Pennsylvania County Issues Same-Sex Marriage Licenses Despite State Law Ban

AP reports that in Montgomery County, Pennsylvania (suburban Philadelphia), the county's Register of Wills, D. Bruce Hanes, has begun to issue marriage licenses to same-sex couples, despite the legal ban on such marriages in the state.  Hanes says he wants to come down "on the right side of history and the law." At least 5 same-sex couples were issued marriage license yesterday.  The county's district attorney says that the marriage licenses are not legal, but that the remedy for issuing an invalid does not include intervention by the district attorney. The state's attorney general has previously said that she will not defend the state's same-sex marriage ban, leaving enforcement to the governor's office.

Hotel Settles EEOC Suit Charging Failure To Accommodate Seventh Day Adventist Employee

The EEOC announced Tuesday the settlement of a lawsuit it had filed against a Nags Head, North Carolina hotel charging that the Comfort Inn's new management refused to continue a religious accommodation for a Seventh Day Adventist employee so she would not have to work on her Sabbath (sundown Friday to sundown Saturday).  In the settlement, the hotel agreed to pay $45,000 in damages to the fired employee, and to implement policies and training to prevent religious discrimination in the future.

Another Contraceptive Coverage Mandate Challenge-- This Time By PLC Law Firm and Its Principals

Yet another lawsuit challenging the Affordable Care Act's contraceptive coverage mandate has been filed-- this one by an employer that is a law firm organized as a Michigan professional limited liability company.  The federal court lawsuit was filed by the PLC and by the two brothers who are each 50% owners of the firm. One brother is Catholic and the other is Protestant.  The complaint (full text) in Willis & Willis PLC v. Sebelius, (D DC, filed 7/24/2013), challenges required coverage for contraceptives plaintiffs consider to be abortifacients.  Alleging 1st Amendment, RFRA and APA violations, the complaint contends in part:

Had Plaintiffs’ religious beliefs, or the beliefs of the millions of other Americans who share Plaintiffs’ religious beliefs been obscure or unknown, the Defendants’ actions might have been an accident. But because the Defendants acted with full knowledge of those beliefs, and because they arbitrarily exempt some plans for a wide range of reasons other than religious conviction, the Mandate can be interpreted as nothing other than a deliberate attack by the Defendants on Christianity, the religious beliefs held by Plaintiffs and the similar religious beliefs held by millions of other Americans.

Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Yosef and Lau Win Chief Rabbinate Election In Israel

According to reports by the Jerusalem Post and Times of Israel, the sons of two former chief rabbis were elected to ten year terms as the new Sephardi and Ashkenazi chief rabbis of Israel today.  Yitzhak Yosef, son of Shas party leader Ovadia Yosef, was chosen as the next Sephardi chief rabbi, beating out, among others,  Shmuel Eliyahu who had been criticized for allegedly racist statements.  David Lau, son of Yisrael Meir Lau, was elected Ashkenazi chief rabbi, dashing the hopes of those who backed David Stav, a moderate who represented the religious Zionist movement. (Background.) In the bitterly-fought election that originally involved 10 candidates, both Yosef and Lau received 68 of the 147 ballots actually cast. (See prior related posting.)

Would European Court Override Conscience Protections In British Same-Sex Marriage Law? Sikhs Fear So.

The Telegraph reported this week that in Britain the advisory group Sikhs In England has suggested to Sikh gurdwaras that they deregister themselves as venues for civil weddings to avoid possible legal challenges for refusing to conduct same-sex marriages which have recently been legalized in Britain. (See prior posting.) If Sikh temples follow the advice, they would be able to conduct religious marriage ceremonies, but couples would be required to have a separate civil ceremony elsewhere as well. While the new same-sex marriage law contains safeguards against compelling anyone with religious objections to perform or take part in same-sex ceremonies, Sikhs in England is concerned that the European Court of Human Rights might override these protections.

County Enjoined From Opening Board Meetings With Sectarian Prayer

ACLU reports that yesterday a North Carolina federal district court issued a preliminary injunction in  Lund v. Rowan County, barring the Rowan County (NC) Board of Commissioners from "knowingly and/or intentionally delivering or allowing to be delivered sectarian prayers" at official Board of Commissioners meetings. In March the ACLU filed suit on behalf of three local citizens complaining that 139 of the past 143 Rowan County Board of Commissioners meetings were opened with prayers that concluded with references to Jesus or other Christian concepts. (See prior posting.)  AP also reports on the decision.

USCIRF Elects New Chair, Vice-Chairs

The U.S. Commission on International Religious Freedom yesterday held its annual election for Chair of the Commission.   A USCIRF press release reports that Robert P. George, McCormick Professor of Jurisprudence at Princeton University and a Visiting Professor at Harvard Law School, was elected, succeeding Dr. Katrina Lantos Swett.  Also yesterday Dr. Swett and M. Zuhdi Jasser were elected Vice-Chairs.

Ohio's Refusal To Recognize Maryland Same-Sex Marriage Held Likely Unconstitutional

In Obergefell v. Kasich, (SD OH, July 22, 2013), an Ohio federal district court granted a temporary restraining order requiring the state to recognize the validity of a same-sex marriage performed in Maryland.  The court, relying on the U.S. Supreme Court's recent Windsor decision, as well as its earlier decision in Roemer v. Evans, held in a 15-page opinion:

Quintessentially, Plaintiffs have established a substantial likelihood that they will prevail at trial on their claim that by treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied here, violates the United States Constitution which guarantees that "No State shall make or enforce any law which shall ... deny to any person within its jurisdiction equal protection of the laws."

Plaintiffs had been living together in a committed relationship for over 20 years. They recently traveled to Maryland to marry as one of the two, John Arthur, was approaching death from ALS. The court's TRO (full text) orders the local state registrar to only accept a death certificate that lists John Arthur as married at the time of his death and that lists James Obergefell as his surviving spouse. The Washington Blade reports on the decision.

1st Circuit: Creating Church As Historic District Did Not Unduly Burden Free Exercise

In Roman Catholic Bishop of Springfield v. City of Springfield, (1st Cir., July 22, 2013), the U.S. 1st Circuit Court of Appeals dismissed challenges by the Catholic Bishop of Springfield, Massachusetts to the city's creation of an historic district to protect the Italian Renaissance style Our Lady of Hope Church.  The District was created at the urging of parishioners after the Bishop announced the closing of the Church. The Court held that because the Bishop has taken no further steps to deconsecrate, sell or lease the Church, and has not sought permission from the Springfield Historical Commission to alter the Church's exterior, various of the claims "lack the requisite concreteness to warrant resolution of whether hypothetical outcomes transgress RLUIPA or either the federal or state constitutions." However, plaintiff was permitted to proceed on the claim that the mere enactment of the ordinance imposed delay, uncertainty and expense on its planning for use of the building. The Court concluded, however, that the requirement to submit future plans to the Springfield Historical Commission for approval does not violate RLUIPA's substantial burden or equal terms provisions, nor does it violate the free exercise clause:

there is no evidence that suppression of Catholic religious practices was the object of the Ordinance. The text of the Ordinance requires only that RCB file an application with the SHC before making any changes to the exterior of the Church. The language of the Ordinance does not require RCB to perform or forego any particular practice, and it does not prohibit deconsecration or even closing of the Church outright. While the circumstances of the Ordinance's enactment reveal that the Ordinance was motivated at least in part by a desire to prevent demolition of the Church -- a possible outcome of RCB's religious decisionmaking process -- there is no evidence that this goal was rooted in "animosity to religion or distrust of its practices." 

EEOC Sues Over Failure To Accommodate Seventh Day Adventist

The EEOC announced last week the filing in June of a lawsuit against United Cellular, Inc. in an Alabama federal district court alleging refusal to accommodate a Seventh Day Adventist's need to observe his Sabbath.  Charles Embry was hired as a technician in July 2011. In Fall 2011 the company began to insist that Embry work weekends, and when Embry refused to work from Friday evening to Saturday evening, he was fired. The case is EEOC v. United  Cellular, Inc., Case No. CV-13-JHE-1207-NE, (ND AL, filed 6/27/2013).

Decedent's Sister Lacked Standing To Sue Wife Over Cremation Decision

In Cohen v Marcus L. Bianconi Funeral Home, Ltd., (NY Sup. Ct., Sept. 10, 2012), decided last year but just posted this week by New York's Official Reports, a New York trial court dismissed a suit brought by a man's sister who objected to the fact that his remains were cremated rather than buried in an Orthodox Jewish cemetery. The sister, in a suit against the deceased's Italian Catholic wife, her family and the funeral home, claimed she suffered emotional distress from her brother being cremated against his moral beliefs and express wishes. The court held that under New York Public Health Law Sec. 4201, only the surviving spouse had authority to control disposition of the decedent's remains. His sister lacked standing to bring the lawsuit.

