Required Signs In Pregnancy Counseling Centers Held Unconstitutional

In Centro Tepeyac v. Montgomery County, (D MD, March 7, 2014), a Maryland federal district court enjoined the enforcement of a Montgomery County Maryland Resolution that requires each "limited service pregnancy center" to post to post a sign in its waiting room that reads:

(1) “the Center does not have a licensed medical professional on staff”; and (2) “the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider”.

The court held that the Resolution is a content-based regulation that compels non-commercial speech, and thus triggers strict scrutiny review. It concluded:

The record produced by Defendants is simply insufficient to sustain this regulation of Plaintiff’s First Amendment rights. Assuming arguendo that the County has a compelling interest in positive health outcomes for pregnant women, the critical flaw for the County is the lack of any evidence that the practices of LSPRCs are causing pregnant women to be misinformed which is negatively affecting their health. It does not necessarily follow that misinformation will lead to negative health outcomes.

Alliance Defending Freedom issued a press release announcing the decision.

Recent Articles of Interest

From SSRN:

• Julia Chamberlin & Amos N. Guiora, Polygamy: Not 'Big Love' But Significant Harm, (Women's Rights Law Reporter, Rutgers University School of Law (2014 Forthcoming)).
• Sean T. Murphy, No More Christian Doctors, (February 24, 2014).
• Michael A. Helfand & Barak D. Richman, The Challenge of Co-Religionist Commerce, (Duke Law Journal, Forthcoming).
• Sahar F. Aziz, Veiled Discrimination, (March 3, 2014).
• Kenneth Lasson, Sacred Cows, Holy Wars: Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat, (March 6, 2014).
• Rabia Belt, When God Demands Blood: Unusual Minds and the Troubled Juridical Ties of Religion, Madness, and Culpability, (March 1, 2014).
• Teemu Ruskola, What is a Corporation? Liberal, Confucian, and Socialist Theories of Enterprise Organization (and State, Family, and Personhood), (Seattle University Law Review, Vol. 37, p. 637, 2014).

From SSRN (non-US law):

• Richard Moon, Religious Accommodation and Its Limits: The Recent Controversy at York University, (Constitutional Forum, Vol. 23, Forthcoming).
• Nathalie Des Rosiers, Free Religions or Freedom from Religion? Canada, Federalism and Religion, (February 23, 2014).
• Jeroen Temperman, Recognition, Registration, and Autonomy of Religious Groups: European Approaches and Their Human Rights Implications, (in: David Kirkham (ed.), State Responses to Religious Minorities (Aldershot: Ashgate, 2013), pp. 151-165).
• AliReza ShakarBeigia, Peyman Akbari & Ghodrat Heydari, Expansion of Citizenship Rights Based on Religious Teachings Jurisprudence and Law, (Scientific Journal of Pure and Applied Sciences (2014) 3(2) 48-53).
• Michelle Biddulph & Dwight G. Newman, Eweida v United Kingdom, (Australian International Law Journal, Vol 20, 2013: 183-188).
• Hanna Lerner, Permissive Constitutions, Democracy, and Religious Freedom in India, Indonesia, Israel, and Turkey, (World Politics, Volume 65, Issue 4 (October 2013), pp. 609-655).
• Engy Abdelkader, Myanmar's Democracy Struggle: The Impact of Communal Violence Upon Rohingya Women and Youth, (Pacific Rim Law & Policy Journal, 2014).

From SmartCILP:

• Michael W. McConnell, Why Protect Religious Freedom? (Reviewing Brian Leiter, Why Tolerate Religion?), 123 Yale Law Journal 770-810 (2013).
• Capt. Malcolm H. Wilkerson (U.S. Army), Picking Up where Katcoff Left Off: Developing a Framework for a Constitutional Military Chaplaincy, 66 Oklahoma Law Review 245-286 (2014).
• Tung Yin, Were Timothy McVeigh and the Unabomber the Only White Terrorists?: Race, Religion, and the Perception of Terrorism, 4 Alabama Civil Rights & Civil Liberties Law Reveiw 33-87 (2013). 

Malaysia Bans Comic Book That Refers To Super Hero As "Allah"

Time reports that in Malaysia last week, the Home Ministry banned distribution of the Malay language issue of Ultraman the Ultra Power comic book for its use of "Allah" in describing its super hero.  The offending sentence has been translated as: "He is considered, and respected as, ‘Allah’ or the Elder to all Ultra heroes." The Home Ministry says that the comic book contains elements that can undermine public security and societal morals, and warned that the language threatens to confuse Muslim children and damage their faith.  Some in Malaysia have taken to social media to deride the government's response. According to CNA, anyone distributing the banned comic book could face a sentence of three years in prison. This latest order adds to the long-running controversy over the use of "Allah" by non-Muslims-- particularly the use by Malay speaking Catholics to refer to God. (See prior posting.)

Fired Gay Catholic School Vice-Principal Sues

Last Friday, a lawsuit was filed in state court in Seattle, Washington by a former Catholic high school vice-principal Mark Zmuda who was fired after he married his same-sex partner last December.  According to The Guardian, the suit alleges violation of Washington's law against discrimination, breach of implied contract, wrongful termination, violation of the consumer protection act, and tortious interference.  The Guardian reports:

Zmuda does not dispute that he signed an employment contract that required him to uphold Catholic teachings. However, his complaint claims that the school misrepresented its employment environment as being one of inclusion and anti-discrimination both on its website and in its employee handbook.

The school's president, Sister Mary Tracey knew earlier on that Zmuda is gay. He complied with her request not to bring his partner to school events. After the marriage, Sister Mary told Zmuda that if he would divorce his husband, the school would pay the costs of a commitment ceremony in place of a wedding, and would allow him to keep his job. The school is seeking dismissal of the suit on the basis of its 1st Amendment right to make its own decisions on matters of faith and doctrine.

Recent Prisoner Free Exercise Cases

In Wiseman v. Cate, 2014 U.S. Dist. LEXIS 26373 (ED CA, Feb. 27, 2014), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that Muslim inmates in the Halal food plan are provided Halal meat at dinner but are only provided vegetarian meals at breakfast and lunch.

In Rowe v. Indiana Department of Corrections, 2014 U.S. Dist. LEXIS 27060 (SD IN, March 3, 2014), an Indiana federal district court denied cross motions for summary judgment and permitted an inmate to continue to pursue his free exercise and RLUIPA challenges to prison policies that call for the zero tolerance on security threat groups, prohibit visits from ex-prisoners, limit the number of books that can be possessed, limit certain inmate-to-inmate correspondence, bar item censorship of religious publications, and ban the swastika.

In Esposito v. Quatinez, 2014 U.S. Dist. LEXIS 28452 (ED NY, March 5, 2014), a New York federal district court permitted plaintiff who was involuntarily committed to the psychiatric unit of Stony Brook University Hospital to continue to pursue her claim that requiring her to remain hospitalized violates her free exercise rights because her religious beliefs require that she not affiliate herself through receipt of treatment with a hospital that performs abortions.

