Scottish Appeals Panel Upholds Catholic Agency's Adoption Criteria

In St. Margaret's Children and Family Care Society v. Office of the Scottish Charity Regulator, (SCAP, Jan. 31, 2014), the Scottish Charity Appeals Panel overturned the decision of the Office of the Scottish Charity Regulator that had directed a Catholic adoption agency to end its adoption placement preference for Catholic couples who have been married for at least two years and its placing on low preference non-Catholics and same-sex couples (since they can only enter civil partnerships). The Appeals Panel held that the agency is a religious organization that can assert its, and its members, right to freedom of religious expression under Art. 9 of the European Convention on Human Rights. Discussing application of the Equality Act, the Appeals Panel said:

The Panel has decided that there is indirect discrimination but that indirect discrimination is allowed in terms of The Equality Act because it is a proportionate means of achieving a legitimate aim. The Panel found both the charities exception and the religious exception as contained in The Equality Act to apply....

BBC News reports on the decision. Law & Religion UK blog discusses the opinion at greater length.

Obama Emphasizes International Religious Freedom At National Prayer Breakfast

This morning, President Obama spoke at the 62nd annual National Prayer Breakfast at the Washington Hilton Hotel. As reported on the White House blog, the First Lady, the Vice President and many legislators, officials and clergy also attended.  In his remarks (full text), the President devoted extensive time to issues of religious freedom around the world, saying in part:

We sometimes see religion twisted in an attempt to justify hatred and persecution against other people just because of who they are, or how they pray or who they love.  Old tensions are stoked, fueling conflicts along religious lines, as we’ve seen in the Central African Republic recently.... 

Our faith teaches us that in the face of suffering, we can’t stand idly by.....[F]reedom of religion matters to our national security.... [T]here are times when we work with governments that don’t always meet our highest standards, but they’re working with us on core interests.... At the same time, we also deeply believe that it’s in our interest, even with our partners, sometimes with our friends, to stand up for universal human rights.  So promoting religious freedom is a key objective of U.S. foreign policy.....  

It is not always comfortable to do, but it is right.  When I meet with Chinese leaders ... I stress that realizing China’s potential rests on upholding universal rights, including for Christians, and Tibetan Buddhists, and Uighur Muslims....

When I meet with the President of Burma...  I’ve said that Burma’s return to the international community depends on respecting basic freedoms, including for Christians and Muslims.  I’ve pledged our support to the people of Nigeria, who deserve to worship in their churches and mosques in peace, free from terror.  I’ve put the weight of my office behind the efforts to protect the people of Sudan and South Sudan, including religious minorities.

As we support Israelis and Palestinians as they engage in direct talks, we’ve made clear that lasting peace will require freedom of worship and access to holy sites for all faiths.... 

More broadly, I’ve made the case that no society can truly succeed unless it guarantees the rights of all its peoples, including religious minorities, whether they’re Ahmadiyya Muslims in Pakistan, or Baha’i in Iran, or Coptic Christians in Egypt.  And in Syria, it means ensuring a place for all people -- Alawites and Sunni, Shia and Christian.

Going forward, we will keep standing for religious freedom around the world.  And that includes, by the way, opposing blasphemy and defamation of religion measures, which are promoted sometimes as an expression of religion, but, in fact, all too often can be used to suppress religious minorities.... We continue to stand for the rights of all people to practice their faiths in peace and in freedom.  And we will continue to stand against the ugly tide of anti-Semitism that rears it's ugly head all too often.  I look forward to nominating our next ambassador-at-large for international religious freedom to help lead these efforts....

And finally, as we build the future we seek, let us never forget those who are persecuted today, among them Americans of faith.  We pray for Kenneth Bae, a Christian missionary who’s been held in North Korea for 15 months, sentenced to 15 years of hard labor.... Kenneth Bae deserves to be free....

