Religion Clause

Friday, December 14, 2012

Muslim Cabbie Sues Over Commission Dress Code That Bars Religious Clothing

According to yesterday's St. Louis Post Dispatch, Muslim cab driver Raja Awais Naeem has filed a religious discrimination lawsuit in state court against the city of St. Louis, its Metropolitan Taxicab Commission and Whelan Security, a private security company apparently in charge of security at the St. Louis airport. Naeem, originally from Pakistan, wears religiously mandated clothing-- a kufi, a kurta (loose-fitting shirt) and shalwar (loose fitting pants). This violates the Taxicab Commission's dress code that calls for a white shirt, black pants and does not permit a kufi (but does permit a baseball cap). He has been given a ticket by Whelan Security for wearing "foreign country religious dress." At other times his taxi license has been suspended and last week he was arrested and charged with trespassing. The Missouri Human Rights Commission issued Naeem a right-to-sue letter on his complaints.

University Settles Suit Brought By Christian Counseling Student Who Was Expelled

As reported by Baptist Press, earlier this week, Eastern Michigan University agreed to settle a lawsuit by a former student in its graduate counseling program who was expelled after she refused in a practicum course to counsel gay clients on same-sex relationships. The U.S. 6th Circuit last January held that the case should go to trial on the issue of whether the Christian student, Julea Ward, was ejected from the counseling program because of hostility toward her speech and faith. (See prior posting.) The University has agreed to pay Ward $75,000 and remove the expulsion from her record. No changes in the University's policies, programs or curricular requirements, however, were involved in the settlement.

Police Officer's Complaint About Attending Appreciation Day At Mosque Is Dismissed

In Fields v. City of Tulsa, (ND OK, Dec. 13, 2012), an Oklahoma federal district court rejected objections by a Christian police officer to a directive that he either attend or find volunteers to appear at a Law Enforcement Appreciation Day hosted by the Islamic Society of Tulsa. Police Captain Paul Fields, who was disciplined for refusing to comply with the directive, complained that he was being forced to attend an event at which there will be a discussion about the Muslim religion, but at which he is precluded from expressing his Christian faith. The court rejected plaintiff's free exercise claims, finding that the directive given to him was a neutral, generally applicable order. Nor did it infringe his right of expressive association, the Establishment Clause or his Equal Protection rights. The court also found that defendants had qualified immunity. Fox23 reports on the decision.

Thursday, December 13, 2012

French Government To Emphasize Secularism, Combat Violent Religious Extremism

Reuters reported yesterday that President Francois Hollande's government in France will re-emphasize the policy of "laicite" (secularism) that they said was weakened under former President Nicolas Sarkozy. Hollande this week announced the creation of a new agency to track how the separation of church and state is implemented. The agency will also study ways to introduce classes on secular morality into the public schools. At a conference on the official policy on secularism, French Interior Minister Manuel Valls said that the government's goal is "to detect and understand when an opinion turns into a potentially violent and criminal excess. The objective is to identify when it's suitable to intervene to treat what has become a religious pathology." The government is concerned both about radical Salafi Muslims recruiting disaffected young people, and about the far-right lay Catholic movement, Civitas. The Interior Minister said the government is ready to deport radical foreign-born imams and disband radical faith-based groups that could become violent.

In Philippines, Reproductive Health Bill Passes Important Second Reading

In the Philippines today, the House of Representatives in an historic vote passed a Reproductive Health bill (HB 4244) on its important second reading. The bill which has been opposed for 14 years by the country's Catholic bishops requires the national government to make reproductive health services, including free contraceptives, available to poor families. Inquirer News and GMA News both report on the lengthy House voting session. With several Catholic bishops in the House gallery, each representative had 3 minutes to explain his or her vote. According to Inquirer News, the country's Catholic bishops still hope to stop the bill, either before its third reading in the House, or in the conference committee with the Senate and the vote on the conference report.

Constitutionality of Washington Anti-Discrimination Exemption For Religious Non-Profits Certified To State Supreme Court

In Ockletree v. Franciscan Health System, 2012 U.S. Dist. LEXIS 175515 (WD WA, Dec. 11, 2012), a Washington federal district court certified to the Washington Supreme Court the question of whether the broad blanket exemption in the Washington Law Against Discrimination for non-profit religious organizations is constitutional under the Washington state constitution. Under Wash. Rev. Code 49.60.040 the definition of "employer" subject to the state's anti-discrimination law excludes "any religious or sectarian organization not organized for private profit." Here plaintiff, a security officer at a Catholic Hospital, claims he was discharged from his job on the basis of disability and race. In certifying the question, the court said:

The discrimination Ockletree claims (race and disability) is wholly unrelated to FHS' religious purpose, practice, or activity. It is not clear to this Court that WLAD's broad exemption is constitutional, at least in this context.

German Bundestag Passes Law Allowing Religious Circumcision of Boys

According to the New York Times, Germany's Bundestag yesterday passed legislation confirming the legality of religious circumcision. The issue had been thrown into doubt after a Cologne district court last June held that parents lack the right to decide that their young sons should be circumcised for non-medical reasons. (See prior posting.) The new law, passed in the Bundestag by a vote of 434 to 100, with 46 abstentions, allows circumcisions to be carried out for religious or other reasons "in accordance with medical practice." Specially trained members of a religious community (such as a Jewish mohel) can perform the procedure for boys 6 months old or younger. Circumcisions on boys over 6 months old are required to be performed by a physician. In either case, both parents must consent to the procedure.

Kazakhstan Is Closing Unregistered Religious Organizations Through Court Proceedings

Last October, Kazakhstan enacted a new, more restrictive Religion Law. (See prior posting.) Under it, religious organizations had one year to register, or re-register, with the state. Forum 18 reported Tuesday that the Kazakhstan government is enforcing closure through the courts of Christian and Muslim religious institutions that have not met the registration deadline. Some have consented to their closure in exchange for a promise that they can continue to operate as a branch of another registered community of the same faith. Others, such as the Azerbaijani Fatimai Shia Muslim Mosque in Almaty Region, the Tautan Molla Mosque in Karaganda Region. and the Light of the World Pentecostal Church in South Kazakhstan Region have been closed against their will.

Wednesday, December 12, 2012

New Decree Implementing Religion Law Takes Effect Jan. 1 In Vietnam

Radio Free Asia reported last month on new Decree 92 issued by the government of Vietnam on November 9. The Decree, replacing one originally issued in 2005, goes into effect January 1 to implement the Ordinance on Beliefs and Religion that covers religious practice in Vietnam. The Decree spells out procedures for registering places of worship, activities of religious organizations and clerics. The government recognizes 31 organizations representing 11 religions. However, non-recognized groups are banned. While some Buddhist groups are registered, the government does not recognize the Unified Buddhist Church of Vietnam, whose parent body in Paris issued a statement strongly criticizing the new Decree.

Mennonite-Owned Small Business Files Challenge To Contraceptive Coverage Mandate

Another small business and its owners have filed a lawsuit challenging the contraceptive coverage mandate issued under the Affordable Care Act. The complaint (full text) in Conestoga Wood Specialties Corp. v. Sebelius, (ED PA, filed 12/4/2012), contends that applying the moral teachings of their Mennonite faith, the owners of the cabinet and wood specialties company have concluded "that it would be sinful and immoral for them to intentionally participate in, pay for, facilitate or otherwise support any contraception with an abortifacient effect through health insurance coverage the offer at Conestoga." The company's current health insurance plan excludes such drugs. In October of this year, the corporation's board of directors adopted a statement setting out the beliefs of the company owners on the sanctity of human life. The suit claims violations of the 1st and 14th Amendments, RFRA and the Administrative Procedure Act. Independence Law Center issued a press release announcing the filing of the lawsuit.