In Baumgarten v. Howard County Department of Corrections, 2014 U.S. Dist. LEXIS 28590 (D MD, March 6, 2014), a Maryland federal district court permitted a Jewish inmate to proceed with his complaint that he was repeatedly denied kosher meals for which he had been approved. Plaintiff is seeking damages.

In Mitchell v. Cicchi, 2014 U.S. Dist. LEXIS 28738 (D NJ, March 6, 2014), a New Jersey federal district court dismissed, without prejudice, a Muslim inmate's complaint that he was barred from participating in the jail's Eid festival because of his maximum security status.

Court Holds Middle School In Florida Not Covered By Federal Equal Access Act

In Carver Middle School Gay-Straight Alliance v. School Board of Lake County, Florida, (MD FL, March 6, 2014), a Florida federal district court denied a preliminary injunction to the Gay-Straight Alliance that sought recognition as an official student organization in a Florida middle school.  The court held that plaintiffs had not shown a likelihood of success on the merits of their claim that a middle school constitutes a "secondary school" for purposes of coverage under the federal Equal Access Act. That Act leaves the definition of secondary school to state law, and Florida statutes are unclear about whether this includes middle schools.  The court also held that plaintiffs had not shown a likelihood of success on the merits of their 1st Amendment free speech claim because the refusal to recognize the group was reasonably related to legitimate pedagogical concerns in light of the age of the students involved.

First Guilty Plea In Coerced Jewish Divorce Extortion Operation

The New Jersey U.S. Attorney's Office announced that David Hellman, a 31-year old personal trainer, pleaded guilty yesterday in federal court to traveling in interstate commerce to commit extortion in an attempt to coerce a Jewish man in New York to give his wife a "get"-- a Jewish divorce document. Hellman was part of a group of men-- including two rabbis-- who allegedly charged women tens of thousands of dollars to use violence against their recalcitrant husbands who refused to grant a Jewish divorce after a civil divorce had been obtained. They were arrested in an FBI sting operation. (See prior posting.) Hellman was the first of the group charged to plead guilty.  His bail conditions include a $500,000 bond and GPS monitoring. He faces a possible sentence of as much as 20 years in prison and a $250,000 fine. The Newark Star-Ledger reports on the case.

UPDATE: The March 11 Asbury Park Press reports that two additional defendants involved have pleaded guilty to charges of traveling in interstate commerce to commit extortion.

Purdue Reaches Compromise With Donor Over Reference To God on Plaque

Purdue University's controversy with a donor over the wording on a plaque has been settled with a compromise. As previously reported, suits and counter-suits were threatened when the University balked at placing on a conference room dedication plaque the donor's requested inscription that referred to "the understanding of God’s physical laws." Now, according to yesterday's Purdue Eponent, the University has agreed to revised language which shows the reference as a quotation from the donor. Also the University will add a second plaque nearby which will make clear that the quote is not Purdue's language and that the University is aware of its legal obligations of neutrality.

EEOC Releases Guidance On Religious Garb and Grooming Accommodation

The EEOC announced yesterday the release of two related technical assistance publications on the law regarding religious dress and grooming in the workplace. A Question and Answer document titled Religious Garb and Grooming in the Workplace: Rights and Responsibilities is a guide (including examples) to when and how employers must accommodate employees' religiously-based requests on clothing, religious dress, head coverings, hair style and beards. The related Fact Sheet summarizes the basic requirements of Title VII.

The new guidance comes as the Department of Justice announced the filing of a federal lawsuit against the Philadelphia (PA) school district charging it with discrimination against a Muslim school police officer who was reprimanded for wearing a beard in violation of an October 2010 policy change that prevents school police and security officers from wearing beards longer than one-quarter inch. The employee, Siddiq Abu-Bakr, has worn a longer beard for the 27 years he has worked for the school district.

Google Denied Stay of Order To Take Down "Innocence of Muslims", But En Banc Rehearing Is Possible

As previously reported, last month in Garcia v. Google, Inc.,  the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a preliminary injunction should be granted to require the controversial film "Innocence of Muslims" to be removed from YouTube.  The decision came in a copyright suit filed by Cindy Lee Garcia who acted in a portion of the film. The decision was filed on Feb. 27, but apparently several days before the public release of the opinion the court ordered Google to take down the video.  In a Feb. 27 motion, Google sought a stay pending a petition for an en banc rehearing (full text), saying:

The Court last Wednesday issued a sealed order directing that Defendant-Appellee Google Inc. take down “all copies” of the video "‘Innocence of Muslims’ from YouTube.com and from any other platforms under Google’s control" and that Google "take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms." Google has complied with the Court’s order, but in light of the intense public interest in and debate surrounding the video, the video should remain accessible while Google seeks further review.

In an Order (full text) issued Feb. 28, the court denied a stay and ordered Google to comply with the take down mandate within 24 hours, but added that "this order does not preclude the posting or display of any version of “Innocence of Muslims” that does not include Cindy Lee Garcia’s performance."

In the latest development, yesterday the court issued an Order (full text) stating that one judge has requested a vote on whether to rehear en banc the request for a stay. The court gave the parties until March 12 to file briefs on whether an en banc rehearing should be granted. [Thanks to Edward Lee via CyberProf listserv for the lead.]

New Congressional Ahmadiyya Muslim Caucus Formed

The Washington Times and AFP report on the launch last Friday (2/28) of a new Congressional Ahmadiyya Muslim Caucus, co-chaired by Rep. Frank Wolf (R-VA) and Rep. Jackie Speier (D-CA). Some 15,000 to 20,000 Ahmadis live in the United States. Many orthodox Muslim groups consider the Ahmadis apostates because of their theological beliefs, and they have been persecuted particularly in Pakistan and Indonesia.  An Ahmadiyya spokesman said that the new Congressional caucus will advocate for the rights of all persecuted religious communities.  The Council on American-Islamic Relations expressed mixed feelings about the new caucus, saying: "we question Rep. Wolf’s involvement and genuine concern for issues of importance to our community given his long history of working with anti-Muslim fringe groups and causes." [Thanks to Mahmood Ahmad for the lead.]

Ukraine's Jewish Leaders Dispute Putin's Charges Of Anti-Semitism In Ukraine

Russian President Vladimir Putin held a news conference (full text) on Tuesday at which he attempted to justify recent Russian actions in Ukraine. He said in part:

What is our biggest concern? We see the rampage of reactionary forces, nationalist and anti-Semitic forces going on in certain parts of Ukraine, including Kiev.

