Religion Clause

Thursday, February 27, 2014

Protester At Center of SCOTUS Decision On Military Base Protests Was Catholic Worker Movement Adherent

Yesterday the U.S. Supreme Court in United States v. Apel, (US Sup. Ct., Feb. 26, 2014), held that a federal statute which makes it a crime to re-enter a military installation after the base commander orders a person not to do so applies to a protest area at Vandenberg Air Force Base that is open to the public. The Court describes John Dennis Apel, the protester involved in the case, as an antiwar activist. It says nothing about the religious basis for Apel's protests found in his involvement in the Catholic Worker Movement. Here is some insight into Apel's religious beliefs from a Dec. 2013 article reprinted on the Pacific Life Community's website:

[Apel] and a dedicated core of volunteers — including his wife of 15 years, Tensie — provide food and clothes to the community’s poor. They run a summer children’s program and a weekly free medical clinic.

The couple are devotees of the Catholic Worker movement, a social reform cause committed to social justice, pacifism and voluntary poverty that they’ve dedicated most of their adult lives to promoting.

They receive no salary — the couple and their two young children survive on his Social Security income, as well as donations and the charity of others.

For more than a dozen years, as part of Mr. Apel’s deep peace-oriented belief system, he has regularly stood outside the gates of Vandenberg, protesting what he believes is an immoral military mission. He has been arrested 15 times, and received “ban and bar” citations that restrict his ability to protest near the classified military installation.

Wednesday, February 26, 2014

New Ukraine Acting President Turchynov Is Baptist Pastor

Christianity Today reports that Ukraine's new Acting President who took office on Sunday is not only a well-respected opposition politician, but is also a Baptist pastor. BBC reports that the interim President, Olexander Turchynov, was the top aide to former prime minister Yulia Tymoshenko (who was imprisoned by the now ousted President Viktor Yanukovych). Turchynov preaches regularly at one of the Baptist churches in Kiev. In an article today, Religion News Service speculates:

Acting President Oleksandr Turchynov is neither Ukrainian Orthodox nor Eastern Rite Catholic, and that may be the key to his success at a time when fissures between East and West are threatening to split the country,

Missouri County Treasurer Will Accept Same-Sex Marriages From Other States In Unclaimed Property Claims

According to Monday's Columbia Daily Tribune, in Boone County, Missouri (which includes Columbia) County Treasurer Nicole Galloway has announced she will recognized same-sex marriages from out of state. This means that after the death of a spouse, a surviving same-sex spouse can obtain unclaimed property of the deceased being held by the county. The county treasurer took the step despite the provision in Sec. 33 of the Missouri Constitution that provides: "That to be valid and recognized in this state, a marriage shall exist only between a man and a woman." Galloway said: "In Boone County and in my office, we accept legal documents from every state in America, and this is just an extension of that." [Thanks to Alliance Alert for the lead.]

Lesbian Employee Forced To Watch Religious Anti-Gay Video Loses Claim For Harassment

As reported by the Santa Rosa Press Democrat, a Sonoma County, California trial court yesterday issued a tentative decision (full text) in White v. GC Micro Corp., (Cal. Super. Ct., Feb. 25, 2014). Plaintiff in the case, a lesbian in a committed domestic partnership, was recruited by GC Micro's CEO to move from Colorado to California to work for the company. She was fired after 5 months. The supervisor in charge of training sales staff made derogatory remarks about plaintiff's sexual orientation and lifestyle, and required her to watch a video featuring a minister who had "outspoken disdain for homosexuality" and believed "that all homosexuals are sinners." However, according to the court, plaintiff "does not allege that the video contained any inappropriate material." The court allowed plaintiff to move ahead with a sexual orientation discrimination claim and a fraud claim against the company, but dismissed with leave to amend the claims against the CEO and supervisor personally. The court dismissed completely plaintiff's claim for harassment.

Suit Challenges World War I Memorial Cross

A humanist organization and three individuals yesterday filed suit challenging the constitutionality of a 40-foot tall cross erected nearly 90 years ago as a memorial to those killed in World War I. The cross is located on a median between roadways in Bladensburg, Maryland. The complaint (full text) in American Humanist Association v. Maryland- National Capital Park and Planning Commission, (D MD, filed 2/25/2014) contends that the county's:

ownership, maintenance and prominent display on public property of the Bladensburg Cross amounts to the endorsement and advancement of religion (and, specifically, an endorsement of and affiliation with Christianity) in violation of the Establishment Clause.

American Humanist Association issued a press release announcing the filing of the lawsuit.

Tuesday, February 25, 2014

Universities In Crossfire Over Bibles In Hotel Rooms

Two state universities find themselves in the cross fire of rival advocacy groups over the issue of Gideon Bibles in the night stands at university hotels and conference centers. The Blaze reported yesterday that after complaints by the Freedom from Religion Foundation, Iowa State University's Hotel Memorial Union agreed to remove bibles from in-room night stands and place them instead in its downstairs library and reading room. The University of Wisconsin-Extension also agreed to remove bibles from guest rooms in its conference center. Now however Alliance Defending Freedom has told both universities that the 1st Amendment does not require them to remove the Bibles, and doing so amounts to viewpoint discrimination.

Greek Jews Sue Germany In European Court For Return of Ransom Paid To Nazis

AP reports that the Jewish community of Thessaloniki, Greece last week filed an appeal with the European Court of Human Rights in a suit against Germany seeking to recover the $69 million in ransom paid in 1942 to Nazi occupiers for the release of thousands of Jewish men aged 18-45 who were forced as slave laborers to work on construction projects across Greece. Soon after their release, the city's entire Jewish population was sent to German death camps anyway. Greece's Supreme Court dismissed the lawsuit last year on jurisdictional grounds.

Obama Criticizes Uganda President's Signing of Anti-Gay Law

As he said he would, yesterday Ugandan President Yoweri Museveni signed into law a harsh Anti-Homosexuality bill. CNN reports that at the public signing of the bill, Museveni said he would not allow the West to impose its values on Uganda. In response, the White House issued a statement (full text) reading in part:

Instead of standing on the side of freedom, justice, and equal rights for its people, today, regrettably, Ugandan President Museveni took Uganda a step backward by signing into law legislation criminalizing homosexuality. As President Obama has said, this law is more than an affront and a danger to the gay community in Uganda, it reflects poorly on the country's commitment to protecting the human rights of its people and will undermine public health, including efforts to fight HIV/AIDS....

Court Rules That Illinois Same Sex Couples Can Wed Immediately In Cook County

In Lee v. Orr, (ND IL, Feb. 21, 2014), an Illinois federal district court, in a 4-page opinion, held that Illinois statutes barring same-sex marriages violate the 14th Amendment's equal protection clause by discriminating on the basis of sexual orientation. Illinois has already enacted a law allowing same-sex marriages, but that law does not take effect until June 1. (See prior posting.) In this decision, however, the court ruled that same-sex couples need not wait for June:

There is no reason to delay further when no opposition has been presented to this Court and committed gay and lesbian couples have already suffered from the denial of their fundamental right to marry.

However because the suit was filed only against the Cook County Clerk, the court's decision applies only to marriage licenses issued by Cook County. The Chicago Tribune reports that same-sex couples began lining up for marriage licenses within an hour after the ruling was issued.

