Religion Clause

Tuesday, February 11, 2014

Nevada Tells 9th Circuit It Will No Longer Defend Its Same-Sex Marriage Ban

According to AP, Nevada's attorney general yesterday filed a statement with the U.S. 9th Circuit Court of Appeals informing the court that the state will no longer defend its ban on same-sex marriage. The move comes in the pending appeal in Sevcik v. Sandoval, in which a Nevada federal district court upheld the ban against an Equal Protection Clause challenge. (See prior posting.) The attorney general told the court:

After thoughtful review and analysis, the state has determined that its arguments grounded upon equal protection and due process are no longer sustainable.

Nevada's Governor Brian Sandoval agrees with the attorney general.

As described by SCOTUSblog, the state changed its position after considering the 9th Circuit's decision last month in SmithKline Beecham Corp. v. Abbott Laboratories, (9th Cir., Jan. 21, 2014) holding that heightened scrutiny must be applied to equal protection claims based on sexual orientation. The case held that peremptory jury challenges may not be made on the basis of sexual orientation.

Developments In Utah Same-Sex Marriage Litigation

Numerous amicus briefs have been filed in the 10th Circuit in Kitchen v. Herbert, the appeal of the Utah federal district court's decision striking down the ban on same-sex marriage in Utah. Of particular interest is the amicus brief (full text) filed yesterday by major religious organizations urging reversal of the district court. The brief, filed by the United States Conference of Catholic Bishops; National Association of Evangelicals; The Church of Jesus Christ of Latter-Day Saints; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; and Lutheran Church—Missouri Synod argues:

Undermining the husband-wife marital institution by redefining it to include same-sex couples will, in the long term, harm vital child-welfare interests that only the husband-wife definition can secure. The result will be more mothers and fathers concluding that the highest end of marriage is not the welfare of their children but the advancement of their own life choices. We know, from personal experience over numerous decades of ministering to families and children, that more focus on satisfying adult needs will not benefit vulnerable children.

The Salt Lake Tribune has a summary of the over 20 briefs filed in support of Utah's position, and reports at more length on the brief filed by religious organizations.

Meanwhile, last month the ACLU filed a lawsuit (press release) seeking to require Utah to recognize as valid the more than 1000 same-sex marriages performed in the state after the district court struck down the ban and before the U.S. Supreme Court stayed the decision. The complaint (full text) in Evans v. State of Utah, (UT 3d Dist. Ct., filed 1/21/2014), argues that by not fully recognizing the marriages, the state has deprived couples of liberty and property interests protected by the due process clause of the Utah constitution and by 42 USC Sec. 1983:

By placing recognition of their marriages “on hold,” the State of Utah has placed the legal status of all same-sex married couples, including Plaintiffs and their families and children, in legal limbo and created uncertainty as to their rights and status in virtually all areas of their lives.

The ACLU provides links to other documents and items relating to the case.

Home Schooler Sues To Play On Christian School's Atlhletic Teams

The Central Pennsylvania Patriot-News yesterday reported on a lawsuit by the mother of a home-schooled high school freshman who wants to play on a Christian school's soccer and basketball teams. Under the rules of the Pennsylvania Intercollegiate Athletic Association, home schoolers are allowed to play on public school teams in district in which they live. Here the parents want the boy to be able to participate on the teams of Covenant Christian Academy, also located in the boy's home district. Plaintiff says that PIAA is misinterpreting its own rules, and is also denying her the constitutional right to direct the education of her son. The suit was originally filed in state court, but defendants are seeking to remove it to federal court.

St. Louis Diocese Provides Court With List of Accused Priests and Victims

According to the St. Louis Post-Dispatch yesterday, the Catholic Archdiocese of St. Louis has complied with a trial court's order to turn over to the court and plaintiff's attorney in a pending lawsuit the names of priests who have been accused of sexually abusing minors over a 20-year period, as well as contact information of the victims. The order comes in a suit filed in 2011 by a woman who says she was abused by a now-defrocked priest. Last week the Missouri Supreme Court rejected the Archdiocese's challenge to the trial court's order. The list remains under seal. The trial court will appoint an attorney to make first contact with the victims, rather than having that contact come from plaintiff's lawyer.