We pray for Pastor Saeed Abedini.  He’s been held in Iran for more than 18 months, sentenced to eight years in prison on charges relating to his Christian beliefs.... [W]e call on the Iranian government to release Pastor Abedini so he can return to the loving arms of his wife and children in Idaho.... And as we pray for all prisoners of conscience, whatever their faiths, wherever they’re held....

C-Span has a video of the full 90 minutes of speakers at today's National Prayer Breakfast. Time has a brief summary of highlights.

British Court Issues Summons To Mormon Church Head Alleging Teachings Violate Fraud Act

In Britain last week, a Magistrate's Court issued two nearly identical summonses  (full text 1, 2) to Thomas S. Monson, president of the Church of Jesus Christ of Latter-day Saints, ordering him to appear before the court to answer to charges that seven specified teachings of the Mormon church violated Britain's Fraud Act 2006.  The Telegraph reported yesterday that the summonses stem from a little used procedure in which a private citizen who claims to have evidence that someone has committed a crime can ask a magistrate to summons the alleged violator to respond to charges. Here the private prosecution was filed by Thomas Phillips, a former Mormon who runs MormonThink, a website highly critical of the LDS Church. The summonses allege that Stephen Bloor, a former Mormon bishop, and Christopher Denis Ralph, a former convert, were misled by Mormon teachings to pay an annual tithe to the Church. Volokh Conspiracy discusses the case further.

Church's Challenge To Rezoning Denial Dismissed

In Alger Bible Baptist Church v. Township of Moffatt, (ED MI, Feb. 5, 2014), a Michigan federal district court dismissed a church's constitutional and RLUIPA challenges to a township's refusal to rezone land in a commercial district in which churches are not a permitted use.  The court said:

[Plaintiff] simply alleges that the Zoning Ordinance prevents it from practicing its religion in the precise location where it wants to. But, worthy of emphasis here, a church has no “constitutional right to build its house of worship where it pleases.”

The court's dismissal of plaintiff's equal protection and RLUIPA equal terms claims were without prejudice.  Plaintiff's 1st Amendment and other RLUIPA claims were dismissed with prejudice.

U.N. Committee Report Critical of Vatican on Protection of Children

On January 31, the United Nations Committee on the Rights of the Child finished its 65th Session after adopting its concluding observations and recommendations on six nations, including the Holy See. (Press release.) As reported yesterday by CNN, the Committee's Concluding Observations on the Second Periodic Report of the Holy See (full text) harshly criticized the Vatican's handling of child sexual abuse within the Church. The 16-page report says in part:

The Committee is particularly concerned that in dealing with allegations of child sexual abuse, the Holy See has consistently placed the preservation of the reputation of the Church and the protection of the perpetrators above children’s best interests, as observed by several national commissions of inquiry....

The Committee is concerned about the situation of children born of Catholic priests, who, in many cases, are not aware of the identity of their fathers. The Committee is also concerned that the mothers may obtain a plan for regular payment from the Church until the child is financially independent only if they sign a confidentiality agreement not to disclose any information....

The Committee is particularly concerned that: ... Due to a code of silence imposed on all members of the clergy under penalty of excommunication, cases of child sexual abuse have hardly ever been reported to the law enforcement authorities....; Reporting to national law enforcement authorities has never been made compulsory..... Church authorities, including at the highest levels of the Holy See have shown reluctance and in some instances, refused to cooperate with judicial authorities and national commissions of inquiry.... Limited efforts have been made to empower children enrolled in Catholic schools and institutions to protect themselves from sexual abuse.

(See prior related posting.)  A Vatican Radio interview with Archbishop Silvano Tomasi, Permanent Observer of the Holy See to the United Nations in Geneva, and a statement from the Vatican react to the report. Both of these reactions include expressions of concern apparently directed to the U.N. report's call for the Vatican to review its position on abortion and identify circumstances under which it can be permitted.

