Nidal Hasan's Beard Finally Shaved Forcibly By Army

AP reports today that Major Nidal Hasan who was convicted and sentenced to death for killing 13 and wounding 30 in a 2009 shooting rampage at Fort Hood has had his beard forcibly shaved in the military detention barracks at Fort Leavenworth where he is on death row.  After extensive litigation, Hasan, a Muslim, was allowed to keep the beard he had grown for religious reasons during his trial. (See prior posting.)  Fort Leavenworth officials previously said that Hasan would be subject to military grooming regulations there. [Thanks to Scott Mange for the lead.]

Obama In Stockholm Honors Raoul Wallenberg; Sends Rosh Hashanah Greetings

President Obama, who is in Sweden today, visited the Great Synagogue in Stockholm to honor Swedish diplomat Raoul Wallenberg who shielded thousands of Jews from the death camps in World War II.  In his remarks (full text), Obama said in part:

This evening is the first night of the Jewish High Holidays -- Rosh Hashanah.  For our Jewish friends, it’s a time of joy and celebration, to give thanks for our blessings, and to look ahead to the coming year.  So to all our Jewish friends here in Sweden, in the United States, and around the world, especially in Israel -- I want to wish you and your families a sweet and happy new year.  Shanah Tova. 

Vermont Federal Court Has General Jurisdiction Over New York Diocese In Abuse Case

In Shovah v. Mercure, (D VT, Sept. 3, 2013), a Vermont federal district court held that the Diocese of Albany, New York has sufficient contacts with Vermont, primarily through priests who have conducted worship services there, to create general jurisdiction over the diocese in Vermont.  The holding comes in a suit in which plaintiff, a victim of priest sexual abuse, alleges that the Diocese breached its fiduciary duty to by permitting the alleged abuser, former priest Gary Mercure, to hold himself out as a Catholic Priest and that it negligently supervised Mercure.

PETA Becomes Advocate For Buddhist Prisoner Seeing Vegetarian Diet

As those who follow Religion Clause's weekly summary of prisoner free exercise cases know, law suits over religious dietary accommodation arise in federal courts virtually every week. AP reported yesterday on a new organizational advocate that has dipped its toe into the fray.  Buddhist inmate Howard Cosby has been attempting to get a vegetarian diet for religious reasons at his Connecticut prison.  Prison officials insist on including fish three times per week in his meals.  So Cosby has enlisted the held of the animal rights group, People for the Ethical Treatment of Animals (PETA).  As PETA explains in its release on the situation:

This week, PETA wrote to the prison in Cosby's behalf, pointing out that a) fish are not vegetables, as most of us learned in high school biology class, and that b) there is ample legal precedent for granting prisoners the right to vegan and vegetarian meals under the Religious Land Use and Institutionalized Persons Act.... 

Gallup, NM Catholic Diocese To File Chapter 11 Bankruptcy

The St. Louis Post-Dispatch reports that the Catholic Diocese of Gallup, New Mexico plans to file in federal bankruptcy court for Chapter 11 reorganization.  In an August 29 announcement, the Diocese said that the decision was impelled by the increasing number of claims by clergy sex-abuse victims. Bishop James S. Wall explained:

It is very important to me that everyone understands that I have not taken this step to avoid responsibility for what happened or to hide anything. On the contrary, I firmly believe that Chapter 11 is the most merciful and equitable way for the Diocese to address its responsibility, to continue to meet its commitment to institute programs and prevent abuse, and to continue its mission to all those who depend on the outreach of the Church....

The Gallup diocese will be the ninth U.S. Catholic diocese or archdiocese to seek Chapter 11 protection.

President Will Appoint James Zogby To USCIRF

Last week, President Obama announced his intent to appoint Dr. James J. Zogby, President of the Arab American Institute, as a member of the U.S. Commission on International Religious Freedom. Yesterday USCIRF issued a press release welcoming Zogby to the Commission.

