Religion Clause

Wednesday, November 20, 2013

Obama Criticized As Anti-Religious For Reading First Gettysburg Address Version

To mark yesterday's 150th Anniversary of Lincoln's Gettysburg Address, documentarian Ken Burns has urged everyone to video themselves reciting the Address. His Learn the Address website, which features a number of celebrities delivering the speech, points out that there are 5 versions of the Gettysburg Address. Burns specifically asked President Obama to recite the "Nicolay Version"-- the earliest version of the speech which, among other things, does not include the reference to "God" that ended up in later versions. A number of conservative commentators and websites-- perhaps unaware of why the President did so-- strongly attacked Obama for "omitting God" in the Gettysburg Address. For example, a Liberty Counsel press release said:

After five years of tearing down religious liberty, it is neither surprising nor unexpected that President Obama disregarded “under God” when reciting the Gettysburg Address. Today the “new birth of freedom” means taking a stand against a tyrannical, antireligious assault at every level of government from the Department of Justice, to city halls, to the public schools.

And American Family Association Issue Analysis Director Bryan Fischer tweeted: "Obama's omission of 'under God' is more evidence of his anti-Christian bigotry. He honors Islam but disrespects Christianity."

According to a CBS News report:

White House spokesman Jay Carney on Tuesday gave a simple explanation for the reading. "He read the version of the address that Ken Burns provided," he said, noting that Burns is a "noted Civil War scholar."

Britain's Court of Appeal: Christian Radio Ad Barred By Ban On Political Advertising

Britain's Communications Act 2003 prohibits the broadcasting of any "advertisement which is directed towards a political end." In London Christian Radio Ltd. v Radio Advertising Clearance Centre, (Ct. App., Nov. 19, 2013), the England & Wales Court of Appeal in a 2-1 decision held that a proposed ad from a publisher of Christian magazines that was to be run on a Christian radio station violates this ban. The proposed ad stated:

We are CCP. Surveys have shown that over 60% of active Christians consider that Christians are being increasingly marginalised in the work place. We are concerned to get the most accurate data to inform the public debate. We will then use this data to help make a fairer society. Please visit CCPmagazines.co.uk and report your experiences.

In upholding the decision of the Radio Advertising Clearance Center to bar the ad, Lord Justice Dyson said in part:

What matters is the effect of an advertisement on political debate. The question is whether it will frustrate the statutory aim of ensuring that, so far as practicable, the playing field of political debate is level....

Lord Justice Elias dissenting said in part:

The only issue is whether, considered objectively and by focusing solely on the advertisement, the listener is being subjected to a partial political message.... The fact that the purpose is to enable the advertiser in future to seek to exert such influence and operate as a more effective pressure group does not in my judgment amount to an infringement of [the statute].

Huffington Post UK reports on the decision.

Tuesday, November 19, 2013

Note To Readers-- Still Working With Template

Religion Clause followers know I have been tinkering with the blog's traditional template style. Some intensive users found the new format to require excessive scrolling. So I am tinkering some more-- now with a wider body and Arial typeface. This makes all but the longest posts readable without scrolling. I have also added a "Recent Posts" box at the top of the sidebar to allow you to browse recent post topics without scrolling. Particularly to those who liked the first new template, let me know it this eliminates its advantages for you. And for those who did not like it, let me know if this is still too much scrolling for you. By the way, all standard browsers allow you to increase or decrease the size of the print you are reading by zooming in or out.

Split Ohio Supreme Court Upholds Firing Of Science Teacher For Refusing To Remove Religious Materials

In a 4-3 decision today, the Ohio Supreme Court upheld the firing of middle school science teacher John Freshwater for insubordination in failing to comply with orders to remove religious materials from his classroom. In Freshwater v. Mount Vernon City School District Board of Education, (OH Sup. Ct., Nov. 19, 2013), Chief Justice O'Connor in an opinion joined by Justices French and O'Neill held that the school improperly ordered Freshwater to remove his personal Bible from his desk. The order infringed Freshwater's free exercise rights; the Bible posed no threat of an Establishment Clause violation because Freshwater did not use it while teaching. However, Freshwater was properly removed for insubordination in failing to comply with orders to remove other religious materials from his classroom. The Chief Justice added:

Accordingly, based on our resolution of this threshold issue, we need not reach the constitutional issue of whether Freshwater impermissibly imposed his religious beliefs in his classroom.

Justice Lanzinger wrote a separate opinion joining only the court's syllabus in the case, saying:

I would hold that the school district’s order that John Freshwater put away his personal Bible while students were present was a reasonable and valid attempt to avoid an Establishment Clause violation. That order did not infringe on Freshwater’s free speech rights, for he was not required to remove the Bible from the classroom—merely putting the book into a desk drawer during class time would have sufficed.

Justice Pfeifer, in a rather blistering dissent, argued that the core of the insubordination charges against Freshwater involved his refusal to remove his personal Bible. Pfeifer agreed with the lead opinion that the order to remove it was improper but disagreed on the handling of the remaining insubordination charges:

With the insubordination claim gutted, the lead opinion should have moved on to consider the constitutional issues remaining in the case. Instead, the majority walks away from the opportunity to provide helpful guidance....

Thus concludes the sorry saga of John Freshwater, excellent junior-high science teacher, terminated as a result of an extreme overreaction of the parents of a decent student, followed by even less informed and measured responses by Mount Vernon school administrators and the school board.... [T]hey have managed to divide a really nice community and cost the school board and/or its insurance providers well over a million dollars to free itself of a very good teacher. And the people they did it for left town.

There is a clear set of winners today: the lawyers.... They have told themselves that they are participating in the evolved version of the Scopes trial, when in reality they have created a modern Jarndyce and Jarndyce....

This court accepted jurisdiction in this case presumably to speak to the important issues of the Establishment Clause, academic freedom, and how schools may approach educating children about the scientific theories of evolution, which may directly clash with religious teachings of creation to which many children have been exposed at home and at church. Instead this court ... [leaves] the resolution of all these heady matters in the hands of a lone referee. Ironically, the lead opinion in this case proves the existence of God. Apparently, he’s an R.C. 3319.16 referee from Shelby.

Justice O'Donnell also filed a dissenting opinion, which was joined by Justices Pfeiffer and Kennedy. He argued that there was insufficient evidence to support the insubordination claim, and that Freshwater was improperly charged with injecting his personal religious beliefs into his teaching:

[T]he evidence in this case reveals that the school board has misinterpreted Freshwater’s effort to challenge students to think critically about evolutionary theory and instead construed his instruction as promoting intelligent design from a creationist perspective. This is a misimpression and contrary to the evidence in this case, and it is not a basis to terminate the contract of a teacher.

The school board ... apparently assumed that he could not fairly present lessons on evolution and stated that he “not only injected his subjective, biased, Christian religion based, non-scientific opinion into the instruction of eighth grade science students but also gave those students reason to doubt the accuracy and or veracity of scientists, science textbooks, and/or science in general.” Yet student scores on standardized tests stand as strong, persuasive evidence of the board’s faulty conclusion; those scores instead reveal that Freshwater did teach evolution as mandated by the curriculum. Moreover, teaching students to question and rethink accepted scientific theories is essential to their understanding of the scientific method, the key concept his science students learned in eighth grade.

The Supreme Court also issued a lengthy press release on the decision, and the Columbus Dispatch reports on the decision.