Monday, February 10, 2014

Neighbor Sues Over Home's Use As Synaogue

KDFW News reported last week on a lawsuit in Dallas, Texas against a rabbi who is using a home in a residential neighborhood as a meeting place for his 25-person Orthodox Jewish congregation. David Schneider, who lives in the home across the street and was recently elected head of the homeowners association, says that the rabbi is violating homeowners association rules. Schneider is seeking $50,000 in damages contending that the synagogue has lowered his property values. Religious services are held in the synagogue twice a day, and Rabbi Yaakov Rich has filed a certificate with the City of Dallas notifying it of his use of the building as a synagogue, known as Congregation Toras Chaim. Liberty Institute is defending the synagogue, contending that the Religious Land Use and Institutionalized Persons Act protects the right to use the home for religious meetings and worship. (Press release.)

New Mexico Supreme Court Upholds Cultural Property Designation For Mount Taylor

In Rayellen Resources, Inc. v. New Mexico Cultural Properties Review Committee, (NM Sup. Ct., Feb. 6, 2014), the New Mexico Supreme Court upheld the decision of the state's Cultural Properties Review Committee to recognize 400,000 acres of public land on Mount Taylor as a registered cultural property under the New Mexico Cultural Properties Act. The mountain is a sacred site for the Navajos and several other Native American tribes. The court held that it was permissible for the Committee to use federal National Register guidelines and then went on to reject arguments that the Committee has misapplied these guidelines:

the Committee made numerous findings relating to Mount Taylor’s eligibility for listing, including that the nomination satisfied three of the four possible federal criteria because Mount Taylor was associated with significant contributions to our history and with persons significant in our past, and it offers a past and potential future yield of information about our history. Although these findings undoubtedly include a religious component, because religion is part of culture and history, the findings are nonetheless based primarily on historical evidence.... [S]ubstantial evidence supports the Committee’s findings on Mount Taylor’s historic eligibility....

The court, applying the Lemon test, also rejected the argument that the listing of Mount Taylor violates the Establishment Clause.

Sunday, February 09, 2014

Recent Prisoner Free Exercise Cases

In Wall v. Wade, (4th Cir., Feb. 3, 2014), the 4th Circuit vacated a Virginia federal district court's dismissal of damage claims and held that it is unconstitutional for a prison to condition inmates' participation in Ramadan observances on their providing some physical indicia of Islamic faith, such as a Quran, Kufi, prayer rug, or written religious material obtained from the prison Chaplain’s office.

In Holtz v. Karr, 2014 U.S. Dist. LEXIS 12519 (WD WA, Jan. 23, 2014), a Washington federal magistrate judge recommended that a Muslim inmate be permitted to proceed with his claims against the county alleging that jail policies interfere with his ability to practice Islam and are religiously discriminatory. Plaintiff's complaint covers religious living units, diet, and religious dress, items and prayer.

In Stevens v. Pennsylvania Department of Corrections, 2014 U.S. Dist. LEXIS 12586 (MD PA, Jan. 31, 2014), a Pennsylvania federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 13098, Jan. 14, 2014) and dismissed claims by a Native American inmate for $1 billion in damages for crushing his spirits; a "review of all religious freedoms towards Native American[s]"; and a written apology published in a newspaper after he did not hear his name called out for the Hoop worship service.

In Mitchell v. Fox, 2014 U.S. Dist. LEXIS 13845 (ED WA, Feb. 4, 2014), a Washington federal district court dismissed a Muslim inmate's complaint that his copy of the Qur'an was damaged and later taken and that two prayer books were taken during a search. He could have obtained another copy of the Qur'an from the chaplain.

In Gray v. Lewis, 2014 U.S. Dist. LEXIS 13899 (ND CA, Feb. 4, 2014), a California federal district court permitted an inmate who was a follower of the Yahweh religion to move ahead with his complaint that he was denied kosher meals.

In Fowler v. CDCR, 2014 U.S. Dist. LEXIS 13922 (ED CA, Feb. 3, 2014) and Nible v. CDCR, 2014 U.S. Dist. LEXIS 13924 (ED CA, Feb. 4, 2014), a California federal magistrate judge dismissed with leave to amend complaints by inmates that they were deprived of outdoor worship space chapel access, religious items and funds to practice the Asatru/Odinic religion, while mainstream religions were supported.

