Missouri Supreme Court Upholds Denial of Survivor Benefits To Patrolman's Same-Sex Partner

The Missouri Supreme Court, in a 5-2 decision this week, upheld the denial of survivor benefits to the same-sex partner of a deceased highway patrolman. In Glossip v. Missouri Department of Transportation, (MO Sup. Ct., Oct. 29, 2013), the court held that since plaintiffs were not challenging the state's constitutional ban on same-sex marriage, the issue is merely whether distinguishing between married and unmarried couples is permissible. The court held that it is; the survivor benefit statute passes "rational basis" scrutiny. Judges Teitelman and Draper dissented, arguing that the survivor benefit statutes intentionally discriminate against gay men and lesbians in violation of the constitutional guarantee of equal protection. Riverfront Times reports on the decision.

British Judge Traces Change In Role of Religion In Family Courts

British media are giving significant coverage to Tuesday's address by a senior judge, Sir James Munby, president of the Family Division, to a Law Society Conference. His remarks, titled Law Morality and Religion in the Family Courts, trace changes in the role judges assign to religion:

In recent years we have witnessed enormous changes in the social and religious life of  our country. A century ago, a judge could pray in aid the Church of England’s Book of Common Prayer as an appropriate statement of the public policy to be applied by the courts. Today we live in a largely secular society which, insofar as it remains religious at all, is now increasingly diverse in religious affiliation. 

At the same time as the judges have – rightly – abandoned their pretensions to be the guardians of public morality Christian clerics have, by and large, moderated their claims to speak as the defining voices of morality and of the law of marriage and the family.

Delivery Man Wins $900,000 Damages For Anti-Semitic Harassment

The New York Post reports that yesterday a jury in a New York federal district court awarded $900,000 in damages to restaurant delivery man Adam Wiercinski who, the jury found, was the target of virulent anti-Semitic harassment by three supervisors at the restaurant where he worked for 16 years.  However the court also directed that the transcript of the trial be forwarded to the U.S. Attorney's Office because it showed that between 2000 and 2008, Wiercinski was receiving Social Security disability payments while also collecting his full delivery job pay under a fictitious name.

Saudis Release Blogger After 20 Months In Prison

Yesterday Saudi Arabia freed 24-year-old Hamza Kashgari after he served 20 months in prison over a series of Tweets he posted expressing conflicting feelings about the Prophet Muhammad.  After threats from religious conservatives over the Tweets when they appeared, Kashgari had fled the country.  However he was extradited by Malaysian authorities when Saudi King Abdullah bin Abdulaziz al Saud ordered his arrest. (See prior posting.) The Wall Street Journal reports that after his release yesterday Kashgari quickly opened a new Twitter account. In a press release, the U.S. Commission on International Religious Freedom reacted to the release, saying:

While Hamza Kashgari’s release is a step in the right direction, he never should have been detained in the first place.  

USCIRF urges the Saudi government to take the next step and release online editor Raif Badawi and writer Turki al-Hamad. Badawi was unjustly convicted in July and sentenced to seven years in prison for insulting Islam and al-Hamad has been in detained without charge since December 2012 after reportedly publishing a series of tweets calling for the reform of Islamist teachings.

USCIRF further urges the Saudi government to end state prosecution of individuals charged with blasphemy and apostasy. Laws that punish expression deemed blasphemous, defamatory, or insulting to religion are incompatible with international human rights standards and exacerbate religious intolerance, discrimination and violence.”

Former International Religious Freedom Ambassador Discusses Reason For Her Resignation

Religion News Service on Monday followed up on the resignation earlier this month (see prior posting) of U.S. Ambassador-at-Large for International Religious Freedom Suzan Johnson Cook.  According to RNS, Cook resigned because she is unable to adequately help her sons with the cost of their college educations on her government salary. She plans to pursue speaking, consulting and is looking to sit on corporate boards.  Those interviewed about Cook's 30-month tenure had mixed reviews of her effectiveness.

Law Faculty Union Supporters Say Their $666 Raises Were Intended To Brand Them As the Antichrist

An Unfair Labor Practice Charge (full text of complaint) has been filed with the State of Ohio Employment Relations Board by the Cleveland State University AAUP which represents the University's law school faculty. As reported by TaxProf Blog on Oct. 29, the complaint (originally filed in August) charges that the law school dean retaliated against nearly all faculty who assisted with union organizing efforts by giving them merit raises of either $0 or only $666.  In a memo, one of the union organizers charged:

[The $666 figure] is a universally understood symbol of the Antichrist or Devil -- one of our culture's most violent religious images. Implicitly, but unmistakably and obviously intentionally, [the Dean] used his powers to set faculty salaries as an occasion to brand his perceived opponents as the Antichrist.