Temporary Injunction Issued Stopping North Carolina School Voucher Program

According to the Lincoln (NC) Times-News, after a hearing last Friday, a North Carolina trial court judge issued a temporary injunction barring the state (at least for the time being) from moving ahead with a lottery to choose families to receive school vouchers for use at private schools next year. The state has received over 4,700 applications for the 2,400 vouchers that would be awarded to income-eligible families. According to the Times-News report:

Friday’s arguments focused on what the state constitution allows and whether the legislature improperly took money away from the state’s public schools to give to private schools. Opponents of the bill have argued that vouchers would send money to schools that discriminate based on religion or disability.

One school that has come under fire is Raleigh Christian Academy, which requires its students and parents to sign a contract stating they are in 100 percent agreement with its fundamental doctrinal practices. Their school application states, “we are not a church school for those in cults, i.e. Mormons, Jehovah’s Witness, Christian Science, Unification Church, Zen Buddhism, Unitarianism, and United Pentecostal.”

(See prior related posting.)

Missouri Catholic Diocese Settles Two Abuse Lawsuits

Last week, the Catholic Diocese of Kansas City-St. Joseph settled two separate state court lawsuits stemming from the child pornography activities of priest Shawn Ratigan. AP reports that last Friday a court approved a settlement of $1.275 million in a suit brought by parents whose daughter was photographed in nude and semi-nude poses by Ratigan when the girl was 10 to 12 years old. A $525,000 settlement in a second suit was approved last Wednesday in a suit involving a girl who was photographed by Ratigan when the girl was 9 years old. In each of the suits, thejudge also entered a $500,000 default judgment against Ratigan who was sentenced to 50 years in prison last year. In 2012 Bishop Robert Finn was convicted of a misdemeanor for failing to authorities his suspicion of child abuse by Ratigan. Finn was sentenced to two years probation. (See prior posting.)

Monday, February 24, 2014

Arizona Legislature Passes RFRA Amendments To Allow Businesses To Refuse To Serve Gays On Religious Grounds

The Arizona legislature on Thursday passed and sent to the governor SB 1062 which amends the state's Religious Freedom Restoration Act to extend its coverage to the exercise of religion by corporations and other business organizations. The bill also provides that its protections may be asserted in lawsuits even if the government is not a party. (Background form Arizona Center for Policy.) The controversial bill is designed to permit businesses that oppose homosexuality or same-sex marriage on religious grounds to refuse to provide goods or services if it violates their religious beliefs. ABC News reports that Gov. Jan Brewer is still deciding whether or not to sign the bill. Some suggest that if the controversial bill becomes law, it could lead to boycotts in connection with the Super Bowl scheduled for Arizona next year. AP reports further on the legislation.

Professor Loses On Claim of Retaliation For Religious Speech Aimed At Students

In Payne v. University of South Mississippi, (SD MI, Feb. 21, 2014), a Mississippi federal district court held that the 1st Amendment does not preclude a faculty member at a public university being disciplined for religious speech made as part of his duties as a professor. According to the court:

A graduate student employed in a program administered by Plaintiff ... complained: “Sometimes during conversations with Dr. Payne, religion or Bible verses are usually brought up by him in some way. This makes me and others very uncomfortable. . . . While in Scotland with CJA staff, Dr. Payne made the statement that anyone who is not a Christian is going to hell.” She continued: “I have been told to go pray about certain issues when they are being discussed with Dr. Payne numerous times. . . . I do not feel comfortable when told to go pray from my supervisor instead of dealing with the situation.”

The court dismissed plaintiff's 1st Amendment retaliation claim.

Sunday, February 23, 2014

Recent Prisoner Free Exercise Cases

In Howard v. Connett, 2014 U.S. Dist. LEXIS 19231 (D NV, Feb. 14, 2014), a Nevada federal district court refused to grant summary judgment to defendants on an inmate's claims that Nation of Islam services are held only once monthly and he is not released regularly for other Muslim services[ on his claim that he was deprived of his Qur'an for 12 days while in disciplinary segregation; and on his claim of a conspiracy to deprive him of medical treatment based on animus toward his religion.

In Hoeck v. Miklich, 2014 U.S. Dist. LEXIS 20381 (D CO, Feb. 19, 2014), a Colorado federal district court adopted a magistrate's recommendations in part and allowed an inmate to proceed with his claims against certain defendants complaining that the practices of his "Biblical Christian" faith were not accommodated.

In Karsjens v. Jesson, 2014 U.S. Dist. LEXIS 20911 (D MN, Feb. 19, 2014), a Minnesota federal district court allowed plaintiffs to proceed with their claim that portions of the Minnesota civil commitment sex offender program violate their free exercise rights. Plaintiffs claim they are monitored during religious services and private meetings with clergy, are not allowed to wear religious apparel or have certain religious property, are not allowed communal religious feasts and cannot receive Kosher or Halal meals.

In Rahman v. Fischer, 2014 U.S. Dist. LEXIS 20846 (ND NY, Feb. 20, 2014), a New York federal district court adopted a magistrate's recommendation and dismissed a number of claims but permitted a Muslim inmate to proceed with his complaint that he was denied access to the sink to make ablution.

In Pelayo v. Hernandez, 2014 U.S. Dist. LEXIS 20616 (ND CA, Feb. 18, 2014), a California federal district court dismissed with leave to amend an inmate's complaint that he was prevented from entering the dining hall at breakfast because he was carrying a pocket Bible and thin Bible folder.

In Walker v. Artus, 2014 U.S. Dist. LEXIS 21745 (ND NY, Feb. 21, 2014), a New York federal district court adopted a magistrate's recommendations and dismissed a complaint that Muslim inmates in the special housing unit are not allowed to attend congregate religious services, nor are they allowed to watch or listen through closed circuit transmissions.

7th Circuit Affirms Denial of Preliminary Injunction to Notre Dame In Contraceptive Coverage Challenge

In University of Notre Dame v. Sebelius, (7th Cir., Feb. 21, 2014), the U.S. 7th Circuit Court of Appeals on Friday, in a 2-1 decision, denied a preliminary injunction to Notre Dame University in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits. Handing down its decision only 9 days after hearing oral arguments, the majority in an opinion by Judge Posner affirmed the district court, saying in part:

We imagine that what the university wants is an order forbidding Aetna and Meritain to provide any contraceptive coverage to Notre Dame staff or students pending final judgment in the district court. But we can’t issue such an order; neither Aetna nor Meritain is a defendant (the university’s failure to join them as defendants puzzles us)..... Furthermore, while a religious institution has a broad immunity from being required to engage in acts that violate the tenets of its faith, it has no right to prevent other institutions, whether the government or a health insurance company, from engaging in acts that merely offend the institution..

If the government is entitled to require that female contraceptives be provided to women free of charge, we have trouble understanding how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to “trigger” the provision of female contraceptives....

The novelty of Notre Dame’s claim—not for the exemption, which it has, but for the right to have it without having to ask for it—deserves emphasis. United States law and public policy have a history of accommodating religious beliefs.... What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths. The closest analogues we have found are cases in which churches seeking rezoning or variances claim that the process for obtaining permission is so cumbersome as to constitute a substantial burden on religious practice....

The process of claiming one’s exemption from the duty to provide contraceptive coverage is the opposite of cumbersome. It amounts to signing one’s name and mailing the signed form to two addresses. Notre Dame may consider the process a substantial burden, but substantiality—like compelling governmental interest—is for the court to decide.