Federal Jury Awards Portland City Employee Damages In Religious Harassment Case

In Portland, Oregon, a federal jury earlier this month awarded a former city employee damages of $14,080. It found in its Nov. 8 special verdict (full text) that plaintiff was subjected to a hostile work environment based on her religion, and that the city knew or should have known about the situation and failed to take prompt effective remedial action. As reported by yesterday's Oregonian, the complaint (full text) in Griffin v. City of Portland, (D OR, filed 4/9/2013) claimed that co-worker Theresa Lareau harassed plaintiff KellyMarie Griffin about her strong Christian beliefs, repeatedly making profane statements that offended Griffin and telling Griffin: "I’m tired of your Christian attitude and your Christian shit all over your desk and your Christian shit all over the place. I’m going to file a complaint against you the next time I sneeze and you say 'bless you'. You’re just doing it for the attention; you wear it on your sleeve like a badge and I’m sick of it. It offends me."

Court Will Approve Settlement In Class Action By Michigan Muslim Inmates

According to the Wall Street Journal, at a hearing yesterday a Michigan federal court judge indicated he would approve a proposed settlement (full text) in a long-running class-action lawsuit by Muslim prisoners. Under the settlement in Dowdy-El v. Caruso, (ED MI), the state will provide Muslim inmates meals that comply with halal standards. The settlement does not require the meals to include meat, and the state says it plans to furnish vegan meals to meet its obligations. The settlement also provides a procedure for inmates who were disciplined because of conflicts between religious services and work, school or administrative detail assignments to have the record of disciplinary actions expunged.

Catholic Diocese of Gallup Becomes Ninth To File For Bankruptcy Protection

Last week (Nov. 12), the Catholic Diocese of Gallup-- which encompasses parts of New Mexico and Arizona-- became the ninth Catholic diocese in the United States to file for Chapter 11 bankruptcy reorganization. As reported by the Albuquerque Journal, the diocese includes a large part of the Navajo Nation, as well as 6 other tribes and pueblos. The day before the filing, the diocese posted a letter (full text) from Bishop Wall reiterating a statement he made in September that bankruptcy reorganization is "the only way to equitably and mercifully deal with the mounting sex abuse claims, still meet our commitment to [parishioners] and continue the outreach mission of the Church." Two separate bankruptcy petitions, along with a motion for joint administration of the two cases, were filed in federal bankruptcy court in New Mexico since the diocese is organized through two separate entities-- a New Mexico corporation sole and an Arizona corporation sole. The full text of all the legal documents involved are available from the Diocese's website. [Thanks to Douglas Carver for the lead.]

Monday, November 18, 2013

Hotel Settles Religious Discrimination Suit With EEOC

The EEOC announced today that the MCM Elegante Hotel in Albuquerque, New Mexico has agreed to settle a religious discrimination suit brought by the EEOC charging that the hotel refused to accommodate a Muslim employee, Safia Abdullah, who was hired for a housekeeping position. The hotel insisted that Abdullah remove her hijab (religious head scarf), and fired her when she refused. Under the settlement, the hotel will pay $100,000 in damages and consent to an injunction baring future discriminatory practices. It will also institute new training and notice procedures.

Former Israeli Chief Rabbi Arrested On Bribery Charges

In Israel, the country's former Chief Ashkenazi Rabbi Yona Metzger was arrested by police today on charges of bribery, money laundering, obstructing an investigation, and fraud. Haaretz reports that police suspect Metzger, as chief rabbi, took bribes totaling millions of shekels (1 NIS= $0.28 US) from non-profit organizations in exchange for advancing their interests. In June, as Metzger neared the end of his term as chief rabbi, it was initially announced that he was under investigation. (See prior posting).

USCIRF Issues New Policy Brief On Role of Shariah in Sudanese Law

The U.S. Commission on International Religious Freedom last week issued its most recent Policy Brief, this one titled Sudan’s Enduring Question: The Role of Shari'ah in the Constitution and Law, (Nov. 2013). The Policy Brief says in part:

In December 2010, Sudanese president Omar al-Bashir declared that Sudan’s new constitution will be based on his government’s interpretation of Islamic (Shari’ah) law. Senior officials continue to repeat his declaration, as opposition parties and civil society representatives insist that Sudan’s new constitution be based on universal human rights and reflect Sudan’s commitments to international human rights standards, including freedom of religion or belief.

Concerns about Shari’ah being central to a future constitution ignore the fact that Sudan’s current legal system already is based on a restrictive interpretation of Shari’ah provisions and corresponding hudood, or classes of crimes with set punishments.

Sunday, November 17, 2013

Recent Prisoner Free Exercise Cases

In Smith v. Goord, (2d Cir., Nov. 15, 2013), the 2nd Circuit affirmed dismissal of a Muslim inmate's RLUIPA and equal protection challenges to the lack of Islamic services at a facility where he was held for approximately 4 weeks.

In Awe v. Virginia Department of Corrections, 2013 U.S. Dist. LEXIS 161227 (WD VA, Nov. 12, 2013), a Virginia federal district court dismissed an inmate's claim that the Virginia Department of Corrections Common Fare policy requiring inmates to sign an agreement to consent to possible suspension from the diet violates his free exercise and equal protection rights. Plaintiff was suspended for having a fried egg from the master menu in his pocket.

In Gooch v. Georgia Department of Corrections, 2013 U.S. Dist. LEXIS 160882 (MD GA, Nov. 12, 2013), a Georgia federal district court adopted in part a magistrate's recommendation (2013 U.S. Dist. LEXIS 161630, Sept. 18, 2013) and permitted an inmate to proceed against various defendants on his claim that they failed to provide him with a specific diet required by his religion.

In Hall v. Bradshaw, 2013 U.S. Dist. LEXIS 162284 (WD NC, Nov. 14, 2013), a North Carolina federal district court dismissed an inmate's claim that his request for a Native American bible was denied.

President Announces Nominee For Assistant Attorney General For Civil Rights

Last Thursday, President Obama announced his intention to nominate Debo P. Adegbile as Assistant Attorney General to head the Civil Rights Division of the Department of Justice. The Civil Rights Division enforces federal anti-discrimination laws, including those that prohibit religious discrimination. The nominee has served since July as Senior Counsel to the United States Senate Judiciary Committee, and before that worked at the NAACP Legal Defense and Educational Fund.

NYPD's Grooming Rule Violates Free Exercise Rights of Orthodox Jewish Officer

In Litzman v. New York City Police Department, (SD NY, Nov. 15, 2013), Fishel Litzman, a member of the Chabad Lubavitch Orthodox Jewish movement, was accepted into the NYPD Police Academy and sworn in as a probationary police officer. He sued when his request for a religious accommodation to allow him to wear a one-inch long beard was denied and he was fired for continuing to wear his beard. NYPD policy allowed for medical and religious exceptions to the Department's no-beard rule, but only for beards that do not exceed one millimeter in length. A New York federal district court held that while the police department had not violated Title VII of the 1964 Civil Rights Act by failing to accommodate Litzman's religious exercise, it did violate his 1st Amendment free exercise rights and the New York City Human Rights Law.

The NYPD prevailed under Title VII because it carried its burden of showing that an accommodation would create "undue hardship." The New York City Human Rights Law similarly requires accommodation, but has a definition of "undue hardship" that creates a much higher hurdle for the employer. NYPD failed to meet that test. Analyzing plaintiff's 1st Amendment free exercise claim, the court concluded that strict scrutiny should be applied:

Here, the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound. The ... NYPD provides temporary exemptions to police officers who grow beards beyond the one-millimeter limit for special occasions, such as religious holidays, weddings, and funerals.... Defendants also admit that the NYPD has police officers with beards in excess of one-millimeter in length, not only because of formal exemptions due to undercover assignments, but also because the NYPD does not always enforce its personal appearance standards.... Because there is evidence that the NYPD exercises discretion with respect to a facially neutral rule in a discriminatory fashion, strict scrutiny is appropriate.

New York Daily News reports on the decision.

