Spiritual Counselor's Challenge To Fortune Telling Ordinance Dismissed On Ripeness Grounds

In Davis v. City of Selma, (ED CA, July 2, 2013), a California federal district court dismissed on ripeness grounds various challenges to the city of Selma, California's ordinance which requires "Fortune Tellers" to obtain a license in order to provide services within the city.  Plaintiff, a spiritual counselor, initially sought a business license under the Selma Municipal Code ("S.M.C."), but never completed the application process because it was too restrictive.  Instead she sued claiming violations of her rights under the 1st and 14th Amendments and RLUIPA. Dismissing plaintiff's claims, the court said in part:

Plaintiff has not shown intent or a concrete plan to violate the S.M.C., Plaintiff has not been subject to a threat of enforcement, nor has the S.M.C. ever been enforced against anyone that the Court has been made aware of.

Only 5 Days For Lower Court Opinion To Cite SCOTUS Decision On DOMA [Corrected]

It took only 5 days for a lower federal court to become one of the first to cite the U.S. Supreme Court's recent landmark Defense of Marriage Act decision. Relying on language in United States v. Windsor, a federal district court has refused to dismiss a same-sex couple's equal protection challenge to Michigan's ban on adoptions by same-sex couples and its state constitutional ban on same-sex marriage.  In DeBoer v. Snyder, (ED MI, July 1, 2013), a Michigan federal district court said:

Plaintiffs’ equal protection claim has sufficient merit to proceed. The United States Supreme Court’s recent decision in United States v. Windsor ... has provided the requisite precedential fodder for both parties to this litigation. Defendants will no doubt cite to the relevant paragraphs of the majority opinion espousing the state’s “historic and essential authority to define the marital relation.”... 

On the other hand, plaintiffs are prepared to claim Windsor as their own.... And why shouldn’t they? The Supreme Court has just invalidated a federal statute on equal protection grounds because it “place[d] same-sex couples in an unstable position of being in a second-tier marriage.”... Moreover, and of particular importance to this case, the justices expressed concern that ... such discriminatory legislation would ... impair the rights of “tens of thousands of children now being raised by same-sex couples” as well.... This is exactly the type of harm plaintiffs seek to remedy in this case..... [T]his Court cannot say that plaintiffs’ claims for relief are without plausibility.

Yahoo! News reports on the Michigan decision.

CORRECTION: This posting originally indicated that this was the first decision to cite the Supreme Court's Windsor case. As Michael Worley in a comment to this posting indicates, actually the first citation was only 2 days after the SCOTUS decision in a different Michigan federal court opinion on domestic partner benefits.  For details on that case, see this posting.

Canadian Catholic Order Enters $18M Settlement With Abuse Victims

Canadian Press reports that on Wednesday a Quebec Superior Court justice approved an $18 million mediated settlement in a class action against the Congregation of Holy Cross brought by victims of sexual abuse suffered at three now-closed schools in Quebec run by the Catholic order. The abuse dates back as far as the 1950's and continued as late as 2001.  Under the settlement, some 206 victims (and in some cases their parents) will share $13 million. Individuals will receive between $10,000 and $250,000 depending on the type of abuse involved. The remaining $5 million covers attorneys fees and other expenses. The class action was originally filed in 2008.

Russian President Signs Bills Limiting Founders of Religious Organizations; Banning Adoptions By Same-Sex Couples

The media reported this week that Russian President Vladimir Putin has signed two bills into law. The first enacts changes to Article 9 of the law "On Freedom of Conscience and On Religious Associations" to prohibit certain individuals from founding religious organizations.  The ban applies to (1) foreigners or stateless persons who have been declared persona non grata in Russia and (2) individuals who have been involved in activities labeled as extremist by the courts. (Interfax report.)

 A second bill signed by Putin bars same-sex couples from adopting or obtaining custody of children. According to Interfax, the bill is aimed at  preventing the "spiritual suffering and stress, which, according to psychologists, are often experienced by children with same-sex parents."

