Recent Articles of Interest

From SSRN:

• Marvin Lim, A New Approach to the Ethics of Life: The 'Will to Live' in Lieu of Traditionalists' Notion of Natural/Rational and Progressives' Autonomy/ Consciousness, (April 4, 2014).
• Arjya B. Majumdar, Zakat, Dana and Corporate Social Responsibility, (April 6, 2014).
• Corinna Lain, God, Civic Virtue, and the American Way: Reconstructing Engel, (Stanford Law Review, Vol. 67 (2015 Forthcoming)).
• Hannah Lepow, Speaking Up: The Challenges to Section 501(C)(3)'s Political Activities Prohibition in a Post-Citizens United World, (Columbia Business Law Review, Forthcoming).
• R. Craig Wood & William E. Thro, Originalism and the State Education Clauses: The Louisiana Voucher Case as an Illustration, (Education Law Reporter, 2014, Forthcoming).
• Jay Ulfelder, Using the 'Wisdom of (Expert) Crowds' to Forecast Mass Atrocities, (March 27, 2014).
• Ellen P. Aprill, Nonprofits and Political Activity: Lessons from England and Canada, (142 Tax Notes 1114 (2014); Loyola-LA Legal Studies Paper No. 2014-9).

From SmartCILP:

• Tom Johnson, The Preconstruction of Witness Testimony: Law and Social Discourse in England Before the Reformation, 32 Law & History Review 127-147 (2014).
• Turan Kayaoglu, Giving an Inch Only to Lose A Mile: Muslim States, Liberalism, and Human Rights in the United Nations, 36 Human Rights Quarterly 61-89 (2014).
• John Rhodes, Up In Smoke: The Religious Freedom Restoration Act and Federal Marijuana Prosecutions, [Abstract], 38 Oklahoma City University Law Review 319-365 (2013).
• Stefan K. Stantchev, "Apply to Muslims What Was Said of the Jews:" Popes and Canonists Between a Taxonomy of Otherness and Infidelitas, [Abstract], 32 Law & History Review 65-96 (2014).
• Conference on Religious Legal Theory: RTL IV: Expanding the Conversation. Foreword by Samuel J. Levine; articles by Marie A. Failinger, Ronald R. Garet, Fuat Gursozlu, Randy Lee, G.J. McAleer, Geoffrey P. Miller and Mary Szto. 30 Touro Law Review 1-126 (2014).
• Discrimination Against Muslim Americans in a Post-9/11 World. Articles by Amara S. Chaudhry-Kravitz, Nancy Hollander, Hamid Khan and Asma Uddin. 20 Washington & Lee Journal of Civil Rights & Social Justice 3-81 (2013).
• The Freedom of the Church in the Modern Era. Prologue by Steven D. Smith; articles by Richard C. Schragger, Micah Schwartzman, Richard W. Garnett, Paul Horwitz, Frederick Mark Gedicks, Andrew Koppelman, Patrick McKinley Brennan, Alan Brownstein, Thomas C. Berg, John D. Inazu, Robert K. Vischer, Michael A. Helfand, Robert F. Cohran, Jr. and Kent Greenawalt; responses by Thomas A. Smith and Frederick Mark Gedicks. 21 Journal of Contemporary Legal Issues 1-486 (2013).

Italian Court Orders Recognition of Same-Sex Marriage Performed In New York

In Italy for the first time last Thursday, a court ordered the recognition of a same-sex marriage.  UPI reports that a judge in Grosetto ordered the local registry to record the marriage of two men who were married in a civil ceremony in New York in 2012. The court said that the Italian civil code "contains no reference to sex in relation to the requisites" for marriage. The Italian Bishops' Conference issued a statement saying that the ruling raises serious questions.

Maryland County Will Obey Injunction on Christian Prayer

Last Tuesday, a week after a contempt of court motion was filed against members of the Carroll County, Maryland Board of Commissioners for violating a court order barring them from using specific Christian references in Council invocations, the Board by a vote of 3-2 adopted a resolution to obey the court's order, at least while the case is in litigation.  Christian Post reports that unedr the resolution, only Board President Dave Roush will present the invocation. He may still refer to "God," "Heavenly Father," "God of Abraham," or similar phrases, but will not use the name "Jesus."  One of the two commissioners voting against the motion, Richard Rothschild, complained: "[T]his resolution asked me to refuse to acknowledge the Son of God. In my judgment, this resolution asked me to, in effect, disown him.... Censorship is not freedom."

Battle Over Estate Raises Issues of Religious Marriage and Interfaith Relations

Estate of Chaim Weisberg, (NY Surr. Ct., April 8, 2014), is a suit over competing claims to administer an estate.  Its underlying narrative offers a fascinating glimpse into religious relationships in the United States.  Chaim Weisberg, who came from an Orthodox Jewish family and apparently continued to practice Judaism, died without a will on Aug. 29, 2012.  His mother (through her daughter as her designee) asserts that Weisberg was unmarried, while Jannah Geaney claims to be Weisberg's wife. Each claims to be the sole distributee of Weisberg's estate and filed competing petitions for administration.

In 2008, Weisberg apparently become romantically interested in Geaney and sought out an acquaintance who had been a tenant of his family for help in arranging an Islamic marriage to Geaney. This led to Wesiberg's converting to Islam at New York's second largest mosque (Madina Masjid), and his marriage to Geaney in a religious ceremony performed by Imam Yousuf Abdul Majid on June 21, 2008.  Apparently the parties did not take out a civil marriage license. Weisberg did not inform his family of the marriage ceremony until January 2012 when he told his sister.  By then the couple's relationship had become troubled. In February Weisberg's attorney drafted, but did not file, a divorce petition.  Instead both parties filed in Family Court for orders of protection against each other. By March 2012, though, the couple said they wanted to reconcile and withdrew the petitions. Less than six months later Weisberg was hospitalized and died.

Weisberg's mother (through her daughter) claimed in court that Weisberg's marriage ceremony was invalid as a matter of Isamic law.  The court ruled, however, that this is a matter of religious doctrine that may not be determined by a civil court.  However the court also refused to grant summary judgment to Geaney, saying:

A religious marriage in New York is valid if conducted in accord with the requirements of New York's Domestic Relations Law. In relevant part, this requires that the couple participate in a religious marriage ceremony, before a member of the clergy authorized to perform such a ceremony and at least one other witness, in which they solemnly declare that they take each other as husband and wife (DRL §§ 11, 12) .

Movant's proof is deficient in two respects. First, she produces no evidence as to the qualifications of Imam Majid to officiate at a marriage. The person officiating must be a "clergyman or minister" of a bona fide religion (DRL § 11[1]).... In this case, however, the record is completely silent as to the source of the imam's religious authority.

Second, the record does not contain a description of the ceremony sufficient to establish that the parties solemnized the marriage. DRL § 12 is explicit that while "[n]o particular form or ceremony is required ... the parties must solemnly declare in the presence of a clergyman and the attending witness or witnesses that they take each other as husband and wife."

The case now proceeds with discovery and trial.

Recent Prisoner Free Exercise Cases

In Blaine v. California Health Care Facility, 2014 U.S. Dist. LEXIS 33686 (ED CA, March 12, 2014), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that he has not been allowed to attend church.

In Williams v. Champagne, 2014 U.S. Dist. LEXIS 47753 (ED LA, April 6, 2014), a Louisiana federal district court permitted a Rastafarian inmate who was placed in lock down for refusing to cut his dreadlocks to proceed with his RLUIPA challenge to the prison's hair policy.

In Harris v. Ellis, 2014 U.S. Dist. LEXIS 48604 (ED CA, April 8, 2014), a Muslim inmate challenged a prison's policy to serve him only a symbolic portion of lamb for his Eid-ul-Adah meal. A California federal district court dismissed the claim because the request for injunctive relief is moot and damages are not recoverable under RLUIPA.

In Potts v. Holt, 2014 U.S. Dist. LEXIS 49176 (MD PA, April 8, 2014), a Pennsylvania federal district court dismissed on qualified immunity grounds a Muslim inmate's complaint that the religious diet program was discontinued for 2 weeks during a prison lock down necessitated by the outbreak of food poisoning among inmates who ate in the regular meal program. Plaintiff did not eat the food served him during the lock down for fear he would be removed from the religious diet program for doing so.