USCIRF Calls On Ethiopia To Release 29 Religious Freedom Protesters

The U.S. Commission on International Religious Freedom yesterday issued a press release calling on the Ethiopian government to release 29 Muslims who were among a larger group initially arrested a year ago. While most were released, the 29 were eventually charged under the government’s Anti-Terror Proclamation. The arrests grew out of Friday protests beginning in December 2011 against efforts by the government and the Ethiopian Islamic Affairs Supreme Council to impose the al-Ahbash interpretation of Islam. USCIRF Chair Katrina Lantos Swett said: "We are deeply concerned that Ethiopia’s government is seeking to silence peaceful religious freedom proponents by detaining and trying them in secret under trumped-up terrorism charges."

Anniversary of Only Holy Communion On The Moon

Today's Daily Mail reports on a often forgotten anniversary.  On July 20, 1969, Buzz Aldrin aboard the Apollo 11 lunar module, about to follow Neil Armstrong onto the moon's surface, became the first, and only, person to celebrate Holy Communion on the moon. Armstrong's church, Western Presbyterian in Houston, Texas supplied him with the small plastic container of wine and the bread used. Aldrin, an elder in the church, had permission from the church's general assembly to administer communion to himself. Aldrin had wanted to broadcast his acts back to earth, but NASA vetoed the idea after atheist Madalyn Murray O'Hair had sued over astronauts on Apollo 8 reading a quote from Genesis while in orbit.

Recent Articles of Interest

From SSRN:

• Liav Orgad, Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy, (Canadian Journal of Law and Jurisprudence, 2014, Forthcoming).
• Michael J.T. McMillen, Islamic Capital Markets: Overview and Select Shari`ah Governance Matters, (Inside the Minds: Financial Services Enforcement and Compliance, Forthcoming).
• Michael J.T. McMillen, Islamic Banking: Shari'a Governance, (Oman Client Alert: Curtis, Mallet-Prevost, Colt & Mosle LLP, 2012).
• Christopher C. Lund, Church Autonomy Reconceived: The Logic and Limits of Hosanna-Tabor, (Northwestern University Law Review, Vol. 108, No. 2, 2014 Forthcoming).
• Leslie Green, Should Law Improve Morality?, (Criminal Law and Philosophy, Forthcoming).
• Patrick McKinley Brennan, 'The Pursuit of Happiness' Comes Home to Roost? Same-Sex Union, the Summum Bonum, and Equality, (BYU Journal of Public Law, Vol. 27, Issue 2, 2013).
• Anthony C. Infanti, The Moonscape of Tax Equality: Windsor and Beyond, (Northwestern University Law Review Colloquy, 2013, Forthcoming).

From SmartCILP and elsewhere:

• Thomas E. Rutledge, A Corporation Has No Soul-- The Business Entity Law Response to Challenges to the Contraceptive Mandate of the PPACA, William and Mary Business Law Review, Vol. 5, Issue 1, 2014, Forthcoming.
• W. Wesley Hill, Thou Shalt Opt Out: Reforming the Religious Conscience Exemption from Social Security and the Affordable Care Act Based on State Experience, [Abstract], 43 University of Memphis Law Review 659-710 (2013).
• Nimer Sultany, Against Conceptualism: Islamic Law, Democracy, and Constitutionalism in the Aftermath of the Arab Spring, 31 Boston University International Law Journal 435-463 (2013).

Recent Prisoner Free Exercise Cases

In Manning v. Meinzer, 2013 U.S. Dist. LEXIS 98417 (ED AR, July 15, 2013) an Arkansas federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 98419, June 20, 2013) and dismissed an inmate's claims that he was denied the opportunity to receive full-immersion baptism within a reasonable time after his request.

In Munson v. Gaetz, 2013 U.S. Dist. LEXIS 99468 (SD IL, July 17, 2013), an Illinois federal district court rejected an inmate's claim that a vegetarian diet containing soy substantially burdened his religious practice. The magistrate's report in the case is at 2013 U.S. Dist. LEXIS 99871, Feb. 4, 2013.

In Shatner v. Atchison, 2013 U.S. Dist. LEXIS 100318 (SD IL, July 17, 2013), and Illinois federal district court permitted an inmate to proceed with claims that his free exercise rights were infringed when prison authorities seized his deck of religious tarot cards, religious books, artwork and cassette tapes. However the court dismissed claims that his free exercise rights were infringed by seizure of his typewriter that he used to write religious magazine articles, and his radio.

In Thompson-Jones v. Gossage, 2013 U.S. Dist. LEXIS 100513 (ED WI, July 18, 2013). a Wisconsin federal district court permitted a jail inmate who claims to embrace the Hebrew-Israelite to proceed with his claim that his free exercise and equal protection rights are infringed when authorities required that he prove that he practices the faith in order to receive a kosher diet.

In Draper v. Mascher, 2013 U.S. Dist. LEXIS 100585 (D AZ, July 16, 2013), an Arizona federal district court dismissed, with leave to amend, an inmate's claim that his religious exercise rights were infringed when authorities failed to provide him with Jehovah's Witness materials and denied him a vegetarian diet.

In Dayson v. Caruso, 2013 U.S. Dist. LEXIS 99621 (WD MI, July 17, 2013), a Michigan federal district court dismissed a Native American inmate's complaint regarding restrictions on tobacco, herbs, and other ingredients of smudging, and his complaint that he was deprived of his Native American flute.

In Glenn v. N.H. State Prison Family Connections Center, 2013 U.S. Dist. LEXIS 99777 (D NH, July 17, 2013), a New Hampshire federal district court dismissed complaints by a Muslim inmate that while the state's prison system employs two chaplains who are both Christian, it does not employ an Imam qualified to conduct Jum'ah services but instead relies on Approved Religious Volunteers when they are available.

In Osgood v. Amato, 2013 U.S. Dist. LEXIS 99514 (ND NY, July 17, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 99866, June 10, 2013) and dismissed an inmate's complaint that prisoners in involuntary protective custody are prevented from practicing religion.

In Hamilton v. Fischer, 2013 U.S. Dist. LEXIS 100672 (WD NY, July 18, 2013), a New York federal district court held that allegations by an inmate that authorities ripped out his dreadlocks adequately stated a free exercise claim.

In Wright v. Smith, 2013 U.S. Dist. LEXIS 100815 (ED CA, July 18, 2013), a California federal magistrate judge recommended dismissing for failure to exhaust administrative remedies an inmate's claims for denial of religious meals, denial of access to a rabbi, and lack of Jewish materials in the chapel, but recommended that plaintiff be permitted to proceed on claims for denial of access to his religious prayer items.

In Banks v. Beard, 2013 U.S. Dist. LEXIS 99905 (MD PA, July 17, 2013), a Pennsylvania federal district court, while denying most of the discovery requests by a Muslim inmate in a suit over holiday meals and prayer oils, ordered prison officials to provide plaintiff a breakdown by category of the 42 grievances based on religious issues filed by inmates during a 4-year period.

6th Circuit: County's Invocation Policy Facially Valid; But Continues For Decision On "As Applied" Challenge

In Jones v. Hamilton County Government, Tennessee, (6th Cir., July 19, 2013), the U.S. 6th Circuit Court of Appeals rejected a facial constitutional challenge to the invocation policy of the Hamilton County (TN) Commission.  Shortly after a lawsuit was filed challenging the opening of meetings with prayers that were often Christian, the Commission adopted a new invocation policy inviting religious leaders throughout the county to offer invocations. Focusing on the facial challenge to that policy, the court said:

On its face, the Policy complies with Marsh and does not advance one faith or belief over another. Thus, the district court properly denied to issue a preliminary injunction on this basis.

Turning to an "as applied" challenge to the policy, the court also upheld the district court's denial of a preliminary injunction, noting that only two Commission meetings occurred under the revised Policy prior to the district court's hearing on the matter.  The court said:

Based on two instances in a relatively short period of time, the Court cannot say whether the Commission’s application of its Policy proselytizes or advances Christianity or disparages other beliefs. ... 

However it concluded that the case should proceed in the district court since now almost a year had passed and there would be a sufficient record to decide whether the policy as applied is constitutional. AP reports on the decision.