In Palermo v. New Hampshire State Prison, 2014 U.S. Dist. LEXIS 14096 (D NH, Feb. 4, 2014), a New Hampshire federal district court allowed an inmate to move ahead with his complaint that prison officials refused to recognize his religion; provide him with religious items or a religious diet; or allow him to receive religious posters or attend group worship.

In Ali v. Stephens, 2014 U.S. Dist. LEXIS 14460 (ED TX, Feb. 4, 2014), a Texas federal magistrate judge granted a Muslim inmate a TRO and preliminary injunction allowing him to wear a one-quarter inch beard, but denied a TRO and preliminary injunction on his request to wear a full beard and to wear his kufi cap throughout the prison at all times.

In Reiske v. Bruno, 2014 U.S. Dist. LEXIS 14696 (D CT, Feb. 6, 2014), a Connecticut federal district court refused to grant an inmate who is a second degree Wicca priest a TRO or preliminary injunction to require prison authorities to recognize his Wicca religion and allow him to purchase various religious items such as candles, oils, bowls and rope.

In Fox v. Stephens, 2014 U.S. Dist. LEXIS 15272 (SD TX, Feb. 6, 2014), a Texas federal district court dismissed an inmate's free exercise claims because they were not appropriately raised by a habeas corpus action and because the suit is subject to the 3-strike bar for frivolous in forma pauperis litigation.

Nigeria Cracking Down on Gays

Today's New York Times carries a long front-page article titled Wielding Whip and a Hard New Law, Nigeria Tries to ‘Sanitize’ Itself of Gays. Here is an excerpt:

Rights advocates say they have recorded arrests in multiple Nigerian states, but the country’s north has experienced the toughest crackdown. Mr. Jonathan’s national ban has redoubled the zeal against gay people here and elsewhere, according to officials and residents in Bauchi, where Shariah law prevails and green-uniformed Hisbah, or Islamic police officers, search for what is considered immoral under Islam.

“It’s reawakened interest in communities to ‘sanitize,’ more or less, to talk about ‘moral sanitization,’ ” Dorothy Aken’Ova, executive director of Nigeria’s International Center for Reproductive Health and Sexual Rights, said of the law. “Where it was quiet before, it’s gotten people thinking, ‘Who is behaving in a manner that may be gay?’ It’s driven people into the closet.”...

“God has not allowed this thing; we are not animals,” said Umar Inuwa Obi, 32, a student who said he was in the mob that hurled stones and bottles at the court and the prison van transporting the gay suspects two weeks ago.

“In Shariah court you are supposed to kill the man,” Mr. Obi said, adding that he favored this judgment. “But the government has refused. That’s why they started throwing stones and bottles.”

(See prior related posting.)

Justice Department Will Give Nation-Wide Recognition To Lawful Same-Sex Marriages

In a speech (full text) to the Human Rights Campaign dinner last night, U.S. Attorney General Eric Holder announced that the Justice Department will issue a new policy memorandum on Monday to formally instruct all Justice Department employees to give lawful same-sex marriages full and equal recognition in carrying out Justice Department activities in all states.

This means that same-sex spouses will be able to refuse to testify against their spouses in federal court proceedings, even in states that do not recognize same-sex marriages. Same-sex marriages will be treated the same as heterosexual marriages in bankruptcy proceedings, allowing same-sex couples to file jointly for bankruptcy and making alimony owed to a former same-sex spouse generally non-dischargeable. Federal inmates in same-sex marriages will have the same spousal visitation, furlough, correspondence and compassionate release rights as opposite-sex spouses. Same -sex spouses will be recognized in various benefit programs administered by the Department of Justice-- the Radiation Exposure Compensation Program; the September 11th Victim Compensation Fund; and the Public Safety Officers’ Benefits Program.

HRC issued a press release reacting to Holder's remarks, saying: "Today, our nation moves closer toward its ideals of equality and fairness for all."

UPDATE: Here is the Memorandum issued by the Attorney General.