In Khadzhimurad v. Sacramento County Sheriff Department, 2014 U.S. Dist. LEXIS 49876 (ED CA, April 9, 2014), a Muslim inmate complained that halal meals had been replaced by vegetarian meals.  A California federal magistrate judge held that while plaintiff may have a 1st Amendment or RLUIPA claim, his pleadings presently do not set out one. The court dismissed the complaint but provided that an amended complaint may be filed.

European Court Chamber Decision Says Hungary's Church Law Violates Human Rights Convention

In Magyar Keresztény Mennonita Egyház and Others v. Hungary, (ECHR, April 8, 2014), the European Court of Human Rights, in a 5-2 chamber judgment, held that Hungary's 2011 Church Act violates the European Convention on Human Rights.  This excerpt from a press release by the Court  summarizes the majority decision:

As a result of the new Church Act, the applicant communities had lost their status as churches eligible for privileges, subsidies and donations. While the Hungarian Government argued that the Constitutional Court’s decision on the Act had remedied their grievances, the applicant communities found that they could not regain their former status unimpaired. In the Court’s view, it was important that the applicant communities had been recognised as churches at the time when Hungary adhered to the European Convention on Human Rights, and they had remained so until 2011. The Court recognised the Hungarian Government’s legitimate concern as to problems related to a large number of churches formerly registered in the country, some of which abused State subsidies without conducting any genuine religious activities. However, the Government had not demonstrated that the problem it perceived could not be tackled with less drastic solutions, such as judicial control or the dissolution of churches proven to be of abusive character.

Concerning the possibility open to the applicant communities of re-registration as fully incorporated churches, the Court noted that the decision whether or not to grant recognition lay with Parliament, an eminently political body. The Court considered that a situation in which religious communities were reduced to courting political parties for their favourable votes was irreconcilable with the State’s duty of neutrality in this field.... 

The withdrawal of benefits following the new Church Act in Hungary had only concerned certain denominations, including the applicant communities, as they did not fulfill certain criteria put in place by the legislator, notably as to the minimum membership and the duration of their existence. Referring to a report by the European Commission for Democracy through Law (“Venice Commission”) on the Church Act, the Court agreed with the report’s finding that it was an excessive requirement for a religious entity to have existed as an association internationally for at least 100 years or in Hungary for at least 20 years.... 

The Court concluded ...  that the measure imposed by the Church Act had not been “necessary in a democratic society”. There had accordingly been a violation of Article 11 [freedom of assembly and association] read in the light of Article 9 [freedom of thought, conscience and religion].

The decision is not final since the parties may still request review by the Grand Chamber of the Court. [Thanks to Alliance Alert for the lead.]

Union University Files Challenge To ACA Contraceptive Coverage Rules

According to ABP News, Southern-Baptist affiliated Union University filed a lawsuit in federal district court in Tennessee last week challenging the application to it of the Affordable Care Act contraceptive coverage mandate and the opt out rule for religious non-profits. The lawsuit says that the University objects to coverage for Plan B, ella and IUD's that may prevent implantation of a fertilized egg. The suit was filed at this time because changes in the University's prior health plan ends its grandfathered status on May 1.

TRO Requires Indiana To Recognize One Couple's Same-Sex Marriage

According to the Huffington Post, yesterday in Baskin v. Bogan, (SD IN, April 10, 2014) an Indiana federal district court issued a temporary restraining order requiring the state of Indiana to immediately recognize the same-sex marriage of Niki Quasney and Amy Sandler.  The TRO was granted because Quasney has stage 4 ovarian cancer, and recognition of the marriage that took place in Massachusetts is needed so Sandler can handle her spouse's affairs after her death and access benefits available for a surviving spouse and children of the marriage (who were born to Sandler through reproductive technology). The order comes as part of a case that more broadly challenges Indiana's ban on same-sex marriage. (Links to pleadings.) (See prior related posting.)

Preliminary Injunction Denied In Land Use Suit Against Texas Synagogue

In Dallas, Texas yesterday, a state trial court judge refused to issue a preliminary injunction to prevent an Orthodox synagogue from continuing to use a home for daily worship services for some 30 families.  In Schneider v. Gothelf, (Collin Co. TX Dist Ct.), plaintiff contended that the use was disruptive and violated deed restrictions imposed by the neighborhood homeowners' association that limit the homes to residential use. (Dallas Morning News.) Congregation Toras Chaim filed a brief in opposition (full text) making numerous procedural and substantive arguments. After the judge's decision, Liberty Institute issued a release saying in part: "We are excited that we were able to successfully defend the religious liberty rights of this congregation on the eve of Passover."

10th Circuit Hears Oral Arguments In Challenge To Utah's Ban On Same-Sex Marriage

Yesterday, the U.S. 10th Circuit Court of Appeals heard oral arguments in the Utah same-sex marriage case, Kitchen v. Herbert. Audio of the full oral arguments is available online. Equality on Trial has a written summary of the oral arguments. In the case, a Utah federal district court declared Utah's state constitutional and statutory bans on same-sex marriage invalid under the due process and equal protection clauses of the federal constitution. (See prior posting.)

Dating Website Sues Mormon Church Over Intellectual Property Rights

Courthouse News Service reported yesterday on a lawsuit filed in federal district court in Texas by Jonathan Eller founder of "Mormon Match" against an affiliate of the Mormon Church. Mormon Match is planned as an LDS singles dating website. Before beginning operation of the dating service, Eller filed an application to trademark the name "Mormon Match."  Intellectual Reserve, Inc.-- the holder of the LDS Church's intellectual property rights-- began an an opposition proceeding before the Trademark Trial and Appeal Board claiming that the LDS Church has total ownership of the word "Mormon."  In response to that proceeding, Eller filed the current suit seeking a declaration that the LDS Church does not have exclusive rights to the word "Mormon" and seeking a temporary injunction to prevent Intellectual Reserve from "taking further action to interfere with Mormon Match's operation of the dating website, pending a decision on the merits of this action."

TSA Issues Passover Alert To Screeners

The Jewish holiday of Passover begins Monday evening. Last week, the Transportation Security Administration issued a statement (full text) alerting its screeners and other personnel to the upcoming holiday and to "the unique items" and "religious practices" they may encounter among passengers:

This may include reading of religious text or participating in prayer rituals. Observant travelers may be wearing a head covering, prayer shawl, and phylacteries -- in Hebrew, kippah, tallit, and tefillin. Some travelers will be carrying boxes of matzoh, which are consumed as part of the Passover ritual. Matzoh can be machine or handmade and are typically very thin and fragile, and break easily. Passengers traveling with religious items, including handmade matzoh, may request a hand inspection by the TSO of the items at the security checkpoint.

Missouri Court Denies TRO To Prevent Same-Sex Couples' Joint Tax Filings

In Messer v. Nixon, (MO Cir. Ct., April 4, 2014), a Missouri state court judge refused to issue a temporary restraining order to prevent state tax officials from accepting joint returns from same-sex couples. The court concluded that plaintiffs had not shown the irreparable injury necessary for issuance of a TRO.  The court said: "should the ultimate outcome of this litigation establish that such an income tax filing was improper resulting in state income taxes being illegally avoided or refunded, the State has, as it always has had, the right to challenge that filing and seek recovery." Links to all the pleadings in Messer v. Nixon at on Marriage Equality Wikia. Missouri Gov. Jay Nixon's office issued a statement after the April 4 decision, defending the Executive Order that permits same-sex joint filing as being consistent with Missouri law which requires state tax conformity to federal tax definitions.

Draft of Justice Department's New Racial Profiling Rules Adds Limits On Religious Profiling

The New York Times reports today on the draft revisions to the Justice Department's racial profiling rules.  Under the proposal, limits will be placed on the use of religion, national origin, gender and sexual orientation, as well as race, in profiling for law enforcement purposes. They will also increase the threshold for using these criteria and eliminate the broad national security exception now in place. However the new rules will not change the current practice of mapping neighborhoods by nationality or the use of nationality to recruit informants or track foreign spies.

Quick Ruling on Same-Sex Marriage Sought In North Carolina

The North Carolina ACLU yesterday announced several legal steps it has taken to get a quick ruling on recognition of same-sex marriages in the state. In a case that was initially filed in 2012 and expanded in 2013, plaintiffs this week filed a motion for a preliminary injunction so that a same-sex North Carolina couple married in Massachusetts can get their child who suffers from cerebral palsy on the private health insurance policy of one of the parents (instead of remaining on Medicaid).  Separately, the organization filed a new lawsuit on behalf of three same-sex couples married elsewhere seeking recognition in North Carolina of their marriages. The suit asks for a prompt ruling because one member of each couple has a serious medical condition. AP has more on the legal moves.