St. Louis Archbishop Sued By Teenage Girl's Family Over Sexual Contacts By Priest and Alleged Evidence Tampering

AP and the St. Louis Post-Dispatch report on a lawsuit filed recently in state court in Lincoln County, Missouri by parents of a teenage girl who was sexually fondled by a 29-year old priest. The priest, Rev. Xiuhui “Joseph” Jiang, has already been charged criminally with endangering the welfare of a child. (St. Louis Post Dispatch.)  The civil lawsuit  against the Archdiocese of St. Louis and Archbishop Robert Carlson alleges that the Archbishop "knew that Father Jiang was dangerous to children" and "that allowing Father Jiang access to minors as part of his duties as a priest would result in Father Jiang harming minors."  The suit also charges Carlson with attempting to tamper with evidence by asking for the return of a $20,000 check that Jiang had left on the plaintiff family's car in apology for his actions. Reacting to the lawsuit, the Archdiocese issued a statement saying: "These new allegations against the archdiocese and the archbishop are false and will be denied in an answer to the lawsuit filed in court."

District Judge Reluctantly Grants Hobby Lobby Preliminary Injunction In Contraceptive Mandate Challenge

As previously reported, a divided en banc 10th Circuit last month held that Hobby Lobby Stores and Mardel, Inc. had demonstrated a likelihood of success on their claim that the Affordable Care Act contraceptive coverage mandate substantially burdens their free exercise rights. The case was remanded to the district court for findings on the balance of equities and the public interest before issuing a preliminary injunction. Yesterday, as reported by The Oklahoman, Oklahoma federal district court Judge Joe Heaton issued a preliminary injunction to prevent enforcement of the mandate against the two businesses. However, in his ruling from the bench, he indicated his disagreement with the 10th Circuit's reasoning, calling the 10th Circuit's view that corporations have religious exercise rights an “exotic definition of personhood.” and a "political fiction."

British Appeals Court Upholds Asylum Denial; Returning Boy To Be Circumcised and Rasied As Muslim Does Not Violate His Rights

In SS (Malaysia) v. Secretary of State, (EWCA, July 18, 2013), Britain's Court of Appeal, upheld the denial of asylum to a Roman Catholic woman from Malaysia visiting England and to her 6 year old son.  The woman, whose husband (still in Malaysia) had recently converted to Islam, objected to the fact that if she returned her husband would insist their son be raised as a Muslim and circumcised.  The court concluded that returning the mother and her son to Malaysia would not violate their rights under the European Convention on Human Rights. The court said in part:

C himself is only 6 years of age and although he has been baptised a Christian and admitted into the Roman Catholic church, there is no reason to think that he has as yet formed any independent religious faith. He will be able to make his own decisions about religious matters when he grows up..... 

Male circumcision is a widespread religious and cultural practice which has ancient origins....  Although invasive in nature and not commanding universal approval, it is regarded as an acceptable practice among communities of all kinds, provided it is carried out under appropriate conditions.... It is not necessary for the purposes of this appeal to decide whether circumcision may under certain circumstances involve an infringement of the child's rights under article 3 or 8 of the Convention. The tribunal's findings make it clear that in this case C would have the positive emotional support of his father and that he would be conforming to the broad expectations of the culture and society in which he would grow up.

[Thanks to Paul de Mello for the lead.] 

Ohio Board Approves Statehouse Holocaust Memorial Over Church-State Objections To Design

AP reports that in Ohio, the state's Capitol Square Review and Advisory Board yesterday approved a privately-funded $1.8 million Holocaust memorial to be placed on the statehouse grounds.  The winning design by famed architect Daniel Libeskind has become controversial after the Freedom From Religion Foundation in June raised church-state objections to the design which includes a Star of David as a prominent part of the memorial.  FFRF wrote (full text of letter and press release) in part:

FFRF believes with the state of Ohio it is important to memorialize the Holocaust. We also believe that the solemnity and import of the task can be accomplished without permanently placing a religious symbol on government property.

As reported by Tablet Magazine (which carries a photo of the memorial's design), long-time chairman of the Capitol Square advisory board, Richard Finan, has also strongly opposed the monument, even ordering a mock-up of the design made from plastic pipes, barrels and a tarp to be constructed at the last minute to show how it will look.  It appears that Finan's original objections to the monument were its clash with the historical Civil War theme of the statehouse grounds.  He also warned that the state might be sued over the monument.  After the Board approved the monument over his objections yesterday, Finan's church-state concerns seemed to increase. Finan told AP that  "a reasonable memorial, something smaller" would have been all right, "but this is just too much to the Jewish religion." Finan has submitted his resignation as chairman of the Capitol Square Review and Advisory Board effective in October.

Court Dismisses Suit Alleging Dearborn Teachers Were Discriminated Against Because They Were Not Muslim

In Purcell v. Fadlallah, (ED MI, July 17, 2013), a Michigan federal district court dismissed a lawsuit that had been brought by two teachers who claimed they suffered discrimination in the Dearborn, Michigan schools because they were neither Muslim nor Arab.  The court said in part:

This case began with highly alarming allegations of gross misconduct and nearly unimaginable religious intolerance manifested, most shockingly, by the highest-ranking officials in a public school. If it were true that a public school was being transformed into a religiously restricted, unconstitutionally discriminatory environment, and that objecting employees were made to suffer for their opposition to it, such information should have been proved up and substantial penalties imposed upon the responsible parties. With the complaint, the fuse to this explosive case was lit. But it eventually fizzled out in the absence of evidence, or perhaps in the wake of inattention-the court knows not which.....

Suit Claims Sunday Hunting Ban Violates Religious Freedom Rights and Other Constitutional Protections

In Pennsylvania this week, a sportsmen's group known as Hunters United for Sunday Hunting filed a lawsuit in federal district court seeking to void on constitutional grounds Pennsylvania's ban on most Sunday hunting.  The complaint (full text) in Davis v. Pennsylvania Game Commission, (MD PA, filed 7/16/2013) contends, among other things, that the ban has a religious, not a secular basis.  It also contends in general terms that the ban "compels conduct that violates specific tenets of the religious beliefs of some H.U.S.H members" in violation of Pennsylvania's Religious Freedom Protection Act.  The complaint additionally alleges that the ban violates plaintiffs' right to bear arms as well as their equal protection rights under the state and federal constitutions.  Yesterday's Central Pennsylvania Patriot-News reports on the filing of the lawsuit.

Catholic Church Is Opposing California Bill to Create Another Limitations Window For Child Sex Abuse Suits

AP reported yesterday that in California the Catholic Church is actively opposing state Senate Bill 131 which would which would create a one-year window for filing of childhood sexual abuse cases that are currently barred by the state's statute of limitations.  A similar one-year window was enacted in 2003. An Action Alert by the California Catholic Conference urges Californians to contact their State Assembly member to urge a "no" vote on the bill, arguing that: "The change in statute of limitations only applies to private or non-profit employers like the YMCA or the Church.  It does not apply to public schools, other public agencies or even to the perpetrator himself." AP says that the Catholic Conference has spent more than $70,000 so far to oppose the bill. The current statute of limitations has an absolute cutoff of age 26 for bringing child sex abuse claims.

RI Governor Vetoes Bill Authorizing "Choose Life" Plate On Church-State Grounds

As reported by Fox News, on Tuesday Rhode Island Gov. Lincoln Chafee vetoed (full text of veto message) H 5053 (full text) which authorized a "Choose Life" specialty license plate with a portion of the proceeds from its sale gong to Care-Net- Rhode Island. In his veto message, Chaffee said that Care-Net was originally founded by the Christian Action Council and Care-Net's aim is "to share the love and truth of Jesus Christ...." Chaffee continued:

The Framers of the United States and Rhode Island Constitutions constructed strong walls of separation between church and state. This bill compels the state to collect and distribute funds to an organization that advocates a particular religious and political viewpoint. It is my belief that state participation in the transmission of funds to this organization would violate the separation of church and state, one of the fundamental principles upon which our state was founded.

 [Thanks to Blog from the Capital for the lead.]

