Recent Prisoner Free Exercise Cases

In Cottriel v. Jones, 2014 U.S. Dist. LEXIS 6872 (WD OK, Jan. 21, 2014), an Oklahoma federal district court refused to hold the the Oklahoma Department of Corrections in contempt, finding that it has taken every reasonable step to comply with a prior injunction requiring it to furnish an Orthodox Jewish inmate with kosher food.

In Turner v. Hamblin, 2014 U.S. Dist. LEXIS 6986 (WD WI, Jan. 21, 2014), a Wisconsin federal district court dismissed a Muslim inmate's claim that his free exercise rights were infringed because prison officials cancelled Jumuah and Taleem services when an outside volunteer was not available to lead them.

In Hicks v. Ryan, 2014 U.S. Dist. LEXIS 7132 (D MA, Jan. 21, 2014), a Massachusetts federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that he was not allowed to attend church services while he was in the infirmary.

Marshall v. Pennsylvania Department of Corrections, 2014 U.S. Dist. LEXIS 7421 (MD PA, Jan. 22, 2014), is a Pennsylvania federal district court case in which an inmate is challenging the refusal to offer services for Nation of Islam and Muhammad's Temple of Islam adherents separate from broader Islamic services. The court concluded that prior opinions in the case already dealt with a number of issues raised in motions before it, denied plaintiff's motion to amend, and ordered defendants to comply with outstanding discovery requests.

In Cox v. Stephens, 2014 U.S. Dist. LEXIS 7578 (SD TX, Jan. 22, 2014), a Texas federal district court denied a motion by a program analyst to dismiss him as a defendant in a suit by a Native American inmate who claims that grooming rules and rules limiting his wearing of a medicine bag and his participation in a pipe ceremony infringe his free exercise rights.

In Redd v. Lutgen, 2014 U.S. Dist. LEXIS 8070 (ND IA, Jan. 23, 2014), an Iowa federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 155252, Oct. 28, 2013) and dismissed an inmate's complaint that his free exercise rights were infringed when he was told he must sign a "Ramadan Agreement" in order to participate in the Eid feast with other inmates, since his name appeared on the Ramadan list anyway.

In Clay v. Livingston, 2014 U.S. Dist. LEXIS 9186 (ND CA, Jan. 24, 2014), a California federal magistrate judge permitted a Muslim inmate to move ahead with his complaint that Muslims fasting during Ramadan did not receive their lunches.

Anti-Semitic Packages and Graffiti In Italy Ahead of International Holocaust Remembrance Day

Times of Israel reports that in Italy this week, just ahead of International Holocaust Remembrance Day which falls on January 27 (background), boxes containing pigs' heads were sent to Rome's Great Synagogue, the Israeli embassy in Rome and Rome's Jewish Museum which is hosting an exhibit on the Holocaust. The package sent to the synagogue was delivered on Friday, while the one mailed to the Embassy was intercepted before it was delivered.  On Saturday, graffiti reading "the Holocaust is a lie" and "Hannah Frank is a big liar" appeared outside a municipal building in Rome.  According to Times of Israel, Rome's mayor condemned the actions, saying on Twitter: "Those who insult the Jewish community offend Rome..."

British Pakistani Sentenced To Death For Blasphemy In Pakistani Court; Sentence Unlikely To Be Carried Out

 In Pakistan on Thursday, a court in Rawalpindi sentenced a 70-year old British man, Muhammad Asghar, to death for blasphemy. According to DAWN, the court also imposed a fine of $9500 (US). Asghar was arrested in 2010 after he wrote letters to various people, including the police, claiming that he is a prophet.  The prosecutor said that Asghar made the same claim inside the courtroom.  According to BBC News, Asghar is a British Pakistani from Edinburgh who came back to Pakistan to look after his family's property. The complaint against him under Sec. 295-C of the Pakistan Penal Code was filed by a tenant who had been served with an eviction notice by Asghar.  Before returning to Pakistan, Asghar had been diagnosed as paranoid schizophrenic, but a medical panel appointed by the court in Pakistan rejected the claim of mental illness.

The death sentence is unlikely to be carried out since Pakistan has had a de facto moratorium on the death penalty since 2008. Asghar's lawyer says his conviction will be appealed, and the British foreign office plans to raise its concerns with the Pakistani government. [Thanks to Scott Mange for the lead.]

Supreme Court Enjoins Enforcement of Contraceptive Mandate Against Religious Non-Profit Contingent On Alternative Filing During Appeal

On New Year's Eve, U.S. Supreme Court Justice Sonia Sotomayor issued a temporary injunction to prevent immediate enforcement of the Affordable Care Act contraceptive coverage mandate compromise against the Little Sisters of the Poor. (See prior posting.) Now that the Supreme Court has received the government's response in the case, today the full Supreme Court issued the following unusual order , creating its own sort of compromise as the case proceeds on appeal:

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits. 

Ohio Supreme Court Over 3 Dissents Refuses To Reconsider Science Teacher's Firing

In November, the Ohio Supreme Court, in a 4-3 decision, 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. (See prior posting.) On Wednesday, the Ohio Supreme Court denied a motion for reconsideration, but the same 3 justices who dissented originally also dissented from the refusal to reconsider. In Freshwater v. Mt. Vernon School District Board of Education, (OH Sup. Ct., Jan. 22, 2014), Justice O'Donnell filed a dissenting  opinion (joined by Justices Pfeifer and Kennedy) saying: "This case now stands as a basis for school boards to violate the constitutional rights of veteran teachers and to terminate them for insignificant reasons."

Executor May Pursue Challenge To Assets Left To Legion of Christ

In Chu v. Legion of Christ Inc., (D RI, Jan. 13, 2014), a Rhode Island federal magistrate judge recommended that defendant's motion for summary judgment be denied in a lawsuit claiming that the scandal-ridden Catholic organization, Legion of Christ, used fraud and undue influence to induce college professor Dr. James Boa-Teh Chu to name the Legion as beneficiary of his retirement annuities. The court held that under Rhode Island law the executor of the estate, Chu's son Paul, has standing to bring the suit since if the gift fails the assets would revert to the estate. The court also rejected the claim that the executor lacks standing  because Dr. Chu would have left his assets to another Catholic charity if they were not left to the Legion. The magistrate concluded:

All in all, through this muddle, one thing clearly emerges: the record in this case has more than sufficient evidence from which a fact finder could conclude that, absent the influence of The Legion, Dr. Chu’s beneficiary for some or all of his annuities would not necessarily have been another Catholic charity. Accordingly, I find that there is a genuine fact dispute regarding Dr. Chu’s charitable intent.

Examiner reports on the decision.

UPDATE: The federal district court issued an order on Feb. 26, 2014 adopting the magistrate's report and recommendation. (AP).

10th Circuit Rules For Native American Inmate In Cogent Review Of RLUIPA's Requirements

In a highly articulate 31-page opinion by Judge Gorsuch in Yellowbear v. Lampert, (10th Cir., Jan. 23, 2014), the U.S. 10th Circuit Court of Appeals yesterday reviewed each element of a RLUIPA prisoner's rights claim and reversed the trial court's summary judgment against a Native American inmate. Here is the court's description of the case:

Andrew Yellowbear will probably spend the rest of his life in prison. Time he must serve for murdering his daughter. With that much lying behind and still before him, Mr. Yellowbear has found sustenance in his faith. No one doubts the sincerity of his religious beliefs.... 

That takes us to the nub of our case. Mr. Yellowbear, an enrolled member of the Northern Arapaho Tribe, seeks access to the prison’s existing sweat lodge to facilitate his religious exercises. The prison has refused. The prison’s sweat lodge is located in the general prison yard and Mr. Yellowbear is housed in a special protective unit (not because of any disciplinary infraction he has committed, but because of threats against him). Prison officials insist that the cost of providing the necessary security to take Mr. Yellowbear from the special protective unit to the sweat lodge and back is “unduly burdensome.” Mr. Yellowbear disagrees and seeks relief under RLUIPA. For its part, the district court discerned no statutory violation and entered summary judgment against Mr. Yellowbear. Mr. Yellowbear asks us to undo that judgment so that his case might proceed to trial.

At the end of the day, we find that’s exactly the relief we must provide.

AP reports on the decision.

