Catholic, Orthodox Jewish Spokesmen React To New York's Marriage Equality Law

New York last week enacted legislation permitting same-sex marriage despite particularly strong opposition from some religious groups, including Catholic and Orthodox Jewish organizations.  (See prior posting).  Here are statements that those two groups have now issued in reaction to the new law:

Bishop Nicholas DiMarzio, Catholic Bishop of Brooklyn, said in a press release:

Today, Governor Andrew Cuomo and the state legislature have deconstructed the single most important institution in human history. Republicans and Democrats alike succumbed to powerful political elites and have passed legislation that will undermine our families and as a consequence, our society.....

In light of these disturbing developments and in protest for this decision, I have asked all Catholic schools to refuse any distinction or honors bestowed upon them this year by the governor or any member of the legislature who voted to support this legislation. Furthermore, I have asked all pastors and principals to not invite any state legislator to speak or be present at any parish or school celebration.

The above request is intended as a protest of the corrupt political process in New York State. More than half of all New Yorkers oppose this legislation. Yet, the governor and the state legislature have demonized people of faith, whether they be Muslims, Jews, or Christians, and identified them as bigots and prejudiced, and voted in favor of same-sex “marriage.” It is mystifying that this bill would be passed on the last day of an extended session under the cover of darkness.

However a statement signed by all the bishops of New York state was considerably milder in tone. It said in part:

The passage by the Legislature of a bill to alter radically and forever humanity’s historic understanding of marriage leaves us deeply disappointed and troubled.

We strongly uphold the Catholic Church’s clear teaching that we always treat our homosexual brothers and sisters with respect, dignity and love. But we just as strongly affirm that marriage is the joining of one man and one woman in a lifelong, loving union that is open to children, ordered for the good of those children and the spouses themselves.

The Union of Orthodox Jewish Congregations of America issued a statement saying:

Consistent with our tradition and Jewish religious principles, we oppose the redefinition of marriage and the state sanction of same sex marriages. We opposed this legislation and believe it is a mistake to enact it in New York. We do note however that the legislation, as enacted, includes robust protections of religious liberties for organizations including synagogues, schools and social service agencies. For that at least, we are grateful. Just as we, in a democratic, pluralistic society do not seek to impose our religious beliefs on others, same sex marriage, now the law in New York, must not infringe on anyone's religious liberties.

Abercrombie Sued By Muslim Former Employee and EEOC Over Wearing Hijab

According to AP, a religious discrimination lawsuit was filed in federal district court in San Francisco yesterday by a 20-year old Muslim woman who says she was fired as a stockroom worker by Abercrombie and Fitch after she insisted on wearing her hijab (Muslim head scarf).  Hani Khan says that when when she was first hired at the company's San Mateo store, the manager said she could wear the hijab so long as it was in company colors. However, four months later a district manager and human resource manager asked her to remove it while working. When she refused, she was suspended and then fired.  This is the latest in a number of similar lawsuits that have challenged Abercrombie and Fitch's "look policy" which critics say favors young, white, athletic looking people. The EEOC also announced yesterday that it has filed suit over Khan's treatment.

Supreme Court Denies Review in RLUIPA Zoning Case

The Supreme Court today denied certiorari in Miles Christi Religious Order v. Northville, MI, (Docket No. 10-1317, cert. denied 6/27/2011). (Order List.) In the case, the 6th Circuit Court of Appeals in a 2-1 decision held that First Amendment and RLUIPA challenges by a Catholic Religious Order to the zoning ordinances of Northville, Michigan should be dismissed for lack of ripeness. (See prior posting.)

New York's Electronic Sales Tax Filing Creates Problem For Amish

The Watertown (NY) Times reported yesterday on the problems encountered by the Swartzentruber Amish in New York state since the Department of Taxation and Finance has required that sales taxes be filed electronically rather than by mail.  These Amish furniture makers and shop keepers do not have computers.  They do not have social security cards or telephones either.  Some have received letters warning them of a $50 penalty for each return not filed electronically.  A spokesman for the tax department says that if someone calls them and tells them they do not have computer access, the department will allow the person to continue to file by mail.  However many of the Amish do not use phones. State Sen. Patricia Ritchie has intervened with the tax department on behalf of at least one member of the Amish community, and the department is allowing him to continue filing by mail. [Thanks to Steven H. Sholk for the lead.]

FBI Says Mennonites In Nicaragua Aiding Mother To Avoid Custody Change To Former Lesbian Partner

AP today reports on the international kidnapping investigation by the FBI that is looking for Lisa Miller and her daughter who fled the country after her former same-sex partner, Janet Jenkins, was awarded custody of of the girl.  In 2003, Miller broke up with Jenkins, renounced homosexuality and became a Baptist, and then a Mennonite.  Miller, the birth mother, was originally granted custody, but after she refused to comply with visitation schedules for Jenkins, courts in both Virginia and Vermont granted custody to Jenkins. But Miller had already fled to Central America.  In April, the FBI arrested a Nicaraguan missionary, Timo Miller, and charged him with abetting an international kidnapping by arranging a flight for Lisa Miller and her daughter from Canada to Nicaragua. More than $30,000 has been raised for a Timo Miller defense fund.  Apparently the Mennonite community in Nicaragua is helping hide Lisa Miller and her daughter.  At one point, it appears she stayed at a beach house in Nicaragua owned by the father of an administrative assistant at Jerry Falwell's Liberty University Law School. Liberty Counsel represented Miller in her Vermont court proceedings.  Pablo Yoder, a Mennonite pastor in Nicaragua, said:

[T]he Nicaraguan Brotherhood felt it right and good to help Lisa not only free herself from the so called civil marriage and lesbian lifestyle, but especially to protect her nine year old daughter from being abducted and handed over to an active lesbian and a whole-hearted activist.

Iraqi Kurdish Parliament Outlaws Female Genital Mutilation

Hudson New York reports that last week Iraqi Kurdistan's Parliament passed a law outlawing female genital mutilation. The move came after a survey by a German-Iraqi non-governmental organization, WADI, revealed that more than 60% of the women and girls in Iraqi Kurdistan have been subjected to genital mutilation. The practice is limited to Sunni Kurds, but appears to have little support in Islamic law.

Recent Articles of Interest

From SSRN:

• Richard Moon, The Supreme Court of Canada’s Attempt to Reconcile Freedom of Religion and Sexual Orientation Equality in the Public Schools, (Faith, Politics and Sexual Diversity, D. Rayside, C. Wilcox, eds., UBC Press, 2011).
• Richard Moon, Accommodation Without Compromise Comment on Alberta v. Hutterian Brethren of Wilson Colony, (Supreme Court Law Review, Vol. 51, pp. 95-130, 2010).
• Menachen Mautner, Three Approaches to Law and Culture, (Cornell Law Review, Vol. 96, p. 839, 2011).
• Brett Freudenberg and Dr. Mahmood Nathie, The Constitution and Islam: Are Tax Reforms Possible to Facilitate Islamic Finance?, (Revenue Law Journal, Vol. 20, No. 1, pp. 1-36, 2011).
• James Cleith Phillips, 'All of the Blood and Treasure': The Founders on Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez, (Mississippi College Law Review, Vol. 30, No. 1, 2011).
• Daniel McGirr, The Constitutionality and Policy Merits of Religiously Motivated Statutes, (April 19, 2011).
• Richard Moon, The Regulation of Hate Speech Under the Canadian Human Rights Act, (Canadian Diversity, Vol. 83, pp. 28-32, 2010).
• Bryan H. Wildenthal, A Personal Perspective on Marriage, Time, Space, Uncertainty, and the Law, (Michigan State Law Review, Vol. 2011).
• Rebecca Probert, 'From Fornicators to Family: Cohabitants and the Law, 1600-2010', (June 22, 2011).
• Aaron Schwabach, Of Charities and Clawbacks: The European Union Proposal on Successions and Wills as a Threat to Charitable Giving, (Columbia Journal of European Law, Vol. 17, 2011).

From SmartCILP:

• Jeroen Temperman, State Neutrality in Public School Education: An Analysis of the Interplay Between the Neutrality Principle, the Right to Adequate Education, Children's Right to Freedom of Religion or Belief, Parental Liberties, and the Position of Teachers, [Abstract], 32 Human Rights Quarterly 865-897 (2010).

Court Requires Organization That Claimed Religious Status To Comply With FTC Order

In United States v. Daniel Chapter One, (D DC, June 22, 2011), the federal district court for the District of Columbia granted a preliminary injunction enjoining an organization from continuing to market dietary supplements without complying with a cease and desist order issued by the Federal Trade Commission. The supplements were promoted as curing or preventing cancer and ameliorating the effects of radiation and chemotherapy.  Defendant had claimed that the FTC order violated its free exercise of religion because it is a religious corporation sole, and that the order violated the establishment clause because it was based on "scientism".  However the D.C. Circuit rejected that claim and the U.S. Supreme Court denied certiorari.