Quebec Election Results Scuttle Controversial Parts of Proposed Charter of Quebec Values

In elections in the Canadian province of Quebec on Monday, Liberals won 70 of the 125 seats in the National Assembly. Party Quebecois (PQ) won only 30. As reported by CTV News, this loss for PQ derails much of its push for a Charter of Quebec Values that, among other things, would have barred public employees from wearing overtly religious symbols in the workplace. (See prior posting.) During the election,  Liberal Leader Philippe Couillard said that he opposed the ban on public sector workers wearing religious symbols. Speaking to reporters yesterday, Couillard said he would quickly address the issues raised by the proposed Charter, and hoped to find elements such as government neutrality and protection of religious rights on which there is general agreement.

President Signs Bill Granting Pension Funding Flexibility To Charities

On Monday, the President signed into law HR 4275,  the Cooperative and Small Employer Charity Pension Flexibility Act. Rep. Susan Brooks, sponsor of the bill, described it as follows after the House passed the legislation:

The legislation ensures that charitable and cooperative associations are not swept into the Pension Protection Act of 2006 (PPA) funding rules, which require them to fund their pension plans at levels commonly associated with high risk plans. These groups received a temporary exemption from the rules in 2006 which is set to expire in 2017. H.R. 4275 makes the exemption permanent.

Suit Challenges School's Ban On Student's Religious Valentine's Cards

Alliance Defending Freedom announced yesterday that it has filed a lawsuit on behalf of a Nazareth, Pennsylvania elementary school student and his parents complaining that under school rules the school principal unconstitutionally censored the student's religious Valentine's cards.  The complaint (full text) in J.A. v. Nazareth Area School District, (ED PA, filed 4/7/2014) alleges in part:

5. NASD permitted students in J.A.'s class to distribute a variety of Valentine's cards bearing secular messages, including cards with human skulls, guns, and weapons, as part of the 2014 class celebration of Valentine's Day.

6. But NASD Policy 220, entitled "Student Expression," prohibits students from engaging in any expression, whether oral or written, that "[s]eek[s] to establish the supremacy of a particular religious denomination, sect, or point of view."

7. Pursuant to NASD's Policy 220 and its practice, NASD singled out J.A.'s religious Valentine's cards for prohibition and censure even though there was no evidence that J.A.'s cards would create a material and substantial disruption at school.

Humanists Seek Recognition By Federal Prison On Same Terms As Theistic Religions

The American Humanist Association announced yesterday that it has filed a lawsuit against the Federal Bureau of Prisons seeking require an Oregon federal prison to recognize Humanism as an official religious assignment option. The complaint (full text) in American Humanist Association v. United States, (D OR, filed 4/8/2014), claiming Establishment Clause and equal protection violations, seeks, among other relief, a declaratory judgment and injunction so that humanists and atheists may form study groups to meet to discuss their common beliefs on the same terms as theistic religious groups.

Philippine Supreme Court Upholds Most of Country's Controversial Reproductive Health Act

As reported by the Wall Street Journal, the Philippine Supreme Court yesterday upheld the constitutionality of most of the Philippines' Responsible Parenthood and Reproductive Health Act of 2012 and the implementing rules under it.  (Full text of the Act and the Court's press briefing are available at the Philippine Official Gazette website, as is the full text of the Implementing Regulations.) The Act was challenged by the Catholic Church and faith-based groups in 14 lawsuits that were consolidated for Supreme Court review. Under the Act, the government guarantees universal access to reproductive health care services  and relevant patient information. The Court however struck down eight provisions of the Act and Rules. These provisions that were held unconstitutional:

• require private and religious hospitals to refer patients in non-emergency situations to another convenient health facility and allow minors who have suffered a miscarriage access to family planning methods without written parental consent;
• punish health care providers who do not disseminate information on reproductive health services, regardless of the provider's religious beliefs;
• allow a married person in non-emergency situations to undergo reproductive health procedures without consent of the person's spouse;
• punish providers who fail or refuse to refer a patient in a non-emergency situation to another conveniently located provider, even if the referral violates the provider's religious beliefs;
• punish public officers, regardless of their religious beliefs, who refuse to support reproductive health programs or who hinder implementation of programs;
• require (even for conscientious objectors) rendering of pro bono reproductive health service to secure PhilHealth accreditation;
• define abortifacients as drugs or devices that "primarily" have certain effects;
• penalize a health service provider who requires parental consent from a minor in non-emergency situations.

Parties have 15 days to seek rarely-granted reconsideration by the Supreme Court. After the decision was handed down, the Catholic Bishops' Conference of the Philippines issued a generally conciliatory statement (full text).

IRS Guidance On Qualified Retirement Plans and Same-Sex Spouses

On April 4, the Internal Revenue Service announced two releases that give guidance on how qualified retirement plans should treat marriages of same-sex couples following the Supreme Court’s decision in United States v. Windsor. Notice 2014-19 gives important guidance as to retroactivity:

Qualified retirement plan operations must reflect the outcome of Windsor as of June 26, 2013. A retirement plan will not be treated as failing to meet the requirements of section 401(a) merely because it did not recognize the same-sex spouse of a participant as a spouse before June 26, 2013.... [A] retirement plan will not be treated as failing to meet the requirements of section 401(a) merely because the plan, prior to September 16, 2013, recognized the same-sex spouse of a participant only if the participant was domiciled in a state that recognized same-sex marriages. 

Further guidance is given in IRS, Answers to Frequently Asked Questions Regarding the Application of the Windsor Decision and Post-Windsor Published Guidance to Qualified Retirement Plans (April 4, 2014). (See prior related posting.)

UAE Appeals Court Says Murder Conviction To Be Decided By Sharia Procedure

The National reported yesterday that in the United Arab Emirates the appeals court has held that a trial court murder conviction of two cousins who allegedly shot an Omani while on a desert hunting trip was supported by strong suspicion but not by a confession or by witnesses to the crime. So the court held that guilt or innocence should be determined by the Sharia procedure of Qasama. According to the report:

During Qasama, the victim’s heirs are asked to swear a religious oath a total of 50 times that they believe the defendant killed the victim. They also have the choice of reverting the Qasama back to the defendant and making them take the oath 50 times that they did not commit it. If they decline from either option then the case is dropped.

Recent Prisoner Free Exercise Cases

In Gutierrez v. Corrections Corporation of America, (5th Cir., April 3, 2014), the U.S. 5th Circuit Court of Appeals dismissed as frivolous a Catholic inmate's complaint that only non-denominational (apparently Protestant-oriented) programming from the Trinity Broadcasting Network is carried in the prison, and the prison does not furnish programming from the Catholic-oriented Eternal Word Broadcasting Network.

In Hughes v. Heimgartner, 2014 U.S. Dist. LEXIS 45867 (D KA, April 3, 2014), a Muslim inmate complained that he was refused halal meals while in segregation. A Kansas federal district court ordered prison officials to investigate the matter, consider whether other similar complaints are related, and file a report with the court on whether action can and should be taken.

In Crews-Bey v. Price, 2014 U.S. Dist. LEXIS 44313 (ND AL, April 1, 2014), an Alabama federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 45394, March 4, 2014) and dismissed for lack of standing an inmate's complaint that prison rules do not allow Moorish Science ordained ministers and Temple heads to perform marriage ceremonies for adherents incarcerated in Alabama prisons.

In Darrough v. Allen, 2014 U.S. Dist. LEXIS 45917 (MD GA, April 3, 2014), a Georgia federal district court refused to allow an inmate to file an amended complaint alleging generally that he is being harassed by the warden because of his religious beliefs.

In Pfeil v. Lampert, 2014 U.S. Dist. LEXIS 46389 (D WY, March 31, 2014), a Wyoming federal district court dismissed a Catholic inmate's complaints that a religious volunteer, on a single occasion, was not permitted entry to provide Catholic services, and that a new policy prohibiting hardbound books in living quarters caused him to lose his religious books.

In Browning v. McDonnell, 2014 U.S. Dist. LEXIS 46578 (WD VA, April 4, 2014), a Virginia federal district court dismissed as frivolous an inmate's claim for $10 million in damages because Art. I, Sec. 16 of the Virginia Constitution that refers to "the duty which we owe to our Creator" and  "Christian forbearance" forces him to worship against his conscience and makes Christianity the official state religion.

