Oregon Will Not Defend Its Same-Sex Marriage Ban In Pending Litigation

In its answer filed yesterday in Geiger v. Kitzhaber, a suit challenging Oregon's same-sex marriage ban, Oregon officials notified the federal district court:

State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review. In the meantime, as the State Defendants are legally obligated to enforce the Oregon Constitution’s ban on same-sex marriage, they will continue to do so unless and until this Court grants the relief sought by the plaintiffs.

The lawsuit was filed last October. (See prior posting.) SCOTUSblog reports on Oregon's decision not to defend its ban.

UAE Fatwa Committee Says Mars Settlement Proposal Violates Islamic Law

Last year, a Dutch company, Mars One, announced plans to establish a permanent human colony on Mars.  Plans are for the first volunteers to fly there in 2023, with others following every two years.  No technology currently exists to bring the colonizers back to earth.  This week the Khaleej Times reports that a fatwa committee under the General Authority of Islamic Affairs and Endowment in the United Arab Emirates has ruled that promoting or participating in the one-way trips violates Islamic law:

 “Such a one-way journey poses a real risk to life, and that can never be justified in Islam,” the committee said.  “There is a possibility that an individual who travels to planet Mars may not be able to remain alive there, and is more vulnerable to death.”

Whoever opts for this “hazardous trip”, the committee said, is likely to perish for no “righteous reason”, and thus will be liable to a “punishment similar to that of suicide in the Hereafter”.

Some 500 Saudis and other Arabs are among those who have already applied to take part in the mission.

Court Dismisses Challenge To NYPD's Surveillance of Muslims

In Hassan v. City of New York, (D NJ, Feb. 20, 2014), a New Jersey federal district court dismissed a constitutional challenge to the New York City Police Department's surveillance of the Muslim community in New Jersey following 9/11. Plaintiffs claimed that the surveillance was motivated solely by animus against Muslims. The court concluded first that plaintiffs lack standing because they did not allege a sufficient injury from the surveillance. The alleged injury to reputations and to the religious functioning of various organizations was caused by the AP's unauthorized release of documents about the program, not by the NYPD's surveillance.  The court also concluded that plaintiffs failed to show intentional discrimination:

Plaintiffs in this case have not alleged facts from which it can be plausibly inferred that they were targeted solely because of their religion. The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies. The most obvious reason for so concluding is that surveillance of the Muslim community began just after the attacks of September 11, 2001.

The Center for Constitutional Rights issued a press release reacting to the decision. AP reports on the decision.

Los Angeles Archdiocese Settles Remaining Clergy Abuse Cases For $13 Million

As reported by KPCC News, earlier this week the Catholic Archdiocese of Los Angeles agreed to settle the 17 clergy abuse lawsuits remaining against it for a total of $13 million. Eleven of the suits involve charges relating to Mexican priest Nicolas Aguilar Rivera who molested at least 26 boys in his 10 months in Los Angeles and then fled before the Archdiocese notified police about complaints against him. Cardinal Roger Mahoney who headed the Archdiocese at the time of the molestations and is now retired was sanctioned last year by his successor after released files showed he was involved in shielding accused priests from law enforcement authorities. (See prior posting.) The KPPC article includes a link to Augilar Rivera's full personnel file.

North Korea Detains Christian Missionary For Distributing Gospel Tracts

London's The Telegraph reported yesterday that North Korea has detained a 75-year old Christian missionary for distributing Korean language gospel tracts that he had written. He could face up to 15 years in prison for his actions. The missionary, John Short, is an Australian who lives with his family in Hong Kong and is a member of The Gospel Hall brethren. This was his second trip to North Korea. Short's wife told the press: "We're faith missionaries and he believed that we should care and not just talk but do something… Ultimately, we're in God's hands and that's how we look at it."

India's Supreme Court Says Country's Adoption Law Applies To Muslims

In Hashmi v. Union of India, (Sup. Ct. India, Feb. 19, 2014), a 3-judge panel of the Supreme Court of India held that the Juvenile Justice (Care And Protection of Children) Act, 2000 (background), allows a parent of any religion to adopt an eligible child. The Court described the Juvenile Justice Act as a "small step" toward a uniform Civil Code envisioned by Art. 44 of the Indian Constitution. The Court rejected the argument of the All India Muslim Personal Law Board that Child Welfare Committees should follow the principles of Islamic law before declaring a Muslim child available for adoption. Islamic law recognizes the Kafala system under which a child in need remains a descendant of its biological parents even though it is placed under the care of others. Because of these differing views on adoption, however, the court refused to declare adoption a fundamental right under Art. 21 of the Indian Constitution. Calcutta's The Telegraph reports on the decision.

