smudging ceremonies.

In Smolsky v. Department of Corrections, 2013 Pa. Commw. Unpub. LEXIS 606 (PA Commonw. Ct., Aug. 1, 2013), the Commonwealth Court of Pennsylvania rejected an inmate's claim that because his Roman Catholic faith prohibits lying, his free exercise rights were infringed when the sex offender treatment program forced him to admit that he committed crimes for which he is innocent.

In Davis v. Hubler, 2013 U.S. Dist. LEXIS 107585 (ED NC, July 30, 2013), a North Carolina federal district court permitted an inmate to proceed with his complaint that he is being denied the Nation of Islam Final Call weekly religious publication, but dismissed his complaint that the bean pies furnished him for Savior's Day were made in the prison kitchen rather than at the outside bakery he preferred.

In Donahue v. Pennsylvania, 2013 U.S. Dist. LEXIS 107880 (MD PA, July 30, 2013), a Pennsylvania federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 107518, June 4, 2013) and dismissed an inmate's claim that his religious prayer books were wrongfully seized by police when he was arrested. He sought their return, their exclusion as evidence in his upcoming state criminal trial, dismissal of criminal charges against him and millions of dollars in damages.

In Doe v. Sex Offender Registry Board, 2013 Mass. App. Unpub. LEXIS 808 (MA App., Aug. 2, 2013), a Massachusetts appellate court rejected an inmate's claim that his free exercise rights were violated by the Sex Offender Registry Board's negative or neutral reaction to his plans to attend church following his release. When he was offending, he told victims that he was a Sunday school teacher and planned to become a pastor.

In Robinson v. Parker, 2013 U.S. Dist. LEXIS 108455 (WD KY, Aug. 2, 2013), a Kentucky federal district court dismissed complaints by an inmate who is a member of the Moorish Science Temple of America that he is required to use the name under which he is convicted and not permitted to use "-El" after his surname.  Plaintiff had asserted both 1st Amendment retaliation and RLUIPA claims.

Negligence Claim Against Diocese Over Rape by Deacon May Proceed

In Doe v. Corporation of the Catholic Bishop of Yakima, 2013 U.S. Dist. LEXIS 109006 (ED WA, July 30, 2013), a Washington federal district court denied defendants' motion for summary judgment in a suit alleging negligence by the Catholic diocese, the bishop and the parish after a deacon raped a 17-year old male parishioner. The court said in part:

the Free Exercise Clause does not bar a negligence claim against Defendants for hiring Ramirez and placing him in a position of trust and authority from which he was able to sexually abuse Plaintiff....

It would be irrational to require a child sexual abuse victim, who seeks to bring a negligence claim against a church, to prove that the church had actual knowledge of the risk posed by its abuser employee. In effect, it would create a disincentive for a church to investigate prospective employees before placing them in positions of trust and authority over children. Instead, churches would be motivated to engage in "ostrich" behavior to avoid confronting – and thus being forced to act upon – potential warning signs about such  employees. Protecting children is a paramount policy consideration ... and it is ill-served if those trusted with such responsibility can blithely ignore red flags about their employees and subsequently avoid liability for the ensuing harm.