Obama Sends Greetings To Sikhs Celebrating Birthday of First Sikh Guru

Yesterday, President Obama issued a statement (full text) extending best wishes to Sikhs in the United States and around the world as they celebrate the anniversary of the birth of Guru Nanak Dev Ji, the first Sikh Guru. The statement says in part:

This sacred time is an occasion to reflect on Guru Nanak’s timeless teachings and the principles that are at the heart of Sikhism, including the equality of all human beings, the pluralism we cherish in diverse societies and the compassion we owe one another.

Note To Readers On Template Redesign

I have done a bit of a redesign on the template for Religion Clause blog, hopefully to make it more readable. I invite comments on whether it has succeeded.

Saturday, November 16, 2013

Panelists Lament Loss of Experience At IRS Exempt Organizations Unit

Yesterday's BNA Daily Report for Executives [subscription required] reports on a Nov. 15 conference on tax exempt organizations sponsored by the American Law Institute and American Bar Association at which speakers lamented the current situation in the Internal Revenue Service's Exempt Organizations unit. Here are some excerpts from the BNA report:

Most of the senior IRS officials who worked in the unit have either retired or been pushed out as a result of the May Tea Party scandal, said Marc Owens, a partner with Caplin & Drysdale.... “Everyone from the commissioner down to the director of rulings and agreements in the exempt organizations function were replaced by people with essentially no tax administration experience,” he said. “No experience interpreting the Internal Revenue Code, no experience dealing with taxpayers that apply the code, no experience in doing what the exempt organizations function has done and is in charge of doing.”... One of the impacts of less-experienced employees in recent years has been a dwindling number of technical advice memorandums, the panelists said. TAMs move audit cases to the IRS's national office....

Private Foundation That Funds Milwaukee Archdiocese Is Respondent In Securities Fraud Case Supreme Court Agrees To Review

Yesterday, the U.S. Supreme Court granted certiorari in Halliburton Co. v. Erica P. John Fund, (Docket No. 13-317, cert. granted 11/15/2013). (Order List.) This is the second time the case is before the Supreme Court. (The Court's 2011 opinion was Erica P. John Fund, Inc. v. Halliburton.) Reports on yesterday's decision by the Court to grant review, such as this report by Reuters, all focus on the main issue involved-- whether the Court will back off of the so-called "fraud-on-the-market theory" that makes it easier for securities fraud class actions to be brought in federal court. What few, if any, media are reporting is that the plaintiff-appellee, the Erica P. John Fund, was previously known as the Archdiocese of Milwaukee Supporting Fund. In recent years it has donated some $600,000 per year to the Catholic Archdiocese-- which is now in bankruptcy reorganization. Here are excerpts from a somewhat unflattering March 2011 report about the Fund by the Milwaukee Journal-Sentinel:

The nonprofit Erica P. John Fund, which has given millions of dollars to the archdiocese and other organizations over the years, is among a number of revenue sources expected to be scrutinized by creditors in the archdiocese's bankruptcy.

Victims and their attorneys question the timing of the name change in 2009, suggesting it may have been intended to obscure the fund's true purpose - to financially support the archdiocese - and may have been part of a broader effort by the archdiocese to shield its resources from being used for sex abuse claims....

Archdiocese spokesman Jerry Topczewski said the John Fund, as a private foundation, cannot be tapped to pay sex church abuse settlements and that its grants obtained by the archdiocese are restricted to specific uses....

Proceeds from the fund - more specifically, from the sale of a property it donated - were used to pay $450,000 in hush money in 1998 to a man who claimed to have been sexually assaulted by then-Archbishop Rembert Weakland when he was a seminary student years earlier. Weakland, who abruptly retired after the payment became public in 2002, has maintained that the relationship was consensual.

[An Archdiocese spokesman] said the building was donated before Erica John dictated that no family funds could be used to pay sex-abuse settlements. And federal authorities investigated the allocation but found no wrongdoing by the archdiocese because the money had not been diverted from a specific purpose.

Wrongful Death Suit Filed Against Philadelphia Catholic Archdiocese and Two Priests

The Legal Intelligencer reports that a wrongful death lawsuit was filed last Wednesday in a Pennsylvania state trial court against the Catholic Archdiocese of Philadelphia, Monsignor William Lynn and Rev. Robert L. Brennan. At issue is the death of Sean Patrick McIlmail who last month was found dead in his car from a drug overdose. The suit alleges that McIlmail, who was addicted to drugs, suffered psychologically and emotionally as a result of sexual abuse by Brennan, and that McIlmail developed "various psychological coping mechanisms" in order to deal with the trauma. The suit claims that the Archdiocese and Msgr. Lynn "protected Brennan in his position so as to facilitate his sexual abuse of children...." Criminal charges against Brennan were dropped after McIlmail's death. A jury had previously deadlocked on criminal charges against Brennan. Lynn was convicted last year of child endangerment for covering up sexual abuse by other priests. (See prior posting.)

Friday, November 15, 2013

Supreme Court In Unusual Move Gives Interim Relief On Grooming Rules To Muslim Prisoner

In an unusual order (full text) yesterday, the United States Supreme Court issued an injunction barring the Arkansas Department of Corrections from enforcing its grooming policy against Muslim inmate Gregory Holt "to the extent that it prohibits applicant from growing a one-half-inch beard in accordance with his religious beliefs." The order entered in the case of Holt v. Hobbs, (Docket No. 13-6827) will terminate either when the Court denies Holt's petition for certiorari, or, if it grants the petition, when the Court enters its judgment. AP reports that Holt is serving a life sentence for domestic violence and burglary after he cut his girlfriend's throat and stabbed her. Holt, who also goes by his religious name of Abdul Maalik Muhammad, is appearing pro se. He filed his handwritten application for an injunction while his cert. petition is pending with Justice Samuel Alito (who is assigned to receive such motions in 8th Circuit cases). Alito in turn referred the application to the entire court which issued yesterday's order. Here is the 8th Circuit's opinion upholding the prison system's grooming policy. [Thanks to How Appealing for the lead.]

5th Circuit Remands Sikh's RFRA Challenge To Ban On Kirpan In Federal Building

In Tagore v. United States, (5th Cir., Nov. 13, 2013), the U.S. 5th Circuit Court of Appeals rejected a Title VII religious discrimination claim by a Sikh employee of the Internal Revenue Service who lost her job after she insisted on wearing her kirpan into her federal office building. Federal law (18 USC Sec. 930) prohibits weapons with blades over 2.5 inches long in federal building. The court said that: "An employer need not accommodate an employee’s religious practice by violating other laws."

However the court remanded for reconsideration of plaintiff's RFRA claim in light of a Policy Directive issued by the Federal Protective Service after the case concluded in the district court. (See prior posting.) That Directive permits granting of exemptions in federal buildings for Sikh articles of faith, and thus possibly undercuts the government's argument regarding the need for uniform application of the weapons ban. The appeals court also held that, contrary to the district court's conclusion, plaintiff had created a genuine issue of material fact as to her sincere religious belief in wearing a 3-inch bladed kirpan. [Thanks to Blog From the Capital for the lead.]

Hawaii Court Upholds State's New Marriage Equality Law

In Hawaii, a trial court judge rejected a state constitutional challenge to the Hawaii's marriage equality law that was signed by the governor yesterday. According to the Honolulu Star-Advertiser, Circuit Court Judge Karl Sakamoto held yesterday that the legislature has the inherent authority to define marriage. In 1998, Hawaii voters approved an anti-gay marriage constitutional amendment. But unlike amendments in a number of other states, Hawaii's Art. I, Sec. 23 merely permits the state legislature to reserve marriage to opposite sex couples. Plaintiffs in the case, including a state representative, a Christian pastor and the head of Hawaii's Christian Coalition argued that in the 1998 amendment, voters intended to ban same-sex marriage. The court rejected this argument.

