L.A. Religious Orders Release Personnel files Under 2007 Clergy Abuse Settlement

The Los Angeles Times reports that on Wednesday, 1700 pages of personnel files from 5 Los Angeles area Catholic religious orders were made public pursuant to a 2007 settlement with hundreds of sexual abuse claimants. Files were released by the Marianists, the Benedictines, the Oblates and two orders of nuns-- the Cabrini Sisters and the Sisters of St. Joseph of Carondele.  An additional 45 religious orders will release files in the coming months. Many of the files do not mention abuse allegations, or refer to them only obliquely.  According to the Times:

In the case of Benedictine priest Mathias Faue [full text of file], one supervisor wrote vaguely of “his problem” or “difficulty.” In the file of Oblate Father Ruben Martinez [full text of file], an order official repeatedly switched to Japanese characters to note sensitive subjects, including his admissions of “homosexuality” and “relations with boys.”

6th Circuit: Campus Outside Speaker Rules, Challenged By Evangelist, Are Vague

In McGlone v. Cheek, (6th Cir., Aug. 2, 2013), the U.S. 6th Circuit Court of Appeals held that a traveling Christian evangelist would likely succeed in showing that the University of Tennessee's policy requiring outsiders to obtain sponsorship in order to speak on campus is unconstitutionally vague.  Remanding with instructions to issue a preliminary injunction, the court explained:

[T]he University has insisted that, together, policy #1720-1-2 and the Freedom-of-Expression policy establish the University’s sponsorship requirement.  Policy #1720-1-2 makes no reference to on-campus speakers or sponsorship, but it says that guests are allowed on campus... [if] invited by a university student or employee.... The Freedom-of-Expression policy says that “[a]ny person sponsored by a registered campus organization is free to speak” on campus. Inexplicably, the University conflates both policies and concludes that the University’s sponsorship requirement clearly provides that students, faculty, and staff have the authority to grant sponsorship. As a result of the inconsistency between the two policies, it is unclear to the ordinary person who has the authority to grant sponsorship.

AP reports on the decision.  (See prior related posting.)

An Attempt To Be Complete In Covering the Contraceptive Coverage Mandate Decisions

As previously reported, among the many for-profit businesses challenging the Affordable Care Act's contraceptive coverage mandate was Michigan-based Eden Foods.   There have been at least two opinions in the case that seem to have fallen between the cracks of Religion Clause's coverage.  A March 22, 2013 district court opinion denied an emergency motion for a temporary restraining order in the case, and it appears that subsequently the district court denied a preliminary injunction as well.  Then in a June 28, 2013 opinion, the U.S. 6th Circuit Court of Appeals denied a motion for a preliminary injunction pending appeal of the district court's denial of a preliminary injunction. The 6th Circuit said in part: "We are not persuaded, at this stage of the proceedings, that a for-profit corporation has rights under the RFRA."

Pastor Liable For Self-Employment Tax

In Rogers v. Commissioner, (TC, Aug. 1, 2013), the United States Tax Court held that a pastor at the Pentecostals of Wisconsin is liable for self-employment tax on $43,200 in home mortgage, utility and credit card payments made on his behalf by his church.  He argued that members of religious orders who have taken a vow of poverty are not subject to tax on income received as agents of the orders of which they are members.  However, the court concluded that here the taxpayer was never paid a salary by a third party that he remitted to his church. Instead, the church merely paid some of his expenses. The payments were not properly designated as a parsonage allowance, nor did petitioner file the required certificate to exempt himself from self-employment tax under Sec. 1402(e). [Thanks to Steven H. Sholk for the lead.]

Bangladesh Court Voids Registration of Country's Largest Islamic Party

In Bangladesh yesterday, the High Court in Dhaka declared that the registration of the country's largest Islamic party with the Bangladeshi Election Commission is illegal and void. According to the Frontier Post, the ruling against Jamaat-i-Islami came after a petition was filed arguing that the party's charter conflicts with the country's secular constitution. BD News24 reports that Jamaat-i-Islami now plans to shut down the country for 48 hours beginning Aug. 12 in protest of the court's decision.

Muslim Groups Oppose NYPD's Kelly For Homeland Security Spot

According to Religion News Service yesterday, Muslim-American groups are expressing growing opposition to suggestions that President Obama may nominate NYPD Commissioner Raymond Kelly as head of the Department of Homeland Security. He would replace Janet Napolitano who is leaving DHS to head the University of California System. The Muslim groups say that Kelly oversaw an NYPD surveillance program that targeted Muslims solely on the basis of their religion. (See prior posting.)

