Presbyterian Church Property Dispute Remanded To State Court

In Highland Park Presbyterian Church, Inc. v. Grace Presbytery, Inc., (ND TX, Oct 7, 2013), a Texas federal district court remanded to state court a church property ownership suit that had been removed to federal court.  At issue is whether $30 million of real property of the Highland Park Presbyterian Church was held in trust for the Presbyterian Church (USA). Highland Park is in the process of breaking away from PC(USA) because of theological differences. Removal to federal court is permitted only if the complaint states a claim under the U.S. Constitution or federal law. Here the claim is merely that the U.S. Constitution may later be violated as the case moves forward if the state court exercises its authority too broadly. Christian Post reports on the decision and provides more background.

Mennonite Art Gallery Owners Sue State Civil Rights Commission Over Hosting Same-Sex Marriages

A lawsuit was filed this week in an Iowa state trial court by a Mennonite couple who are seeking to prevent the Iowa Civil Rights Commission from moving ahead on a complaint that the couple refused to host a same-sex wedding ceremony in their art gallery in violation of the ban on discrimination in public accommodations.  The complaint (full text) in Odgaard v. Iowa Civil Rights Commission, (IA Dist.Ct., filed 10/7/2013) explains that the art gallery is housed in a former Lutheran Church building.  The primary revenue source for the Odegaard's gallery (a sole proprietorship) is planning, facilitating and hosting wedding ceremonies in the former sanctuary of the church building which still retains its original stained glass windows. The Odegaards allege that their "religious beliefs forbid them from planning, facilitating, or hosting wedding ceremonies that contradict their religious understanding of marriage."  In addition to alleging that requiring them to either host same-sex weddings or stop hosting all weddings violates religious exercise and free speech provisions of the state and U.S. constitutions, plaintiffs also rely on a provision in the state Civil Rights Act providing that the Act "shall not be construed to allow marriage between persons of the same sex...." Becket Fund announced the filing of the lawsuit, and Christian Post reports further on the suit.

Muslim Man Gets Default Judgment In Employment Accommodation Case

The Seattle Times reports that on Sept. 27, a Washington federal district court judge issued a default judgment in an employment discrimination lawsuit against American Patriot Security.  Muslim security guard Abdulkadir Omar, a resident of Sea Tac, Washington, was fired for refusing to shave his close-cropped beard that he wore for religious reasons. The court awarded over $66,000 in back salary, attorney fees and court costs after the company failed to raise a defense to the charges of failure to accommodate plaintiff's religious beliefs.

Turkey Lifts Ban On Wearing of Hijab In Public Institutions

Euronews reported yesterday that Turkey has lifted its 90-year old ban on wearing of Islamic headscarves in the workplace and in universities. The ban on civil servants wearing overt symbols of religious affiliation was originally put in place in 1925 by Mustafa Ataturk who founded Turkey as a secular republic.  In making the change, Prime Minister Recep Tayyip Erdogan said that the ban on headscarves in public institutions violated freedom of religion and conscience. However his critics see this as part of his Islamic agenda. Other changes also adopted give greater freedom to Kurds, lifting the ban on their using letters in their minority languages that are not part of the Turkish alphabet.

British Scouts Adopt Alternative Promise For Nonbelievers Omitting Reference To God

NBC News reported yesterday that in Britain, the British Scouting Association will make available an alternative Scout Promise that omits reference to God or faith.  Beginning next January, it can be used by scouts who do not profess a religious faith. Instead of reading: "On my honor, I promise that I will do my best, to do my duty to God and to the Queen...", the alternative Promise reads: "I promise that I will do my best to uphold our Scout values...." It joins alternative versions that have been available for nearly 50 years for Muslims, Hindus, Buddhists, and non-UK citizens. The British Girl Guides have already totally dropped phrase "to love my God" from their promise recited by everyone.

Pennsylvania Dioceses File New Challenges To Contraceptive Coverage Mandate

According to AP and the Pittsburgh Post Gazette, the Catholic Diocese of Pittsburgh along with its affiliated Catholic Charities have joined the list of religious non-profits that have refiled challenges to the Affordable Care Act contraceptive coverage mandate now that the final regulations are in place. The complaint filed yesterday contends that the accommodation provided for in the final regulations still requires the religious organizations to subsidize contraceptive services, including contraceptives seen as abortifacients. The diocese's earlier challenge was dismissed last November on ripeness and standing grounds. (See prior posting.)