Wisconsin Supreme Court Upholds Faith Healing Homicide Convictions

In State of Wisconsin v. Neumann, (WI Sup. Ct., July 3, 2013), the Wisconsin Superme Court in a 6-1 decision upheld the second degree reckless homicide convictions of the parents of an 11-year old girl who treated her undiagnosed diabetes with prayer instead of seeking medical treatment. The Court concluded, among other things, that the state statutes gave the parents sufficient notice that their conduct would carry criminal sanctions if their daughter died, despite a statute that protected faith-healing parents from child abuse charges. The court also rejected defendants' complaints regarding jury instructions relating to their sincere religious beliefs. Justice Prosser dissented, saying he was primarily interested in encouraging the bench, bar and legislature to revisit some of the troublesome questions posed by these cases. AP reports on the decision.

4th Circuit En Banc Decides 2 Limited-Service Pregnancy Center Disclaimer Cases

A sharply divided 4th Circuit Court of Appeals sitting en banc yesterday reversed on procedural grounds a district court opinion that invalidated a Baltimore ordinance requiring limited-service pregnancy centers to post disclaimers. The required signs must say that the facility does not provide or make referrals for abortions or certain birth-control services.  In Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, (4th Cir., July 3, 2013), in an opinion joined by 8 of the 12 judges hearing the case, the court said:

We refrain today from evaluating the ultimate merits of the Center’s claims, however, focusing instead on the preliminary errors made by the district court as it rushed to summary judgment. Those errors include the court’s denial to the City of essential discovery, its refusal to view in the City’s favor what evidence there is, and its verboten [sic.] factual findings, many premised on nothing more than its own supposition. In these circumstances, it is fitting to simply vacate and remand for properly conducted proceedings.

Judge Niemeyer wrote a dissent joined by Judges Wilkinson, Shedd, and Agee, saying in part:

Even though the City may have a compelling interest in preventing misrepresentations about abortion, it is not free to impose a requirement of speech on those who do not misrepresent. 

Judge Wilkinson also filed a separate dissent, saying in part:

In a case concerning a law that requires private, noncommercial organizations to convey a government-authored message, one would expect to find at least some acknowledgement of the dangers of state-compelled speech. But one will search the majority’s opinion in vain for any such recognition. Instead, the majority opts to opine on various points of civil procedure, apparently oblivious to the fact that litigation is not an end in itself, but a means of vindicating the substantive values underlying our legal order, among which I had hitherto supposed were the freedoms of conscience and belief.

(See prior related posting.)

A second case decided yesterday involved a Montgomery County, Maryland Resolution requiring limited-service pregnancy centers to post signs saying they do not have a licensed medical professional on staff, and that "the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider."  The 4th Circuit, en banc, in an 11-3 decision, affirmed a district court's preliminary injunction against enforcement of second part of the disclaimer requirement.  In Tepeyac v. Montgomery County, (4th Cir., July 3, 2013), the majority held that the district court applied the proper preliminary injunction standard and did not abuse its discretion.

Judge Wilkinson filed a concurring opinion. Judge Niemeyer filed a dissent that was joined by Judges Shedd and Agee arguing that both parts of the required disclaimer are unconstitutional.

The Washington Post reports on both decisions.

10th Circuit Upholds Constitutionality Of Racial and Religious Violence Ban In Federal Hate Crimes Act

In United States v. Hatch, (10th Cir., July 3, 2013), the 10th Circuit upheld as constitutional under the 13th Amendment the provision of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act that makes it a felony to physically attack a person because of that person’s race, color, religion, or national origin, even where the attack is solely intrastate. In this case, three white men had been charged with kidnapping a disabled Navajo man and branding a swastika into his arm.  The court held:

Congress confined the racial violence provision’s reach to aspects of race as understood in the 1860s when the Thirteenth Amendment was adopted. As to religion and national origin specifically, Congress found that “members of certain religious and national origin groups were . . . perceived to be distinct ‘races’” in the 1860s and therefore sought to protect these categories “at least to the extent such religions or national origins were regarded as races” in the 1860s.... Supreme Court precedent supports this finding.

