Religion Clause

Thursday, August 01, 2013

Display of Crosses On Riverfront Enjoined

In Cabral v. City of Evansville, Indiana, (SD IN, July 31, 2013), an Indiana federal district court permanently enjoined the city of Evansville from permitting a group of local religious organizations, headed by the Westside Christian Church, from erecting a planned religious display on the city's Riverfront. The proposed display consisted of up to 31 six-foot tall crosses to be spread over the 4-block Riverfront area. Finding that the proposed display would violate the Establishment Clause, the court said in part:

based on the size and scope of the project, this planned display of crosses would convey a message of the City’s endorsement of Christianity to the reasonable observer....

The City’s attempts to dilute the religious impact of the display by prohibiting written messages on the Crosses and by requiring disclaimers, while generally commendable, no doubt reflect its own recognition of and sensitivity to the magnitude of the display and the constitutional concerns it raises. We emphasize, it is not the inclusion of the crosses as such that causes this display to run afoul of the First Amendment; rather, it is the forcefulness of the message being conveyed, based on the significant scope and size and duration of the overall display....

This ruling should not be understood to foreclose or prohibit any and all unattended displays on the Riverfront area that convey a religious message. To stay within constitutional bounds, however, it must stop short of creating a message that overwhelms the nature of the public forum thereby transforming it into government endorsed religious speech.

AP reports on the decision.

Pennsylvania Health Department Sues To Stop County From Issuing Same-Sex Marriage Licenses

As previously reported, in Montgomery County, Pennsylvania (suburban Philadelphia), the county's Register of Wills, D. Bruce Hanes, last week began to issue marriage licenses to same-sex couples, despite the legal ban on such marriages in the state. Now, according to the Philadelphia Inquirer, the state Department of Health on Tuesday filed suit in Commonwealth Court seeking a writ of mandamus to stop the county from issuing more licenses or accepting marriage certificates from same-sex couples. The suit claims that the county's actions are leading couples to erroneously believe that they have entered a valid marriage. In response, County Solicitor Ray McGarry issued a statement saying:

While it comes as no surprise that the Corbett Administration has filed an action seeking to enjoin marriage equality in Montgomery County, the petition filed today in Commonwealth Court by the state Department of Health has serious flaws. Montgomery County will be filing a response shortly. In the meantime, the Register of Wills office will continue to issue marriage licenses to same-sex couples.

Wednesday, July 31, 2013

Court Upholds Sale of Synagogue

In Chomsky v. Sewitch, (NJ App., July 23, 2013), the New Jersey Superior Court Appellate Division rejected an attack on the sale of an Orthodox synagogue building in Perth Amboy to Science of Spirituality, Inc. Plaintiffs argued that the congregation was bound by Jewish religious law which prohibits the sale of the building to a non-Jewish religious organization. They claimed that the dispute should be transferred to a beth din (Jewish religious court). Finally they argued that the synagogue's actions involved self-dealing, violated the congregations's bylaws and violated the New Jersey non-profit law. Plaintiffs then commenced their own action in a beth din. Affirming the trial court, the appeals court said:

we conclude the [trial] judge properly employed the neutral principles approach to consider and determine only "those disputes involv[ing] purely secular issues" that were capable of resolution "without the judiciary becoming enmeshed in matters of faith or doctrine."

New Jersey Jewish News reports on the decision.

TRO Denied In Attempt To Stop Same-Sex Marriages In Rhode Island On Religious Freedom Grounds

According to the Providence Journal, a Rhode Island Superior Court judge yesterday denied a temporary restraining order in a suit challenging the constitutionality of the state's recently enacted same-sex marriage law which is scheduled to take effect Aug. 1. (See prior posting.) Plaintiff argued that the law will violate the state constitution's religious freedom protections by forcing people to accept in public spheres, such as schools, a practice that they oppose on religious grounds.