A similar suit was also filed yesterday by the Catholic Diocese of Erie (PA), according to the Erie Times-News. (See prior posting.)

First Amendment Does Not Protect Diocese From Discovery Request

In Herx v.Diocese of Fort Wayne- South Bend, Inc., (ND IN, Oct. 7, 2013), an Indiana federal district court rejected a Catholic diocese's First Amendment defenses to a discovery request. Plaintiff is a former Catholic elementary school teacher whose contract was not renewed after the school learned that she had become pregnant through in vitro fertilization. The school claimed she had violated the "morals clause" in her teaching contract. In discovery, plaintiff sought information on how the morals clause had been applied to other teachers. The court rejected the diocese's argument that this is an improper inquiry into religiously based matters of a religious employer in violation of the Establishment and Free Exercise Clauses. It also rejected the argument that Title VII and the ADA exempt it from these discovery requests.

Justice Scalia Talks About His Religious Views and Much More

The Oct. 6 New York Magazine features a fascinating interview with Justice Antonin Scalia, including this excerpt about his religious beliefs that has received much attention: (interviewer's questions in bold):

Whatever you think of the opinion, Justice ­Kennedy is now the Thurgood Marshall of gay rights. [Nods.]

I don’t know how, by your lights, that’s going to be regarded in 50 years. I don’t know either. And, frankly, I don’t care. Maybe the world is spinning toward a wider acceptance of homosexual rights, and here’s Scalia, standing athwart it. At least standing athwart it as a constitutional entitlement. But I have never been custodian of my legacy. When I’m dead and gone, I’ll either be sublimely happy or terribly unhappy.

You believe in heaven and hell? Oh, of course I do. Don’t you believe in heaven and hell?

No. Oh, my.

Does that mean I’m not going? [Laughing.] Unfortunately not!

Wait, to heaven or hell? It doesn’t mean you’re not going to hell, just because you don’t believe in it. That’s Catholic doctrine! Everyone is going one place or the other.

But you don’t have to be a Catholic to get into heaven? Or believe in it? Of course not!

Oh. So you don’t know where I’m going. Thank God. I don’t know where you’re going. I don’t even know whether Judas Iscariot is in hell. I mean, that’s what the pope meant when he said, “Who am I to judge?” He may have recanted and had severe penance just before he died. Who knows?

The entire interview is worth a read.

Appeals Court Says Guardian For Medical Decisions Should Have Been Appointed For Amish Girl

In In Re: Guardianship of S.H., (OH Ct. App., Oct. 1, 2013), an Ohio appeals court held that the probate court abused its discretion in refusing to appoint a guardian for the purposes of making medical decisions for an Amish girl suffering from leukemia.  The parents, at the girl's request, stopped chemotherapy treatment. The court, however, concluded that treatment would be in the girl's best interest, saying:

While we have no doubt that, the parents are acting in accordance with their principles, beliefs and honest convictions and that their goal may be a laudable one, it does not nullify or supersede the right of the state and the probate court to protect the health and well-being of a child.

The court held that under Ohio law, a finding of parental unsuitability is not necessarily required before appointing a guardian. AP reports on the decision. (See prior related posting.)

Cert. Denials of Interest Today

As is typical of the first day of the Supreme Court's new term, today the court issued a nearly 80-page list of cases in which it has denied certiorari. (Order list.)  Among the cases that the Court has refused to review are:

First Korean Church of New York, Inc. v. Cheltenham Township Zoning Hearing Board (Docket No. 12-1399).  In the case a Pennsylvania federal district court granted summary judgment to defendants in a lawsuit by First Korean Church that had been prevented by township zoning ordinances from using a 33.8 acre property for a church and seminary.(See prior posting.)The Third Circuit affirmed in a 3-paragraph opinion.

Dixon v. University of Toledo (Docket No. 12-1402). In the case the Sixth Circuit Court of Appeals held that the University of Toledo (OH) did not violate the 1st Amendment free speech rights of its Associate Vice President for Human Resources when it terminated her because of an op-ed column she wrote expressing her views about homosexuality. (See prior posting.)

A.M.v. Taconic Hills Central School (Docket No. 12-1479). In the case the Second Circuit Court of Appeals rejected a free speech claim by a middle school student, the co-president of student council, who was not permitted to include a religious blessing at the end of her remarks at the school's Moving-Up Ceremony. (See prior posting.)