Litigation Resumes Over Insurance Coverage In Milwaukee Archdiocese Bankruptcy

As the Catholic Archdiocese of Milwaukee completes work on its plan of bankruptcy reorganization, litigation over insurance coverage resumes with competing court filings.  The Milwaukee Journal-Sentinel reports that the Archdiocese filed suit yesterday in federal bankruptcy court seeking to recover reimbursement from OneBeacon Insurance Co. for over $2.6 million in legal fees incurred defending claims that the Archdiocese allowed priests who were known sexual abusers to have access to children. In litigation begun before the Archdiocese filed for bankruptcy, two state lower courts had ruled that the claims against the Archdiocese fell under the policy exclusion for intentional acts. The Archdiocese appealed those rulings to the Wisconsin Supreme Court, but before that court could decide the appeal the bankruptcy petition was filed and an automatic stay on litigation was triggered. Yesterday, OneBeacon Insurance Co. filed a motion asking the bankruptcy court to lift the automatic stay and allow the state Supreme Court to decide the matter.

Muslims Want Florida Prisons To Offer Halal Meals

Now that the Justice Department has won a preliminary injunction from a federal district court ordering Florida prisons to make kosher meals available by July 1 to all prisoners with a sincere religious basis for keeping kosher (see prior posting), Muslim groups are asking for Halal meals as well. In a press release yesterday, CAIR-Florida said:

We welcome the decision [on kosher food] as an important step in protecting religious rights of incarcerated individuals. It is only fair and equitable that if Jewish inmates receive kosher food, as they should, that Muslim inmates have access to halal meals. Muslim businesses in our state stand ready to offer the advice and services needed to provide halal meals to inmates.

According to the Huffington Post, Halal prison meals would cost only about one-third of the cost of kosher meals.

Jury Awards $12.5 M Damages Against Florida Baptist Convention In Sex Abuse Case

Baptist Press (Jan. 21) reports that last week, after a 6-day trial on damages, a Lake County, Florida jury awarded damages of $12.5 million against the Florida Baptist Convention to a man who was molested by a former church planting pastor.  In 2005, Douglas Myers, pastor of Triangle Community Church in Eustis, Florida sexually abused 13-year old Christopher Edwards. Myers has completed a 7-year prison sentence for that offense, and has subsequently been sentenced by Maryland courts for other earlier custodial child abuse offenses.  The attorney for Florida Baptist Convention says he is confident that the civil jury verdict will be overturned on appeal because the pastor was never an employee of the Florida Baptist Convention.

Virginia's Attorney General Will Not Defend State's Ban On Same-Sex Marriage

In an NPR interview, Virginia's newly-elected Attorney General, Mark Herring, says that his office will no longer defend the state's ban on same-sex marriage. He has concluded that the ban violates the federal equal protection clause. The state's solicitor general will tell a federal court next week that the state is joining the plaintiffs in Bostic v. Rainey, a case challenging the constitutionality of Virginia's same-sex marriage ban. According to the Washington Post, defendants in the case include two county clerks who are represented by separate counsel, so there will still be a defense of the Virginia law presented.

Provisions On Religion In Draft Tunisian Constitution Provoke Intense Debate

In Tunisia, the National Constituent Assembly is debating the draft of a new Constitution. According to Tunisialive (Jan. 21): "After each article attains a majority vote, the document as a whole will be put to a vote in the assembly, with a two-thirds supermajority required for its adoption. If this is not attained, the constitution must face a popular referendum." (English translation of provisions adopted by Jan. 21.)

Debate over Art. 6 on the relationship between religion and state has been particularly heated, leading one Assembly member to faint on Tuesday night after standing and repeatedly shouting "Allahu Akbar" (God is great).  Tunisialive (Jan. 22) reported on the sequence of events leading up to this:

Article 6, as passed originally, says the "state protects religion, guarantees freedom of belief and conscience and religious practices, protects sanctities, and ensures the neutrality of mosques and places of worship from partisan instrumentalisation." ...

The text was then amended, however, on January 5 after a dispute between leftist member Monji Rahoui and Islamist member Habib Ellouz, with the latter calling Rahoui an "enemy of Islam" while on a radio program. Rahoui claimed the remark caused him to receive death threats. The assembly then amended Article 6 to include a ban on takfir, or accusing someone of being a nonbeliever, and as well as a ban on "inciting violence."

The amendment was condemned by many religious conservatives, who sought a similar ban on insulting religion, moving lawmakers last night to suggest a compromise amendment, which would commit the state to "protect sanctities from all assault and ban takfir and incitement to hatred and violence."

(See prior related posting.)

U.S. Military Issues New Policy On Religious Accommodation

The Department of Defense yesterday adopted a revised policy on religious accommodation in the military by issuing significant amendments to Department of Defense Instruction 1300.17 on Accommodation of Religious Practices Within the Military Services. (Full text of amended Instruction.).  The new policy provides generally that the Department of Defense places a high value on the rights of military personnel "to observe the tenets of their respective religions or to observe no religion at all." It then sets up elaborate criteria for determining whether to grant an exemption from a military rule on religious grounds:

• A request for religious accommodation will be promptly granted if it will not affect mission accomplishment.
• Where an accommodation would affect mission accomplishment, the "compelling interest"-"least restrictive means" standard of RFRA will be used if the military requirement involved "substantially burdens" a service member's exercise of religion.
• Where mission accomplishment is affected and the military policy does not impose a substantial burden, an exemption from it on religious grounds will be denied whenever the needs of mission accomplishment outweigh the needs of the service member.

The directive specifically envisions that accommodations may include matters of grooming and appearance (including hair length), religious tattoos or religiously motivated body piercings. However, in defining when the military has a "compelling interest" in enforcing a policy, the directive provides:

DoD has a compelling government interest in ... elements of mission accomplishment such as military readiness, unit cohesion, good order, discipline, health, and safety, on both the individual and unit levels. An essential part of unit cohesion is establishing and maintaining uniform military grooming and appearance standards.

Wall Street Journal reports on the new policy.

Suit Challenges Blatant Promotion of Christianity In Louisiana School

The ACLU of Louisiana announced yesterday that it has filed a federal lawsuit against a western Louisiana parish school board on behalf of a married couple and their children/ stepchildren alleging that blatant promotion of Christianity by a Negreet (LA) school violates the Establishment Clause.  One of the plaintiffs, the mother, has been a practicing Buddhist for 14 years and the lawsuit focuses particularly on harassment by the school of her 6th-grade son who is of Thai descent and a life-long Buddhist. The complaint (full text) in Lane v. Sabine Parish School Board, (WD LA, filed 1/22/2014) alleges in part:

[S]chool officials have a longstanding ... practice of promoting and inculcating Christian beliefs by sponsoring religious activities, as well as conveying religious messages to students.... [A]t Negreet, which serves students in kindergarten through twelfth grade, teachers ask students for professions of faith in class. At least one science teacher treats the Bible as scientific fact, telling students that the Big Bang never happened and that evolution is a “stupid” theory that “stupid people made up because they don’t want to believe in God.” Paintings of Jesus Christ, Bible verses, and Christian devotional phrases adorn the walls of many classrooms and hallways.... And staff members routinely lead students in Christian prayer....

[W]hen ... C.C..... enrolled in the sixth grade ..., he quickly became the target of proselytizing and harassment by one of his teachers ... who ... told her students that [C.C.'s] faith, Buddhism, is “stupid.”

[When C.C.'s parents complained] ... the Sabine Parish Superintendent of Schools ... told the Lanes that “[t]his is the Bible Belt” and that they would simply have to accept that teachers would proselytize students. She also asked whether C.C. had to be raised as a Buddhist and whether he could “change” his faith, and she suggested that C.C. transfer to another district school – more than 25 miles away where, in her words, “there are more Asians.”

In addition to filing suit, the ACLU plans to file complaints with the Department of Education and Department of Justice.

Indian Government Gives Jains Formal Minority Status

Business Standard and Times of India report that on Monday India's Cabinet granted a long-standing demand of the Jain community and formally declared Jains to be India's sixth minority community. (Muslims, Christians, Sikhs, Buddhists and Zoroastrians already have that status.) The move will allow Jains to share in government funds allocated for welfare programs and scholarships for minority communities, and will allow Jains to manage their own educational institutions. The move could also raise again the debate over whether Sikhs, Jains and Buddhists should have their own Personal Laws in India. Currently under a provision in the Constitution they are subject to the Hindu Personal Law.

New York City Settles Discrimination Suit Over Modest Dress Signs In Hasidic-Owned Stores

Yesterday the New York City Commission on Human Rights settled a suit it had filed in August 2012 against seven businesses in the Williamsburg section of Brooklyn charging them with religious and gender discrimination. The businesses, owned by Hasidic Jews,  posted signs calling for modest dress by those entering the store.  Failed Messiah blog reports that under the proposed settlement agreement the Commission says it will drop its charges and store owners will agree that if they post signs in their windows, they will say that while modest dress is appreciated, everyone is welcome to enter free from discrimination. The stores' attorney says that the exact wording of future signs is still being worked out. (See prior related posting.)