UPDATE: On Aug. 9, the court also denied a preliminary injunction in the case. (Providence Journal).

Perpetual Care Trust Funds Shielded From Archdiocese's Creditors In Bankruptcy-- Corrected

AP reports that a Wisconsin federal court on Monday ruled that $50 million in a cemetery perpetual care trust fund is unavailable to creditors, including abuse victims, in the bankruptcy reorganization of the Milwaukee Catholic Archdiocese. The funds came from sale of cemetery lots and mausoleums. In a statement yesterday, the Archdiocese said:

Because these funds were held in trust as prescribed by Canon Law, they were independent of the general assets and could only be used for their intended and pledged purpose – to care for the resting places of the departed as sacred places under Canon law. As the Judge said, “removing some or all of these funds from the trust and placing them in the bankruptcy estate would undoubtedly put “substantial pressure” on Archbishop Listecki to “modify [his] behavior” and “violate [his] beliefs.”

UPDATE AND CORRECTION: The decision is In re Archdiocese of Milwaukee is at 2013 U.S. Dist. LEXIS 106392, (ED WI, July 29, 2013). Contrary to the earlier version of this post, the decision is one of the district court reversing a bankruptcy court's earlier decision. And here is a non-Lexis source for the full opinion.

Court Refuses To Dismiss Claims Against Diocese Over Abusive Priest

In Jane Doe #2 v. Norwich Roman Catholic Diocesan Corp., 2013 Conn. Super. LEXIS 1516 (CT Super., July 8, 2013), a Connecticut trial court refused to strike claims against a Catholic diocese for failure to report, supervise and remove a priest charged with child abuse, including claims for breach of fiduciary duty. The diocese argued that the the claims excessively burden its exercise of religion. The court responded in part:

Although the United States Supreme Court's decision in Hosanna-Tabor may indeed bar some of the allegations found in the complaint, such as the defendants' allegedly wrongful failure to remove Father Shea from the priesthood, Hosanna-Tabor does not preclude all of the specifications of negligence and reckless conduct found in counts one through six. Specifically, the allegations of failure to warn and negligent supervision are not clearly precluded by Hosanna-Tabor. Accordingly, the court cannot strike these counts on the basis of the first amendment.

Tuesday, July 30, 2013

Israeli-Palestinian Peace Talks Begin With Timing Impacted By Ramadan

Last night marked the beginning of New Israeli-Palestinian peace talks at the State Department. CBS News reported:

At sundown Monday, Palestinian and Israeli negotiators will meet over an Iftar dinner hosted by Secretary of State John Kerry at the State Department. The meal, which marks the breaking of the day-long fast observed by Muslims during the holy month of Ramadan, is a symbolic start to the first round of face-to-face negotiations between the two parties for the first time in three years.

Earlier in the day, some State Department reporters seemed a bit culturally challenged by it all. Here is an exchange at yesterday's press briefing by State Department spokesperson Jen Psaki:

QUESTION: And the dinner tonight is at State or at his house or --

MS. PSAKI: It’s at the State Department.

QUESTION: Okay. Thank you.

QUESTION: It’s an Iftar dinner or a regular dinner?

MS. PSAKI: It is an Iftar dinner.

QUESTION: Iftar.

QUESTION: Isn’t an Iftar dinner – isn’t that a regular dinner?

MS. PSAKI: There will be food served at an Iftar dinner, yes.

Report Focuses On Problems With Virginia's Religious Opt Out of Public Education

Sunday's Washington Post highlighted the experiences of 21-year old Georgetown University student Josh Powell who objects to the poor education he received and his siblings are receiving after their parents opted out of public education on religious grounds under Va. Code Sec. 22.1-254(B)(1). The Post reports:

Powell was taught at home, his parents using a religious exemption that allows families to entirely opt out of public education, a Virginia law that is unlike any other in the country. That means that not only are their children excused from attending school — as those educated under the state’s home-school statute are — but they also are exempt from all government oversight.

