Religion Clause

Thursday, May 22, 2014

Church Gets TRO Permitting Use of After-School Space

In Prairie Valley Baptist Church v. Whitney Independent School District, (TX Dist. Ct., May 19, 2014), a Texas trial court granted a temporary restraining order requiring Whitney High School to provide a classroom for one hour a week after school for use by the Christian Worldview Ministry (CWM). According to the complaint (full text) in the case, the school permits several secular outside groups to use school facilities, but the school board denied CWM's request for a variety of reasons, one of which was that the activity was too sectarian. In granting the TRO, the court said that the school board's action substantially burdened plaintiff's free exercise of religion and deprived it of its fundamental right to freedom of speech, without furthering a compelling governmental interest or using the least restrictive means for doing so. A hearing on plaintiff's request for a temporary injunction is scheduled for May 30. Liberty Institute has links to all of the documents in the case. Christian News Network reports on the decision.

Son's Ashes Are Not Property Subject To Partition Between Parents

In Wilson v. Wilson, (FL App., May 21, 2014), a Florida state appellate court held that the cremated remains of 23-year old Scott Wilson, killed in a 2010 auto accident, are not "property" that is subject to partition between the young man's divorced parents. In the case, the parents could not agree on where the ashes should be buried, so the father asked to court to allow each parent to dispose of half the ashes as they wished. The mother objected on religious grounds.The appellate court, citing authority going back to Blackstone, agreed with the trial court that the ashes are not property. The case now goes back to the trial judge who has indicated that he will appoint a curator or other suitable person to decide how to dispose of the remains if the parents are unable to reach an agreement. The Broward-Palm Beach (FL) Sun Sentinel reports on the decision.

Court Issues Preliminary Injunction Against ACA Contraceptive Mandate Enforcement Against Two Religious Colleges

In Dordt College v. Sebelius, (ND IA, May 21, 2014), an Iowa federal district court granted a preliminary injunction to two religiously-oriented colleges-- Dordt College (Christian Reformed Church) and Cornerstone University (Baptist)-- to prevent enforcement of the Affordable Care Act contraceptive coverage mandate rules against them. This is another of the many cases in which religious non-profits-- objecting to covering contraceptives that they believe to be abortifacients-- claim that their free exercise rights under RFRA are violated even under the government's compromise in which coverage is provided directly from their insurers or third-party administrators. (See prior related posting.) The court indicated that it was planning to wait for the U.S. Supreme Court's Hobby Lobby decision to issue an opinion, but the mandate takes effect against Dordt College on June 1 and the 8th Circuit (which includes Iowa) has issued injunctions pending appeal in two challenges to the contraceptive coverage mandate by for-profit businesses. ADF issued a press release announcing the decision. Des Moines Register reports on the decision.

Christian Student Challenges University's Speech Code

A lawsuit was filed last week in an Oklahoma federal district court challenging the Expressive Activity Policy and Equal Opportunity Policy of Cameron University, a public university in Lawton, Oklahoma. The complaint (full text) in Harper v. McArthur, (WD OK, filed 5/14/2014), alleges that Daniel Harper, an evangelical Christian student at the University, was prevented from handing out a flyer criticizing the beliefs of a student organization, the World Mission Society. The university claims that Harper's flyer violates the university's prohibition on "offensive" and "discriminatory" speech. It allows literature to be handed out on campus only if it is from a student organization and has been approved for distribution by the University. The suit claims that the University speech code violates the 1st and 14th Amendments as well as the Oklahoma Religious Freedom Act. Alliance Defending Freedom announced the filing of the lawsuit.

Montana's Same-Sex Marriage Ban Challenged

According to Lambda Legal, as of last week only 3 states which do not allow same-sex marriage had no litigation challenging the ban pending. Now that has dropped to two. The ACLU of Montana announced yesterday the filing of a lawsuit on behalf of four same-sex couples seeking to marry in Montana or to have their out-of-state same-sex marriage recognized in Montana. The complaint (full text) in Rolando v. Fox, (D MT, filed 5/21/2014), asks the court to declare that Montana's constitutional and statutory bans on same-sex marriage violate the due process and equal protection clauses of the 14th Amendment. With the filing of this lawsuit, only North and South Dakota have marriage equality bans with no litigation pending.