The Story Behind The Niqab Wearing British Defendant

Last September, a good deal of attention was given to rulings by a British judge in the case of a Muslim woman charged with witness intimidation who sought to keep her face fully covered by her niqab at her arraignment and subsequently at her trial. (See prior posting). In a lengthy article yesterday, The Independent reports the back story on defendant Rebecca Dawson. The witness intimidation charges grew out of an encounter between Dawson and a volunteer caretaker at a local mosque who was planning to testify against Dawson's husband in his trial on assault charges.  According to the report:

At the root of the case, so it seemed, lay a dispute between two factions at the Finsbury Park Mosque. One believed that it was acceptable for tourists to be shown around the mosque with their heads uncovered and in Western dress; the other did not. Dawson’s husband was firmly in the latter camp, and when he learned that the caretaker had shown around a group of “improperly” dressed Portuguese visitors, he had gone to the mosque and duffed him up.

When the jury was deadlocked after 10 hours, Dawson agreed to a plea deal.  While awaiting sentence, Dawson went to trial along with her husband on other charges-- disseminating YouTube videos glorifying the terrorist killing of Fusilier Lee Rigby.

Virginia Settles Suit Challenging Limits On Student Preaching On Campus In Wake of New Law Assuring Speech Rights

The Hampton Roads (VA) Pilot reports that a proposed consent decree was filed in Virginia federal district court last Friday in Parks v. Members of the State Board  of the Virginia Community College System. In the suit, a student who wished to preach on campus challenged the rules at Thomas Nelson Community College that allow students to speak in open, outdoor areas of campus only if they are members of student organizations, and then only if they register their activity 4 days in advance. (See prior posting.) Under the consent decree, which still requires court approval, students will be allowed to speak freely on campus without joining a recognized student organization or registering in advance. Also colleges will not unreasonably limit the outdoor areas in which students can speak.

This development comes the same day that Virginia Governor Terry McAuliffe signed HB 258 (full text) which bars public colleges in Virginia from imposing restrictions on student speech in outdoor areas of campus unless they are reasonable, content-neutral and narrowly tailored to serve a significant interest and leave open ample alternative channels for communication.

Appeals Court Reverses Priest's Clergy Sexual Misconduct Conviction

In State of Minnesota v. Wenthe, (MN App., April 7, 2014), a Minnesota state appellate court reversed the conviction of Christopher Thomas Wenthe, a Catholic priest who had been convicted of violating Minn. Stat. § 609.344 which criminalizes sexual penetration by a member of the clergy where the victim is receiving religious or spiritual advice. The criminal complaint against Wenthe charged that sexual conduct occurred during the course of a single meeting in which the victim sought or received spiritual advice. The appellate court concluded that the trial judge had given two erroneous jury instructions.  Since there was evidence of different acts of sexual conduct between the priest and the adult female victim on different days, jurors should have been told that they must unanimously agree on the one of these that constituted the single meeting. The jurors should also have been instructed that the state must prove that Wenthe knew the victim was seeking or received spiritual or religious advice during that meeting. Finally the appellate court held that the trial court erroneously excluded evidence of the adult complainant's sexual history when the prosecution opened the door by eliciting testimony from the victim that she was sexually inexperienced. The Minneapolis Star Tribune reports on the decision. (See prior related posting.)

Supreme Court Denies Review In New Mexico Same-Sex Wedding Photographer Case

The U.S. Supreme Court today denied certiorari in Elane Photography v. Willock,  (Docket No. 13-585, cert. denied 4/7/2014). (Order List.) In the case, the New Mexico Supreme Court held that the New Mexico Human Rights Act requires a commercial photography business to serve same-sex couples on the same basis as opposite-sex couples. It concluded that the 1st Amendment does not require an exception for creative or expressive professions. (See prior posting.)

Pension Plan of Catholic Hospital Does Not Qualify As "Church Plan" Exempt From ERISA

In Kaplan v. St. Peter's Healthcare System, (D NJ, March 31, 2014), a New Jersey federal district court held that in order for a pension plan to qualify as a "church plan" exempt from ERISA, it must be established by a church or an association of churches.  It is not sufficient that it is established by a tax exempt corporation merely controlled by or associated with a church, despite a 2013 IRS private letter ruling that recognized the New Brunswick, New Jersey Catholic hospital's plan as a church plan. This is the second recent case (see prior posting) to require pension plans of religiously affiliated health care organizations and hospital systems to comply with ERISA. Plaintiff contends that St. Peter's pension plan violates a number of ERISA's requirements, including a requirement that results in its being underfunded by $70 million. MyCentralJersey.com reports on the decision.

Christian Couple Sentenced To Death For Blasphemy By Pakistani Court

Christian Today reports that in Pakistan's Punjab province last month, a Christian couple were sentenced to death for sending blasphemous text messages after police allegedly forced a confession from the husband. The trial was held in prison due concerns about the couple's safety.  Shafqat Emmanuel who is confined to a wheel chair and his wife Shugufta Emmanuel who works as a cleaner at a local missionary school were charged with sending the messages to the two complainants, one of whom was a local bar association president.  The Emmanuel's lawyer says that the judge acted under pressure from Islamist lawyers who continually quoted Qur'anic verses calling for death to blasphemers. Shugufta told police that the cell phone had been lost for a month, and police did not produce the phone's SIM card.  Their lawyer also said that the couple could not have possibly sent the messages, written in Roman Urdu, since they cannot read or write Urdu properly. An appeal is planned once a detailed verdict is received.

Recent Articles of Interest

From SSRN:

• John D. Haskell, The Traditions of Modernity within International Law and Governance: Christianity, Liberalism and Marxism, (Howard University School of Law, Human Rights and Globalization Law Review (Fall 2014, Forthcoming)).
• Muhammad Munir, Islamisation or De-Islamisation?: De-Islamisation of the Law of Evidence under the Disguise of Islamisation by General Ziaulhaq in Pakistan, (March 23, 2014). 

From SmartCILP:

• Evelyn M. Aswad, Rashad Hussain & M. Arsalan Suleman, Why the United States Cannot Agree To Disagree on Blasphemy Laws, 32 Boston University International Law Journal 119-146 (2014).
• Ann Neumann, The Limits of Autonomy: Force-Feedings in Catholic Hospitals and In Prisons, 58 New York Law School Law Review 305-318 (2013/2014).
• Ilias Trispiotis, The Duty To Respect Religious Feelings: Insights From European Human Rights Law, [Abstract], 19 Columbia Journal of European Law 499-551 (2013).

British Government Proposes Shariah-Compliant Student Loan Program Alternative

Last week, the British government's Department for Business, Innovation and Skills announced a proposal to make available Shariah-compliant student loans to Muslim students.  (Full text of Consultation On a Shariah-Compliant Alternative Finance Product).  The Executive Summary explains the proposal in part as follows:

In September 2012 changes to higher education funding mean that students are able take out student loans for tuition of up to £9000 for each year of study. These post-2012 loans carry a different rate of interest, above inflation, to student loans issued before September 2012. 

Some students, whose religious beliefs may forbid the taking out of a loan that bears interest, may be unable to take advantage of student loans because of this change. This could make it more difficult for them to benefit from higher education. 

The Government have been exploring the possibility of making an alternative student finance product available. This finance product would be Sharia-compliant and overseen by a Sharia advisory committee. Any such alternative finance product would not result in a student being in any way disadvantaged or advantaged over a student who took out a traditional student loan. Both the size of the finance and the repayment amounts would be equivalent between the two systems. The model of the proposed product could be applied for in the same way as a traditional loan: through the Student Loans Company (SLC).

The Telegraph reports on the proposal. [Thanks to Alliance Alert for the lead.]

Appeals Court Finds Mormon Branch President Did Not Misuse His Police Department Credentials

In Fierro v. Park City Municipal Corporation, (UT Ct. App., March 27, 2014), the Utah Court of Appeals rejected the findings of the city's employee discharge appeal board that had upheld the firing of a member of the police department for misusing his police credentials.  Michael Fierro was president of a small local Mormon congregation (branch) as well as a member of the police department. When a member of his branch was arrested as a suspect in a child sex abuse case, Fierro visited him in jail in his Branch President role.  Fierro was dismissed for misusing his credentials to obtain the visit.  The appeals court found however that the evidence showed Fierro had fully disclosed his ecclesiastical role in visiting the jail. Courthouse News Service reports on the decision.