School officials don’t ever ask them for transcripts, test scores or proof of education of any kind: Parents have total control.

Powell’s family encapsulates the debate over the long-standing law, with his parents earnestly trying to provide an education that reflects their beliefs and their eldest son objecting that without any structure or official guidance, children are getting shortchanged. Their disagreement, at its core, is about what they think is most essential that children learn — and whether government, or families, should define that.

Monday, July 29, 2013

Suit Challenges Kentucky's Refusal To Recognize Same-Sex Marriage

On Friday, a same-sex couple, Gregory Bourke and Michael De Leon, and their two adopted children filed suit in federal district court challenging the constitutionality of Kentucky's refusal to recognize the couple's 2004 Canadian marriage. The two men have been together for 31 years. The complaint (full text) in Bourke v. Breshear, (WD KY, filed 7/26/2013) alleges that Kentucky laws barring same-sex marriage and recognition of same-sex marriages from other jurisdictions violate the 14th Amendment's due process and equal protection clauses. The Louisville Courier-Journal reports on the filing of the lawsuit. [Thanks to Tom E. Rutledge for the lead.]

Sunday, July 28, 2013

Annual U.S.-China Human Rights Dialogue Scheduled For this Week

The U.S. State Department has announced that the next session of the annual U.S.-China Human Rights Dialogue will be held, July 30-31, in Kunming, China. According to a State Department spokesperson: "The two sides will discuss rule of law, freedom of religion, freedom of expression, labor rights, rights of ethnic minorities, and other human rights issues over the course of the dialogue."

New Orleans Amends "Aggressive Solicitation" Ordinance As Litigation Goes On

AP reports that on Thursday, the city of New Orleans revised its "aggressive solicitation" ordinance to eliminate the ban on loitering or gathering on Bourbon Street to disseminate "any social, political, or religious message between the hours of sunset and sunrise." The change also eliminated the ban on "conduct which reasonably tends to arouse alarm or anger in others." A federal court last September issued a TRO barring enforcement of the ordinance in a suit brought by a street preacher who was arrested during the Southern Decadence gay pride festival in 2012. (See prior posting.)

Recent Prisoner Free Exercise Cases

In LeBaron v. Spencer, (1st Cir., July 22, 2013), the 1st Circuit permitted a Messianic Jewish inmate to move ahead with his 1st Amendment and RLUIPA challenges seeking a kosher diet, access to a Messianic synagogue and group prayer, but dismissed his equal protection, retaliation and due process conspiracy claims.

In Knight v. Thompson, (11th Cir., July 26, 2013), the 11th Circuit rejected Native American inmates' RLUIPA challenge to Alabama prison system grooming rules that prohibited them from wearing long hair as required by their religion. The court held that the short-hair policy for male inmates is the least restrictive means of furthering compelling governmental interests in security, discipline, hygiene and safety.

In Nelson v. Jackson, 2013 U.S. Dist. LEXIS 102121 (SD OH, July 18, 2013), an Ohio federal magistrate judge recommended allowing a Jewish inmate to proceed with his free exercise, RLUIPA and 8th Amendment claims growing out of his complaint that while in the kosher meal program he was served meat and dairy together at the same meal and was required to cook his meal on the Sabbath. The court however denied plaintiff's request for a preliminary injunction.

In Green v. Dart, 2013 U.S. Dist. LEXIS 103182 (ND IL, July 23, 2013), an Illinois federal district court dismissed a complaint by a maximum security pre-trial detainee that he has been unable to meet with a Baptist minister and attend religious services in a chapel.

In Porter v. Wegman, 2013 U.S. Dist. LEXIS 103959 (ED CA, July 22, 2013), a California federal magistrate judge recommended granting a preliminary injunction requiring that an inmate be provided a kosher diet during the eight-day period of the Spring 2014 Yahweh Passover Feast of Unleavened Bread.