7th Circuit: Factual Issue Remains On Whether Employer Had Notice That Leave Request Was Religious In Nature

In Adeyeye v. Heartland Sweetners, L.L.C., (7th Cir., July 31, 2013), the U.S. 7th Circuit Court of Appeals reversed a district court's summary judgment for defendant in a Title VII religious accommodation case. The request by plaintiff, a native of Nigeria, to take several weeks of unpaid leave to travel to Nigeria to lead his father's burial rites was refused by his employer. The Court of Appeals rejected the district court's finding that the employer did not have notice of the religious nature of the request. It held that a genuine issue of material fact remained, saying:

We recognize, of course, that the religious beliefs and practices Adeyeye referred to are not as familiar as beliefs and practices closer to the modern American mainstream. But the protections of Title VII are not limited to familiar religions.

Saudi Activist Sentenced To 7 Years and 600 Lashes For Insulting Islam

Human Rights Watch reports that on July 29 a Saudi Arabian court sentenced blogger Raif Badawi to 600 lashes and 7 years in prison for insulting Islam through his website and in comments he made on television. Three months was added for "parental disobedience." The court also ordered his website closed. An apostasy charge against Badawi was dropped after he affirmed to the court that he is a Muslim and recited the Shehadeh. Badawi, who created his Free Saudi Liberals website in 2008 to encourage debate on religious and political matters in Saudi Arabia, has been detained since June 2012.

FFRF Protests Religious Quotes In U.S. Passport Design

Last week, the Freedom From Religion Foundation again protested to the U.S. State Department over the design of U.S. passports. (Press release.)  The passport, redesigned in 2007, includes a quote on each page aimed at "reflecting the hope and success that is the United States of America." (Background.) In its letter (full text) to the State Department, FFRF raised Establishment Clause concerns about four of the quotes which explicitly mention "God." It also made a Freedom of Information Act request for documents relating to decisions on the redesign.

Display of Crosses On Riverfront Enjoined

In Cabral v. City of Evansville, Indiana, (SD IN, July 31, 2013), an Indiana federal district court permanently enjoined the city of Evansville from permitting a group of local religious organizations, headed by the Westside Christian Church, from erecting a planned religious display on the city's Riverfront. The proposed display consisted of up to 31 six-foot tall crosses to be spread over the 4-block Riverfront area.  Finding that the proposed display would violate the Establishment Clause, the court said in part:

based on the size and scope of the project, this planned display of crosses would convey a message of the City’s endorsement of Christianity to the reasonable observer....

The City’s attempts to dilute the religious impact of the display by prohibiting written messages on the Crosses and by requiring disclaimers, while generally commendable, no doubt reflect its own recognition of and sensitivity to the magnitude of the display and the constitutional concerns it raises. We emphasize, it is not the inclusion of the crosses as such that causes this display to run afoul of the First Amendment; rather, it is the forcefulness of the message being conveyed, based on the significant scope and size and duration of the overall display....

This ruling should not be understood to foreclose or prohibit any and all unattended displays on the Riverfront area that convey a religious message. To stay within constitutional bounds, however, it must stop short of creating a message that overwhelms the nature of the public forum thereby transforming it into government endorsed religious speech.

AP reports on the decision.

Pennsylvania Health Department Sues To Stop County From Issuing Same-Sex Marriage Licenses

As previously reported, in Montgomery County, Pennsylvania (suburban Philadelphia), the county's Register of Wills, D. Bruce Hanes, last week began to issue marriage licenses to same-sex couples, despite the legal ban on such marriages in the state. Now, according to the Philadelphia Inquirer, the state Department of Health on Tuesday filed suit in Commonwealth Court seeking a writ of mandamus to stop the county from issuing more licenses or accepting marriage certificates from same-sex couples. The suit claims that the county's actions are leading couples to erroneously believe that they have entered a valid marriage.  In response, County Solicitor Ray McGarry issued a statement saying:

While it comes as no surprise that the Corbett Administration has filed an action seeking to enjoin marriage equality in Montgomery County, the petition filed today in Commonwealth Court by the state Department of Health has serious flaws. Montgomery County will be filing a response shortly. In the meantime, the Register of Wills office will continue to issue marriage licenses to same-sex couples.