JTA reported yesterday that an open letter to Putin from Ukraine's Jewish community took issue with his remarks about anti-Semitism.  Posted on the website of the Association of Jewish Organizations and Communities of Ukraine, the letter written in Russian (full text English translation) and signed by 21 leaders of Ukraine's Jewish community said in part:

Your certainty about the growth of anti-Semitism in Ukraine, which you expressed at your press-conference, also does not correspond to the actual facts. Perhaps you got Ukraine confused with Russia, where Jewish organizations have noticed growth in anti-Semitic tendencies last year.... The Jews of Ukraine, as all ethnic groups, are not absolutely unified in their opinion towards what is happening in the country. But we live in a democratic country and can afford a difference of opinion.

Suit Challenges Wyoming Ban On Same-Sex Marriage

National Center for Lesbian Rights announced yesterday that it has filed a state court lawsuit challenging Wyoming's statutory ban on same-sex marriage and the state's refusal to recognize same-sex marriages performed elsewhere. Unlike a number of other states, Wyoming's same-sex marriage ban is found only in state statutes, and is not embodied in the state constitution.  Also the state's refusal to recognize same-sex marriages from other jurisdictions is merely a practice that is not supported by specific statutory provisions.   The complaint (full text) in Courage v. Wyoming, (WY Dist. Ct., filed 3/5/2014), alleges that the statutory ban on same-sex marriage and the practice of refusing to recognize same-sex marriages from elsewhere violate the due process and equal protection clauses of the Wyoming state Constitution.  It also alleges that the practice of refusing to recognize out-of-state same sex marriages violates Wyoming statutory provision (Sec. 20-1-111) that provides: "All marriage contracts which are valid by the laws of the country in which contracted are valid in this state." Unlike suits filed recently in other states, this lawsuit does not contain claims that the state's ban on same-sex marriage violates the federal constitution. [Thanks to Alliance Alert for the lead.]

Senate Rejects Obama's Nominee To Head DOJ Civil Rights Division

Yesterday, the U.S. Senate rejected President Obama's nominee for Assistant Attorney General to head the Civil Rights Division of the Department of Justice-- Debo Adegbile.  Politico reports that several Senate Democrats joined Republicans in the 47-52 vote against cloture that had the effect of defeating the nomination.  Adegbile was opposed by law enforcement groups and some senators because of his previous work with the NAACP Legal Defense Fund in helping the convicted killer of a Philadelphia police officer try to overturn his death sentence. Following the vote, President Obama issued a statement (full text), saying in part:

The Senate’s failure to confirm Debo Adegbile to lead the Civil Rights Division at the Department of Justice is a travesty based on wildly unfair character attacks against a good and qualified public servant.  Mr. Adegbile’s qualifications are impeccable.  He represents the best of the legal profession.... The fact that his nomination was defeated solely based on his legal representation of a defendant runs contrary to a fundamental principle of our system of justice....

British Broadcast Agency Approves KFC's Parody Christmas Ad Campaign

In Britain, broadcast industry self-regulation requires all broadcast ads to be pre-approved to make certain that they comply with the UK Code of Broadcast Advertising.  Most of the pre-clearance is done by Clearcast-- an agency created by the country's largest broadcasters.  Huffington Post reported yesterday that Kentucky Fried Chicken has obtained clearance for its tongue-in-cheek Christmas ad campaign that some complained mocked Christian worship:

The two television ads and a video on demand ad featured a group of carol singers outside a house singing the lyrics: "We showed up at your house again singing all our stupid songs", with the male homeowner replying: "Normally I'd hose you down, but now it just seems wrong."

Affidavit Does Not Establish Applicability of Ministerial Exception Doctrine

Hough v. Roman Catholic Diocese of Erie, (WD PA, March 4, 2014), is an Age Discrimination In Employment suit brought by three former Catholic parochial school teachers who were not hired into a consolidated Catholic school system created when their school closed. The Diocese moved for summary judgment claiming that the "ministerial exception" doctrine precludes plaintiffs' lawsuit.  The only evidence that plaintiffs qualify as "ministers" for purposes of the exception were affidavits from the diocese's Vicar for Education stating that all parochial school teachers are considered to be ministers of the faith-- instruction in religious truth and values is infused in all parts of the curriculum. The Pennsylvania federal district court denied defendants' the motion for summary judgment, saying in part:

Although the Supreme Court refused to provide a bright line test for a determination of when someone is accorded ministerial status, Defendants’ argument – that all teachers are considered to be ministers by Defendants – was not enough, in and of itself, for the high court in Hosanna-Tabor.

German Home School Family That Was Denied SCOTUS Review Gets Deferred Status From DHS

Fox News reports that in a surprising development yesterday, one day after the U.S. Supreme Court denied certiorari in the home schooling asylum case of Romeike v. Holder (see prior posting), the Department of Homeland Security granted "indefinite deferred status" to the Romeike family.  This means that the German family which home schools its children largely because of the family's Christian religious beliefs will not be deported back to Germany where laws prohibit home schooling.  The Romeike family who moved to Tennessee in 2008 were originally granted asylum in 2010, but government appeals of the immigration judge's ruling led to a reversal.

Cert. Petition Seeks SCOTUS Review of Latest Mt.Soledad Cross Decision Ahead of 9th Circuit

A petition for certiorari before judgment (full text) was filed yesterday with the U.S. Supreme Court in Mt. Soledad Memorial Association v. Trunk, asking the Court to review the latest decision in the long-running case prior to the 9th Circuit hearing arguments or deciding the latest appeal.  Petitioners are seeking review of a December federal district court order requiring a 43-foot high cross to be removed from the now federally-owned Mt. Soledad Veterans Memorial in California. (See prior posting.) Legal challenges to the cross have worked their way up and down the courts for 25 years. Liberty Institute issued a press release announcing the filing of the petition.

Kentucky Baptists Use Second Amendment Themes To Reach the Unchurched

The Louisville Courier Journal last week reported on the Kentucky Baptist Convention's (KBC) effort to reach unchurched men through "Second Amendment Celebrations."  Guns are given away as door prizes at the events at which speakers focus on hunting and opposition to gun control. KBC spokesman Roger Alford described the controversial events as "outreach to rednecks." He explained:

The day of hanging a banner in front of your church and saying you’re having a revival and expecting the community to show up is over.... You have to know the hook that will attract people, and hunting is huge in Kentucky. So we get in there and burp and scratch and talk about the right to bear arms and that stuff..... We have found that the number of unchurched men who will show up will be in direct proportion to the number of guns you give away.

Reportedly 1,678 men made "professions of faith" at 50 such events last year.