Israel Approaches Chief Rabbinate Elections Amid Flood of Legal Charges and Personal Bitterness

Haaretz today profiles the 6 candidates running for the position of Ashkenazi Chief Rabbi and the 4 running to become the next Sephardi Chief Rabbi in Israel. Elections are scheduled for July 24. The chief rabbis are elected by a 150-person Special Election Committee that includes municipal rabbis, religious court judges, mayors, council heads, the IDF chief rabbi, and several Knesset members. (Jewish Press.) The two Chief Rabbis make up the Chief Rabbinate that has legal authority in the country over many Jewish religious and personal status issues, as well as over Israel's Rabbinical Courts. The Chief Rabbis are elected for 10 year terms. This year's election has been filled with political and legal intrigue, as well as bitter personal campaigning.  Here are just a few examples:

On the Sephardi slate, Yitzhak Yosef, son of the current Sephardi Chief Rabbi, won his father's endorsement only after his brother (whom his father preferred) was interrogated by police on  suspicion of breach of trust, conflict of interests and inappropriate conduct. The candidacy of Safed Chief Rabbi Shmuel Eliyahu is being challenged before Israel's High Court of Justice because he has made a series of allegedly racist anti-Arab statements and religious rulings over the years. Israel's Attorney General has urged Eliyahu to step down as a candidate.

On the Ashkenazi side, much of the focus is on the candidacy of David Stav, a moderate religious Zionist rabbi who is supported by the Habayit Hayehudi party which is an important component of Benjamin Netanyahu's coalition government. Currently both Chief Rabbi positions are held by non-Zionist haredi rabbis who staunchly oppose Stav.  As reported by Arutz Sheva earlier this week, Rabbi Shalom Cohen, a senior member of the Council of Sages of the Sephardic Shas party, in a sermon over the weekend delivered in the presence of Shas party spiritual leader Rabbi Ovadia Yosef, referred to religious Zionist rabbis as "Amalek."  That reference is a particularly volatile one because of the Biblical command to annihilate the Amalekites. Meanwhile the current Ashkenazi Chief Rabbi, Yona Metzger, is under investigation by the police on charges of fraud, money laundering and accepting bribes. (See prior posting.) As reported by JTA, Metzger has suspended himself from the presidency of the  Chief Rabbinate Council and from his position as a Rabbinical High Court judge while the investigation is under way.

Court Enjoins Veterans Memorial Containing Religious Symbols

In American Humanist Association v. City of Lake Elsinore, (CD CA, July 16, 2013), a California federal district court held that the design of a monument to military veterans that was to be installed at the city of Lake Elsinore-owned Diamond Stadium likely violates the Establishment Clause.  The monument, as finally approved by city council, depicts a soldier kneeling before a Christian cross, with several more crosses and a Star of David in the background.  Reviewing at length the history of the design of the monument, the court concluded: "it is likely that Plaintiffs will be able to demonstrate that the Latin crosses and Star of David were included ...because of their religious symbolism," and that "Plaintiffs are likely to prevail on their contention that a reasonable observer would perceive [the monument] as 'sending primarily a message of' endorsing religion." The court issued a preliminary injunction barring the City of Lake Elsinore, California from displaying the monument in front of the stadium. American Humanist Association issued a press release announcing the decision, and Opposing Views reports on the decision. (See prior related posting.)

USCIRF Chronicles Religious Violence In Pakistan

The U.S. Commission on International Religious Freedom today issued a Fact Sheet on Pakistan’s History of Violence: A Chronology of Targeted Violence against Religious Communities (January 2012-June 2013). The 40-page report, produced by USCIRF's Pakistan Religious Violence Project, found that during that time period there were:

203 incidents of sectarian violence resulting in more than 1,800 casualties, including over 700 deaths. The Shi’a community bore the brunt of attacks from militants and terrorist organizations, with some of the deadliest attacks occurring during holy months and pilgrimages.

However Christians, Ahmadis, Hindus, Sikhs and others were also targets of violence.

British House of Commons Gives Final Approval To Same-Sex Marriage; Authorizes Study of Humanist Ceremonies

In Britain yesterday, the House of Commons approved the House of Lords amendments to the Marriage (Same Sex Couples) Bill (full text of bill), sending the bill to the Queen for Royal Assent-- a formality in Britain. Here is the full text of the debate in the House of Commons on the Lords' Amendments. Section 2 of the bill provides broad religious protections, assuring that no one may be compelled to participate in any way in conducting or authorizing a same-sex marriage.

On a separate issue, Section 14 of the bill provides for the Secretary of State to review whether humanist marriage ceremonies should be authorized in England and Wales (as they already are in Scotland). The debate in Commons includes the following as part of an exchange on the amendments relating to humanist ceremonies:

Does [a fellow-MP] agree that there are important protections in the amendments made in the other place to prevent the possibility of crazy things such as Jedi weddings? This is about humanist weddings, which are very specific. It is not about commercial weddings, Jedi weddings or any of the other scaremongering that we have heard.

(See prior related posting.)

UPDATE: July 17 Canadian Press reports that the Queen has given formal royal assent to the bill.

Israeli Lawsuit Seeks Damages For Closing of Temple Mount to Jews On 9th of Av

In Israel in the Old City of Jerusalem, the Temple Mount is administered by the Muslim Wakf in coordination with the Jerusalem police.  Today, which is Tisha B'Av (9th of Av), the day in the Jewish calendar commemorating the fall of the First and Second Temples, Jerusalem police prevented Jews, including a number of prominent Israeli politicians, from entering the site on which those Temples formerly stood because of fear of Muslim rioting. The Dome of the Rock, holy to Muslims, now sits on the Temple Mount. The Jerusalem Post reports that the tension always surrounding the site-- was exacerbated as Tisha B'Av coincided this year with Ramadan. The police decision, made after security assessments, was criticized by a number of politicians.  The Joint Staff of the Temple Har Habayit filed a lawsuit seeking compensation of NIS 5000 ($1400 US) for travel costs, lost wages and pain and suffering for every Jew denied entry.  Apparently border police had promised in advance that the site would be open to Jews today.

With Approval By Lords, Britain Moves Close To Final Approval of Same Sex Marriage Bill

The Telegraph reports that in Britain yesterday the House of Lords approved the Marriage (Same Sex Couples) Bill.  The transcript of all the House of Lords debates on the bill, along with links to other information on it, are available on Parliament's website.  The bill passed the House of Commons in May. (Report on House of Commons debates.)  The bill now goes back to Commons for approval of amendments that were made in the House of Lords. According to The Telegraph, unless unexpected objections arise in Commons, it is expected that the bill will receive Royal Assent within days, opening the way for the first same-sex marriages in England and Wales by next summer.

Russian Orthodox Church Strikes Back At Rock Group Through Video Game

As previously reported, in Russia last year two members of the punk group Pussy Riot were sentenced to two-years in prison for 'hooliganism motivated by religious hatred" after the band's an anti-Putin protest performance in Christ the Savior Cathedral. Now, according to Radio Free Europe, the Russian Orthodox Church has found an interesting way to strike back at the punk rock group:

A video game was showcased at a recent Russian Orthodox youth festival in Moscow that encourages players to "kill" members of the feminist punk-rock collective Pussy Riot. 

In the game, "Don't Let Pussy Riot Into The Cathedral," players use an Orthodox cross to snuff out the balaclava-clad women before they enter a domed white church.... When the Pussy Rioters enter the church in the game, they reappear atop the church with horns on.

Grant Funding Denial Raises Issue of When Content of Youth Programs Is Religious

A dispute is simmering in Bossier Parish, Louisiana over the denial of further state-administered federal grant funding to two youth programs operated by the Bossier Parish Sheriff's Office.  After an audit, the Justice Department's Office of Civil Rights concluded that the Young Marines program, and the related Youth Diversion program, contained religious content that could not be funded by federal grant money.  Details are set out in July 3 and  July 12 press releases from the Liberty Institute, as well as in a demand letter [.pdf] sent by Liberty Institute to the Louisiana Commission on Law Enforcement and to DOJ.

The main concern of DOJ seems to be a moment of silence that is included in each Youth Diversion program meeting.  Sheriff Julian Whittington refuses to sign a letter stating that there will be no prayer activities conducted during the Youth Diversion program. He says: "Enough is enough. This is the United States of America – and the idea that the mere mention of God or voluntary prayer is prohibited is ridiculous." It is unclear how much concern DOJ has also with the Young Marines Obligation and Creed which includes the following: "I shall never do anything that would bring disgrace or dishonor upon my God, my Country and its flag, my parents, myself, or the Young Marines."

UPDATE: Wall of Separation blog yesterday had more on the program, suggesting a greater religious component is involved.