Suit Settled Allowing Christian Group To Use Building To House Recovering Addicts and Their Children

Alliance Defending Freedom announced this week that it has reached a settlement with the city of Hattiesburg, Mississippi in a suit challenging the city's refusal to rezone or provide a special use permit for a Christian organization to use a building it purchased for overnight housing of women who are recovering from addiction and their children. The complaint (full text) in Lighthouse Rescue Mission, Inc. v. City of Hattiesburg, Mississippi, (SD MI, filed 5/3/2013) claimed that the zoning denials violated RLUIPA, the federal Fair Housing Act and the speech and religion protections in the federal and state constitutions. The order and settlement agreement (full text, filed 11/7/13) permits Rescue Mission to house allows it to use the building for overnight housing and related ministry operations.

Developments In Challenges To Contraceptive Coverage Mandate

On Tuesday, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Eden Foods Inc. v. Sebeius, (cert. filed 11/12/2013). In the case, the 6th Circuit Court denied a preliminary injunction to a for-profit natural foods corporation and its Catholic owners who claim that the contraceptive coverage mandate under the Affordable Care Act violates their free exercise rights as protected by the Religious Freedom Restoration Act. (See prior posting.) Thomas More Law Center announced the filing of the cert. petition.

In June (see prior posting), a Pennsylvania federal district court granted Geneva College a preliminary injunction pending a decision on the merits in its challenge to the requirement that it include in its student health plans coverage for contraceptives that it considers abortifacients. As reported by BNA Daily Report for Executives [subscription required], the Christian college has now filed a motion and supporting Memorandum of Law (full text) seeking a similar preliminary injunction for the health plan covering its employees. The case is Geneva College v. Sebelius, (WD PA, motion filed 11/12/2013).

Thursday, November 14, 2013

Court Invalidates Couple's Agreement Negotiated Before Bet Din For Lack of Formalities

In Katz v. Katz, (S.Ct. Kings Co. NY, Nov. 7, 2013), a New York trial court held that an agreement negotiated before a Jewish rabbinical court (Bet Din) by a husband and wife is unenforceable because it was not formally acknowledged in the manner required by NY Domestic Relations Law Sec. 236B(3). As described by the court, the wife argued that she:

was a "victim of extortion" in the sum of $70,000.00 in order to obtain a get, a Jewish divorce, from the husband.... [She] alleges that she only conceded to joint custody and to the parenting access schedule detailed in the May 17, 2010 writing because she "was intimidated to give in to the Defendant's unreasonable demands of custody, visitation and holidays" and that she believed that the husband would not grant her a get [a religious divorce] unless she did so.... She alleges that she placed $50,000.00 in escrow to "guarantee performance" that the husband would grant her a get and that she has "not received [the escrow] money and believes that it has been given to the Defendant, and that he is using [her escrow] money to support this litigation."

The husband denies that the wife was a victim in process of obtaining the get and alleges ... that if the wife "did not agree with the tenets of the Jewish Law and Torah or felt that the process was unfair to her, she did not have to go through the Get process" and that it is "disingenuous of her to receive the benefit of the Get and then attack the Jewish Law and Torah under which it was issued." He "categorically" denies the he received any money from the wife in exchange for him granting her a get. The husband alleges that it is he, not the wife, who is being victimized in this litigation: he alleges that "[i]t is only because [he] did not think [the son] should be traveling to Israel, that [the wife] is now retaliating against [him] by trying to take away what [he] value [sic] most in life — custody of [his] son."

Norway's Government Will Propose New Law On Ritual Circumcision

Norway's health minister Brent Hoie says that by this spring the government will introduce new legislation on non-medical circumcision of boys under 18. Each year some 2000 Muslim and 7 Jewish newborns are circumcised in Norway. According to the Jerusalem Post yesterday, the announcement follows a recommendation by Norway's Children’s Ombudswoman Anne Lindboe to completely ban non-medical circumcision of boys under 18 without their consent. Lindboe said: "This is not due to any lack of understanding of minorities or religious traditions, but because the procedure is irreversible, painful and risky." It is not clear what the proposed bill will provide.

Jewish Leaders Criticize Bush 43's Decision To Speak At Messianic Jewish Fundraiser

CNN reports that Tevi Troy, George W. Bush's former Liaison to the Jewish Community is critical of the former president's decision to speak tonight at the fundraising dinner of the Messianic Jewish Bible Institute, a group whose goal is to convert Jews to Christianity. CBS reports that other Jewish leaders such as ADL director Abe Foxman and Los Angeles rabbi David Wolpe have also spoken out against President Bush's decision. MJBI's website says:

The vision of the MJBI is to bring Jewish people into a personal relationship of faith with Yeshua the Messiah, knowing their acceptance will eventually mean life from the dead (Romans 11:15).

Appeals Court Dismisses Failure To Supervise Suit Against Diocese By Abuse Victim

In D.T. v.Catholic Diocese of Kansas City- St. Joseph, (MO App., Nov. 12, 2013), a Missouri state appeals court upheld the dismissal of claims against a Catholic diocese by plaintiff who was sexually abused by a priest serving in one of its parishes. The suit alleges that that the Diocese knew that the priest had sexually molested children in the past and knew that it was substantially certain that he would molest other children in the future. Relying on the Missouri Supreme court's 1997 decision in Gibson v. Brewer, the appeals court held that negligence-based claims against the diocese are barred by the First Amendment because deciding them leads to excessive entanglement. It also, reluctantly, dismissed the claims of intentional failure to supervise clergy because under Gibson, a diocese could be held liable in such cases only when the abuse occurred on property belonging to the diocese. The appeals court said it is bound by the state Supreme Court precedent, despite the questionable outcome it produces in this case:

Taken to its extreme, then, a religious organization could be fully cognizant that a member of its clergy, when placed near children, is certain or substantially certain to sexually molest children; but as long as it counsels its clergy to take their personal criminal proclivities to premises not owned, possessed, or controlled by the church and not to use a chattel of the church in the commission of the harmful and often criminal actions, there could be no civil liability for intentional failure to supervise.

That result seems to contradict the spirit and intent of the intentional tort recognized and announced by the Gibson court.... Perhaps this is a case that our Supreme Court may wish to accept on transfer to clarify application of the elements of the tort of intentional failure to supervise clergy that it previously announced in Gibson, particularly in light of the fact that both the Restatements (Second) of Agency and Torts have been revised since Gibson was decided.

AP reports on the decision.

Wednesday, November 13, 2013

Nevada Supreme Court Stays Out of Dispute Over Judge's Recusal For Religious Ties

On Nov. 8, the Nevada Supreme Court denied a Petition for Writ of Mandamus or Prohibition in Health Plan of Nevada v. District Court (Lynam). As reported by the Las Vegas Review-Journal, in the case the Health Plan of Nevada was attempting to get the court to order trial court judge Douglas Smith back on a case in which Smith had recused himself. In the case in which plaintiffs are suing over contracting hepatitis C from a doctor covered by the Health Plan HMO, the judge stepped out after plaintiffs claimed that the attorney representing the HMO held a position of authority over the judge in the Mormon Church. The attorney, Mark Hutchison (a state senator and candidate for lieutenant governor) was one of two counselors to the president of Red Rock Stake (one of the 38 districts into which the Mormon Church in Nevada is divided). The judge served as a counselor to the bishop of one of the congregations in Red Rock Stake. Health Plan argued that Hutchison had no direct authority over Judge Smith in the Church, and in any event Hutchison has now withdrawn from representing Health Plan so the conflict is eliminated.

Snake Handling Pastor Charged Criminally; Authorities Tipped Off By Reality TV Show

RNS reported yesterday that the Tennessee Wildlife Resources Agency last week raided the Tabernacle Church of God in LaFollete, Tennessee and seized 53 venomous snakes handled by the congregation during worship services. Authorities arrested the church's pastor, Rev. Andrew Hamblin, who is the co-star of the National Geographic Chanel's reality series Snake Salvation. Wildlife authorities were tipped off to the fact that there were snakes at the church because of the television show. Hamblin was charged with violations of Tennessee Code § 39-17-101 which prohibits using a poisonous snake in a way that endangers others. Hamblin says that the ban violates his and his congregation's religious liberty. They point to language in Mark 16: 18 to explain their snake handling rituals.

