Religion Clause

Wednesday, February 05, 2014

Israel's High Court Bars Subsidies For Some Yeshiva Students Who Have Received Draft Deferrals

In Israel yesterday, the High Court of Justice issued an interim injunction in the sensitive dispute over drafting of ultra-Orthodox Jews into the Israeli military. The Jerusalem Post reports that the Court order prohibits the government from transferring funds for stipends to some 3000 yeshiva students. In 2012, Israel's High Court of Justice held that the "Tal Law" that provided exemptions for ultra-Orthodox students and a framework for subsidizing their religious studies conflicted with Israel's Basic Law, and therefore the Knesset could not extend the law in its then existing form after its July 2012 expiration. (See prior posting.) The Knesset has so far been unable to agree on a new law. However, the government has continued paying stipends, and the Justice Minister issued mass deferrals to Orthodox students who received enlistment orders after the Tal Law expired. In yesterday's action, the High Court ruled that no future stipends may be paid to yeshiva students in the 1994, 1995, and first half of 1996 cohorts who have received enlistment orders but have been deferred.

Indian Court Reduces Waiting Period Requirement For Christian Divorces

Times of India reports that on Monday the Karntaka High Court ruled that the provision in Section 10A of India's Divorce Act 1869, the law that applies to Christian divorces, which requires a 2-year separation period before a petition can be filed for dissolution of marriage by mutual consent is invalid. The Hindu Marriage Act, the Parsi Marriage and Divorce Act and the Special Marriage Act all require only a one-year waiting period. In a public interest lawsuit, the Karntaka court relied on an earlier decision by the Kerala High Court which held that Christian divorces should also be subject to only a one-year waiting period. According to Indian Supreme Court precedent, the prior ruling of another High Court becomes the law of the land unless it is challenged in the Supreme Court. In that earlier ruling, the Kerala High Court said:

[T]he stipulation of a higher period of two years of mandatory minimum separate residence for those to whom the Divorce Act applies, in contra-distinction to those similarly placed to whom Sec 13B of the Hindu Marriage Act, Sec 32B of the Parsi Marriage and Divorce Act and Sec 28 of the Special Marriage Act would apply, offends the mandate of equality and right to life under Arts14 and 21 of the Constitution

Orlando Moves Ahead To Take Church Property By Eminent Domain For Soccer Stadium

At its January 27 meeting (Council Minutes), Orlando, Florida City Council approved the use of eminent domain to acquire the property of Faith Deliverance Temple by eminent domain if negotiations with the church are not successful. As reported by the Orlando Sentinel (Jan. 31), the church is the last parcel needed by the city for construction of an $84 million Major League Soccer Stadium. Orlando has been awarded a major league expansion team for 2015. (Background.) In a decision last Friday, a Florida trial court judge ruled that two other parcels needed for the stadium can be taken by eminent domain, finding that the stadium is a legitimate public purpose. In negotiations, the city has offered Faith Deliverance Temple $1.5 million for its property, over two times its appraised value. The family that owns the church building says it wants $35 million.

9th Circuit Stays Order Pending Cert. Petition In Case Upholding California's "Change Therapy for Minors" Ban

As previously reported, last week the U.S. 9th Circuit Court of Appeals denied en banc review of a 3-judge panel's decision that upheld California Senate Bill 1172. The bill bans state-licensed mental health providers from engaging in sexual orientation change efforts with patients under 18. Now in Pickup v. Brown, (9th Cir., Feb. 3, 2014), the 9th Circuit has agreed to stay its mandate in the case while appellants file a petition for certiorari with the U.S. Supreme Court. Liberty Counsel issued a press release announcing the stay.

Tuesday, February 04, 2014

Mirror of Justice Celebrates 10 Years

Happy 10th Birthday to Mirror of Justice, one of the most thoughtful blogs on law and religion. In his birthday posting, Rick Garnett describes the vision of the creative group of Catholic law professors who explore Catholic legal theory at MOJ. Others at MOJ have followed up with reflections on the blog's past and future-- a future that we all know will be a bright one. You can always find a link to MOJ in the Religion Clause sidebar.