Jehovah's Witness Sues Former Employer Saying Requirements Violated Her Belief In Predetermination

Nexstar Broadcasting reports on a lawsuit filed in federal district court in Pennsylvania by Sharon Shepard, a Jehovah's Witness, who claims that the was fired on religious grounds by Gannondale, a residential care facility for young women in Erie (PA). Shepard, who was employed as a bookkeeper, claims she was required to attend meetings where she was supposed to work on growth and change. She says, however, that her religion believes in predetermination.

Suit Challenges Florida's Ban On Same-Sex Marriage

Yesterday Equality Florida Institute and six same-sex couples who were denied Florida marriage licences in Miami-Dade County filed suit in state court in Florida challenging state constitutional and statutory provisions that prevent same-sex couples from marrying in the state.  The complaint (full text) in Pareto v. Ruvin, (FL Cir. Ct., filed 1/21/2014), contends that these restrictions violate the due process and equal protection clauses of the U.S. Constitution's 14th Amendment. Equality Florida Institute and the National Center for Lesbian Rights issued a press release announcing the planned filing of the lawsuit. Liberty Counsel in a press release said it would help defend the Florida Marriage Protection Amendment which "affirms the natural created order of marriage...."

Obama To Visit The Vatican In March

According to NBC News, the White House announced today that President Barack Obama will meet with Pope Francis at the Vatican on March 27. The President's visit to the Vatican will be part of a trip to Europe which also involves meetings in the Netherlands, Belgium and Italy. A White House statement says in part: "The president looks forward to discussing with Pope Francis their shared commitment to fighting poverty and growing inequality." Secretary of State John Kerry visited the Vatican on Jan. 14 to meet with his counterpart Secretary of State of the Holy See Pietro Parolin. (State Department press release.)

States Concerned Over Costs and Demand For Prison Kosher Food

Today's New York Times carries a front page story titled You Don’t Have to Be Jewish to Love a Kosher Prison Meal, focusing on the added cost to prison systems of serving kosher food ($7 per day vs. $1.54 in Florida) and the feigning of Jewish religious beliefs by some inmates in order to be placed on kosher diets:

Some states, like New York, do nothing to try to discern who is feigning Jewishness. In California, inmates talk with a rabbi who will gauge, very generally, a prisoner’s actual interest. 

But some Jewish groups in Florida are pushing for greater control, which may pose a difficult legal hurdle.

NY Appeals Court: Religious Tract Given Defendant By Deputy Sheriff Does Not Lead To Mistrial

In People of the State of New York v. Robles, (NY App. Div., Jan. 16, 2014), a New York intermediate appellate court held that a lengthy colloquy which the trial judge had with defendant charged with burglary and robbery sufficiently protected defendant's right to decide whether or not to testify at trial, despite improper conduct by a deputy sheriff.  As recounted by the court:

As defendant was being transported from the courtroom to the jail at the conclusion of the second day of trial, a deputy sheriff slipped a religious tract [created by Ten-Four Ministries] into defendant's pocket. The document acknowledged defendant's legal right to remain silent, but exhorted him to forgo that right and confess. "Yes, you have the right to remain silent," it stated. "You have the right to remain in your sins. But please don't. Your conscience testifies against you. Confess your sins . . ." or "spend eternity in a prison called hell." When the parties appeared before Supreme Court the following day, defense counsel moved for a mistrial, arguing that the deputy's actions constituted official interference with defendant's decision on whether to testify.

At trial, defendant did not testify, but was convicted and sentenced to 18 years in prison.  Courthouse News Service reports on the decision.

Maldives President Refuses To Sign Sexual Offenses Bill Because of Conflicts With Shariah Law

Minivan News reported last week that in the Maldives President Abdulla Yameen returned to the parliament (People's Majlis) for reconsideration a Sexual Offenses Bill passed in late December by a vote of 67-2.  The President sent parliament a 46-page memo (full text in Dhivehi) setting out concerns the Attorney General had raised about the bill, including that some of the provisions are contrary to Islamic Shariah. After the Majilis passed the bill, Vice President of the Fiqh Academy Dr Mohamed Iyaz Abdul Latheef criticized the bill as inconsistent with Islamic law because it categorized as rape non-consensual intercourse with one's wife while divorce or dissolution proceedings are pending, during a mutually agreed separation, or in order to intentionally transmit a sexually transmitted disease. Dr. Iyaz said: "With the exception of forbidden forms of sexual intercourse, such as during menstrual periods and anal intercourse, it is not permissible under any circumstance for a woman to refrain from it when the husband is in need," even if the woman has filed for divorce. Also, he said, the woman's consent would not be needed when after a conditional divorce the man decides to renew the marriage during the waiting period.

Oregon Agency Says Bakery Discriminated In Refusing To Furnish Cake For Same-Sex Wedding

The Oregonian reports that last Friday the state of Oregon Bureau of Labor and Industries found substantial evidence that a Gresham, Oregon bakery-- Sweet Cakes by Melissa-- violated Oregon's public accommodations anti-discrimination law (ORS 659A.403) when the bakery refused a year ago to furnish a cake for a lesbian couple's wedding.  The bakery owners said doing so would violate their Christian religious beliefs.  Under Oregon law, the finding leads to an informal conciliation process. If that does not result in a settlement, the state agency can bring charges before an administrative law judge. (See prior related posting.)

Today Is Martin Luther King Jr. Day

Today is Martin Luther King Jr. Day.  Last week President Obama issued a Presidential Proclamation (full text) formally declaring January 20, 2014, as the Martin Luther King, Jr., Federal Holiday. The Proclamation reads in part:

During his lifelong struggle for justice and equality, the Reverend Dr. Martin Luther King, Jr., gave mighty voice to the quiet hopes of millions, offered a redemptive path for oppressed and oppressors alike, and led a Nation to the mountaintop. Behind the bars of a Birmingham jail cell, he reminded us that "injustice anywhere is a threat to justice everywhere." On a hot summer day, under the shadow of the Great Emancipator, he challenged America to make good on its founding promise, and he called on every lover of freedom to walk alongside their brothers and sisters.

Meanwhile MLK biographer Stewart Burns has published a new book, Cosmic Companionship, a narrative anthology of Dr. King’s spiritual teaching. (Press release.)

Looming in the background of Dr. King's memory are at least two lawsuits involving family and friends tussling over rights to his papers and words. In a suit filed in August 2013, described by Mother Jones, the King estate (controlled by King's sons Martin III and Dexter) sued the King Center (controlled by King's daughter Bernice). The suit complains about the Center's storage and care of King's property and threatens to terminate the Center's license to use King's intellectual property. In a second lawsuit filed in October (as reported by the New York Times) 86-year old Harry Belafonte sued all three of King's surviving children over three documents of Dr. King's that Belafonte says were given to him by King, King's widow and a close aide. However when Belafonte attempted to auction off the documents for charity through Sotheby's, the King estate wrote Sotheby's challenging Belafonte's ownership of the documents. So Belafonte has sued in a New York federal district court asking for the court to declare him the owner of the documents.

Recent Articles of Interest

From SSRN:

• Dalma Demeter & Thilini Perera, Religious Influences Over Arbitral Proceedings: Personalising or Jeopardising Justice?, (Patricia Easteal (ed.), Justice Connections (2013, Cambridge Scholars Publishing, UK)).
• Marco Ventura, Dynamic Law and Religion in Europe: Acknowledging Change: Choosing Change, (Robert Schuman Centre for Advanced Studies Research Paper 2013/ 91 (Dec. 1, 2013)).
• Upankar Chutia, Natural Law Theory and Its Influence in Indian Laws Relating to Fundamental Rights (Article 14, 19 and 21) and Case Laws Relating to It, (January 3, 2014).
• Michael Stokes Paulsen, Is Religious Freedom Irrational? Reviewing Why Tolerate Religion? By Brian Leiter. (Princeton University Press 2013), (Michigan Law Review, 2014, Forthcoming).
• Charles J. Reid, Tradition in Revolution: Harold J. Berman and the Historical Understanding of the Papacy, (Rechtsgeschichte - Legal History, Rg. 21, pp. 219 – 223, 2013).
• Pasquale Annicchino, The New Guidelines on Freedom of Religion and LGBTI Rights in the External Action of the European Union, (European Human Rights Law Review, 6, 2013, pp. 624-630).
• Spencer Churchill, Duty or Dignity? The Clash of Originalist and Liberal Perspectives on Corporate Free Exercise, (September 20, 2013).
• Victor C. Romero, Reading (into) Windsor: Presidential Leadership, Marriage Equality, and Immigration Policy, (Southern California Review of Law and Social Justice, Vol. 23:1, pp. 1-28 (2013)).