Hawaii Legislature Passes Marriage Equality Bill

Yesterday the Hawaii legislature gave final passage to SB1, the Hawaii Marriage Equality Act which will legalize same-sex marriage as of Dec. 2. One of the 19 representatives voting against the bill in the House was Rep. Jo Jordan, the first openly gay state legislator to vote against same-sex marriage. She told Honolulu Magazine that her objections were in part based on a concern that the religious exemptions in the bill are too narrow. The bill protects clergy who refuse to perform same-sex marriages or civil unions, and allows any religious organization or nonprofit that is "operated, supervised, or controlled by a religious organization" to refuse to provide goods, services or facilities for civil unions or marriages that are in violation of the organization's religious beliefs. According to the Honolulu Star-Advertiser, Gov. Neil Abercrombie has said he will sign the bill. It is expected that he will do so today, beating Illinois to become the 15th state to legalize same-sex marriage. The Illinois legislature passed marriage equality legislation last week (see prior posting), but Gov. Pat Quinn does not plan to sign it until Nov. 20. Shortly after the bill passed in Hawaii, President Obama issued a statement congratulating the legislature on its action, and saying that this made him even prouder to have been born in Hawaii.

Tuesday, November 12, 2013

U.S. Bishops Elect New Leaders; Focus On Christian Persecution Abroad

The U.S. Conference of Catholic Bishops began their Fall meeting in Baltimore yesterday. As reported by CNS and the New York Times, outgoing USCCB president Cardinal Timothy Dolan in his address to fellow-bishops called for a new emphasis on combating persecution of Christians in countries such as Syria, Egypt, India and Nigeria. He said that we are living in what must be recognized as a new age of martyrs. He claimed that as many as 1 million Christians have been killed for their faith so far in the 21st century, and said that it is a priority to urge political leaders to make the protection of "at-risk Christians a foreign policy priority."

The bishops elected their current vice-president, Archbishop Joseph E. Kurtz of Louisville, Kentucky, as the new president of the Conference, and elected Cardinal Daniel N. DiNardo of Galveston-Houston as vice president. (Press release.) (AP report.) They also approved the drafting of a formal statement on pornography.

International Court of Justice Rules On Cambodian- Thailand Dispute Over Hindu Temple Site

Yesterday the International Court of Justice in the Hague issued a decision in Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand). (Full text of decision; Summary of the judgment; Press Release). In 1962, the ICJ ruled in a border dispute that the Temple of Preah Vihear (now a UNESCO world heritage site) is located in Cambodian territory, and ordered that "Thailand is under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity." Yesterday's decision clarified what was meant by the area in the "vicinity" of the Temple. As described in a Voice of America report:

The unanimous ruling by the 17 judges of the world court says all of the raised land on which the ancient Khmer Hindu temple sits belongs to Cambodia.... While adjusting some of the disputed boundary, the decision leaves unresolved the sovereignty of much of the 4.6 square kilometer area in the immediate vicinity of the religious site.....

The ICJ decision rejects some territorial claims in the area made by each country thus it is not a total victory for either side.....

Within hours of the verdict, Thailand’s Prime Minister Yingluck Shinawatra appeared in a nationally televised address, saying the court had taken her country’s stance into consideration and that Bangkok should work with Phnom Penh to resolve outstanding issues.

The territorial dispute led to an exchange of gunfire and dozens of deaths in 2011.

Consent Order Requires Priest Charged With Sexual Misconduct To Petition Vatican For Removal From Priesthood

Bergen County, New Jersey prosecutor John L. Molinelli issued a press release last week announcing an unusual resolution in a clergy sex abuse case. As explained by an RNS report yesterday, in 2007 Catholic priest Michael Fugee, in order to avoid a retrial on improper sexual conduct charges, signed an agreement, embodied in a judicial order and Memorandum of Understanding, banning him from ministering to children. It was discovered earlier this year that Fugee violated the agreement by attending youth retreats and hearing confessions from teens. In response, in May he was charged with 5 counts of criminal contempt. On November 1, those charges were disposed of through a binding agreement and court order under which Fugee has agreed to petition the Vatican to remove him permanently from the priesthood. Prosecutor Molinelli said that this result could not have been achieved by a contempt conviction because:

it is not believed that the American Justice System has such authority as a condition of probation or upon conviction. This is a requirement that will eliminate the threat of Michael Fugee, ever again, obtaining the trust of people through his clerical position nor using his ordained position as a Priest to exert improper contact with children.... The agreement that has been reached forever bars Michael Fugee from holding himself out as a current or former priest or spiritual advisor. Most importantly, he is prohibited from working with children in any capacity.

Molinelli also emphasized that this new order will be supervised by the prosecutor's office, and not by the Archdiocese of Newark, in which Molinelli has lost confidence.

UPDATE: Here is the full text of the court's order in State of New Jersey v. Fugee, (NJ Super. Ct., Nov. 1, 2013).

Charter Affirming State Secularism Introduced Into Quebec Legislature

As previously reported, in August the ruling Parti Quebecois government in the Canadian province of Quebec announced its intention to introduce a secularist Charter of Quebec Values into the National Assembly. Last Thursday it did so by introducing Bill 60, (full text) titled Charter Affirming the Values of State Secularism and Religious Neutrality and of Equality Between Women and Men, and Providing a Framework for Accommodation Requests. Here is an excerpt from the Explanatory Notes summarizing the most important provisions of the bill:

Public bodies must, in the pursuit of their mission, remain neutral in religious matters and reflect the secular nature of the State. Accordingly, obligations are set out for personnel members of public bodies in the exercise of their functions, including a duty to remain neutral and exercise reserve in religious matters by, among other things, complying with the restriction on wearing religious objects that overtly indicate a religious affiliation. As well, personnel members of a public body must exercise their functions with their face uncovered, and persons to whom they provide services must also have their face uncovered when receiving such services. The same rules apply to other persons, in particular to persons who exercise judicial functions, or adjudicative functions within the administrative branch, and to personnel members of the National Assembly.

Canadian Jewish Press reports on the concerns that various Jewish organizations have about the bill, including Section 38 that would allow the National Assembly to bar its members from wearing religious symbols.

Endorsing Agency For Two Conservative Chaplains Sues VA Over Pastoral Education Program Clashes

Fox News and Breibart News report on a federal lawsuit filed last week by the endorsing agency for two military chaplains who were forced out of a Clinical Pastoral Education program run by the Department of Veterans Affairs in San Diego. The program is required in order to work as a chaplain in a VA hospital. The two chaplains, who were endorsed by the Conservative Baptist Association of America, continually clashed in class with the religiously liberal instructor, Nancy Dietsch. The complaint (full text) in Conservative Baptist Association of America, Inc. v. Shenseki, (D DC, filed 11/8/2013), sets out examples of in-class exchanges between Dietsch and chaplains Steven Firtko and Dan Klender, among which are:

... Dietsch informed the class she believes God could be a man or woman. Chaplain Firtko recited the Lord’s Prayer, stating “Our Father who Art in Heaven.” In response, Ms. Dietsch angrily pounded her fist on the table and shouted: “Do not quote Scripture in this class!”....

When Chaplain Klender responded to a question during a group discussion regarding the Sandy Hook school shooting in Newtown CT, by stating he would tell a parent whose child was a victim by stating that “there is evil in the world,” Ms. Dietsch impugned his core faith beliefs stating they would not work in a clinical setting. In the presence of the other students she said: “You don’t actually believe that do you?”

Dietsch also told the class that The VA and she "do not allow Chaplains to pray 'in Jesus' name' in public ceremonies."