Christian Group Wins Challenge To Dearborn's Special Event Permit Ordinance

In Stand Up America Now v. City of Dearborn, (ED MI, Aug. 30, 2013), a Michigan federal district court held unconstitutional Dearborn ordinances requiring applicants for a special event permit to sign an indemnification agreement, with terms established in the unfettered discretion of the the city's legal department.  The case was brought by Stand Up America Now, an organization founded by Florida pastors Terry Jones and Wayne Sapp. The organization's purpose is "to proclaim the Holy Bible to Muslims and to educate people about the threat of Sharia law to our Nation’s fundamental principles of freedom by traveling around the country speaking about Christianity at Muslim events and mosques." The Thomas More Law Center issued a press release announcing the decision. (See prior related posting.)

Canadian Court Dismisses Religious Discrimination Challenge To Royal Succession Rules

Earlier this year, Canada's Parliament passed the Succession to the Throne Act, 2013, which gives assent to the amendments now passed by the British Parliament that eliminate preferences for male heirs in succession to the throne, and eliminates the ban on a monarch being married to a Catholic.  However the British initiative retains the ban on a Catholic actually becoming king or queen of England. In Tesky v. Canada (Attorney General), (Ont. Super. Ct., Aug. 9, 2013), an Ontario trial court dismissed a suit brought by a Catholic recent law graduate contending that Canada's Charter of Rights and Freedoms precludes Canada from consenting to legislation that discriminates on the basis of religion. The court held that the rules of succession cannot be challenged under the Charter of Rights and Freedoms because the succession rules themselves are in effect part of the Constitution.  It also concluded that plaintiff lacks standing to challenge the rules:

[Plaintiff] ... is a member of the Catholic faith but that appears to be his only interest in the issues raised in this application. He has no connection to the Royal Family. He raises a purely hypothetical issue which may never occur, namely a Roman Catholic Canadian in line for succession to the throne being passed over because of his or her religion. Should this ever occur a proper factual matrix would be available to the court to deal with a matter of this importance.

Yesterday's Law Times reported on the decision.

Suit Challenges South Carolina's Refusal To Recognize Same-Sex Marriages

Last week, a suit was filed in a South Carolina federal district court challenging the state's refusal to allow same-sex marriages and its refusal to recognize same-sex marriages legally performed in other states.  The complaint (full text) in Bradacs v. Haley, (D SC, filed 8/28/2013), contends that South Carolina's statutory law (SC Code 20-1-15) and its constitutional provision barring recognition of plaintiffs' marriage (Art. XVII, Sec. 15) violate the due process, equal protection and full faith and credit clauses of the Constitution.  The State reports on the lawsuit that was filed by Highway Patrol Trooper Katherine Bradacs and her spouse, Tracie Goodwin, who were married in the District of Columbia last year.

Times Focuses On Justice Kennedy's Role In Gay Rights Legal Victories

Today's New York Times carries a front-page story titled Surprising Friend of Gay Rights in a High Place, tracing Justice Anthony Kennedy's important role in legal victories for the gay rights movement. It says in part:

Justice Kennedy has emerged as the most important judicial champion of gay rights in the nation’s history, having written three landmark opinions on the subject, including this summer’s Windsor decision, which overturned a ban on federal benefits for married same-sex couples. Those rulings collectively represent a new chapter in the nation’s civil rights law, and they have cemented his legacy as a hero to the gay rights movement.

Recent Articles of Interest

From SSRN:

• Daniel Tagliarina, Power, Privilege, and Rights: How the Powerful and Powerless Create a Vernacular of Rights, (APSA 2013 Annual Meeting Paper).
• Daniel O. Conkle, Evolving Values, Animus, and Same-Sex Marriage, (Indiana Law Journal, Volume 89 (January 2014, Forthcoming)).
• James G. Dwyer, The Parental Choice Fallacy in Education Reform Debates, (Notre Dame Law Review, Vol. 87, No. 5, 2012).
• Dan E. Stigall, The Civil Codes of Libya and Syria: Hybridity, Durability, and Post-Revolution Viability in the Aftermath of the Arab Spring, (Emory International Law Review, Vol. 28, No. 1, 2014).
• Carolyn M. Evans & Anna Hood, Religious Autonomy and Labour Law: A Comparison of Jurisprudence of the United States and the European Court of Human Rights, (Oxford Journal of Law and Religion, Volume 1, Issue 1, 2012).
• Michael J. Perry, Interrogational Torture as a Human Rights Issue: A Brief Further Reflection on the Morality of Human Rights, (August 29, 2013).
• Zvi H. Triger, The Self-Defeating Nature of 'Modesty'-Based Gender Segregation, (Israel Studies, Vol. 18, No. 3, pp. 19-28 (2013)).