The majority also rejected Notre Dame's establishment clause challenge, and left its free speech challenge for further development in the district court.

Judge Flaum dissenting said in part:

Having to submit the EBSA Form 700, Notre Dame maintains, makes it “complicit in a grave moral wrong” by involving it with a system that delivers contraceptive products and services to its employees and students.

The majority has trouble accepting this position, in part due to the university’s statement that its signature will “trigger” contraceptive coverage, because the majority understands federal law to require contraceptive coverage regardless of what Notre Dame signs or does not sign.... Yet we are judges, not moral philosophers or theologians; this is not a question of legal causation but of religious faith. Notre Dame tells us that Catholic doctrine prohibits the action that the government requires it to take. So long as that belief is sincerely held, I believe we should defer to Notre Dame’s understanding.

Wall Street Journal reports on the decision.

Friday, February 21, 2014

Oregon Will Not Defend Its Same-Sex Marriage Ban In Pending Litigation

In its answer filed yesterday in Geiger v. Kitzhaber, a suit challenging Oregon's same-sex marriage ban, Oregon officials notified the federal district court:

State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review. In the meantime, as the State Defendants are legally obligated to enforce the Oregon Constitution’s ban on same-sex marriage, they will continue to do so unless and until this Court grants the relief sought by the plaintiffs.

The lawsuit was filed last October. (See prior posting.) SCOTUSblog reports on Oregon's decision not to defend its ban.

UAE Fatwa Committee Says Mars Settlement Proposal Violates Islamic Law

Last year, a Dutch company, Mars One, announced plans to establish a permanent human colony on Mars. Plans are for the first volunteers to fly there in 2023, with others following every two years. No technology currently exists to bring the colonizers back to earth. This week the Khaleej Times reports that a fatwa committee under the General Authority of Islamic Affairs and Endowment in the United Arab Emirates has ruled that promoting or participating in the one-way trips violates Islamic law:

“Such a one-way journey poses a real risk to life, and that can never be justified in Islam,” the committee said. “There is a possibility that an individual who travels to planet Mars may not be able to remain alive there, and is more vulnerable to death.”

Whoever opts for this “hazardous trip”, the committee said, is likely to perish for no “righteous reason”, and thus will be liable to a “punishment similar to that of suicide in the Hereafter”.

Some 500 Saudis and other Arabs are among those who have already applied to take part in the mission.

Court Dismisses Challenge To NYPD's Surveillance of Muslims

In Hassan v. City of New York, (D NJ, Feb. 20, 2014), a New Jersey federal district court dismissed a constitutional challenge to the New York City Police Department's surveillance of the Muslim community in New Jersey following 9/11. Plaintiffs claimed that the surveillance was motivated solely by animus against Muslims. The court concluded first that plaintiffs lack standing because they did not allege a sufficient injury from the surveillance. The alleged injury to reputations and to the religious functioning of various organizations was caused by the AP's unauthorized release of documents about the program, not by the NYPD's surveillance. The court also concluded that plaintiffs failed to show intentional discrimination:

Plaintiffs in this case have not alleged facts from which it can be plausibly inferred that they were targeted solely because of their religion. The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies. The most obvious reason for so concluding is that surveillance of the Muslim community began just after the attacks of September 11, 2001.

The Center for Constitutional Rights issued a press release reacting to the decision. AP reports on the decision.

Los Angeles Archdiocese Settles Remaining Clergy Abuse Cases For $13 Million

As reported by KPCC News, earlier this week the Catholic Archdiocese of Los Angeles agreed to settle the 17 clergy abuse lawsuits remaining against it for a total of $13 million. Eleven of the suits involve charges relating to Mexican priest Nicolas Aguilar Rivera who molested at least 26 boys in his 10 months in Los Angeles and then fled before the Archdiocese notified police about complaints against him. Cardinal Roger Mahoney who headed the Archdiocese at the time of the molestations and is now retired was sanctioned last year by his successor after released files showed he was involved in shielding accused priests from law enforcement authorities. (See prior posting.) The KPPC article includes a link to Augilar Rivera's full personnel file.

Thursday, February 20, 2014

North Korea Detains Christian Missionary For Distributing Gospel Tracts

London's The Telegraph reported yesterday that North Korea has detained a 75-year old Christian missionary for distributing Korean language gospel tracts that he had written. He could face up to 15 years in prison for his actions. The missionary, John Short, is an Australian who lives with his family in Hong Kong and is a member of The Gospel Hall brethren. This was his second trip to North Korea. Short's wife told the press: "We're faith missionaries and he believed that we should care and not just talk but do something… Ultimately, we're in God's hands and that's how we look at it."

India's Supreme Court Says Country's Adoption Law Applies To Muslims

In Hashmi v. Union of India, (Sup. Ct. India, Feb. 19, 2014), a 3-judge panel of the Supreme Court of India held that the Juvenile Justice (Care And Protection of Children) Act, 2000 (background), allows a parent of any religion to adopt an eligible child. The Court described the Juvenile Justice Act as a "small step" toward a uniform Civil Code envisioned by Art. 44 of the Indian Constitution. The Court rejected the argument of the All India Muslim Personal Law Board that Child Welfare Committees should follow the principles of Islamic law before declaring a Muslim child available for adoption. Islamic law recognizes the Kafala system under which a child in need remains a descendant of its biological parents even though it is placed under the care of others. Because of these differing views on adoption, however, the court refused to declare adoption a fundamental right under Art. 21 of the Indian Constitution. Calcutta's The Telegraph reports on the decision.

Faith Healing Parents Get 3 1/2 to 7 Years In Death of Child

In Philadelphia yesterday, Herbert and Catherine Schaible were sentenced to three and one-half to seven years in prison in the faith-healing death from pneumonia of their 8-month old son last year. The couple pleaded no-contest to third degree murder charges in the case. At the time of the death, the couple were already on 10-years probation for the similar death of another of their children for whom they failed to seek medical treatment. (See prior posting.) The couple belong to the First Century Gospel Church which teaches that illness is to be healed through prayer. AP reports that the prosecution had asked for sentences of 8 to 16 years:

“It was so foreseeable to me that this was going to happen,” said Assistant District Attorney Joanne Pescatore, who prosecuted both cases. “Everybody in the system failed these children.”

After the first death, she and public defender Mythri Jayaraman agreed that the couple’s beliefs were so ingrained that their children remained at risk. They asked the earlier judge to have the family supervised by a Department of Human Services caseworker. Instead, the judge assigned them to probation officers, who are not trained to monitor children’s welfare.

In sentencing the couple, Judge Benjamin Lerner told them: "You’ve killed two of your children. ... Not God. Not your church. Not religious devotion. You."

Group Homes Ordered Closed After Charges That Disabled Residents Were Punished For Refusing To Attend Religious Services

The Los Angeles Times reports that last Friday a California trial court judge appointed a receiver to begin relocating dozens of physically and mentally disabled residents from two unlicensed religiously-operated group homes. Husband and wife, Kang Won Lee and Jung Hwan Lee, operate the two Los Angeles facilities, Agape Mission House and Agape Home Church. Los Angeles authorities say living conditions in the homes were deplorable. They also say that residents were forced to attend religious services twice a day, regardless of their religious beliefs. If they refused, they were punished by being required to stand by a tree for up to 4 hours, translate Bible verses for a full day and sleep outside at night.