Wednesday, May 21, 2014

5th Circuit Rejects Religion-Related Income Tax Gimmick

In Gunkle v. Commissioner, (5th Cir., May 20, 2014), the U.S. 5th Circuit Court of Appeals affirmed a Tax Court decision that rejected husband and wife taxpayers' attempted use of a "religion-related tax gimmick" to avoid income taxes. Initially the Gunkle's had created a 501(c)(3) non-profit, City of Refuge Christian Fellowship, Inc. They however heard a speaker at a church conference who claimed they could instead create a non-501(c)(3) "corporation sole," assign their income to it, deduct this as a charitable contribution without qualifying as a non-profit, and thus make their income non-taxable. They did this, and then signed a vow of poverty, assigned their residence to the corporation sole, and had the corporation sole agree to provide “all their needs as Apostles and as pastors of this church ministry." The 5th Circuit agreed with the Tax Court that payments of living expenses of the Gunkle's from the corporation sole's Pastoral Account were taxable income to the Gunckle's, and their assignment of income to the corporation sole did not qualify for a charitable deduction.

Court Rejects Atheists' Attack On Church Favoritism In Tax Code

In American Atheists, Inc. v. Shulman, (ED KY, May 19, 2014), a Kentucky federal district court dismissed claims by several atheist organizations that under the Internal Revenue Code and Regulations, churches and religious organizations are treated more favorably that other non-profits. The court identified five advantages enjoyed by churches, including fewer filings and tax advantages for clergy compensation. The court held that plaintiffs lack standing because they never applied for an exemption as a church or religious organization, pointing out that:

A review of case law establishes that the words “church,” “religious organization,” and “minister,” do not necessarily require a theistic or deity-centered meaning....

Thus, the Atheists’ assertion that they are subjected to unconstitutional discrimination and coercion due to their alleged inability to gain classification as religious organizations or churches under I.R.C. §501(c)(3) is mere speculation. At this point, the Atheists have no idea whether they could gain classification as a church or religious organization under I.R.C. §501(c)(3) because they have never sought such classification. Accordingly, the Atheists have not suffered a particularized injury which is fairly traceable to the actions of the Commissioner.

The court also held that plaintiffs had failed to state an equal protection claim. In addition, the court rejected a novel argument by plaintiffs that IRS action violates the No Religious Test Clause of Art. VI, cl. 3 of the Constitution. Plaintiffs had contended that modern-day 501(c)(3) organizations amount to "public trusts" as that term is used in Art. CI, cl. 3. (See prior related posting.) [Thanks to Steven H. Sholk for the lead.]

Court Strikes Down Pennsylvania Ban On Same-Sex Marriage

In Whitewood v. Wolf, (MD PA, May 20, 2014), a Pennsylvania federal district court held that the Pennsylvania's prohibition of same-sex marriage and its refusal to recognize same-sex marriages validly entered elsewhere violate the 14th Amendment's due process and equal protection clauses. The court concluded that "the fundamental right to marry is a personal right to be exercised by the individual" and rejected "Defendants’ contention that concepts of history and tradition dictate that same-sex marriage is excluded from the fundamental right to marry." In its lengthy equal protection analysis, the court concluded that classifications based on sexual orientation are quasi-suspect and applied intermediate scrutiny to find that Pennsylvania had not shown that the ban on same-sex marriage is substantially related to an important governmental interest.

The Washington Post reports that immediately after the court's ruling, same-sex couples hurried to obtain marriage licenses, fearing that Gov. Tom Corbett would appeal the ruling. County offices remained open late in Philadelphia to issue licenses, and the Pittsburgh office is taking marriage license applications online. Pennsylvania has a 3-day waiting period after issuance of a license before a person can marry, unless a court waives the waiting period. The Governor's office said it was studying the court's ruling. The Governor defended the state's ban in court after the state's attorney general refused to do so.

UPDATE: On May 21, Gov. Tom Corbett announced that the state will not appeal the court's decision.

Court Accepts Fair Use Defense In Copyright Claim By Prominent Christian Speaker

In Caner v. Autry, (WD VA, May 14, 2014), a Virginia federal district court dismissed copyright infringement claims brought by Ergum Caner, the former dean of Liberty Theological Seminary and former vice president of academic affairs at Arlington Baptist College. Caner was raised in Ohio. His father was a devout Muslim. During high school he became a born-again Christian. Caner spoke widely to military and church groups on how Muslims in the Middle East would view U.S. Marines from the perspective of jihad. He sued Jonathan Autry, formerly a student at Liberty University, over blog posts that linked to YouTube videos featuring Caner. The posts attempted to expose as untrue Caner's claims that he was raised as as Muslim in Turkey-- a claim he made in numerous speeches before church and military groups. The court accepted defendant's fair use defense, saying:

Plaintiff has filed this suit to suppress legitimate criticism of alleged contradictions in the narrative that supported his rise to prominence. The purpose and character of Defendant’s use weigh strongly in favor of finding fair use.

Correction [thanks to Commenter]: Caner is now President of Brewton-Parker College in Mt. Vernon, Georgia. The post has also been corrected to spell Caner's name correctly.