Church Permitted To Intervene In Suit Against Internal Revenue Service Over Political Activity By 501(c)(3)'s

In Freedom From Religion Foundation, Inc. v. Koskinen, (WD WI, Feb. 3, 2014), a Wisconsin federal district court permitted Father Patrick Malone and the Holy Cross Anglican Church to intervene as defendants in a lawsuit in which the Freedom From Religion Foundation is suing the Internal Revenue Service to challenge its alleged policy of not enforcing against churches and religious organizations the Section 501(c)(3) ban on political activity by non-profits. According to the court:

Father Malone, the vicar of the church, regularly makes statements during worship services and church gatherings in which he urges members of the congregation to vote for or against certain candidates for public office..... So far, however, the IRS has not taken any action in response to the church’s activities..... But the church and Father Malone are concerned that if the Foundation obtains the relief it seeks in this lawsuit, then the IRS will be required to “punish” them for having engaged in political activity.

Ontario Court Orders Children From Jewish Sect Back To Quebec For Foster Care

In the Canadian province of Ontario yesterday, a trial court judge ordered that 13 children of the Jewish ultra-Orthodox Lev Tahor sect be returned to child protection authorities in Quebec where a court has already ordered the children be placed in foster care. (See prior posting.) When court proceedings were begun in Quebec, about 200 Lev Tahor members fled to Ontario in the middle of the night. As reported by Canadian Press, Chatham, Ontario judge Stephen Fuerth wrote in part:

It would be impractical at best and potentially harmful at worst if the society were now required, in the context of the need to protect the children, to conduct a separate and new investigation into all of the issues currently before the Court of Quebec...simply because the parents have decided as a tactical manoeuvre to absent themselves from Quebec in order to frustrate the process of justice that had started.

The court stayed its order for 30 days to give the families a chance to appeal, with provision for child protection workers to keep checking on the children. An appeal of the Quebec court order-- entered after the community fled-- is already being appealed.

Indiana Supreme Court Hears Arguments In Home Schooling Organization's Challenge To Retaliation Finding

Yesterday, the Indiana Supreme Court heard oral arguments (video of full arguments) in a case being closely followed by home school proponents-- Fishers Adolescent Catholic Enrichment Society, Inc. v. Bridgewater. In the case, a state appeals court held that the Indiana Civil Rights Commission has jurisdiction over a retaliation claim brought after the religious-based organization (FACES) expelled a family from membership when they complained that FACES refused to make health-related dietary accommodations for their daughter at a masquerade ball it sponsored. (See prior posting.) As reported by the Indianapolis Star, FACES argues that the action by the Civil Rights Commission infringes its religious freedom and its right to determine who will be a member. The student's family argues that the case is about disability discrimination.

Monday, February 03, 2014

Japanese Court Awards Unificationist Damages Against Relatives, Deprogrammer Who Held Him Captive

In Japan, 50-year old Toru Goto, a member of the Unification Church, has won a lawsuit against a religious deprogrammer and against his own brother, sister and sister-in-law who held him captive from September 1995 to February 2008 in an effort to get him to give up his religious beliefs. According to a press release from the Family Federation for World Peace and Unification, the Tokyo District Court in a Jan. 28 decision awarded Goto damages equivalent to $47,000(US). Unificationists hope this is a step toward ending deprogramming in Japan.

Hawaii Supreme Court Says Permit Requirement To Enter Reserve Did Not Infringe Free Exercise Rights

In State v. Armitage, (HI Sup. Ct., Jan. 28, 2014), the Hawaii Supreme Court held that the rights of Native Hawaiians are not infringed by a statute limiting entry into the Kaho'olawe Island Reserve only to those who obtain authorization to do so through a written application process. Defendants claim they were traveling to the island to proclaim the right of the "Reinstated Kingdom of Hawaii" to the island. The court rejected defendants' arguments that their entry was protected by the Art. XII, Sec. 7 of the Hawaii Constitution which protects the right to engage in traditional and customary Native Hawaiian subsistence, cultural and religious practices. It also rejected their contention that the Native Hawaiian people have a fundamental right to reestablish an autonomous sovereign government. Finally the court rejected defendants' claims that their free expression and free exercise rights were infringed. The court held that the written application process required to obtain entry did not impose a substantial burden on defendants' religious exercise.