Ohio Appeals Court: Congregants' Claims For Accounting for Church Funds Properly Dismissed

Smith v. White, (OH App., Jan. 17, 2014) is a suit by 36 members of the Mt. Carmel Baptist Missionary Church (including deacons and trustees) charging the pastor with breach of fiduciary duty and charging the pastor along with other church officials with conversion; civil conspiracy; unjust enrichment; fraud; and breach of contract. The suit alleged  wrongful concealment of the misappropriation of church funds, including those in the pastor's retirement account, and sought an accounting. In this opinion by an Ohio appellate court the majority affirmed the trial court's conclusion that it lacked jurisdiction over the claims because of 1st Amendment considerations, saying:

Although we have some doubt that a request for an accounting of finances necessarily implicates whether a pastor should be removed for misconduct, we are required to follow our prior decision on the basis of stare decisis, which “is designed to provide continuity and predictability in our legal system.” ...Matters of ecclesiastical abstention are often not clear-cut, and the depositions of the parties (although not cited by the trial court) do indicate a desire to remove the pastor – which implicates an ecclesiastical decision.

The majority also refused to apply a fraud or collusion exception, and concluded as well that plaintiffs had failed to follow internal church procedures to deal with their complaints.

Judge Froelich dissented in part concluding that the court should hear the claims for fraud and for an accounting because "an accounting and whether certain defendants subjectively sought to defraud the plaintiffs are impartial, objective concepts, detached from any ecclesiastical concerns."

Two Women Charged With Murder After Purported Exorcism

In Germantown, Maryland, two women have been charged with first degree murder and attempted murder in the fatal stabbing of two children (ages 1 and 2) and the serious wounding of two others (ages 5 and 8) while attempting to perform an exorcism Thursday night or Friday morning. According to yesterday's  Washington Post, one of the women charged is the children's mother (28 year old Zakieya Avery) and the other is a 21 year old woman (Monifa Sanford) who lived with the family. Police said that the women saw the enemy as the Devil and were trying to release something bad they believed was affecting the children.

Recent Prisoner Free Exercise Cases

In State of New Mexico ex rel Peterson v. Aramark Correctional Services, LLC, (NM App., Jan. 15, 2014), a New Mexico appeals court held that an inmate's prior suit under the state Religious Freedom Restoration Act did not bar on issue preclusion or claim preclusion grounds a qui tam action under the state Fraud Against Taxpayers Act against the company that had a contract to provide prison meals.

In Nelson v. Jackson, 2014 U.S. Dist. LEXIS 5222 (SD OH, Jan. 15, 2014), an Ohio federal magistrate judge recommended denying a Jewish inmate's summary judgment motion because of factual questions about whether plaintiff's beliefs in keeping kosher and not using a microwave on Saturdays are sincerely held. The court also denied summary judgment on plaintiff's complaint that meat and dairy were served together to him in the same meals.

In Dixie v. Virga, 2014 U.S. Dist. LEXIS 5892 (ED CA, Jan. 15, 2014), a California federal magistrate judge recommended permitting a Muslim inmate to proceed with various of his free exercise and RLUIPA challenges to a decision to prohibit inmates in the Enhanced Outpatient Program from attending Jumu'ah prayer sessions with inmates from the General Population. Plaintiff's equal protection challenge was dismissed with leave to amend.

In Evans v. Jabe, 2014 U.S. Dist. LEXIS 6454 (ED VA, Jan. 17, 2014), a Virginia federal district court dismissed a Muslim inmate's complaint that his free exercise and RLUIPA rights were infringed when in a lock down period that occurred during Ramadan 2010, six times breakfast trays were incomplete or not timely.

In Cohen v. Wagner, 2014 U.S. Dist. LEXIS 6426 (ED PA, Jan. 16, 2014), a Pennsylvania federal district court dismissed, with leave to amend, a Jewish inmate's complaint that the food he was served was not kosher and that his religious text (Tanach) was destroyed.

Egyptian Voters Approve New Constitution By 98.1% Vote

Egypt's new constitution has been approved by 98.1% of the voters in Egypt according to an announcement by the Supreme Electoral Committee. Ahram Online reports the official voting statistics.  38.6% of Egypt's 53.4 million voters voted in the Jan. 14-15 referendum, with 19,985,389 voters voting "Yes".  Expatriates (who voted between Jan. 8 and 12) also approved the constitution by a 98.1% vote with 15.7% of the 64,000 registered voting. Wikipedia has a more detailed breakdown of the voting data. Nabil Salib, head of the Supreme Electoral Committee said: "Now that God has supported us in legalizing our constitution, we ask for his aid in achieving the remaining two stages of the road map: the presidential and parliamentary elections." (RT News). The outlawed Muslim Brotherhood refuses to recognize the legitimacy of the vote.

U.S. Secretary of State John Kerry issued a statement yesterday saying in part: "The draft Egyptian constitution passed a public referendum this week, but it's what comes next that will shape Egypt’s political, economic and social framework for generations." The New York Times yesterday reported on election results and U.S. reaction. This prior posting sets out the provisions in the new constitution relating to religion and state.

Objections To ".kosher" Top Level Domain Name Rejected

Earlier this week, the International Chamber of Commerce issued an "Expert Determination" rejecting objections to the application by Kosher Marketing Assets for rights to the new Internet general top level domain name ".kosher". In Union of Orthodox Jewish Congregations of America v. Kosher Marketing Assets, L.L.C., (Intl. Chamber of Commerce, Jan. 14, 2014), the expert acting under ICANN rules issued an opinion rejecting objections by the Union of Orthodox Jewish Congregations, and backed by 11 other kosher certification organizations.  Objectors' primary concern was that the domain would promote only one certifying agency, OK Kosher, and products certified by it, and would thereby "usurp the communal word ‘kosher’, such that it will become exclusively associated with KMA and OK Kosher in the minds of food manufacturers and consumers."  The Expert disagreed, saying in part:

having regard to the assurances given by the Applicant and to the current safeguards, ...  there is today no serious ground for the accusation that the Application is designed to confer “monopoly status” on the Applicant over “.kosher” domain names and to permit the Applicant to engage in “exclusionary practices”, or in any event that it could lead to such a result. Nor does it seem likely that upholding the Application would lead to a “usurpation” of kosher by the Applicant or, more simply, that the Objector will not be permitted to register a domain under “.kosher”.

BNA Electronic Commerce & Law Report [subscription required] reports on the decision.

Vatican Reports To U.N. Committee on Priest Abuse; Releases New Data On Priests Defrocked

On Thursday, Archbishop Silvano Tomasi, the Vatican's Permanent Observer to the United Nations in Geneva, made a presentation (full text) to the U.N. Committee on the Convention of the Rights of the Child. AP reports:

the Holy See was interrogated for eight hours about the scale of [clergy sex] abuse and what it was doing to prevent it.

Vatican Radio, on Thursday interviewed  Bishop Charles Scicluna about the U.N. hearing. Scicluna described the hearing as "grueling," but said:

I think that we put out in a very clear, coherent way to the international community that the Holy See “gets it”....

Meanwhile, AP reported yesterday that in an annual report just released, the Vatican says that Pope Benedict XVI defrocked 260 priests in 2011 and 124 in 2012 in the Church's reaction to clergy sex abuse. Responding yesterday to the newly disclosed numbers, SNAP (Survivors Network of Those Abused by Priests) issued a press release criticizing the Vatican, saying: "The Vatican's focus should be on prevention, not on damage control on the tail end after a priest, nun, seminarian, brother or bishop has already assaulted dozens of boys or girls."Abuse

Washington Archdiocese Files Cert Petition Before DC Circuit Appeals Court Rules On Contraceptive Mandate Challenge

Last week, the Washington, D.C. Catholic Archdiocese filed a petition for certiorari (full text) with the Supreme Court, asking the high court to review the D.C. federal district court's decision on the Affordable Care Act contraceptive coverage mandate without waiting for a decision from the Court of Appeals for the D.C. Circuit.  The petition in Roman Catholic Archbishop of Washington v. Sebelius, (filed 1/8/2014) argues that the case involves issues of imperative public importance already before the court in other cases. In the case, the federal district court issued an opinion upholding the challenge to the compromise for religious non-profits as to one of the plaintiffs, but not for the others. (See prior posting.)