Faith Healing Parents Get 3 1/2 to 7 Years In Death of Child

In Philadelphia yesterday, Herbert and Catherine Schaible were sentenced to three and one-half to seven years in prison in the faith-healing death from pneumonia of their 8-month old son last year. The couple pleaded no-contest to third degree murder charges in the case. At the time of the death, the couple were already on 10-years probation for the similar death of another of their children for whom they failed to seek medical treatment. (See prior posting.) The couple belong to the First Century Gospel Church which teaches that illness is to be healed through prayer. AP reports that the prosecution had asked for sentences of 8 to 16 years:

“It was so foreseeable to me that this was going to happen,” said Assistant District Attorney Joanne Pescatore, who prosecuted both cases. “Everybody in the system failed these children.”

After the first death, she and public defender Mythri Jayaraman agreed that the couple’s beliefs were so ingrained that their children remained at risk. They asked the earlier judge to have the family supervised by a Department of Human Services caseworker. Instead, the judge assigned them to probation officers, who are not trained to monitor children’s welfare.

In sentencing the couple, Judge Benjamin Lerner told them: "You’ve killed two of your children. ... Not God. Not your church. Not religious devotion. You."

Group Homes Ordered Closed After Charges That Disabled Residents Were Punished For Refusing To Attend Religious Services

The Los Angeles Times reports that last Friday a California trial court judge appointed a receiver to begin relocating dozens of physically and mentally disabled residents from two unlicensed religiously-operated group homes. Husband and wife, Kang Won Lee and Jung Hwan Lee, operate the two Los Angeles facilities, Agape Mission House and Agape Home Church. Los Angeles authorities say living conditions in the homes were deplorable.  They also say that residents were forced to attend religious services twice a day, regardless of their religious beliefs.  If they refused, they were punished by being required to stand by a tree for up to 4 hours, translate Bible verses for a full day and sleep outside at night.

MLK Bible and Medal ordered Under Court Control While Litigation Is Pending

A Georgia state trial court has issued a preliminary ruling in the lawsuit between the children of Dr. Martin Luther King, Jr. over control of his Nobel Peace Prize and his famous "traveling" Bible.  Bernice King is seeking to prevent her two brothers (who control the King estate) from selling the two items over her dissenting vote.  The estate has sued to force Bernice (who currently controls the items) to turn them over. (See prior posting.) According to Reuters, yesterday the judge, saying there is a likelihood the estate will win its lawsuit, ordered the items moved to a single bank safe-deposit box with the judge controlling the keys to it.

Marijuana DUI Law Does Not Injure Religious User of Cannabis

In Baker v. State of Colorado, (D CO, Feb. 18, 2014), a Colorado federal district court adopted a magistrate's recommendation (Feb. 7, 2014) and dismissed for lack of standing a free exercise challenge to Colorado's marijuana DUI statute. The magistrate's conclusion, adopted by the district court, was:

Plaintiff alleges that Colorado's marijuana DUI statute violates his First Amendment right to free exercise of religion because it infringes on his right to (1) personally use cannabis for medical and sacramental purposes and (2) run a church that uses cannabis in its religious practices.... Plaintiff does not allege facts indicating that his religion specifically necessitates marijuana use resulting in five ngs or more of Delta 9-THC in his bloodstream while driving a car. Therefore, Plaintiff fails to allege facts showing that Colorado's marijuana DUI statute has unconstitutionally burdened his religious practices.... Accordingly, he fails to allege an injury in fact in connection with his First Amendment claim.

Court Says Parents Who Lost Custody of Child Have Only Limited Control Over Child's Religious Exposure

In In re T.K, (OH Ct.. App., Feb. 19, 2014), an Ohio appeals court held that when legal custody of a child is given to the child's grandparents, there are limits on the extent to which the child's mother can dictate the boy's religious upbringing.  The boy was originally placed with the grandparents when he tested positive for marijuana at birth, and custody was made permanent 9 months later with the parents' consent.  However the boy's mother objected to the grandparents raising her son in their Catholic faith. An Ohio statute (RC 2151.353(A)(3)(c)) provides that when legal custody is transferred, parents retain the residual "privilege to determine the child's religious affiliation."