Chief Justice Recktenwald wrote a separate opinion in which Justice Nakayama joined concurring with these views, but dissenting as to an unrelated issue.

Sunday, February 02, 2014

In Israel, Haifa Chief Rabbi To Be Indicted Over Payoffs In Kashrut Supervision

In Israel, prosecutors last week informed the Chief Sephardic Rabbi of the city of Haifa, Shlomo Chelouche, that he is likely to be indicted for improper conduct in his supervision of kosher food purveyors. According to Thursday's Arutz Sheva, in two instances Chelouche solicited donations to a charitable organization he heads from companies to which he was granting kashrut certificates. In the case of one of those companies he also arranged a job for a family member. He is also accused of removing the kashrut certificate of a third company, a catering hall, to pressure it to rehire his personal secretary as their kashrut inspector after the individual had been fired. Israel's Justice Minister Tzippy Livni said that because of the charges she would move to suspend Rabbi Chelouche from his positions as Chief Rabbi and religious court judge.

Court Upholds Hawaii Law Permitting Same-Sex Marriage

A news release from Hawaii's Department of Attorney General reports that on Jan. 29 a state trial court judge upheld the constitutionality under both the state and federal constitutions of Hawaii's Marriage Equality Act of 2013:

In his ruling from the bench, Judge Sakamoto noted the importance of marriage under the federal constitution, drawing an analogy to Loving v. Virginia, the landmark United States Supreme Court case that struck down state laws banning inter-racial marriage. He concluded that the Marriage Equality Act is consistent with Article I, section 23 of the Hawaii State Constitution, and that “same-sex marriage is legal.”

Article I, Sec. 23 of Hawaii's constitution provides: "The legislature shall have the power to reserve marriage to opposite-sex couples."

Recent Prisoner Free Exercise Cases

In Daley v. Lappin, (3d Cir., Jan. 29, 2014), the 3rd Circuit vacated and remanded for the most part a decision of a Pennsylvania federal district court in a suit brought by a former federal inmate who was a Rastafarian. The Court of Appeals held that the district court erred in rejecting plaintiff's claim for a vegan diet merely on the ground that it was not a mandatory tenet of Rastafarianism.

In Harris v. Gipson, 2014 U.S. Dist. LEXIS 9792 (ED CA, Jan. 24, 2014), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that he is being denied access to an adequate religious diet.

In Hollins v. Curtin, 2014 U.S. Dist. LEXIS 10709 (WD MI, Jan. 29, 2014), a Michigan federal district court permitted a Nation of Islam inmate to move ahead with his challenge to a prison's blanket ban on group religious services for all inmates in segregation.

In Sousa v. Wegman, 2014 U.S. Dist. LEXIS 11132 (ED CA, Jan. 28, 2014), a California federal magistrate judge recommended that a Mexican Indian inmate be permitted to proceed with his complaint that prison officials refused to recognize his religion or allot him outside grounds to conduct services, burn sage and hold sweats. The court held that plaintiff's free exercise claim should not be barred by collateral estoppel, the 11th Amendment, or PLRA exhaustion.

In Washington v. Cate, 2014 U.S. Dist. LEXIS 12402 (ED CA, Jan. 31, 2014), a California federal magistrate judge dismissed a complaint by a Muslim inmate that his free exercise, equal protection and RLUIPA rights were infringed when was not permitted to have a conjugal visit to consummate his marriage that took place in a prison visiting room. Department of Corrections rules bar conjugal visits for prisoners serving life sentences.

In Martin v. Cate, 2014 U.S. Dist. LEXIS 12414 (ED CA, Jan. 31, 2014), a California federal magistrate judge recommended dismissing a complaint by a Christian inmate serving a life sentence that his free exercise and RLUIPA rights were infringed by rules denying him conjugal visits with his wife.