UPDATE: The Supreme Court also denied cert. in two other cases of interest:

Big Sky Colony, Inc. v. Montana Department of Labor and Industry, (Docket No. 12-1191).  In the case, the Montana Supreme Court upheld amendments to the state's workers compensation law that bring Hutterite Colonies within the definition of those covered when their members perform agricultural, manufacturing or construction services for in-kind services rather than wages.(See prior posting.) [Thanks to Luke Goodrich for the lead.]

Church of Scietology v. DeCrescenzo, (Docket No. 12-1495).  As described in the cert. petititon (2013 WL 3225967) the trial court, following California precedent, limited the clergy-penitent privilege to communications made to a single minister, and thus refused to find the privilege applicable to communications made in the course of the Scientology practice of "auditing". The state appellate and supreme courts summarily denied review.

Recent Articles of Interest

From SSRN:

• Louis J. Sirico, Benjamin Franklin, Prayer, and the Constitutional Convention: History as Narrative, (Legal Communication & Rhetoric: JALWD, Vol. 10, 2013).
• Jeff Redding, Querying Edith Windsor, Querying Equality, (Villanova Law Review, Vol. 59, 2013).
• Avishalom Westreich & Pinhas Shifman, A Civil Legal Framework for Marriage and Divorce in Israel, (The Metzilah Center for Zionist, Jewish, Liberal and Humanist Thought, Ruth Gavison, ed, May 2013).
• Tamir Moustafa, Judging in God's Name: State Power, Secularism, and the Politics of Islamic Law in Malaysia, (Oxford Journal of Law and Religion, Vol. 2, (2013)).
• Audrey Macklin, Multiculturalism Meets Privatisation: The Case of Faith-Based Arbitration, (International Journal of Law in Context, 9,3 pp. 1-23 (2013)).
• Bernard M. Levinson & Jeffrey Stackert, Between the Covenant Code and Esarhaddon's Succession Treaty: Deuteronomy 13 and the Composition of Deuteronomy, (Journal of Ancient Judaism 3 (2012): 123-140).
• Claudia E. Haupt, Active Symbols, (55 Boston College Law Review (forthcoming 2014)).
• Hamid Harasani, Islamic Law of Wills: An Overview, (October 1, 2012).
• William Baude, Interstate Recognition of Same-Sex Marriage after Windsor, NYU Journal of Law & Liberty, Vol. 8, 2013, Forthcoming. 

From SmartCILP:

• Hanna Lerner, The Political Infeasibility of "Thin" Constitutions: Lessons from 2003-2006 Israeli Constitutional Debates, [Abstract], 22 Journal of Transnational Law &Policy 85-121 (2012-2013).
• Bashar H. Malkawi, Shari'ah Board in the Governance Structure of Islamic Financial Institutions, [Abstract], 61 American Journal of Comparative Law 539-577 (2013).
• Daniel W. Morton-Bentley, Seeing Isn't Believing: Ahlquist v. City of Cranston and the Constitutionality of Religious Displays under the Establishment Clause, [Abstract], 18 Roger Williams University Law Review 172-199 (2013).
• Symposium on Overlapping Jurisdictions: What Role for Conscience and Religion?, Foreword by Michael J. DeBoer; articles by John Witte, Jr., Joel A. Nichols, Robert L. McFarland and Elizabeth Sepper; responses by Paul Horwitz, Jonathan F. Will and Jeffrey B. Hammond. 4 Faulkner Law Review 299-444 (2013).

In Israel, Ovadia Yosef, Spiriutal Leader of Shas Party, Dies

In Israel, Rabbi Ovadia Yosef, spiritual leader of the important Shas Party died today at age 93. Shas is an Orthodox religious political party that particularly represents interests of Sephardic Jews. The New York Times and Jerusalem Post both report at length on reactions to Yosef's death and on his career.

Senate Chaplain Warns Senators In His Invocations

The New York Times in a front page article today reviews the admonitions that Senate Chaplain Barry C, Black has delivered in his invocations in recent days. Foe example, Black, a Seventh Day Adventist and former Navy rear admiral, one day prayed: "Save us from the madness."  Another day he urged in his opening prayer: "May they remember that all that is necessary for unintended catastrophic consequences is for good people to do nothing."