Tuesday, May 20, 2014

Two USCIRF Appointments Announced By White House

Last week, the White House announced two Presidential appointments to the U.S. Commission on International Religious Freedom. President Obama appointed Rev. Thomas J. Reese, S.J. and reappointed Dean Eric P. Schwartz. Reese is senior analyst for the National Catholic Reporter. God and Country blog has more on Reese.

Oklahoma Must Pay $304,000 In Plaintiffs' Attorneys Fees In Anti-Sharia Law Case

An Oklahoma federal district court last week (May 14) ordered members of the Oklahoma State Election Board to pay $304,000 in attorneys' fees and costs to plaintiffs in Awad v. Ziriax. (Full text of order.) In the case, plaintiffs successfully prevented the Election Board from certifying voter approval of an anti-Sharia state constitutional amendment. (See prior posting.) The Oklahoman reports on the order.

Utah Must Recognize Same-Sex Marriages Performed During 17-Days Before Stay; But This Order Temporarily Stayed Also

In Evans v. State of Utah, (D UT, May 19, 2014), a Utah federal district court granted a preliminary injunction requiring the state of Utah to recognize same-sex marriages solemnized under Utah marriage licenses between Dec. 20, 2013 when a federal district court struck down Utah's ban on same-sex marriages, and Jan. 6, 2014 when the U.S. Supreme Court granted a stay of that order, pending appeals. The court concluded:

Even though the Supreme Court’s Stay Order put Utah’s marriage bans back in place, to retroactively apply the bans to existing marriages, the State must demonstrate some state interest in divesting Plaintiffs of their already vested marriage rights. The State has failed to do so.

However the court granted a 21-day stay to allow the state to file an emergency motion with the 10th Circuit for review. Fox News reports that Utah's attorney general had not made an immediate determination of whether or not to pursue an appeal. The court's decision affects some 1200 marriages performed during the 17 days involved here.

Family of Muslim Man Killed By L.A. Police Wins In 9th Circuit, But Not On Free Exercise Claim

Yesterday, the U.S. 9th Circuit Court of Appeals issued two opinions-- one published and the other unpublished-- in the case of an autistic 21-year old Muslim man-- Mohammad Usman Chaudhry-- who was shot and killed by Los Angeles police. The coroner took custody of Chaudhry's body but did not notify his family of his death for 21 days. This prevented the family from burying Chaudhry in accordance with their religious beliefs. In the published opinion in Chaudhry v. City of Los Angeles (I), (9th Cir., May 19, 2014), the 9th Circuit gave a substantial victory to the family, reversing a number of the district court's rulings. Among other things, it reversed the dismissal of claims under state and federal civil rights laws, allowing the family to proceed on 4th Amendment grounds, and on substantive due process grounds for loss of companionship. It also held that California's bar to pre-death pain and suffering claims does not apply to suits based on 42 USC Sec. 1983, reinstating the jury's $1 million award. It alsoFr held that plaintiffs introduced enough evidence to raise a jury question on whether the coroner's office was negligent in it attempts to locate Chaudhry's family. In the unpublished opinion in Chaudhry v. City of Los Angeles (II), (9th Cir., May 19, 2014), the 9th Circuit rejected the family's free exercise of religion claim, holding that "the Los Angeles Coroner Department’s policies for locating decedents’ families are generally applied and neutral with respect to religion." It also rejected plaintiffs' equal protection claim, finding no evidence of intent to discriminate on the basis of religion or race.

Oregon's Same-Sex Marriage Ban Is Invalidated

In Geiger v. Kitzhaber, (D OR, May 19, 2014), an Oregon federal district court held that Oregon's constitutional and statutory provisions that limit civil marriage to "one man and one woman" discriminate on the basis of sexual orientation in violation of the 14th Amendment's equal protection clause. Judge McShane concluded his opinion with these observations:

I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage.... Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today' s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing.... Even today I am reminded of the legacy that we have bequeathed today' s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay."

.... It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.

.... With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.

.... I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.

ACLU of Oregon issued a press release announcing the decision. According to the Los Angeles Times, marriage licenses were issued to same-sex couples in Multnomah County, home to Portland, as soon as the decision was handed down. In February, the state attorney general said she would not defend the ban in court.

Monday, May 19, 2014

Minor Historical Error In Kagan's Town of Greece Dissent Has Been Corrected

Yair Rosenberg writing today at Tablet Magazine notes that the previously reported minor error in American religious history that had crept into Supreme Court Justice Elena Kagan's dissent in the Town of Greece case earlier this month has now been corrected. The version of the opinion now on the Supreme Court's website correctly refers to Newport, Rhode Island as "one of the first communities of American Jews" rather than as "the first".