New Jersey Prisons Now Allow Real Candles In Hanukkah Menorah Lighting Ceremony

In late November, the New Jersey Department of Corrections (NJDOC) issued a press release announcing a pilot program to allow state prison inmates celebrating Hanukkah to use NJDOC-approved candles in religious menorah lighting ceremonies. Candles can be lit in a designated room by a NJDOC staff member or authorized volunteer religious leader. Inmates will be allowed to view the lighting and the burning down of the candles. Electric or battery-operated menorahs will also be permitted. According to an AP report on the policy change, in the past most prisons have been uncomfortable allowing real candles to be used. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Tuesday, December 11, 2012

Canadian Court Upholds Required Ethics and Religious Culture Program In Catholic School

LifeSite News reports that in Canada, Quebec's Court of Appeal has upheld the decision of the province's Minister of Education, Recreation and Sports refusing to exempt a Catholic school, Loyola High School, from the requirement that it offer a government-mandated course in Ethics and Religious Culture instead of the school's own course covering other religions and ethical creeds from a Catholic perspective. A trial court ruled in favor of the school (see prior posting), but the Court of Appeal reversed. In Le Procureur General du Quebec v. Loyola High School John Zucchi, (Quebec Ct. App., Dec. 4, 2012) the Court of Appeal held that "exposing students to the global study of religions in a neutral perspective without requiring them to adhere to it, is not an infringement of freedom of religion." In reaching this conclusion, the court cited a February decision by Canada's Supreme Court upholding the Ethics and Religious Culture Program in a suit by parents who objected to it. (See prior posting.)

Court Finds North Carolina's Pro-Life Plates Unconstitutional

In American Civil Liberties Union of North Carolina v. Conti, (ED NC, Dec. 7, 2012), a North Carolina federal district court held that North Carolina's "offering of a Choose Life license plate in the absence of a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment." The court reached this conclusion after rejecting arguments that the specialty license plate program was government speech. The court pointed out that the North Carolina legislature, with rancorous debate, rejected six proposals for various pro-choice plates. The ACLU issued a press release announcing the decision. CNN reports on the decision.

New Report Focuses on Global Discrimination Against Humanists and Atheists

To mark Human Rights Day yesterday, Britain's International Humanist and Ethical Union issued (press release) the first report focusing on discrimination around the world against non-religious people. Titled Freedom of Thought 2012: A Global Report on Discrimination Against Humanists, Atheists and the Non-religious, the 72-page report covers laws and cases of discrimination country-by-country. Summarizing its findings, the report says in part:

This report shows that atheists, humanists and other nonreligious people are discriminated against by governments across the world. There are laws that deny atheists’ right to exist, curtail their freedom of belief and expression, revoke their right to citizenship, restrict their right to marry, obstruct their access to public education, prohibit them from holding public office, prevent them from working for the state, criminalize their criticism of religion, and execute them for leaving the religion of their parents.....

A handful of countries criminalize atheism per se. In addition, there are several forms of legal measures found across many countries that either criminalize the expression of atheist beliefs or result in systematic discrimination against atheists and those who reject religion. These include laws regulating:

• Apostasy and religious conversion
• Blasphemy and religious criticism
• Compulsory religious registration, usually with a list of permissible religions
• Religious tests for citizenship or participation in civic life
• Religious control of family law
• Religious control of public education.

MSN News and Voice of Russia both cover the Report.

National Menorah Lighting Ceremony Held Sunday

As reported by CNN, on Sunday night Chabad Rabbi Levi Shemtov presided over the lighting of the National Menorah on the Ellipse south of the White House. The ceremony featured the U.S. Navy Band. Jeffrey Zients, deputy director of the Office of Management and Budget, helped light the first candle.

Plaintiffs Challenging 10 Commandments May Proceed Using Pseudonyms

As previously reported, in September the Freedom From Religion Foundation along with two students and their parents filed a federal lawsuit challenging the constitutionality of a 6-foot tall Ten Commandments monument that has been displayed for decades in front of New Kensington, Pennsylvania's Valley High School. On Nov. 30, the trial court judge ruled (full text of Order) that the students and the parent of one may proceed in the case identified only as Doe 1, Doe 2 and Doe 3. As reported yesterday by the Valley News Dispatch, plaintiffs' counsel had sought the order because of "the highly personal and sensitive religious matters involved, the age of the student-Plaintiffs, the (ill will) expressed by the public regarding the Plaintiffs and this case, harassing remarks about the Plaintiffs, and the potential for physical harm." Plaintiffs introduced as evidence of the hostility toward them Facebook postings, website comments, emails and letters to the editor.

Monday, December 10, 2012

FBI Releases 2011 Hate Crimes Data; 19.8% Are Motivated By Anti-Religious Bias

The FBI today released its 2011 Hate Crime Statistics. The report shows that there were 6,216 single-bias motivated incidents reported, of which 1,233 (19.8%) involved religious bias. For comparison, for 2010 the FBI reported 6,624 single-bias incidents, with 1,322 (20%) motivated by religious bias-- though the reporting jurisdictions were not identical in the two years. (See prior posting.) The 2011 data show that of the 1,233 incidents motivated by religious bias, 771 of those were anti-Jewish; 157 were anti-Islamic; 67 were anti-Catholic; 44 were anti-Protestant; and 4 were anti-Atheist or Agnostic. Fully 130, however, involved bias against other religions. As previously reported, efforts are underway to add anti-Sikh and anti-Hindu subcategories in order to refine the "Other Religion" number. In 2011, crimes motivated by religious bias were the third most frequent category of hate crimes. Racial bias ranked first (2,917 incidents), and bias based on sexual orientation ranked second (1,293 incidents). The ADL issued a press release welcoming the 6% decrease in hate crimes since last year, but saying this is still far too many. [Thanks to Michael Lieberman for the lead.]

In Canada, Scams Are Reviving Use Of Ban On Fraudulent Use Of Sorcery

Last Saturday's National Post reports that new scams are leading Canadian authorities to revive prosecutions under an an old statute (Canada Criminal Code Sec. 365) that prohibits fraudulently pretending "to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration." Last month, charges under the section were filed against Gustavo Gomez who, using Spanish-language radio and print ads in Quebec and Ontario convinced people they were under a curse. He then offered to lift the curse for $10,000 to $15,000. In Toronto, a similar curse-lifting scam is being carried out in the city's Chinese community. Cantonese-speaking residents are warned of a curse and are convinced to fill a bag with valuables for a special ritual to lift it. Then the fraudster runs off with the bag. Vancouver police are reporting similar scams.

Sunday, December 09, 2012

Recent Prisoner Free Exercise Cases

In Kramer v. Pollard, (7th Cir., Dec. 5, 2012), the 7th Circuit rejected an Odinist inmate's claim for damages on qualified immunity grounds. At issue were claimed free exercise and equal protection violations growing out of the refusal to allow group worship for Odinists separate from other Pagan groups. However the court reversed the dismissal of plaintiff's religious diet claim.

In Riddick v. Herlock, 2012 U.S. Dist. LEXIS 171855 (ED VA, Nov. 30, 2012), a Virginia federal district court deferred ruling on dismissal of an inmate's claim that his copy of the Qur'an was confiscated so plaintiff could amend his complaint.

In People ex rel. Day v New York State Dept. of Corrections and Community Supervision, (NY Supr. Ct., Nov. 30, 2012), a New York trial court held that an inmate was denied due process when his parole violation hearing was held in abstentia, but the reason for his absence was his Muslim Friday religious observance.

In Johnson v. Director VDOC, 2012 U.S. Dist. LEXIS 173203 (WD VA, Dec. 6, 2012), a Virginia federal district court dismissed an inmate's complaint that the Department of Corrections banned his "Nuwaupian Moorish" religion and therefore he cannot have religious DVDs or CDs in DOC facilities.

In Benton v. Yon, 2012 U.S. Dist. LEXIS 173197 (ND FL, Dec. 6, 2012), a Florida federal district court, rejecting a magistrate's recommendation (2012 U.S. Dist. LEXIS 173196, Oct. 22, 2012) that plaintiff be permitted to proceed on most of his claims, dismissed on qualified immunity grounds an inmate's complaint that his free exercise and equal protection rights were infringed when a correctional officer tore and crumbled pages in plaintiff's Qur'an and drenched his prayer rug with water, apparently out of bias toward Muslims. According to the court: "no authoritative court has decided—as a broad principle—that a correctional officer's disrespectful treatment of an inmate's religious property ... was unconstitutional under the First and Fourteenth Amendments even when, as in this case, there is no allegation that such treatment burdened the inmate's ability to practice his religion."