Texas State Board of Education Amends Textbook Review Rules To Lessen Influence of Social Conservatives

AP reports that on Friday, the 15-member Texas State Board of Education unanimously adopted new rules governing the citizen review panels that review proposed textbooks. The rule changes are likely to lessen the influence of social conservatives who in recent years have influenced the coverage of topics such as evolution, climate change and the role of religion in American history. The new rules give priority to teachers and professors to serve on the textbook review panels in their areas of expertise. They also allow the state board to appoint outside experts to check the objections raised by review panels. The new rules require that each textbook be reviewed by at least two panel members, require panels to submit majority and minority reports, and limit board of education contact with panel members to prevent pressure on panels. Earlier this week the board defeated a proposal that would have allowed removal of review panel members for inappropriate behavior. Conservative State Board of Education member David Bradley complained: "liberals are really trying to make it difficult for Christians and conservatives to have a voice in public education."

Montana Catholic Diocese Files For Chapter 11 Protection To Implement $17.5M Settlement of Abuse Cases

The Roman Catholic Diocese of Helena, Montana filed for Chapter 11 bankruptcy reorganization on Friday, according to NBC News. The filing comes in anticipation of a $15 million settlement for 362 victims of clergy abuse who have sued claiming that the diocese knew or should have known of the abuse that took place from the 1940's to the 1980's. Another $2.5 million will be set aside for victims who have not yet come forward. Most of the settlement will be funded by insurance carriers, but the diocese will pay at least $2.5 million additionally. The diocese covers 21 counties and parts of two others in western and north central Montana.

Saturday, February 01, 2014

Bahraini Court Dissolves Islamic Scholars Council

Al Monitor reports that in Bahrain last Wednesday, the Administrative Court ordered the dissolution of the Islamic Scholars Council and liquidation of its assets. The Council includes a number of prominent Shiite scholars who support the opposition movement. Last September, the Justice Ministry filed a lawsuit seeking liquidation of the Council, claiming that the organization was founded in 2004 in violation of law.

Sexual Abuse Suit Against Yehshiva University Dismissed On Statute of Limitations Grounds

In Twersky v. Yeshiva University, (SD NY, Jan. 30, 2014), a New York federal district court dismissed on statute of limitations grounds a suit by 34 former students at Yeshiva University High School for Boys claiming that between 1968 and 1992 they were abused variously by an administrator who eventually became the school principal, by a Judaic studies teacher employed by the Jewish high school, and by an outside party who was given access to the school dormitory. The suit was brought against the high school, Yeshiva University, former University administrators and trustees alleging fraud, negligence, violation of the NY General Business Law, and of Title IX of the federal Education Amendments Act of 1972. The court rejected claims that the statutes of limitation involved were extended by the federal or state law rules on discovery of wrongdoing, or by the state law doctrine of equitable estoppel. The Forward reports on the decision.

Friday, January 31, 2014

Administrative Complaint Charges Catholic School With Discrimination For Terminating Employee In Same-Sex Marriage

The Boston Globe reports on the employment discrimination complaint (full text) filed yesterday with the Massachusetts Commission Against Discrimination by Matthew Barrett who was hired as food services director at a Catholic school. Three days after he accepted the position with Fontbonne Academy, the school terminated his employment because it learned from paperwork he had filled out that he was gay and had a same-sex spouse.

The Massachusetts law against discrimination (MGL Title XXI, Ch. 151B, Sec. 1(5)) provides:

[N]othing herein shall be construed to bar any religious or denominational institution or organization, or any organization operated for ... educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, and which limits membership, enrollment, admission, or participation to members of that religion, from... taking any action with respect to matters of employment, discipline, faith, internal organization, or ecclesiastical rule, custom, or law which are calculated by such organization to promote the religious principles for which it is established or maintained.

In its press release on the case, GLAD says: "Our laws carefully balance the important values of religious liberty and non-discrimination. When Fontbonne Academy fired Matt from a job that has nothing to do with religion, they came down on the wrong side of the law."

8th Circuit: Insurance Company Need Not Pay Archdiocese's Settlement In Wrongful Death Suit

In Chicago Insurance Company v. Archdiocese of St. Louis, (8th Cir., Jan. 29, 2014), the U.S. 8th Circuit Court of Appeals held that Chicago Insurance Co. is not required to reimburse the Catholic Archdiocese of St. Louis for amounts the Archdiocese paid to settle a wrongful death claim by the parent of a clergy sex abuse victim who committed suicide. The court held that the Archdiocese failed to show that the settlement was in reasonable anticipation of liability for negligence because the Missouri Supreme Court has held that negligence-based actions against a religious organization that require the court to evaluate the reasonableness of religious doctrine, policy and administration are barred by the 1st Amendment. (And the insurance policy does not cover intentional conduct.) The 8th Circuit held:

we are aware of no authority, and the Archdiocese cites none, that allows a settling insured to recover under an indemnity policy where governing law does not permit the claimant's underlying cause of action against the insured.