The lawsuit contends that the program's intolerance of mainstream Judeo-Christian beliefs violates RFRA, the 1st Amendment's Free Exercise and Free Speech clauses. It also contends that discrimination against Conservative Baptist Association chaplains was arbitrary and capricious.

In a statement to news media, the VA said that the two chaplains were "bullying other classmates and refusing to honor other faith groups." [Corrected to make clear that plaintiff is the endorsing agency, not the chaplains. Thanks to God and Country blog.]

Monday, November 11, 2013

Supreme Court Review Sought By Photographer Who Refused Employment For Same-Sex Wedding

A petition for certiorari (full text) was filed Friday with the U.S. Supreme Court in Elane Photography, LLC v. Willock. In the case, the New Mexico Supreme Court held that the state's Human Rights Act requires a commercial photography business to serve same-sex couples on the same basis as opposite-sex couples, and that the 1st Amendment does not require an exception for creative or expressive professions. (See prior posting.) The cert. petition frames the Question Presented as:

Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.

ADF issued a press release announcing the filing of the petition.

The Episcopal Church Sues Break-Away Illinois Diocese Over Property

The Episcopal Diocese of Chicago and The Episcopal Church last week filed a state court lawsuit claiming that property held by or for parishes and missions of the break-away Anglican Diocese of Quincy may only be used for the benefit of The Episcopal Church. (Press release). The complaint (full text) in The Episcopal Church v. Morales, (IL Cir Ct., filed 11/6/2013), seeks a declaratory judgment that the individual defendants do not hold any offices in the Episcopal Diocese of Quincy and that the parishes and missions are controlled by clergy and officers appointed or elected by The Episcopal Church. In a case decided earlier this year, Diocese of Quincy v. The Episcopal Church, (IL Cir. Ct., Sept. 9, 2013), a different state trial court held that the break-away Anglican Diocese holds title to the bank account and administrative offices of the Diocese. The court held that the Dennis Canon on which The Episcopal Church in part relied relates to parish or mission properties and not to properties titled in the name of the Diocese. Anglican Curmudgeon blog discusses the background and strongly criticizes the Diocese of Chicago for the suit filed last week.

Court Rejects Challenges To New Jersey Ban On Conversion Therapy for Minors

In King v. Christie, (D NJ, Nov. 8, 2013), a New Jersey federal district court dismissed a challenge to the state's ban on sexual-orientation change therapy for minors. It held that psychotherapy carried out through talk therapy is not speech under the 1st Amendment. Instead it is conduct. In so holding, the court in part pointed to the 9th Circuit's recent decision upholding a similar California statute. The court went on to reject claims that the New Jersey statute is overbroad and vague. Finally the court rejected the claim that the New Jersey statute violates the Free Exercise clause by preventing mental health providers from exercising their sincerely held religious beliefs that changing same-sex attraction or behavior is possible. The court concluded that the statute is a neutral law of general applicability. The Newark Star Ledger reports on the decision.

Sunday, November 10, 2013

Recent Prisoner Free Exercise Cases

In Whitaker v. Whitener, 2013 U.S. Dist. LEXIS 157692 (WD NC, Nov. 1, 2013), a North Carolina federal district court dismissed without prejudice a complaint by a Jewish prisoner that serving his kosher meals cold, or late, or delivering them along with non-kosher meals violates his free exercise rights.

In Barton v. Snaza, 2013 U.S. Dist. LEXIS 157934 (WD WA, Nov. 4,2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 157937, Oct. 4, 2013) and dismissed without prejudice prior to service for failure to state a claim an inmate's complaint that two of his personal Asatru/Odinist books were confiscated by an unidentified person, preventing him from performing a ceremonial rite in his cell for three different holidays.

In Arrendondo v. Brooks, 2013 U.S. Dist. LEXIS 158406 (D NV, Nov. 5, 2013), a Nevada federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 158403, Sept. 23, 2013) and dismissed an inmate's complaint that several of his religious books were confiscated as contraband because he did not have his name written in them.

In White v. Van Leer, 2013 U.S. Dist. LEXIS 159186 (ED CA, Nov. 5, 2013), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that he was denied kosher meals in place of the vegetarian substitute meals served at breakfast and lunch to those receiving Halal diets.

In Medina v. Snyder, 2013 U.S. Dist. LEXIS 159225 (ED CA, Nov 5, 2013), a California federal magistrate judge dismissed,with leave to amend, an inmate's complaint that he was denied a kosher meal on three separate occasions.

In George v. City of New York, 2013 U.S. Dist. LEXIS 159434 (SD NY, Nov. 6, 2013), a New York federal district court dismissed a Muslim inmate's claim that a strip search of him violated his free exercise rights. His request to be searched in private was refused.

In West v. Grams, 2013 U.S. Dist. LEXIS 160003 (WD WI, Nov. 8, 2013), a Wisconsin federal magistrate judge dismissed complaints by a Muslim inmate that Muslim prayer services were not permitted to be held when a volunteer leader from outside the prison was unavailable. The court also dismissed his claim that Ramadan meals were served as late as possible in retaliation for his arguing about the proper time to serve these meals.

In McKenzie v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 159981 (WD MI, Nov. 8, 2013), a Michigan federal district court dismissed a suit brought by several Jewish prisoners complaining about a change in Department of Corrections policy that eliminated separate kosher meals and instead made vegan meals that meet kosher and halal standards available for religious diets.

In Arafat v. U.S. Department of Justice, 2013 U.S. Dist. LEXIS 160075 (D MN, Nov. 8, 2013), a Muslim inmate complained of a lack of a halal-certified diet at the county jail in which he was held while his federal criminal trial was under way. A Minnesota federal district court dismissed most of his claims but allowed him to proceed with his claim for injunctive relief, subject to its being dismissed as moot as soon as his sentencing hearing was completed and he was transferred back to federal prison where a halal diet was available. UPDATE: The magistrate's recommendation in the case is at Wetsch v. U.S. Department of Justice, 2013 U.S. Dist. LEXIS 160407 (Aug. 22, 2013).

Federal Lawsuit Challenges Idaho's Refusal To Permit or Recognize Same-Sex Marriage

A suit was filed Friday in an Idaho federal district court challenging the constitutionality of Idaho's laws that exclude same-sex couples from marrying in the state, and refuse to recognize marriages of same-sex couples entered into lawfully elsewhere. The complaint (full text) in Latta v. Otter, (D ID, filed 11/8/2013), claims that Idaho Const. art. III, § 28 and Idaho Code §§ 32-201 and 32-209 violate the due process and equal protection clauses of the 14th Amendment. The National Center for Lesbian Rights issued a press release on the case. [Thanks to Alliance Alert for the lead.]

Saturday, November 09, 2013

7th Circuit In 2-1 Decision Grants Preliminary Injunction To For-Profit Corporations and Their Owners In Contraceptive Mandate Challenge

In Korte v. Sebelius, (7th Cir., Nov. 8, 2013), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision in a consolidated appeal of suits by two unrelated small businesses and their Catholic owners, held that a preliminary injunction should be granted barring enforcement of the Affordable Care Act contraceptive coverage mandate on religious freedom grounds. The companies involved are Korte & Luitjohan Contractors, Inc., an Illinois construction company, and Grote Industries, Inc., an Indiana manufacturer of vehicle safety systems.

The majority, in a 64-page opinion, held that for-profit corporations are "persons" whose religious exercise is protected by the Religious Freedom Restoration Act, saying:

It’s common ground that nonprofit religious corporations exercise religion in the sense that their activities are religiously motivated. So unless there is something disabling about mixing profit-seeking and religious practice, it follows that a faith-based, for-profit corporation can claim free-exercise protection to the extent that an aspect of its conduct is religiously motivated.