Saturday, February 08, 2014

Magistrate Recommends Dismissal of Suit Over Disturbing Church Bells

In Devaney v. Kilmartin, (D RI, Feb. 6, 2014), a Rhode Island federal magistrate judge recommended dismissing a Narragansett, Rhode Island resident's complaint about constantly ringing church bells. The court described plaintiff's complaint:

the Amended Complaint focuses on St. Thomas More Church’s electronically-amplified bells, located across the street from Mr. Devaney’s home, which he contends have gonged and pealed 700 times per week at upwards of 100 decibels for at least thirteen years. The Amended Complaint adds another nearby church, St. Peter’s Episcopal Church, which Mr. Devaney avers has rung its electronically-amplified bells hourly during daylight “beginning after Plaintiff moved to his home” eighteen years ago. Mr. Devaney alleges that the constant ringing has caused emotional distress and denied him peaceful enjoyment of his property....

Recommending dismissal without prejudice, the magistrate judge concluded:

While Mr. Devaney’s exasperation is clear as a bell in his Amended Complaint, the connection between his pique and a plausible federal cause of action is not. It is conceivable that he may have an important claim arising under the United States Constitution; however, his pleading does not articulate one.

WPRI reports on the decision.

Australian Court Says Wearing Kippah Does Not Excuse Absence of Bike Helmet

In Thomas v. Kent, (WASC, Feb. 4, 2014), the Supreme Court of Western Australia upheld the conviction of Simon Thomas for riding a bicycle without wearing a protective helmet. Thomas claimed that he was not wearing his helmet because he was wearing a kippah (a Jewish skullcap). Thomas said that he wears a kippah on three occasions each year, one of which is his birthday. But the court said that there had been no evidence introduced as to the religious reason for not placing a helmet over the skullcap, nor was there evidence that wearing a kippah made wearing a helmet impractical. News.com.au reports on the decision.

Pentagon Says New Supplier For Kosher MREs Will Be Found

According to a JTA report earlier this week, the Pentagon says it is committed to supporting the religious dietary requirements of service members. The statement comes after Agudath Israel of America complained to the top military chaplain that a solicitation by the Defense Logistics Agency last April for bids to cover halal and kosher MREs (meals ready-to-eat) was reissued last month to cover only halal MREs. The Defense Department acknowledges it was unsuccessful in obtaining bids for kosher MREs, but says it has issued a new solicitation and expects to select a supplier by April. Meanwhile it has sufficient kosher MREs on hand to meet the needs of Jewish members of the military deployed to the Central Command region (which includes the Middle East and Afghanistan).

Friday, February 07, 2014

In Fragmented Decision, Washington Supreme Court Finds Discrimination Exemption For Religious Non-Profits Unconstitutional As Applied

The Washington state Supreme Court yesterday answered certified questions from a federal district court in a fragmented decision. In Ockletree v. Franciscan Health System, (SA Sup. Ct., Feb. 6, 2014), the state's high court responded to two questions of state constitutional law: (1) Does the exclusion in the Washington Law Against Discrimination for religious non-profit organizations violate the state constitution's equal privileges and immunities clause or its free exercise clause. (2) If not, is the exclusion unconstitutional when applied to prevent a suit by an employee who claims discrimination unrelated to any religious purpose, practice or activity of defendant. The suit involved a claim of discrimination on the basis of race and disability in the firing of a security guard by a Catholic hospital.

In the lead opinion, 4 justices answered the first certified question in the negative, concluding that "WLAD's definition of 'employe'... does not involve a privilege or immunity" and "does not involve the appropriation of money or application of property, and therefore does not fall within the prohibition of article I, section 11 's establishment clause."

Dissenting, 4 justices disagreed, saying: "WLAD grants religious nonprofits immunity from a right of action that belongs to all Washington citizens by virtue of citizenship. Under the privileges and immunities clause, the legislature cannot grant such immunity to one class of corporations unless there are reasonable grounds for excluding others. Because WLAD grants immunity from discrimination claims that are unrelated to the employer's religious beliefs, it is not necessary to alleviate a concrete and substantial burden on religious exercise."