Business Insurance reports on the decision.

Chicago Archdiocese Settles Sex Abuse Case For $3.2M

The Chicago Sun-Times reported yesterday that the Catholic Archdiocese of Chicago has reached a settlement of nearly $3.2 million with the victim of sex abuse by former priest Daniel McCormack. The suit charges that the archdiocese and Cardinal Francis George failed to remove McCormack from contact with children even though they knew that he had sexually abused minors.

Wyoming Diocese Sues To Challenge Contraceptive Mandate Accommodation

The Catholic Diocese of Cheyenne, Wyoming announced yesterday that along with Catholic Charities, a children's home and two Catholic schools, it has filed a federal lawsuit challenging the Affordable Care Act contraceptive coverage mandate accommodation. In his announcement, Bishop Paul Etienne said in part:

The message of the mandate is clear; keep your religious beliefs private or face financial penalties. This is one of the strongest reasons the decision was made by the diocese and the plaintiffs to resist this mandate, even knowing that other similar lawsuits are now making their way through the court system.

AP reports on the lawsuit.

UPDATE: Here is the full text of the complaint in Diocese of Cheyenne v. Sebelius, (D WY, filed 1/30/2014).

Court Dismisses Challenge To Exclusion of Private Schools From NY Law Protecting Students From Sex Abuse

In Levi v. New York State Assembly, (SD NY, Jan. 29, 2014), a New York federal district court dismissed on sovereign immunity and legislative immunity grounds a suit challenging the legislature's failure to include private schools (including religious schools) in the coverage of a 2001 state law designed to protect school students from sexual abuse by school employees. Plaintiff, whose daughter attends a Modern Orthodox Jewish school, complains that private schools were omitted because of opposition to their coverage by ultra-Orthodox Jews. He contended that the legislature's action violated the 1st and 14th Amendments.

UK Appeals Court OK's Transport Agency Rule Banning Controversial Ad By Christian Non-Profit

In Core Issues Trust v. Transport for London, (EWCA, Jan. 27, 2014), Britain's Court of Appeal upheld a decision by London's public transportation agency to refuse to allow a Christian non-profit organization that supports gays who wish to change their sexual preference to buy ad space on the side of London's buses. The organization wanted to post an ad that read: "Not Gay! Ex-Gay, Post-Gay and Proud, Get Over It". The court held that the policy of the transportation agency to refuse ads that are likely to cause widespread or serious offence or which relate to matters of public controversy or sensitivity does not violated the freedom of expression or freedom of religion provisions (Art. 9 and 10) of the European Convention on Human Rights. The Independent reports on the decision. [Thanks to Paul Diamond for the lead.]

Thursday, January 30, 2014

80+ Amicus Briefs Filed In Hobby Lobby Case

More than 80 amicus briefs have been filed in the U.S. Supreme Court in Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius, the cases challenging the Affordable Care Act contraceptive coverage mandate. Becket Fund has links to the full text of all the amicus briefs.

Orthodox Patriarch Warns Russian Parliament About Same-Sex Marriage

According to ITAR-TASS News Agency, on Tuesday Patriarch Krill, head of the Russian Orthodox Church, spoke at the Federation Council (the upper house of Russia's parliament) to warn against the legalization of same-sex marriage and to lament marital infidelity. He said that if a person is unfaithful to his family, he may be unfaithful to his homeland. After Krill's presentation, the Federation Council and religious leaders adopted a joint statement which reads in part: "Preservation of marriage as a union between a man and a woman based on love and mutual understanding and birth of beloved children are a precondition for survival of humankind."