Lawsuit By MLK's Estate Seeks His Famous Bible and Nobel Medal From King's Daughter

The Atlanta Journal Constitution reports that a lawsuit was filed in state court in Georgia last Friday by the estate of Martin Luther King, Jr. (controlled by two of King's children, Martin III and Dexter) against King's daughter Bernice seeking to force Bernice to turn over to the King estate Dr. King's "traveling" Bible and his Nobel Prize medal. The Bible is the one President Barack Obama used for his ceremonial swearing-in on MLK Day in 2013. King's heirs agreed in 1995 to sign over rights to various items they inherited to the King estate.  In a statement, Bernice King says she is refusing to turn the items over because her brothers want to sell them to a private buyer. She explained:

As a minister of the Gospel, the thought of selling my daddy’s Bible troubles my mind, vexes my spirit and weighs on my soul.  The thought of profiting from the sale of the Peace Prize Medal, which my father accepted 50 years ago this year on behalf of the greatest demonstration of peace this nation has ever seen, is spiritually violent, unconscionable, historically negligent, and outright morally reprehensible.

The three siblings have been involved in various lawsuits against one another since 2008.

Tennessee Magistrate Who Objected To Parents' Naming Child "Messiah" Is Fired

Reuters reported yesterday that Tennessee Child Support Magistrate Lu Ann Ballew who gained widespread attention after she insisted that parents change their child's first name from "Messiah" to "Martin" has been fired from her position, effective last Friday, by the presiding judge of Tennessee's 4th judicial district. Ballew told the child's parents-- who had a dispute only over the child's last name-- that: "the word Messiah is a title and it's a title that has only been earned by one person and that one person is Jesus Christ." Her decision was reversed by a chancery court judge.  Ballew has been charged with ethics violations for her action by the Tennessee Board of Judicial Conduct. (See prior posting.)

Israel's High Court Bars Subsidies For Some Yeshiva Students Who Have Received Draft Deferrals

In Israel yesterday, the High Court of Justice issued an interim injunction in the sensitive dispute over drafting of ultra-Orthodox Jews into the Israeli military. The Jerusalem Post reports that the Court order prohibits the government from transferring funds for stipends to some 3000 yeshiva students. In 2012, Israel's High Court of Justice held that the "Tal Law" that provided exemptions for ultra-Orthodox students and a framework for subsidizing their religious studies conflicted with Israel's Basic Law, and therefore the Knesset could not extend the law in its then existing form after its July 2012 expiration. (See prior posting.) The Knesset has so far been unable to agree on a new law. However, the government has continued paying stipends, and the Justice Minister issued mass deferrals to Orthodox students who received enlistment orders after the Tal Law expired.  In yesterday's action, the High Court ruled that no future stipends may be paid to yeshiva students in the 1994, 1995, and first half of 1996 cohorts who have received enlistment orders but have been deferred.

Indian Court Reduces Waiting Period Requirement For Christian Divorces

Times of India reports that on Monday the Karntaka High Court ruled that the provision in Section 10A of India's Divorce Act 1869, the law that applies to Christian divorces, which requires a 2-year separation period before a petition can be filed for dissolution of marriage by mutual consent is invalid. The Hindu Marriage Act, the Parsi Marriage and Divorce Act and the Special Marriage Act all require only a one-year waiting period.  In a public interest lawsuit, the Karntaka court relied on an earlier decision by the Kerala High Court which held that Christian divorces should also be subject to only a one-year waiting period. According to Indian Supreme Court precedent, the prior ruling of another High Court becomes the law of the land unless it is challenged in the Supreme Court. In that earlier ruling, the Kerala High Court said:

[T]he stipulation of a higher period of two years of mandatory minimum separate residence for those to whom the Divorce Act applies, in contra-distinction to those similarly placed to whom Sec 13B of the Hindu Marriage Act, Sec 32B of the Parsi Marriage and Divorce Act and Sec 28 of the Special Marriage Act would apply, offends the mandate of equality and right to life under Arts14 and 21 of the Constitution