Court Upholds Sale of Synagogue

In Chomsky v. Sewitch, (NJ App., July 23, 2013), the New Jersey Superior Court Appellate Division rejected an attack on the sale of an Orthodox synagogue building in Perth Amboy to Science of Spirituality, Inc. Plaintiffs argued that the congregation was bound by Jewish religious law which prohibits the sale of the building to a non-Jewish religious organization. They claimed that the dispute should be transferred to a beth din (Jewish religious court). Finally they argued that the synagogue's actions involved self-dealing, violated the congregations's bylaws and violated the New Jersey non-profit law. Plaintiffs then commenced their own action in a beth din.  Affirming the trial court, the appeals court said:

we conclude the [trial] judge properly employed the neutral principles approach to consider and determine only "those disputes involv[ing] purely secular issues" that were capable of resolution "without the judiciary becoming enmeshed in matters of faith or doctrine."

New Jersey Jewish News reports on the decision.

TRO Denied In Attempt To Stop Same-Sex Marriages In Rhode Island On Religious Freedom Grounds

According to the Providence Journal, a Rhode Island Superior Court judge yesterday denied a temporary restraining order in a suit challenging the constitutionality of the state's recently enacted same-sex marriage law which is scheduled to take effect Aug. 1. (See prior posting.) Plaintiff argued that the law will violate the state constitution's religious freedom protections by forcing people to accept in public spheres, such as schools, a practice that they oppose on religious grounds.

UPDATE: On Aug. 9, the court also denied a preliminary injunction in the case. (Providence Journal).

Perpetual Care Trust Funds Shielded From Archdiocese's Creditors In Bankruptcy-- Corrected

AP reports that a Wisconsin federal court on Monday ruled that $50 million in a cemetery perpetual care trust fund is unavailable to creditors, including abuse victims, in the bankruptcy reorganization of the Milwaukee Catholic Archdiocese. The funds came from sale of cemetery lots and mausoleums.  In a statement yesterday, the Archdiocese said:

Because these funds were held in trust as prescribed by Canon Law, they were independent of the general assets and could only be used for their intended and pledged purpose – to care for the resting places of the departed as sacred places under Canon law. As the Judge said, “removing some or all of these funds from the trust and placing them in the bankruptcy estate would undoubtedly put “substantial pressure” on Archbishop Listecki to “modify [his] behavior” and “violate [his] beliefs.”

UPDATE AND CORRECTION: The decision is In re Archdiocese of Milwaukee is at 2013 U.S. Dist. LEXIS 106392, (ED WI, July 29, 2013). Contrary to the earlier version of this post, the decision is one of the district court reversing a bankruptcy court's earlier decision. And here is a non-Lexis source for the full opinion.

Court Refuses To Dismiss Claims Against Diocese Over Abusive Priest

In Jane Doe #2 v. Norwich Roman Catholic Diocesan Corp., 2013 Conn. Super. LEXIS 1516 (CT Super., July 8, 2013), a Connecticut trial court refused to strike claims against a Catholic diocese for failure to report, supervise and remove a priest charged with child abuse, including claims for breach of fiduciary duty. The diocese argued that the the claims excessively burden its exercise of religion. The court responded in part:

Although the United States Supreme Court's decision in Hosanna-Tabor may indeed bar some of the allegations found in the complaint, such as the defendants' allegedly wrongful failure to remove Father Shea from the priesthood, Hosanna-Tabor does not preclude all of the specifications of negligence and reckless conduct found in counts one through six. Specifically, the allegations of failure to warn and negligent supervision are not clearly precluded by Hosanna-Tabor. Accordingly, the court cannot strike these counts on the basis of the first amendment.

Israeli-Palestinian Peace Talks Begin With Timing Impacted By Ramadan

Last night marked the beginning of New Israeli-Palestinian peace talks at the State Department. CBS News reported:

At sundown Monday, Palestinian and Israeli negotiators will meet over an Iftar dinner hosted by Secretary of State John Kerry at the State Department. The meal, which marks the breaking of the day-long fast observed by Muslims during the holy month of Ramadan, is a symbolic start to the first round of face-to-face negotiations between the two parties for the first time in three years.

Earlier in the day, some State Department reporters seemed a bit culturally challenged by it all. Here is an exchange at yesterday's press briefing by State Department spokesperson Jen Psaki:

QUESTION: And the dinner tonight is at State or at his house or --

MS. PSAKI: It’s at the State Department.