Kentucky To Hire Outside Counsel To Defend Its Refusal To Recognize Same-Sex Marriages, Over AG's Dissent

As previously reported, last month a federal district court ordered Kentucky to recognize same-sex marriages performed in other jurisdictions. The state quickly however filed a motion asking for a stay while it considered its options, and last Friday the court granted a stay until March 20. (Louisville Courier Journal). As reported by AP, yesterday Kentucky Attorney General Jack Conway announced that he will not appeal the decision or seek further stays. In a statement (full text) posted on the Attorney General's website, he said that the federal court's decision was correct and that he should not be wasting state resources on a case the state is unlikely to win.  He added that he "came to the inescapable conclusion" that defending Kentucky's refusal to recognize same-sex marriage would be defending discrimination. However moments after the Attorney General's announcement, Kentucky Governor Steve Beshear announced (full text) that the state will hire other counsel to seek a further stay and pursue an appeal to the 6th Circuit in order to "bring certainty and finality to this important matter." [Thanks to Tom Rutledge for the lead.]

European Court of Human Rights Upholds British Refusal To Treat Mormon Temple As Place of Public Worship For Tax Purposes

In Church of Jesus Christ of Latter Day Saints v. United Kingdom, (ECHR, March 4, 2014), the European Court of Human Rights, Fourth Section, held that Britain did not violate the non-discrimination provisions of Art. 14 of the European Convention on Human Rights, nor the freedom of conscience and religion provisions of Art. 9, when it held that a Mormon Temple was subject to a reduced tax rate as a place used for charitable purposes, but was not entitled to the full exemption from property taxes that is available to places of "public religious worship."  Entry to the Temple is limited to devout Church members who hold a "recommend" from the bishop. The Church's stake center, with its chapel, hall and ancillary rooms, on the same site had been granted the full exemption since entry to them was not limited. In finding no discrimination, the Court said in part:

To establish differential treatment, the applicant Church relied on the argument that, because of the nature of its doctrine, which holds that access to the temple should be restricted to its most devout members who hold a current “recommend”, the law ... provided a lower fiscal advantage to the Mormon Church than to such other faiths as to not restrict access to any of their places of worship.... [I]t is open to doubt whether the refusal to accord an exemption in respect of the applicant Church’s temple in Preston gave rise to any difference of treatment of comparable groups, given that the tax law in question applied in the same way to, and produced the same result in relation to, all religious organisations, including the Church of England in respect of its private chapels. Neither is the Court convinced that the applicant Church was in a significantly different position from other churches ... so as to call for differential treatment ..., since other faiths likewise do not allow access of the public to certain of their places of worship for doctrinal reasons.

Law & Religion UK reports on the decision. [Thanks To Paul DeMello, Jr. for the lead.]

Judicial Conduct Board Convicts Magistrate For Insisting On Child's Name Change

Reuters reports that yesterday a 6-person panel of the Tennessee Judicial Board of Conduct found former child-support magistrate Lu Ann Ballew guilty on charges of violating judicial canons regarding impartiality and bias.  The charges stem from a case in which she insisted that parents change their child's first name from "Messiah" to "Martin" because only Jesus should be called "Messiah." She has already been fired from her position as magistrate because of her conduct. (See prior posting.) The panel will be releasing a written opinion in the case later.

North Korea Releases Australian Christian Missionary After He Signs Apology

According to yesterday's International Business Times, the North Korean government has released 75-year old missionary John Short after he signed a confession asking forgiveness for his "insult to the Korean people on February 16" when he distributed Korean-language Christian Bible tracts at a Buddhist temple. Short, an Australian, lives in Hong Kong. The North Korean Central News Agency said that the government decided to expel him "in full consideration of his age." (See prior related posting.)

Supreme Court Denies Review In Home School Asylum Case

The U.S. Supreme Court today denied certiorari in Romeike v. Holder, (Docket No. 13-471, cert. den. 3/3/2014)). (Order List.) In the case, which has been widely followed by home school advocates, the 6th Circuit denied asylum to a German evangelical Christian family that sought to remain in the United States based on a fear of persecution in Germany because of Germany's ban on home schooling. (See prior posting.)

Supreme Court Grants Review In Muslim Prisoner's Challenge To Grooming Rules Barring Beards

The U.S. Supreme Court today granted certiorari in Holt v. Hobbs, (Docket No. 13-6827, cert. granted 3/3/2014). It also granted petitioner's motion to proceed in forma pauperis. (Order List.) In the case, the 8th Circuit affirmed the district court's decision upholding the grooming policy of the Arkansas Department of Corrections that allows inmates to wear trimmed mustaches but otherwise no facial hair, with quarter-inch beards permitted only for a diagnosed dermatological problem. Inmate Gregory Holt is a Muslim whose religious beliefs require him to grow a beard.  He proposed that he be allowed to maintain a half-inch beard as a compromise position, to balance his religious beliefs with the prison's security needs. In its per curiam opinion, the 8th Circuit held that "defendants met their burden under RLUIPA of establishing that ADC's grooming policy was the least restrictive means of furthering a compelling penological interest." Last November, the Supreme Court took the unusual step of granting Holt (who also goes by the name Abdul Maalik Muhammad) an injunction barring Arkansas from enforcing its grooming policy against him pending disposition of Holt's cert petition and of the appeal now that review has been granted. According to SCOTUS Blog, arguments in this case will not be heard until next Fall.

UPDATE: Later in the day on March 3, the Supreme Court issued an order (full text) modifying its grant of certiorari, clarifying that the it is limited to the question of whether Arkansas' grooming policy violates RLUIPA "to the extent that it
 prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs."

Recent Articles, Forthcoming Books and Movie, of Interest

From SSRN:

• Nicole Jones, Did Fortune Tellers See this Coming? Spiritual Counseling, Professional Speech, and the First Amendment, (February 13, 2014).
• Allison G. Morrow, Will Your Religion Allow You…to Live? The Mature Minor Doctrine, Religious Exemptions, and a Look into Louisiana Law, (December 1, 2013).
• Mark L. Movsesian, Defining Religion in American Law: Psychic Sophie and the Rise of the Nones, (Robert Schuman Centre for Advanced Studies Research Paper No. 2014/19 (2014)).
• Ian C. Bartrum, The Curious Case of Legislative Prayer: Town of Greece v. Galloway, (Northwestern University Law Review Online Vol. 108, p. 218, 2014).
• Steven Douglas Smith, Is God Irrelevant?, (Boston University Law Review, Forthcoming).
• Caroline King, The Most Reasonable Standard: Why Justice O'Connor's Endorsement Test Applying the Reasonable Observer Should Be the Preferred Test for Evaluating Establishment Clause Violations, (February 7, 2014).
• James M. Oleske, Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses, (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 50, Forthcoming).
• Priscilla J. Smith, Who Decides Conscience? RFRA's Catch 22, (Brooklyn Journal of Law and Policy, Forthcoming).
• Courtney M. Cahill & Geoffrey Christopher Rapp, Does the Public Care How the Supreme Court Reasons? Empirical Evidence from a National Experiment and Normative Concerns in the Case of Same-Sex Marriage, (93 North Carolina Law Review, 2014, Forthcoming).
• Cary Franklin, Discriminatory Animus, (A Nation of Widening Opportunities? The Civil Rights Act at Fifty (Samuel Bagenstos and Ellen Katz, eds., University of Michigan Press 2014)).
• SpearIt, Muslim Radicalization in Prison: Responding with Sound Penal Policy or the Sound of Alarm?, (Gonzaga Law Review, Vol. 49, No. 1, 2014).