In a separate opinion, Justice Wiggins provided a 5th vote for answering the first certified question in the negative, concluding that the exclusion is not unconstitutional on its face. However he also provided a fifth vote for answering the second certified question in the affirmative, but only after insisting that the second certified question needs to be reframed, saying:

The original second certified question improperly focused on whether the employer discriminated on religious grounds, which requires courts to engage in excessive entanglement with religious doctrines and practices. Washington courts would be asked to determine what constitutes a particular religion's purpose, practice, and activity and determine whether the reason for the discrimination is related. This is an intrusive inquiry into religious doctrine.

When the exemption is applied to a person whose job qualifications and responsibilities are unrelated to religion, there is no reasonable ground for distinguishing between a religious organization and a purely secular organization. Therefore, I agree with the dissent that the exemption is invalid when applied to an employee like Ockletree, assuming that there is no relationship between his duties and religion or religious practices.

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

Law Prof-Rabbi Resigns From Rabbinical Group To Avoid Ethics Probe Over Online Pseudonyms

TJC reported yesterday that Emory University law professor Rabbi Michael Broyde has resigned from the Rabbinical Council of America rather than face an ethics investigation by the organization over charges that he created false identities to use online to submit letters to Jewish journals, post blog comments (including ones commenting on his own work), and to join a rival rabbinical group (International Rabbinic Fellowship) to gain access to its listserv. (See prior posting.) The RCA had already given Broyde an indefinite leave of absence from his membership and from his longstanding role as a rabbinical court judge at the Beit Din of America. Apparently Broyde's latest resignation applies only to the RCA and not to his Bet Din role. Previously Emory Law School cleared Broyde of violating university rules since his conduct related only to activities in his rabbinic capacity. (See prior posting.)

Cert. Petitions On Prison Grooming Rules

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Jones v. Thompson. In the case (decided as Knight v. Thompson), the 11th Circuit rejected several Native American inmates' RLUIPA challenges to Alabama prison system grooming rules that prohibit them from wearing long hair as required by their religion. The 11th Circuit held that the short-hair policy for male inmates is the least restrictive means of furthering compelling governmental interests in security, discipline, hygiene and safety. (See prior posting.) A cert. petition (full text) was filed last September in another unrelated case also raising the constitutionality of prison grooming policies-- Holt v. Hobbs. Whether or not to grant cert. in that case, involving a Muslim inmate, is on the calendar for the Court's Feb. 21 conference. (See prior related posting.) [Thanks to Douglas Laycock for the lead.]

Suit Challenges Addition of Cross To Los Angeles County Seal

Yesterday, the ACLU announced that it has filed a federal lawsuit on behalf of a number of plaintiffs challenging the recent decision by the Los Angeles County Board of Supervisors to modify the county seal by adding a cross atop the depiction of the San Gabriel Mission already on it. (See prior posting.) The complaint (full text) in Davies v. Los Angeles Board of County Supervisors, (CD CA, filed 2/6/2014), contends that the cross violates the Establishment Clause as well as provisions in the California constitution that protect free exercise and bar the expenditure of public funds to aid religion. Los Angeles Times reports on the filing of the lawsuit.

Cert. Petition Filed In California Change Therapy Ban Case

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Pickup v. Brown. In the case, the 9th Circuit 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. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the cert. petition.

Scottish Appeals Panel Upholds Catholic Agency's Adoption Criteria

In St. Margaret's Children and Family Care Society v. Office of the Scottish Charity Regulator, (SCAP, Jan. 31, 2014), the Scottish Charity Appeals Panel overturned the decision of the Office of the Scottish Charity Regulator that had directed a Catholic adoption agency to end its adoption placement preference for Catholic couples who have been married for at least two years and its placing on low preference non-Catholics and same-sex couples (since they can only enter civil partnerships). The Appeals Panel held that the agency is a religious organization that can assert its, and its members, right to freedom of religious expression under Art. 9 of the European Convention on Human Rights. Discussing application of the Equality Act, the Appeals Panel said:

The Panel has decided that there is indirect discrimination but that indirect discrimination is allowed in terms of The Equality Act because it is a proportionate means of achieving a legitimate aim. The Panel found both the charities exception and the religious exception as contained in The Equality Act to apply....

BBC News reports on the decision. Law & Religion UK blog discusses the opinion at greater length.