MLK Bible and Medal ordered Under Court Control While Litigation Is Pending

A Georgia state trial court has issued a preliminary ruling in the lawsuit between the children of Dr. Martin Luther King, Jr. over control of his Nobel Peace Prize and his famous "traveling" Bible. Bernice King is seeking to prevent her two brothers (who control the King estate) from selling the two items over her dissenting vote. The estate has sued to force Bernice (who currently controls the items) to turn them over. (See prior posting.) According to Reuters, yesterday the judge, saying there is a likelihood the estate will win its lawsuit, ordered the items moved to a single bank safe-deposit box with the judge controlling the keys to it.

Marijuana DUI Law Does Not Injure Religious User of Cannabis

In Baker v. State of Colorado, (D CO, Feb. 18, 2014), a Colorado federal district court adopted a magistrate's recommendation (Feb. 7, 2014) and dismissed for lack of standing a free exercise challenge to Colorado's marijuana DUI statute. The magistrate's conclusion, adopted by the district court, was:

Plaintiff alleges that Colorado's marijuana DUI statute violates his First Amendment right to free exercise of religion because it infringes on his right to (1) personally use cannabis for medical and sacramental purposes and (2) run a church that uses cannabis in its religious practices.... Plaintiff does not allege facts indicating that his religion specifically necessitates marijuana use resulting in five ngs or more of Delta 9-THC in his bloodstream while driving a car. Therefore, Plaintiff fails to allege facts showing that Colorado's marijuana DUI statute has unconstitutionally burdened his religious practices.... Accordingly, he fails to allege an injury in fact in connection with his First Amendment claim.

Court Says Parents Who Lost Custody of Child Have Only Limited Control Over Child's Religious Exposure

In In re T.K, (OH Ct.. App., Feb. 19, 2014), an Ohio appeals court held that when legal custody of a child is given to the child's grandparents, there are limits on the extent to which the child's mother can dictate the boy's religious upbringing. The boy was originally placed with the grandparents when he tested positive for marijuana at birth, and custody was made permanent 9 months later with the parents' consent. However the boy's mother objected to the grandparents raising her son in their Catholic faith. An Ohio statute (RC 2151.353(A)(3)(c)) provides that when legal custody is transferred, parents retain the residual "privilege to determine the child's religious affiliation."

The court of appeals upheld the trial court's implementation of the mother's preference by an order providing that "the grandparents not engage the child in church activities or rituals designed for ... membership, including those required for membership into the Catholic Church." The mother had wanted a broader order prohibiting the grandparents from in any way, teaching, indoctrinating, or actively exposing the child to any religion, Catholic or otherwise. The court however focused on the statute's use of the term "affiliation" and agreed with the trial court that exposure to religion is not tantamount to affiliation.

Wednesday, February 19, 2014

Upcoming Conferences and Survey

Here are several items that may be of particular interest to law school faculty members, lawyers and policy makers:

The 5th annual Religious Legal Theory conference is being held this year at Emory University Law School on Feb. 24-25, hosted by its Center for the Study of Law and Religion. This year's theme is "A Global Conversation: Exploring Interfaith and International Models for the Interaction of Religion and State." More details are available at the Center's website.

On April 3-5, Harvard Law School is hosting a conference titled "Religious Accommodation in the Age of Civil Rights." The conference is co-sponsored by Harvard Law School, Williams Institute, ACLU, and USC Center for Law, History and Culture. More details are available online at Harvard Law School's website.

Prof. Faisal Kutty, with the endorsement of the AALS Section on Islamic Law, is conducting a survey on Teaching of Islamic Law In North American Law Schools. The online survey is available from this link.

Church of England Issues Pastoral Guidance on Same-Sex Marriage

In Britain last week, the House of Bishops of the Church of England issued Pastoral Guidance on Same Sex Marriage (full text) in response to Parliament's enactment of the Marriage (Same Sex Couples) Act 2013. (See prior posting.) The Bishop's statement says in part [emphasis in original]:

12. When the Act comes into force in March it will continue not to be legally possible for two persons of the same sex to marry according to the rites of the Church of England. In addition the Act makes clear that any rights and duties which currently exist in relation to being married in church of England churches do not extend to same sex couples....

18. We recognise the many reasons why couples wish their relationships to have a formal status. These include the joys of exclusive commitment and also extend to the importance of legal recognition of the relationship. To that end, civil partnership continues to be available for same sex couples. Those same sex couples who choose to marry should be welcomed into the life of the worshipping community and not be subjected to questioning about their lifestyle. Neither they nor any children they care for should be denied access to the sacraments....

20. The 2005 pastoral statement said that it would not be right to produce an authorized public liturgy in connection with the registering of civil partnerships and that clergy should not provide services of blessing for those who registered civil partnerships. The House did not wish, however, to interfere with the clergy's pastoral discretion about when more informal kind of prayer, at the request of the couple, might be appropriate in the light of the circumstances....

21. The same approach ,,, should therefore apply to couples who enter same-sex marriage, on the assumption that any prayer will be accompanied by pastoral discussion of the church's teaching and their reasons for departing from it. Services of blessing should not be provided. Clergy should respond pastorally and sensitively in other ways....

27. The House is not, therefore, willing for those who are in a same sex marriage to be ordained to any of the three orders of ministry. In addition it considers that it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church's teaching in their lives.

Law & Religion UK blog has more on the Bishop's statement.

7th Circuit Oral Arguments In Challenge To Cross Display On Riverfront

Yesterday, the U.S. 7th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Cabral v. City of Evansville. In the case, an Indiana federal district court enjoined the city of Evansville from permitting Westside Christian Church and other religious organizations from erecting a planned display of 31 six-foot tall crosses on the city's 4-block Riverfront area. (See prior posting.) AP reports on yesterday's oral arguments.

Tuesday, February 18, 2014

Investigative Report Looks At Chabad Collections In Russia That Have Been Subject of Extensive US Litigation

The Forward today has a long and interesting report from Russia on the two expropriated collections of valuable Jewish religious books and manuscripts (the Schneerson Library and the Archive) that have been the subject of extensive litigation in the United States. The American Chabad organization, Agudas Chasidei Chabad, has obtained U.S. judgments ordering the collections returned to it in the United States. (See prior posting.) One of the collections, the Schneersohn Library, which was nationalized by the Bolsheviks after the 1917 Russian Revolution and has been in the Russian State Library in Moscow, is now being digitized and moved to Moscow's new Jewish Museum and Tolerance Center, a $50 million institution controlled by the Russian branch of Chabad. This implements a proposed compromise that Russian President Vladimir Putin previously suggested. Forward's investigative reporter visited the room at the Jewish Museum and Tolerance Center which is housing the collection as it is moved there, and reports on the ease of access to it. Boruch Gorin who heads the Jewish Museum favors this arrangement and sees the possibility that if it were accepted, eventually the other collection, the Archive, which consists of documents plundered by the Nazis and taken back by the Red Army in World War II, could be sent to the United States. He says that the uncompromising strategy of Chasidei Chabad threatens that possibility.