Recent Prisoner Free Exercise Cases

In Elfand v. Sonoma County Men's Adult Detention Facility, 2011 U.S. Dist. LEXIS 63787 (ND CA, June 13, 2011), a California federal district court dismissed, but granted a motion to file an amended complaint, in a suit in which a Jewish inmate claimed that he was required to wait for over a month before being placed on the prison's kosher meal plan.

In Jones v. Lorady, 2011 U.S. Dist. LEXIS 64672 (MD PA, June 17, 2011), a Pennsylvania federal district court dismissed for failure to exhaust administrative remedies an inmate's claim that he was transferred from a prison in Pennsylvania to one in Virginia which refused to honor his religious exemption that allowed him to wear a beard.

In Palmer v. Rustin, 2011 U.S. Dist. LEXIS 65678 (WD PA, June 21, 2011), a Pennsylvania federal district court dismissed with leave to amend a Muslim prisoners claim that his free exercise rights were violated when on two occasions he was denied the right to attend religious services, apparently because of identification issues.

In Dobbins v. Cummins, 2011 U.S. Dist. LEXIS 65425 (MD AL, June 20, 2011), an Alabma federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 65724, May 23, 2011) and dismissed an inmate's complaint that his rights were violated by prison policy that bars inmates assigned to the prison health care unit from attending church services. Prison authorities said the purpose of the ban was to protect the health of all inmates.

In Kohn v. Coleman, 2011 U.S. Dist. LEXIS 63960 (D SC, June 6, 2011), a South Carolina federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 66009, May 4, 2011) and dismissed an inmate's complaint that while his dorm was on cell restriction for two days, he was not allowed to attend religious services. Plaintiff had asked for $30,000 in damages.

In Muhammad v. Sisto, 2011 U.S. Dist. LEXIS 66445 (ED CA, June 21, 2011), an inmate sued claiming that prison officials prevented him from fasting for Ramadan.  A California federal magistrate judge recommended that plaintiff's in form pauperis status be revoked because he had filed nearly a dozen previous actions that had been dismissed as frivolous or for failure to state a claim. Under the recommendation, unless plaintiff pays the filing fee, the complaint in the current case will be dismissed.

In Porter v. Beard, 2011 U.S. Dist. LEXIS 66371 (WD PA, June 22, 2011), a Pennsylvania federal district court accepted a magistrate's recommendations (2011 U.S. Dist. LEXIS 66374, May 19, 2011) and permitted an inmate to move ahead with a claim that during a cell search a prison guard improperly handled his Native American Medicine Bag and threw its contents into a garbage bin.

In Frohwerk v. Armstrong, 2011 U.S. Dist. LEXIS 67504 (ND IN, June 20, 2011), an Indiana federal district court dismissed an inmate's complaint that on one occasion he was woken up by a correctional officer who told him: "Get up and go to church if you want to eat, because there ain't no lunch today! . . . Go get your cookies!" The court said that this type of isolated incident does not amount to a 1st Amendment violation.

Court Upholds Denial of Tax Exemption to Meditation Healing Center

In Self Realization Meditation Healing Centre v. Charter Township of Bath, (MI App., June 21, 2011), a Michigan appellate court agreed with the state's Tax Tribunal that a Self Realization Healing Centre is not entitled to either a charitable or a religious tax exemption. It concluded that the organization was not "organized chiefly for charity," finding that its organizational documents reflect "an all-encompassing purpose to help people with life in general."  It also concluded that the property failed to qualify for an exemption that was available for premises "used predominantly for religious services or for the teaching of religious truths and belief." The court said:

There are several purposes and statements in Self Realization’s documentation. These include meditation, stress relief, using energy in a beneficial way, enjoying quiet time, and walking through the woods. While Self Realization does engage in teaching of some beliefs, it is at least equally engaged in teaching practices (yoga and meditation).

Autopsy Without Consent Did Not Violate Free Exercise Protections

Thompson v. Robert Wood Johnson University Hospital, 2011 U.S. Dist. LEXIS 63980 (D NJ, June 15, 2011),  is a lawsuit against two doctors, a hospital, and state medical school (the doctors' employer) for their role that resulted in  an autopsy being performed on a 24-week severely deformed fetus without consent of the mother whose pregnancy was terminated, or her husband.  The parents were asked to participate in a research program on skeletal dysplasia, but agreed only to x-rays and not to the autopsy that was performed. Among the claims asserted, the mother contended that her free exercise rights were violated because the autopsy disrespected her Jewish religious beliefs and obstructed her ability to practice her religion.  A New Jersey federal district court held first that the doctors involved, though employed by a public entity, were not acting under color of state law. The court went on to say the even assuming the doctors were acting under color of law, there is no showing that their motivation was to infringe on plaintiff's religious sensibilities.  According to the court, the Supreme Court has made it clear that "the motivation behind a challenged government action is key to determining whether a constitutional violation has occurred."

Vatican-Montenegro Sign Agreement On Church-State Relations

AP reports that yesterday the Vatican and the nation of Montenegro signed an agreement guaranteeing the legal status in Montenegro of the Catholic Church and its institutions.  The agreement covers the operation of seminaries, and Catholic spiritual assistance in the armed forces, prisons and hospitals. This is the first agreement between the Vatican and a predominately Orthodox country that covers church-state relations.

New Blog Focuses on Abuse By Charity Regulators

A new blog, Charity Regulator Watch, has joined the blogosphere.  As reported by the Washington Examiner, the new blog's creator, Mark Fitzgibbons, comes at this new enterprise with a point of view.  He believes that state regulators charged with overseeing charities and non-profits often overreach and misuse their power. Explaining his mission, Fitzgibbons says: "charitable solicitation laws divert more than $500 million in donor money each year from its intended purposes." A link to Charity Regulator Watch has been added to the Religion Clause sidebar.

New York Legalizes Same-Sex Marriage With Lengthy Exemptions For Religious Organizations

Late last night, the New York state Senate voted 33-29 in favor of A8354, the bill passed earlier this month by the state Assembly legalizing same-sex marriage.  Then the Assembly and Senate both passed A8520 which expanded the protections for churches, religious organizations and clergy who object to same-sex marriage.   Gov. Cuomo immediately signed both bills into law. The New York Times has extensive coverage of the politics behind the governor's successful campaign to obtain passage of the legislation, reporting:

The story of how same-sex marriage became legal in New York is about shifting public sentiment and individual lawmakers moved by emotional appeals from gay couples who wish to be wed.

But, behind the scenes, it was really about a Republican Party reckoning with a profoundly changing power dynamic, where Wall Street donors and gay-rights advocates demonstrated more might and muscle than a Roman Catholic hierarchy and an ineffective opposition.

And it was about a Democratic governor, himself a Catholic, who used the force of his personality and relentlessly strategic mind to persuade conflicted lawmakers to take a historic leap.

The expanded religious protections were an important factor in obtaining final passage.  The protections apply to several categories of organizations and their employees: (1) religious entities, such as churches; (2) "benevolent orders", such as the Knights of Columbus; (3) any non-profit corporation operated, supervised or controlled by a religious corporation; (4) any employee of these organizations.

For these groups, notwithstanding any state or local law or regulation, they are not required to provide accommodations, facilities, goods or services for any marriage ceremony. Nor is any member of the clergy required to perform a same-sex marriage ceremony.  Refusal to provide facilities or perform a ceremony will not give rise to any civil claim or to any governmental action discriminating against the groups or clergy or imposing a penalty or withholding benefits.  The new law also assures religious organizations that provisions in New York's anti-discrimination law that allow them to favor members of their own religion in employment, sales, rental of housing, admission or other preferences and to take other action to promote their religious principles, are still in effect.

The new law does not create exemptions for individuals with religious objections who own private businesses that offer their facilities for weddings to refuse to make them available for same-sex ceremonies.

Amended Gay Marriage Bill With Expanded Religious Exemptions Introduced In New York

The Wall Street Journal reports that Gov. Andrew Cuomo and lawmakers introduced an amended version of the same-sex marriage bill (full text)  into the state legislature today. The new version expands protections for religious organizations and clergy that object to same-sex marriage. Backers hope this will be enough to convince at least one more member of the state Senate to vote in favor of the bill and thereby secure its passage.  The prior version of the bill, already passed by the state Assembly, had somewhat less comprehensive exemptions in it, and Senate Republicans had been seeking this expansion. (See prior posting.)