In Muhammad v. Arizona Department of Corrections. 2013 U.S. Dist. LEXIS 104317 (D AZ, July 25, 2013), an Arizona federal district court permitted a Muslim inmate to proceed with his complaints regarding a lack of pre-sunrise meals during Ramadan, denial of a religious diet, and refusal to allow him to openly wear a kufi. A number of other claims were dismissed, including his complaint that he was prohibited from gathering 5 times a day with other Ahlus-Sunnah Wal-Jamaah Muslims for prayer.

In Baze v. Parker, 2013 U.S. Dist. LEXIS 104708 (WD KY, July 25, 2013), a Kentucky federal district court dismissed a death row inmate's complaint about the denial of a pastoral visit to him.

In Jenkins v. Meyers, 2013 U.S. Dist. LEXIS 105165 (ED WA, July 25, 2013), a Washington federal district court dismissed a Muslim inmate's complaint that prayer oil he ordered was rejected because the vendor he used was no longer an authorized vendor.

In Toland v. Williams, 2013 U.S. Dist. LEXIS 104440 (SD GA, July 25, 2013), a Georgia federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 105213, June 13, 2013) and dismissed an inmate's complaint that he did not receive religiously-mandated vegan meals.

Saturday, July 27, 2013

5th Circuit Dismisses "Candy Cane" Religious Expression Case For Failure To Use Certified Mail In Pre-Suit Notice

In the so-called "candy-cane case", Morgan v. Plano Independent School District, (5th Cir., July 26, 2013), the U.S. 5th Circuit Court of Appeals yesterday, in a 2-1 decision, dismissed the remaining claims on jurisdictional grounds because plaintiff gave notice of his lawsuit to the school by fax, regular mail and e-mail, rather than by certified mail return receipt requested as specified in the Texas Religious Freedom Restoration Act (TFRA), Sec. 110.006. In the suit, originally filed 8 years ago by parents of several elementary school students, plaintiffs challenged school policy which allowed students to distribute only secular gifts, not religious ones, at the school's annual winter break party. The policy prevented a third-grader from distributing a “candy cane ink pen” with a laminated card containing a religious message about the legend of the candy cane and its Christian origins. The majority opinion by Judge Davis held that TFRA's pre-suit notice requirement is a jurisdictional prerequisite to bringing suit. Judge Elrod, dissenting, would have certified to the Texas Supreme Court the question of whether or not TRFRA's notice-by-certified mail requirement is jurisdictional. (See prior related posting.)

Obama Hosts Annual White House Iftar Dinner

On Thursday night, President Obama hosted the White House's annual Iftar dinner to mark Ramadan. In his remarks (full text) he said in part:

Here at the White House, we now have a tradition of celebrating the sacred days of our various faiths. And these are occasions to reflect on the teachings that so many religions share; to celebrate the diversity that defines our country; and to reaffirm one of our most deeply held beliefs, that here in America and around the world, people should be free to choose the God that they worship however they choose, to practice their faiths freely, or to practice no faith at all.

Honored guests at this year's event were Muslim entrepreneurs and innovators. Obama said:

Throughout our history, Islam has contributed to the character of our country, and Muslim Americans, and their good works, have helped to build our nation -- and we’ve seen the results. We’ve seen those results in generations of Muslim immigrants -- farmers and factory workers, helping to lay the railroads and build our cities. Muslim innovators who helped build some of our highest skyscrapers and who helped to unlock the secrets of our universe.

Every day, Muslim Americans are helping to shape the way that we think and the way that we work and the way that we do business. And that’s the spirit that we celebrate tonight -- the dreamers, the creators whose ideas are pioneering new industries, creating new jobs and unleashing new opportunities for all of us.