UN Commission Finds Severe Human Rights Abuses, Including Religious Persecution, In North Korea

The United Nations Office of the High Commissioner for Human Rights announced yesterday the release of the report of a commission of inquiry on human rights abuses in North Korea. The 36-page report of the commission dated Feb. 7 (full text) says:

24. The commission finds that systematic, widespread and gross human rights violations have been and are being committed by the Democratic People’s Republic of Korea. In many instances, the violations found entailed crimes against humanity based on State policies....

The report includes findings on religious persecution by North Korea:

31. The State considers the spread of Christianity a particularly serious threat, since it challenges ideologically the official personality cult and provides a platform for social and political organization and interaction outside the realm of the State. Apart from the few organized State-controlled churches, Christians are prohibited from practising their religion and are persecuted. People caught practising Christianity are subject to severe punishments in violation of the right to freedom of religion and the prohibition of religious discrimination.

The 36-page report is documented by 354 pages of detailed findings (full text). More background and reactions are reported by CBS News.

Challenges To North Carolina School Vouchers Clear First Hurdle

Yesterday, a North Carolina state trial court refused to dismiss on the pleadings two related lawsuits challenging the state's Opportunity Scholarship Program. The program will provide school vouchers for use at private schools to some 2400 income eligible families. It was enacted as part of last year's state budget bill. NC Policy Watch reports on yesterday's ruling from the bench that came after a hearing that lasted more than two hours. The lawsuits, Hart v. North Carolina, (NC Super. Ct., filed 1/13/2014) (full text of complaint) and Richardson v. North Carolina, (NC Super. Ct., filed 1/15/2014) (full text of complaint), claim that the law violates several state constitutional provisions on education, taxation and discrimination. The court scheduled a hearing for Friday on plaintiffs' request to delay implementation of the scholarship program while its constitutionality is being litigated. Institute for Justice has additional information on the lawsuits.

Monday, February 17, 2014

Snake-Handling Pastor Dies From Rattlesnake Bite

On Saturday night, a pastor who starred in the reality TV show Snake Salvation died of a snake bite. According to USA Today, Rev. Jamie Coots, pastor of the Middlesboro, Kentucky, snake handling Full Gospel Tabernacle in Jesus Name was bitten by a rattlesnake. An emergency crew came to the church, but Coots had been taken home. When the crew went to Coots's home, the pastor refused treatment. Unlike the 8 previous times Coots had been bitten, this time the bite proved fatal. Last year, Coots was convicted by a Tennessee court of illegally possessing poisonous snakes. (See prior posting.)

Ugandan President Says He Will Sign Harsh Anti-Homosexuality Bill; U.S. Objects

The Kampala Observer and the New York Times reported yesterday that Ugandan President Yoweri Museveni says he will sign the harsh Anti-Homosexuality Bill (full text- apparently the final version) passed by Uganda's Parliament last December. (See prior posting.) The announcement came in closing remarks at a retreat of Museveni's political party, the National Resistance Movement (NRM). Originally Museveni had reservations about signing the bill, but in his remarks (full text) to the NRM Museveni explained his current decision:

The reason I had not signed the bill is to scientifically answer the question; are there people genetically born homosexual? For me, I had thought that since there were people born albino there could be people born homosexual.

But since the medical authorities, the department of genetics of the Medical School from Makerere, say there is no proof yet that people are homosexual by genetics, I told those scientists to put it in writing and they are going to do so. Then I will sign the bill.

Am taking all these precautions because am historically answerable for whatever I do as a leader. There were mistakes made in the 1930s by Hitler because he wanted to make Germany strong. Some of these issues are very crucial and should be handled objectively not emotionally....

I know we are going to have a big battle with outsiders, but I will be able to say I asked scientists and this is what they said. That homosexuals are normal people behaving abnormally.

In the United States, yesterday President Obama issued a statement (full text) saying that he is "deeply disappointed" by the decision. He added: "enacting this legislation will complicate our valued relationship with Uganda." White House National Security Advisor Susan Rice tweeted yesterday that she had spoken at length with Museveni to urge him not to sign the bill

Sunday, February 16, 2014

Malaysian Court Dismisses Prosecutions Against Shias On Technical Grounds

The Wall Street Journal reported yesterday that in Malaysia, Shia Muslims are heartened by the dismissal on technical grounds of a prosecution against 3 men for violating a local fatwa requiring Malaysians to follow Sunni teachings. The fatwa, issued in 2012 by the Perak state fatwa council, is similar to ones adopted in 11 of the country's 14 states after the National Fatwa Council issued a similar ruling in 1996. The 3 men were charged with possessing books and other items relating to Shia Islam, but a Sharia Lower Court judge ruled that two of the charges against the defendants were unclear. Two other Shias were released on similar grounds several weeks ago. However over the last year there have been a growing number of cases against Shias and practitioners of other minority religions.

Recent Prisoner Free Exercise Cases

In Pittman-Bey v. Celum, (5th Cir., Feb. 14, 2014), the 5th Circuit held that defendants in a prisoner lawsuit had qualified immunity because "there is neither controlling authority nor a robust consensus of persuasive authority showing that a Muslim inmate who did not participate in Jumu'ah services was entitled to participate in Ramadan activities and after sunset meals."

In Cauthen v. Rivera, 2014 U.S. Dist. LEXIS 16641 (ED CA, Feb. 7, 2014), a California federal magistrate judge recommended that a Rastafarian inmate be permitted to proceed with his complaint that his free exercise and RLUIPA rights were infringed when he was subjected to an unclothed body cavity search in the presence of female staff.

In Pattison v. Nevada, 2014 U.S. Dist. LEXIS 17109 (D NV, Feb. 11, 2014), a Nevada federal district court refused to reconsider its original imposition of sanctions of $100 on defendants who frivolously removed to federal court (after 2 years of state court litigation) a Jewish inmate's state court complaint that he was being denied kosher meals.

In Wallace v. Miller, 2014 U.S. Dist. LEXIS 17602 (SD IL, Feb. 12, 2014), an Illinois federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 185068, Aug. 22, 2013) and dismissed many of the claims by an inmate who was an adherent of Satmar Hasidic Judaism who contended that he was deprived of sufficient nutrition in connection with the amount of food he received on religious fast days, as well as claiming retaliation and differential treatment. However the court permitted plaintiff to proceed with a claim against the dietary services manager and the senior chaplain for damages for failure to provide kosher meals, as well as certain claims against other defendants.

In Bucano v. Monroe County Correctional Facility, 2014 U.S. Dist. LEXIS 17877 (MD PA, Feb. 10, 2014), a Pennsylvania federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 17122, Jan. 7, 2014) only in part and allowed an inmate to move ahead against one defendant on her claim that she was forced to eat non-kosher food. The defendant had not moved for dismissal. The remainder of the case was dismissed.

In Johnson v. Martin, 2014 U.S. Dist. LEXIS 17649 (WD MI, Feb. 12, 2014), a Michigan federal district court adopted in part a magistrate's recommendations (2014 U.S. Dist. LEXIS 18460, Jan. 14, 2014) and dismissed an inmate's complaint that he was denied Jewish reading material and a kosher diet, concluding that plaintiff failed to show that he has a sincerely held religious belief that requires accommodation.

In Boone v. Coleman, 2014 U.S. Dist. LEXIS 18739 (CD IL, Feb. 14, 2014), an Illinois federal district court permitted a Messianic Hebrew inmate to proceed against a correctional officer, but not other defendants, on his complaint that he was denied a kosher diet.