Orlando Moves Ahead To Take Church Property By Eminent Domain For Soccer Stadium

At its January 27 meeting (Council Minutes), Orlando, Florida City Council approved the use of eminent domain to acquire the property of Faith Deliverance Temple by eminent domain if negotiations with the church are not successful. As reported by the Orlando Sentinel (Jan. 31), the church is the last parcel needed by the city for construction of an $84 million Major League Soccer Stadium. Orlando has been awarded a major league expansion team for 2015. (Background.) In a decision last Friday, a Florida trial court judge ruled that two other parcels needed for the stadium can be taken by eminent domain, finding that the stadium is a legitimate public purpose. In negotiations, the city has offered Faith Deliverance Temple $1.5 million for its property, over  two times its appraised value. The family that owns the church building says it wants $35 million.

9th Circuit Stays Order Pending Cert. Petition In Case Upholding California's "Change Therapy for Minors" Ban

As previously reported, last week the U.S. 9th Circuit Court of Appeals denied en banc review of a 3-judge panel's decision that upheld California Senate Bill 1172. The bill bans state-licensed mental health providers from engaging in sexual orientation change efforts with patients under 18.  Now in Pickup v. Brown, (9th Cir., Feb. 3, 2014), the 9th Circuit has agreed to stay its mandate in the case while appellants file a petition for certiorari with the U.S. Supreme Court. Liberty Counsel issued a press release announcing the stay.

Mirror of Justice Celebrates 10 Years

Happy 10th Birthday to Mirror of Justice, one of the most thoughtful blogs on law and religion.  In his birthday posting, Rick Garnett describes the vision of the creative group of Catholic law professors who explore Catholic legal theory at MOJ. Others at MOJ have followed up with reflections on the blog's past and future-- a future that we all know will be a bright one.  You can always find a link to MOJ in the Religion Clause sidebar.

Church Permitted To Intervene In Suit Against Internal Revenue Service Over Political Activity By 501(c)(3)'s

In Freedom From Religion Foundation, Inc. v. Koskinen, (WD WI, Feb. 3, 2014), a Wisconsin federal district court permitted  Father Patrick Malone and the Holy Cross Anglican Church  to intervene as defendants in a lawsuit in which the Freedom From Religion Foundation is suing the Internal Revenue Service to challenge its alleged policy of not  enforcing against churches and religious organizations the Section 501(c)(3) ban on political activity by non-profits. According to the court:

Father Malone, the vicar of the church, regularly makes statements during worship services and church gatherings in which he urges members of the congregation to vote for or against certain candidates for public office..... So far, however, the IRS has not taken any action in response to the church’s activities..... But the church and Father Malone are concerned that if the Foundation obtains the relief it seeks in this lawsuit, then the IRS will be required to “punish” them for having engaged in political activity.

Ontario Court Orders Children From Jewish Sect Back To Quebec For Foster Care

In the Canadian province of Ontario yesterday, a trial court judge ordered that 13 children of the Jewish ultra-Orthodox Lev Tahor sect be returned to child protection authorities in Quebec where a court has already ordered the children be placed in foster care. (See prior posting.) When court proceedings were begun in Quebec, about 200 Lev Tahor members fled to Ontario in the middle of the night. As reported by Canadian Press, Chatham, Ontario judge Stephen Fuerth wrote in part:

It would be impractical at best and potentially harmful at worst if the society were now required, in the context of the need to protect the children, to conduct a separate and new investigation into all of the issues currently before the Court of Quebec...simply because the parents have decided as a tactical manoeuvre to absent themselves from Quebec in order to frustrate the process of justice that had started.

The court stayed its order for 30 days to give the families a chance to appeal, with provision for child protection workers to keep checking on the children. An appeal of the Quebec court order-- entered after the community fled-- is already being appealed.