The University says that the $666 figure was the result of mathematical division, not of anti-union animus.  [Corrected as to filing date.]  [Thanks to Joe Slater via Facebook for the lead.] 

UPDATE: The University has released its Oct.8 response (full text) to the AAUP charges, and the AAUP on Oct. 31 issued a press release in reply.

Kerry Issues Statement Marking Oct. 27 As International Religious Freedom Day

Last Sunday, Oct. 27, was International Religious Freedom Day.  Secretary of State John Kerry issued a press statement on Sunday marking the day, saying in part:

The freedom of religion is a priority for President Obama, as it is for me as Secretary of State, because it is essential to human dignity and individual liberty, and it remains an integral part of our global diplomatic engagement.

We call on the international community – governments, civil society, and citizens alike – to speak out against religious persecution, and to stand unequivocally for religious freedom.

We do so humbly, knowing that our own journey as Americans was not without challenge, that the Pilgrims who fled across the ocean to escape religious persecution and landed in my home state of Massachusetts, would soon witness congregations break away and found Connecticut and Rhode Island in search of their own freedom to worship.

We also know that centuries later, we would see Catholics persecuted simply for being who they were and believing what they believed. But even as we are humble about the challenges of our history, we are proud that no place has ever welcomed so many different faiths to worship so freely as here in the United States of America.

Recent Prisoner Free Exercise Cases

In Guy v. Mims, 2013 U.S. Dist. LEXIS 150358 (ED CA, Oct. 18, 2013), a California federal magistrate judge allowed an Orthodox Jewish inmate to proceed with his complaint that it took 147 days before he was furnished with kosher meals.

In Phillips v. Palmer, 2013 U.S. Dist. LEXIS 152643 (ND IA, Oct. 23, 2013), an Iowa federal district court permitted plaintiff who is civilly detained as a sexually violent predator to move ahead with his general claim that he has been denied religious materials and recognition of the religion of his choice.

In Mack v. Yost, 2013 U.S. Dist. LEXIS 152713 (WD PA, Oct. 24, 2013), a Pennsylvania federal district court dismissed a damage claim by a Muslim inmate who alleged religious harassment in the course of his commissary job.

In Borkholder v. Lemmon, 2013 U.S. Dist. LEXIS 153249 (ND IN, Oct. 24, 2013), an Indiana federal district court, in an opinion whose language is unusually sympathetic to an inmate's religious claims, enjoined prison authorities from revoking plaintiff's religiously motivated vegan diet merely because he purchased chicken-flavored ramen noodles from the prison commissary. The inmate says he discards the meat flavoring packets and eats only the noodles.  The commissary does not offer a vegetarian noodle option.

In Artis v. New Jersey Department of Corrections, 2013 N.J. Super. Unpub. LEXIS 2580 (NJ App., Oct. 25, 2013), a New Jersey state appellate court affirmed the decision of the Department of Corrections to respond to a civilly committed inmate's complaint and allow Special Treatment Unit inmates from two buildings to attend religious classes and services together.  The court held that the inmate's claims regarding joint choir and choir practices need to be clarified if he wishes to pursue them further.

In Israel, Knesset Passes Controversial Law Loosening Regulation of Jewish Wedding Ceremonies

In Israel yesterday, the Knesset voted 57- 14 (with one abstention) to  give final passage to the so-called "Tzohar bill" which loosens the control of the country's Chief Rabbinate over who conducts Jewish wedding ceremonies. As reported by the Jerusalem Post, the new law allows a couple to open a marriage registration file with the local rabbinate of any district or city in Israel, rather than requiring the marriage be registered in the locality where the bride or groom lives. The legislation was supported by Tzohar,  an organization of 600 national-religious Orthodox rabbis who say that many of their members have been precluded from obtaining licenses to perform marriages. In areas where Tzohar rabbis can perform ceremonies, they have set up more user-friendly systems.

Tzohar says that the haredi religious establishment wants to protect weddings as a source of income for rabbis who are approved by the Chief- Rabbinate and who often illegally charge couples for performing weddings. The Chief Rabbinate says that the new system will make marriage registrations unreliable and lead to inadvertent marriages that are not permitted by Jewish religious law.