Israel's High Court Recognizes Civil Marriage By Proxy

Israel's High Court of Justice this week recognized a new route for Israeli's to enter a civil marriage.  Generally marriages in Israel must be performed by religious authorities, though individuals may travel abroad for a civil marriage which will then be recognized in Israel.  For Jewish Israelis, this has meant that the Orthodox rabbinate controls marriage in the country.  Haaretz reports that the High Court has now approved the marriages of 14 couples who were married by proxy in El Salvador without ever leaving Israel. Most of the marriages involved one partner who was a foreign worker or tourist who were concerned that they could not obtain re-entry if they left the country.  The Salvadoran procedure requires elaborate documentation and the hiring of two proxies to stand-in for the parties in El Salvador and two witnesses. Up to now, the only non-religious alternative available inside Israel has been civil union where both parties to the marriage have no religious affiliation. (See prior posting.)

Court Says Abused Plaintiffs Can Seek Punitive Damages Against Jesuit Order

In Doe v. Chicago Province of the Society of Jesus, (Cook Co. IL Cir. Ct., June 22, 2011), an Illinois state trial court judge has allowed three plaintiffs who claim they were sexually abused by now-defrocked Jesuit priest Donald McGuire to file an amended complaint seeking punitive damages against the priest's Jesuit order.  The court reviewed The court wrote:

There can be no question that a religious organization can be found liable for punitive damages, if it has recklessly permitted an unfit employee or agent to sexually abuse minors with knowledge of his propensity to do so....

The court accepts that the Jesuits are a religious order with a rich history of service to the faithful.... However, the leaders of the Chicago Province fell far short of this ideal.  Plaintiffs have amply demonstrated a reasonable likelihood of proving facts at trial which would support an award of punitive damages.

SF Weekly reports on the decision.

Minister of Cannabis Church Sentenced To Prison On Drug Charges

In Franklin County, Pennsylvania on Wednesday, Robert Henry, a member of of the Hawaii Cannabis Ministry, was sentenced from 6 1/2 to 13 years in prison for directing marijuana growing from jail in 2010 when he was serving another sentence for drug violations. This time Henry was also fined $50,500 and ordered to go through a drug treatment program. Chambersburg (PA) Public Opinion reports that Henry claims he is being persecuted because of his religious beliefs.

Oregon Federal Judge Confirmed Over Objections To His Church-State Views

On Tuesday, the U.S. Senate, by a vote of 64-35, confirmed the nomination of Michael Simon as federal district judge for the district of Oregon. As reported by the Oregonian, Simon was originally nominated in 2010 and was approved by the Senate Judiciary Committee. However the full Senate never voted on the nomination. President Obama renominated Simon this year and he was again approved by the Judiciary Committee by a vote of 14-4. The opposing votes were all from Republicans.  Simon is a cum laude graduate of the Harvard Law School, worked for the Justice Department and then joined a Portland law firm. However Republican opposition to his nomination stemmed from Simon's long association with the ACLU.  Here, from the debate in the Congressional Record, are excerpts from Senator Charles Grassley's speech on the Senate floor that focused in large part on Simon's church-state views:

Throughout his career, Mr. Simon has advocated on behalf of the American Civil Liberties Union of Oregon as a pro bono attorney. But his involvement in the ACLU goes beyond mere representation of a client. Mr. Simon has been a member of the ACLU of Oregon since 1986. He is an active member of their Lawyers’ Committee and served as a board member from 1997 to the year 2004, the vice president for legislation 1997 to 1998, and vice president for litigation from 2000 to 2004....

The ACLU does hold very liberal views, and Mr. Simon has been the voice for those views. For example, Mr. Simon wrote a letter to the Tillamook County Courthouse in Oregon expressing the ACLU’s concern with religious Christmas signs and decorations. The letter encouraged the county to repeal its resolution that deemed the county a ‘‘Merry Christmas County.’’

On issue after issue, Mr. Simon refused to disassociate himself from legal and policy positions held by the ACLU,that are far outside the mainstream. This includes the legalization of drugs, the unconstitutionality of the death penalty, the unconstitutionality of the Pledge of Allegiance, the ACLU’s opposition to tax exemptions for churches and extreme views regarding separation of church and state.....

Mr. Simon appears to demand an absolute wall of separation between church and state, as opposed to the U.S. Government promoting a specific religion. He has argued against religious displays on public land, against religious visitors to schools, against a coach praying with his football players. I assume that means even if you’re praying that they don’t get injured. Mr. Simon has argued that it is unconstitutional under the establishment clause to teach intelligent design in public school science classes.

British Schools Stop Teaching Religious Education As They Emphasize Ebacc Subjects

The Guardian reports today that a poll by the National Association of Religious Education Teachers shows that 25% of state secondary schools and 31% of state elementary schools in Britain are no longer teaching religious education, even though the law requires them to do so.  Offerings religious education have dropped off since schools have begun to be graded on student achievement in five English Baccalaureate (Ebacc) subjects: English; math; science; history or geography; and foreign language. (See prior related posting.)

Geert Wilders Acquitted of Defaming and Inciting Hatred Against Muslims

Dutch right-wing politician Geert Wilders was acquitted by an Amsterdam court yesterday of charges of group defamation against Muslims, and incitement to hatred and discrimination against Muslims based on their religion and race. Radio Netherlands reports on the verdict. At issue were statements made by Wilders on websites, Internet forums, Dutch newspapers and his film Fitna. (See prior posting.) An English translation of the court's press release on the case presents more details on the verdict.  The court held that criticism of a religion is permissible.  It went on to conclude that certain statements that might be seen as incitement to discrimination nevertheless are allowed "because of the context of the public debate" in which Wilders spoke "as a politician."  At the time the statements were made, problems of a multicultural society and immigration were being discussed.  Wilders statements "raised public problems" and "do not cross criminal legal boundaries."  Prosecutors had previously attempted to dismiss the charges on free speech grounds, but an appeals court ordered the prosecution to move ahead. (See prior posting.)  Now lawyers for those who filed complaints against Wilders are considering taking the case to the United Nations Human Rights Council or to the European Court.

In an op-ed in today's Wall Street Journal, Wilders reacts to his acquittal, saying in part:

Yesterday was a beautiful day for freedom of speech in the Netherlands. An Amsterdam court acquitted me of all charges of hate speech after a legal ordeal that lasted almost two years. The Dutch people learned that political debate has not been stifled in their country. They learned they are still allowed to speak critically about Islam, and that resistance against Islamization is not a crime.

DC Circuit Upholds Ban On Anti-Abortion Chalking Protest In Front of White House

In Mahoney v. Doe, (DC Cir., June 21, 2011), a 3-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld the constitutionality of D.C.'s Defacement Statute that, among other things, prohibits writing or drawing on public property without the consent of the person in charge of the property.  Plaintiffs were denied permission to carry out an anti-abortion sidewalk chalk demonstration in front of the White House.  The court rejected both overbreadth and "as applied" free expression challenges.  Focusing on the "as applied" challenge, the court said :

[T]he Defacement Statute is content neutral, and substantially justified by the District’s esthetic interest in combating ...the defacement of public property. Because the District did not curtail Mahoney’s means of expression altogether, and allowed him to protest in front of the White House in other ways, the Defacement Statute is not unconstitutional as applied.

The court also rejected plaintiffs' claim that enforcing the statute against them violates the Religious Freedom Restoration Act because their protest was religiously motivated.  The court quoted prior precednt that held:

to make religious motivation the critical focus is . . . to read out of RFRA the condition that only substantial burdens on theexercise of religion trigger the compelling interest requirement.

Judge Kavanaugh also wrote a concurring opinion, declaring: "No one has a First Amendment right to
deface government property." (See prior related posting.)

French Fashion Designer On Trial For Anti-Semitic Tirade

AP reported yesterday that the trial of former Dior fashion designer John Galliano began yesterday. Galliano is charged with hurling anti-Semitic and racist remarks at strangers on two different occasions in a Paris cafe. French prosecutors are asking that Galliano be fined the equivalent of $14,400(US). Galliano says he remembers nothing of what he allegedly said. He was in the throes of serious alcohol and drug addiction at the time. (See prior related posting.)

Canadian Soccer Organization Says 15-Year Old Referee Cannot Wear Hijab

In Canada, Quebec's Soccer Federation has told a 15-year old Muslim girl that she cannot continue her summer job as a soccer game referee wearing her hijab (head scarf). Canadian Press reported yesterday that teenager Sarah Benkirane hopes to convince the Canadian Soccer Federation to put pressure on its  Quebec affiliate. The Quebec Federation says it is merely applying FIFA rules that bar officials from displaying personal, religious or commercial messages.