From SSRN (non-U.S. law):

• Steven Douglas Smith, West and East: the Continuity of Persons, (San Diego Legal Studies Paper No. 14-141 (Feb. 2014)).
• Paula Defensor Knack, Legal Frameworks and Land Issues in Muslim Mindanao, (in Land and Post-conflict Peacebuilding, Jon Unruh & Rhodri Williams (eds.), Earthscan, 2013, pp 451-474).
• Gustavo Ariel Kaufman, Racial Discrimination vs. Religious Freedom in the JFS Decision, (February 19, 2014).
• Ioanna Tourkochoriti, Should Hate Speech Be Protected? Group Defamation, Party Bans, Holocaust Denial and the Divide between (France) Europe and the United States, (45 Columbia Human Rights Law Review (2014), Forthcoming).

SCOTUS Blog Contraceptive Mandate Symposium (Feb. 24-28, 2014):

• Rick Garnett, Symposium: Accommodations, religious freedom, and the Hobby Lobby case
• Elizabeth Wydra, Symposium: Under a straight-forward reading of constitutional text and history and fundamentals of corporate law, Hobby Lobby’s claims fail
• Mailee Smith, Symposium: In a battle of semantics, the family businesses win with scientific facts
• Ilya Shapiro, Symposium: Mandates make martyrs out of corporate owners

From elsewhere:

• Mark E. Chopko, Regulating Religious Charity: Current Issues and Future Challenges, 44 Rutgers Law Journal 55-88 (2013).
• Eugene Volokh, Religious Law (Especially Islamic Law) In American Courts, 66 Oklahoma Law Review 431-458 (2014).

Forthcoming Books:

• Steven P. Miller, The Age of Evangelicalism: America's Born-Again Years,  (Oxford Univ. Press, June 2014).
• Jimmy Carter, A Call to Action: Women, Religion, Violence, and Power, (Simon & Schuster, March 2014).

Forthcoming Movie:

• Daniel Lusco, Persecuted, (May 9, 2014) (reviewed by the Christian Post).

University In The Middle of 1st Amendment Tussle Over Donor's Plaque

The Indianapolis Star reported last Friday on dispute between Purdue University and one of its donors:

When Michael McCracken and his wife made a $12,500 donation to Purdue’s School of Mechanical Engineering in 2012, Purdue asked the engineering graduate to provide an inscription for a conference room dedication plaque, which would be installed in the recently renovated Herrick Laboratories.

But the words McCracken chose, in honor of his parents, turned out to be controversial.

“To those who seek to better the world through the understanding of God’s physical laws and innovation of practical solutions. In honor of Dr. William ‘Ed’ and Glenda McCracken.”

Purdue rejected the proposed inscription, concerned about church-state issues. Its attorney said:

[G]iven the facts here, our status as a public institution, and the hopelessly muddled state of jurisprudence in this particular area, we could fully expect lengthy and expensive litigation that would wipe out the value of this donation many times over, and we just don’t think that’s advisable for either the donor or the university. Still, we remain open to continued discussions, as we’d much prefer to be in the mode of expressing gratitude, not disagreement, to our donors.

The University's hope of avoiding expensive litigation, however, seems unrealistic.  The attorney for the McCrackens wrote the University on Feb. 26 (full text of letter) suggesting alternative language that makes it clearer that the inscription is private speech of the McCrackens. The letter concluded:

Please let us know by March 5, 2014, if you are open to discussing a potential resolution. If not, Dr. McCracken has instructed us to commence litigation to preserve the McCrackens' First Amendment right to reference "God's physical laws" on the plaque. We note that, if thismatter proceedsto litigation and Dr. McCracken prevails, the University will be responsible for his attorneys' fees.

Recent Prisoner Free Exercise Cases

In Yah'Torah v. New Jersey Department of Corrections, 2014 N.J. Super. Unpub. LEXIS 346 (NJ App., Feb. 21, 2014), a New Jersey appellate court concluded that  a Jewish inmate had not shown that his free exercise or RLUIPA rights were violated by the refusal of prison authorities to furnish him goat or sheep meat, grape juice, pistachio nuts, cashew nuts, honeydew melon or watermelon, onions, goat cheese, and leeks to celebrate the New Moon festival.

In Santo Mujahid Islaam v. Greco, 2014 U.S. Dist. LEXIS 21866 (D NJ, Feb. 21, 2014), a New Jersey federal district court allowed an inmate to proceed with his complaint that he was denied the right to attend Muslim Friday prayer services. Other inmates named in the complaint were given the option of joining the action upon payment of filing fees.

In Toppin v. Kornegay, 2014 U.S. Dist. LEXIS 21888 (E.D.N.C. Feb. 21, 2014), a North Carolina federal district court rejected a Native American inmate's claim that a search of his cell involving handling of his sacred items box violated his free exercise rights.

In Lizama v. Hendricks, 2014 U.S. Dist. LEXIS 22955 (D NJ, Feb. 20, 2014), a New Jersey federal district court dismissed without prejudice an inmate's complaint that one of the defendants failed to provide him with his kosher meal.

In Winder v. Maynard, 2014 U.S. Dist. LEXIS 23038 (D MD, Feb. 24, 2014), a Maryland federal district court dismissed a complaint by a Wiccan inmate that his celebration of the Samhain Feast was impaired when authorities refused to allow Wiccans to prepare and serve pork products through the prison kitchen facilities.

In Johnson v. Lowry, 2014 U.S. Dist. LEXIS 23216 (ND IN, Feb. 21, 2014), an Indiana federal district court permitted a Native American inmate to move ahead with his free exercise and RLUIPA injunctive action challenging the prison's refusal to allow him to possess various religious items in his cell and to have group services.

In Buckner v. Allen, 2014 U.S. Dist. LEXIS 22695 (MD AL, Feb. 24, 2014), an Alabama federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 23724, Feb. 3, 2014) and dismissed a complaint by a Native American inmate alleging denial of tobacco use during religious ceremonies, interruption of ceremonies, limited use of fires and sweat lodge, allowance of gang members on ceremonial grounds, and the chaplain's desecration of religious items by touching them.

In Davis v. Pierce, 2014 U.S. Dist. LEXIS 25030 (SD TX, Feb. 27, 2014), a Texas federal magistrate judge rejected Native American inmates' challenges to the ban on inmates smoking the ceremonial pipe, infrequent Native American religious services, the grooming policy and the ban on medicine bags outside of cells.