In Marron v. Jabe, 2014 U.S. Dist. LEXIS 19150 (ED VA, Feb. 14, 2014), a Virginia federal district court dismissed a Muslim inmate's objections to a prison rule that requires CDs or tapes to be ordered through a single vendor. The policy led to authorities refusing to allow plaintiff to have two religious non-music tapes that he had ordered through a different vendor.

British Court Uses Anti-Social Behavior Orders Against Islamic Radicals

Britain's Crime and Disorder Act 1998, Sec. 1, permits courts to issue an Anti-Social Behavior Order (ASBO) against anyone who has acted "in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons..." Friday's London Mirror and Mail Online report on the innovative use of this power against Islamic radicals in London. Three Muslim men who have been acting as a vigilante Muslim Patrol to enforce Sharia norms in East London received 5-year ASOBs last Friday barring them from making unsolicited approaches to people to promote Sharia law. The ringleader of the 3, Jordan Horner, also had restrictions placed on him designed to prevent him from preaching extremist Islamic views. He is prohibited from possessing a bullhorn in any public place, and barred from entering any place of education unless as a student or to visiting relatives. The men are also prohibited from meeting with each other, as well as with a fourth named person or with controversial Islamist Anjem Choudary.

Saturday, February 15, 2014

Illegal Kosher Slaughtering Reportedly Continuing In Poland

As previously reported, in Poland a 2012 court decision which Parliament refused to reverse effectively banned kosher and halal slaughter by eliminating an exemption from the requirement that animals be stunned before they are killed. Previously some $400 million per year of kosher and halal meat exports had benefited the Polish economy. JTA reported this week, however, that kosher slaughtering is continuing in three Polish slaughterhouses. The firms are certifying to the government that the animals are stunned before slaughter, a representation that is false if the requirements for kosher slaughtering have been met. Poland's chief rabbi has suspended an aide who was responsible for the misrepresentations, pending an investigation.

Uzbekistan Issues Decree Regulating Religious Materials

Forum 18 (Feb. 12) and Ferghana (Jan. 28) report on a decree issued recently by the government of Uzbekistan that creates a formal legal basis for its restrictions on religious materials. Supplementing the 1998 Law on Freedom of Religion or Belief (full text of 1998 law .pdf file), the decree titled “Measures to improve order in the production, import and distribution of religious materials,” was signed by the Prime Minister on Jan. 20 and came into formal effect on Jan. 27. It allows distribution of religious materials only at commercial points of sale equipped with cash registers. Advance permission is needed to import religious materials. No more than 3 copies of even approved publications may be imported for personal use. The production, storage or distribution of materials intended to encourage people to change their beliefs or which "distort religious canons" are prohibited.

Friday, February 14, 2014

Federal District Court Strikes Down Virginia's Ban on Same-Sex Marriages; Delays Injunction To Allow Appeal

Yesterday in Bostic v. Rainey, (ED VA, Feb. 13, 2014), a Virginia federal district court concluded that Virginia's constitutional and statutory provisions that bar same-sex marriage and prohibit recognition of lawful same-sex marriages performed elsewhere are unconstitutional under the due process and equal protection clauses of the 14th Amendment:

The Court is compelled to conclude that Virginia's Marriage Laws unconstitutionally deny Virginia's gay and lesbian citizens the fundamental freedom to choose to marry. Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.

The court began its opinion with a quotation from Mildred Loving, one of the plaintiffs in the 1967 U.S. Supreme Court decision in Loving v. Virginia that struck down Virginia's laws barring interracial marriage and established the modern doctrine of marriage as a "fundamental right." However the court yesterday also stayed the effectiveness of its preliminary injunction to give the parties time to appeal its decision to the 4th Circuit. Washington Post reports on yesterday's decision.

UPDATE: An amended opinion (full text) was issued on Feb. 14 correcting a reference in the first paragraph of Judge Allen's opinion. The sentence that originally read: "Our Constitution declares that "all men" are created
equal." was corrected to read: "Our Declaration of Independence recognizes that "all men" are created equal." Politico reports on the change. [Thanks to Mirror of Justice for the lead.]

Hawaiian Church Settles Qui Tam Action Charging It With Underpaying School System

AP reports that New Hope churches, one of the original defendants in a Hawaii qui tam whistle blower lawsuit, has agreed to settle for $775,000. However it will not admit wrongdoing as part of the settlement. As previously reported, in State of Hawaii ex rel. Kahle and Huber v. New Hope International Ministries, (HI Cir. Ct., filed 3/22/2013), relators claim that churches submitted false records and statements to deprive Hawaii schools of $5.6 million in unpaid or underpaid rent and utility charges for weekend use of school buildings, parking lots and facilities. Under the settlement, $200,000 will go to the relators who are responsible for the suit being filed, with the remainder going to the school system.

New Danish Administrative Regulation Prohibits Kosher and Halal Slaughter Without Prior Stunning of Animal

World Jewish Congress reported yesterday that Denmark's Agriculture and Food Minister has signed a new regulation that takes effect Feb. 17 requiring all animal slaughter to be carried out with prior stunning. Traditionally both kosher and halal slaughter prohibits prior stunning of an animal, and the new regulation was strongly opposed by the Jewish and Muslim communities in Denmark.

Under the new rule, the provision in current Danish regulations that allows an exemption for ritual slaughter that follows elaborate procedures, including stunning immediately after slaughter, will be eliminated. Apparently the regulatory change will have little practical effect at least on the supply of kosher meat, since for the past ten years all kosher meat sold in Denmark has been imported from abroad.

The Food, Agriculture and Fisheries Ministry's website says: "In Denmark all ritual slaughter of animals at slaughterhouses is performed with previous stunning at the moment." JTA reports that according to the president of Denmark's Jewish community, Danish Jews agreed in 1998 to the certification as kosher of meat from cattle that were stunned with non-penetrative captive bolt pistols. However a Danish rabbi disputes this, saying the agreement probably referred to post-cut stunning, but since no kosher slaughter has taken place in Denmark for at least 10 years, it is unclear. In discussing the new regulation, Agriculture and Food Minister Dan Jørgensen told Danish television: "Animal rights come before religion."

Catholic Bishops In Various Countries At Odds Over Anti-Gay Laws

Religion News Service reported yesterday on "unusually stark and public fissures" among Catholic bishops in various countries over whether to support or oppose harsh anti-gay laws being enacted or revived in some countries of Africa, Asia and elsewhere. For example, after Nigerian President Goodluck Jonathan recently signed new anti-gay legislation, the Nigerian Catholic hierarchy praised the president's "courageous and wise decision." However, a few days later an editorial in a newspaper run jointly by the bishops of South Africa, Botswana and Swaziland, took a very different view, calling on the Catholic Church in Africa "to stand with the powerless" and "sound the alarm at the advance throughout Africa of draconian legislation aimed at criminalizing homosexuals." Similar disagreements can be seen among bishops in Europe and Asia.