Lawsuit Challenges San Francisco Circumcision Ballot Measure

A lawsuit was filed in state court in California yesterday challenging the San Francisco ballot measure that seeks to ban circumcision.  The Los Angeles Jewish Journal reports that, while much attention has been directed to religious freedom concerns, this suit is based on a California Business and Professions Code, Sec. 460 which provides:

No city, county, or city and county shall prohibit a healing arts professional licensed with the state under Division 2 (commencing with Section 500) from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee.

Plaintiffs in the lawsuit include two Jewish community organizations, three Jewish families, one Muslim family and two doctors.  They allege that it would be misleading to include the proposal on the ballot if the city lacks the power to enact it.

UPDATE: Here is the full text of the complaint in Jewish Community Relations Council of San Francisco v. Arntz, (CA Super. Ct., filed 6/22/2011).

Atheists Complain Over Renaming of Brooklyn Street As "Seven In Heaven"

Monday's Brooklyn Paper reports that American Atheists has complained over the renaming of a portion of a Brooklyn, New York street to honor seven firefighters who were among those killed at the Twin Towers on 9-11.  The new street sign in honor of the men reads "Seven In Heaven Way." American Atheist spokesman David Silverman said: "It’s improper for the city to endorse the view that heaven exists. It links Christianity and heroism." Community Board 6 member Tom Miskel responded: "Almost every religion has some form of heaven. It’s not just specific to Christianity."

Australian Judge Acquits Woman Who Could Not Be Identified Because She Wore Burqa

A new debate over women wearing the burqa has broken out in Australia after a district court judge on Monday reversed a magistrate's conviction of a woman for filing a false police report.  Carnita Matthew was charged after a police video proved false a claim that police tried to tear her burqa off her face when she was stopped for  a random traffic breath test and then cited for improper display of her license plates. The judge reversed the conviction because the woman who filed the police report was wearing a burqa at the time and the court concluded that it could not be proved beyond a reasonable doubt that the woman was Ms. Matthew. He was also unconvinced that the woman filing the report knew it was false.  Australia's Telegraph, reporting on the case, says that Matthew has a long history of traffic tickets and non-payment of traffic fines. The government is considering a new requirement that anyone giving a report to police furnish a fingerprint along with their signature.  The government is waiting for the judge's full written opinion before deciding whether to appeal.

Groups Urge Obama To End Religious Hiring By Faith-Based Government Contractors

A group of 52 national organizations yesterday sent a letter (full text) to President Obama urging him to rescind an executive order issued in 2002 by President George W. Bush that allows religious organizations which contract with the government to nevertheless use religious criteria in their hiring. According to a press release from Americans United, yesterday was chosen as the day to send the letter because it was the 70th anniversary of the country's first executive order barring discrimination by federal government contractors.  That order, issued by Franklin Roosevelt, prohibited employment discrimination by defense contractors on the basis of race, creed, color, or national origin. (See prior related posting.)  [Thanks to Michael Lieberman for the lead.]

Argentina Court Says Title "Rabbi" Cannot Appear Next To Candidate's Name On Ballot

In Buenos Aires, Argentina, a court has ruled that a rabbi who is heading the PRO party's list of candidates for city legislature may not use the title "Rabbi" next to his name on the ballot. Bergman was picked by Mayor Mauricio Macri to head the party list.  Haaraetz reported Monday that even though Rabbi Sergio Bergman, a prominent leader of Argentina's Jewish community, is best known to the public as Rabbi Bergman, the court held that the title "rabbi" has a positive connotation and thus cannot appear next to Bergman's name as it is presented to voters.

Lawsuits Challenge County School Voucher Program

Two lawsuits were filed yesterday challenging on state constitutional and statutory grounds a pilot school voucher program enacted by the Douglas County, Colorado, Board of Education.  At issue is a program that will provide up to 500 students now enrolled in the county's public schools scholarships to attend approved Private School Partners. Of the schools approved for the program so far, 14 of 19 are sectarian religious schools. The first of the two lawsuits (press release) was filed by the ACLU and Americans United. The complaint (full text) in LaRue v. Colorado Board of Education, (CO Dist. Ct., filed 6/21/11), alleges that the Choice Scholarship Plan violates numerous provisions of the Colorado constitution dealing with education and religious neutrality, as well as the state's Public School Finance Act. A second similar lawsuit was filed by Taxpayers for Public Education, an organization of Colorado parents and taxpayers. (Press release). Education News Colorado reports on the lawsuits.

Court Upholds Constitutionality of RLUIPA Land Use Provisions

In Chabad Lubavitch of Lichtfield County, Inc. v. Borough of Lichtfield, Connecticut, (D CT, June 20, 2011), a Connecticut federal district court upheld the constitutionality of several of the land use provisions of RLUIPA.  This holding allowed Chabad to move ahead with its RLUIPA challenge to Lichtfield's denial of its application to restore and add onto a Victorian building located in an historic district. (See prior posting.) However the court held that Chabad's rabbi (as opposed to the organization) lacked standing to pursue a RLUIPA claim because he had no property interest in the building separate from Chabad's.

In discussing the constitutionality of RLUIPA, the court held that any substantial burden on Chabad's free exercise here would necessarily burden interstate commerce because of the building construction involved.  It also concluded that RLUIPA does not violate the Establishment Clause merely because it singles out religion for protection against unequal treatment. [Thanks to Eric Treene for the lead.]

Court Says First Amendment Precludes Jurisdiction Over Suit For Injuries During Healing Service

In Kubala v. Hartford Roman Catholic Diocesan, 2011 Conn. Super. LEXIS 1260 (CT Super. Ct., May 20, 2011), a Connecticut state trial court dismissed a lawsuit brought against a Catholic priest, his church and the Hartford Diocese seeking damages for injuries plaintiff received when, during a Catholic Charismatic Renewal healing service, she was physically injured.  When plaintiff was "prayed over" during the service, she fell backward, hitting her head and sustaining painful injuries. She claimed the injuries were the result of defendants failing to exercise the degree of care usual for such services. The court concluded that the  federal and state constitutions' free exercise and establishment clauses preclude it from deciding the case.  The claim is essentially one of clergy malpractice. "[S]ince the plaintiff's claims are inextricably intertwined with the religious context in which the incident occurred, the court cannot apply neutral principles of secular law to this case."

Free Exercise Challenge To Health Care Reform Law Dismissed In April Decision

Calvey v. Obama, (WD OK, April 26, 2011), while decided two months ago, has just now appeared on LEXIS and has received little general attention.  It is a decision on standing and ripeness of challenges by numerous plaintiffs in an Oklahoma federal district court to the constitutionality of last year's federal health care reform act. In dismissing some, but not all, of the claims, the court rejected a free exercise claim by plaintiffs who argued that the Affordable Care Act forces them to contribute to the funding of abortion in violation of their rights of conscience and free exercise of religion. The court wrote:

Plaintiffs have failed to identify a provision of the ACA that requires them to contribute to the funding of abortion, much less identified a provision of the ACA that requires them to purchase health insurance from an insurer that provides insurance coverage for abortions and/or that any part of the premiums the Plaintiffs will pay for health care insurance will necessarily be used, at least in part, to pay for abortions. Absent such allegations, Plaintiffs have failed to allege a future or threatened injury that is concrete and not conjectural or hypothetical or one which is fairly traceable to the ACA or the actions of the Defendants.

Egypt's Al-Azhar Calls For Modern Democratic Nation

In Egypt, Al-Azhar, the country's pre-eminent center of Sunni learning, issued a document calling for the country to be a modern democratic state.  According to reports from AlMasryAlYoum and Daily News Egypt, the document that was drafted by Al-Azhar and a number of Egyptian intellectuals defines the relationship between Islam and the state, and is considered to be a draft constitution. It provides that sharia law should remain "the essential source of legislation," but calls for Christians and Jews to have their own judicial tribunals. It calls for "the protection of places of worship for the followers of the three monotheistic religions" and considers "incitement of confessional discord and racist speech as crimes against the nation." It provides for care for all Egyptians without discrimination on the basis of gender or religion, and lists health, education and scientific research as priorities. In a news conference announcing the document, Al-Azhar's Grand Imam Sheikh Al-Tayeb also called for the independence of Al-Azhar, with its imam being elected by Muslim Senior Scholars Authority instead of being appointed by the government.