Indiana Supreme Court Hears Arguments In Home Schooling Organization's Challenge To Retaliation Finding

Yesterday, the Indiana Supreme Court heard oral arguments (video of full arguments) in a case being closely followed by home school proponents-- Fishers Adolescent Catholic Enrichment Society, Inc. v. Bridgewater. In the case, a state appeals court held that the Indiana Civil Rights Commission has jurisdiction over a retaliation claim brought after the religious-based organization (FACES) expelled a family from membership when they complained that FACES refused to make health-related dietary accommodations for their daughter at a masquerade ball it sponsored. (See prior posting.) As reported by the Indianapolis Star, FACES argues that the action by the Civil Rights Commission infringes its religious freedom and its right to determine who will be a member. The student's family argues that the case is about disability discrimination.

Japanese Court Awards Unificationist Damages Against Relatives, Deprogrammer Who Held Him Captive

In Japan, 50-year old Toru Goto, a member of the Unification Church, has won a lawsuit against a religious deprogrammer and against his own brother, sister and sister-in-law who held him captive from September 1995 to February 2008 in an effort to get him to give up his religious beliefs. According to a press release from the Family Federation for World Peace and Unification, the Tokyo District Court in a Jan. 28 decision awarded Goto damages equivalent to $47,000(US). Unificationists hope this is a step toward ending deprogramming in Japan.

Recent Articles of Interest

From SSRN- U.S. Law and Legal Theory

• Robert T. Miller, Dogmatic Philosophy: A Review of 'Religion Without God', (240 First Things 59 (February 2014)).
• Christopher C. Lund, Rethinking the 'Religious Question' Doctrine, (Pepperdine Law Review (symposium) (2014 Forthcoming)).
• Kristine Kalanges, Religious Liberty: Between Strategy and Telos, (11 Review of Faith in International Affairs 28-31 (Winter 2013)).
• Caspar Behme, 'Ein furchtbares Verbrechen ward begangen' – Schuld und Sühne in der Tannhäuser-Legende ('A Fearful Crime Has Been Committed' – Guilt and Expiation in the Tannhäuser Legend), (December 17, 2013).
• Brian McCall, Can a Pluralistic Commonwealth Endure? The Political Problem of Religious Pluralism and Why Philosophers Can't Solve It by Thaddeus J. Kozinski, (Georgetown Journal of Law & Public Policy, Vol. 11, 2013).
• Caroline Mala Corbin, Corporate Religious Liberty, (January 24, 2014).
• Malcolm J. Harkins, The Uneasy Relationship of Hobby Lobby, Conestoga Wood, the Affordable Care Act and the Corporate Person: How a Historical Myth Woven Out of Whole Cloth Has Bedeviled the Legal System for Almost 150 Years, (St. Louis University Journal of Health Law & Policy (2014)).

From SSRN- Non-US Law:

• Gerry van Klinken, Religion, Politics and Class Divisions in Indonesia, (In "Dealing with Diversity," Bernard Adeney-Risakotta (ed.), Geneva: Globethics (2014)).
• Hamid Harasani, The English Rule Against Perpetuities and the Mandated Perpetuity of Islamic Waqfs: Three Colonial Cases, (8 The Journal of Comparative Law 172-191 (2013)).
• Clark B. Lombardi, Constitutional Provisions Making Sharia 'A' or 'The' Chief Source of Legislation: Where Did They Come from? What Do They Mean? Do They Matter?, (American University International Law Review, Vol. 28, No. 3, pp. 733-74, 2013).
• Kristine Kalanges, Talking Points on Report of the Special Rapporteur on Freedom of Religion or Belief (2013). Heiner Bielefeldt, A/HRC/22/51, Human Rights Council, UN, Geneva, (Prepared for the Caritas in Veritate Foundation, May 2013).
• Roberto Perrone, Public Morals and the ECHR, (University of Leicester School of Law Research Paper No. 14-02 (Jan. 2014)).
• Amna M. Qureshi, The Use of Demeanour Evidence in Credibility Assessments at Trial - A Critical Examination, (January 1, 2014).