In Forter v. Geer, 2012 U.S. Dist. LEXIS 54400 (D OR, April 17, 2012), an Oregon federal district court dismissed an inmate's free exercise and RLUIPA complaint regarding withholding from him of certain Christian Identity material sent to him. The court also dismissed without prejudice other claims for failure to exhaust administrative remedies. [This case while several months old was not previously covered by Religion Clause.]

Court Rejects Quaker's Challenge To Tax Procedures Invoked After Anti-War Withholding Of Amounts Due

In Boardman v. Commissioner of Internal Revenue, (ED CA, Dec. 6, 2012), a California federal district court dismissed free exercise claims by a Quaker peace activist who challenged provisions of the Tax Relief and Health Care Act of 2006 (26 USC Sec. 6330(g)) that curtail the administrative appeals process for "frivolous" taxpayer claims. The provision was invoked when plaintiff withheld half of her tax payments due because of her objections to government spending on war. She said she would pay the remaining amounts only if they were redirected to peaceful purposes. Relying on the 1st Amendment and RFRA, plaintiff argued that the government intentionally frustrated her religious beliefs by depriving her of rights and procedures that would have been available had she not asserted a religious motive for withholding a portion of her taxes. The court held that the Anti-Injunction Act (26 U.S.C. § 7421) requires dismissal of the lawsuit, since a ruling in favor of plaintiff would negatively impact the government's tax assessment methods. Alternatively, the court dismissed on the merits, holding that under past precedent plaintiff may not assert a religious objection to the country's tax system, even if she does not dispute her overall tax liability.

DNA Testing For Immigration Purposes Is Neutral Rule of General Applicability In Free Exercise Claim

In S. T. v. Napolitano, 2012 U.S. Dist. LEXIS 172658 (SD TX, Dec. 5, 2012), a Texas federal district court held that there is no 1st Amendment free exercise problem with denial of plaintiff's certificate of citizenship, passport and related documents. S.T.'s parents-- both American citizens-- practice the Swaminarayan religion. They believe they are required to follow their swami's religious instruction to never subject S.T., as a gift from a divine source, to medical testing. U.S. officials refuse to certify S.T. as a child of American citizens born abroad without DNA testing to establish a blood relationship. The court rejected the claim that requiring DNA testing violates the 1st Amendment free exercise rights of S.T. and his parents, finding that the testing requirement is a neutral rule of general applicability. However the court and defendants agreed that plaintiff may assert his claim under the Religious Freedom Restoration Act

Saturday, December 08, 2012

Bankruptcy Judge Shields Parish Assets In Archdiocese Bankruptcy

In the bankruptcy reorganization proceedings of the Archdiocese of Milwaukee (WI), a federal bankruptcy judge has refused to include at least most of the assets of separately incorporated parishes as part of the assets which creditors of the Archdiocese can claim. In In re Archdiocese of Milwaukee, (ED WI Bankr., Dec. 7, 2012), the court refused to apply the "alter ego" doctrine to ignore the separate corporate status of the parishes:

The Committee has failed to state a plausible claim that the Debtor and Parishes failed to observe corporate formalities, that funds were siphoned, that officers or directors of the Parishes were nonfunctional, or that there was an absence of corporate records. Absolutely no facts were alleged to make plausible a claim that the Debtor and the Parishes “egregiously ignored” corporate formalities or that control was so "pervasively exercised" to apply the alter ego doctrine in this case.

The court similarly refused to apply the equitable doctrine of substantive consolidation to make parish assets available to creditors. Reporting on the decision, the Milwaukee Journal-Sentinel says that the parishes, however, could still face claims that creditors should have access to $35 million in funds that the Archdiocese moved off its books in 2005.

L.A. Church Sues Former Pastor, His Wife and Others For Fiduciary Breaches and Fraud

The Los Angeles Times reports that last Tuesday a suit was filed in a California state court by the oldest Black church in Los Angeles against its former pastor John Hunter, his wife and a group of other church officials and directors of affiliated corporations in a battle for control of the church. According to the paper:

Hunter has had a rocky tenure at the church. Since taking over First AME in 2004, Hunter has been sued for sexual harassment, a civil claim that was settled for an undisclosed amount. The Times reported in 2008 that an internal audit found he charged $122,000 in jewelry, family vacations and clothing to the church's credit card. He later agreed to a nine-year repayment plan.

He earned a generous salary during his tenure, lived in a $2-million home and drove a Mercedes-Benz paid for by the church. His wife earned $147,000 a year running nonprofit organizations connected to the 19,000-member congregation.

But over the last few years, the hilltop church in the West Adams district has fallen into debt. The church owes nearly $500,000 to creditors and some vendors say they have not been paid in more than a year.

The complaint (full text) in First African Methodist Episcopal Church of Los Angeles v. Hunter, (CA Super. Ct., filed 12/4/2012), alleges that when John Hunter was transferred to a new church, his wife Denise continued to control affiliated corporations that provide social services rather than allowing FAME's new pastor to do so. It alleges breach of fiduciary duty, fraud and conversion. It asks for injunctive and declaratory relief and for damages of over $1 million.

New York Hasidic Sex Abuse Trial Uncovers Extortion From "Modesty Committees"

According to Thursday's New York Jewish Week, testimony in the Brooklyn sex abuse trial of Nechemya Weberman -- an unlicensed "therapist" to whom schools of the Hasidic Satmar sect referred "wayward" girls for "help" -- has disclosed important information about the insular Satmar community:

the alleged victim ... has been subjected to intense pressure to withdraw her claim, including intimidation, harassment, social ostracism of her family and even a reported $500,000 bribe.... The case is also significant for the amount of public support the alleged victim has received ... from her family, close friends and advocates, many of whom have used social media to spread the word about the trial and appeared in court....

However, many people with ties to the chasidic community believe there is something even more important about the Weberman case — namely, what it exposes about the larger communal role played by chasidic "modesty committees" in communities like Williamsburg, Borough Park and Kiryas Joel. These groups — to which, sources say, Weberman was connected — originated years ago to guard the "purity" of the community by enforcing strict dress and behavior codes that characterize the insular chasidic lifestyle. But, insiders say, the tactics of these self-appointed, freelance modesty patrols have evolved from public shaming to extortion and threats....

President Issues Hanukkah Greetings

Yesterday, the White House released a statement (full text) sending warmest wishes from the President and Michelle Obama to all those around the world celebrating Hanukkah. The statement said in part:

Hanukkah is a time to celebrate the faith and customs of the Jewish people, but it is also an opportunity for people of all faiths to recognize the common aspirations we share.... [L]et us reaffirm our commitment to building a better, more complete world for all.

The 8-day festival of Hanukkah begins this evening.

More On Yesterday's Same-Sex Marriage Cases Cert. Grant-- Standing

In granting certiorari yesterday in two same-sex marriage cases (see prior posting), the U.S. Supreme Court (order list) instructed the parties to brief and argue specified standing issues, in addition to the questions presented in the petitions for certiorari. In Dennis v. Perry, the California Proposition 8 case, the Court ordered the parties to brief and argue: "Whether petitioners have standing under Article III, §2 of the Constitution in this case." In United States v. Windsor, the Defense of Marriage Act case, the Court ordered the parties to brief and argue: "Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case."

Friday, December 07, 2012

Supreme Court Will Review 2 Same-Sex Marriage Cases

The U.S. Supreme Court today granted certiorari in two same-sex marriage cases. (Order List.) The first of the cases is Hollingsworth v. Perry, (Docket No. 12-144, cert. granted 12/7/2012). In the case, decided by the 9th Circuit under the caption Perry v. Brown, the appeals court in a 2-1 decision struck down California's Proposition 8 that eliminated the right-- previously created by the California Supreme Court's interpretation of the state constitution-- for same-sex couples to marry. Judge Reinhardt, in an opinion joined by Judge Hawkins, held that even though California may not have had the obligation to grant same-sex couples the right to marry, once it did, it could not take that right away without some legitimate reason for doing so. Here there was no legitimate reason. (See prior posting.) En banc review was denied, but in a decision generating dissenting and responding opinions. (See prior posting.) The certiorari petition (full text), however frames the issue more broadly:

Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

Scotus blog has links to the 9th Circuit opinion and all the filings with the Supreme Court in the case.