From SmartCILP:

• Jennifer L. Bursch & Cassie Cox (student), Qualified Immunity and the Application of Pearson: C.F. ex rel. Farnan v. Capistrano Unified School District, 5 Regent Journal of Law & Public Policy 85-109 (2013).
• James A. Davids, The Establishment Clause and Public Funding of Religious Colleges, 5 Regent Journal of Law & Public Policy 11-83 (2013).
• Patrick T. Gillen, A Winn for Originalism Puts Establishment Clause Reform Within Reach, 21 William & Mary Bill of Rights Journal 1107-1151 (2013).

Court Dismisses Suit By Hutterite Faction Against Opposing Attorneys

In Hutterville Hutterian Brethren v. Sveen, (D SD, Aug. 30, 2013), a South Dakota federal district court dismissed the latest in a long series of lawsuits and appeals surrounding a schism in the Hutterite colonies in the Dakotas and Minnesota. This suit for damages against the attorneys who represented the large majority of colonies that followed Rev. Joseph Wipf, as well as against the court-appointed receiver, alleged fraud, deceit, breach of fiduciary duty and RICO violations. It was filed by the small group of 5 colonies that remained loyal to Rev. Jacob Kleinsasser (who was accused of improper financial dealings). The court concluded:

... [A]s previous litigation has made clear, since voting memberships, directorships and officerships of Hutterville are inseparable from religious principles, these matters are shielded from judicial scrutiny under the First Amendment. ...[C]orporate governance cannot be decided without 'extensive inquiry into religious doctrine and beliefs' of the Hutterian faith."...

As individuals, the Waldner Plaintiffs as claimed members of Hutterville, the communal corporation, have no individual claims for money damages against the Wipf faction lawyers and court-appointed receiver. Having no individual claims is different from having no standing to bring separate claims for the same damages on behalf of Hutterville. The latter claims get dismissed for lack of standing. The former individual claims get dismissed for lack of any property right to make these types of property damages claims due to their individual renunciation of individual property.

(See prior related posting.)

Court Allows Another Plaintiff To Intervene In Schools' Contraceptive Coverage Mandate Challenge

In East Texas Baptist University v. Sebelius, (SD TX, Aug. 30, 2013), a Texas federal district court permitted the Pennsylvania-based Westminster Theological Seminary to intervene as a plaintiff in a challenge to the Affordable Care Act contraceptive coverage mandate that was brought by East Texas Baptist University and Houston Baptist University. The court held that venue was not an obstacle to otherwise permissive intervention.

Recent Prisoner Free Exercise Cases

In Green v. Beck, (4th Cir., Aug. 27, 2013), the 4th Circuit reversed a trial court's dismissal of an inmate's claim that his free exercise rights were violated when prison officials failed to recognize and issue him an ID card with his legal name which had been changed for religious reasons.

In Jehovah v. Clarke, 2013 U.S. Dist. LEXIS 119627 (ED VA, Aug. 20, 2013), a Virginia federal district court dismissed the RLUIPA and free exercise claims by an inmate challenging rules that bar him from taking communion using wine, and instead only allow juice. Plaintiff alleged that he is "Jewish, Israeli, Italian, Latino, Greek, and other things" and that his religion requires that he take communion with unleavened kosher bread, pure red grape wine and  pure  honey, olive oil, powdered sugar, white sugar, cinnamon, and water.

In Kramer v. Conway, 2013 U.S. Dist. LEXIS 119914 (ND GA, Aug. 23, 2013), a Georgia federal district court held that a Gwinnett County jail ban on hardback books in cells, limit on number of soft-cover books in cells and on the weight of packages received do not violate an Orthodox Jewish inmate's 1st Amendment free exercise rights. A number of accommodations had already been granted to plaintiff.  The court dismissed plaintiff's RUIPA challenge because he failed to provide evidence that the jail received federal funds.