Annual Red Mass Held Yesterday In D.C.-- 5 Justices Attend

Yesterday, the annual Red Mass sponsored by the John Carroll Society was held at the Cathedral of St. Matthew the Apostle in Washington, D.C.  Blog of the Legal Times reports that 5 Supreme Court Justices attended-- Chief Justice Roberts, and Justices Scalia, Thomas, Breyer and Kagan. The Mass, always held on the Sunday before the beginning of the Supreme Court's term, is designed to bless the Supreme Court as well as other judges and government officials. The White House Chief of Staff, the Solicitor General and several other federal court judges also attended.

Nebraska High Court: 16 Year Old Too Immature To Consent To Abortion, Despite Fear of Religious Foster Parents' Reaction

In In re Petition of Anonymous 5, (NE Sup. Ct., Oct. 4, 2013), the Nebraska Supreme Court in a 5-2 decision ruled that a 16 year-old girl living in foster care had not established that she is sufficiently mature and well informed about abortion to have the procedure without the consent of a guardian.  The girl had testified that her foster parents have strong religious beliefs about abortion. She feared that if they learned of her pregnancy, she might lose her foster placement. She also believed that they would at least take it out on her and tell her siblings that she is a bad person. The trial court had held that one of the foster parents needs to give consent, and their religious beliefs did not mean they would not act in the girl's best interest. The Supreme Court majority concluded it could not reach the issue of who should give consent, while the dissenters argued that the girl is in legal limbo because her legal guardian is the state Department of Health and Human Services whose regulations bar either consenting or refusing to consent to an abortion. Raw Story reports on the decision.

Judge Admonished For Publicly Refusing To Perform Same-Sex Marriages

In In re the Honorable Gary R. Tabor, (WA Commn. on Judicial Conduct, Oct. 4, 2013), the Washington state Commission on Judicial Conduct entered a Stipulation, Agreement and Order of Admonishment against a state trial court judge who publicly stated that he would not perform same-sex marriages in his judicial capacity, while continuing to perform opposite-sex marriages.The Agreement provides in part:

Rules 1.1, .1.2 and 3 .1 (C) of the Code [of Judicial Conduct] oblige judges to avoid impropriety and the appearance of impropriety by acting at all times in a manner that promotes public confidence in their independence, integrity and impartiality.

Washington State's law against discrimination, RCW 49.60, sets forth classes of people protected by law against discrimination. Sexual orientation is included in the classes of people protected. Respondent accepts the Commission's determination that, by announcing he would not solemnize same-sex marriages due to his philosophical and religious concerns while continuing to solemnize opposite-sex marriages, he appeared to express a discriminatory intent against a statutorily protected class of people thereby undermining public confidence in his impartiality.

When initially contacted by the Judicial Conduct Commission, Judge Tabor stopped performing all marriages in his judicial capacity. The Olympian reports on the Commission's action.

Group Seeks Records of Contacts Between DOD and Mikey Weinstein

Judicial Watch, a conservative advocacy group, announced last month that it has filed a Freedom of Information Act lawsuit seeking all records of communications between the Department of Defense and Mikey Weinstein, founder of the Military Religious Freedom Foundation.  Weinstein has been active in opposing Christian proselytization in the military. (See prior posting.) Explaining the lawsuit, Judicial Watch President Tom Finton said:

The American people deserve to know the full truth about just how close the relationship is between anti-Christian activist Mikey Weinstein and the Obama Department of Defense. There is increasing intolerance for the First Amendment rights of traditional Christians in today's military.

Wisconsin District's Schools Scuttle Holiday Concerts

According to yesterday's Sheboygan Press, elementary schools in Wausau, Wisconsin will no longer hold holiday concerts, and the elite extra-curricular Master Singers choir group at Wausau West High School will be temporarily disbanded.  The moves came after the school board's attorney developed new guidelines for December concerts.  They call for five secular songs for each religious one if the concert contains holiday music. The district also created a committee of 4 teachers to approve all holiday concert selections.  The committee did not have time to get to the Master Singers proposed selections at its Sept. 26 meeting, leaving the choir insufficient time to prepare.

UPDATE: The Wausau Daily Herald reports that after a strong negative reaction to the board's actions, at an Oct. 10 meeting the board voted to place the decision on whether to hold winter concerts back in the hands of school principals, and revert to the former policy of having principals review song lists for each concert. However the board will update the music policy for next year with public input. [Thanks to Blog From the Capital for the lead.]