The second case in which the Supreme Court granted review is United States v. Windsor, (Docket No. 12-307, cert. granted 12.7/2012). In the case, the 2nd Circuit in a 2-1 decision held that Section 3 of the Defense of Marriage Act is unconstitutional under the equal protection component of the 5th Amendment. In a suit by the surviving spouse of a lesbian couple who was denied the spousal deduction under the federal estate tax law, the majority held that it must apply heightened (intermediate level) scrutiny because homosexuals are a quasi-suspect classification. (See prior posting.) The petition for certiorari (full text)-- which was filed before the 2nd Circuit came down with its decision-- defines the question presented as:

Does Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, which defines the term “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,” deprive same-sex couples who are lawfully married under the laws of their states (such as New York) of the equal protection of the laws, as guaranteed by the Fifth Amendment to the Constitution of the United States?

Scotus blog has links to the 2nd Circuit opinion and all the filings with the Supreme Court in the case.

Press coverage of the Supreme Court's action today included the New York Times, Yahoo! News, and Wall Street Journal.

UPDATE: See follow-up post- "More On Yesterday's Same-Sex Marriage Cases Cert. Grant- Standing".

Santa Monica Park Rules Change Impacts Hanukkah As Well As Christmas Displays

A good deal of attention has been given by the media to the change in rules adopted in Santa Monica, California, ending the traditional Christmas story dioramas in Palisades Park during the holiday season. The new city ordinance, upheld by the courts, excludes unattended displays and has led a coalition of Christian groups plans to hold a Live Nativity Display instead. (See prior posting.) Less noticed has been the impact of the rule change on other displays. Yesterday's Los Angeles Jewish Journal reports that it also impacts the two 12-foot-tall, propane-fueled menorahs normally set up in the park by the Chabad of Santa Monica during Hanukkah. This year instead the menorahs will lit, and then moved away each night on pick-up trucks. The change also impacts the separate menorah lighting that has been held for the past 5 years on the Promenade sponsored by Downtown Santa Monica, Inc. They will now move their 10-foot tall menorah onto the Promenade on dollies each time it is to be lit, and then take it away.

New Trial Motion By Defendants Convicted In Amish Beard-Cutting Case Is Denied

In United States v. Mullet, (ND OH, Dec. 6, 2012), an Ohio federal district court denied a motion for a new trial by Bergholz Amish leader Samuel Mullet, Sr. and his co-defendants who were convicted in September of conspiring to violated the federal Hate Crimes Prevention Act in connection with beard- and hair-cutting attacks against a rival Amish group. (See prior posting.) The court rejected Mullet's argument that there was insufficient evidence to link him to the attacks, saying:

While it is true Defendant did not physically participate in any of the attacks, there was extensive evidence showing he was a member of the conspiracy the object of which was to commit them.... Defendant, as Bishop of Bergholz, ran his community with an iron fist—nothing of significance happened without his knowledge and approval. Even if the Government proved nothing more than that Samuel Mullet, Sr., was told about the attacks in advance by his followers and then said or did nothing to stop or prevent them, or even voice his disapproval, a jury could conclude that he had joined the conspiracy....

The court also rejected Mullet's argument regarding newly discovered evidence and his objections to evidence presented at trial of an AP article, and of his sexual relationship with one of his daughters-in-law. AP reports on the decision.

First Family Lights National Christmas Tree

USA Today reports that last night, President Obama, along with First Lady Michelle Obama and their daughters, lit the White House National Christmas Tree on the Ellipse. In his comments at the ceremony, Obama focused on families in the Northeast who were displaced by Hurricane Sandy. After pushing the button to light the tree, the First Family left the stage and sat in the audience to watch entertainment by Jason Mraz, Ledisi, James Taylor, Kenny "Babyface" Edmonds, Colbie Caillat and American Idol winner Phillip Phillips.

UPDATE: The full text of the President's remarks at the National Christmas Tree Lighting are now available from the White House.

Judge Charged With Improper Sale of Religious Material In Courthouse

The Florida Judicial Qualifications Commission on Wednesday filed a Notice of Formal Charges (full text) against Leon County Judge Judith Hawkins for using her judicial position to sell religious books and materials through her for-profit business, Gaza Road Ministries. Photos on her business' website show her in her judicial robes. The formal charges in part also allege:

you have sold or attempted to sell your books, study guides, and other publications in the Leon County courthouse, in the parking garage of the courthouse, in your Chambers, and even in the Courtroom in which you preside. The purchasers of your books and other publications include attorneys who regularly appear before you and court staff. There is a disparity in authority between your position and those to whom you have sold within the courthouse.

You use your Leon County email account, your Judicial Assistant, and your office spaces and equipment within the Leon County Courthouse to create, edit and promote the products you have for sale through Gaza Road Ministries....

Your involvement with Gaza Road Ministries has caused you to devote less than your full time and full attention to your judicial duties....

AP reports on filing of the charges.

Additional Hate Crime Reporting Categories May Be Added To FBI Form

Sikh News Network reported Wednesday on efforts being made to add three additional sub-categories to the FBI's "Hate Crime Incident Report" data collection form to track anti-Sikh, anti-Hindu and anti-Arab/ anti-Middle Eastern hate crimes. Sikh advocacy groups have particularly been pressing for the changes as attacks on Sikhs have multiplied. On Oct. 18, civil rights and community relations agencies presented a recommendation to the Uniform Crime Reporting Subcommittee of the FBI Advisory Policy Board that these changes be made. The recommendation (with additional input from interested parties) will be considered by the full Advisory Policy Board at its meeting in Spring 2013 and will likely be approved by the FBI director in June 2013. The FBI will then need to revise the form, obtain approval of the revisions from the Office of Management and Budget, and modify systems to enable the data collection. If all of this goes as planned, it is likely that data collection using the revised categories would begin in 2015.

Street Preachers Keep Access To Holiday Festival For 2012

In December 2011, a Minnesota federal district court granted a preliminary injunction to prevent Duluth police officers from interfering with activities of two street preachers at the Bentleyville Tour of Lights. The Tour is a holiday festival held each year on city property, Bayfront Festival Park, and is sponsored by a private non-profit group. (See prior posting.) This year the city of Duluth negotiated a new contract with the sponsor of the Tour, under which the sponsor is granted exclusive use of the Park for the event. The city argued that this moots the 2011 preliminary injunction and permits the sponsor to exclude the street preachers. In Jankowski v. City of Duluth, (D MN, Dec. 5, 2012), the court disagreed, refusing to vacate the original preliminary injunction saying:

... the City cannot change a traditional public forum by its own ipse dixit.... Because the Park is a traditional public forum, and because this year’s BTL event is free and open to the public despite the fact that the 2012 Agreement grants BTLI “exclusive use” of the Park, the Court finds that the Park has retained its public character during the 2012 BTL event.... [G]ranting exclusive use of the Park to BTLI has no impact on Plaintiffs’ First Amendment rights.

However, the court refused to hold defendants in contempt because of ambiguity in the language of the original preliminary injunction, instead issuing a new modified injunction to cover future Festivals. Alliance Defending Freedom issued a press release announcing the court's decision. Duluth News Tribune reports on the decision.