New Petition To California Supreme Court Argues That Proposition 8 Must Still Be Enforced

While it has been widely assumed (see prior posting) that last month's U.S. Supreme Court decision in Hollingsworth v. Perry reinstating a federal district court's injunction had the effect of legalizing same-sex marriage in California, a petition filed Friday with the California Supreme Court argues that this is not the case. (ADF press release). The petition and accompanying memorandum (full text) in Hollingsworth v. O'Connell, (CA Sup. Ct., filed 7/12/2013) seeks a writ of mandate ordering 58 county clerks to enforce Proposition 8. Petitioners, who were the official proponents of Proposition 8, argue in part in their filing with the California Supreme Court:

The Perry injunction is no bar to this outcome, for at least two reasons. First, that injunction does not require any county clerk to cease future enforcement of Proposition 8. The Perry court’s authority was limited to providing injunctive relief for the four plaintiffs in that case. Because those plaintiffs have recently been married, all relief due under that injunction has already been provided, and therefore none of the county clerks are required by that injunction to stop enforcing Proposition 8 in the future. Second, and alternatively, the Perry injunction does not require the 56 county clerks who were not defendants to that action to stop enforcing Proposition 8. The injunction purports to cover all persons under the supervision or control of the named state defendants. But none of those state officials have authority to supervise or control county clerks when issuing marriage licenses. Therefore, the Perry injunction does not bind the 56 county clerks not named as defendants in that case.

Settlement In Lawsuit Challenging Park's Exclusion of Religious Activities

Last week the parties filed a Notice of Settlement in O'Neal v. Recreation and Park Commission for the Parish of  East Baton Rouge, (MD LA, filed 7/8/2013).  The federal lawsuit (full text of complaint) had been filed in June 2012 after park authorities told the Voices of Mercy Outreach Ministry that it could no longer use Cadillac Street Park for its Sidewalk Sunday School Outreach program. Park rules prohibit religious use of the facilities, but enforcement of the park policy made it difficult for the Ministry to reach at-risk youth who lived in low income neighborhoods near the park. The lawsuit alleged free speech, free exercise, Establishment Clause and equal protection violations. According to a July 12 ADF press release announcing the settlement, now:"the park commission has agreed to amend its Special Event Permit Policy and allow the group to meet at the park for four months without security and insurance and with the opportunity to reapply for a permit at the expiration of that time."

Recent Articles of Interest

From SSRN:

• Jack I. Sammons, The Impossible Prayers of James Boyd White, (M. Publishing, University of Michigan, 2013).
• Elizabeth Sepper, Contraception and the Birth of Corporate Conscience, (American University Journal of Gender, Social Policy & the Law, Forthcoming).
• Christopher G. Bradley, Trials of Conscience and the Story of Conscience, (24 Exemplaria: J. Theory Medieval & Renaissance Stud. 2, 28–45 (2012)).
• Jack Christopher Dolance, U.S. Asylum Law as a Path to Religious Persecution, (Virginia Journal of International Law, Vol. 53, No. 2, 2013).
• W. Burlette Carter, The 'Federal Law of Marriage': Deference, Deviation, and DOMA, (American University Journal of Gender, Social Policy & the Law, Forthcoming).
• Colin P. Starger, A Visual Guide to United States v. Windsor: Doctrinal Origins of Justice Kennedy's Majority Opinion, (July 5, 2013).

From SSRN (Islamic Law):

• Haider Ala Hamoudi, The Arabs in the (Inter)National, (10 Santa Clara Journal of International Law 187 (2012)).
• Engy Abdelkader, The Rohingya Muslims in Myanmar: Past, Present, and Future, (Oregon Review of International Law, 2013 Forthcoming).
• Matthew Hoisington, Doctrines of Equivalence? A Critical Comparison of the Instrumentalization of International Humanitarian Law and the Islamic Jus in Bello for the Purposes of Targeting, (37(2) Fletcher Forum of World Affairs 153 (2013)).
• Nadya Nadiah Hamdan, Islamic Family Law Divorce, (June 9, 2013).
• Christophe Jaffrelot, Secularization Without Secularism in Pakistan, (Questions de recherche/Research Questions, Centre d'études et de recherches internationals n°41 – September 2012 (CERI-Sciences Po/CNRS)).

From SmartCILP:

• Shafiqa Ahmadi, Islam and Homosexuality: Religious Dogma, Colonial Rule, and the Quest for Belonging, [Abstract], 26 Journal of Civil Rights & Economic Development 537-563 (2012).
• Divided Loyalties: The Problem of "Dual Sovereignty" and Constitutional Faith. Article by Sanford Levinson; responses by Miriam Galston, William A. Galston, Menachem Lorberbaum and David Novak. 29 Touro Law Review 241-305 (2013).

Twitter Gives French Prosecutors Data On Origin Of Anti-Semitic Tweets

Last month a French appellate court ordered Twitter to turn over to the Union of Jewish French Students (UEJF) and four human rights groups the names of individuals who last October posted Tweets using anti-Semitic hashtags. (See prior posting.) When Twitter failed to comply, UEJF filed a $50 million suit against it.  According to the New York Times,Twitter, in a statement released Friday, says it has now turned the names over to French prosecutors rather than the private groups. Twitter said:

in response to a valid legal request, Twitter has provided the prosecutor of Paris, Presse et Libertés Publiques section of the Paris Tribunal de Grande Instance, with data that may enable the identification of certain users that the Vice-Prosecutor believes have violated French law.

Pakistani Taliban In South Waziristan Impose Clothing Restrictions For Ramadan

In Pakistan, the Taliban have warned shop keepers in the tribal area of South Waziristan not to sell tight -fitting or see-through men's clothing during Ramadan.  As reported yesterday by The News and Pakistan Today, the Taliban in the city of Wana issued a pamphlet threatening to fine shop keepers and close them down for at lest 5 days if they did not comply, describing such clothing as "un-Islamic and against Pashtun culture." It also warned male residents not to wear such clothing. Additionally, the pamphlet banned the sale of fireworks and threatened to jail anyone found not fasting during Ramadan.

Recent Prisoner Free Exercise Cases

In Mathis v. Monza, (3rd Cir., July 8, 2013), the 3rd Circuit rejected an inmate's argument that his Establishment Clause and equal protection rights were violated by a jail's policy allowing Restricted Housing Unit inmates to possess religious texts but not non-religious texts, and allowing them to have visits from religious advisers but not from others.

In Lewis v. Amato, 2013 U.S. Dist. LEXIS 94503 (ND NY, July 8, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 95532, June 7, 2013) and dismissed plaintiff's general claim that inmates in involuntary protective custody were precluded from practicing religion.

In Shields v. Foston, 2013 U.S. Dist. LEXIS 95776 (ED CA, July 9, 2013), a California federal magistrate judge recommended dismissing a Muslim inmate's RLUIPA claim objecting to prison regulations that deny conjugal visits to inmates serving a life sentence without the possibility of parole. Plaintiff argued that the policy prevented him from consummating his marriage and making it valid under Islamic law.

In Hernandez v. Pugh, 2013 U.S. Dist. LEXIS 96456 (ND OH, July 10, 2013), an Ohio federal district court denied a Jewish inmate's motion to reconsider the court's prior dismissal of his suit.  The court held that plaintiff was not made to eat meat and dairy together in violation of Jewish law. Rather his stockpiling of meals during a fast day instead of taking the post-fast meal provided to others led to the problem.

In Handzlik v. Lain, 2013 U.S. Dist. LEXIS 96767 (ND IN, July 11, 2013) and in Bray v. Lain, 2013 U.S. Dist. LEXIS 97269 (ND IN, July 12, 2013), an Indiana federal district court permitted pre-trial detainees to proceed with their claims that the jail staff, for no legitimate reason, has intercepted books sent to them that they need to practice their religion.

In Alldred v. Keller, 2013 U.S. Dist. LEXIS 97045 (ED NC, July 11, 2013), a North Carolina federal district court permitted two Messianic Jewish inmates to proceed under RLUIPA and the 1st Amendment on their complaint that authorities denied  them kosher meals as well as group worship on the Sabbath and holy days.

Poland's Parliament Defeats Bill To Re-Introduce Kosher and Halal Slaughter

Last November, Poland's Constitutional Tribunal held that Jewish and Muslim ritual slaughter of animals without first stunning them violates Poland's animal protection laws. (See prior posting.) However the European Convention for the Protection of Animals for Slaughter allows EU countries to exempt religious slaughter from the general stunning requirements. As reported by EJP, before last year's court decision Poland had exports of between $330 and $460 million of halal beef sent to Muslim countries (mainly Turkey) and in kosher meat sent to Israel.  The industry supported some 6000 jobs.  A government-sponsored bill to again permit kosher and halal slaughter was introduced in Parliament, but yesterday the Sejm (lower house) defeated the bill by a vote of  178 for and 222 against. The Civic Platform party that holds 207 of the 460 seats in parliament decided that the vote involved an issue of conscience, freeing 38 of its members to vote against the bill the party sponsored.