Federal Court Refuses To Reconsider Abstention In South Carolina Episcopal Church Dispute

In vonRosenberg v. Lawrence, (D SC, Jan. 15, 2014), a South Carolina federal district court denied a motion for reconsideration of its August 2013 decision to abstain and decline jurisdiction over a trademark infringement case growing out of the controversy between a large break-away portion of the Episcopal Diocese of South Carolina and the smaller number of parishes that remain loyal to The Episcopal Church.  The court there held that the trademark dispute is part of a larger dispute over ownership of the Diocese's property being litigated in state court.  In denying reconsideration, the court said that the motion is based merely on disagreement with the court's earlier abstention ruling. TitusOneNine blog discusses this week's decision from the perspective of break-away churches. [Thanks to John Chilton for the lead.]

Russia Is Digitizing Disputed Jewish Book Collection

As previously reported, last year the Russian State Library and the Russian Culture Ministry instituted a lawsuit against the U.S. Library of Congress in the Moscow Arbitration Court to obtain return of seven books on loan to the Library from Russia.  The books are part of one of two expropriated collections of valuable Jewish religious books and manuscripts which U.S. courts have ordered the Russian government to return to Chasidei Chabad of United States. Interfax reported yesterday that a preliminary hearing in the Moscow court has been adjourned because the court has not yet received a reply receipt indicating that the court papers were received by the Library of Congress. Interfax disclosed that 4,500 books from one of the collections, the Schneerson collection, that are stored at the Russian State Library are currently being inventoried, scanned and digitized at the rate of 500 to 700 books per month. Russia and the Russian branch of Chabad want the Schneerson collection to remain in Moscow's Jewish Museum and Tolerance Center, a museum controlled by Chabad. The U.S. Chabad organization wants the books returned to them in the United States. (See prior posting.)

Florida Counties' Schools Allow Bible Distribution For Religious Freedom Day

In Orange and Collier counties in Florida yesterday, public schools marked Religious Freedom Day by allowing the the Florida Family Policy Council and World Changers of Florida to distribute Bibles to high school students under the schools' policy on outside distribution of materials.  The Orlando Sentinel reports that softcover and hardcover New International Version Bibles were placed by volunteers on unmanned tables in accessible locations where students could pick them up. A lawsuit by the Central Florida Freethought Community was filed last year when Orange County school officials only permitted the group to make some of its literature available for students. (See prior related posting.)

Spokane Diocese Suing Its Bankruptcy Lawyers For Malpractice

AP reported on Wednesday that the Catholic Diocese of Spokane has refiled in federal bankruptcy court its bankruptcy malpractice lawsuit against the law firm of Paine Hamblin and two lawyers who were members of the firm. The firm handled the reorganization of the diocese that began with bankruptcy filings in 2004 and ended in 2007 after a $48 million settlement with 175 abuse victims. (See prior posting.)  The malpractice suit seeking return of millions of dollars in legal fees and more millions of dollars in damages was originally filed in 2012, but dismissed on technical grounds. The 2012 suit was described by the Spokane Spokesman-Review:

The diocese... says ... that bankruptcy lawyers Shaun Cross and Greg Arpin failed to explore other means of ending the abuse scandal ... [and] blames the lawyers for writing a bankruptcy plan that failed to assess and adequately fund the risk of new claims, which nearly forced the foreclosure of churches. The lawsuit also accuses the attorneys of a conflict of interest, in shielding former Bishop William Skylstad from testifying in the first civil trial alleging sex abuse by filing for bankruptcy on the eve of that suit.

The law firm says it provided excellent representation in guiding the diocese out of a crisis that included over 180 clergy sex abuse claims.

Today Is Religious Freedom Day

Today is Religious Freedom Day, the anniversary of the passage in 1786 of the Virginia Statute for Religious Freedom.  President Obama yesterday issued a Proclamation (full text) which urged "every country to recognize religious freedom as both a universal right and a key to a stable, prosperous, and peaceful future." The Proclamation also reads in part:

The Virginia Statute for Religious Freedom, penned by Thomas Jefferson, declared religious liberty a natural right and any attempt to subvert it "a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either." The Statute inspired religious liberty protections in the First Amendment, which has stood for almost two and a quarter centuries.

Today, America embraces people of all faiths and of no faith. We are Christians and Jews, Muslims and Hindus, Buddhists and Sikhs, atheists and agnostics. Our religious diversity enriches our cultural fabric and reminds us that what binds us as one is not the tenets of our faiths, the colors of our skin, or the origins of our names. What makes us American is our adherence to shared ideals -- freedom, equality, justice, and our right as a people to set our own course.

Today, Melissa Rogers and Eric Treene posted on the White House blog a tribute to Religious Freedom Day, emphasizing the importance of the Religious Land Use and Institutionalized Persons Act.

USCIRF Says US Should Raise Plight of Religious Minorities At Geneva II Syrian Peace Conference

The Geneva II, UN-backed peace conference on Syria will begin in Montreux, Switzerland on January 22. (Background.) On Tuesday, the U.S. Commission on International Religious Freedom issued a press release calling on the U.S. government "to emphasize the plight of religious minorities and the protection of religious freedom for all Syrians" during the Conference. USCIRF Chairman Robert George said:

The Alawite and Christian communities, who are not aligned with either side of the conflict, are inadequately represented by the opposition coalition and the Assad regime does not represent their concerns. The United States needs to work to ensure their views are considered and heard.

Chicago Archdiocese Releases Files on 30 Priests In Settlement of Abuse Lawsuits

AP reports that yesterday the Catholic Archdiocese of Chicago released 6000 pages of documents relating to 30 priests who have had substantiated sex abuse allegations lodged against them. The step comes as part of the settlement of suits by victims.  Lawyers for the victims say they plan to make the released files public next week.  Files on another 35 priests who have had substantiated abuse complaints against them have not been released because they were not the subject of the lawsuits that were settled.  The Archdiocese plans to develop a process for release of these additional documents. The Archdiocese yesterday posted a statement about the document release on its website.

UPDATE: The law firm of Jeff Anderson & Associates has now posted the released documents here.

Moroccan King Asks Muslims and Jews To Pray For Rain

JTA reported this week that in Morocco as the country faces a possible drought, King Mohammed VI is covering all of his bases. He requested that prayers for rain be recited both in mosques, and synagogues in the country.  Last Friday Muslims prayed for rain, and on Saturday Jews in Moroccan synagogues did likewise in response to a statement from the Council of Israelite Communities in Morocco asking Jewish worshipers to pray so that God may "spare our country and help His Highness the King."

7th Circuit Allows Notre Dame Students To Intervene In Appeal of Contraceptive Mandate Rule Challenge

The Chicago Tribune reported this week that the U.S. 7th Circuit Court of Appeals has granted a motion filed earlier this month by three female Notre Dame University students seeking to intervene anonymously in the appeal by Notre Dame of the ruling requiring it to comply with the Affordable Care Act contraceptive coverage mandate final rules relating to religious non-profits. (Memorandum supporting motion to intervene.) The 3 students say that their access to contraceptives turns on the outcome of the case.

Pastor Loses Claim That Oklahoma License Plates Force Him To Display Image That Violates His Beliefs

In Cressman v. Thompson, (WD OK, Jan. 14, 2014), a Oklahoma federal district court rejected plaintiff's 1st Amendment compelled speech challenge to the design of Oklahoma license plates.  The plates carry an image of a Native American shooting a bow-and-arrow.  Plaintiff, a United Methodist pastor, claims the image is that of the Sacred Rain Arrow statue and conveys a message contrary to his Christian religious beliefs. He argues that the statue retells the story of a Native American who believes in sacred objects, multiple deities, the divinity of nature and the ability to use sacred objects to convince gods to change nature. The court ruled however that:

a reasonable observer would not be likely to conclude that an identifiable message was conveyed simply from the inclusion of the image on the standard state license plate. Without further research, it is simply a depiction of an Indian shooting a bow and arrow. A reasonable observer, even one living in Oklahoma, would not be likely to know of Allen Houser’s intentions or thoughts in creating the “Sacred Rain Arrow” statue or of the legend behind it, even if the observer assumed the image was an exact replica of the statue. The average Oklahoman or other reasonable observer is unlikely to have seen the specific background information plaintiff submitted or to have made the connection to the plate that plaintiff relies on.

AP reports on the decision. (See prior related posting.)

Supreme Court Hears Oral Arguments In Abortion Clinic Buffer Zone Case

The U.S. Supreme Court this morning heard oral arguments in McCullen v. Coakley, a case challenging on free speech grounds a Massachusetts law creating a 35-foot buffer zone around abortion clinics to shield women entering the clinics from abortion opponents.  The law allows only clinic employees acting within the scope of their employment to be on sidewalks within the buffer zone. The full transcript of the oral arguments is now available. SCOTUSblog has a recap of the arguments, as well as well as a case page with links to all the briefs, the lower court opinion and other information.