In Hodges v. Sharon, 2014 U.S. Dist. LEXIS 25453 (ED CA, Feb. 26, 2014), a California federal magistrate judge permitted a Messianic Jewish inmate to proceed with his free exercise, RLUIPA and equal protection claims alleging denial of various religious practices, including weekly services and holiday celebrations.

In Godbey v. Wilson, 2014 U.S. Dist. LEXIS 25436 (ED VA, Feb. 26, 2014), a Virginia federal district court dismissed complaints by an inmate who is an Asatru adherent that he is not allowed to drink alcoholic mead during religious ceremonies or wear his hlath (headband with symbols on it) outside the prison chapel.

In Begnoche v. Derose, 2014 U.S. Dist. LEXIS 25580 (MD PA, Feb. 28, 2014), a Pennsylvania federal district court refused to dismiss a Native American inmate's free exercise claims against 3 defendants alleging that they failed to provide him with a spiritual advisor, denied him religious items such as prayer feathers and denied him a special food tray during the Green Corn feast celebration.

In Free v. Garcia, 2014 U.S. Dist. LEXIS 25128 (WD OK, Feb. 27, 2014), an Oklahoma federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 26100, Feb. 14, 2014) and dismissed claims (some with and some without prejudice) that an inmate who is a House of Yahweh adherent did not receive his requested religious meals. A motion to amend the complaint was referred back to the magistrate judge.

State Agency May Bar Employee From Selling His Religious Book During Work Time

In Okemgbo v. Washington State Department of Ecology, (ED WA, Feb. 24, 2014), a Washington federal district court upheld against a First Amendment challenge a state agency's imposing on one of its employees who had authored a book on Christianity and marriage the following work restrictions:

You are not to use your work time for any non-work activity including:

• Promoting and soliciting contributions of money, time or other donations for your non-profit organization or other non-work related activities that you are involved in

• Promoting, selling and/or distributing your book on marriage

• Promoting religious opinions, providing religious information, counseling, offers to pray.

The court concluded that: "the Department’s interest in maintaining a workplace that is free of sexual harassment, does not promote a particular religion, and which maintains some semblance of order and efficiency outweighs the Plaintiff’s interest in selling his book, promoting his religious beliefs, or running his nonprofit organization, while he is supposed to be working."

In Mexican Village, Utility Shut-Off Used To Force Protestant Families To Contribute To Local Catholic Festivals

According to a press release issued last week by Christian Solidarity Worldwide USA, in the Mexican village of Unión Juárez (in Chiapas state) 25 Protestant families who belong to the Mount Tabor Evangelical Church have had their water and electricity cut off for refusing to contribute financially to Traditionalist Catholic religious festivals in the village. The actions against the families began Feb. 11.  Guards, ropes and chains have been placed around the families' homes to prevent them from reconnecting their services or receiving visitors until they pay 500 pesos (approximately $38) each. Village authorities base their demands on the Law of Uses and Customs which gives indigenous populations autonomy to exercise traditional governance forms. The families have filed a complaint with the National Commission for Human Rights.

Muslim County Worker Wins $1.2 Million In Employment Discrimination Suit

The Detroit Free Press reports that after a two-week employment discrimination trial, a federal court jury in Michigan on Thursday awarded nearly $1.2 million to Ypsilanti (MI) resident Ali Aboubaker, a Muslim.  Plaintiff, a U.S. citizen originally from Tunisia who holds four advanced degrees, claims that his firing from his maintenance engineer job with Washtenaw County was based on ethnic, religious and racial discrimination.  Aboubaker, who worked for the county for 17 years, says he was constantly subjected to racial and ethnic taunts-- especially focusing on his long beard-- and management did nothing about it. His suit also challenged a promotion he did not receive.

State Department's Human Rights Report Includes International Religious Discrimination Concerns

Last Thursday, Secretary of State John Kerry released the U.S. State Department's Country Reports on Human Rights Practices for 2013. While the report leaves the assessment of religious liberty around the world to the State Department's annual International Religious Freedom Report, Thursday's Human Rights report covers religious discrimination concerns for each country. The report's Introduction summarized these concerns:

Religious and ethnic minorities continued to face extreme restrictions and were targets of repression by governments and subject to societal discrimination across the globe.  In China, the government continued to implement repressive policies against ethnic Uighurs and Tibetans. 

In Pakistan, religious minorities faced a specter of growing violence during the year, including a deadly September church bombing in Peshawar that claimed more than 80 lives and three other incidents that killed at least 244 Shia Muslims. Religious minorities also faced discriminatory laws, societal intolerance, and a lack of accountability for crimes against them. 

In Iran, the government continued its egregious repression of Baha’i whose seven leaders remained in prison as did Christian pastor Saeed Abedini at year’s end. Attacks against Christians and Shia Muslims continued in Egypt as did attacks against Christians, Yezidis, Sabean Mandaeans, and other religious minorities in Iraq, often with a lack of accountability for the perpetrators. Ahmadi Muslims continued to face violence and repression in places such as Indonesia, as well as disenfranchisement in places such as Pakistan. 

Anti-Semitism also remained a significant problem in 2013. According to a survey of eight European member states by the European Union Agency for Fundamental Rights, harassment of Jews continued, with one-quarter of respondents stating they experienced some form of anti-Semitic harassment in the 12 months before the survey. In the Middle East, media occasionally contained anti-Semitic articles and cartoons, some of which glorified or denied the Holocaust and blamed all Jews for actions by the state of Israel. 

Threats to religious practice also emerged during the year. For example, the Parliamentary Assembly of the Council of Europe passed a non-binding resolution implying that religious male circumcision – as practiced by Jews and Muslims, and other religions – is a human rights violation.

Ukrainian Religious Organizations Impacted By Russian Actions

Not surprisingly, the rapidly developing conflict between Ukraine and Russia is impacting Ukraine's religious institutions.  The Orthodox Church-- the dominant religion in Ukraine-- is split between three factions. These are the pro- Russian Ukrainian Orthodox Church (Moscow Patriarchate); the Ukrainian Orthodox Church (Kiev Patriarchate) which dominates Kiev and the central region of the country; and the Ukrainian Autocephalous Orthodox Church whose membership is mainly in the western half of Ukraine. According to The Economnist, this past Monday Moscow moved to assure its control over the Ukrainian Church that is part of the Moscow Patriarchate:

On Monday, the ruling synod of the UOC met and named a "locum tenens" to run the institution's headquarters in Kiev because of the incapacity of its elderly leader, Metropolitan Volodymyr.... The synod said it had ascertained that Metropolitan Volodymyr was definitely too ill to carry out his duties. The new acting leader, a certain Metropolitan Onufry from the southwest of Ukraine, certainly looks, from his biography, like a man who will remain in step with Moscow....

However the synod also accepted a proposal from the Kiev Patriarchate for dialogue.  Some think this is an attempt to continue to be a player should the Ukrainian government move toward creating a single national church.