Piotr Kadlcik, President of the Union of Jewish Communities of Poland, strongly criticized the vote, saying: "Populism, superstition and political interests won out. It looks like we've made a full circle and are heading back to what happened in Poland and Germany in the 1930s."

Church Camp May Proceed With Free Exercise Claim Challenging Water Diversion Project

In Ministerio Roca Solida v. United States, (D NV, July 10 2013), a Nevada federal district court allowed plaintiff, a Christian organization that operates a church camp, to move ahead with its lawsuit claiming that its free exercise and due process rights were infringed when the U.S. Fish and Wildlife Service engaged in a water diversion project that caused the camp to lose access to a desert stream that had previously flowed across the property.  The stream was used for baptisms and religious meditation and fed into a recreational pond used by campers.  The court also refused to dismiss plaintiff’s takings and Federal Tort Claims Act allegations.

Preliminary Injunction Denied In For-Profit Company's Challenge To Contraceptive Coverage Mandate

In Mersino Management Co. v. Sebelius, (ED MI, July 11, 2013), a Michigan federal district court refused to issue a preliminary injunction to bar enforcement of the Affordable Care Act's contraceptive coverage mandate against a for-profit corporation and its two Catholic shareholders. The court said in part:

Plaintiffs have not demonstrated that they are likely to succeed on their claims because ... Mersino Managment, as a secular forprofit company, cannot “exercise” religion and cannot act as the alter ego of its owners in challenging the contraceptive mandate under RFRA....

Mersino Management’s Articles of Incorporation do not mention a religious purpose, it does not employ persons of only a particular religious faith, it does not purport to conduct religious services as part of its business model..... Mersino Management is in the business of selling water bypass systems for profit. The fact that its owners may hold deep religious beliefs, and that the mission statement of the company includes a statement of fealty to God, does not convert this secular, for profit company into a religious organization capable of exercising religion. ....

Nor can Karen and Rodney Mersino impute their own religious beliefs to their corporation so that the corporation can act as their alter ego and assert those rights on behalf of the Mersinos....

Plaintiffs maintain that their sincerely held religious beliefs preclude them from indirectly providing the means for their employees to make the independent decision to purchase contraceptives.... Plaintiffs argue that courts that have concluded that any burden imposed on them by the regulations is too attenuated to be substantial are in fact questioning this fundamental sincerely held belief, which all parties agree courts are precluded from doing under a RFRA analysis. Plaintiffs claim this gives them a “silver bullet,” that by alleging sincerity, the discussion is over. Not so! As many courts have noted, permitting Plaintiffs to determine what constitutes “substantial” and then insulating this proposition from challenge, impermissibly converts the “substantial burden” requirement to an “any burden” showing.

British Soccer Player Sentenced To 3 Months For Anti-Muslim Rant On Twitter

In Britain on Wednesday, a player on the Witton Albion Football Club was sentenced to 3 months in jail for a drunken anti-Muslim rant on Twitter in the wake of the May murder of British soldier Lee Rigby.  The Northwich Guardian and Irish Mirror report that footballer Shaun Tuck sent out a series of Tweets over a number of hours urging people to "‘bomb and gas every mosque in England." The Tweets were removed several hours later.  In sentencing Tuck for violations of the Communications Act, the court said:  "These messages were posted during a period of heightened racial tension following the brutal and public slaying of Drummer Lee Rigby at a time when community leaders, religious leaders, police and the victim’s family were calling for calm."

Swedish Court Allows Religious Objectors To Opt Out of High School Dance Instruction

In Sweden, the Administrative Court of Appeal (Kammarrätt) has ruled in favor of a family which on the basis of their Laestadian religious beliefs object to the dance component in their daughters' physical education course. Laestadianism is a conservative Lutheran movement.  As reported by The Local earlier this week, Swedish education law provides that schools should develop their program to permit students to participate regardless of their religious beliefs. Under the court's decision, the family can now opt out of the otherwise mandatory part of the physical education course.

4th Circuit Rejects Religion-Based Challenges To Affordable Care Act Provisions and Upholds Employer Mandate

In Liberty University, Inc. v. Lew, (4th Cir., July 11, 2013), the U.S. 4th Circuit Court of Appeals, in addition to broadly upholding the constitutionality of the Affordable Care Act's employer mandate (see Reuters coverage), rejected free exercise, RFRA, Establishment Clause and equal protection challenges to other provisions of the Act.  It held that:

Plaintiffs present no plausible claim that the Act substantially burdens their free exercise of religion, by forcing them to facilitate or support abortion or otherwise.  

The court also rejected challenges to the two narrow religious exemptions in the ACA:.

The first exemption Plaintiffs challenge is the individual mandate’s religious conscience exemption. See 26 U.S.C. § 5000A(d)(2)(A). Plaintiffs maintain that this exemption discriminates against their religious practice by applying only to sects that conscientiously oppose a all insurance benefits, provide for their own members, and were established before December 31, 1950. The religious conscience exemption adopts an exemption of the Social Security Amendments of 1965 under 26 U.S.C. § 1402(g), which courts have consistently found constitutional under the Establishment Clause and the Fifth Amendment.....

The second individual mandate exemption challenged by Plaintiffs is the health care sharing ministry exemption. See 26 U.S.C. § 5000A(d)(2)(B). Plaintiffs maintain that it unconstitutionally selects an arbitrary formation date of December 31, 1999 as the eligibility cutoff. But even if the exemption’s cutoff date is arbitrary, it is not unconstitutional. For neither the cutoff’s text nor its history suggests any deliberate attempt to distinguish between particular religious groups. Accordingly, the cutoff need only satisfy the Lemon test.

Finally the court refused to consider plaintiffs' newly-added challenge to the more-recently adopted contraceptive coverage mandate because the issue had not been raised previously in the case.

Russian Supreme Court Upholds Hijab Ban In Region's Schools

Russia's Supreme court yesterday affirmed a lower court decision upholding standards for school students' appearance adopted last October in the region of Stavropol. The regulations ban the wearing of the hijab (headscarf) by Muslim school girls.  The Moscow Times and RIA Novosti report that the lawsuit was filed by members of the Muslim community who claim the regulation violates their constitutionally protected freedom of conscience and religion, and forces high school girls to either transfer to a religious school or study at home. The lower court concluded that the regulations were designed to promote equality among students of different denominations and faiths. The Supreme Court agreed, holding that the rules do not violate freedom of religion or infringe on the right to an education.

British Appeals Court Holds Christian B&B Owner Illegally Discriminated Against Gay Couple

In Black v. Wilkinson, (EWCA, July 9, 2013), Britain's Court of Appeal held that the Christian owner of a bed and breakfast operated from her home violated he Equality Act (Sexual Orientation) Regulations 2007 by limiting her two double rooms to married heterosexual couples.  The B&B had a total of 3 rooms that were available for guests. The suit was brought by a gay couple who were turned away after they had made a reservation and submitted a deposit.  Master of the Rolls Lord Dyson concluded that these actions amounted to both direct and indirect discrimination.  He added:

It is clearly established that, as a matter of general principle, (i) the right of a homosexual not to suffer discrimination on the grounds of sexual orientation is an important human right (article 8 and 14), and (ii) the freedom to manifest one’s religion or belief under article 9(1) is also an important human right.... Neither is intrinsically more important than the other. Neither in principle trumps the other. But the weight to be accorded to each will depend on the particular circumstances of the case.....

In a press release, the Christian Institute (which funded the B&B owner's appeal)  however pointed to language in Lord Dyson's opinion that led it to conclude there was still a possibility in future cases for some B&B's to justify restricting rooms to married couples.

Hopi Tribe Sues Navajos Over Access To Religious Sites

The Verde Independent reported yesterday on a lawsuit filed in federal district court in Arizona by the Hopi Indian Tribe against the Navajo Nation over access to Navajo land by Hopi religious practitioners.  A 2006 agreement between the two tribes purporting to settle a decades-old dispute permits members of one tribe to enter the land of the other without a permit for religious practices. In addition Hopis were given the right to collect 18 eaglets from Navajo land each year.  However now there is a dispute over whether Hopis may access religious shrines that are on specific "allotments"-- parcels held by the federal government for individual Navajos. The Hopis claim that the agreement allows them to access sites for the sacred gathering of golden eagles even if they are within allotments.  The Navajos say that allotments are off limits to the Hopis. The issue is complicated by the fact that the map that was part of the 2006 agreement is considered confidential and was filed with the court under seal.