Break-Away Presbyterian Church In Missouri Can Keep Its Property

According to The Layman Online, a Missouri state trial court has ruled in favor of the break-away Colonial Presbyterian Church, one of Kansas City's largest Presbyterian congregations, in its land ownership dispute with the Presbyterian Church USA. The congregation is one of many Presbyterian congregations that have moved their affiliation to the more conservative New Wineskins Association of Churches.  In Colonial Presbyterian Church v. Heartland Presbytery, (MO Cir. Ct., June 9, 2011), the court, applying the "neutral principles of law" approach, held that the provision in the PCUSA Book of Order that all property of a particular church is held "is held in trust ... for the use and benefit of the Presbyterian Church (USA)" is insufficient under Missouri law to create a trust over the church's property. [Thanks to Anglican Curmudgeon for the lead.]

Plaintiffs Voluntarily Dismiss Challenge To Parsonage Allowance.

A press release yesterday from the Pacific Justice Institute reports that the Freedom from Religion Foundation and 21 of its members, represented by Michael Newdow, have filed a voluntary dismissal of their federal court lawsuit challenging the constitutionality of the parsonage allowance given to clergy in the federal and California tax codes.  Apparently the dismissal was impelled by the fact that plaintiffs had not asked federal and state tax officials for relief before filing suit.

Britain's Equality Commission Releases Study on Religious Discrimination

Britain's Equality and Human Rights Commission yesterday released a report titled Religious Discrimination in Britain: A Review of Research Evidence, 2000-10.  The report says that its aims were:

to identify and review:
• quantitative and qualitative evidence of religious discrimination;
• any evidence about whether religious discrimination is increasing or decreasing;
• any differences in evidence between England, Wales and Scotland;
• ‘Islamophobia’ as a frame of reference for discrimination against Muslims; and
• gaps in the existing research and statistical evidence.

The Commission has also made available a related statistical briefing paper on Religion of Belief.

In a somewhat provocative interview with the Sunday Telegraph ahead of the release of the report, Commission Chairman Trevor Phillips said:

I understand why a lot of people in faith groups feel a bit under siege. They're in a world where there are a lot of very clever people who have a lot of access to the airwaves and write endlessly in the newspapers knocking religion and mocking God. The people who want to drive religion underground are much more active, much more vocal....

Our business is defending the believer. The law we're here to implement recognises that religious identity is an essential part of this society. It's an essential element of being a fulfilled human being.....

I think the most likely victim of actual religious discrimination in British society is a Muslim but the person who is most likely to feel slighted because of their religion is an evangelical Christian.

There are a lot of Christian activist voices who appear bent on stressing the kind of persecution that I don't think really exists in this country. There are some Christian organisations who basically want to have a fight and therefore they're constantly defining the ground in such a way that anyone who doesn't agree wholly agree with them about everything is essentially a messenger from Satan.

I think for a lot of Christian activists, they want to have a fight and they choose sexual orientation as the ground to fight it on. I think that whole argument isn't about the rights of Christians. It's about politics. It's about a group of people who really want to have weight and influence and they've chosen that particular ground.

Texas Governor Signs Mezuzah Bill

Last week Texas Gov. Rick Perry signed HB 1278 (full text).  The new law bars condominium property owners' associations from adopting restrictive covenants that would prevent Jewish property owners or residents from placing a mezuzah on the door of their home. When the bill was passed earlier this month, it was unclear whether or not the governor would sign it. (See prior posting.) Kate Shellnutt's blog at the Houston Chronicle reports on the bill's signing.

Priest Challenges Constitutionality of Law Barring Sex With Woman Seeking Spiritual Comfort

The St. Paul Tribune reports that in state court arguments today a Minnesota priest is challenging the constitutionality of a state statute, MN Stat 609.344,  that prohibits clergy from having sex with a person "during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private." The challenge comes as a defense in the prosecution of Catholic priest Christopher Wenthe for third-degree criminal sexual conduct for a year-long sexual relationship with a woman in her early 20's.  The woman had met Wenthe while attending a Catholic initiation class and later sought him out as a confessor. Wenthe's attorney says the statute is an overly broad attempt to regulate sexual behavior. He says the case raises the question of whether the woman could have a friendship with the priest that was not counseling under the statute. The Minnesota Supreme Court in the 2007 case of State v. Bussman rejected a vagueness challenge to the law, but divided equally on whether it violated the Establishment Clause. Ultimately it reversed defendant's conviction because the trial court had allowed church doctrine to become entangled with the meaning of the statute.

Pakistan TV Hosts First Religious Quiz Show

A leading Pakistani television channel, GEO TV, is broadcasting what it says is the first-ever large-scale religious quiz show.  According to Pakistan's The News, the game show Alif, Laam, Meem, which begins tonight, will be an entertaining attempt "to impart knowledge of religion in it’s entirety, be it Quran, Sunnah, religious history, literature, architecture or jurisprudence."

Charter School That Is Target of Establishment Clause Challenge Files Its Own Suit To Stay Alive

As previously reported, the ACLU of Minnesota is moving ahead with its Establishment Clause challenge claiming that a Minneapolis area charter school, the Tarek ibn Ziyad Academy, is promoting Islam. As reported earlier this month by the St. Paul Pioneer Press, new state legislation that takes effect June 30 bans out-of-state authorizers for charter schools, and in a settlement of the ACLU's litigation with it, Islamic Relief USA, the school's current authorizer, has agreed not to reincorporate in Minnesota. (See prior posting.) A trial on the merits of the ACLU's claim is set for November.  Facing imminent closure, TiZA's attempt to line up a new in-state authorizer that is acceptable to the state has been unsuccessful. An authorizing organization, Novation, has resubmitted an application after its first proposal was rejected by the state.

In an attempt to remain open, TiZA has gone to court. Last month a state court dismissed the school's lawsuit against Islamic Relief USA. The suit charged that IRUSA was obstructing TiZA's efforts to get a new sponsor.  Now, according to Minn Post last week, TiZA has filed suit in federal district court against IRUSA and the state Commissioner of Education. The complaint (full text) in Tarek Ibn Ziyad Academy v. Islamic Relief USA, (D MN, filed 6/15/2011) seeks a declaratory judgment that the Minnesota law limiting charter school sponsors to in-state organizations is unconstitutional as a violation of the due process and equal protection clauses, an impairment of the obligation of contracts and as a violation of the commerce clause. The suit also claims that IRUSA is improperly impeding TiZA's attempts to find a new sponsor.

Recent Articles of Interest

From SSRN:

• Pamela Edwards, Non-Mainstream Religions and the Law, (June 13, 2011).
• John Witte, Jr., Calvin the Lawyer, (Tributes to John Calvin on His 500th Birthday, David Hall and Martin Padgett, eds., pp. 1-23, 2010).
• Radwa S. Elsaman, Factors to Consider Before Arbitrating in the Arab Middle East: Religious and Legislative Constraints, (Journal of International Commercial Law, Vol. 3, p. 1, 2011).
• Patrick Nelson Leduc, Christianity and the Framers: The True Intent of the Establishment Clause, (Liberty University Law Review, Vol. 5, p. 201, 2011).
• Jane S. Schacter, Ely at the Altar: Political Process Theory Through the Lens of the Marriage Debate, (Michigan Law Review, Vol. 109, No. 8, 2011).

From SmartCILP:

• Sylvie Langlaude, The Rights of Religious Associations to External Relations: A Comparative Study of the OSCE and the Council of Europe, [Abstract], 32 Human Rights Quarterly 502-529 (2010).
• Guobin Zhu, Prosecuting "Evil Cults:" A Critical Examination of Law Regarding Freedom of Religious Belief in Mainland China, 32 Human Rights Quarterly 471-501 (2010).

Recent Prisoner Free Exercise Cases

In Ford v. Federal Bureau of Prisons, 2011 U.S. Dist. LEXIS 61978 (D CO, June 10, 2011), a Colorado federal district court accepted a magistrate's recommendations (2011 U.S. Dist. LEXIS 62014, May 24, 2011), and dismissed a complaint by a Nation of Islam inmate that he was not receiving a nutritionally adequate diet consistent with his religious beliefs. The court concluded that plaintiff had failed to show that his beliefs were sincerely held since he purchased food from the commissary that was inconsistent with his claimed dietary requirements.

In Marzuq v. Loury, 2011 U.S. Dist. LEXIS 62495 (D NJ, June 6, 2011), a Muslim inmate brought a free exercise claim contending that participation in the prison's Therapeutic Community was inconsistent with his religious beliefs. The court held that since the remedy plaintiff sought was restoration of good time credits that he lost when he was expelled from the TC program, he should have brought the suit as a habeas corpus action after exhausting state remedies.