9th Circuit, With Dissents, Denies En Banc Review In Reparative Therapy Ban Challenge

As previously reported, last August in Pickup v. Brown, (9th Cir., Aug. 29, 2013), the U.S. 9th Circuit Court of Appeals upheld the constitutionality of California Senate Bill 1172 that bans state-licensed mental health providers from engaging in sexual orientation change efforts with patients under 18. Yesterday in Pickup v. Brown, (9th Cir., Jan. 29, 2014),) the panel reaffirmed its holding in an amended opinion, and the full court (with 3 dissents) denied en banc review. The amended opinion-- apparently in response to dissenters' criticisms-- adds the discussion at pp. 39-41 distinguishing this case from the U.S. Supreme Court's 2010 decision in Holder v. Humanitarian Law Project.

In the dissent from yesterday' denial of review by the 9th Circuit, Judge O'Scannlain, joined by Judges Bea and Ikuta, said:

The State ... here, has prohibited licensed professionals from saying certain words to their clients. By labeling such speech as “conduct,” the panel’s opinion has entirely exempted such regulation from the First Amendment. In so doing, the panel contravenes recent Supreme Court precedent, ignores established free speech doctrine, misreads our cases, and thus insulates from First Amendment scrutiny California’s prohibition—in the guise of a professional regulation—of politically unpopular expression.

Volokh Conspiracy also discusses yesterday's action by the 9th Circuit.

Santeria Priest May Proceed With1st Amendment Claims Against Police Chief

In Badillo v. Amato,(D NJ, Jan. 28, 2014), a New Jersey federal district court held that a Santeria priest can proceed with his 1st Amendment religious expression claims against a police chief for prosecuting him for animal abuse and neglect. Plaintiff was also allowed to proceed with a 4th Amendment claim. The court rejected the contention that the police chief had qualified immunity, finding that:

Plaintiff’s right to practice the Santerian ritual of sacrificing certain types of animals, within the strictures and constraints of the religion, is a clearly established right....

The court dismissed claims against various other defendants.

House Hearing Held On Religious Accommodation In the Military

Yesterday, the House Armed Services Committee, Subcommittee on Military Personnel yesterday held a hearing on Religious Accommodations in the Armed Services. The prepared statements of the six witnesses-- chaplains and representatives of chaplain endorsing agencies-- as well as statements for the record submitted by nine other groups and individuals are available on the committee's website. [Thanks to Michael Lieberman for the lead.]

Wednesday, January 29, 2014

Suit Claims Viewpoint Discrimination In School District's Refusal of Religious Ad

Alliance Defending Freedom yesterday announced the filing of a lawsuit in federal district court in Texas challenging the refusal by the Lubbock Independent School District to accept an ad from JesusTattoo.org for display during high school football games on the district's jumbotron. The school district says that the Establishment Clause bars the use of government property for religious advertisements. The complaint in Little Pencil v. Lubbock Independent School District claims unconstitutional viewpoint discrimination because other non-school-related organizations, including other religious groups, are permitted to advertise.

UPDATE: Here is the full text of the complaint in Little Pencil, LLC v. Lubbock Independent School District, (ND TX, filed 1/28/2014).

Indonesia's Supreme Court Penalizes Judges On East Java's Religious Affairs Court

The Jakarta Globe reports that yesterday Indonesia's Supreme Court imposed unspecified penalties on 11 of the 12 members of the Religious Affairs Court in Ponorogo district, East Java, for permitting attorneys who are members of the unofficial Indonesian Congress of Advocates (KAI) to practice before the court. The Religious Affairs Court's chief judge reported the violation. Under Indonesia’s 2003 Law on Attorneys, only members of the Indonesian Association of Advocates (Peradi) are allowed to practice.

Panel Recommends Judge's Suspension and Fine For Selling Religious Items In Courthouse

A Hearing Panel of the Florida Judicial Qualifications Commission filed an opinion on Monday recommending imposing a public reprimand, a 3-month suspension without pay and a fine of $17,000 on state court judge Judith W. Hawkins. Among other things, she was found guilty of selling religious books, study guides, and other products of Gaza Road Ministries which she founded to lawyers who appeared before her and to courthouse employees, promoting products appearing in her judicial robes on the Gaza Road Ministries website, and using her judicial assistant during working hours to promote and produce the products. In Inquiry Concerning Judge Judith W. Hawkins, (FL Judic. Qual. Commn., Jan. 27, 2014), the hearing panel published its conclusions without alluding to the fact that the products Hawkins promoted were religious in nature, saying: "The identity and nature of the business are irrelevant to these proceedings; and the business is therefore referred to by a pseudonym." The panel went on to conclude:

Judge Hawkins operated a private, for profit business from her judicial chambers. She linked the sale of ABC's products to her judicial office, by a website, which depicted her in a judicial robe, and described her as a county court judge in Tallahassee. She used state time and resources (including her judicial assistant) to promote ABC. This conduct violates Canons 1, 2B and 5D of the Code of Judicial Conduct. It lent the prestige of judicial office to advance the private interest of the judge.

The Tampa Bay Times reports on the hearing panel's recommendations. (See prior related posting.)

Tuesday, January 28, 2014

In Australia, Jewish MP's Oppose Call To Stop Parliamentary Tradition of Lord's Prayer

Today's Australian Jewish News reports that Jewish members of Australia's Federal Parliament are generally opposing a call by the The Green party to end the century-old tradition of opening each day's session of Parliament with the recitation of the Lord's Prayer. Jewish MP Mark Dreyfus said that while there could be more inclusive ways of recognizing the country's multi-faith nature, by calling for an end to prayer "the Greens are not showing an understanding of the importance of religious faith for very many Australians."

U.S. Appeals To 7th Circuit On Tax Code's Parsonage Allowance

According to ABP, the Justice Department last week filed a notice of appeal with the U.S. 7th Circuit Court of Appeals in Freedom From Religion Foundation v. Lew. In the case, a federal district court held unconstitutional the provision in the Internal Revenue Code that for tax purposes excludes from income a minister's parsonage allowance. (See prior posting.) [Thanks to Steven H. Sholk for the lead.]

Tunisia Finalizes Adoption Of New Constitution

Tunisia Live reports that on Sunday night, Tunisia's National Constituent Assembly (NCA) give its final approval to the country's new constitution which has been drafted in a process that has taken nearly two years. The vote was 200 in favor; 4 against; and 12 abstentions. By receiving over a two-thirds vote, the document does not need to go to a popular referendum. Yesterday, the formal adoption was finalized as President Moncef Marzouki, Prime Minister Ali Laarayedh, and NCA Speaker Mustapha Ben Jaafar signed the document in a ceremony attended by political and civil society leaders as well as representatives of foreign governments. (Tunisia Live). The new constitution (full text in English) contains 146 articles, including the following that relate to the relationship of religion and state:

Preamble.... Expressing our people’s commitment to the principles of Islam and its open and moderate objectives, on sublime human values and the principles of universal human rights, inspired by our civilizational heritage accumulated over successive epochs of our history, and from our enlightened reformist movements that are based on the foundations of our Islamic-Arab identity and to the acquisitions of human civilisation, and adhering to the national gains achieved by our people; ...

Based on the dignified status of humankind; enhancing our cultural and civilizational affiliation to the Arab Islamic nation, on the basis of national unity that is based on citizenship, brotherhood, solidarity, and social justice; with a view to supporting Maghreb unity as a step towards achieving Arab unity, integrating with the Muslim and African nations, and cooperating with the peoples of the world; supporting the oppressed everywhere, and the people’s right to self-determination, and supporting just liberation movements at the forefront of which is the Palestinian liberation movement; and standing against all forms of occupation and racism; .... [Note: Article 143 provides: "This Constitution’s preamble is deemed an integral part of the Constitution."]

Article 1: Tunisia is a free, independent, sovereign state; its religion is Islam, its language Arabic, and its system the Republic. This article cannot be amended....

Article 6: 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 away from partisan instrumentalisation. The state is committed to spreading the values of moderation and tolerance, and to protect the sacred and prevent it from being attacked, and is also committed to prohibit charges of apostasy (“takfir”) and incitement to hatred and violence, and to combat them.....

Article 20: All citizens, male and female alike, have equal rights and duties, and are equal before the law without any discrimination.....

Article 30: Freedom of opinion, thought, expression, media and publication shall be guaranteed. These freedoms shall not be subject to prior censorship....