Friday, July 26, 2013

3rd Circuit Rejects ACA Challenge: For-Profit Corporations Cannot Engage In Religious Exercise

In Conestoga Wood Specialties Corp. v. Secretary of U.S. Department of Health and Human Services, (3rd Cir., July 26, 2013), the U.S. 3rd Circuit Court of Appeals in a 2-1 decision denied a preliminary injunction sought by a family-owned business to stop enforcement of the Affordable Care Act contraceptive coverage mandate. Rejecting free exercise and RFRA claims, Judge Cowan's majority opinion held that "for-profit, secular corporations cannot engage in religious exercise," and the conscience rights of the owners of a corporation do not pass through to the corporation. Cowan in his majority opinion wrote, in part:

We are unable to determine that the "nature, history, and purpose" of the Free Exercise Clause supports the conclusion that for-profit, secular corporations are protected under this particular constitutional provision....

We recognize the fundamental importance of the free exercise of religion.... Thus, our decision here is in no way intended to marginalize the Hahns' commitment to the Mennonite faith. We accept that the Hahns sincerely believe that the termination of a fertilized embryo constitutes an ―intrinsic evil and a sin against God to which they are held accountable ... and that it would be a sin to pay for or contribute to the use of contraceptives which may have such a result. We simply conclude that the law has long recognized the distinction between the owners of a corporation and the corporation itself. A holding to the contrary—that a for-profit corporation can engage in religious exercise—would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.

Judge Jordan, dissenting, wrote in part:

My colleagues, at the government's urging, are willing to say that the Hahns' choice to operate their business as a corporation carries with it the consequence that their rights of conscience are forfeit.

That deeply disappointing ruling rests on a cramped and confused understanding of the religious rights preserved by Congressional action and the Constitution. The government takes us down a rabbit hole where religious rights are determined by the tax code, with non-profit corporations able to express religious sentiments while for-profit corporations and their owners are told that business is business and faith is irrelevant. Meanwhile, up on the surface, where people try to live lives of integrity and purpose, that kind of division sounds as hollow as it truly is.

[Thanks to Jeffrey Pasek for the lead.]

Malaysian Court Invalidates Father's Conversion of Children To Islam Without Mother's Consent

AFP reports that a Malaysian high court yesterday ruled that the 2009 conversion to Islam of three Hindu children to be unconstitutional. The court said that the father-- who converted to Islam and brought the children with him-- had failed to take the mother and children to Islamic authorities for their consent to the conversion. If the conversion had been upheld, the Hindu mother of the children would lose custody-- which a court granted her in 2010-- since under Shariah law, a non-Muslim parent cannot share custody of converted children. Earlier this month, the government withdrew a proposal to change Malaysian law to allow conversions of children to Islam by one parent.

UPDATE: The full text of the opinion in In re the Certificate of Conversion to Islam, (High Court, July 25, 2013) is now available online.

House Debates Atheist/ Humanist Chaplains In Defense Appropriations Bill

On July 23, the House of Representatives, by a vote of 253-173, approved an amendment to HR 2397, the 2014 Department of Defense Appropriations Act, requiring that all military chaplains must receive an endorsement from a qualified religious organization. The amendment, introduced by Rep. Fleming of Louisiana, provides:

None of the funds made available by this Act may be used to appoint chaplains for the military departments in contravention of Department of Defense Instruction 1304.28, ....

The amendment generated an interesting debate (full text). Here are some excerpts:

Mr. FLEMING.... My amendment is fairly simple. The DOD is permitted to appoint military chaplains--individuals who minister to the spiritual needs of any and all members of the armed services--in accordance with the current DOD policy. Chaplains must possess appropriate educational credentials, 2 years of religious leadership experience, and, more importantly, must receive an endorsement from a qualified religious organization attesting to the tenets of the endorser's faith.