In two opinions in Mahone v. Pierce County, 2011 U.S. Dist LEXIS 62619  and 2011 U.S. Dist. LEXIS 62588 (WD WA, June 10, 2011), a Washington federal district court adopted magistrate's recommendations  (2011 U.S. Dist. LEXIS 62617, May 23, 2011 and 2011 U.S. Dist. LEXIS 62589, May 24, 2011) and dismissed various claims from an inmate who claimed to be an African American Hebrew adherent of Judaism that he was being denied a kosher diet. Prison officials concluded that plaintiff's claims were not based on sincerely held religious beliefs.

In Gordon v. Lee, 2011 U.S. Dist. LEXIS 63433 (WD LA, June 16, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 63618, May 17, 2011) and dismissed a complaint by an inmate that he was not able to practice his Rastafarian religion. He was the only Rastafarian at the two facilities in which he had been incarcerated. Plaintiff sought a transfer to a different prison facility where he could practice his religion.

Purported Synagogue Sues Over Zoning Exemption For Hostels

The Forward this week reported on attempts by New York City's Department of Buildings to close down a network of hostels that offer low-priced rooms along with a "tolerance program" for guests. The hostels claim to be operated by the MacDougal Street Synagogue, and therefore to be exempt from various zoning laws under a provision in the New York City administrative code permitting charitable and religious institutions to convert homes into rooming houses "for working girls or women, or for working boys or men, or… for students attending a school or college." The city says that claim is a sham. It argues that the MacDougal Street Synagogue does not appear to exist at any location, and that the hostel rooms are being rented to tourists through the Internet.  The synagogue has filed a lawsuit challenging citations by city inspectors who closed down the hostels that they say are illegal transient hotels.  Inspectors found overcrowding and fire safety violations.

Louisiana Baptist Church Factions Battle In Court

Alexandria, Louisiana's Mount Zion Missionary Baptist Church is at the center of four lawsuits, with another set to be filed.  Alexandria Town Talk reports today on the battle between two factions in the church-- primarily older long-time members versus newcomers. The church, which was founded in 1902, serves primarily black congregants.  The church's pastor, Ameal Jones, who was hired in 2007 after the death of longtime pastor Donny  Granville is the focus of the congregational split. Opponents say Jones has built a power base of new members to the detriment of families that have been at the church for generations and who rely on church-financed services such as handicap-accessible vans and meals. The church's Board of Trustees fired Jones last year, but he refused to leave. They sued and the court ruled in the board's favor and nullified the election of a new Board that had taken place. But then Jones' supporters sued complaining that the church had not held an annual meeting or an election for 5 years. In a court supervised election, a new board of Jones supporters was elected. The new board tried to expel some of their opponents who they say engaged in disruptive conduct during church services, such as grabbing a microphone and yelling at Rev. Jones. The board has obtained a temporary restraining order barring 6 individuals from entering church grounds.

Paper Profiles Christian Religious Liberty Lawyer

The Tennessean today profiles Brentwood (TN) lawyer Larry Crain, who often represents clients for the conservative Christian advocacy group American Center for Law and Justice. The article describes Crain as "one of the leading religious liberty lawyers in the United States." Crain's law firm operates as an independent contractor for ACLJ, receiving over $387,000 in fees from it during the past three years.ACLJ has an annual budget of nearly $60 million. According to the article:

Crain’s legal resume reads like a history of the culture wars. Over the past 30 years, he’s represented abortion protesters from Operation Rescue, home-schooling parents, churches in zoning disputes and students who want to pray at graduation.

Israeli Rabbinic Court Sees Stray Dog As Spirit of Cursed Lawyer

Israel's YNet News last Thursday carried the rather strange story of a rabbinical court in Jerusalem, near the ultra-Orthodox Mea Shearim neighborhood, whose judges enlisted neighborhood children to throw stones at a dog. The incident took place several weeks ago in the rabbinic Monetary Affairs Court when a large dog wandered into the courtroom and refused to leave.  One of the judges then recalled that 20 years ago a panel of judges of the court cursed a famous secular lawyer who had insulted the court-- condemning his spirit to move into the body of a dog.  The judge was convinced that this was the dog  carrying that lawyer's spirit, and the court saw stoning as a way of retaliating. The dog managed to escape.  A member of Jerusalem's city council has complained to the Attorney General about the incident and an animal welfare organization has filed a complaint with the police.

UPDATE: According to a June 20 BBC report: "The head of the court, Yehoshua Levin, was quoted by Maariv as saying: 'There is no basis for abuse of animals from the side of Jewish Halacha [law].' In a statement, the court denied that a dog had been condemned. A dog had entered the court and been removed, it said."

UPDATE2: The London Telegraph yesterday reported the full statement by a Jerusalem rabbinical court denying original accounts of the incident:

There is no basis for stoning dogs or any other animal in the Jewish religion, not since the days of the Temple or Abraham.

The female dog found a seat in the corner of the court. And the children were delighted by it; there were hundreds outside the court. They are used to seeing stray cats but most have never seen a dog before. The only action we took was to dial the number of the Jerusalem Municipality to get the people in charge to take it away.

There was no talk of reincarnation, a lawyer has never been mentioned, either now or 20 years ago, and there was no stoning. Such inventions are a kind of blood libel, and we wonder why the inventor of the story did not continue to describe how we collected the blood of the dog to make our matzah.

US Catholic Bishops Revise Child Protection Policies To Comply With Latest Vatican Standards

The U.S. Conference of Catholic Bishops announced yesterday that at its Spring General Assembly, by a vote of 187-5, with 4 abstentions, the bishops approved revisions to its Charter for the Protection of Children and Young People.  According to the press release:

The revisions bring the Charter into line with the most recent Vatican instructions in this area, including specifically mentioning child pornography as a crime against church law and holding that abuse of someone who habitually lacks reason, for example, someone with mental retardation, is equivalent to child abuse.

According to CNN, critics say the changes do not go far enough.

Al-Qaida Announces New Leader In Statement Filled With Religious Affirmations

Al-Quaida announced yesterday on an Islamic website that Ayman al-Zawahri has assumed leadership of the organization now that Osama bin-Laden has been killed. The San Francisco Chronicle reports that al-Zawahari, an Egyptian doctor, is believed to be hiding in Pakistan. McClatchy Newspapers has published a full translation of the group's statement, which is filled with Islamic religious references. The statement reads in part:

Jihad will continue until Judgment Day, and ... has become an obligation in this era against the invading infidels, the occupiers of Muslim homes, and against the backsliding leaders who've changed Islamic law agreed upon by Muslim scholars....

... Al-Qaeda Jihad Organization seeks the implementation of Allah’s book and the Sunna and calls for all Muslims to follow the ways of the Prophet Mohammad and those of his noble companions and his successors, may Allah accept them all. We call for the pursuit of the ways agreed to by the followers of the prophet and their followers ... such as the four Imams and the Imams of Jurisprudence and Hadith.... We abide by what they set out and we do not disobey their commandments. We seek, with Allah's help, to be followers, not fabricators, learners and never creators.

NY Assembly Passes Marriage Equality Bill Including Religious Protections

The New York state Assembly yesterday passed and sent to the state Senate a marriage equality bill, A8354.  The Advocate reports that the bipartisan 80-63 vote in favor of legalizing same-sex marriage followed an impassioned but civil debate that included remarks by various members on whether their religious faith should be an issue in their vote:

I wish it wasn't in the book," said Dov Hikind, who waved a copy of the Torah on the assembly floor. "The Torah's so clear on this subject," he said. "There is no choice for me. And I am open-minded."...

Deborah Glick, the first openly gay member of the state legislature, later addressed the separation of church and state head on, saying, "You do not put your hand on the Constitution and swear to uphold the Bible."

The bill provides that no religious organization will be required to  provide accommodations or facilities for same-sex marriages, and no clergy shall be required to perform same-sex marriages.

According to the New York Times yesterday, the state Senate is still apparently one vote short of the 32 needed for passage.   Final passage may depend on the decision on how to vote by Republican Sen. Stephen Saland from Poughkeepsie who, along with a small group of other Republicans, may vote for the bill if the protections for religious organizations that object to gay marriage are strong enough. (See prior related posting.)