American Atheists Sue Over Oklahoma Capitol Ten Commandments

On Monday, the American Atheists filed a federal court lawsuit against the Oklahoma State Capitol Preservation Commission challenging the Ten Commandments monument erected in 2012 on the Oklahoma State Capitol Grounds. (Press release.)  The complaint (full text) in American Atheists Inc. v. Thompson, (WD OK, filed 1/13/2014) includes a lengthy analysis of the text and design of the display.  The ACLU has previously filed a state court lawsuit challenging the monument (see prior posting). In December, the State Capitol Preservation Commission placed a moratorium on new applications to erect monuments on the capitol grounds as proposals to put up competing monuments proliferated. (See prior posting.) In its complaint, American Atheists says that if it loses its bid to have the Ten Commandments removed, it will also seek permission to place a monument on the capitol grounds. KRMG News reports on the lawsuit.

Federal District Court Strikes Down Oklahoma Same-Sex Marriage Ban; Stays Effectiveness of Decision

In Bishop v. United States, (ND OK, Jan. 14, 2014), an Oklahoma federal district court, in a 68-page opinion, held that the provision in the Oklahoma constitution barring same-sex marriage in the state violates the equal protection clause of the U.S. Constitution. After a lengthy discussion of the justifications for the ban offered by the state, the court said:

Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights. The Bishop couple has been in a loving, committed relationships for many years. They own property together, wish to retire together, wish to make medical decisions for one another, and wish to be recognized as a married couple with all its attendant rights and responsibilities. Part A of the Oklahoma Constitutional Amendment excludes the Bishop couple, and all otherwise eligible same-sex couples, from this privilege without a legally sufficient justification.

The court however-- with an eye on the stay granted by the U.S. Supreme Court to a similar Utah federal district court decision-- granted a stay of its injunction against enforcing Oklahoma's provision pending disposition of any appeal to the 10th Circuit. The court dismissed on standing grounds plaintiffs' challenges to provisions in the Oklahoma constitution and DOMA precluding recognition in the state of same-sex marriages performed elsewhere. The Los Angeles Times reports on the decision.

Rezoning For Catholic Senior Housing Project Is Not Establishment Clause Violation

In Foothill Communities Coalition v. County of Orange, (CA App., Jan. 13, 2014), a California appellate court held that creating a new zoning district for a large parcel of land owned by the Catholic Diocese of Orange to allow the diocese to build a senior housing project was not an Establishment Clause violation. The court rejected the argument that a land use approval equals a preference if the landowner is a religious organization.

Report Surveys Levels of Governmental and Social Hostility Toward Religion Worldwide

The Pew Research Center yesterday issued its latest in a series of reports on "the extent to which governments and societies around the world impinge on religious beliefs and practices." Titled Religious Hostilities Reach Six-Year High, the 90-page report analyzes both social hostility toward religion and government restrictions on religion. The Report found:

The share of countries with a high or very high level of social hostilities involving religion reached a six-year peak in 2012.... A third (33%) of the 198 countries and territories included in the study had high religious hostilities in 2012,.... The share of countries with a high or very high level of government restrictions on religion stayed roughly the same in the latest year studied. About three-in-ten countries in the world (29%) had a high or very high level of government restrictions in 2012....

Bipartisan Appropriation Bill Includes Numerous Provisions on Religious Concerns

As reported by the Washington Post, yesterday bi-partisan Congressional negotiators released the full text of the $1.1 trillion Consolidated Appropriations Act 2014 which, if passed by the House and Senate, will fund the federal government through September 2014. Buried in the 1582- page bill are a number of provisions relating to funding of religious activities.

Among these are $3.5 million in funding for the U.S. Commission on International Religious Freedom (pg. 1151); provisions calling for use of various foreign aid funds to, among other things, promote religious reconciliation and promote free exercise of religion (pp. 1250, 1251, 1294, 1308, 1363). Another provision, while banning use of funds for electronic media in prisons makes an exception for equipment used for inmate training, religious or educational programs (pg. 152). Yet another bars discrimination, including religious discrimination, by the Corporation for Public Broadcasting in programs or activities using federal funds. (pg. 986).

The bill also contains the following provisions:

(Pg. 181) None of the funds made available to the Department of Justice in this Act may be used to discriminate against or denigrate the religious or moral beliefs of students who participate in programs for which financial assistance is provided from those funds, or of the parents or legal guardians of such students.

(Pg. 565 and Pg. 1575) (a) None of the funds made available in this or any other Act may be obligated or expended for any employee training that— ...(4) contains any methods or content associated with religious or quasi-religious belief systems or ‘‘new age’’ belief systems as defined in Equal Employment Opportunity Commission Notice N–25 915.022, dated September 2, 1988; or (5) is offensive to, or designed to change, participants’ personal values or lifestyle outside the workplace.

(Pg. 572). (a) None of the funds appropriated by this Act may be used to enter into or renew a contract which includes a provision providing prescription drug coverage, except where the contract also includes a provision for contraceptive coverage.  (b) Nothing in this section shall apply to a contract with— (1) any of the following religious plans: (A) Personal Care’s HMO; and (B) OSF HealthPlans, Inc.; and (2) any existing or future plan, if the carrier for the plan objects to such coverage on the basis of religious beliefs.  (c) In implementing this section, any plan that enters into or renews a contract under this section may not subject any individual to discrimination on the basis that the individual refuses to prescribe or otherwise provide for contraceptives because such activities would be contrary to the individual’s religious beliefs or moral convictions.  (d) Nothing in this section shall be construed to require coverage of abortion or abortion-related services.

(Pg. 595). Nothing in this Act may be construed to prevent the Council or Mayor of the District of Columbia from addressing the issue of the provision of contraceptive coverage by health insurance plans, but it is the intent of Congress that any legislation enacted on such issue should include a ‘‘conscience clause’’ which provides exceptions for religious beliefs and moral convictions.

(Pg. 1136): None of the funds appropriated under this heading may be used for the preservation of religious sites unless the Secretary of State determines and reports to the Committees on Appropriations that such sites are historically, artistically, or culturally significant, that the purpose of the project is neither to advance nor to inhibit the free exercise of religion, and that the project is in the national interest of the United States.

(Pg. 1160). That in awarding grants for natural family planning under section 104 of the Foreign Assistance Act of 1961 no applicant shall be discriminated against because of such applicant’s religious or conscientious commitment to offer only natural family planning....

(Pg. 1200). Funds appropriated or otherwise made available by this Act and prior Acts making appropriations for the Department of State, foreign operations, and related programs, under the heading ‘‘Embassy Security, Construction, and Maintenance’’ may be obligated for the relocation of the United States Embassy to the Holy See only if the Secretary of State reports in writing to the Committees on Appropriations that— (A) the United States Ambassador to the Holy See and embassy staff will retain their independence from other United States missions located in Rome, including by maintaining a separate building with a discrete address and entrance; and (B) any relocation of the chancery will not increase annual operating costs, will not result in a reduction in staff, and will enhance overall security for the United States Embassy to the Holy See.

Court Says New Mexico Constitution Allows Physician "Aid In Dying"

In Morris v. Brandenberg,(NM Dist. Ct., Jan. 13, 2014), a New Mexico state trial court held that:

the liberty, safety and happiness interest of a competent, terminally ill patient to choose aid in dying is a fundamental right under our New Mexico Constitution.

The court defined aid in dying as "the practice of a physician providing a mentally competent, terminally ill patient with a prescription for medication which the patient may choose to ingest to achieve a peaceful death and thereby avoid further suffering."  The court enjoined the state from prosecuting physicians under the state's ban on assisting suicide (NMSA 1978 Sec. 30-2-4) for providing aid in dying to terminally ill, mentally competent individuals. The ACLU issued a  press release announcing the decision. The Santa Fe Reporter reports on the decision.

Tom Monaghan Related Catholic Non-Profits Win Preliminary Injunction Against Contraceptive Coverage Rules

In Ave Maria Foundation v. Sebelius, (ED MI, Jan. 13, 2014), a Michigan federal district court granted a preliminary injunction to five non-profit organizations, including the Thomas More Law Center, barring the government from requiring them to comply with the Affordable Care Act contraceptive coverage mandate accommodation for religious non-profits. The organizations were all founded by Catholic philanthropist and Domino Pizza founder Tom Monaghan. The court concluded that plaintiffs have a strong likelihood of succeeding on their claim that the self-certification rule imposes a substantial burden under RFRA on the organizations' religious exercise, saying in part:

the government's argument amounts to disbelief that the self-certification has much religious significance. And adopting this argument would therefore require an examination of the ... rationality of Plaintiffs' convictions — a task beyond the Court's ability or competence.... [H]aving conceded that the accommodation requires Plaintiffs to change their behavior in some way — here, by executing a certification — the government cannot then label that newly required action as trivial. It is not the government's business to decide what behavior has religious significance.