Meanwhile, as reported by RIA Novosti, on Wednesday in the northern Ukrainian city of Sumy, a dozen backers of the Kiev Patriarchate attempted to seize a UOC-MP cathedral and threatened to set it on fire.  Other religious groups are also responding.  Yesterday's Catholic Sun reports that the Catholic bishop whose diocese includes Crimea issued a statement calling for "all believers and nonbelievers to refrain from extremism, and not to allow the fraternal bond between people living in Crimea to break."

New York Jewish Week this week reports on the uncertain situation of the Jewish community in Ukraine. There have been a few anti-Semitic incidents, including the fire bombing of a synagogue.  Several outside agencies are providing aid, including funds for increased security, for the Jewish community.

Islamist Syrian Rebel Group Imposes Strict Controls On Christians In Town of Raqqa

BBC News reported yesterday that in the northern Syrian town of Raqqa, the rebel group Islamic State in Iraq and the Levant (ISIS) that controls the city has announced online that it is imposing new controls on Christians there. Christians must pay a special tax of 14 grams of gold, may not carry arms, may not renovate their churches, display crosses or other religious symbols outside churches, ring church bells, or pray in public. The group said that Christians must either convert to Islam or accept these conditions or else risk being killed. ISIS said 20 Christian leaders have accepted the conditions. Rival rebel groups have been fighting ISIS since last month.

$525M Default Judgment Entered Against Affiliate of Evangelist Tony Alamo

AP reports that an Arkansas trial court yesterday issued a $525 million default judgment against Twenty First Century Holiness Tabernacle Church-- an affiliate of Alamo Ministries.  The judgment came in a suit by 7 women who as young girls were physically, sexually and psychologically abused by evangelist Tony Alamo.  Alamo is presently serving a 175-year prison sentence for taking girls across state lines for sex. (See prior posting.) This week's default judgment gave each victim both actual and punitive damages in amounts totaling between $30 and $87 million per victim. Plaintiffs' attorney plans to register the judgment in California and begin levying on property there to satisfy the judgment.

Court Issues Final Order On Recognition of Out-of-State Same-Sex Marriages In Kentucky; Intervenors Pursuing Additional Relief

As previously reported, earlier this month a Kentucky federal district court issued an opinion holding unconstitutional Kentucky provisions that deny recognition to same-sex marriages performed in other jurisdictions. As reported by the Louisville Courier Journal and Insider Louisville, after a hearing on Tuesday, the court issued its final order (full text) implementing the decision (Bourke v. Beshear,  (WD KY, Feb. 27, 2014)). At the hearing, the deputy attorney general told the court that he did not have authority at that time to ask for a stay of the decision, and the court's final order thus did not contain a stay pending appeal. However the state subsequently quickly filed a motion (full text) asking for a 90-day stay to "give Defendants time to determine if they will appeal the order, and the Executive Branch time to determine what actions must be taken to implement this Court’s Order if no appeal is taken."

Meanwhile, the court yesterday also allowed (full text of order) two other couples to intervene in the case to pursue their claims (full text of intervenors' complaint) that Kentucky laws banning the issuance of marriage licenses to same-sex couples are also unconstitutional. [Thanks to Tom Rutledge for the lead.]

Veterans' Memorial Design Featuring Cross Held Unconstitutional

Following on a preliminary injunction issued last July (see prior posting), this week after a bench trial a California federal district court in American Humanist Association v. City of Lake Elsinore, (CD CA, Feb. 24, 2014), held that a veterans'-memorial design approved by the Lake Elsinore (CA) City Council violates the U.S. Constitution's Establishment Clause and the California constitution's Establishment and No Preference Clauses. The memorial includes a soldier kneeling with his gun in front of a 1.4 foot cross, and a row of approximately eight additional crosses and two Stars of David behind the central cross. The court, after tracing in detail the history of the design and redesign of the proposed monument concluded that the city had not shown a predominately secular purpose for including the Latin cross in the design, and its principal effect is to advance religion.  The city's contention that the multiple crosses and stars of David added in a redesign of the monument had the secular purpose of depicting a historic European World War II military cemetery was described by the court as "only a litigating position." American Humanist Association issued a press release calling attention to the decision.

Virginia Legislature Passes Student Religious Expression Bill; Veto Expected

As reported by Metro Weekly, yesterday the Virginia General Assembly gave final passage to SB 236 which protects student religious expression in public schools. The vote was 20-18 in the Senate and 64-34 in the House of Delegates.  The bill would protect voluntary student prayer and prayer gatherings before, during and after school; wearing of clothing or jewelry displaying religious messages; and expression of religious viewpoints by neutrally selected student speakers at graduation and similar events. As reported in Tuesday's Roanoke Times, Gov. Terry McAuliffe's office has said that the governor will veto the bill out of concern for its constitutionality and its unintended consequences.

UPDATE: The Washington Post reports, as expected, that Gov. McAuliffe vetoed the bill on April 4.  [Thanks to Scott Mange for the lead.]

9th Circuit: Court Should Order Removal of "Innocence of Muslims" From YouTube

In Garcia v. Google, Inc., (9th Cir., Feb. 26, 2014), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, held that a preliminary injunction should be granted to require the controversial film "Innocence of Muslims" to be removed from YouTube. The suit was filed by Cindy Lee Garcia who acted in a portion of the film.  As explained by the court:

The film’s writer and producer ...cast Garcia in a minor role [in a film with the working title "Desert Warrior."] Garcia was ... paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.” Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”

These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage.  An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.

As summarized by the court:

The panel concluded that the plaintiff established a likelihood of success on the merits of her claim of [copyright] infringement of her performance within the film because she proved that she likely had an independent interest in the performance and that the filmmaker did not own an interest as a work for hire and exceeded any implied license to use the plaintiff’s performance.

Volokh Conspiracy has an extensive analysis of the decision. (See prior related posting.)

UPDATE: On Feb. 28, the 9th Circuit issued a revised preliminary injunction (full text) making it clear that the injunction "does not preclude the posting or display of any version of “Innocence of Muslims” that does not include Cindy Lee Garcia’s performance." [Thanks to Volokh Conspiracy for the lead.]

Arizona Governor Vetoes Anti-Gay Religious Freedom Bill

As reported by the Arizona Daily Star, yesterday Arizona Gov. Jan Brewer vetoed H.B. 1062, the controversial amendments to the state's Religious Freedom Restoration Act that would, among other things, have allowed businesses to invoke religious freedom claims to refuse to serve gays and lesbians, particularly in the context of same-sex marriages. (See prior posting.) Announcing her decision at a news conference (full text of remarks), Brewer said that the bill is unneeded and "could divide Arizona in ways we cannot even imagine and no one would ever want." In her formal Veto Letter (full text), Brewer said in part:

Senate Bill 1062 ... does not seek to address a specific and present concern related to Arizona businesses.  The out-of-state examples cited by proponents of the bill, while concerning, are issues not currently existing in Arizona.  Furthermore, the bill is broadly worded and could result in unintended and negative consequences.  The legislation seeks to protect businesses, yet the business community overwhelmingly opposes the proposed law.  Moreover, some legislators that voted for the bill have reconsidered their votes and now do not want this legislation to become law.