Thursday, February 06, 2014

Obama Emphasizes International Religious Freedom At National Prayer Breakfast

This morning, President Obama spoke at the 62nd annual National Prayer Breakfast at the Washington Hilton Hotel. As reported on the White House blog, the First Lady, the Vice President and many legislators, officials and clergy also attended. In his remarks (full text), the President devoted extensive time to issues of religious freedom around the world, saying in part:

We sometimes see religion twisted in an attempt to justify hatred and persecution against other people just because of who they are, or how they pray or who they love. Old tensions are stoked, fueling conflicts along religious lines, as we’ve seen in the Central African Republic recently....

Our faith teaches us that in the face of suffering, we can’t stand idly by.....[F]reedom of religion matters to our national security.... [T]here are times when we work with governments that don’t always meet our highest standards, but they’re working with us on core interests.... At the same time, we also deeply believe that it’s in our interest, even with our partners, sometimes with our friends, to stand up for universal human rights. So promoting religious freedom is a key objective of U.S. foreign policy.....

It is not always comfortable to do, but it is right. When I meet with Chinese leaders ... I stress that realizing China’s potential rests on upholding universal rights, including for Christians, and Tibetan Buddhists, and Uighur Muslims....

When I meet with the President of Burma... I’ve said that Burma’s return to the international community depends on respecting basic freedoms, including for Christians and Muslims. I’ve pledged our support to the people of Nigeria, who deserve to worship in their churches and mosques in peace, free from terror. I’ve put the weight of my office behind the efforts to protect the people of Sudan and South Sudan, including religious minorities.

As we support Israelis and Palestinians as they engage in direct talks, we’ve made clear that lasting peace will require freedom of worship and access to holy sites for all faiths....

More broadly, I’ve made the case that no society can truly succeed unless it guarantees the rights of all its peoples, including religious minorities, whether they’re Ahmadiyya Muslims in Pakistan, or Baha’i in Iran, or Coptic Christians in Egypt. And in Syria, it means ensuring a place for all people -- Alawites and Sunni, Shia and Christian.

Going forward, we will keep standing for religious freedom around the world. And that includes, by the way, opposing blasphemy and defamation of religion measures, which are promoted sometimes as an expression of religion, but, in fact, all too often can be used to suppress religious minorities.... We continue to stand for the rights of all people to practice their faiths in peace and in freedom. And we will continue to stand against the ugly tide of anti-Semitism that rears it's ugly head all too often. I look forward to nominating our next ambassador-at-large for international religious freedom to help lead these efforts....

And finally, as we build the future we seek, let us never forget those who are persecuted today, among them Americans of faith. We pray for Kenneth Bae, a Christian missionary who’s been held in North Korea for 15 months, sentenced to 15 years of hard labor.... Kenneth Bae deserves to be free....

We pray for Pastor Saeed Abedini. He’s been held in Iran for more than 18 months, sentenced to eight years in prison on charges relating to his Christian beliefs.... [W]e call on the Iranian government to release Pastor Abedini so he can return to the loving arms of his wife and children in Idaho.... And as we pray for all prisoners of conscience, whatever their faiths, wherever they’re held....

C-Span has a video of the full 90 minutes of speakers at today's National Prayer Breakfast. Time has a brief summary of highlights.

British Court Issues Summons To Mormon Church Head Alleging Teachings Violate Fraud Act

In Britain last week, a Magistrate's Court issued two nearly identical summonses (full text 1, 2) to Thomas S. Monson, president of the Church of Jesus Christ of Latter-day Saints, ordering him to appear before the court to answer to charges that seven specified teachings of the Mormon church violated Britain's Fraud Act 2006. The Telegraph reported yesterday that the summonses stem from a little used procedure in which a private citizen who claims to have evidence that someone has committed a crime can ask a magistrate to summons the alleged violator to respond to charges. Here the private prosecution was filed by Thomas Phillips, a former Mormon who runs MormonThink, a website highly critical of the LDS Church. The summonses allege that Stephen Bloor, a former Mormon bishop, and Christopher Denis Ralph, a former convert, were misled by Mormon teachings to pay an annual tithe to the Church. Volokh Conspiracy discusses the case further.