Suit Against NYC Transit Authority Over Headwear Rules Survives Motion To Dismiss

In Lewis v. New York City Transit Authority, (ED NY, March 31, 2014), a New York federal district court denied the New York City Transit Authority's motion to dismiss a discrimination suit filed against it by Stephanie Lewis, a Muslim woman who was employed as a bus driver, but was transferred to a bus depot for refusing to remove, cover with a cap, or affix a logo to her khimar.  Ultimately her employment was terminated.  In a 55-page opinion, the court permitted the suit (now being pursued by the administrator of Lewis' estate) to proceed with claims under Title VII, the 1st and 14th Amendments, the New York state constitution, and state and city human rights laws.

Recent Prisoner Free Exercise Cases

In Smith v. Governor for the State of Alabama, (11th Cir., April 2, 2014), the U.S. 11th Circuit Court of Appeals dismissed a number of claims by an Odinist inmate, including his complaint that he was denied religious items (rune container, leather folder for study materials, quartz crystal and outdoor fire pit); claims of retaliation; security threat group designation; destruction of his artwork; and his challenge to the prison's faith-based honor dorm.

In McKinley v. Maddox, 2014 U.S. Dist. LEXIS 40889 (WD OK, March 27, 2014), an Oklahoma federal district court adopted in modified form a magistrate's recommendations (2014 U.S. Dist. LEXIS 42243, March 4, 2014), and dismissed without prejudice a former inmate's suit complaining that he was not permitted to attend off-site religious services. The dismissal was a sanction for plaintiff's failure to appear at a scheduled deposition.

In Debardelaben v. McKeon, 2014 U.S. Dist. LEXIS 40526 (WD MI, March 27, 2014), a Michigan federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 41916, March 6, 2014) and dismissed on qualified immunity grounds an inmate's complaint that he was wrongly removed from the kosher diet program for having purchased non-kosher food from the prison store. Plaintiff was permitted to proceed with a retaliation claim.

In Shapiro v. Community First Services, Inc., 2014 U.S. Dist. LEXIS 42459 (ED NY, March 27, 2014), a New York federal district court dismissed an inmate's 1st Amendment Bivens action against a privately-owned halfway house to which he was sentenced for violating probation. Plaintiff claimed he was not given sufficient time to travel to attend Quaker services on Sundays.

In Riehl v. Martin, 2014 U.S. Dist. LEXIS 42870 (ND NY, March 31, 2014), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 186610, Dec. 19, 2013) and permitted a Jewish inmate to proceed with his 1st Amendment (but not his RLUIPA) damage claim alleging that some of the food served to him during Passover 2012 was not kosher for Passover.

In Heard v. Finco, 2014 U.S. Dist. LEXIS 43048 (WD MI, March 31, 2014), a Michigan federal district court permitted Muslim inmates to proceed with their claims alleging that they received inadequate amounts of food in their Ramadan meals in violation of the 1st Amendment and RLUIPA. Their 8th Amendment claims were dismissed. The magistrate's recommendations in the case are at 2014 U.S. Dist. LEXIS 45458, Feb. 25, 2014.

In Hampton v. Wetzel, 2014 U.S. Dist. LEXIS 43207 (MD PA, March 31, 2014), a Pennsylvania federal district court permitted a Muslim inmate to proceed against certain defendants on his complaint that authorities refused to provide him with a medically prescribed therapeutic diet tray at times to permit observance of the Ramadan fast.

In Ind v. Colorado Department of Corrections, 2014 U.S. Dist. LEXIS 43461 (D CO, March 31, 2014), a Colorado federal district court held that the free exercise rights under RLUIPA of an inmate of the Christian Separatist faith were violated by limiting him to possessing two books while in administrative segregation.

In Davis v. Abercrombie, 2014 U.S. Dist. LEXIS 43966 (D HI, March 31, 2014), an Hawaiian federal district court, in an opinion that extensively discusses Native Hawaiian religious rituals, permitted Hawaiian inmates housed in private prison facilities in Arizona to move ahead with their complaints regarding denial of daily outdoor group worship and possession of certain sacred items. Claims regarding a number of other infringements of religious practices were dismissed.

In Seymore v. City of New York, 2014 U.S. Dist. LEXIS 44951 (SD NY, March 26, 2014), a New York federal district court adopted a magistrate's recommendation and dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint that during Ramadan 2012 religious services were cancelled or curtailed.

Autopsy Did Not Violate 1st Amendment Rights of Accident Victim

Keller v. Finks, (CD IL, March 31, 2014), is a lawsuit growing out of the death of Melissa Keller who was a passenger in a vehicle that struck a tree driving 70 miles per hour in a 10 mile per hour zone. The driver of the auto was Katie McKenna, whose probation had been revoked but who had not been taken into custody.  This suit by the administrator of Keller's estate alleges several claims against county law enforcement officials, including a claim against the county coroner for violating Keller's free exercise rights by performing an autopsy on her that violated the religious beliefs of her and her family. An Illinois federal district court dismissed the claim holding first that once Keller was deceased she was no longer a "person" who had constitutional rights.  In addition, the coroner was acting under a neutral law of general application and so did not violate the 1st Amendment's free exercise clause.

Religious Groups Say Military's New Religious Accommodation Policy Falls Short

As previously reported, in January the Department of Defense adopted a revised policy on religious accommodation in the military, including on matters of appearance and grooming.  However, as explained by the ADL in a blog posting yesterday, many still feel that the new policy does not go far enough. In an April 2 letter to the Pentagon (full text) 21 major religious and civil rights organizations summarized their objections, stating in part:

As currently drafted, ... [the policy] would require religiously observant service members ... to remove their head coverings, cut their hair, or shave their beards ... while their request to accommodate these same religious practices is pending.... We urge you to reconsider this provision, which has the effect of forcing some religiously observant service members to make an impossible choice between their faith and their chosen profession.

Further, under ... [the policy] even if an original accommodation request is approved, religiously observant service members would be required to submit a new request for the same accommodation every time they receive a new assignment, “transfer of duty station, or other significant change in circumstances.” The uncertainty associated with this requirement to repeatedly request an accommodation for the very same religious practices is stifling, and may needlessly limit career opportunities – or, in some cases, end careers.

[Thanks to Michael Lieberman for the lead.]

11 French Towns Will Ban Schools From Serving Alternatives When Pork Is On The Menu

In local elections in France last week, the right-wing Front National party, led by  Marine Le Pen, won control of eleven local town councils.  According to RFI  and The Local, Le Pen told RTL Radio yesterday that those eleven towns will now ban their school cafeterias from providing Muslim and Jewish students menu alternatives when the school serves pork meals. She said: "We will not accept any religious requirements on school menus.  There is no reason for religion to enter into the public sphere, that's the law."

Federal Judge Announces He Will Strike Down Ohio's Refusal To Recognize Same-Sex Marriages From Elsewhere

The Cleveland Plain Dealer reports that at a Friday hearing in a Cincinnati, Ohio federal district court in Henry v. Wymyslo, Judge Timothy Black announced:

I intend to issue a written decision and order by April 14 striking down as unconstitutional under all circumstances Ohio’s bans on recognizing legal same-sex marriages from other states.

The advance announcement gives the state time to prepare an appeal that can be filed immediately after the ruling.  A spokesman for Ohio Attorney General Mike DeWine says that an appeal is planned. The lawsuit was filed by four same-sex married couples and originally sought narrower relief-- an order requiring the  names both same-sex spouses to be entered on the birth certificates of their children. (full text of complaint in Henry v. Wymyslo, (SD OH, filed 2/10/2014).

UN Rapporteur On Religious Freedom Issues Preliminary Findings On Kazakhstan

Yesterday, Heiner Bielefeld, United Nations Special Rapporteur on Freedom of Religion or Belief issued his Preliminary Findings as he ended his eleven day visit to the Republic of Kazakhstan. (Press release).  His report emphasized the religious pluralism in Kazakhstan, and recommended an end to mandatory registration of religious communities.  He said in part:

Non-registered communities must be able to operate free from discrimination and free from fear of intimidation. Thresholds for registration at different levels (local, regional and national) should be defined in such a way that minorities can fully operate throughout the country. The requirement of registering missionary activities as well as the practice of licensing the import and distribution of religious literature should also be generally overhauled.

8th Circuit Sends Suit Against Hebrew National Back To State Court

In Wallace v. ConAgra Foods, Inc., (8th Cir., April 4, 2014), the U.S. 8th Circuit Court of Appeals took an unexpected route in deciding the appeal in a lawsuit against the manufacturer of Hebrew National hot dogs.  A Minnesota federal district court had dismissed the suit by consumers who claimed that ConAgra misrepresented that Hebrew National products are made of "100% kosher beef" because ConAgra's standards for kosher slaughter were inadequate. The district court held that this posed a religious question that could not be decided by the civil courts. (See prior posting.)