State of Alabama Joins Non-Profit Organization In Challenge To Contraceptive Mandate

Yesterday, EWTN, a non-profit Catholic radio and television network, filed suit challenging the Affordable Care Act contraceptive coverage mandate. Like a number of other religious non-profits, it had filed an earlier challenge that was dismissed on ripeness grounds (see prior posting), and now that the final rules applicable to non-profits have been issued is refiling.  It contends that the final rules still require it to become involved in finding a third party that will furnish contraceptive coverage to its employees.

The lawsuit also has a new element to it--  the State of Alabama (where EWTN is primarily located) has joined as plaintiff.  The complaint (full text) in Eternal Word Television Network, Inc. v. Sebelius, (SD AL, filed 10/28/2013) alleges that:

In November 2012, the people of Alabama voted to adopt an amendment to the Alabama Constitution to prohibit any person or employer, such as EWTN, from being compelled to participate in a health care system.... If lawful, the Mandate would displace Alabama’s regulatory choice and strike a new and different balance between the cost and availability of health insurance.

Becket Fund issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• Patrick M. Garry, Distorting the Establishment Clause Into an Individual Dissenter’s Right, (7 Charleston Law Review, Fall 2012).
• Andrew B. Kartchner, Corporate Free Exercise: A Survey of Supreme Court Cases Applied to a Novel Question, (Regent J. L. & Pub. Pol'y, Volume 6, Issue 2 (2014), Forthcoming).
• Kenneth Einar Himma, What's So Damn Special About Religion, Anyway? (Review Essay of Brian Leiter, Why Tolerate Religion? ), (Law and Philosophy, Forthcoming).
• Patrick McKinley Brennan, Resisting the Grand Coalition in Favor of the Status Quo by Giving Full Scope to the Libertas Ecclesiae, (Freedom and the Moral Law: Proceedings from the Convention of the Fellowship of Catholic Scholars, 2013).
• Patrick McKinley Brennan, The Liberty of the Church: Source, Scope, and Scandal, (Journal of Contemporary Legal issues, Forthcoming).
• Roberta Rosenthal Kwall, Response to Zadoff on Kwall, (Cardozo Law Review De Novo, p. 264, 2013).
• Leonid Sirota, Storm and Havoc: The Rule of Law and Religious Exemptions, (47 Revue Juridique Thémis de l'Université de Montréal 247 (2013)).

From SSRN- Foreign and Islamic Law:

• Tamir Moustafa, Liberal Rights versus Islamic Law? The Construction of a Binary in Malaysian Politics, (Law & Society Review, vol. 47: 771-802 (2013)).
• Moamen Gouda, Stealing More Is Better? An Economic Analysis of Islamic Law of Theft, (April 24, 2013).
• Mikhail Antonov & Ekaterina Samokhina, The Reasoning of Russian Courts in Cases Connected with the Protection of Religious Feelings, (Higher School of Economics Research Paper No. WP BRP 26/LAW/2013, Oct. 2013).
• Daniel Augenstein, Normative Fault-Lines of Transnational Human Rights Jurisprudence: National Pride and Religious Prejudice in the European Legal Space, (October 11, 2013).
• Yuksel Sezgin, The Impact of State-Enforced Personal Status Laws on Human Rights (Chapter 3 in Human Rights Under State-Enforced Religious Family Laws in Israel, Egypt and India, Cambridge University Press, 2013).

From SmartCILP:

• Benjamin Shmueli,  Civil Actions for Acts that Are Valid According to Religious Family Law but Harm Women’s Rights: Legal Pluralism in Cases of Collision Between Two Sets of Laws, 46 Vanderbilt Journal of Transnational Law 823 (2013).

Employee Lacks Standing To Challenge Contraceptive Coverage Mandate

In Wieland v. U.S. Department of Health and Human Services, (ED MO, Oct. 16, 2013), a Missouri federal district court denied a temporary restraining order to a Missouri state employee and his wife who claim that the Affordable Care Act contraceptive coverage mandate forces them to violate their religious opposition to contraception, sterilization, and abortifacients by mandating that their group health insurance policy make these services available to their daughters who are covered by the policy.  The court held that plaintiffs lack standing to sue because they did not allege a sufficient connection between the injury they claim and action by HHS, the only defendant.  Here, any injury was caused by the State of Missouri and its health insurer, and if an injunction were issued barring enforcement of the mandate, the state could still refuse to offer its employees a health plan that excludes contraception and abortion. (See prior related posting.) [Thanks to Tom Rutledge for the lead.]

Recent Prisoner Free Exercise Cases

In Taylor v. United States, (Ct. Fed. Cl., Oct 25, 2013), the United States Court of Federal Claims dismissed for lack of jurisdiction a claim for damages and injunctive relief brought by an inmate serving a life sentence who claimed his rights were violated when USCIS refused to allow him to renounce his citizenship for religious reasons. USCIS says citizenship can only be renounced when an individual is outside the country.