In June, the Members of this body--Democrats and Republicans alike--twice affirmed that the military is not permitted to appoint atheist chaplains. Despite these recent votes and by completely bypassing Congress--the voice of the people--and current DOD standards, it has been confirmed that the military is considering the possibility of appointing an atheist chaplain. Since the formation of the chaplaincy in 1775, chaplains have been affiliated with faith and spirituality. By definition, chaplains minister to the spiritual needs of our men and women in the armed services--a vital function that an individual without any inclination towards spirituality would not be able to perform....

Mr. POLIS. [Colorado]. Mr. Chairman, I rise in opposition to the Fleming amendment.

I think there is a basic misunderstanding here about the needs of people who lack a particular faith tradition. I would also point out that we already ordain nontheistic chaplains in our military, including Buddhists, which is a nontheistic faith. Some Unitarians may also have a nontheistic faith tradition. However, over 20 percent of the members of our military identify as nonbelievers. While, of course, their needs should be catered to by members of the chaplaincy from diverse faiths, it's only fair to have their humanism, or outlooks, represented....

Now, to be clear, the military has not announced plans to move forward with ordaining humanist chaplains; but what this amendment does is to lock in place a 2004 rule, placing it in statute and preventing the military, even if they feel the need should arise for the good of the chaplaincy, from having the flexibility they need to appoint humanist chaplains....

Mr. BRIDENSTINE.... My constituents back in Oklahoma are shaking their heads. The secular left is so invested in ripping God from everything that I must stand here with my friend Dr. Fleming in order to prohibit Obama's Department of Defense from establishing an oxymoron--atheist chaplains....

Mr. POLIS.... Increasingly, there are seminaries who prepare humanist chaplains for ordination and work in the field, in hospitals, in universities, and again in the militaries that have them. I personally hope that this is a direction that our military considers in the future....

Mr. FLEMING. Mr. Chairman, first of all, with all due respect to my good friend from Colorado, there is no way that an atheist chaplain or atheist whatever can minister to the spiritual needs of a Christian or a Muslim, or a Jew, for that matter....

In the final analysis, I believe that an atheist chaplain would be the last person in the world that we would want for a dying soldier who needs that last moment of counseling in their life.

Huffington Post, reporting on the amendment, suggests that the actual language of the amendment will not prevent appointment of humanist chaplains:

Jason Torpy, president of the Military Association of Atheists and Freethinkers, points out that military regulations already require that chaplains be endorsed — and not necessarily by an organization of believers in a divinity.

“The language (of the amendment) only requires adherence to the applicable instruction, which in no way restricts chaplains to only those who believe in some higher power,” he said. “Their amendment does nothing, so there’s nothing to be done in response. It just shows their ignorance about atheists, humanists, and military regulations.”

As reported by Christian Fighter Pilot blog, the House twice voted down an earlier amendment by Rep. Polis that would have specifically authorized appointment of chaplains endorsed by non-theistic organizations.

On July 24, the House passed the full Appropriations bill by a vote of 315- 109 and sent it to the Senate for consideration.

North Carolina Legislature Passes Law Described As Anti-Sharia Bill

The North Carolina legislature gave final passage yesterday, and sent to the governor for signature, HB 522 (full text), described by its supporters as a ban on enforcement of Sharia law. (Background from WFAE News.) The Act only applies to divorce, alimony and child custody cases. The bill prohibits the application of foreign law, or of any contract provisions, that would violate a party's fundamental constitutional rights.

UPDATE: RNS reported on Aug. 26 that Gov. Pat McCrory has allowed the bill to become law without formally signing it.

Thursday, July 25, 2013

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.

Wednesday, July 24, 2013

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.

Tuesday, July 23, 2013

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."

Monday, July 22, 2013

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.

Sunday, July 21, 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.

Saturday, July 20, 2013

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."

Friday, July 19, 2013

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.

Thursday, July 18, 2013

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.)

Wednesday, July 17, 2013

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.

Tuesday, July 16, 2013

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.

Monday, July 15, 2013

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."

Sunday, July 14, 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.

Saturday, July 13, 2013

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.

Friday, July 12, 2013

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.