The 8th Circuit, however, examined more closely the nature of plaintiffs' objections to ConAgra's kosher standards.  One part of the kosher certification process is the examination of the slaughtered cow's lungs. Certain defects in the lungs would render the entire carcass non-kosher. The allegations in the ConAgra lawsuit were that production pressures led to some carcasses that should have been rejected instead being marked as kosher.  The 8th Circuit concluded that even if this were true, no consumer would be able to identify whether the particular hot dogs he or she purchased were improperly certified. It went on:

Without any particularized reason to think the consumers’ own packages of Hebrew National beef actually exhibited the alleged non-kosher defect, the consumers lack Article III standing to sue ConAgra. Accepting the consumers’ various allegations, it remains entirely possible, maybe probable, that the packages of beef they personally purchased and consumed met the “strict” standards advertised by ConAgra..... [I]t is pure speculation to say the particular packages sold to the consumers were tainted by non-kosher beef, while it is quite plausible ConAgra sold the consumers exactly what was promised: a higher quality, kosher meat product. Time and again the Supreme Court has reminded lower courts that speculation and conjecture are not injuries cognizable under Article III.

However, instead of dismissing the case for lack of standing, the 8th Circuit ordered that the district court return it to the Minnesota state court where it originated before it was removed to federal court under the Class Action Fairness Act. Chicago Tribune reports on the decision.

Discrimination Against Gay Employee By Religious Supervisor States Title VII Religious Discrimination Claim

In Terveer v. Billington, (D DC, March 31, 2014), Peter Terveer, a former management analyst with the Library of Congress alleged religious discrimination, sex discrimination and retaliation claims under Title VII of the 1964 Civil Rights Act. Terveer claimed, among other things, that he was denied a within-grade salary increase after his supervisor, a conservative Catholic, learned that Terveer was homosexual. The court said, in part, that Terveer claims:

he alleged facts showing that he was discriminated against because he failed to live up to his supervisor’s religious expectations. The Court agrees with Plaintiff. Title VII seeks to protect employees not only from discrimination on the basis of their religious beliefs, but also from forced religious conformity or adverse treatment because they do “not hold or follow [their] employer’s religious beliefs."

Advocate reports on the decision.

Lawsuit Challenges Georgia's Scholarship Tax Credit Program

The Atlanta Journal Constitution reports that a lawsuit was filed yesterday by a group of parents challenging Georgia's student scholarship organization tax credit program.  The program allows individuals and corporations tax credits for contributions to organizations that in turn fund scholarships for private school students.  Among other things, the lawsuit-- backed by the Southern Education Foundation-- alleges that the program gives indirect funding to religious schools in violation of Georgia' constitution. The program has become so popular that this year the $58 million overall cap on tax credits allowed for the year was met in the first few weeks of the year.

Discriminatory Firing Claim Dismissed Under Ministerial Exception Doctrine

In Conlon v. Intervarsity Christian Fellowship/ USA, (WD MI, April 3, 2014), a Michigan federal district court applied the ministerial exception doctrine to dismiss a discrimination suit brought by a former spiritual director to Intervarsity Christian Fellowship staff members. Plaintiff Alyce Conlon, who was considering divorcing her husband, was placed on leave and ultimately fired under IVCF’s Separating and Divorcing Staff Policy. She claims that she was treated differently than male staff members who divorced their spouses. The court said in part:

Plaintiff’s suggestion that the ministerial exception applies only to those cases in which a court would be required to evaluate religious doctrine “misses the point of the ministerial exception,” which is not to “safeguard a church’s decision to fire a minister only when it is made for a religious reason.” Hosana-Tabor, 132 S. Ct. at 709. Rather, the exception “ensures that the authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.” Id. Thus, the ministerial exception prevents a court from evaluating the employment decisions of a religious organization regardless of whether the court would be required to delve into religious doctrine.

5th Circuit: Principal Enjoys Qualified Immunity In Adult Speech "Candy Cane" Case

In Morgan v. Swanson, (5th Cir., April 2, 2014), the U.S. 5th Circuit Court of Appeals upheld the district court's conclusion that a Plano, Texas elementary school principal enjoyed qualified immunity in a suit for damages.  In this aspect of the 9-year old litigation, a student's father complained that the principal did not permit him to distribute candy canes with a religious message attached to other adults at his son's in-class winter party.  In a per curiam opinion, plus two concurrences, the court held that the right asserted by the father was not "clearly established". The court said:

A plaintiff does not overcome the qualified immunity defense by alleging the violation of a right that is only defined “at a high level of generality.”... Instead, there must exist a clearly established “particular right” such that the official had “fair notice” of that right and its concomitant legal obligations

In a prior elaborate decision (see prior posting), the 5th Circuit en banc held that even though the principal's actions were unconstitutional, she enjoyed qualified immunity as to claims that the student should have been permitted to hand out the candy canes to his classmates.

UPDATE: On June 3, 2014, the 5th Circuit filed a substituted opinion (full text) in the case modifying some of its language describing the test for qualified immunity. The quote in this posting was unchanged in the substituted opinion.

2nd Circuit: No Free Exercise Problem In Denying School Space For Church Worship Services

In Bronx Household of Faith v. Board of Education of the City of New York, (2d Cir., April 3, 2014), the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision, reversed the district court and held that the Board of Education of the City of New York did not violate the free exercise clause when in 2007 it changed its rules to bar the use of school facilities by churches for religious worship services. Board policy permits outside groups to use school space for other purposes during non-school hours merely for the cost of custodial services. The majority held that strict scrutiny is not required when the Board acts in order to avoid the risk of violating the Establishment Clause. It concluded that:

the better rule allows the Board, if it makes a reasonable, good faith judgment that it runs a substantial risk of incurring a violation of  the Establishment Clause by hosting and subsidizing the conduct of religious worship services, to decline to do so.

The majority also concluded that the Board's policy does not require it to become unconstitutionally entangled with religion in deciding what constitutes religious worship.

Judge Walker dissented, arguing that strict scrutiny should apply because the Board regulation "is neither neutral nor generally applicable in its treatment of religion." He concludes that the Board does not have a compelling interest in avoiding an Establishment Clause violation because it is clear that allowing churches to use facilities on the same neutral basis as others does not violate the Establishment Clause.

The decision is the latest in the long-running battle over church use of school space on Sundays. The 2nd Circuit in a previous decision upheld the Board's rule change against a free expression challenge. (See prior posting.) The Wall Street Journal reports that lawyers for Bronx Household of Faith plan an appeal, but that remarks by Mayor Bill DeBlasio suggest that he might be willing to change the Board policy adopted under the predecessor administration.

House Committee Holds Hearing On Persecution of Religious Communities In Vietnam

A video is now available online of the March 26 hearing by the U.S. House Foreign Affairs Committee's Tom Lantos Human Rights Commission on  Persecution of Religious and Indigenous Communities in Vietnam. The hearing Witness List included USCIRF Commissioner Eric P. Schwartz (written testimony), Father Phan Van Loi (Co-Founder of the Association of Former Vietnamese Prisoners of Conscience), Sub-dignitary Nguyen Bach Phung (Clergy member of an independent Cao Dai Sect); Yunie Hong (Director of Policy Advocacy, Hmong National Development), and Rong Nay (Executive Director, Montagnard Human Rights Organization).

ADL Releases 2013 Annual Audit of Anti-Semitic Incidents

In a press release this week, the ADL announced the release of its Annual Audit of Anti-Semitic Incidents. The audit found 751 incidents across the U.S. during 2013. (State-by-state totals.) This is a 19% decrease from the prior year. Of the 751 incidents, 405 involved harassment, 315 involved vandalism and 31 involved assaults.

Mississippi Legislature Passes Religious Freedom Restoration Act

On Tuesday, the Mississippi legislature gave final passage to SB 2681, the  Mississippi Religious Freedom Restoration Act after a Conference Committee took out some of the language that civil rights groups found objectionable. The final version of the bill passed the Senate by a vote of 37-14, and the House by a vote of 79-43. The bill now goes to Gov. Phil Bryant who, Reuters reports, will sign the bill. As passed, the bill requires state and local governments to demonstrate that they are using the least restrictive means to further a compelling governmental interest before they may substantially burden religious exercise. Opponents of the bill argued that it could permit discrimination against gays and lesbian on religious grounds. Another portion of the bill adds the phrase "In God We Trust" to the Mississippi seal.