India Supreme Court Orders Stop To Imminent Devadasi Ceremony That Often Exploits Young Girls

The Calcutta Telegraph reports that India's Supreme Court yesterday took quick action in response to a recently filed Public Interest Lawsuit to try to prevent exploitation of young girls in a ceremony scheduled for the night of February 13-14 in front of the Uttangi Durga Hindu temple in the city of Davangere in India's Karnataka state. According to the report:

Under the devadasi system, girls on attaining puberty are married off to the local temple’s female deity at a ceremony willingly consented to by the parents in most cases, though in some cases local panchayats have been known to use a certain degree of coercion.

After being “married” off and “dedicated” to the deity, the girls are forced to sing and dance before their village chiefs, rich landlords and other influential persons and have often been sexually exploited.

The PIL cited newspaper reports that said that despite the Karnataka Devadasis (Prohibition of Dedication) Act, 1982, the practice continued.... The petition alleged that many devadasis, exploited by local landlords and influential men, had been left to fend for themselves and were dying of poverty or sexually transmitted diseases.

The court told counsel for the non-profit foundation filing the suit that they should have come to the court sooner. As an interim measure, the court yesterday faxed an order to the chief secretary of the state of Karnataka ordering him to take steps to prevent unmarried girls from being forced to become devadasis at the February 13-14 religious event.

Suit By Evangelical Family Challenges Abortion Clinic Buffer Zone

The Thomas More Law Center yesterday announced that it has filed a federal lawsuit challenging a Portland, Maine ordinance that creates a 39-foot buffer zone around reproductive health clinics to prevent protests and counseling on sidewalks near the city's single clinic that provides abortions. The complaint (full text) in Fitzgerald v. City of Portland, (D ME, filed 2/12/2014), alleges that plaintiffs, a family who identify themselves as Evangelicals, have been peacefully praying and counseling women outside the clinic for 16 months, passing out literature and Bible tracts. The ordinance prevents their activities. The suit claims that this is a broad, vague content-based prior restraint on their speech. A suit raising similar legal issues was argued before the U.S. Supreme Court last month. (See prior posting.)

2 Minnesota Catholic Dioceses Sued In Demand For Files of Abusive Priests

In a suit filed in a Minnesota state trial court on Wednesday against two Catholic dioceses, plaintiff who claims to have been abused as a 13-year old boy by Catholic priest James Vincent Fitzgerald is seeking release by the dioceses of the complete files of priests who have been credibly accused of abuse. As reported by Forum News Service, the alleged victim, identified only as "Doe 30", has sued the Diocese of Duluth and the Diocese of New Ulm saying that the abuse occurred in 1976. This is the third suit by various victims against the Diocese of Duluth demanding release of files. So far the diocese has only released the names (along with basic biographical data) of accused priests. Fitzgerald worked at 6 parishes of the Diocese of Duluth from 1957 to 1983, and worked in the New Ulm diocese from 1977-78. Plaintiff's attorney claims the Duluth Diocese knew of should have known of Fitzgerald's actions and moved him between parishes where he continued to have access to children. The Diocese however says that no abuse complaints against Fitzgerald surfaced prior to late last year.

Thursday, February 13, 2014

Milwaukee Archdiocese Files Reorganization Plan; Criticized As Inadequate By Victims

AP reports that the Catholic Archdiocese of Milwaukee yesterday filed its Plan of Reorganization with federal bankruptcy court. Under the Plan, $4 million will be set aside to compensate 125 clergy sex abuse victims-- the smallest per victim payments yet in any of the 11 bankruptcy reorganizations of dioceses around the country. Over 400 individuals filing claims as victims will not receive payment-- including those beyond the statute of limitations, claimants who already received a settlement from the archdiocese and those abused by priests from religious orders or by parish employees. Also $500,000 will be set aside in a lifetime Therapy Fund for victims. A Q&A on the Plan of Reorganization posted on the Archdiocese's website gives details on the plan. In a letter posted on the Archdiocese's website, Archbishop Listecki said that the Archdiocese will emerge from bankruptcy with at least $7 million in debt, adding:

The archdiocese has historically operated on a balanced budget, so the burden of paying off this debt will certainly be part of our penance. I wish we wouldn’t have had to spend the past three years and millions of dollars on attorneys’ fees to get to this point, but now we have a Plan that moves us forward.

Abuse victims strongly criticized the Plan as insufficient, one saying: "It is much like being raped all over again...." The victim advocacy group SNAP issued a statement calling the Plan "breath-taking in its callousness, selfishness and arrogance."

Pharmacist Sues After His Firing For Refusing To Sell "Morning After" Contraceptives

Thomas More Society announced yesterday that it has filed a federal lawsuit on behalf a a pharmacist who was fired by from his position at a Jamestown, Tennessee Walgreen's after he told management he would not participate in the sale of Plan B oral contraceptives. The complaint (full text) in Hall v. Walgreen Company, (MD TN, filed 2/11/2014), alleges that the company previously permitted pharmacist Phillip Hall to refer customers seeking to purchase Plan B to another pharmacist in the store as a way of accommodating Hall's religious objections to selling the emergency contraceptive which he believes is an abortifacient. However the store changed its policy once it began to stock a new over-the-counter version of Plan B. A factor in Hall's firing apparently was also his action in personally purchasing and disposing of the store's first shipment of 6 boxes of the over-the-counter version as a way to prevent its being available. The complaint alleges that Hall's firing violated Title VII of the 1964 Civil Rights Act, the free exercise clause of the Tennessee constitution and Tennessee's Right to Refuse statute that protects anyone from being required to participate in the performance of an abortion.

Suits Challenge Missouri's and Louisiana's Refusals To Recognize Out-of-State Same-Sex Marriages

Yesterday, the ACLU announced that has filed a state court lawsuit on behalf of 8 Missouri same-sex couples challenging Missouri's statutory and state constitutional provisions that deny recognition to plaintiffs' marriages that were legally entered into in other jurisdictions. The complaint (full text) in Barrier v. Vasterling, (MO Cir. Ct. Jackson County, filed 2/12/2014) contends:

Missouri’s exclusion of married same-sex couples from the protections and responsibilities of marriage violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This discriminatory treatment is subject to heightened scrutiny because it burdens the fundamental right to marry and because it discriminates based on sex and sexual orientation. But it cannot stand under any level of scrutiny because Missouri’s refusal to recognize the legal marriages of same-sex couples does not rationally further any legitimate government interest. It serves only to disparage and injure same-sex couples and their families.

Reporting on the lawsuit, the Columbia Missourian notes:

Missouri Gov. Jay Nixon drew criticism from gay marriage opponents in November when he directed the state Department of Revenue to accept joint tax returns from same-sex couple who are legally married in other states.... The directive prompted a lawsuit filed by same-sex marriage opponents, and led a Republican lawmaker last week to file articles of impeachment against the Democratic governor.

Meanwhile, in Louisiana an organization that advocates for LGBT equality filed a federal court lawsuit challenging Louisiana's statutory and state constitutional provisions that bar recognition of same-sex marriages validly performed elsewhere. The complaint (full text) in Forum for Equality Louisiana, Inc. v. Barfield, (ED LA, filed 2/12/2014), in claiming that the Louisiana Anti-Recognition Laws violate plaintiffs' equal protection and due process rights, focuses particularly on the state's refusal to accept joint tax returns from married same-sex couples and its refusal to issue birth certificates naming same-sex couples as parents of a child. The New Orleans Times Picayune reports on the lawsuit.