Church's Challenge To Rezoning Denial Dismissed

In Alger Bible Baptist Church v. Township of Moffatt, (ED MI, Feb. 5, 2014), a Michigan federal district court dismissed a church's constitutional and RLUIPA challenges to a township's refusal to rezone land in a commercial district in which churches are not a permitted use. The court said:

[Plaintiff] simply alleges that the Zoning Ordinance prevents it from practicing its religion in the precise location where it wants to. But, worthy of emphasis here, a church has no “constitutional right to build its house of worship where it pleases.”

The court's dismissal of plaintiff's equal protection and RLUIPA equal terms claims were without prejudice. Plaintiff's 1st Amendment and other RLUIPA claims were dismissed with prejudice.

U.N. Committee Report Critical of Vatican on Protection of Children

On January 31, the United Nations Committee on the Rights of the Child finished its 65th Session after adopting its concluding observations and recommendations on six nations, including the Holy See. (Press release.) As reported yesterday by CNN, the Committee's Concluding Observations on the Second Periodic Report of the Holy See (full text) harshly criticized the Vatican's handling of child sexual abuse within the Church. The 16-page report says in part:

The Committee is particularly concerned that in dealing with allegations of child sexual abuse, the Holy See has consistently placed the preservation of the reputation of the Church and the protection of the perpetrators above children’s best interests, as observed by several national commissions of inquiry....

The Committee is concerned about the situation of children born of Catholic priests, who, in many cases, are not aware of the identity of their fathers. The Committee is also concerned that the mothers may obtain a plan for regular payment from the Church until the child is financially independent only if they sign a confidentiality agreement not to disclose any information....

The Committee is particularly concerned that: ... Due to a code of silence imposed on all members of the clergy under penalty of excommunication, cases of child sexual abuse have hardly ever been reported to the law enforcement authorities....; Reporting to national law enforcement authorities has never been made compulsory..... Church authorities, including at the highest levels of the Holy See have shown reluctance and in some instances, refused to cooperate with judicial authorities and national commissions of inquiry.... Limited efforts have been made to empower children enrolled in Catholic schools and institutions to protect themselves from sexual abuse.

(See prior related posting.) A Vatican Radio interview with Archbishop Silvano Tomasi, Permanent Observer of the Holy See to the United Nations in Geneva, and a statement from the Vatican react to the report. Both of these reactions include expressions of concern apparently directed to the U.N. report's call for the Vatican to review its position on abortion and identify circumstances under which it can be permitted.

Wednesday, February 05, 2014

Lawsuit By MLK's Estate Seeks His Famous Bible and Nobel Medal From King's Daughter

The Atlanta Journal Constitution reports that a lawsuit was filed in state court in Georgia last Friday by the estate of Martin Luther King, Jr. (controlled by two of King's children, Martin III and Dexter) against King's daughter Bernice seeking to force Bernice to turn over to the King estate Dr. King's "traveling" Bible and his Nobel Prize medal. The Bible is the one President Barack Obama used for his ceremonial swearing-in on MLK Day in 2013. King's heirs agreed in 1995 to sign over rights to various items they inherited to the King estate. In a statement, Bernice King says she is refusing to turn the items over because her brothers want to sell them to a private buyer. She explained:

As a minister of the Gospel, the thought of selling my daddy’s Bible troubles my mind, vexes my spirit and weighs on my soul. The thought of profiting from the sale of the Peace Prize Medal, which my father accepted 50 years ago this year on behalf of the greatest demonstration of peace this nation has ever seen, is spiritually violent, unconscionable, historically negligent, and outright morally reprehensible.

The three siblings have been involved in various lawsuits against one another since 2008.

Tennessee Magistrate Who Objected To Parents' Naming Child "Messiah" Is Fired

Reuters reported yesterday that Tennessee Child Support Magistrate Lu Ann Ballew who gained widespread attention after she insisted that parents change their child's first name from "Messiah" to "Martin" has been fired from her position, effective last Friday, by the presiding judge of Tennessee's 4th judicial district. Ballew told the child's parents-- who had a dispute only over the child's last name-- that: "the word Messiah is a title and it's a title that has only been earned by one person and that one person is Jesus Christ." Her decision was reversed by a chancery court judge. Ballew has been charged with ethics violations for her action by the Tennessee Board of Judicial Conduct. (See prior posting.)

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.