9th Circuit: U.S. Enforcement of Foreign Award Against Church Is Constitutional

In Ohno v. Yasuma, (9th Cir., July 2, 2013), the 9th Circuit Court of Appeals upheld a California federal district court's enforcement under the Uniform Foreign-Country Money Judgments Recognition Act of a Japanese damage award against a church. The church unsuccessfully claimed that enforcing the award violated the 1st Amendment and was repugnant to public policy. Plaintiff Naoko Ohno was awarded $834,000 in a tort judgment in Japan in a suit in which she alleged that the Saints of Glory Church and its California-based pastor, under whose sway she fell, fraudulently induced her to transfer large sums to the Church at a time that she was depressed and physically ill. The 9th Circuit held that use of U.S. courts to enforce the judgment does not turn the Japanese judgment into state action subject to constraints of the U.S. Constitution, nor is the underlying cause of action repugnant to California public policy.

Delay Of Affordable Care Act Employer Mandate Could Raise Ripeness Issues In Business Challenges To Contraceptive Coverage Mandate

The White House announced yesterday that it is delaying implementation of the Affordable Care Act's employer mandate by one year in order to simplify reporting requirements for businesses.  As reported by the Washington Post, this means that businesses with over 50 employees that do not offer health care insurance meeting federal standards to their employees will not face the $2000 per employee fine until January 2015. The move now raises the question of whether any of the numerous small business lawsuits objecting on religious freedom grounds to complying with the contraceptive coverage mandate might be dismissed on ripeness grounds.  While there is nothing to suggest that the mandate will not ultimately be imposed, it could be tempting to a court to seize on a justiciability rationale instead of wrestling with the difficult free exercise issues posed by the mandate.

UPDATE: The Becket Fund argues that yesterday's policy change has no impact on the contraceptive coverage mandate because it is subject to a separate reporting requirement and excise tax penalty not mentioned in the Treasury Department's statement.

Ugandan Regional King Says Police Violated His Religious Rights In Barring His Visit To Another District

All Africa reported yesterday that in Uganda, Charles Wesley Mumbere who is King of the Rwenzururu region is asking the country's Constitutional Court to interpret Article 37 of the country's Constitution which provides:

Every person has a right as applicable to belong to, enjoy, practise, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others.

Police, afraid of violence between Bamba/Bawisi and the Bakonzo, prevented Mumbere from traveling to the Bundibugyo district where he was scheduled on June 30 to officiate over celebrations to mark the kingdom's peace day - the day the Bakonzo and Bamba broke away from Toro Kingdom. Demonstrations broke out last year when Mumbere visited Bundibugyo and set up shrines there. (Daily Monitor, July 8, 2012).

British Public TV Station Will Broadcast Call To Prayer During Ramadan

Reuters reports that British television's publicly-owned Channel 4 will be the first mainstream national station to broadcast the Muslim call to prayer during the upcoming month of Ramadan.  Beginning July 9, and continuing for the full month of the Ramadan fast, the station will broadcast the call to prayer at 3:00 A.M. A station official said that he particularly wants to give voice to mainstream Muslims after the anti-Muslim backlash that has followed the May killing on a London street of a British Afghanistan War veteran. Channel 4 has a history of controversial programming and expects criticism for this decision.

Gitmo Detainees Seek End To Force-Feeding, Saying It Will Violate Religious Freedom During Ramadan

Four Guantanamo Bay detainees-- all of whom have been cleared for release-- filed a motion on Sunday in their long-pending habeas corpus cases seeking to force the U.S. government to end force-feeding of detainees participating in a hunger strike. (Press Release from Reprieve.) The motion (full text) in Belbacha v. Obama, (D DC, filed 6/30/2013), in addition to broader arguments against force feeding, argues that with the month of Ramadan starting shortly, force-feeding during daylight hours will violate detainees' religious freedom in violation of the Geneva Convention and the Religious Freedom Restoration Act. Reprieve announced Monday that the court has ordered the government to respond to the motion for a preliminary injunction by July 3.