Ousted Deacons and Their Supporters, Seeking To Attend Church, Sue Pastor

Saginaw News yesterday reported on a lawsuit filed in state court in Saginaw County, Michigan by 5 former deacons and two other members of the Zion Missionary Baptist Church who support them. Plaintiffs complain that the church's pastor, Rodrick Smith, invoking state trespass laws, falsely told police he had fear that they would disrupt services. Smith got police to threaten plaintiffs with arrest if they continued to attend church services. In the case of one member, police did arrest him for trespass, but never filed formal charges. Plaintiffs include a former Saginaw mayor and two Saginaw County commissioners. They have not attended services since, but have carried protest signs in front of the church on Sunday mornings. The recently-filed complaint (full text) in Robinson v. Smith, (MI Cir. Ct., filed 11/29/2012), recounts Smith's attempt to remove 5 of the plaintiffs as deacons, and asks for a declaratory judgment that plaintiffs may attend church so long as they do not disrupt services. It alleges that "Smith injected the secular police powers of the state into the internal affairs" of the church by means of wrongful use of the criminal trespass law, in violation of their 1st Amendment rights. The complaint also seeks damages for malicious prosecution. A suit against the church itself was dismissed by the court in October. That suit, similarly complaining about actions against plaintiffs, had sought return of nearly $130,000 in tithes the plaintiffs had given the church over the past 6 years.

Supreme Court Asked To Bypass 9th Circuit To Review Nevada Same-Sex Marriage Case

On Wednesday, the Coalition for the Protection of Marriage filed a petition for certiorari with the United States Supreme Court asking it to take the unusual step of reviewing the district court decision in Sevcik v. Sandoval before the case is briefed, argued or decided by the 9th Circuit. (Full text of certiorari petition.) In the case, a Nevada federal district court upheld Nevada's ban on same-sex marriages, rejecting an Equal Protection Clause challenge to the law. (See prior posting.) The certiorari petition essentially argues that this is a better case for the Supreme Court to use in deciding basic constitutional issues on same-sex marriage than are the other cases which the Court is currently considering for possible review. Dale Carpenter at Volokh Conspiracy discusses the Cert. petition and predicts the court will not grant review in the case.

Thursday, December 06, 2012

Report On Enhancing Accountability of Religious Organizations Released

The Commission on Accountability and Policy for Religious Organizations this week issued its first report to Sen. Charles Grassley. The Commission was set up by the Evangelical Council for Financial Responsibility after the Senate Finance Committee in 2011 released a staff review of the activities of media-based ministries. (See prior posting.) This week's 94-page report titled Enhancing Accountability for the Religious and Broader Nonprofit Sector, sets out numerous recommendations on compensation, accountability and IRS practices. The Chronicle of Philanthropy yesterday summarized some of the recommendations, saying that the report rejects federal efforts to impose new laws or regulations on religious organizations.

West Point Cadet Resigns Over School's Promotion of Religion

In a Huffington Post essay on Monday, West Point cadet Blake Page announced that he is resigning from West Point 5 months short of graduation in protest of the school's promotion of religion. He wrote in part:

... [C]ountless officers here and throughout the military are guilty of blatantly violating the oaths they swore to defend the Constitution. These men and women are criminals, complicit in light of day defiance of the Uniform Code of Military Justice through unconstitutional proselytism, discrimination against the non-religious and establishing formal policies to reward, encourage and even at times require sectarian religious participation. These transgressions are nearly always committed in the name of fundamentalist evangelical Christianity. The sparse leaders who object to these egregious violations are relegated to the position of silent bystanders, because they understand all too well the potential ramifications of publically expressing their loyalty to the laws of our country.

AP reported yesterday that despite Page's concerns to the contrary, he has now received an honorary discharge and will not have to reimburse the military for the cost of his education. A spokesperson for West Point disputed Page's claims, saying that prayer is voluntary where invocations are offered, and that Page served as president of the school's Secular Student Alliance. Page had recently been disqualified on medical grounds from receiving a Second Lieutenant commission after graduation. He suffers from clinical depression and anxiety which have gotten worse since his father committed suicide last year.

EEOC Sues UPS Over Failure To Accommodate Jehovah's Witness New Hire

The EEOC announced that last week it filed a religious discrimination lawsuit against United Parcel Service, Inc. for its failure to accommodate a newly-hired Jehovah's Witness employee. The employee wanted either to start a different day, start later than his scheduled time on his start date, or be given an hour's leave during his shift on his first day so he could attend the Memorial of Christ's Death, an annual Jehovah's Witness religious service. UPS rejected his request and fired him when he attended the service instead of reporting for work.

Contraceptive Coverage Challenge By NY Archdiocese Survives Standing and Ripeness Challenge

In Roman Catholic Archdiocese of New York v. Sebelius, (ED NY, Dec. 5, 2012), a New York federal district court permitted the Archdiocese of New York, the Catholic Health Care System (ArchCare) and Catholic Health Services of Long Island to proceed with their 1st Amendment, RFRA and Administrative Procedure Act challenges to the contraceptive coverage mandate imposed under the Affordable Care Act. The court rejected standing and ripeness challenges to their lawsuits. It held that the temporary enforcement safe harbor for non-profits with religious objections does not prevent plaintiffs from establishing imminent injuries. The announced review that may lead to changes in the coverage mandate for organizations with religious objections does not assure that changes will be made, and in any event costs are already being incurred in planning for possible compliance with the mandate or payment of fines for noncompliance. The court however dismissed claims by the Diocese of Rockville Centre and Rockville Centre Catholic Charities because it appears that their health care plans are grandfathered and thus not covered by the challenged mandate. Reuters reported on the decision.

Wednesday, December 05, 2012

Couple Convicted For Mistreatment of Lamb Purchased For Religious Sacrifice

The Colorado Springs Gazette reports that on Tuesday, an El Paso County, Colorado state court jury convicted Periz Jackson and Elijah Black on animal cruelty charges for the confined and unsanitary conditions under which they kept a lamb they had purchased to sacrifice on Passover. Prosecutors charged defendants, who face a sentence of up to 18 months in jail and a $5000 fine, failed to feed and water the lamb. The couple, who are members of the largely African-American Hebrew-Israelite sect, planned to slaughter and roast the lamb in accordance with the ritual description in the Biblical book of Exodus. The lamb, discovered by the couple's landlord, was seized by the Humane Society of the Pikes Peak Region. Defendants say they intend to sue for federal civil rights violations because the government's actions prevented them from carrying out their religious obligations on their first Passover together as man and wife.

ACLU Files Complaint Against Judge Who Sentenced Teen To Church As Part of Probation

The Oklahoma ACLU has filed a complaint with the state's Council on Judicial Complaints against Muskogee County District Judge Mike Norman over the judge's inclusion in a probation arrangement for a 17-year old of a requirement that he attend church for ten years. The sentence came after Tyler Alred plead guilty to manslaughter in the death of his friend who was riding with him in an alcohol-related auto crash. Apparently the defendant has no objections to the probation conditions. (See prior posting.) In a press release announcing the filing of the complaint, the Oklahoma ACLU's legal director said: "Acts of worship should come from a freely-made choice to adopt a faith, not from the government giving its citizens an ultimatum to sit either in a pew or a prison cell." The Tulsa World today reports on the ACLU's action.

3rd Circuit Upholds School Board's Refusal To Submit Religious Content Issues To Voters

The U.S. 3rd Circuit Court of Appeals has upheld the Camden (NJ) Board of Education's refusal to include three proposed non-binding referendum questions on a special election ballot. In Torres v. Davis, (3d Cir., Dec. 4, 2012), the court rejected free speech, free exercise and equal protection challenges to the refusal by the Board of plaintiff's requests made over a ten-year period to place items on the ballot. Two of plaintiff's proposals dealt with adding religious content to the public schools' curriculum. In various years, he also urged allowing prisoners to vote in school board elections and a proposal regarding prayer.

Indiana Legislator Wants To Require Science Teachers To Prove Truth of Their Teachings

In Indiana, state senator Dennis Kruse, chairman of the Senate Education and Career Development Committee, says he will try a new approach now that he failed last session to get legislation to allow the teaching of creationism along with evolution in the public schools. According to the Indianapolis Star yesterday, Kruse will introduce what he calls a "truth in education" bill. As the senator describes the proposal: "If a student thinks something isn't true, then they can question the teacher and the teacher would have to come up with some kind of research to support that what they are teaching is true or not true."