Wisconsin Supreme Court Dismisses As Moot Appeal Seeking Recognition of "Mature Minor" Doctrine For Religious Objections To Medical Treatment

In a 4-3 decision in Dane County v. Sheila W., (WI Sup. Ct., July 10, 2013), the Wisconsin Supreme Court dismissed as moot an appeal by a Jehovah's Witness asking the court to accept the "mature minor" doctrine as part of Wisconsin law. The doctrine permits older minors who can demonstrate sufficient understanding and appreciation of the consequences of their decision to independently make medical treatment decisions involving their own care, without parental consent. In this case, a trial court had appointed a temporary guardian for a 15-year old after neither she nor her parents would consent to a needed blood transfusion. The minor sought the ruling so she can make future decisions on her own to refuse blood transfusions. Writing for the 3 dissenters, Judge Gableman said: "this court has a responsibility to decide matters of great public importance that are likely to recur but evade appellate review." AP reports on the decision.

Challenger To County Commission Invocations Cannot Proceed As "Jane Doe"

In Doe v. County of Franklin, Missouri, (ED MO, July 3, 2013), a Missouri federal district court refused to allow plaintiff, who is challenging Christian invocations at County Commission meetings (see prior posting), to continue to pursue the case under a pseudonym. Plaintiff claimed she will be harassed and driven from the community if her name is made public. The court held, however:

plaintiff’s concerns do not overcome the constitutionally-embedded presumption of openness in judicial proceedings.  Plaintiff has availed herself of the court system and in doing so, she has invited public scrutiny of her claims. And as noted, a hostile public reaction and the prospect of embarrassment are insufficient to justify proceeding anonymously.... Finally, plaintiff’s continued anonymity will jeopardize defendants’ legitimate concern that they will be unable to engage in meaningful discovery to explore the factual basis of plaintiff’s allegation that she was offended by defendants’ conduct.

Kosher Certifiers Tell ICANN That ".kosher" gTLD Should Be Rejected Along With ".halal"

As part of the process being followed by the Internet Corporation for Assigned Names and Numbers (ICANN) in approving numerous new generic top level domains (gTLD), ICANN receives advice from its Governmental Advisory Committee (GAC).  As previously reported, the governments of several Islamic countries have raised concern about gTLDs that have religious connotations. An April 11 communique from GAC (full text) reflects some of these concerns:

The GAC recognizes that Religious terms are sensitive issues.  Some GAC members have raised sensitivities on the applications that relate to Islamic terms, specifically .islam and .halal.  The GAC members concerned have noted that the applicataions for .islam and .halal lack community involvement and support. It is the view of these GAC members that these applications should not proceed.

 Earlier this week, The Domains reported that now the 5 largest organizations that certify food as kosher have written a joint letter to ICANN complaining

that the GAC, and ICANN in response, rightly raised concerns about the .halal gTLD application without raising those same concerns about the .kosher application....

 The .kosher gTLD application raises the same religious sensitivities referenced in the GAC Beijing Communiqué related to the .halal gTLD application. 

Therefore, it is appropriate for ICANN to provide equal treatment of the .halal and .kosher gTLD applications by denying both applications.

The application for the .kosher gTLD indicates that it is designed to promote a competing kosher certification agency that is not part of the big 5--  OK Kosher Certification-- and its clients.

Yeshiva High School Abuse Victims of 1970's and '80's Sue Yeshiva University

As reported by the New York Times, on Monday 19 former students at Yeshiva University High School for Boys filed a federal lawsuit against Yeshiva University and others seeking hundreds of millions of dollars in compensatory and punitive damages for alleged sexual abuse by two rabbis formerly at the high school-- the principal and a Talmud teacher. The accused abusers were not reported to authorities, but instead were allowed to leave the school quietly. Recently-retired former Yeshiva University president Rabbi Norman Lamm has apologized for not doing more. (See prior posting.) The 148-page complaint (full text) in Twersky v. Yeshiva University, (SD NY, filed 7/8/2013) alleges:

[F]or several decades, the administrators of Yeshiva University (“YU”) and The Marsha Stern Talmudical Academy− Yeshiva University High School for Boys (“YUHS”), including Rabbi Lamm himself, enclosed themselves in a “cocoon of callousness” by allowing several known sexual predators to assume and remain in exalted positions in YUHS’s administration and faculty.

The complaint alleges causes of action for fraudulent inducement, negligent infliction of emotional distress, deceptive business practices, false advertising, negligent misrepresentation, negligent supervision and retention, and violation of Title IX of the federal Civil Rights Act.  Reporting on the filing of the lawsuit, The Forward quoted one of the plaintiffs who said: "It was necessary to file the suit because there was no proper response from Yeshiva University to any of our claims and to any of our pain. They just wouldn’t listen." [Thanks to Scott Mange for the lead.]

Outsourcing Of Alternative School To Christian Institution Violates Establishment Clause

In Kucera v. Jefferson County Board of School Commissioners, (ED TN, July 9, 2013), a Tennessee federal district court held that the Jefferson County (TN) school board violated the Establishment Clause when, for budgetary reasons, it eliminated the county Alternative School and instead contracted with Kingswood School, a Christian institution, to operate the county's program for students who had been suspended or expelled from their regular school.  According to the court:

The average student that attended Kingswood would arrive on campus and see a church within the grounds. She would then see an intake staff member who was also an ordained minister. After intake, the student would attend secular classes, but would take home report cards branded with Christian language and symbols.... [S]he would need to have her parents routinely sign and return Family Feedback Forms that also contained bible verses. If she visited Kingswood's  website, she would be greeted by the phrases "Christian environment" and "Christian education" among others. Benefactors would receive fundraising correspondence that contained Christian references and iconography, and assemblies would be held in the campus church.

... [T]he facts plainly establish that Kingswood is a religious institution-- a fine institution-- but an institution that should have never sought to operate a public alternative school as part of its ministry....The appearance of governmental endorsement of the Christian faith is too pronounced and non-believers, or students of a different faith, would likely feel divorced from Kingswood, a well-intentioned, but overtly-Christian school.

The principal and a teacher who lost their jobs when the county alternative school closed were awarded damages equal to their lost wages for the year the alternative school closed, plus attorneys fees. The school board was also permanently enjoined from contracting with Kingswood or another religious entity for the operation of its alternative school. (See prior related posting.)

Abuse Suit Against Camden Diocese Survives Dismissal Motion

In Shanahan v. Diocese of Camden, (D NJ, June 27, 2013),  a New Jersey federal district court refused to dismiss a suit against the Catholic Diocese of Camden brought by plaintiff who claims that she was sexually abused as a child in 1980-1981 on 10 o 15 occasions by an ordained Catholic priest, Fr. Thomas Harkins. The suit claims that the Diocese is liable under New Jersey’s Child Sexual Abuse Act; for negligent retention and supervision; and for breach of fiduciary duty. Courthouse News Service reports on the decision.

Catholic Health Association Accepts Obama Administration Compromise On Contraceptive Coverage Mandate

AP reports that the Catholic Health Association (CHA)-- the umbrella group for 600 Catholic hospitals and 1400 other Catholic health facilities-- has concluded that it can accept the Obama administration's compromise under the Affordable Care Act on contraceptive coverage for employees.  The compromise as set out in final rules issued on June 28 provides that religiously sponsored hospitals and similar facilities will not need to arrange or pay for coverage to which they object. Instead coverage will be separately provided to employees directly from insurance companies and plan administrators. In its statement, CHA acknowledged that its position is more accepting of the compromise that the U.S. Conference of Catholic Bishops has been. (USCCB July 3 statement).

Egypt's Interim Constitutional Declaration Shows Influence of Salafist Al-Nour Party

According to Ahram Online, on Monday night Egypt's new interim president Adly Mansour issued a 33-article  Interim Constitutional Declaration (full text in Arabic) that will remain in place during the current transitional period. Al-Monitor has published an analysis of the document's provisions. Here is what it has to say about the document's treatment of religion:

The constitutional declaration shows the strong leverage the Salafist Al-Nour party has on the transitional process.... [Three provisions of the former constitution] have been merged into a unique, new, Article 1...: 

“The Arab Republic Of Egypt is a state whose system is democratic, based on the principle of citizenship; Islam is the religion of the state; Arabic is its official language; and the principles of Islamic Sharia — which include its general evidences, its fundamental and jurisprudential rules, and its recognized sources in the doctrines of the people of the Sunna and Jam’aa (i.e., Sunnism) — are the main source of legislation.”...