Pro-Life Student Group Sues Over Required Security Fees For Event

A pro-life student group at New York's University of Buffalo filed a federal lawsuit last week challenging the University's policy of requiring student groups sponsoring controversial events to pay for campus police to be  present for security.  The complaint (full text) in UB Students For Life v. Tripathi, (WD NY, filed 6/28/2013), claims that the group's free expression, due process and equal protection rights were infringed when University officials decided that an abortion debate the group was sponsoring might attract hecklers and so required the group to pay nearly $650 to cover the cost of required campus security.  The complaint alleges that

UB policy and practice grants administrators unbridled discretion to deem student organization events “controversial” based on the content or viewpoint of the speech or the actual or potential reactions of listeners.

ADF issued a press release giving additional information about the lawsuit.

Australian MP Faces Online Abuse For Swearing-In As Cabinet Member On Koran

Today's Sydney Morning Herald and the Brisbane Courier Mail report on the abusive reaction on Facebook and Twitter to the swearing in on the Koran of Labor Member of Parliament Ed Husic as Australia's first Muslim frontbencher.  Husic was appointed by Prime Minister Kevin Rudd as Parliamentary Secretary to the Prime Minister and Parliamentary Secretary for Broadband.  While Husic is a non-practicing Muslim, he said it was a straight forward decision to be sworn in on the Koran. Husic is the son of Bosnian Muslim immigrants. A number of members of Parliament decried the social media reaction and praised the multiculturalism symbolized by Husic's appointment.

Yeshiva University Chancellor Retires; Apologizes For Handling of Sex Abuse Reports In 1980's

Yesterday Rabbi Norman Lamm, Chancellor and formerly long-time President of Yeshiva University announced in a letter that he is stepping down from his position as Chancellor and head of the rabbinical school at Yeshiva. As reported by The Forward, 85-year old Lamm's retirement comes amid growing pressure over mishandling of reported sexual abuse at Yeshiva University High School in the 1970' and 1980's, during Lamm's University presidency. As reported last December by The Forward, the accused abusers-- the high school principal and a Talmud teacher-- were not reported to authorities.  The principal eventually took a position elsewhere and the teacher retired. Both of the men, who now live in Israel, deny the allegations against them. In his letter yesterday announcing his retirement, Lamm wrote at some length about his mishandling of the abuse reports:

At the time that inappropriate actions by individuals at Yeshiva were brought to my attention, I acted in a way that I thought was correct, but which now seems ill conceived. I understand better today than I did then that sometimes, when you think you are doing good, your actions do not measure up. You think you are helping, but you are not. You submit to momentary compassion in according individuals the benefit of the doubt by not fully recognizing what is before you, and in the process you lose the Promised Land.... 

True character requires of me the courage to admit that, despite my best intentions then, I now recognize that I was wrong. I am not perfect; none of us is perfect. Each of us has failed, in one way or another, in greater or lesser measure, to live by the highest standards and ideals of our tradition — ethically, morally, halakhically. We must never be so committed to justifying our past that we thereby threaten to destroy our future. It is not an easy task. On the contrary, it is one of the greatest trials of all, for it means sacrificing our very egos, our reputations, even our identities. But we can and must do it. I must do it, and having done so, contribute to the creation of a future that is safer for innocents, and more ethically and halakhically correct.

Milwaukee Archdiocese Releases Files On 42 Abusive Priests

AP reports that the Catholic Archdiocese of Milwaukee (WI) yesterday released thousands of pages of records relating to 42 of the 45 diocesan priests with substantiated allegations against them of sexual abuse of a minor.  The release was part of an agreement reached in the Archdiocese's Chapter 11 bankruptcy reorganization proceedings where abuse victims are suing the Archdiocese.  A Questions & Answers sheet posted by the Archdiocese yesterday summarizes the 6,000 pages of documents. All the documents and related information are available from the Archdiocese's website. They are also available, catalogued a bit differently, on the website of the law firm representing the victims. One of the released documents that has attracted attention is the deposition of Timothy Cardinal Dolan, president of the U.S. Conference of Catholic Bishops. The New York Times reports that one of the other documents released yesterday is a 2007 letter from Dolan, then the archbishop, requesting Vatican permission to move $57 million into a cemetery trust fund to shield the assets from clergy abuse victims.