The court of appeals upheld the trial court's implementation of the mother's preference by an order providing that  "the grandparents not engage the child in church activities or rituals designed for ... membership, including those required for membership into the Catholic Church."  The mother had wanted a broader order prohibiting the grandparents from in any way, teaching, indoctrinating, or actively exposing the child to any religion, Catholic or otherwise. The court however focused on the statute's use of the term "affiliation" and agreed with the trial court that exposure to religion is not tantamount to affiliation.

Upcoming Conferences and Survey

Here are several items that may be of particular interest to law school faculty members, lawyers and policy makers:

The 5th annual Religious Legal Theory conference is being held this year at Emory University Law School on Feb. 24-25, hosted by its Center for the Study of Law and Religion. This year's theme is "A Global Conversation: Exploring Interfaith and International Models for the Interaction of Religion and State." More details are available at the Center's website.

On April 3-5, Harvard Law School is hosting a conference titled "Religious Accommodation in the Age of Civil Rights." The conference is co-sponsored by Harvard Law School, Williams Institute, ACLU, and USC Center for Law, History and Culture. More details are available online at Harvard Law School's website.

Prof. Faisal Kutty, with the endorsement of the AALS Section on Islamic Law, is conducting a survey on Teaching of Islamic Law In North American Law Schools. The online survey is available from this link.

Church of England Issues Pastoral Guidance on Same-Sex Marriage

In Britain last week, the House of Bishops of the Church of England issued Pastoral Guidance on Same Sex Marriage (full text) in response to Parliament's enactment of the Marriage (Same Sex Couples) Act 2013. (See prior posting.) The Bishop's statement says in part [emphasis in original]:

12.  When the Act comes into force in March it will continue not to be legally possible for two persons of the same sex to marry according to the rites of the Church of England. In addition the Act makes clear that any rights and duties which currently exist in relation to being married in church of England churches do not extend to same sex couples....

18.  We recognise the many reasons why couples wish their relationships to have a formal status. These include the joys of exclusive commitment and also extend to the importance of legal recognition of the relationship. To that end, civil partnership continues to be available for same sex couples. Those same sex couples who choose to marry should be welcomed into the life of the worshipping community and not be subjected to questioning about their lifestyle. Neither they nor any children they care for should be denied access to the sacraments....

20.   The 2005 pastoral statement said that it would not be right to produce an authorized public liturgy in connection with the registering of civil partnerships and that clergy should not provide services of blessing for those who registered civil partnerships. The House did not wish, however,  to interfere with the clergy's pastoral discretion about when more informal kind of prayer, at the request of the couple, might be appropriate in the light of the circumstances....

21.  The same approach ,,, should therefore apply to couples who enter same-sex marriage, on the assumption that any prayer will be accompanied by pastoral discussion of the church's teaching and their reasons for departing from it. Services of blessing should not be provided. Clergy should respond pastorally and sensitively in other ways....

27.  The House is not, therefore, willing for those who are in a same sex marriage to be ordained to any of the three orders of ministry. In addition it considers that it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church's teaching in their lives.

Law & Religion UK blog has more on the Bishop's statement.

7th Circuit Oral Arguments In Challenge To Cross Display On Riverfront

Yesterday, the U.S. 7th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Cabral v. City of Evansville. In the case, an Indiana federal district court enjoined the city of Evansville from permitting Westside Christian Church and other religious organizations from erecting a planned display of  31 six-foot tall crosses on the city's 4-block Riverfront area. (See prior posting.) AP reports on yesterday's oral arguments.

Investigative Report Looks At Chabad Collections In Russia That Have Been Subject of Extensive US Litigation

The Forward today has a long and interesting report from Russia on the two expropriated collections of valuable Jewish religious books and manuscripts (the Schneerson Library and the Archive) that have been the subject of extensive litigation in the United States. The American Chabad organization, Agudas Chasidei Chabad, has obtained U.S. judgments ordering the collections returned to it in the United States. (See prior posting.) One of the collections, the Schneersohn Library, which was nationalized by the Bolsheviks after the 1917 Russian Revolution and has been in the Russian State Library in Moscow, is now being digitized and moved to Moscow's new Jewish Museum and Tolerance Center, a $50 million institution controlled by the Russian branch of Chabad. This implements a proposed compromise that Russian President Vladimir Putin previously suggested. Forward's investigative reporter visited the room at the Jewish Museum and Tolerance Center which is housing the collection as it is moved there, and reports on the ease of access to it. Boruch Gorin who heads the Jewish Museum favors this arrangement and sees the possibility that if it were accepted, eventually the other collection, the Archive, which consists of documents plundered by the Nazis and taken back by the Red Army in World War II, could be sent to the United States. He says that the uncompromising strategy of Chasidei Chabad threatens that possibility.