In Hunter v. Zodwin, 2013 U.S. Dist. LEXIS 120361 (CD CA, Aug 22, 2013), a California federal district court dismissed as frivolous an inmate's habeas corpus petition claiming that he had received a pardon from the Supreme pardoning authority of the Moorish Science Temple of America.

In Barton v. Snaza, 2013 U.S. Dist. LEXIS 120422 (WD WA, Aug. 19, 2013), a Washington federal magistrate judge dismissed, with leave to amend, an inmate's complaint that two of his "personal religious (Asatru/Odinist) books" were confiscated by an unidentified person.

In Grigsby v. Gaetz, 2013 U.S. Dist. LEXIS 120529 (SD IL, Aug. 26, 2013), an Illinois federal district court permitted a Muslim inmate to proceed against two defendants on his complaint that his Ramadan tray was cancelled after 22 days of Ramadan in violation of his free exercise rights. Other claims were dismissed.

In Neri v. New Jersey State Parole Board, 2013 U.S. Dist. LEXIS 121444 (D NJ, Aug. 27, 2013), a New Jersey federal district court dismissed, with leave to amend, an inmate's complaint that he had no way to practice his religion or attend church services while at the Central Reception and Assignment Facility.

In Avery v. Virga, 2013 U.S. Dist. LEXIS 122121 (ED CA, Aug. 27, 2013), a California federal magistrate judge permitted a pagan inmate to proceed on various of his claims against prison authorities for failing to respond to his complaints that fellow inmates were repeatedly entering the secured designated-pagan area to destroy cultivated herbs and steal religious artifacts.

In Amaker v. Goord, 2013 U.S. Dist. LEXIS 122354 (WD NY, Aug. 27, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 122797, Aug. 8, 2013) and ordered expungement from a Nation of Islam inmate's record any of the disciplinary charges obtained in violation of his rights under RLUIPA and the First Amendment.

In White v. Smyers, 2013 U.S. Dist. LEXIS 122937 (ED CA, Aug. 27, 2013), a California federal magistrate judge held an inmate's complaint that authorities did not provide him a follow-up consultation with a second orthopedic surgeon who might perform surgery with a blood transfusion alternative (because of the inmate's religious beliefs) is a claim that should be pursued under the 8th Amendment and not as a free exercise claim.

In Antonetti v. Vegas, 2013 U.S. Dist. LEXIS 124601 (D NV, Aug. 30, 2013), a Nevada federal district court permitted an inmate to proceed with his complaint that he was denied kosher meals. Various other claims were dismissed.

Ginsburg Becomes First SCOTUS Justice To Officiate At Same-Sex Wedding

Justice Ruth Bader Ginsburg yesterday became the first U.S. Supreme Court Justice to officiate at a same-sex wedding ceremony.  NBC reports that Ginsburg officiated at the marriage of John F. Kennedy Center for the Performing Arts President Michael M. Kaiser, to economist John Roberts. Kaiser is a long-time friend of Ginsburg.  The wedding took place in the atrium of the Kennedy Center.

Texas Supreme Court Says Only "Neutral Principles" Approach Should Be Used In Church Property Cases

Last week, the Texas Supreme Court decided two cases involving a property ownership disputes between The Episcopal Church and break-away congregations.  In Masterson v. Diocese of Northwest Texas, (TX Sup. Ct. Aug. 30, 2013) (opinion of court; concurrence; dissent), the Texas Supreme Court held that Texas courts should use only the "neutral principles of law" approach in deciding church property cases. Since the lower court had used the deference to hierarchical authority approach, its decision was reversed.  The justices then split on how the neutral principles doctrine applied in the case, involving a parish's amendment of its articles of incorporation and bylaws to withdraw from TEC and the Diocese and revoke trusts in their favor on the corporation’s property. Two justices dissented from the majority's guidance on the application of the corporation law, while two concurring justices thought that it was premature for the court to decide those fact-intensive issue.