In Montgomery v. Fondren, 2013 U.S. Dist. LEXIS 147934 (ND AL, Oct. 15, 2013), an Alabama federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 148212, Sept. 4, 2013) and dismissed an inmate's complaints that his request to see a Volunteer Faith Group Leader andview religious programming were denied,  and that he was placed in disciplinary segregation for preaching even though he received permission from the other prisoners to do so.

In Pannell v. Baserap, 2013 U.S. Dist. LEXIS 147858 (ED VA, Oct. 10, 2013), a Virginia federal district court dismissed a complaint by a Muslim inmate that he was prohibited from conducting Jum'ah services in Arabic because of a prison rule that only English may be spoken in unsupervised cross-housing unit meetings.

In Trebas v. County of Fresno, 2013 U.S. Dist. LEXIS 148436 (ED CA, Oct. 11, 2013), a California federal magistrate judge dismissed, with leave to amend, a complaint by a state hospital civil detainee that his free exercise rights were infringed when authorities refused his request for religious accommodation of single room housing.

In Hall v. Hehl, 2013 U.S.Dist. LEXIS 148852 (D NC, Oct. 16, 2013), a North Carolina federal district court dismissed for failure to exhaust administrative remedies a claim by a Native American inmate that the handling of his religious property violated his free exercise rights.

In Sharrieff v. Moore, 2013 U.S. Dist. LEXIS 150320 (MD PA, Oct. 18, 2013) a Pennsylvania federal district court permitted a Nation of Islam inmate to move ahead with a number of his claims growing out of the alleged denial to him of  religious services and annual December fasting accommodations.

In Muhammad v. Shearin, 2013 U.S. Dist. LEXIS 149276 (D MD, Oct. 17, 2013), a Maryland federal district court dismissed a Nation of Islam inmate's 1st Amendment and RLUIPA challenges to the prison's refusal to recognize for some purposes plaintiff's court approved religious name change.  However plaintiff was permitted to move ahead with his due process challenge.

In Cottriel v. Jones, 2013 U.S. Dist. LEXIS 150601 (WD OK, Oct. 21, 2013), an Oklahoma federal district court ordered the Oklahoma Department of Corrections to respond within 14 days to an Orthodox Jewish inmate's suit to hold authorities in contempt for not fully complying with a 2006 injunction ordering them to provide plaintiff with a kosher diet.

In Barfell v. Winnebago County Jail, 2013 U.S. Dist. LEXIS 150941 (ED WI, Oct. 21, 2013), a Wisconsin federal district court rejected an inmate's complaint that while in segregation he was not permitted to attend church services or Bible study, since he could watch church services on TV and meet with the chaplain for individual Bible study.

In Porter v. Biter, 2013 U.S. Dist. LEXIS 149748 (ED CA, Oct. 16, 2013), a California federal magistrate judge dismissed, with leave to amend, a Muslim inmate's complaint that he was not permitted to change his name to comply with his religious beliefs.  Plaintiff did not allege that he was prohibited from using his religious name along with his committed name.

Formal Ethics Charges Filed Against Magistrate Who Rejected "Messiah" As Child's Name

On Wednesday, the Tennessee Board of Judicial Conduct filed formal charges (full text) against Child Support Magistrate Lu Ann Ballew who insisted that parents change their child's first name from "Messiah" to "Martin.", even though the only name issue in the case related to the child's last name.  Ballew gave as the reason that Messiah is a title held only by Jesus Christ. (See prior posting.)  The charges claim that Ballew violated rules requiring judges to promote confidence in the judiciary and avoid bias and prejudice based, among other things, on religion.  Reuters reports on developments. (See prior related posting.)

Egypt's Constitution Drafting Committee Remains Split Over Language On Country's Religious Identity

Asharq Al-Awsat reported yesterday that Egypt's 50-member constitution drafting committee remains split over several issues relating to Egypt's religious identity. According to a drafting committee member, Egypt's Coptic Christian community is concerned about Article 2 of the current Egyptian constitution that provides: “The state’s religion is Islam, its language is Arabic, and Islamic Shari’a is the source of its legislation.”  However Al-Azhar wants the provision to remain in order to defend Egypt's Islamic identity.