Rejecting the government's argument that it nevertheless has a compelling interest in enforcing the mandate compromise, the court said:

Here, the sheer number of exceptions and stays to the HRSA Mandate undercut the government's argument that requiring religious objectors to provide contraceptive coverage furthers vital interests.

Nigerian President Quietly Signs Controversial Anti-Gay Law

AP reported yesterday that in Nigeria, President Goodluck Jonathan signed the controversial Same-Sex Marriage Prohibition Bill on Jan. 7 without any public announcement that he had done so. (See prior related posting.) The new law imposes up to 14 years in prison for entering a same-sex marriage or civil union.  It also provides: "A person who registers, operates or participates in gay clubs, societies or organizations, or directly or indirectly makes public show of same-sex amorous relationship in Nigeria commits an offense and is liable on conviction to a term of 10 years." U.S. Secretary of State John Kerry issued a statement (full text) yesterday criticizing the new law, saying that " it is inconsistent with Nigeria’s international legal obligations."

Judge Censured For Pressuring Staff To Engage In Prayer and Religious Activity

The ABA Journal reported yesterday on a decision last month by the State of New York Commission on Judicial Conduct censuring Bronx County Judge Mary Brigantti-Hughes for repeatedly using her court staff to perform child care and personal tasks and for asking her staff to pray with her in chambers, attend religious events outside regular working hours and photocopy religious materials. In In re Proceeding in Relation to Mary Brigantti-Hughes, (Dec. 17, 2013), the Commission held that the judge's activities went beyond merely using empty court space during the lunch hour for Bible study or religious meetings that had been approved by the Office of Court Administration. The Commission said:

repeatedly asking her staff to join her in [prayer] sessions misused the prestige of her judicial position, added an element of implicit coercion and crossed the line into impropriety.... Moreover, inviting members of her court staff to attend church-related events after court hours ... was also implicitly coercive.... By creating an environment in which some staff felt pressure to engage in religious activities, her actions impinged on the important separation between church and state, one of the most basic tenets of the federal and state constitutions.

Recent Articles of Interest

From SSRN:

• Bruce Bartlett, Tax Policy and the Bible, (Tax Notes, Vol. 141, No. 11, 2013).
• P.G. Monateri, Stasis in Moltmann e Schmitt (Stasis in Moltmann and Schmitt), (Cosmo. Comparative Studies in Modernism, 3 - 2013: Diritto e Religione, a cura di Cristina Costantini, pp. 9-17).
• Caroline Mala Corbin, Abortion Distortions, (Washington and Lee Law Review, Forthcoming).
• Charles J. Reid, 'May a Man Marry a Man?' Medieval Canon Lawyers Analyze Same-Sex Unions, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-02 (2014)).
• Mattheew I. Hall & Benjamin Means, The Prudential Third Party Standing of Family-Owned Corporations, (University of Pennsylvania Law Review Online, Forthcoming).
• Michael J. Perry, David C. Baum Memorial Lecture: Why Excluding Same-Sex Couples from Civil Marriage Violates the Constitutional Law of the United States, (University of Illinois Law Review, 2014, Forthcoming).
• Brian Christopher Jones, SCOTUS Short Title Turmoil: Time for a Congressional Bill Naming Authority, (32(1) Yale Law & Policy Review Inter Alia 25-33 (2013)).
• Andrew A. Proia, Freeing the Prop 8 Tape: Perry v. Brown, the Presumption of Access to Civil Proceedings, and the Preservation of Judicial Integrity, (University of Florida Journal of Law and Public Policy, Vol. 24, No. 1, 2013).

From SSRN and elsewhere (Islamic Law):

• Suznne Bouclin, YouTube and Muslim Women's Legal Subjectivities, (Oñati Socio-Legal Series, Vol. 3, No. 7, 2013).
• Iris Sportel, 'Because It's an Islamic Marriage' Conditions Upon Marriage and after Divorce in Transnational Dutch-Moroccan and Dutch-Egyptian Marriages, (Oñati Socio-Legal Series, Vol. 3, No. 6, 2013).
• Javaid Rehman, Islam and Human Rights: Is Compatibility Achievable between the Sharia and Human Rights Law?, (January 2, 2014).
• Special Issue: Islamic Bioethics: Text and Context, [Table of Contents], Bioethics, Vol. 28, Issue 2 (Feb. 2014).

Earlier Appellate Decision In Texas Church Property Case Withdrawn In Light of New State Supreme Court Ruling

In Windwood Presbyterian Church, Inc. v. Presbyterian Church (USA), (TX App., Jan. 7, 2014), the Texas Court of Appeals withdrew an opinion it had issued in 2012 (see prior posting) in a dispute over ownership of church property and issued a new opinion taking account of a subsequent Texas Supreme Court ruling in the Masterson case that the "neutral principles of law" approach should be used in Texas in deciding church property cases. (See prior posting.) The Court of Appeals concluded:

... [T]he denominational church’s [summary judgment] motion was based solely on the contention that this property dispute should be resolved by applying the hierarchical deference approach and deferring to governing church authorities on the issue.... Because this was the only ground urged for summary judgment, under Masterson, the denominational church’s summary judgment must be reversed and remanded to the trial court.

Recent Prisoner Free Exercise Cases

In Ghailani v. Holder, 2014 U.S. Dist. LEXIS 1986 (D CO, Jan., 8, 2014), a Colorado federal magistrate judge gave an inmate 30 days to file an amended complaint setting out more details of his claim that "special administrative measures" imposed on him violates his free exercise rights.

In Lewis v. Nevada, 2014 U.S. Dist. LEXIS 2045 (D NV, Jan. 7, 2014), a Nevada federal district court, while severing claims of several plaintiffs and dismissing a number of claims, permitted an African-American Hebrew Israelite inmate to move forward with his free exercise, RLUIPA and equal protection challenges to the denial of kosher meals and the insistence that he accept Common Fare meals. Plaintiff claimed that Jews who are white still receive kosher meals.

In Strickland v. Van Lanen, 2014 U.S. Dist. LEXIS 873 (ED WI, Jan. 3, 2014), a Wisconsin federal district court permitted a Muslim inmate to proceed with his complaint that strip searches in areas that lack privacy infringe his religious beliefs.

In Carmichael v. Geo Group, 2014 U.S. Dist. LEXIS 2697 (ED CA, Jan. 8, 2014), a California federal magistrate judge permitted a Muslim inmate to proceed with his complaint that he was denied a halal diet and the ability to purchase halal meat.

In Irvin v. Yates, 2014 U.S. Dist. LEXIS 2120 (ED CA, Jan. 8, 2014), a California federal magistrate judge dismissed with leave to file an amended complaint a Muslim inmate's free exercise, RLUIPA and equal protection claims.

In Sessing v. Beard, 2014 U.S. Dist. LEXIS 238 (ED CA, Jan. 2, 2013), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that his exercise of his Asatru (Odinism) faith is burdened by denial of his request for construction of an outdoor worship enclosure.

"Avoidable Consequences" Doctrine Prevents Recovery For Jehovah's Witness Death

In Braverman v. Granger, (MI App., Jan. 9, 2014), a Michigan appeals court held that the doctrine of "avoidable consequences" prevents recovery in a wrongful death medical malpractice suit brought by the personal representative of a deceased Jehovah's Witness woman who refused a blood transfusion that was needed to deal with complications from a kidney transplant.  The court rejected a test that would look to whether refusing a blood transfusion was subjectively reasonable in light of a person's religious beliefs, saying that this test would require the trier of fact  to decide either the reasonableness of a person's religion or of her decision to follow her religious beliefs in the face of death. The court held that instead "the proper inquiry is whether the blood transfusion was an objectively reasonable means to avoid or minimize damages following the person’s original injury...."

In a concurring opinion, Judge Boonstra added:

I write separately only to emphasize that our opinion should not be interpreted as reflective of any viewpoint regarding religion generally or any particular religious belief or expression. To the contrary, it is reflective of the spirit of the First Amendment of the United States Constitution, and its guarantee of every person’s right to freely exercise the religious beliefs and expressions of his or her choice, without governmental interference.

AP reports on the decision.