Israel Interior Ministry Changes Procedures On Recognition of Conversions From Abroad

In the convoluted politics of religious identity in Israel, the Israeli Interior Ministry has declared that the Jewish Agency will decide on whether particular Orthodox Jewish conversions abroad will be recognized for purposes of permitting an individual to immigrate under the Law of Return.  The Jerusalem Post reported this week that under the new arrangement the country's Chief Rabbinate will be consulted only in "isolated cases" where questions arise.  The problem arises from a decision by the Chief Rabbinate several years ago to limit which Orthodox Jewish conversions from the United States it would recognize.  Under a High Court decision, anyone converted by a recognized Jewish community abroad qualifies for entry under the Law of Return. However the Interior Ministry never formulated a policy on how to define a recognized community, and instead deferred to the Chief Rabbinate. This has led to a growing number of applications by U.S. and Canadian converts for immigration under the Law of Return being rejected. The change in policy, which will lead to recognition of a broader group of conversions, presumably moots a lawsuit filed in May on behalf of a Canadian who was refused citizenship under the Law of Return. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Judge Sanctioned In Part For Ordering Defendant To Attend Church As Condition of Bail

In Mississippi Commission on Judicial Performance v. Dearman, (MS Sup. Ct., June 16, 2011), the Mississippi Supreme Court ordered a public reprimand and a 30-day suspension without pay of a trial court judge who was charged with various instances of improper judicial conduct. One of the charges was that as a condition of bail for a defendant charged with possession of cocaine the judge required that the defendant attend church at least once a week. Justice Kitchens dissenting argued that the imposition of this condition may have been only an incorrect legal interpretation by the judge. If it was, that is not a basis for sanctions. [Thanks to Volokh Conspiracy for the lead.]

Borough Settles Lawsuit Challenging Its Use of Sectarian Invocations

Subject to a final Borough Council vote next week that is expected to pass, Point Beach, New Jersey has agreed to settle a lawsuit filed against it by the ACLU challenging its practice of opening meetings with a prayer that was generally Christian in nature. (See prior posting.) At one time, the borough opened meetings with the Lord's Prayer. After an initial lawsuit was filed, it moved to prayers by individual council members reflecting their own beliefs.  But that still resulted in Christian prayer and a new suit was brought. The settlement of that suit follows a decision by Council now to open its meetings only with prayers that do not use language specific to any religion. Point Pleasant Patch reports on these developments.

Suit Claims In-House Lawyer Fired Because He was Not An Orthodox Jew

An unusual religious discrimination lawsuit will come to trial June 27 in federal district court in the Southern District of New York. According to The Real Deal, Les Kramsky who was employed as in-house general counsel, is suing his former employer, the prominent real estate developer Joseph Chetrit.  Kramsky claims that Chetrit, an Orthodox Jew, hired Kramsky only because he believed that Kramsky was also an Orthodox Jew. The suit alleges that Chetrit began to treat Kramsky differently, and ultimately fired him, when he discovered Kramsky, though Jewish, was not Orthodox. The suit also claims that an Orthodox rabbi who regularly came to the office pressured Kramsky to pray and put on tefillin. Plaintiff asks for $500,000 in lost wages and benefits, as well as punitive damages. In court documents, Chetrit denies that Kramsky's religion played any role in his hiring, probation or firing, contending that he was terminated because it did not make economic sense to have a full-time in-house lawyer. [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]


UPDATE:  Real Deal reports on June 24 that the lawsuit was settled out of court just a few days before it was set to go to trial.

5th Circuit Interprets "Equal Terms" Clause of RLUIPA

In The Elijah Group, Inc. v. City of Leon Valley, Texas, (5th Cir., June 10, 2011), the U.S. 5th Circuit Court of Appeals weighed in on an issue that has split various circuits-- what test to use to determine whether a zoning decision violates RLUIPA's "equal terms" clause. At issue was the city's zoning law that prohibits churches from operating in areas zoned B-2 (business).  Plaintiff argued that it was being treated on less than equal terms because it could not apply for a special use permit to operate in B-2 areas. The court held that the equal terms clause:

does require the Church to show more than simply that its religious use is forbidden and some other nonreligious use is permitted. The “less than equal terms” must be measured by the ordinance itself and the criteria by which it treats institutions differently. When we analyze the City’s ordinance within this framework, we are convinced that it is invalid because it prohibits the Church from even applying for a SUP when, e.g., a nonreligious private club may apply for a SUP.... 

The court added in a footnote: "This analysis should not be interpreted as necessarily adopting any of the tests heretofore adopted by the other circuits." Becket Fund issued a press release on the decision. The release contains links to the briefs that were filed in the case.

Two Cases Decide On Tax Exempt Status of Property Owned By Religious Groups

Two recent unrelated cases involve disputes over whether certain property is used for religious purposes so that it is exempt from property taxes.  In First Korean Church of New York, Inc. v. Montgomery County Board of Assessment Appeals, (PA Commonwealth Ct., June 14, 2011), a Pennsylvania appellate court upheld the denial of tax exempt status for property of a former seminary that was acquired at a sheriff's sale by a church, but which appeared to be largely unused and in disrepair.

In Congregation Rabbinical College of Tartikov, Inc. v. Town of Ramapo, (NY Ct. App., June 14, 2011), New York's highest court held that Ramapo tax authorities improperly revoked the tax exemption for property that was being used for a religious summer camp. While a contractor was operating the camp on behalf of the rabbinical college that owned the land, the rabbinical college "retained general supervision and control over the camp's operation, including the right to approve the hiring of camp personnel, the purveyors of kosher food for camp lunches, and the religious curriculum." (See prior related posting.)

House Committee Opens Hearings On Radicalization of Muslims In U.S. Prisons

Yesterday, the U.S. House Committee on Homeland Security began two days of hearings on "The Threat of Muslim-American Radicalization in U.S. Prisons." The full text of the opening statement by Committee Chairman Peter King, as well as of statements by yesterday's four witnesses is available from the Committee's website. Rep. King also announced three witnesses who will appear at the continuation of the hearings today. The Los Angeles Times yesterday reported that the hearing "erupted in bipartisan anger Wednesday, with Democrats charging Muslims were being unfairly targeted and the Republican committee chairman vowing to continue investigating what he views as threats to national security."

Bankruptcy Court Says DOMA Is Unconstitutional; Same-Sex Couple Can File Joint Petition

A California federal bankruptcy court has declared the federal Defense of Marriage Act unconstitutional insofar as it would preclude a same-sex married couple from filing a joint bankruptcy petition under Chapter 13 of the Bankruptcy Code. 11 USC 302 permits joint petitions by a debtor and the debtor's spouse. The couple involved in the case was one of 18,000 same-sex couples legally married in California before the passage of Proposition 8. In In re Balas and Morales, (CD CA, June 13, 2011), the court held that DOMA violates  the couple's equal protection rights afforded by the 5th Amendment, whether the court applies heightened scrutiny or rational basis review.  The court explained:

Although individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the Debtors in this case. To do so violates the Debtors’ right to equal protection of those laws embodied in the due process clause of the Fifth Amendment. 

This court cannot conclude from the evidence or the record in this case that any valid governmental interest is advanced by DOMA as applied to the Debtors. Debtors have urged that recent governmental defenses of the statute assert that DOMA also serves such interests as “preserving the status quo,” “eliminating inconsistencies and easing administrative burdens” of the government. None of these post hoc defenses of DOMA withstands heightened scrutiny..... In the court’s final analysis, the government’s only basis for supporting DOMA comes down to an apparent belief that the moral views of the majority may properly be enacted as the law of the land in regard to state-sanctioned same-sex marriage in disregard of the personal status and living conditions of a significant segment of our pluralistic society. Such a view is not consistent with the evidence or the law.... 

In an unusual move, all 20 judges of the bankruptcy court signed the opinion in the case. Wall Street Journal reports on the decision.

U.S. Congressman Will Introduce Bill To Bar San Francisco's Attempt To Outlaw Circumcision

Rep. Brad Sherman (D-CA) announced yesterday that he plans to introduce a bill into Congress that would prevent San Francisco and other cities from banning male circumcision of minors.  Currently, San Francico voters are scheduled to vote on a ban in November. (See prior posting.) Sherman said: "The Religious and Parental Rights Defense Act of 2011ensures that Jewish and Muslim families will continue to be able to enjoy the free exercise of their religious beliefs." According to the Los Angeles Jewish Journal, Sherman's bill takes an approach similar to that taken by RLUIPA in protecting religious freedom in prisoner and zoning cases. [Thanks to Jonah Lowenfeld for the lead.]

Federal Court Says Judge Did Not Need To Recuse Himself In Proposition 8 Case

Yesterday, California federal district judge James Ware held, in Perry v. Schwarzenegger, (ND CA, June 14, 2011), that now-retired federal judge Vaughn Walker did not act improperly in failing to recuse or disqualify himself from deciding a challenge to California's Proposition 8. That state constitutional amendment barred same-sex marriage in the state, and Judge Walker's decision found Proposition 8 to be inconsistent with the federal constitution. (See prior posting.) Judge Walker was involved in a same-sex relationship at the time he heard and decided the case. However in yesterday's decision, Judge Ware held:

The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification.