From SmartCILP and elsewhere:

• Rafat Y. Alwazna, Testing the Precision of Legal Translation: The Case of Translating Islamic Legal Terms Into English, [Abstract], 26 International Journal for the Semiotics of Law 897-907 (2013).
• Benjamin P. Edwards, When Fear Rules in Law's Place: Pseudonymous Litigation As a Response To Systematic Intimidation, 20 Virginia Journal of Social Policy & Law 437-472 (2013).
• William M. Janssen, Led Blindly: One Circuit's Struggle to Faithfully Apply the U.S. Supreme Court's Religious Symbols Constitutional Analysis, [Abstract], 116 West Virginia Law Review 33-107 (2013).
• Irit Rosenblum, Being Fruitful and Multiplying: Legal, Philosophical, Religious, and Medical Perspectives on Assisted Reproductive Technologies in Israel and Internationally, [Abstract], 36 Suffolk Transnational Law Review 627-648 (2013).
• Journal of Law and Religion, Vol. 29, Issue 1 (Feb. 2014) has recently appeared.

Hawaii Supreme Court Says Permit Requirement To Enter Reserve Did Not Infringe Free Exercise Rights

In State v. Armitage, (HI Sup. Ct., Jan. 28, 2014), the Hawaii Supreme Court held that the rights of Native Hawaiians are not infringed by a statute limiting entry into the Kaho'olawe Island Reserve only to those who obtain authorization to do so through a written application process.  Defendants claim they were traveling to the island to proclaim the right of the "Reinstated Kingdom of Hawaii" to the island. The court rejected defendants' arguments that their entry was protected by the Art. XII, Sec. 7 of the Hawaii Constitution which protects the right to engage in traditional and customary Native Hawaiian subsistence, cultural and religious practices. It also rejected their contention that the Native Hawaiian people have a fundamental right to reestablish an autonomous sovereign government. Finally the court rejected defendants' claims that their free expression and free exercise rights were infringed. The court held that the written application process required to obtain entry did not impose a substantial burden on defendants' religious exercise.

Chief Justice Recktenwald wrote a separate opinion in which Justice Nakayama joined concurring with these views, but dissenting as to an unrelated issue.

In Israel, Haifa Chief Rabbi To Be Indicted Over Payoffs In Kashrut Supervision

In Israel, prosecutors last week informed the Chief Sephardic Rabbi of the city of Haifa, Shlomo Chelouche, that he is likely to be indicted for improper conduct in his supervision of kosher food purveyors. According to Thursday's Arutz Sheva, in two instances Chelouche solicited donations to a charitable organization he heads from companies to which he was granting kashrut certificates.  In the case of one of those companies he also arranged a job for a family member. He is also accused of removing the kashrut certificate of a third company, a catering hall, to pressure it to rehire his personal secretary as their kashrut inspector after the individual had been fired. Israel's Justice Minister Tzippy Livni said that because of the charges she would move to suspend Rabbi Chelouche from his positions as Chief Rabbi and religious court judge.

Court Upholds Hawaii Law Permitting Same-Sex Marriage

A news release from Hawaii's Department of Attorney General reports that on Jan. 29 a state trial court judge upheld the constitutionality under both the state and federal constitutions of Hawaii's Marriage Equality Act of 2013:

In his ruling from the bench, Judge Sakamoto noted the importance of marriage under the federal constitution, drawing an analogy to Loving v. Virginia, the landmark United States Supreme Court case that struck down state laws banning inter-racial marriage. He concluded that the Marriage Equality Act is consistent with Article I, section 23 of the Hawaii State Constitution, and that “same-sex marriage is legal.”

Article I, Sec. 23 of Hawaii's constitution provides: "The legislature shall have the power to reserve marriage to opposite-sex couples."