Grand Jury Refuses To Indict Snake Handling Pastor

In Campbell County Tennessee last Wednesday, a grand jury refused to hand down indictments against Rev. Andrew Hamblin who was charged after state wildlife officials raided his Tabernacle Church of God and seized 53 poisonous snakes handled by the congregation during worship services.  Hamblin is the co-star of the National Geographic Chanel's reality series Snake Salvation. (See prior posting.)  According to Religion News Service, Hamblin was allowed to address the grand jury for 30 minutes. He argued that the snakes belong to the church, not to him, and that the state's ban on them violates the congregation's religious liberty.

11th Circuit: Challenge To Removal of Prayer Dismissed On Standing Grounds

In Holyfield-Vega v. United States, (11th Cir., Jan. 8, 2014), the U.S. 11th Circuit Court of Appeals affirmed the dismissal for lack of standing plaintiff's complaint that the removal of prayer from schools and other areas violated her free exercise of religion. Plaintiff failed to describe how she had been injured by the challenged conduct.

Britain's Charity Commission Agrees To Register Insular Christian Church After It Makes Various Changes

Under British law, for an organization (including a religious organization) to be registered by the Charity Commission as a charity it must, among other things, show that it was created for the "public benefit." (See prior posting.) In 2012, the Charity Commission refused, on public benefit grounds, to register the Preston Down Trust (PDT) which supports the Plymouth Brethren Christian Church. The Commission found that the church's doctrine of "separation from evil" resulted in limited interaction with the community beyond the Brethren. It also heard evidence of disciplinary practices that were allegedly harmful. Following that decision, an appeal was filed, but it was stayed as the parties explored a negotiated settlement. Britian's Charity Commission announced this week that an agreement has been reached. In Application for the Registration of the Preston Down Trust, (Charity Commn., Jan. 3, 2014), the Charity Commission concluded that it is willing to register PDT on the basis of revisions in its governing document and changes in its practices that have lessened its insularity-- such as public access to worship, street preaching and a certain amount of engagement with the wider community including disaster relief. The Commission has also published a summary of the decision. Law & Religion UK blog reports further on the Commission's action, as does The Christian Institute. [Thanks to Alliance Alert for the lead.]

Vatican Says Its Former Nuncio to Dominican Republic Has Diplomatic Immunity and Is Not Extraditable On Sex Abuse Charges

The Vatican says that Polish Catholic Archbishop Josef Wesolowski who is being investigated on sex abuse charges by authorities in both the Dominican Republic and Poland has full diplomatic immunity.  AP reports today that Wesolowski, who served as Apostolic Nuncio (Ambassador) to the Dominican Republic from 2008 until 2013, was recalled to the Vatican and relieved of his position in August after Pope Francis was informed of rumors that Wesolowski sexually abused teenage boys in the Dominican Republic. Polish prosecutors recently inquired of the Vatican about Wesolowski's legal status as part of the investigation that they are also conducting, and were told that, in addition to diplomatic immunity, Wesolowski is a citizen of the Vatican City state and that the Vatican does not extradite its citizens. The Vatican says it is cooperating with Poland and the Dominican Republic in their investigations, and that two separate Vatican tribunals are investigating Wesolowski for both canonical and criminal violations.

Belated Objections By Jehovah's Witness Juror Cause Mistrial

As reported by the Washington Post, belated religious objections by a juror caused a Prince Georges County, Maryland trial court last Thursday to declare a mistrial in the manslaughter trial of Kevon Neal.  Neal, who was being pursued for driving a stolen car, was charged with causing the death of a police officer who lost control of his police cruiser in the chase. After 3 days of testimony, alternate jurors were released and the jury began deliberations.  At 1:00 a.m. of the day deliberations were to resume, a juror sent the judge a not saying that because of her beliefs as a Jehovah’s Witness, she could not "sit in judgment of another human being."  The juror has been charged with contempt of court and a hearing on that charge will be held Feb. 24. [Thanks to Steven Jamar via Religionlaw for the lead.]

U.S. and Utah Clarify Status of Same Sex Marriages That Were Performed In Utah Before Supreme Court Stay

U.S. Attorney General Eric Holder today issued a statement (full text) confirming that the federal government will recognize the same-sex marriages performed in Utah in the two weeks before the U.S. Supreme Court issued a stay stopping them while an appeal to the 10th Circuit is pending. Describing the Supreme Court's action as "an administrative step," Holder said in part:

for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages.  These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.

Meanwhile yesterday Utah's Attorney General distributed a letter (full text) to all County Attorneys and County Clerks in the state advising that they should send marriage certificates to same-sex couples whose marriage ceremonies took place between Dec. 20 and Jan. 6. The letter advises in part:

Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed.

While the validity of the marriages in question must ultimately be decided by the legal appeals process ..., the act of completing and providing a marriage certificate for all couples whose marriage was performed prior to the morning of January 6, 2014, is administrative and consistent with Utah law.  Therefore, it is recommended that county clerks provide marriage certificates to all persons whose marriages were solemnized during this period as an administrative function and not a legal function. This would allow ... couples ... to have proper documentation in states that recognize same-sex marriage.

Advocacy Group Asks U.S. and 18 States To Recognize 1300 Utah Same-Sex Marriages

Given the uncertainty surrounding the status of some 1300 same-sex marriages that were solemnized in Utah between December 20 (when a district court legalized them) and Jan. 6 (when the U.S. Supreme Court stayed the district court order), Human Rights Campaign yesterday wrote the attorneys general in the 18 states that recognize same-sex marriages, asking them to recognize these marriages for any couples that travel through or relocate in their states. (Full text of letter.) (Press release.) The letter asks the AGs to issue advisory opinions declaring that they will do so. Reuters reports that Human Rights Campaign yesterday also wrote U.S. Attorney General Eric Holder asking that the federal government extend recognition to these marriages so that the couples will be eligible for federal benefits due to married couples.

Insurance Company Must Defend South Carolina Episcopal Church In Trademark Suit By Breakaway Diocese

In The Episcopal Church in South Carolina v. Church Insurance Company of Vermont, (D SC, Jan. 6, 2014), a South Carolina federal district court held that an commercial liability insurance policy issued by Church Insurance Company of Vermont requires the insurance company to defend The Episcopal Church in South Carolina (TEC-SC) in a state court lawsuit against it by a break-away diocese over which group has the right to use the Episcopal Church trade names, trademarks, services, and emblems. (See prior posting.) The court also held that the insurance company had breached its contract in refusing to defend TEC-SC, but that bad faith had not been shown. TEC-SC issued a press release announcing the decision.

Magazine Ranks Top Law Schools For Religiously Devout Students

The Winter 2014 issue of Pre-Law Magazine has published a new set of law school rankings-- Best Law Schools for the Devout. Topping the list of the 10 best law schools for devout Catholics are Ave Maria and University of St. Thomas-Minneapolis. Leading the list of the 5 best law schools for devout Christians (non-Catholic) are Liberty and Trinity. At the top of the 5 best for devout Mormons: Brigham Young and Creighton. Heading the list of the 5 best law schools for devout Jews are Cardozo and Touro. And topping the list of the 5 best law schools for devout Muslims are UCLA and Michigan State. [Thanks to Mirror of Justice for the lead.]

Fired Police Officer Sues Claiming Anti-Semitic Harassment

Courthouse News Service reported yesterday on a lawsuit filed in a Michigan state trial court (Oakland County) by Lowell Phillips, a former officer in the Ferndale, Michigan police department. Phillips was the only Jewish officer on the force, and he contends that he was subjected to a barrage of anti-Semitic harassment and discriminatory treatment.  After he was involved in a high-speed chase in which he ultimately killed a suspect in self-defense, the police department fired him. Phillips claims the police department used the shooting as a pretext, and that he was actually fired because he is Jewish and in retaliation for his complaining about harassment and discrimination.

Town Council Member Sworn In As First Open Pastafarian Office Holder

In Pomfret, New York last Friday, Christopher Schaeffer was sworn in as a member of the Town Council wearing a pasta colander on his head-- the traditional headgear of the satirical Pastafarian movement. Gawker reports that this is the first open member of the Church of the Flying Spaghetti Monster to be sworn into public office. Schaeffer told a local newspaper: "It's just a statement about religious freedom. It's a religion without any dogma." [Thanks to Arthur Spitzer for the lead.]

French Court Fines Muslim Woman For Wearing Niqab In Public

In France yesterday, a court in Versailles dismissed a constitutional challenge to France's 2010 law prohibiting women from wearing the niqab or burqa in public.  According to Voice of America,  the court fined Muslim convert Cassandra Belin 150 euros and imposed a 1-month suspended sentence for wearing the niqab in public and for insulting police who ticketed her for doing so. In a different case, a challenge to France's anti-niqab law is pending before the European Court of Human Rights.