Court Says Kentucky Must Recognize Valid Same-Sex Marriages From Elsewhere

In Bourke v. Beshear, (WD KY, Feb. 12, 2014), a Kentucky federal district court struck down Kentucky's state constitutional and statutory provisions that deny recognition to valid same-sex marriages performed elsewhere. The court held that "denial of recognition for valid same-sex marriages violates the United States Constitution’s guarantee of equal protection under the law, even under the most deferential standard of review." Explaining its decision, the court said in part:

Many Kentuckians believe in “traditional marriage.” Many believe what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit. They may be confused—even angry—when a decision such as this one seems to call into question that view. These concerns are understandable and deserve an answer.

Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons.

The court added that while it was not presented with the question of the validity of Kentucky's ban on issuing marriage licenses for same-sex marriages in the state, "there is no doubt that Windsor and this Court’s analysis suggest a possible result to that question." WFPL News reports on the decision. [Thanks to Tom Rutledge for the lead.]

7th Circuit Hears Oral Arguments In Notre Dame's Contraceptive Mandate Accommodation Challenge

The U.S. 7th Circuit Court of Appeals heard oral arguments (audio of full arguments) yesterday in University of Notre Dame v. Sebelius. In the case, an Indiana federal district court rejected Notre Dame's claim that its rights under RFRA and the 1st Amendment are infringed by applying the Affordable Care Act contraceptive coverage mandate accommodation to its self-insured employee plan and its health insurance policies offered to students. (See prior posting.) The exchanges in yesterday's arguments between Notre Dame's counsel Matthew Kairis and Judge Richard Posner were particularly contentious. (Note-- there is no sound for the first 2:30 minutes of the audio.) Chicago Tribune reports on the oral arguments. [Thanks to Stephen Blakeman for the lead.]

Wednesday, February 12, 2014

4th Circuit: North Carolina May Not Issue Pro-Life Plates And Refuse Pro-Choice Ones

In ACLU v. Tata, (4th Cir., Feb. 11, 2014), the U.S. 4th Circuit Court of Appeals held that North Carolina has engaged in unconstitutional viewpoint discrimination when it specifically authorized a "Choose Life" specialty license plate and refused to issue a pro-choice specialty plate. The court rejected the state's argument that this was permissible because specialty plates are government speech:

[W]e agree with the district court “that sufficient private speech interests are implicated by the specialty license plates to preclude a finding of purely government speech.”....

North Carolina ... laments that if it has created a forum, it “must allow all viewpoints to be heard via specialty plates.” .... This complaint seems at odds with North Carolina’s contention that its vast array of specialty plates “celebrat[es]” the “diversity of its citizen’s interests . . . .”... Apparently, North Carolina wishes to celebrate only some interests of some of its citizens— namely those with which it agrees. This, it may not do.

North Carolina then sounds the death knell for specialty plates, predicting a “flood” of “Kill The Sea Turtles” and “Children Last” plates that will force it to end its specialty plate program.... Melodrama aside, our ruling today “does not render [North] Carolina powerless to regulate its specialty license plate forum.” ... But it must do so in a viewpoint-neutral fashion—which it already does, to some extent, by requiring three hundred applicants before issuing a new specialty plate. Surely such a requirement can filter out “frivolous license plate proposals” and prevent the roads from being inundated with “license plates advocating reckless pet breeding.”

WRAL News reports on the decision.

Alabama Proposal Would Call For Reading Congressional Prayers In Classrooms

Proponents of school prayer have come up with a new approach in Alabama. Proposed House Bill 318 calls for reading prayers from the Congressional Record to teach students about Congress' formal procedures:

At the commencement of the first class of each day in all grades in all public schools, the teacher ... shall, for a period of time not exceeding 15 minutes, instruct the class in the formal procedures followed by the United States Congress. The study shall include, but not be limited to, a reading verbatim of one of the opening prayers given by the House or Senate Chaplain or a guest member of the clergy at the beginning of a meeting of the House of Representatives or the Senate.

The Anniston Star this week quotes the Rep. Steve Hurst, the bill's sponsor:

Hurst said the bill would help students learn more about history and civics. "They could read the prayer from the day war was declared in World War II," he said. "They could read the prayer the day after Sept. 11."

Random House Affiliate Agrees To Withdraw Scholar's Book On Hinduism To Settle Lawsuit In India

The New York Times and the Financial Times report that in India, the publisher Penguin India (an affiliate of US publisher Penguin Random House) has agreed to settle a lawsuit brought against it by a Hindu activist group by withdrawing all unsold copies of The Hindus: An Alternative History. The book, authored by University of Chicago Professor Wendy Doniger and published in 2009, was criticized by a reviewer as over-eroticizing the religion. In 2010, Dina Nath Batra, the head of Shiksha Bacho Andolan (Save Education Movement), filed a lengthy notice (full text) with the author detailing passages he found to be "shallow," "distorted" and "riddled with heresies and factual inaccuracies." The notice threatened legal action under Section 153, 153A, 295A, 298, 505(2) of Indian Penal Code. These provisions, among other things, bar insulting religious beliefs and promoting ill-will between religious groups. A lawsuit was filed in 2011, and apparently complaints were also filed with prosecutors.

Under the settlement (full text), Penguin will "recall and withdraw all copies of the book" and no longer "sell, publish or distribute" it. The recalled copies will be "pulped" by Penguin. In exchange, plaintiffs will withdraw all "civil and criminal cases/ complaints." Currently the book remains listed on Penguin India's website. Apparently the book will remain available in India on Kindle. In a statement reacting to developments, Prof. Doniger criticized "Indian law, which makes it a criminal rather than civil offence to publish a book that offends any Hindu, a law that jeopardises the physical safety of any publisher, no matter how ludicrous the accusation."

Suit Asks Ohio To Recognize Same-Sex Marriages On Birth Certificates

A suit was filed by three couples on Monday in an Ohio federal district court to require state officials to recognize same-sex marriages validly performed elsewhere when issuing birth certificates. The complaint (full text) in Henry v. Wymyslo, (SD OH, filed 2/10/2014) alleges that state and local health department officials will permit only one parent from married same-sex couples to be listed on the birth certificate of their children. It continues:

Plaintiffs challenge this unequal treatment as unconstitutional. These same Defendants were recently ordered to recognize valid out-of state marriages between same-sex couples on death certificates..... The reasoning from that case compels recognition of same-sex marriages on birth certificates.

Cincinnati Enquirer reports on the filing of the lawsuit.

DC Circuit: RFRA Does Not Protect Guantanamo Detainees

In Aamer v. Obama, (DC Cir., Feb. 11, 2014), the D.C. Circuit denied a preliminary injunction to Guantanamo detainees who brought a habeas corpus action to challenge the government's force feeding protocol used to protect the health of detainees engaged in protest hunger strikes. Among the detainees' claims was that their force feeding violates the Religious Freedom Restoration Act because it prevents them from from engaging in communal prayers during Ramadan. Judge Tatel's majority opinion (which also dealt at length with other issues) held that RFRA’s protections do not extend to Guantanamo detainees. He reaffirmed prior precedent in the D.C. Circuit that nonresident aliens do not qualify as protected “person[s]” within the meaning of RFRA. Judge Williams, dissenting, did not reach the RFRA issue because he urged dismissal of the entire action on jurisdictional grounds. [Thanks to Arthur Spitzer for the lead.]