The New York Times reports on yesterday's decision.

Also yesterday in a separate opinion in the case (full text), Judge Ware found no reason to require the parties in the case to return to the court video copies of the trial proceedings that had been given to them. He also set an August 29 hearing date on a motion to lift the protective order that bars public disclosure of the trial videos.

UPDATE: AP reports that backers of Proposition 8 will appeal Judge Ware's decision that refused to disqualify Judge Walker.

UEP Trust Fiduciary Wants Utah To Pay Administrative Costs That Are Owed

In the latest twist in the convoluted litigation attempting to reform the polygamous FLDS Church's United Effort Plan Trust, Bruce Wisan, the special fiduciary for the trust appointed by a Utah judge, is now asking that the court order the state to pay the $4.6 million in administration costs that have accumulated for the trust.  The Deseret News reported Monday that fees owed to lawyers and to Wisan's own accounting firm remain unpaid, as do amounts owed to an engineering firm, a surveying firm and a public relations firm.  Also some $2 million in property taxes is owed.  These costs were supposed to have been paid from proceeds of the sale of property and from court-imposed monthly occupancy fees that were assessed on those living on trust property.  However most FLDS members have refused to pay the occupancy fees, and litigation challenging the trust reformation has prevented property sales from being completed. The Utah Attorney General's office, however, argues that Wisan's request violates court orders freezing everything but the most necessary administrative work pending the outcome of challenges to jurisdiction of the Utah state courts over the trust. (See prior posting.)

Push In New York For Same-Sex Marriage, Opposed By Catholic Church

In the closing days of the legislative session in New York state, efforts are again under way by Gov. Andrew Cuomo to obtain passage of a bill to legalize same-sex marriage.  The state Senate defeated a same-sex marriage bill in 2009, but now, according to the Wall Street Journal yesterday, several senators have shifted their positions and the measure-- which has apparently not yet been formally introduced-- is only two votes shy of passage. So far only one Republican Senator has publicly pledged to vote in favor of the bill, but (according to AP) others Republican votes would follow if  the legislation contained exemptions so that churches, religious organizations and individuals opposed to gay marriage could not be required to perform or host them. New York's Catholic Archbishop Timothy Dolan has strongly opposed the measure.  In a posting yesterday on the Archdiocese's website, he said:

Last time I consulted an atlas, it is clear we are living in New York, in the United States of America – not in China or North Korea. In those countries, government presumes daily to “redefine” rights, relationships, values, and natural law. There, communiqués from the government can dictate the size of families, who lives and who dies, and what the very definition of “family” and “marriage” means.

But, please, not here! Our country’s founding principles speak of rights given by God, not invented by government, and certain noble values – life, home, family, marriage, children, faith – that are protected, not re-defined, by a state presuming omnipotence.

Please, not here! We cherish true freedom, not as the license to do whatever we want, but the liberty to do what we ought; we acknowledge that not every desire, urge, want, or chic cause is automatically a “right.” And, what about other rights, like that of a child to be raised in a family with a mom and a dad?
Our beliefs should not be viewed as discrimination against homosexual people. The Church affirms the basic human rights of gay men and women, and the state has rightly changed many laws to offer these men and women hospital visitation rights, bereavement leave, death benefits, insurance benefits, and the like. This is not about denying rights. It is about upholding a truth about the human condition.

U.S. Religious Freedom Ambassador Calls On Political Leaders To Condemn Religious Intolerance

The United States' new Ambassador-at-Large for International Religious Freedom, Suzan Johnson Cook, spoke yesterday in Geneva, Switzerland at a panel on "Combating Intolerance and Discrimination Based on Religion or Belief" arranged by the Office of the U.N. High Commissioner for Human Rights. (Full text of remarks.) She said in part:

States have tools at their disposal to combat religious intolerance; in many cases what is needed is the political will to use them. Governments need to develop robust legal protections to address acts of discrimination against individuals and bias-inspired violent crimes. Each country should determine if it has laws on the books that allow it to prosecute individuals who discriminate on the basis of religion in hiring, access to public accommodation and other aspects of public life, or who commit violence on that basis. Each country should determine if it has a capable and dedicated band of investigators and prosecutors to enforce such laws. Even more importantly, leaders in government, politics, religion, business and the rest of society must stand ready to condemn hateful ideology; and to vigorously defend the rights of individuals to practice their religion freely and exercise their freedom of expression. Leaders who remain silent are contributing to the problem and should be held politically accountable.....

Rather than seek prohibitions on offensive expression, the United States advocates for other measures such as urging political, religious, and societal leaders to speak out and condemn offensive expression; creating a mechanism to identify areas of tension between communities; training government officials on outreach strategies; and encouraging leaders to discuss causes of discrimination and potential solutions with their communities. Indeed, we believe that laws seeking to limit freedom of expression in the name of protecting against offensive speech are actually counterproductive. The suppression of speech often actually raises the profile of that speech, sometimes giving even greater voice to speech that others might find offensive. In some countries, politicians will not condemn offensive speech, but instead will defer to the courts to judge if it is legally prohibited. In our view it is far more effective if political leaders know that they cannot point to the law as an excuse for doing little to nothing. They have a moral and political obligation to use their own freedom of expression to lead a strong counter effort, and should be held to account politically.

Cert. Petition Filed In Courtroom 10 Commandments Poster Case

 A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in DeWeese v. ACLU of Ohio Foundation, Inc.  In the case, the U.S. 6th Circuit Court of Appeals held that a display posted in a courtroom by a state common pleas court judge violates the Establishment Clause. Next to a poster of the Bill of Rights, the judge hung another poster that compared the "Moral Absolutes" of the Ten Commandments with ten parallel principles of "Moral Relatives: Humanist Principles." (See prior posting.) ACLJ issued a press release announcing the filing of the cert. petition.

Spanish Parliamentarian Is Sworn In Using Crucifix

In Spain, a Catholic member of Parliament, Juan Cotino, provoked some criticism when he insisted on taking his oath of office using a crucifix.  CNA yesterday reported that Cotino placed a crucifix next to a copy of the Constitution and the Bible as he was sworn in on June 9. Father Jose Maria Gil Tamayo, a member of the Pontifical Council for Social Communications, however, praised Cotino, saying that his act was "an eloquent and courageous public gesture."

Supreme Court Denies Review In Pledge of Allegiance Case

The U.S. Supreme Court yesterday denied certiorari in Freedom From Religion Foundation v. United States, (Docket No. 10-1214, cert. denied 6/13/2011) (Order List).  In the case, the U.S. 1st Circuit Court of Appeals rejected an Establishment Clause challenge to New Hampshire's School Patriot Act that requires a time during the school day for voluntary recitation of the pledge of allegiance. (See prior posting). School Law yesterday reported on the denial of cert.

Lawsuit Challenges Tennessee Limits On Local Bias Laws

WSMV-TV reported  on a state court lawsuit filed yesterday challenging a new Tennessee law barring local governments from enacting different anti-discrimination protections than are provided by state law. (See prior posting.) The new law invalidates a Nashville ordinance that goes beyond state law by prohibiting companies doing business with the city from discriminating on the basis of sexual orientation.  The state law apparently also invalidates a Nashville school board policy that protected gay and lesbian students against bullying.  Plaintiffs in the lawsuit include three Nashville city council members and a former Belmont University soccer coach who was forced to resign when she disclosed that her same-sex partner was pregnant. The lawsuit claims that the state law violates the constitution's equal protection clause.

Suits Challenge Religious Leaders In Two New York Hasidic Enclaves

AP reported yesterday on lawsuits were filed  by religious dissidents in two New York towns that are essentially Orthodox Jewish Hasidic enclaves.  In a federal court lawsuit, followers of Brooklyn Satmar Rabbi Zalman Teiltelbaum who make up some 40% of the population of Kiryas Joel sued seeking dissolution of the city or alternatively a ban on religious leaders holding city office for 25 years.  Plaintiffs claim that the majority in Kikryas Joel, followers of grand rebbe Aron Teiltelbaum (brother of Zalman), have taken over the village and selectively enforce the village's property tax and zoning laws in a manner to discriminate against plaintiffs. It also alleges voting fraud and intimidation of voters.

In an unrelated state lawsuit, the family of a victim of an arson attack (see prior posting) is seeking $36 million in damages from New Square, New York's grand rebbe David Twersky-- the leader of the town's Skverer Hasidic sect. The suit claims that Twersky directed the arson attack that injured New Square dissident Aron Rottenberg who began attending a different synagogue outside New Square.