The majority then concluded that the mandate imposes a substantial burden on the religious exercise of both the corporations and their individual owners and managers that is not justified by a compelling governmental interest and is not achieved by the least restrictive means.

Judge Rovner wrote a very interesting 89-page dissent. Early in her opinion, she sets out several hypotheticals that follow from the majority's decision, involving employers who object on religious grounds to paying for coverage for other kinds of medical treatment for their employees. Later in her opinion, she discusses at length what she describes as "significant logical difficulties posed by attributing religious rights to secular corporations." She says in part:

First, to the extent that a corporation’s religious principles and identity derive from its owners, what if the owners have diverse beliefs, diverse degrees of devotion, and diverse notions as to whether and how the corporation ought to reflect their religious beliefs?...

Second, suppose that the company’s ownership changes. What happens then to the beliefs we have attributed to the corporation based on its ownership?....

Third, are the religious beliefs of corporate owners solely determinative of the corporation’s religious principles? Suppose ... that a corporation’s owners have entirely entrusted the management of the corporation to its longtime CEO.... Are her beliefs attributable to the corporation? Or suppose ... the focus of the corporation is on serving members of a particular religion-- selling kosher or halal food products, for example.... Can the corporation be said to hold the religious beliefs of its target market, even if its owners and managers do not?....

[I]f a corporation has free exercise rights because the Dictionary Act suggests it is among the "persons" to which RFRA grants the right to make such a claim... then why does a corporation of large, diverse, or even public ownership not have free exercise rights also? And how would the beliefs of a public corporation be determined—by a vote at the annual shareholders’ meeting, for example?

The 7th Circuit had previously granted an injunction pending appeal in the case. (See prior posting.)

EU Court of Justice Rules On When Homosexuals Qualify For Refugee Status

On Thursday, the Court of Justice of the European Union issued a preliminary ruling interpreting Council Directive 2004/83/EC on minimum standards for third-country nationals to qualify as refugees. The Directive defines a refugee, in part as a person who has a "well-founded fear of being persecuted for reasons of ... membership of a particular social group...." In X, Y, Z v. Minister voor Immigratie en Asiel, (EU Ct. Justice, Nov. 7, 2013), the court held that:

the existence of criminal laws ... which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group.

... the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment ... which is actually applied ... must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.

.... When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.

The Court also issued a press release on the decision. So did ORAM (the advocacy group for LGBTI refugees). It discusses at length the problems that European officials will face in accurately assessing the credibility of asylum claims based on sexual orientation. The Los Angeles Times reports on the decision, focusing on the persecution of gays and lesbians in Africa-- the home continent of the 3 refugees who were parties to the case decided by the court.

Tonight Is 75th Kristallnacht Anniversary; New Data On Antisemitism In Europe and U.S. Released

A statement (full text) issued yesterday by President Obama points out that tonight marks the 75th anniversary of Kristallnacht-- the violent Nazi-party inspired anti-Jewish pogroms carried out in 1938 in Germany and German -annexed territory in Austria and Czechoslovakia. Kristallnacht marked a turning point that led to ever-increasing anti-Jewish actions by the Nazi regime. Yesterday, the European Union Agency for Fundamental Rights released a new report titled Discrimination and Hate Crime Against Jews in EU Member States: Experiences and Perceptions of Antisemitism. Several related publications were also released.This is the first report to collect comparable current data across 8 EU countries-- Belgium, France, Germany, Hungary, Italy, Latvia, Sweden and the United Kingdom. These countries are home to 90% of EU's Jewish population. Among the key findings were:

66% of respondents consider antisemitism to be a major problem in their countries, while 76% said the situation had become more acute over the last five years.

21% of all respondents have experienced an antisemitic incident or incidents involving verbal insult, harassment or a physical attack in the 12 months preceding the survey. 2% of respondents had been victims of an antisemitic physical attack over the previous year.

In related developments, the Jewish Museum Berlin hosted a conference last night and today titled Antisemitism in Europe Today: the Phenomena, the Conflicts. A Haaretz op-ed criticized organizers for scheduling the conference on the Jewish Sabbath, thereby effectively precluding participation by observant Jews. And, according to JTA, earlier this week a German hotel, the Kristall Sauna Wellnesspark in Bad Klosterlausnitz, in the former eastern German state of Thuringen, apologized for the ad it had run promoting a "long, romantic Kristall-Nacht" on November 9.

In the United States, the ADL on Oct. 28 released its 2013 Survey About Attitudes Toward Jews In America. It concluded that 12% of Americans have deeply entrenched anti-Semitic attitudes, a 3% decline from the last poll in 2011. Meanwhile, the New York Times reported earlier this week on the extensive anti-Semitic harassment of students in the New York State Pine Bush Central School District.

Friday, November 08, 2013

Jury Rejects Religious Harassment Charge By Former School Library Employee

The Roanoke Times reports that a Virginia federal court jury yesterday found for the defendant in Scott v. Montgomery County School Board, a religious discrimination and retaliation suit. (See prior related posting.) In the suit, Judith Scott, a fired school library assistant claimed that her supervisor Nina Donohoe pressured her for more than a decade to join Christian prayer meetings and Bible study sessions, and that when she refused she was harassed and finally dismissed. Donohoe claimed that her differences with Scott were work-related. After the jurors returned their verdict, Judge James Turk told them: "I think that was the only verdict you could return in this case. It was the principals who recommended [Scott's] contract not be renewed. I think we had two nice ladies in this case who just couldn’t get along. One of them had to go."

Minnesota High Court Upholds Clergy Sexual Conduct Statute Against Establishment Clause Challenges

In State of Minnesota v. Wenthe, (MN Sup. Ct., Nov. 6, 2013), the Minnesota Supreme Court, in a 4-1 decision, upheld the state's clergy-sexual-conduct statute against both facial and an as-applied Establishment Clause challenges. The court held that Minn. Stat. § 609.344 which criminalizes sexual penetration by a member of the clergy where the victim is receiving religious or spiritual advice does not violate the Establishment Clause merely because it directly targets clergy or because it requires an inquiry into whether the victim was seeking religious or spiritual advice. The court also concluded that as applied in this case, the evidence presented did not raise an excessive entanglement concern concern. Defendant, a Roman Catholic priest who was charged with having sexual relations with a woman he was counseling, was not likely to be convicted by the jury merely because he violated Church doctrine. AP reports on the decision.

Judge's Religious Comments Lead To Remand For Resentencing

In Tores v. State of Florida, (FL App., Nov.6, 2013), a Florida state appellate court reversed a 30-year sentence imposed on defendant for sexual battery and remanded for sentencing by a different judge because of religious comments made in imposing the original sentence. In imposing the maximum sentence (when the minimum Guidelines sentence was 9 years, 4 months), the sentencing judge condemned defendant for his consensual dating relationship with the victim while defendant was married to someone else, and then said:

Just because your wife is in another country doesn’t mean you ought to be going out with other women. You’re a good Catholic fellow as I am. That’s not the way Catholic people - - that’s not the way anybody with morals should do anything.

The Florida Times-Union reports on the decision.

European Court Says Greek Law Limiting Civil Unions To Heterosexual Couples Violates ECHR

In Vallianatos and Others v. Greece, (ECHR, Nov. 7, 2013), the European Court of Human Rights (Grand Chamber) held, by a vote of 16-1, that a Greek civil union law which is limited to heterosexual couples violates The European Convention on Human Rights. The court concluded that the law is inconsistent with Article 8, violating the right to respect for private and family life of same-sex couples, and amounts to unjustified discrimination between different-sex and same-sex couples in violation of Article 14. The Court issued a press release summarizing the decision. [Thanks to Paul de Mello, Jr. for the lead.]