QUESTION: Okay. Thank you.

QUESTION: It’s an Iftar dinner or a regular dinner?

MS. PSAKI: It is an Iftar dinner.

QUESTION: Iftar.

QUESTION: Isn’t an Iftar dinner – isn’t that a regular dinner?

MS. PSAKI: There will be food served at an Iftar dinner, yes.

Report Focuses On Problems With Virginia's Religious Opt Out of Public Education

Sunday's Washington Post highlighted the experiences of 21-year old Georgetown University student Josh Powell who objects to the poor education he received and his siblings are receiving after their parents opted out of public education on religious grounds under Va. Code Sec. 22.1-254(B)(1). The Post reports:

Powell was taught at home, his parents using a religious exemption that allows families to entirely opt out of public education, a Virginia law that is unlike any other in the country. That means that not only are their children excused from attending school — as those educated under the state’s home-school statute are — but they also are exempt from all government oversight.

School officials don’t ever ask them for transcripts, test scores or proof of education of any kind: Parents have total control.

Powell’s family encapsulates the debate over the long-standing law, with his parents earnestly trying to provide an education that reflects their beliefs and their eldest son objecting that without any structure or official guidance, children are getting shortchanged. Their disagreement, at its core, is about what they think is most essential that children learn — and whether government, or families, should define that.

Suit Challenges Kentucky's Refusal To Recognize Same-Sex Marriage

On Friday, a same-sex couple, Gregory Bourke and Michael De Leon, and their two adopted children filed suit in federal district court challenging the constitutionality of Kentucky's refusal to recognize the couple's 2004 Canadian marriage.  The two men have been together for 31 years.  The complaint (full text) in Bourke v. Breshear, (WD KY, filed 7/26/2013) alleges that Kentucky laws barring same-sex marriage and recognition of same-sex marriages from other jurisdictions violate the 14th Amendment's due process and equal protection clauses. The Louisville Courier-Journal reports on the filing of the lawsuit. [Thanks to Tom E. Rutledge for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Monika Ambrus, The European Court of Human Rights and Standards of Proof in Religion Cases, (8 Religion and Human Rights 2 (2013), pp. 107-137, Forthcoming).
• Perry Dane, Doctrine and Deep Structure in the Contraception Mandate Debate,(July 21, 2013).
• Charles Tiefer, Jonathan W. Cuneo & Annie Reiner, Could This Train Make It Through: The Law and Strategy of the Gold Train Case, (Yale Human Rights and Development Law Journal, Vol. 15, 2012, pp. 129-154).
• Ian C. Bartrum, Religion and the Restatements, (Brooklyn Law Review, Forthcoming).
• Richard W. Garnett, 'The Freedom of the Church': (Towards) an Exposition, Translation, and Defense, (Journal of Contemporary Legal Issues, Forthcoming (2013)).

From SmartCILP:

• Todd A. DeMitchell, David J. Herbert & Loan T. Phan, The University Curriculum and the Constitution: Personal Beliefs and Professional Ethics in Graduate School Counseling Programs, 39 Journal of College and University Law 303-345 (2013).
• Jane C. Ginsburg, Proto-property in Literary and Artistic Works: Sixteenth-Century Papal Printing Privileges, 36 Columbia Journal of Law & the Arts 345-458 (2013).
• The Lautsi Debate -- Fin. Articles by Dimitrios Kyritsis, Stavros Tsakyrakis and Lorenzo Zucca; reply by J.H.H. Weiler. 11 I.Con: International Journsal of Constitutional Law 200-233 (2013).

Recent Books:

• Vincent Phillip Munoz, Religious Liberty and the American Supreme Court: The Essential Cases and Documents, (Rowman & Littlefield, July 2013).
• Robin Griffith-Jones (ed.), Islam and English Law: Rights, Responsibilities and the Place of Shari’a, (Cambridge Univ. Press, May 2013), Reviewed by Financial Times.

Annual U.S.-China Human Rights Dialogue Scheduled For this Week

The U.S. State Department has announced that the next session of the annual U.S.-China Human Rights Dialogue will be held, July 30-31, in Kunming, China. According to a State Department spokesperson: "The two sides will discuss rule of law, freedom of religion, freedom of expression, labor rights, rights of ethnic minorities, and other human rights issues over the course of the dialogue."