Also at issue is Article 219 provides: "The principles of Islamic Shari’a include its commonly accepted interpretations, its fundamental and jurisprudential rules, and its widely considered sources, as stated by the schools of Sunna and Gamaa."...  Liberals and secularists object to this provision, while the Salafist Al-Nour Party wants it to remain in the constitution.

Article 3 of the current constitution provides that "the canon principles of the People of the Book [Jews, Christians and Muslims] are the main source of legislation for their [respective] personal status laws, religious affairs and the selection of their spiritual leaders."  Disagreement continues over the wording of this clause. Egypt’s Coptic, Orthodox and Evangelical churches want "People of the Book" to be changed to "non-Muslims," while Al-Azhar and the Al-Nour Party want it to refer to "Christians and Jews." Al-Azhar is concerned that the broader-term "non-Muslims" would open the country to exploitation by other religions and sects.

Court Rejects Minister's Challenge To Social Security Number On Driver's License Application

In Carmichael v. Sebelius, (ED VA, Oct. 23, 2013), a Virginia federal district court dismissed a suit by a Christian minister challenging the federal requirement that states record an individual's social security number on his or her driver's license application as a condition of the state receiving federal funds for child support enforcement efforts.  Plaintiff David Carmichael believes that the social security number is the number of the Beast referred to in the Book of Revelation.  Therefore he has been attempting in lawsuits, first at the state level and then in federal court, to disassociate his identity from his social security number.  Among other things, the court held that there had not been a violation of Carmichael's religious liberty protected by the 1st Amendment and RFRA, saying in part:

Carmichael fails to allege a substantial burden on his religion from the SSN requirement. Indeed, Carmichael seems to allege only burdens on his secular life, such as his ability to drive his car....

The court also rejected Carmichael's 10th Amendment attack on the social security number requirement, and dismissed claims against state officials on the basis of the Rooker-Feldman doctrine and the doctrine of res judicata.

Air Force Academy Says "So Help Me God" Will Be Optional In Cadet Honor Oath

At the U.S. Air Force Academy, a Cadet Honor Oath is administered to all the cadets when they are formally accepted into the wing at the conclusion of Basic Cadet Training. The Honor Oath reads:

We will not lie, steal or cheat, nor tolerate among us anyone who does. Furthermore, I resolve to do my duty and to live honorably, so help me God.

The U.S. Air Force Academy announced yesterday that it is making the final clause of the Oath optional, "in the spirit of determining a way ahead that enables all to be true to their beliefs."  As reported by CNN, the change was made after a complaint was filed by the Military Religious Freedom Foundation.

When the Honor Oath was instituted, its last clause was patterned on the same clause in the Commissioning Oath.  In August, the Air Force revised it policies so that officer trainees now have the option of taking a secular Commissioning Oath. (See prior posting.)

Obama Names 3 To Holocaust Memorial Council

President Obama yesterday appointed three individuals to five-year terms on the 55-member Holocaust Memorial Council.  The new members, according to JTA, are Elisa Spungen Bildner, a New Jerssey business CEO who has held leadership positions in several Jewish organizations;  John Farahi, a Nevada casino CEO and founder of a Jewish day school; and Dana Perlman, vice president of the Los Angeles City Planning Commission and co-chair of the Democratic National Committee LGBT Leadership Council.

Ukrainian Appeals Court Rejects Jewish Community's Claim To Former Synagogue Building

In the Ukraine, the Odessa Administrative Court of Appeals earlier this month reversed a decision of the Balta District Court and rejected the claim of the Balta Jewish community to an abandoned building that once housed the 100-year old Savranskaya synagogue. According to a JTA report yesterday, the Jewish community paid 2500 rubles for construction of the building in 1903. However it stopped being used as a synagogue during the Holocaust years. The building was turned into apartments by the Soviet government, and subsequently Ukrtelecom, the Ukrainian national telecommunications operator, began to use the building and kept it after it was privatized in 2003.

Two Christian Colleges Sue Over Contraceptive Coverage Mandate

Dordt College, a Sioux City, Iowa college affiliated with the Christian Reformed Church, and the historically-Baptist Grand Rapids, Michigan based Cornerstone University on Wednesday filed suit in an Iowa federal district court.  The lawsuit, like numerous similar ones, challenges on religious liberty grounds the portion of the Affordable Care Act contraceptive coverage mandate that requires the schools' employee health insurance plans to cover contraceptives that the schools consider to be abortifacients. According to a Cornerstone press release and FAQ  document, both schools are being represented without cost by Alliance Defending Freedom. MLive reports on the lawsuit.

UPDATE: Here is the full text of the complaint in Dordt College v. Sebelius, (ND IA, filed 10/23/2013).