Article 38.... The state shall guarantee the right to free public education at all stages and shall seek to provide the necessary means to achieve a high quality of education and training, as it shall work to embed youth in the Arab-Islamic identity and strengthen and promote the Arabic language and expand its usage, and openness to foreign languages and cultures, and dissemination of the culture of human rights.....

Article 46: Children are entitled to dignity, health, moral upbringing, and education from their parents and the state....

Article 125: The Human Rights Commission shall oversee the extent to which human rights and freedoms are respected, and promote human rights and freedoms....

Monday, January 27, 2014

White House Recognizes International Holocaust Remembrance Day

Today, President Obama issued a statement (full text) on International Holocaust Remembrance Day. He said in part:

Yet even on a day of solemn remembrance, there is room for hope. For January 27th is also the day Auschwitz was liberated 69 years ago. The noble acts of courage performed by liberators, rescuers, and the Righteous Among Nations remind us that we are never powerless. In our lives, we always have choices. In our time, this means choosing to confront bigotry and hatred in all of its forms, especially anti-Semitism. It means condemning any attempts to deny the occurrence of the Holocaust. It means doing our part to ensure that survivors receive some measure of justice and the support they need to live out their lives in dignity.

Meanwhile, according to JTA, on Friday the White House announced that it is appointing HHS staffer Aviva Sufian as Special Envoy for U.S. Holocaust Survivor Services. Her work will be directed toward survivors living in poverty and those not receiving services for which they are eligible.

Cert. Petition Seeks Contraceptive Mandate Accommodation Review By Supreme Court Before Circuit Court Decides Appeal

Last week, the Catholic non-profit pro-life organization Priests for Life filed a petition for certiorari (full text) with the U.S. Supreme Court in Priests for Life v. U.S. Department of Health and Human Services, (filed 1/23/2014). The petition asks for high court review even though the Court of Appeals for the D.C. Circuit has not yet ruled in a pending appeal. In the case, a federal district court held that no substantial burden was placed on the group's free exercise by requiring it to complete the self-certification form to opt into the Affordable Care Act contraceptive coverage accommodation for religious non-profits. (See prior posting.) AFLC issued a press release announcing the filing of the petition.

2nd Circuit: Chinese Asylum Applicant Wrongly Questioned By IJ About Doctrinal Knowledge

In Chang Qiang Zhu v. Holder, (2d Cir., Jan. 23, 2013), the U.S. Second Circuit Court of Appeals vacated and remanded for further proceedings the denial by an Immigration Judge of an application for asylum, withholding of removal and relief under the Convention Against Torture brought by a Chinese Christian man who claimed religious persecution in China. The court said in part:

The agency based its credibility determination primarily on Zhu’s testimony concerning his telling of the story of the biblical figure Paul to Chinese authorities during his detention. The agency found that Zhu’s demeanor while testifying was “hesitant” and “evasive” and his account of the story was inconsistent. The record, however, reveals that Zhu’s demeanor began to suffer only when the IJ required him to provide highly detailed information regarding the story of Paul. Indeed, while Zhu was able to explain that Paul was a disciple of Jesus Christ who persecuted Christians, and later converted to Christianity after being blinded on the road to Damascus, he struggled to answer more detailed questions such as what form Paul’s persecution of Christians took or in what year Paul converted to Christianity. By inquiring of Zhu and expecting him to provide this extensive detail, virtually all of which he testified to accurately in any event, the IJ contravened our holding in Rizal v. Gonzales, 442 F.3d 84,90 (2d Cir. 2006), which prohibits relying on a petitioner’s lack of doctrinal knowledge as the basis for an adverse credibility determination or denying relief.

The court also concluded that neither the Immigration Judge nor the Board of Immigration Appeal adequately considered Zhu's claim of a pattern or practice of persecuting Christians in China. The New York Daily News last week reported on the decision.

Sunday, January 26, 2014

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.

Saturday, January 25, 2014

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.]

Friday, January 24, 2014

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.

Thursday, January 23, 2014

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.

Wednesday, January 22, 2014

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...."

Tuesday, January 21, 2014

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.)

Monday, January 20, 2014

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.

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."

Sunday, January 19, 2014

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.

Saturday, January 18, 2014

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.