Miami-Dade Commission Re-institutes Opening Prayer

In Florida yesterday, the Miami-Dade County Commission voted 8-3 to re-institute prayer before the opening of the Commission's formal meetings. The Miami Herald reports that the vote comes after an intensive 18-month lobbying effort by the Christian Family Coalition to bring back prayers instead of the moment of silence that replaced the invocation in 2004. Commissioners will rotate in choosing someone to lead the prayer, or lead it themselves. The invocation must be non-denominational, and will be offered before the roll call of commissioners. During debate on the bill, the commissioners agreed to the rotation format, instead of having the county clerk compile a database of local religious leaders to choose from which would have cost $26,000 to implement. The ACLU said that if the prayers turn out to be sectarian, it will file suit. However, Anthony Verdugo, executive director of the Christian Family Coalition, said the vote ended "8½ years of discrimination."

Judges Disagree About Constitutionality of California Sexual Orientation Change Efforts Ban

This week, two federal district court judges in the Eastern District of California, in two separate cases, reached opposite conclusions about the constitutionality of California's new law (effective Jan. 1, 2013) totally banning mental health care providers from engaging in efforts to change the sexual orientation of anyone under under 18 years of age. In Welch v. Brown, (ED CA, Dec. 3, 2012), Judge William Shubb entered a preliminary injunction barring enforcement of the Sexual Orientation Change Efforts legislation against the three plaintiffs who were challenging it in that case. He concluded that the law is a content-based regulation of speech subject to strict scrutiny:

Especially with plaintiffs in this case, it is ... difficult to conclude that just because SOCE utilizing speech is a type of treatment, that the treatment can be separated from a mental health provider’s viewpoint or message.... Duk is a Catholic and, with patients that share his faith, he discusses tenants of the Catholic faith, including that “homosexuality is not a natural variant of human sexuality, it is changeable, and it is not predominantly determined by genetics.” ... Similarly, Welch has explained that he shares the views of his church that homosexual behavior is a sin and that SB 1172 will “disallow [his] clients from choosing to execute biblical truths as a foundation for their beliefs about their sexual orientation.”

However, in Pickup v. Brown, (ED CA, Dec. 4, 2012), Judge Kimberly J. Mueller refused to grant a preliminary injunction to prevent the law from taking effect. She wrote in part:

Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct.... As SOCE therapy is subject to the state’s legitimate control over the professions,SB 1172's restrictions on therapy do not implicate fundamental rights and are not properly evaluated under strict scrutiny review, but rather under the rational basis test.

Liberty Counsel announced that it will file an appeal in the case.

Tuesday, December 04, 2012

Church-State Concerns Keeping Sandy-Damages Houses of Worship From Receiving FEMA Aid

The Forward reported this week that church-state concerns mean that synagogues in New York which were damaged by Hurricane Sandy are at this time seen as ineligible for FEMA assistance. Other non-profits, including homeless shelters and soup kitchens sponsored by religious institutions, are eligible if they apply by Dec. 30. However the government is encouraging synagogues and other houses of worship to apply to FEMA and the Small Business Administration by Dec. 30 so they will have applications on file if ultimately it is decided that houses or worship do qualify for assistance.

Interview With Convicted Amish Beard-Cutting Attacker Published

The Daily yesterday published a long interview with Bergholz Amish sect leader Sam Mullet who was convicted in September on hate crime charges stemming from beard-cutting attacks on a rival Amish group. (See prior posting.) Mullet is in prison awaiting a January sentencing hearing. The interview, conducted at the Northern Ohio Correctional Center, is wide ranging. Summarizing the interview, The Daily said:

Over the course of several hours, [Mullet] described the challenges of adjusting to prison, his perspective on the beard-cutting attacks and life inside the breakaway Amish sect where he was accused of sexually preying on women and tormenting men with harsh punishments.

On the matter of the beard cuttings, Mullet told The Daily that he was wrongly convicted — that a group of his followers, including several of his children, hatched the scheme on their own.

Israeli Civil Court Asserts Jurisdiction Over Same-Sex Couple's Divorce

Jerusalem Post reported yesterday that a Tel Aviv Family Court has broken new legal ground by granting a divorce to a same-sex couple who had married in Canada but lived in Israel. In an earlier case, Israel's Supreme Court had ordered registration of these same-sex marriages. Normally under Israeli law, only religious courts have jurisdiction over divorces. However the rabbinical courts, which do not recognize same-sex marriage, had, at least so far, failed to rule in the case. The Tel Aviv court said that it would violate the couple's fundamental rights and liberties to prevent them from dissolving a marriage that the state had recognized. The civil court held that it could exercise jurisdiction over divorces when the rabbinical courts failed to do so.

Turkey Fines TV Station For Insulting Religious Beliefs Through Broadcast of Simpsons Episode

In Turkey, the Supreme Board of Radio and Television (RTUK), the national broadcasting regulator, has fined Turkish broadcaster CNBC-E the equivalent of $30,000 (US) for broadcasting an episode of The Simpsons found to be insulting to religious beliefs. Today's London Telegraph reports that the offending episode is the Halloween special "Treehouse of Horrors XXII." Among other things, the episode shows the Devil serving coffee to God; God and the Devil appearing in human bodies; and the burning of the Bible.

Appeals Court Removes Court Martial Judge For Bias In Ft. Hood Shooter Case

As reported by the Washington Post yesterday, accused Fort Hood shooter Maj. Nidal Hasan won a significant victory yesterday in his ongoing battle with a military judge who refuses to allow him to wear a beard during his murder trial. Hasan has asserted the refusal violates his rights to the free exercise of religion. (See prior related posting.) In Hasan v. Gross, (Armed Forc. Ct. App., Dec. 3, 2012), the U.S. Court of Appeals for the Armed Forces in a per curiam opinion not only held that there was insufficient evidence to show that Hasan's beard materially interfered with the court martial proceedings, but also held that court martial judge Gregory Gross should be removed from the case because of the appearance of bias. The court said in part:

the decision to remove Appellant from the courtroom, the contempt citations, and the decision to order Appellant’s forcible shaving in the absence of any command action to do the same, could lead an objective observer to conclude that the military judge was not impartial towards Appellant.... [I]t could reasonably appear to an objective observer that the military judge had allowed the proceedings to become a duel of wills between himself and Appellant rather than an adjudication of the serious offenses with which Appellant is charged. Moreover, we are cognizant that the military judge and his family were present at Fort Hood on the day of the shootings.

The court also vacated Hasan's contempt convictions and the judge's order to forcibly shave him. It said: "We need not and do not decide if and how RFRA might apply to Appellant’s beard. Should the next military judge find it necessary to address Appellant’s beard, such issues should be addressed and litigated
anew."

Chaplain Sues Church-State Activist For Defamation, Abuse of Process

Earlier this year, a Texas state trial court dismissed a suit brought by Mikey Weinstein, founder of the Military Religious Freedom Foundation (MRFF), against former Navy chaplain Gordon Klingenschmitt, contending that Klingenschmitt was conspiring to encourage violence against him through use of "imprecatory prayers." The court concluded that Weinstein had shown no connection between the prayers and the threats and vandalism suffered by his family. (See prior posting.) Last week, Klingenschmitt reciprocated, filing suit against Weinstein and MRFF in state court in New Mexico claiming defamation and malicious abuse of process. The complaint (full text) in Klingenschmitt v. Weinstein, (NM Dist. Ct.), alleges in part:

The factual assertion or implication that Klingenschmitt’s 2009 prayers somehow incited or caused unidentified others to commit acts of vandalism including “a swastika emblazoned on their home in New Mexico, animal carcasses left on their doorstep and feces thrown at the house,” is demonstrably false in that both Mikey and Bonnie Weinstein have admitted these acts of vandalism occurred in 2006, 2007 or 2008, and therefore could not have been caused by Klingenschmitt’s 2009 prayers....

Upon information and belief, the primary motive for Weinstein and Bonnie L. Weinstein to file the lawsuit against Klingenschmitt was an illegitimate end, specifically to cause Klingenschmitt or his interests financial difficulties, to prevent Klingenschmitt from promoting his philosophy or his religious beliefs, to marginalize Klingenschmitt’s influence, goals, and impact, and to subject Klingenschmitt to the expense, delay, and distraction of protracted litigation.