UN Commission Finds Severe Human Rights Abuses, Including Religious Persecution, In North Korea

The United Nations Office of the High Commissioner for Human Rights announced yesterday the release of the report of a commission of inquiry on human rights abuses in North Korea. The 36-page report of the commission dated Feb. 7 (full text) says:

24. The commission finds that systematic, widespread and gross human rights violations have been and are being committed by the Democratic People’s Republic of Korea.  In many instances, the violations found entailed crimes against humanity based on State policies....

The report includes findings on religious persecution by North Korea:

31. The State considers the spread of Christianity a particularly serious threat, since it challenges ideologically the official personality cult and provides a platform for social and political organization and interaction outside the realm of the State. Apart from the few organized State-controlled churches, Christians are prohibited from practising their religion and are persecuted. People caught practising Christianity are subject to severe punishments in violation of the right to freedom of religion and the prohibition of religious discrimination.

The 36-page report is documented by 354 pages of detailed findings (full text). More background and reactions are reported by CBS News.

Challenges To North Carolina School Vouchers Clear First Hurdle

Yesterday, a North Carolina state trial court refused to dismiss on the pleadings two related lawsuits challenging the state's Opportunity Scholarship Program.  The program will provide school vouchers for use at private schools to some 2400 income eligible families. It was enacted as part of last year's state budget bill.  NC Policy Watch reports on yesterday's ruling from the bench that came after a hearing that lasted more than two hours. The lawsuits, Hart v. North Carolina, (NC Super. Ct., filed 1/13/2014) (full text of complaint) and Richardson v. North Carolina, (NC Super. Ct., filed 1/15/2014) (full text of complaint), claim that the law violates several state constitutional provisions on education, taxation and discrimination. The court scheduled a hearing for Friday on plaintiffs' request to delay implementation of the scholarship program while its constitutionality is being litigated. Institute for Justice has additional information on the lawsuits.

Snake-Handling Pastor Dies From Rattlesnake Bite

On Saturday night, a pastor who starred in the reality TV show Snake Salvation died of a snake bite.  According to USA Today, Rev. Jamie Coots, pastor of the Middlesboro, Kentucky,  snake handling Full Gospel Tabernacle in Jesus Name was bitten by a rattlesnake. An emergency crew came to the church, but Coots had been taken home. When the crew went to Coots's home, the pastor refused treatment. Unlike the 8 previous times Coots had been bitten, this time the bite proved fatal.  Last year, Coots was convicted by a Tennessee court of illegally possessing poisonous snakes. (See prior posting.)

Ugandan President Says He Will Sign Harsh Anti-Homosexuality Bill; U.S. Objects

The Kampala Observer and the New York Times reported yesterday that Ugandan President Yoweri Museveni says he will sign the harsh Anti-Homosexuality Bill (full text- apparently the final version) passed by Uganda's Parliament last December. (See prior posting.) The announcement came in closing remarks at a retreat of Museveni's political party, the National Resistance Movement (NRM). Originally Museveni had reservations about signing the bill, but in his remarks (full text) to the NRM Museveni explained his current decision:

The reason I had not signed the bill is to scientifically answer the question; are there people genetically born homosexual? For me, I had thought that since there were people born albino there could be people born homosexual.

But since the medical authorities, the department of genetics of the Medical School from Makerere, say there is no proof yet that people are homosexual by genetics, I told those scientists to put it in writing and they are going to do so. Then I will sign the bill.

Am taking all these precautions because am historically answerable for whatever I do as a leader. There were mistakes made in the 1930s by Hitler because he wanted to make Germany strong. Some of these issues are very crucial and should be handled objectively not emotionally....

I know we are going to have a big battle with outsiders, but I will be able to say I asked scientists and this is what they said. That homosexuals are normal people behaving abnormally.