...[T]he Salafists managed to keep the restriction of freedom of religious worship to the “three celestial religions” in Article 7 (i.e., Christianity, Islam and Judaism), which was not the case under the 1971 Constitution but became so in the 2012 version, under Salafist influence. The 1971 Constitution had also stated that freedom of belief was “absolute,” while the 2012 Constitution and the charter denoted it as “protected.” ...  One thing that has been dropped is the express reference to Al-Azhar’s role in expressing a supposedly non-binding opinion on Sharia matters pertaining to draft legislation....

The declaration retains the more flexible ban on parties that “discriminate on the basis of ... religion,” but does not return the outright ban on religion-based parties that existed in the 1971 Constitution. This is another move to accommodate Islamists into the transition.

ACLU Moves To Challenge Several Same-Sex Marriage Bans

The ACLU yesterday announced a broad initiative to obtain a U.S. Supreme Court ruling on the constitutionality of same-sex marriage, in the wake of the Court's dismissal on standing grounds of the California Proposition 8 appeal. The organization said in part:

Even before today's announcement of the ACLU's federal marriage lawsuits, there were seven cases with federal marriage claims pending all around the country. Today we are adding three more cases to this mix in order to ensure that strong, well-resourced cases are presented to the federal appeals courts most likely to give the issue a fair hearing.

One of the new cases is Whitewood v. Corbett, (MD PA, filed 7/9/2013) (full text of complaint) challenging Pennsylvania's refusal to permit same-sex marriages or recognize same-sex marriages from other states. In North Carolina, the ACLU is asking North Carolina's Attorney General to allow plaintiffs to add an additional claim challenging the state's same-sex marriage ban to an already pending lawsuit challenging the state's ban on second parent adoptions. (ACLU- NC press release). Finally, the Virginia ACLU announced a planned lawsuit, to be brought with Lambda Legal, challenging constitutional and statutory bans in Virginia on same-sex marriage.

European Court of Human Rights Protects Church Autonomy, Allowing Rejection of Priests' Trade Union

Yesterday in Sindicatul "Pastorul Cel Bun" v. Romania, (ECHR, July 9, 2013), the Grand Chamber of the European Court of Human Rights in a 11-6 decision upheld a Romanian County Court's denial of registration to a trade union formed  by priests of the Romanian Orthodox Church. The majority opinion, finding a permissible restriction on the right to join trade unions protected in Art. 11 of the European Convention on Human Rights, said in part:

136.... Where the organisation of the religious community is at issue, Article 9 of the Convention [freedom of thought, conscience and religion] must be interpreted in the light of Article 11, which safeguards associations against unjustified State interference.... [T]he right of believers to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention. The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is an issue at the very heart of the protection which Article 9 affords.

137.  In accordance with the principle of autonomy, the State is prohibited from obliging a religious community to admit new members or to exclude existing ones. Similarly, Article 9 of the Convention does not guarantee any right to dissent within a religious body; in the event of a disagreement over matters of doctrine or organisation between a religious community and one of its members, the individual’s freedom of religion is exercised through his freedom to leave the community....

165.... Respect for the autonomy of religious communities recognised by the State implies, in particular, that the State should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity.....

168.... [T]he County Court was simply applying the principle of the autonomy of religious communities; its refusal of the applicant union’s registration for failure to comply with the requirement of obtaining the archbishop’s permission was a direct consequence of the right of the religious community concerned to make its own organisational arrangements and to operate in accordance with the provisions of its Statute....

170.... the Statute of the Romanian Orthodox Church does not provide for an absolute ban on members of its clergy forming trade unions to protect their legitimate rights and interests. Accordingly, there is nothing to stop the applicant union’s members from availing themselves of their right under Article 11 of the Convention by forming an association of this kind that pursues aims compatible with the Church’s Statute and does not call into question the Church’s traditional hierarchical structure and decision-making procedures.....

The Court also issued a press release summarizing the decision.  A Becket Fund press release has more information on the case.

ABA Journal Calls For Nominations For 100 Best Legal Blogs

The ABA Journal yesterday invited nominations for its 2013 list of the 100 Best Legal Blogs.  It also encouraged bloggers to tell their readers about the competition.  Religion Clause has made the top 100 list four times in the last six years.  Any readers who might like to nominate Religion Clause (or some other legal blog) for the 2013 Top 100 list can do so at this link which provides a form to submit a "Friend of the Blawg Brief."  Nominations are due no later than August 9. Thanks in advance to any readers who find Religion Clause sufficiently valuable to nominate it.

Tax Evader, Claiming Religious Justifications, Sentenced to Over 8 Years In Prison

In Oregon yesterday, a federal judge sentenced a software entrepreneur to 8 years and 1 month in prison (followed by 3 years of supervised release) for tax evasion involving $7.1 million in taxes and penalties owed to the federal government. The Oregonian reports that defendant Chester Evan Davis invoked religious justifications for his refusal to pay taxes, saying:

My hands, my feet, my words, my ideas, my labor, my actions are all and have been given to the Lord for his glory. [Submitting a tax return would] put the God of this state above my God.

Davis hid assets from the government, attempted to file harassing liens against federal officials and tried to obtain arrest warrants against IRS employees. Much of the earnings of Davis' company came from contracts with the federal government.

Court Says It Lacks Jurisdiction To Stop Gitmo Force Feeding As Ramadan Nears, But President Could End Practice

In Dhiab v. Obama, (D DC, July 8, 2013), a D.C. federal district court denied for lack of jurisdiction a Guantanamo Bay detainee's petition (see prior posting) seeking to enjoin the government from continuing to force feed him, especially during the Ramadan fast period.  However, in denying the preliminary injunction, District Judge Gladys Kessler said:

Even though this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner's request, there is an individual who does have the authority to address the issue. In a speech on May 23, 2013, President Barack Obama stated "Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. . . Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that."... 

Article II, Section 2 of the Constitution provides that "[t]he President shall be the Commander in Chief of the Army and Navy of the United States ... " It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority-- and power-- to directly address the issue of force-feeding of the detainees at Guantanamo Bay.

AP reports on the decision.

Missouri Diocese Settles Priest Abuse Case On Eve of Trial

According to yesterday's Kansas City Star, the Kansas City-St. Joseph Catholic Diocese yesterday settled a wrongful death lawsuit for $2.25 million as jury selection was under way in a Missouri state court in a suit by parents of sex abuse victim Brian Teeman who committed suicide at age 14.  The suicide in November 1983 followed repeated sexual abuse by Monsignor Thomas J. O’Brien who allegedly forced four altar boys to perform sexual acts in the sacristy at Nativity of Mary in Independence, Missouri. (Background.) As part of the settlement, the diocese will also place a bench honoring Teeman on the grounds of Nativity of the Blessed Virgin Mary Catholic Church in Independence. The diocese had planned to defend on the grounds that it did not know that Teeman had been abused or had committed suicide, and also on statute of limitations grounds. The Diocese yesterday issued a statement (full text) announcing the settlement.

President Sends Ramadan Greetings To Muslims In U.S. and Around the World

Yesterday the White House released a statement (full text) extending Ramadan greetings from the President and First Lady to Muslim communities in the U.S. and around the world. Ramadan begins today.  The President said in part:

In the United States, Ramadan is a reminder that millions of Muslim Americans enrich our nation each day—serving in our government, leading scientific breakthroughs, generating jobs and caring for our neighbors in need.  I have been honored to host an iftar dinner at the White House each of the past four years, and this year I look forward to welcoming Muslim Americans who are contributing to our country as entrepreneurs, activists and artists.

USCIRF Calls On Administration To Raise Religious Persecution Concerns With Chinese Officials

As reported by Reuters, this week top U.S. and Chinese officials will meet in Washington for the annual U.S.-China Strategic and Economic Dialogue.  The annual event began five years ago as a way for the two countries to manage their complex relationship.  Yesterday the U.S. Commission on International Religious Freedom issued a press release calling on U.S. officials to raise with the Chinese the cases of prominent religious prisoners and human rights lawyers in China. USCIRF said in part:

The continued confinement of thousands of political and religious prisoners in China violates that nation’s international obligations and its constitutional protections for human rights and religious freedom.

The USCIRF release highlights the cases of nine individuals-- Christian, Buddhist, Muslim and Falun Gong-- that it also featured in its 2013 Annual Report.