In a Dec. 2 press release, Klingenschmitt announced that Weinstein had been served in the lawsuit. God and Country blog reports on the lawsuit.

Monday, December 03, 2012

French Lawyer Fined, Faces Discipline, For Alleging Judicial Religious Bias Based On Jewish Name

Digital Journal reports that in Lyon, France last week, the Lyon Bar referred lawyer Alexis Dubruel for disciplinary proceedings after Dubruel sought disqualification of a judge because of the judge's Jewish name. Dubruel, representing a grandmother seeking to obtain visitation rights to see her granddaughter, argued that Judge Albert Levy should be disqualified for lack of impartiality. According to Dubrel:

The presiding judge whose disqualification is sought has the surname "Levy". The "Papa" of the person in this case Miss X (...) had been prosecuted for the offence of taking away a minor under 18, is named Moses (Moïse). The first page of reference for the word "Lévy" on Wikipedia says that the word is, “according to tradition, the founder of the Jewish religion, Judaism, which is sometimes called, for this reason, Mosaic, that is to say, the religion of Moses. The materiality of these findings is incontestable.

The court denied Dubrel's motion and fined him 750 Euros. According to The Algemeiner, in an earlier hearing a client of Dubruel's felt she was unfairly treated and attributed it to Levy's bias in favor of a Jewish defendant. Judge Levy has previously been the subject of anti-Semitic attacks, including threats when he investigated the far-right Front National Party and his being placed under police protection when an Islamist group threatened him.

Appeals Court Says Amish Must Abide By Consent Judgment On Sewers

In Wagler v. West Boggs Sewer District, Inc., (IN App., Nov. 29, 2012), an Indiana appeals court refused to set aside consent judgments entered into by several members of an Old Order Amish community under which they are to connect to the public sewer system and install a grinder pump despite their religious beliefs that preclude using electricity from the public grid and being on a public utility sewer.

Federal Court Upholds Nevada's Ban On Same-Sex Marriage

In Sevcik v. Sandoval, (D NV, Nov. 26, 2012), a Nevada federal district court upheld against an Equal Protection Clause challenge the constitutionality of Nevada's ban on same-sex marriages. Nevada does recognize same-sex and opposite-sex domestic partnerships, with the parties having most, but not all, of the same rights and responsibilities as do spouses in a marriage. The court concluded that it need apply only rational basis scrutiny to Nevada's state constitutional provisions limiting marriage to heterosexual couples:

Here, there is no indication of any intent to maintain any notion of male or female superiority, but rather, at most, of heterosexual superiority or “heteronormativity” by relegating (mainly) homosexual legal unions to a lesser status....

The States are currently in the midst of an intense democratic debate about the novel concept of same-sex marriage, and homosexuals have meaningful political power to protect their interests. At the state level, homosexuals recently prevailed during the 2012 general elections on same-sex marriage ballot measures in the States of Maine, Maryland, and Washington, and they prevailed against a fourth ballot measure that would have prohibited same sex marriage under the Minnesota Constitution. It simply cannot be seriously maintained, in light of these and other recent democratic victories, that homosexuals do not have the ability to protect themselves from discrimination through democratic processes such that extraordinary protection from majoritarian processes is appropriate.

Applying rational basis scrutiny, the court concluded that "the protection of the traditional institution of marriage, which is a conceivable basis for the distinction drawn in this case, is a legitimate state interest." The court also held that protection of Nevada's public policy is a valid reason for it to refuse to recognize same-sex marriages performed in other states. AP reporting on the decision says that plaintiffs plan an appeal.

Sunday, December 02, 2012

State Court Says Louisiana Voucher Program Violates State Constitution

In Louisiana Federation of Teachers v. State of Louisiana, (LA 19th Dist. Ct., Nov. 30, 2012), a Louisiana trial court held that the state's voucher program unconstitutionally diverts to nonpublic schools or entities funds which the state constitution's Minimum Foundation Program allocates to elementary and secondary public schools. The court said that its decision, however, does not foreclose "establishing educational programs that are funded outside the constitutional limitations of the Minimum Foundation Program...." Ponchartrain Newspapers reports more extensively on the testimony in the case, the decision and the reaction to it.

Raelians Ask UN Human Rights Council To Investigate Switzerland's Actions Against Them

Last week, the International Raelian Movement filed a Petition (full text) with the United Nations Human Rights Council asking it to investigate Raelian charges that Switzerland, conspiring with the Vatican, has misused the European Court of Human Rights to defame the Raelian movement. The petition reads in part:

The honor and reputation of the entire leadership of a recognized worldwide religious movement has been intentionally defamed based on a manipulation of the facts by Judge Bratza of the European Court of Human Rights in a case involving Switzerland’s refusal to permit the inoffensive poster above to be displayed in public. Underlying this betrayal of justice by Judge Bratza was a conspiracy by Switzerland and the Vatican to bizarrely label the Raelian Movement leadership as pedophiles in retaliation for its stand against clerical pedophilia worldwide and in particular in francophone countries.

The European Court decision about which the Raelians complain is attached as an appendix to their petition. The Raelian Movement also issued a press release announcing the filing of their petition.

Recent Prisoner Free Exercise Cases

In Finney v. Marshall, 2012 U.S. Dist. LEXIS 167765 (ED TX, Nov. 27, 2012), a Texas federal magistrate judge dismissed as frivolous a complaint by a Mormon inmate that he was not allowed to take Sundays off from his job in the prison kitchen.

In Allen v. Hense, 2012 U.S. Dist. LEXIS 168217 (ED CA, Nov. 26, 2012), a California federal magistrate judge dismissed a Muslim inmate's complaint that on one day during his Administrative Segregation Unit confinement he was served the regular breakfast and sack lunch instead of his religious vegetarian meal.

In Heggem v. Holmes, 2012 U.S. Dist. LEXIS 168935 (WD WA, Nov. 27, 2012), a Washington federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 168936, Oct. 4, 2012) and dismissed an inmate's claims that the revocation of her alternative drug offender sentence involved retaliation because of her religious beliefs. Prior litigation had already rejected the same contentions.

In Lapine v. Vilgos, 2012 U.S. Dist. LEXIS 170011 (WD MI, Nov. 27, 2012), a Michigan federal district court rejected free exercise retaliation and equal protection claims by a Native American inmate who had a disciplinary misconduct charge for threatening behavior filed against him after he disrupted religious services because he was upset over new limits on the smudging ceremony.

In Goodson v. Clark, 2012 U.S. Dist. LEXIS 169906 (WD VA, Nov. 29, 2012), a Virginia federal district court dismissed an inmate's complaint that defendants told him that Satanism is not a religion recognized by the Department of Corrections and refused to allow him to order a Goat Head Star Amulet.

In Wall v. Wade, 2012 U.S. Dist. LEXIS 170537 (WD VA, Nov. 30, 2012), a Virginia federal district court dismissed an inmate's complaint that his rights were violated when he (along with 183 others) was removed from the Ramadan participation list for not having Islamic materials to demonstrate his religious sincerity.

In Cloyd v. Dulin, 2012 U.S. Dist. LEXIS 170100 (MD TN, Nov. 30, 2012), a Tennessee federal district court rejected a Muslim inmate's complaint that the prison's halal diet did not include real meat.

In Galdones v. Department of Public Safety, 2012 U.S. Dist. LEXIS 169824 (D HI, Nov. 29, 2012), an Hawaii federal district court dismissed without prejudice various claims by an inmate of interference with his practice of his Native Hawaiian religion and related retaliation and due process claims.

In Goodman v. Ramey, 2012 U.S. Dist. LEXIS 169264 (SD WV, Nov. 29, 2012), a West Virginia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 170527, May 17, 2012) and rejected an inmate's claim that his free exercise rights were violated when was disciplined for accepting a money order from the parents of another inmate who sent the money to thank him for being a "Christian brother" to their son.