In The Episcopal Diocese of Fort Worth v. The Episcopal Church, (TX Sup. Ct., Aug. 30, 2013), (opinion of the court; dissent), the court similarly decided that the neutral principles approach must be used in deciding ownership of property of the break-away Fort Worth diocese. However only 4 justices agreed with the guidance in the court's opinion on application of neutral principles in the case. Four other justices dissenting argued that the court lacked jurisdiction to hear the case on direct appeal from the trial court.

Detroit Man Pleads Guilty To Stealing Father's Body In Hopes of His Resurrection

Last Monday in Detroit (MI), 48-year old Vincent Bright plead guilty to stealing the body of his 93-year old father from a Detroit cemetery. According to AP, Bright, who is religious, stored the body in his home freezer in hopes that his father would be resurrected.  Under the plea agreement, Bright, who could have been sentenced to 10 years in prison, will instead get probation, with credit for time served.

11th Circuit: Synagogue's Challenge To Historic Landmark Designation Is Ripe For Adjudication

In Temple B'nai Zion, Inc. v. City of Sunny Isles Beach, Florida, (11th Cir., Aug. 29, 2013), the U.S. 11th Circuit court of Appeals held that a suit by a synagogue challenging its designation as a historic landmark is ripe for adjudication. The court held that the synagogue's challenge of the designation as a violation of the state and federal constitutions, RLUIPA and the Florida Religious Freedom Restoration Act is sufficiently developed to obtain judicial resolution, even though the city has not yet applied any land use restrictions to the synagogue. The opinion describes at length the antagonism of the city's mayor, a former member of the synagogue, to the synagogue when it moved from embracing Conservative Judaism to becoming an Orthodox synagogue. The Miami Herald reports on the decision.

Non-Profits Continue To Refile Challenges To Contraceptive Coverage Mandate

Religious non-profits whose challenges to the Affordable Care Act contraceptive coverage mandate were dismissed on ripeness grounds before the final rules were promulgated continue to refile challenges attacking the final version of the rules on religious liberty grounds. Yesterday, Ave Maria University filed a new lawsuit.  The 16-count complaint (full text) in Ave Maria University v. Sebelius, (MD FL, filed 8/29/2013) challenges the mandate as violating the 1st and 14th Amendments, RFRA and the Administrative Procedure Act.  The Ft. Myers, Florida News-Press reports on the filing.

Meanwhile, earlier this month several Washington, DC Catholic schools and charities, along with the Washington Archdiocese filed a motion asking the D.C. Circuit Court of Appeals-- in the pending appeal of their earlier challenge-- to issue a preliminary injunction and remand the case to the district court for further proceedings on the merits.  The motion and supporting memorandum (full text) in Roman Catholic Archbishop of Washington v. Sebelius, DC Cir., filed 8/12/2013) is available online via Becket Fund' comprehensive HHS Information Central webpage.

Appeals Court Says Guardian For Medical Decisions of Amish Child Can Be Appointed Even If Parents Are Not Unfit

In In re Guardianship of S.H., (OH App., Aug. 27. 2013), an Ohio appellate court ruled that a probate court should have considered whether a guardian for the purposes of making medical decisions should have been appointed for a 10-year old Amish girl, even though the girl's parents have not been found to be unsuitable. An AP report summarizes the background:

An appeals court has sided with a hospital that wants to force a 10-year-old Amish girl to resume chemotherapy after her parents decided to stop the treatments....  The hospital believes Sarah's leukemia is very treatable but says she will die without chemotherapy.....

Andy Hershberger, the girl's father, said the family agreed to begin two years of treatments for Sarah last spring but stopped a second round of chemotherapy in June because it was making her extremely sick.... Sarah begged her parents to stop the chemotherapy and they agreed after a great deal of prayer.... The family, members of an insular Amish community, shuns many facets of modern life and is deeply religious....  They opted to consult with a wellness center and treat Sarah with natural medicines, such as herbs and vitamins, and see another doctor who is monitoring their daughter.... Hershberger said they have not ruled out returning to Akron Children's Hospital if Sarah's health worsens.