EEOC Complaint Filed By Muslims Fired For Taking Unauthorized Prayer Break

As reported by the Cincinnati Enquirer, the Cincinnati (OH) chapter of the Council on American-Islamic Relations yesterday filed a complaint with the EEOC on behalf of 24 former Somali Muslim employees of the DHL Global Mail facility in Hebron, Kentucky. According to CAIR's press release, the company eliminated the flexible evening break time that the employees had been using for evening (Maghrib) prayers. The company's new supervisor fired the employees when they took their break to pray at an earlier time than authorized.

Former Faculty Members' Suit Against Religious College Dismissed On Establishment Clause Grounds

In Winberry v. Louisiana College, (LA App., Nov. 6, 2013), four former faculty members of of a Baptist liberal arts college sued claiming defamation, violation of academic freedom and violation of a settlement of a prior lawsuit. All four taught a required religious class, and the college claimed that they were teaching errant views. The Louisiana appellate court affirmed the trial court's holding that the ministerial exception does not apply because Louisiana College is not a church. However it also affirmed the trial court's dismissal of the suit on Establishment Clause grounds;

The trial court was correct in holding that the dispute between Plaintiffs and Defendants centers on the nature of Baptist theology and church governance over how theology is taught at Louisiana College and would, thus, require the court to impermissibly entangle itself in deciding ecclesiastical matters.

Senate Passes ENDA; Fate In House Uncertain

As reported by the Huffington Post, the U.S. Senate yesterday passed S.815, the Employment Non-Discrimination Act by a vote of 64-32. The bill prohibits employment discrimination on the basis of sexual orientation or gender identity. The version passed is that reflected in Senate Amendment 2012 (full text). The vote comes after attempts since 1994 to pass the legislation. The bill's fate in the House though is uncertain, with aides to the House Speaker saying it is unlikely to come up for a vote. As passed by the Senate, the bill, Sec. 6(a), contains a familiar exemption for religious employers:

This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964 ... pursuant to section 702(a) or 703(e)(2) of such Act.

Section 702(a) exempts any" religious corporation, association, educational institution, or society.... " Section 703(e)(2) exempts any school, college, university, or other educational institution or institution of learning [which] is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion."

At the last minute, the Senate also added a provision to the bill (Sec. 6(b)) to protect religious employers from adverse governmental action in connection with exercise of the exemption:

A religious employer's exemption under this section shall not result in any action by a Federal agency, or any State or local agency that receives Federal funding or financial assistance, to penalize or withhold licenses, permits, certifications, accreditation, contracts, grants, guarantees, tax-exempt status, or any benefits or exemptions from that employer, or to prohibit the employer's participation in programs or activities sponsored by that Federal, State, or local agency. Nothing in this subsection shall be construed to invalidate any other Federal, State, or local law (including a regulation) that otherwise applies to a religious employer exempt under this section.

The Senate, by a vote of 43-55 rejected Senate Amendment 2013 which would have broadened the definition of exempt religious employers.

Reacting to the bill, the American Family Association complained:

ENDA would force religious business owners and workplaces such as Christian bookstores, religious publishing houses, pre-schools and religious television and radio stations to accept as normal any employee who has had a sex-change surgery, is considering a change, or just thinks they are the opposite sex of what they really are.

Thursday, November 07, 2013

Michelle Obama Hosts White House Diwali Celebration

The White House reports that on Tuesday, First Lady Michelle Obama welcomed guests to the East Room of the White House for a Diwali celebration. Saying that the holiday had been celebrated at the White House every year since President Obama took office, the First Lady added:

When we say that we want to make the White House the “people’s house,” we mean all people. We mean that we want to honor and embrace all of the many cultures and faith traditions that make us who we are as Americans. And Diwali is very much one of those traditions.

Huffington Post has more excerpts from the Mrs. Obama's remarks. (See prior related posting.)

Britain Looking At Issuing Shariah-Compliant Bonds; London Stock Exchange Islamic Index

In a press release last week (Oct. 29), The Prime Minister's Office in Britain announced plans for a new Islamic index on the London Stock Exchange, as well as hopes for Britain to become the first country outside of the Islamic world to issue an Islamic bond. In an Oct.29 speech (full text) to the World Islamic Economic Forum held in London, Prime Minister David Cameron said in part:

Already London is the biggest centre for Islamic finance outside the Islamic world. But today our ambition is to go further still. Because I don’t just want London to be a great capital of Islamic finance in the Western world. I want London to stand alongside Dubai and Kuala Lumpur as one of the great capitals of Islamic finance anywhere in the world.

[Thanks to Alliance Alert for the lead]

Cert. Petition Filed By Corporations In D.C. Circuit Contraceptive Mandate Case

A petition for certiorari (full text) was filed yesterday in Gilardi v. U.S. Department of Health and Human Services, (filed 11/6/2013). In the case, the D.C. Circuit Court of Appeals held that the Catholic owners of a for-profit small business were likely to succeed on the merits of a RFRA challenge to the Affordable Care Act contraceptive coverage mandate, but rejected the claims of the business corporations. (See prior posting.) The petition, filed on behalf of the corporations, urges the Court to find that secular business corporations can assert their own free exercise rights. The American Center for Law & Justice issued a press release announcing the filing of the cert. petition.

UPS Settles Religious Accommodation Charges Brought By EEOC

The EEOC announced on Monday that United Parcel Service has agreed to pay damages of $70,000 in settlement of a lawsuit charging the company with refusing to provide a Jehovah's Witness employee with a schedule accommodation so he could attend an annual religious service. (See prior posting.) The employee was terminated from his job a few days after his request was denied, and was placed on a company-wide"do not re-hire" list. Under the settlement with the EEOC, UPS is also enjoined from engaging in future religious discrimination or retaliating against employees for opposing such discrimination. It will also post its religious accommodation policy and conduct anti-discrimination training.

Wednesday, November 06, 2013

Town of Greece Case Argued Before Supreme Court

The U.S. Supreme Court heard oral arguments today in Town of Greece v. Galloway. At issue is the constitutionality of opening city council meetings with sectarian prayers. The full transcript of the oral arguments is now available. SCOTUSblog has a recap of the oral arguments. ABA Preview has a detailed analysis of the case.

Contraceptive Mandate Challenge Transferred From D.C. to Michigan Federal Court

In M&N Plastics, Inc. v. Sebelius, (D DC, Nov. 5, 2013), the federal district court for the District of Columbia granted the government's motion to transfer a suit by a Michigan small business and its owners challenging the contraceptive coverage mandate to federal court in the plaintiff's home district-- the Eastern District of Michigan. The government argued that plaintiffs' decision to file in D.C. was motivated by a desire to take advantage of favorable precedent in that district. The 6th Circuit (which includes Michigan) has unfavorable precedent for plaintiffs. (See prior posting.)

Paper Reports On Jews In State Prisons

The Forward yesterday carried a lengthy report on how Jews in state prisons deal with anti-Semitism, finding that "In some states Jewish prisoners face as much or more anti-Semitism from staff as from fellow inmates." The report also quotes an expert who concludes: "Those who are the most out front about being Jewish get the least hassle [from fellow-inmates]. We have inmates wearing yarmulkes and tzitzit in the most dangerous prisons in the country, and no one touches them." The report goes on:

Perhaps the most noticeably different thing about Jewish prisoners is their access to kosher food, which is almost universally considered superior to regular prison fare.... “You wouldn’t believe the politics around the kosher food on the yard,” said J.D. Rollins, a since-freed Muslim prisoner who befriended numerous Jews while behind bars in California. Inmates and staff both resented the special treatment they thought the diet represented. Kosher food would often be tampered with or stolen by inmates in the kitchens, both to punish those on the diet and to barter the valuable goods.

...[K]osher food is so desirable that five-sixths of prisoners on the diet are non-Jews. They can do this by exploiting the vagueness of the law, which grants the right to a religious diet to those with a loosely-defined “sincerely held” religious belief.