Court Upholds Indiana's Marriage Solemnization Statute Over Objections of Secular Celebrant

In Center for Inquiry v. Clerk, Marion Circuit Court, (SD IN, Nov. 30, 2012), an Indiana federal district court rejected constitutional challenges to Indiana's marriage solemnization statute (IN Code 31-11-6-1). Under the statute, clergy can obtain a license to solemnize marriages, but those certified as "Secular Celebrants" by the non-religious Center for Inquiry cannot. The court said in part:

We conclude that the Solemnization Statute is rationally related to the legitimate purpose of alleviating significant governmental interference with pre-existing religious beliefs about marriage. Additionally, the statute bears a rational relation to the equally reasonable purpose of allowing the government to assume responsibility for the marriage regulation function without ostracizing its religious constituents. For these and all of the reasons explicated above, we find that Plaintiffs' First Amendment claim-whether grounded in Free Exercise Clause or Establishment Clause jurisprudence-does not succeed on the merits.

The court likewise rejected plaintiffs' equal protection claim. In reaching its conclusions, the court pointed out:

there are several readily available avenues by which a Secular Celebrant may facilitate a marriage ceremony in Indiana: she may (1) preside at a wedding and then instruct the couple to go before one of the individuals listed in the Solemnization Statute to have the marriage solemnized; (2) become a member of the "clergy" by seeking immediate Internet ordination from the Universal Life Church; or (3) seek certification to solemnize marriages from the Humanist Society.

Saturday, December 01, 2012

Federal Court Refuses To Order Trailer of "Innocence of Muslims" Taken Down From YouTube

As reported by AP, a federal court in Los Angeles on Friday refused to grant a preliminary injunction to actress Cindy Lee Garcia who appears in the controversial film "Innocence of Muslims" and wants the trailer for the film removed from YouTube. Garcia claims she was deceived about the film's subject matter and that her voice was dubbed over after filming. Her federal lawsuit alleges copyright infringement. In Garcia v. Nakoula, (CD CA, Nov. 30, 2012), the court held that even if Garcia owns a copyright in her performance in the film, she necessarily "granted the Film’s author a license to distribute her performance as a contribution incorporated into the indivisible whole of the Film."

Oregon High Court Rules That Parent Church Owns Property of Breakaway Presbyterian Congregation

In Hope Presbyterian Church or Rogue River v. Presbyterian Church (U.S.A.), (OR Sup. Ct., Nov. 29, 2012), the Oregon Supreme Court held that the property of a break-away Presbyterian congregation belongs to PCUSA, the national church body. The court concluded that it would use the "neutral principles" approach in determining the rights of the parties. Applying that approach, the court found that "Hope Presbyterian held its property in trust for the benefit of PCUSA."

Text Of Egypt's Proposed Constitution-- Provisions On Religion

The full text of Egypt's proposed new Constitution became available today in English from Egypt Independent. BBC News has also published a side-by-side comparison of key provisions in the new constitution and those in the now-suspended 1971 Constitution. Here are some of the provisions in the new draft Constitution relating to religion and religious liberty:

Article 1 . The Arab Republic of Egypt is an independent sovereign state, united and indivisible, its system democratic. The Egyptian people are part of the Arab and Islamic nations, proud of belonging to the Nile Valley and Africa and of its Asian reach, a positive participant in human civilization.  

Article 2. Islam is the religion of the state and Arabic its official language. Principles of Islamic Sharia are the principal source of legislation.  

Article 3 . The canon principles of Egyptian Christians and Jews are the main source of legislation for their personal status laws, religious affairs, and the selection of their spiritual leaders.  

Article 4 . Al-Azhar is an encompassing independent Islamic institution, with exclusive autonomy over its own affairs, responsible for preaching Islam, theology and the Arabic language in Egypt and the world. Al-Azhar Senior Scholars are to be consulted in matters pertaining to Islamic law. 

The post of Al-Azhar Grand Sheikh is independent and cannot be dismissed. The method of appointing the Grand Sheikh from among members of the Senior Scholars is to be determined by law.

The State shall ensure sufficient funds for Al-Azhar to achieve its objectives. 

All of the above is subject to law regulations.  ...

Article 6.... No political party shall be formed that discriminates on the basis of gender, origin or religion.  ...

Article 10. The family is the basis of the society and is founded on religion, morality and patriotism. 

The State is keen to preserve the genuine character of the Egyptian family, its cohesion and stability, and to protect its moral values, all as regulated by law.....

Article 11. The State shall safeguard ethics, public morality and public order, and foster a high level of education and of religious and patriotic values, scientific thinking, Arab culture, and the historical and cultural heritage of the people; all as shall be regulated by law.  ...

Article 43. Freedom of belief is an inviolable right.

The State shall guarantee the freedom to practice religious rites and to establish places of worship for the divine religions, as regulated by law.

Article 44. Insult or abuse of all religious messengers and prophets shall be prohibited....

Article 60.... Religious education and national history are core subjects of pre-university education in all its forms....

UPDATE: Another provision of interest is Article 219: "The principles of Islamic Sharia include general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community."

Court Dismisses Challenge To City's Ban On Unattended Park Displays; Critics Plan Live Nativity Scene Instead

After denying a preliminary injunction earlier this month (see prior posting), a California federal district court this week in Santa Monica Nativity Scenes Committee v. City of Santa Monica, (CD CA, Nov. 29 2012) dismissed a challenge to a Santa Moncia (CA) ordinance that prevented a group from continuing the 60-year tradition of erecting a series Christmas story dioramas in Palisades Park during the holiday season. The court rejected plaintiff's contention that the City’s ordinance banning all unattended displays in Palisades Park violates the 1st Amendment's Free Speech and Establishment Clauses. Christian Post reported yesterday that a coalition of Christian groups plans to hold a Live Nativity Display in Palisades Park on Dec. 8. This is permissible since the city's ordinance bars only unattended displays.

Friday, November 30, 2012

British "Free Schools" Must Teach Evolution In Science Classes

In Britain, Free Schools are alternative state-funded schools set up in response to local demands. The first Free Schools opened in 2011. In January of this year, Britain's Department for Education revised its funding agreement for Free Schools to prevent the teaching of creationism in science classes, allowing it to be taught only in religious education classes. (The Guardian). Now, after pressure by the Royal Society as well as secular and humanist groups, the Department for Education has taken the next step. Free Schools also may not omit evolution from their science curriculum. Instead, according to Thursday's Guardian, a new clause has now been placed in funding agreements with Free Schools requiring them to "make provision for the teaching of evolution as a comprehensive, coherent and extensively evidenced theory." The Department for Education has approved three Free Schools run by groups with creationist views, though only one of these schools has opened so far. [Thanks to Scott Mange for the lead.]

Egypt's Constituent Assembly Hurriedly Adopts New Constitution

Egypt's constituent assembly hurriedly completed its work on a new constitution yesterday. (Reuters). President Morsi has said that his controversial decrees that have sparked over a week of protest will end when the people vote on the constitution. CTV News reports that the new constitution, which contains over 230 articles, was adopted by an Islamist dominated body: "Of the 85 members in attendance, there was not a single Christian and only four women, all Islamists." Reuters describes the new draft as leaving the status of Islam unchanged, in that it keeps a provision making the principles of Islamic law the main source of legislation. However it adds a new provision that the Sunni center of learning, Al-Azhar, must be consulted on "matters related to the Islamic sharia." Human Rights Watch offers this evaluation of the new document:

Article 43 on freedom of religion limits the right to practice religion and to establish places of worship to Muslims, Christians, and Jews. Previous drafts had provided for a general right to practice religion but limited the establishment of places of worship to adherents of these three Abrahamic religions. Article 43 discriminates against and excludes followers of other religions, including Egyptian Bahais. Under former President Hosni Mubarak, security forces would frequently arrest religious minorities including Shia, Ahmadis, Bahais, and Quranists because of their beliefs....

One positive development is that the final draft no longer includes what had been article 68 in earlier drafts on women’s rights, which stipulated that equality for women would be subject to conformity with rulings of Islamic law, a provision strongly promoted by Salafi members of the assembly. However, the draft no longer lists “sex” as one of the grounds for prohibiting discrimination, as no grounds are named. Article 30 now states that, “Citizens are equal before the law and equal in rights and obligations without discrimination,” without specifying whom this provision covers.