Federal District Court Strikes Down Texas Ban On Same-Sex Marriage

Yesterday in De Leon v. Perry, (WD TX, Feb. 26, 2014), a Texas federal district court held unconstitutional Texas' statutory and constitutional bans on same-sex marriages and their prohibition on recognizing same-sex marriages performed elsewhere. Granting a preliminary injunction, the court said:

[T]oday's Court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. Furthermore, Supreme Court precedent prohibits states from passing legislation born out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).

Applying the United States Constitution and the legal principles binding on this Court by Supreme Court precedent, the Court finds that Article I, Section 32 of the Texas Constitution and corresponding provisions of the Texas Family Code are unconstitutional. These Texas laws deny Plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex. The Court finds this denial violates Plaintiffs' equal protection and due process rights under the Fourteenth Amendment to the United States Constitution.

The court however stayed the execution of the preliminary injunction pending final disposition of any appeal to the 5th Circuit. According to the Dallas Morning News , state attorney general Greg Abbott says the state will appeal.  Washington Post places the decision in a broader context. Texas Gov. Rick Perry yesterday issued a statement (full text) reacting to the decision, saying in part:

it is not the role of the federal government to overturn the will of our citizens. The 10th Amendment guarantees Texas voters the freedom to make these decisions, and this is yet another attempt to achieve via the courts what couldn't be achieved at the ballot box.

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.

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.

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.)

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.

Recent Articles of Interst

From SSRN:

• John D. Haskell, The Scandal of Disenchantment: Blind Spots in Modern Anglo-American Approaches to the History and Politics of International Law, (University of Memphis Law Review, Vol. 44, 2013).
• Oren Gross, Venerate, Amend...and Violate, (Arizona State Law Journal, Vol. 46, Forthcoming).
• James M. Oleske, Obamacare, RFRA, and the Perils of Legislative History, (67 Vanderbilt Law Review En Banc (2014 Forthcoming)).
• Stephen M. Bainbridge, A Critique of the Corporate Law Professors’ Amicus Brief in Hobby Lobby and Conestoga Wood, (UCLA School of Law, Law-Econ Research Paper No. 14-03, 2014).
• Daniel John Crooks, Toward 'Liberty': How the Marriage of Substantive Due Process and Equal Protection in Lawrence and Windsor Sets the Stage for the Inevitable Loving of Our Time, (8 Charleston L. Rev. 223 (2014)).
• Dorit Rubinstein Reiss, Thou Shalt Not Take the Name of the Lord Thy God in Vain: Use and Abuse of Religious Exemptions from School Immunization Requirements, (Hastings Law Journal, Vol. 65, No. 6, 2014).
• Brian Leiter, Preface to the Paperback Edition of Why Tolerate Religion?, (Why Tolerate Religion? (Princeton University Press, cloth edition, 2013; 2014 Forthcoming)).
• Michael J. Perry, Adjudicating Rights-Based Constitutional Claims: The Morality of Human Rights and the Power of Judicial Review, (Emory Legal Studies Research Paper No. 14-271 (2014)).

From SSRN (Establishment Clause issues):

• Alan E. Brownstein, Town of Greece v. Galloway: Constitutional Challenges to State Sponsored Prayers at Local Government Meetings, (47 UC Davis Law Review, (2014 Forthcoming)).
• Edward A. Zelinsky, The First Amendment and the Parsonage Allowance, (Tax Notes, Vol. 142, No. 4, Jan. 27, 2014).
• Carolyn Homer Thomas, The Copyright Act's Licensing Exemption for Religious Performances of Religious Works Is Unconstitutional, (DePaul Law Review, Vol. 63, No. 1, p. 49, 2013).
• Haley Palfreyman Jankowski, Neutrality Fatality as between Government Speech and Religion and Nonreligion: How the Government Speech Doctrine Provides a Solution, (Brigham Young University Law Review 363, 2013).

From SSRN (Non-U.S. Law):

• Dmitry Uzlaner, The Pussy Riot Case and the Peculiarities of Russian Post-Secularism, (State, Religion and Church. 2014. 1(1): 23-58).
• Rajeev Bhargava, State and Religious Diversity: Can Something Be Learnt from the Indian Model of Secularism?, (Robert Schuman Centre for Advanced Studies Research Paper No. PP 2014/03 (Feb. 2014)).
• Sorin Alexandru Vernea, Engagement Prior to Marriage – A Short Walk Through the History of Romanian Law, (Social Economic Debates, December 2013, Vol. 2, No. 2). 
• Kerstin Steiner, The Case Continues? The High Courts in Malaysia and Unilateral Conversion of a Child to Islam by One Parent, (Australian Journal of Asian Law, Vol. 14, No. 2, Article 10, 2013).
• M.B. Hooker, Essay: Maria Was a Christian - Nadra Was a Muslim: Hertogh Revisited, (Australian Journal of Asian Law, Vol. 14, No. 2, Article 8, 2013).
• Uladzislau Belavusau, Hate Speech and Constitutional Democracy in Eastern Europe: Transitional and Militant? (Czech Republic, Hungary and Poland), (Israel Law Review, Vol. 47, Issue 1. pp. 27-61 (2014)).

SCOTUS Blog Contraceptive Mandate Symposium (Feb. 17-24, 2014):

• Marty Lederman, Symposium: How to understand Hobby Lobby.
• Jessie Hill, Symposium: The Contraceptives Coverage Controversy-- What's Old Is New Again.
• John Bursch, Symposium: Hobby Lobby and Conestoga: The Most Difficult-to-Answer Question.
• Michael Dorf, Symposium: Why is RFRA Still Valid Against the Federal Government?
• Douglas Laycock, Symposium: Congress Answered This Question: Corporations Are Covered.
• Ira Lupu and Robert Tuttle, Symposium: Religious Questions and Saving Constructions.

From SmartCILP:

• Daniel P. Dalton, The Religious Land Use and Institutionalized Persons Act--Recent Decisions and Developments, 45 Urban Lawyer 741-767 (2013).
• Robert W. Kerns Jr., Protecting the Faithful From Their Faith: A Proposal for Snake-Handling Law in West Virginia, [Abstract], 116 West Virginia Law Review 561-581 (2013).
• Monica Youn, Proposition 8 and the Mormon Church: A Case Study in Donor Disclosure, 81 George Washington Law Revies 2108-2154 (2013). 
• Mee-Yin Mary Yuen, Human Rights in China: Examining the Human Rights Values in Chinese Confucian Ethics and Roman Catholic Social Teachings, 8 Intercultural Human Rights Law Review 281-321 (2013).