In the United States, yesterday President Obama issued a statement (full text) saying that he is "deeply disappointed" by the decision. He added: "enacting this legislation will complicate our valued relationship with Uganda." White House National Security Advisor Susan Rice tweeted yesterday that she had spoken at length with Museveni to urge him not to sign the bill

Recent Articles of Interest

From SSRN:

• Manuel Vargas, The Runeberg Problem: Theism, Libertarianism, and Motivated Reasoning, (in Kevin Timpe & Daniel Speak, eds., Libertarianism and Free Will: the Interplay of Religious Belief and Free Will (Oxford Univ. Press, Forthcoming)).
• Frederick Mark Gedicks, Brief of Amici Curiae Church-State Scholars in Support of the Government in Sebelius v. Hobby Lobby Stores, Inc. & Conestoga Wood Specialties Corp. v. Sebelius, (January 28, 2014).
• Daniel Austin, How to Reconcile the Establishment Clause and Standing Doctrine in Religious Display Cases with a New Coercion Test, (February 4, 2014).
• Karen Jordan, A Christian Vision of Freedom and Democracy: Neutrality as an Obstacle to Freedom, (February 7, 2014).
• Michael Stokes Paulsen, Kermit Gosnell and Uncle Tom's Cabin, (St. Thomas Journal of Law & Public Policy, 2014, Forthcoming).
• Vivian Grosswald Curran, Reviving Human Rights Legislation After Kiobel, (American Journal of International Law, Vol. 107, p. 858, 2013).
• Neil Siegel, Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion, (February 14, 2014). 

From SSRN (Legal Issues of Pakistan):

• Shahbaz Ahmad Cheema, Socially Abhorrent But Legally Acceptable: A Study of Alleged Conversions of Sunnis and Shias in Cases of Inheritance in Pakistan, (South Asian Studies, A Research Journal of South Asian Studies, Vol. 29, No. 1, January -July 2014, pp. 281-291).
• Shahbaz Ahmad Cheema, The Federal Shariat Court’s Role to Determine the Scope of ‘Injunctions of Islam’ and Its Implications, (Journal of Islamic State Practices in International Law, Vol. 9, Issue. 2 (2013)).
• Shahbaz Ahmad Cheema & Samee Uzair Khan, Genealogical Analysis of Islamic Law Books Relied on in the Courts of Pakistan, (Al-Adwa December 2013).
• Shahbaz Ahmad Cheema, The Significance of Socio-Political Context in Shaping the Authenticity of Jamaat-I-Islami's Gender Discourse, (Pakistaniaat: A Journal of Pakistan Studies Vol. 5, No. 2 (2013)).
• Shahbaz Ahmad Cheema, An Analysis of Women's Contribution to the Gender Discourse of Jamaat-I-Islami of Pakistan, (Wagadu, Volume 11, 2013).
• Shahbaz Ahmad Cheema, Federal Shariat Court as a Vehicle of Progressive Trends in Islamic Scholarship in Pakistan, (Al-Adwa January-June 2013).

From SSRN (Other Country-Specific Research):

• Milja Radovic, Citizenship and Religion in the Post-Yugoslav States, (CITSEE Working Paper 2013/35 (2013)).
• Elif Bulut & Helen Rose Ebaugh, Religion and Assimilation Among Turkish Muslim Immigrants: Comparing Practicing and Non-Practicing Muslims, (Int. Migration & Integration, 2013, DOI: 10.1007/s12134-013-0301-9).
• Mahmudul Hasan, Communalism in Bangladesh and the Real Spirit of Islam Along with the Legal Mandates for Securing Justice for All, (January 15, 2014).
• Michael Buehler, Subnational Islamization Through Secular Parties: Comparing Shari'a Politics in Two Indonesian Provinces, (Comparative Politics 46.1 (2013): 63-82).
• Shahbaz Ahmad Cheema, Tagore Law Lecturer's Contribution to Islamic Legal Scholarship in British India, (Al-Qalam December 2013).

From SSRN (Islamic Law):

• Septian Bayu Kristanto, Organizational Commitment Differences: Islamic vs. Conventional Banks, (February 15, 2014).
• Sajad Gholami, Mehdi Hariri & Peyman Akbari, Innervation and Moan Review Process, from the Perspective of Law, and Knowledge of Management Accounting, (Scientific Journal of Review (2014) 3(1) 17-22).