Recent Prisoner Free Exercise Cases

In Goode v. Bruno, 2013 U.S. Dist. LEXIS 140404 (D CT, Set. 30, 2013), a Connecticut federal district court allowed a Wiccan prisoner to proceed with most of his claims against the Department of Corrections Religious Services Director for failing to allow him to observe 8 seasonal holidays, participate in various rituals and purchase various religious items.

In Banks v. Beard, 2013 U.S. Dist. LEXIS 140629 (MD PA, Sept. 30, 2013), a Pennsylvania federal district court dismissed a complaint that indigent Muslim inmates were unable to participate in the purchase of optional menu items for the feasts of Eid al-Fitr and Eid al-Adhah, and that Muslim inmates lack access to prayer oils.

In Blue v. Skolnik, 2013 U.S. Dist. LEXIS 140901 (D NV, Sept 30, 2013), a Nevada federal district court adopted a magistrate's recommendations (2013 U.S. Dist LEXIS 140920, Aug. 21, 2013) and permitted a Jewish inmate to move ahead with his complaint alleging extensive delays in furnishing him a kosher diet.

In Uduko v. Cozzens, 2013 U.S. Dist. LEXIS 141178 (ED MI, Oct. 1, 2013), a Michigan federal district court adopted a magistrate's findings (2013 U.S. Dist. LEXIS 140802, July 26, 2013) and permitted an inmate to proceed with his claim that his removal as leader of the prison Protestant faith group was in retaliation for protesting the cancellation of a planned religious retreat and for lodging a complaint against two officers.

In Walker v. Artus, 2013 U.S. Dist. LEXIS 141574 (ND NY,Set. 27, 2013), a federal magistrate judge recommended dismissing a Muslim inmate's suit seeking to require prison authorities to provide a closed circuit TV or audio feed of Jumu'ah services to inmates in Special Housing Unit who are not permitted to attend congregate religious services.

In Kadamovas v. Lockett, 2013 U.S. Dist. LEXIS 141795 (SD IN, Sept. 30, 2013), an Indiana federal district court dismissed a complaint by an Orthodox Christian inmate that his religious common fare diet was nutritionally inadequate, spoiled, or insufficient. The court held plaintiff had failed to show that named defendants were directly involved in any free exercise or RFRA violation.

In LaRock v. Amato, 2013 U.S. Dist. LEXIS 142002 (ND NY, Sept. 30, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 142029, June 4, 2013) and dismissed an inmate's general claim that all involuntary protective custody inmates are precluded from practicing religion.

In Gambino v. Pugh, 2013 U.S. Dist. LEXIS 142138 (ND OH, Oct. 1, 2013), an Ohio federal district court dismissed an inmate's complaint that he was denied kosher meals and Jewish literature. Plaintiff failed a written test as to his sincere belief in the Jewish faith and refused to re-take the test.

In Rumsey v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 140956 (WD MI, Sept. 30, 2013), a Michigan federal district court largely adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 142633, June 24, 2013) and dismissed most of plaintiffs' claims that their right to practice their Native American religion had been infringed through, among other things, dismantling of a sweat lodge. Plaintiffs were allowed to proceed on their complaint that they were ordered to move their religious ceremonies indoors and that they were required to have at least 5 Native American Traditional Way members present in order to conduct group worship.

In Kamau v. Louisiana State Police Department, 2013 U.S. Dist. LEXIS 142861 (WD LA,Sept 30, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 142860, Sept. 9, 2013) and dismissed a Muslim inmate's complaint that he was not permitted to join with others in Juman prayer outside his dormitory room.

In Harris v. Pimentel, 2013 U.S. Dist. LEXIS 143432 (ED CA, Sept. 30, 2013), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's claim that his free exercise rights were infringed when, during a search of his cell, a correctional officer stepped on plaintiff's copy of the Qur'an and slid it under the bunk on the floor.

House Passes Resolution Encouraging No Reduction In Military Religious Services During Shut Down

Military Times reports that the House of Representatives yesterday passed H. Con. Res. 58 urging the Secretary of Defense to not allow the government shut down reduce the offering of religious services on military bases. The vote for the resolution was 400-1.  Military chaplains continue to work during the shut down, but the resolution is aimed at contract personnel who are involved in performing religious services or conducting religious activities.