Negligence In Identifying Son's Body Did Not Deprive Mother of Free Exercise Rights

In Simkova v. City of Newark, (D NJ, March 31, 2014), a New Jersey federal district court dismissed free exercise and due process claims against the city, police officials, the state medical examiner and others. The court described the facts as follows:

In January 2012, plaintiff Zdenka Simkova ... learned that her son, Michael ... who went missing in 2007 over the Thanksgiving holidays and had never been located—had died years earlier and was buried in a mass grave in Hackensack. She filed a federal lawsuit detailing both the resistance she faced after she reported him missing within days after he failed to show up at her house and the misinformation she received from official sources..... Simkova alleged that the defendants failed to follow proper procedures for the identification and investigation of missing persons—a result, in part, of the municipal defendants’ policies and their failure to train their employees—thereby depriving her of her right to possess her son’s body and to bury him in accordance with her religion.

In rejecting plaintiff's free exercise claim, the court emphasized that plaintiff had not alleged defendants were aware of her religious concerns, or had any idea that their actions might affect her religious practice.

Contempt Motion Filed Against County Commission For Christian Prayers

The American Humanist Association announced that yesterday it filed a contempt of court motion (full text) against members of the Carroll County, Maryland Board of Commissioners for violating a court order (see prior posting) barring them from using specific Christian references in Council invocations.  One day after the entry of the injunction, Council member Robin Frazier delivered an explicitly Christian invocation and expressed objections to the court order. Then on Tuesday, the Board invited Bruce Holstein (reportedly the campaign manager of one of the Commissioners) to speak. He read a statement and offered a prayer harshly critical of the judge's decision, saying in part:

The judge may have prevented you commissioners from praying to Jesus Christ, but I want you to know that we, the citizens of Carroll County, are not gonna stand for it.

We are overruling Judge Quarles’ objection by offering this prayer on your behalf: Heavenly father, I stand here this morning and ask your blessing on our five county commissioners.... They have received a court Order from a misguided judge who forbids them from praying in the name of your son, Jesus Christ. This Order discriminates against Christians and is a gross violation of our commissioners’ First Amendment Constitutional rights. Therefore I ask you to bless their proceedings today and bless the case about Christian prayer before the Supreme Court and I ask for these blessings in Jesus’ name. Amen.

While the court's injunction ran against the Board members, plaintiff in its Memorandum of Law (full text) argues that it also bars the prayer delivered by Holstein:

There is no question the Defendants had the authority to stop this person from delivering a prayer at their Board meeting. They also had the ability clarify to the public, after the prayer was delivered, that it was not endorsed or supported by the Board.

The full text of the statements and prayers by both Commr. Frazier and Mr. Holstein are included in the Memorandum of Law.

Israel's Supreme Court Rules That Original Austrian Jewish Historical Documents Should Stay In Israel

Haaretz reports that a 3-judge panel of Israel's Supreme Court yesterday handed down a decision in a suit by the Jewish community in Vienna, Austria seeking return from Israel's  Central Archives for the History of the Jewish People of thousands of historical documents deposited there after World War II to keep them safe.  The Austrians claim that the documents, which trace the community's history, were only on loan and should be returned now that a Jewish museum is being built in Vienna. The Jerusalem archives claims that the materials were given to them in perpetuity.  The Supreme Court urged the two sides to come to an agreement that would result in the original documents remaining in Israel, with a digital copy going back to Vienna and some of the original documents being sent on loan to the Museum of the Jewish Community in Vienna once it is completed.

Canadian Court Certifies Class Action Against Anglican Boarding School For Abuse of Students

In Cavanaugh v. Grenville Christian College, (ON Super Ct, Feb. 24, 2014), a Superior Court in the Canadian province of Ontario certified for class action status a lawsuit by former students of an Anglican boarding school, Grenville Christian College, located in Brockville, Ontario. The suit alleges breach of fiduciary duty, negligence, assault, battery and intentional infliction of mental suffering. According  to the court:

The appellants allege that they were subjected to various forms of physical and psychological abuse at the hands of Grenville staff.... They allege that the abuse was systemic and pervasive. In particular, they plead that “the conduct of the defendants … was part of a systemic campaign by the defendants, Fathers Haig and Farnsworth and the school to promote and indoctrinate students in the teachings and practices of the Community of Jesus.” The Community of Jesus is a Christian organization based in Orleans, Massachusetts, which the appellants characterize as a religious cult whose teachings and practices were intolerant and fanatical.

Mondaq reports on the decision.

Investigative Report Criticizes IRS Classifying Televangelists as Churches

NPR yesterday published a lengthy investigative report on the lack of financial transparency of television evangelists because the Internal Revenue Service is willing to categorize many of them as churches rather than non-profit religious organizations.  Churches are not required to file Form 990 that provides annual disclosure of finances. The report focuses particularly on Daystar Television, one of the three largest religious television networks. Illustrating financial concerns that might be revealed if televangelists had to file Form 990, the report said in part:

Daystar's primary revenue comes from selling airtime to other religious programmers. Its secondary income is donations.... [B]etween 2005 and 2011, Daystar took in $208 million in tax-deductable contributions from viewers through on-air pitches. Daystar has built a public image as a generous giver to charitable causes. Indeed, the network has contributed millions of dollars to a trauma center and a home for Holocaust survivors in Israel, a hospital in Calcutta, and to ministries that support women in Moldova and children in Uganda....

NPR analyzed six years of Daystar balance sheets. They show the network gave away $9.7 million dollars in direct grants to outside recipients. Not $30 million [which its founder has claimed]. That works out to charitable giving of about 5 percent of donor revenue.

NY Jewish Group Can Proceed With Challenge To Validity of Mortgage Because Court Approval Was Required

Mosdos Chofetz Chaim, Inc. v. RBS Citizens, N.A., (SD NY, March 30, 2014) is a 61-page opinion growing out of a suit by an Orthodox Jewish religious group that encountered hurdles in its attempt to build an adult religious studies Kollel building along with family housing for Kollel students on a parcel of land in Ramapo, New York.  The events are part of the tension in recent years over the movement of increasing numbers of Orthodox and Hasidic Jewish families to Ramapo and areas around it in Rockland County. (See prior posting.)

Originally the Kollel project was financed by RBS Citizens, but it sold the note and mortgage to Avon which eventually foreclosed on the mortgage.  Among the 17 causes of action against three groups of defendants is a claim that the foreclosure was commenced because a principal of Avon, Abraham Grunwald, disapproved of the religious lifestyle and education of the Mosdos Kollel students and wanted to close down the Kollel and replace it with an institution consistent with Grunwald’s own religious values. The complaint also alleges that an agent of Avon and Grunwald  engaged in a campaign to injure Mosdos by calling its students to tell them that the school would be shut down, and urging donors not to donate because the school is not viable.

The court dismissed abuse of process and slander claims against the Avon defendants.  But it did allow Mosdos to move forward with its claim that the mortgage agreement that was foreclosed upon is invalid because under Sec. 12(1)  of New York's Religious Corporation Law the mortgage requires prior court approval. (See prior related posting.)

Class Action Challenge To Virginia's Same-Sex Marriage Ban Stayed As Plaintiffs Intervene In Appeal of Parallel Case

In Harris v. Rainey, (WD VA, March 31, 2014), Virginia federal district judge has cut through the procedural complexity of competing challenges to Virginia's ban on same-sex marriage by staying proceedings in one case while a separate challenge works its way through the 4th Circuit Court of Appeals.  In February, a different Virginia federal district court in Bostic v. Rainey issued a preliminary injunction striking down Virginia's ban on same-sex marriage, but stayed the injunction pending appeal. (See prior posting.) Just before the court handed down its decision in Bostic, Virginia's attorney general filed a Notice of Change of Legal Position with the court indicating that he will not defend the constitutionality of Virginia's ban. This However left two clerks of court who were also defendants to carry the case forward. (Attorney General's FAQ page on the case.) However in the Harris case-- a class action on behalf of 14,000 same sex couples filed by the ACLU (links to pleadings)-- no defendant was willing to defend the state's ban. Meanwhile the plaintiffs in Harris petitioned the 4th Circuit for, and on March 14 were granted, the right to intervene as a plaintiffs in the Bostic appeal (Legal Times), despite opposition to their intervening by the original lawyers of plaintiffs in Bostic. They preferred that the Harris plaintiffs merely file an amicus brief. (National Law Journal.) [Thanks to How Appealing for the lead.]