DC Transit System Carries Competing Controversial Ads Sparked By Middle East Rivalries

The Washington Post reported last week on the latest round of competing advertising on the sides of Washington, DC's Metro buses. In mid-March to mid-April, the Illinois-based group American Muslims for Palestine bought advertising space on the sides of 20 buses for an a banner ad featuring a drawing of Uncle Sam waving an Israeli flag, and reading: "We're Sweating April 15 So Israelis Don't Have To! Stop US Aid To Israel's Occupation!" In response to those ads which it described as "Jew-hating," the pro-Israel American Freedom Defense Initiative has purchased a month's worth of ads on the side of 20 buses beginning last Monday. Those ads feature a photo of Adolph Hitler with the mufti of Jerusalem who supported him, and read: "Islamic Jew-Hatred: It's In The Quran.Two-Thirds Of All US Aid Goes To Islamic Countries. Stop Racism. End All Aid To Islamic Countries."

Sunday, May 18, 2014

Utah Supreme Court Stays Orders On Birth Certificates For Adoptees of Same-Sex Parents

According to AP and a release from the Utah Attorney General's Office, the Utah Supreme Court on Friday night issued a stay of several state trial judges' orders that required the Utah Department of Health to issue birth certificates in same-sex parent adoptions. The stay came in response to a Petition for Emergency Relief filed by the Attorney General's office seeking clarification as to whether the trial court orders violate other provisions of Utah law that prohibit the state from recognizing same-sex marriages. Those provisions remain in effect while federal constitutional challenge to the ban on same-sex marriage is being appealed. (See prior posting.) Friday's state Supreme Court stay remains in effect until the issue of recognizing same-sex parent adoptions is resolved by the state Supreme Court.

Recent Prisoner Free Exercise Cases

In Malipurathu v. Johnson, 2014 U.S. Dist. LEXIS 64891 (ND OK, May 12, 2014), an Oklahoma federal district court permitted a Sikh inmate to proceed with his complaint that he was denied a Halal diet unless he changed his religious choice to Islam, and that he was not consistently being served halal meals that met his religious requirements even though he was put on a halal diet.

In Rodriguez v. Hubbard, 2014 U.S. Dist. LEXIS 65165 (ED CA, May 9, 2014), a California federal magistrate judge recommended allowing a Native American inmate who was recognized as a sacred "pipe holder" to move ahead with his 1st, 8th and 14th Amendment claims growing out of the confiscation of religious items, an attack on him by other Native American inmates for not safeguarding the sacred pipe, and other infringements on his religious practices.

In Patterson v. Cate, 2014 U.S. Dist. LEXIS 65182 (ED CA, May 8, 2014), a California federal magistrate judge dismissed with leave to amend a Mulim inmate's complaint that he was not receiving three Halal meal per day.

In Maier v. Pall, 2014 U.S. Dist. LEXIS 65270 (MD PA, May 13, 2014), a Pennsylvania federal district court dismissed the complaint of an Odinist inmate who was refused an exemption from the grooming policy as to hair and beard length, and was not allowed to possess runestones and a Thor's hammer or observe holy days outside.

In Aron v. Green, 2014 U.S. Dist. LEXIS 65287 (ND TX, May 12, 2014), a Texas federal district court dismissed a Muslim inmate's complaint that a corrections officer told him that he should not be a Muslim, and that destruction of his personal property and other harassment was retaliation because of his religion.

In Hayes v. Boone, 2014 U.S. Dist. LEXIS 66420 (ED VA, May 14, 2014), a Virginia federal district court dismissed an inmate's complaint that his Common Fare religious diet was suspended temporarily when the prison experienced an influx of inmates from elsewhere evacuated because of Hurricane Irene.

Saturday, May 17, 2014

4th Circuit Vacates and Remands Challenge To Elementary School Graduation In Christian Chapel

In American Humanist Association v. Greenville County School District, (4th Cir., May 16, 2014), the 4th Circuit Court of Appeals vacated the district court's denial of a preliminary injunction in a suit challenging the holding of graduation ceremonies for a South Carolina elementary school at the chapel of a Christian college and including prayer as part of the official graduation ceremony. In his ruling from the bench, the district court judge had said that plaintiffs "were making a mountain out of a mole hill." (See prior posting.) The 4th Circuit concluded:

In denying Plaintiffs’ motion for a preliminary injunction, the district court provided no analysis of the law and made no attempt to apply the four factors [to be considered in granting a preliminary injunction] ... to the facts as alleged in the complaint. Thus, we are constrained to remand the case for reconsideration of the issue.

The 4th Circuit similarly vacated and remanded the district court's denial of plaintiffs' unopposed motion to proceed using pseudonyms. The court also agreed with plaintiffs that on remand the case should be reassigned to a different district court judge. AP reports on the decision.