Missouri Governor Vetoes Bill Protecting Federal Holiday Observance

Apparently in response to what some perceive as an attack on the celebration of Christmas, in May the Missouri General Assembly passed HB 278 (full text) which provides:

No state or local governmental entity, public building, public park, public school, or public setting or place shall ban or otherwise restrict the practice, mention, celebration, or discussion of any federal holiday.

Yesterday Missouri governor Jay Nixon vetoed the bill (Veto Message)(News Release), along with SB 265 (Veto Message) that would have prohibited implementation of restrictions that stem from the sustainable development recommendations in United Nations "Agenda 21." Nixon said:

These issues may drive ratings on cable television, but they should not be the basis of public policy in Missouri. While the problems these bills ostensibly aim to fight are only imaginary, the headaches they could create for local governments would be very real and costly.

He said that HB 278 would hamper the enforcement of fireworks bans around the 4th of July and would allow state and local employees to demand time off for federal holidays, creating possible staff shortages for essential governmental functions. AP reports on the governor's action.

Factional Dispute In Ohio Mosque Can Only Be Decided In Quo Warranto Action By State

In Masjid Omar Ibn El Khattab Mosque v. Salim, (OH App., June 27, 2013), two competing groups each claimed to be the governing board of the Omar Mosque in Columbus, Ohio. The Mosque, at the instigation of the first board, filed suit in a state trial court seeking a temporary restraining order to require the second board to declare that it had no authority to control or direct the affairs of the Mosque. The members of the second board filed a counterclaim seeking a declaratory judgement that they are the legitimate board of the Mosque. The Court of Appeals upheld the determination that the trial court lacks jurisdiction in the case because the suit was asking it to determine an issue that can only be decided in a quo warranto action.  Under Ohio Revised Code, Chap. 2733, a quo warranto action can only be brought by the attorney general or a prosecuting attorney in the state Supreme Court or a Court of Appeals. The appeals court however held that the trial court's dismissal should have been without prejudice and that the trial court should have stayed the action so that it could be determined what to do with the Mosque's funds that were being held by the court during the litigation.

California State Court Judge Says Yoga Program In Schools Does Not Promote Religion

In California today a state trial court rejected a state constitutional challenge to the Encinitas Unified School District's teaching of Ashtanga yoga as part of the district's enrichment program. The district received a $533,000 from the Jois Foundation to fund the program. A suit by the National Center for Law and Policy contended that Ashtanga yoga is inherently religious because it is rooted in Hindu, Buddhist, Taoist, and Western Metaphysical religious beliefs.  The complaint alleged that teaching yoga in the public schools violates California constitutional bans on governmental religious preferences and use of state resources to promote or support religion. (See prior posting.) According to a 10News report on today's decision:

Judge John Meyer determined that a reasonable student would not associate yoga with religion because of the way the district set up its program. Meyer said he believed the district was not teaching any religious components during the classes and that he sees yoga as something similar to traditional PE sports such as kickball or volleyball. Meyers also found that the district's program follows state guidelines.

The National Center for Law and Policy issued a statement today saying that today's decision "is not the end of the road for this case or the last word regarding the fate of yoga in public education—this is only the beginning."

UPDATE: Here is the full text of the court's Minute Order in Sedlock v. Baird, (CA Super. Ct., July 1, 2013), thanks to Volokh Conspiracy.

Russia Sues Library of Congress For Return Of Loaned Books From Collection At Center of U.S. Litigation

As previously reported, in long-running litigation a U.S. federal district court has held the Russian government and three of its agencies in civil contempt for not complying with a 2010 default judgement ordering it to return two expropriated collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States. Now the Russian government has instituted its own lawsuit in a Russian court to force the U.S. Library of Congress to return seven books from one of the two collections that are on loan to it from Russia. Interfax reports today on a statement from Russia's ministry press service:

On July 1 the Ministry of Culture and the Russian State Library filed a motion at the Moscow Arbitration Court to bind the Library of the U.S. Congress to return seven books from the Schneerson library of the collection of the RSL center of Oriental literature received in 1994 for temporary use under the international library exchange system.

 Agudas Chasidei Chabad is also named as a party in the lawsuit.