Satmar Community Agrees To Eliminate Official Endorsement of Sex Segregated Playground

The New York Civil Liberties Union reported yesterday that the Village of Kiryas Joel, New York, has settled a Freedom of Information lawsuit brought against it seeking information on the alleged sex segregation of a Village public park.  The media last year reported that the Village, which is comprised predominately of members of the Satmar Hasidic Jewish sect, had constructed a 283-acre playground with one area for women and girls (red benches and playground equipment) and a separate blue area for boys and men. (See prior posting.)  In settling the suit (full text of March 26 Stipulation and Settlement Order), the Village confirmed to the ACLU that it does not have a policy of directing, endorsing or enforcing illegal sex segregation in the Village playground known as Kinder Park.  The settlement authorizes the ACLU to conduct two visits each summer for the next three years to check on its compliance. The ACLU says that the Village has removed Yiddish signs that were previously posted instructing visitors about the sex-segregated areas. The Village also agreed to pay $3000 in petitioners' attorneys' fees. Failed Messiah, reporting on the settlement, claims that the playground will remain voluntarily segregated.

U.S. Catholic Bishops Issue 2013 Report On Clergy Abuse Allegations and Costs

On March 28, the U.S. Conference of Catholic Bishops released its most recent report on the Church's ongoing efforts to deal with clergy sexual abuse of minors.  Its 2013 Annual Report on the Implementation of the “Charter for the Protection of Children and Young People" discloses that in 2013 there were 370 new credible allegations of sexual abuse of a minor made against 290 priests or deacons. Only nine of the allegations involved victims who were under 18 in 2013. The rest involved adults who claim abuse in the past. 80% of the victims were male while 20% were female.  Five of the 370 allegations involved only child pornography. 69% of the allegations involved conduct that occurred or began between 1960 and 1984. During 2013, dioceses and eparchies paid out $108.9 million as follows: $61 million in settlements; $6 million in therapy for victims; $10.4 million in support for offenders; $28.9 million in attorneys' fees; and $2.4 million in other costs. In the past ten years, costs related to claims have totaled $109 million. Insurance covered 21% of the amounts paid out in 2013. The report deals separately with abuse complaints directed to clerical and mixed religious institutes where 2013 saw 94 new credible allegations of abuse. Catholic World News covers the report. [Thanks to Pewsitter.com for the lead.]

SCOTUS Denies Cert. In 2 Non-Profit Contraceptive Mandate Cases Seeking Review Ahead of Circuit Court Decisions

The U.S. Supreme Court today denied certiorari (Order List) in two cases in which Catholic non-profit organizations are challenging the Affordable Care Act compromise that allows them to opt out of providing their employees contraceptive coverage only if they sign a form that results in the employees receiving coverage directly from the health insurance company or third party administrator.  The two cases in which review was denied today were both ones in which the non-profit organization took the unusual step of seeking Supreme Court review before the appeal of the district court's decision was heard and decided by the Court of Appeals. The first of today's denials was in Roman Catholic Archbishop of Washington v. Sebelius, (Docket No. 13-829, cert. denied 3/31/2014) in which the D.C. federal district court upheld the challenge to the compromise as to one of the plaintiffs that offered a self-insured plan, but not for the others who offered group insurance or church plans. (See prior posting). The second denial was in Priests for Life v. Department of Health and Human Services, (Docket No. 13-891, cert. denied 3/31/2014) in which the D.C. federal district found that no substantial burden was placed on a pro-life group's free exercise by requiring it to complete the self-certification form to opt into the accommodation. (See prior posting.) Reuters reports on the denial of review.

Hearing This Week On Injunction Against New Jersey Archdiocese Selling Headstone and Mausoleum Rights

Yesterday's Newark Star Ledger reports that a hearing is scheduled April 1 in a New Jersey Superior Court on an action by three cemetery monument companies against the Roman Catholic Archdiocese of Newark seeking to enjoin the Archdiocese from selling monuments and private mausoleums at Catholic cemeteries.  The complaint (full text) in Monument Builders of New Jersey, Inc. v. Roman Catholic Archdiocese of Newark, (NJ Super Ct), filed last  year argues that the Archdiocese has engaged in unfair competition with private monument companies:

The sale of the monuments and the private mausoleums is in direct competition with Plaintiff entities and because of its tax-exempt status and the close contact with the family of the deceased before, at the time of, and after the burial give the Archdiocese preferred economic position and ease of access to prospective customers in promoting sales.

The complaint also alleges that the sale of monuments by the Archdiocese is ultra vires and against public policy.

The Archdiocese's answer (full text) filed Sept. 4, 2013, says that the Archdiocese is not selling monuments and mausoleums. Rather it is selling inscription rights to monuments and burial rights in mausoleums that the Archdiocese owns.  This arrangement makes it responsible for repairs when there is damage to headstones of mausoleums.  The Archdiocese admits that it is subject to New Jersey's 7% use tax on the monuments and mausoleums it purchases, even though apparently it has not yet paid the tax. (Deposition.)

NY Appellate Court Upholds $1.6 M Religion- Sexual Orientation Discrimination Verdict

In Salemi v. Gloria's Tribeca Inc., (NY App. Div., March 20, 2014), a New York appellate court upheld a jury verdict of $1.6 million in a suit alleging employment discrimination on the basis of religion and sexual orientation in violation of the New York City Human Rights Law.  Plaintiff worked as chef and manager of a restaurant.  The court concluded that the jury had ample evidence to find that plaintiff's employer:

discriminated against her based on her religion and sexual orientation by, amongst other things, holding weekly prayer meetings at the restaurant ... which the staff viewed as mandatory, fearing that they would lose their jobs if they did not attend, repeatedly stating that homosexuality is "a sin," and that "gay people" were "going to go to hell" and generally subjecting her to an incessant barrage of offensive anti-homosexual invective.... Additional evidence demonstrated that ... plaintiff was retaliated against for objecting to [her employer's] offensive comments, choosing not to attend workplace prayer meetings, and refusing to fire another employee because of his sexual orientation.

In response to defendant's argument that he was expressing his religious beliefs, the court said that the jury was properly instructed that he could do so provided he did not discriminate against his employees based on religion or sexual orientation. Courthouse News Service reports on the decision.

Recent Articles of Interest

From SSRN:

• Samuel J. Levine, Foreword: Conference on Religious Legal Theory: RLT IV: Expanding the Conversation, (30 Touro L. Rev. 1 (2014)).
• Dallan F. Flake, Image is Everything: Corporate Branding and Religious Accommodation in the Workplace, (University of Pennsylvania Law Review, Vol. 163, 2014-15).
• Asifa Quraishi-Landes, Rumors of the Sharia Threat are Greatly Exaggerated: What American Judges Really Do with Islamic Family Law in Their Courtrooms, (New York Law School Law Review, Vol. 57, No. 245, 2013).
• John M. A. DiPippa, God and Guns: The Free Exercise of Religion Problems of Regulating Guns in Churches and Other Houses of Worship, (March 21, 2014).
• John M. Breen & Lee J. Strang, The Forgotten Jurisprudential Debate: Catholic Legal Thought's Response to Legal Realism, (March 24, 2014).
• Micah Schwartzman, Religion as a Legal Proxy, (San Diego Law Review, Forthcoming).
• Micah Schwartzman, Religion, Equality, and Public Reason, (Boston University Law Review, Forthcoming).
• Yaniv Heled, On Patenting Human Organisms or How the Abortion Wars Feed into the Ownership Fallacy, (Cardozo Law Review, Vol. 36, 2014, Forthcoming).
• Jessica Feinberg, The Survival of Non-Marital Relationship Statuses in the Same-Sex Marriage Era: A Proposal, (Temple Law Review, Vol. 87, Forthcoming).

From SSRN (Affordable Care Act and Religious Freedom):

• Heidi Muller, Hobson's Choice: For-Profit Corporations and the Exercise of Religion, (November 17, 2013).
• Scott Harrington, No Soup for You! Religion in the Post-PPACA Era, (March 18, 2014).
• Zoe Robinson, The Contraception Mandate and the Forgotten Constitutional Question, (Wisconsin Law Review, Forthcoming 2014).
• Toni M. Massaro, Nuts and Seeds: Disclosure of Religious Exemptions, (Arizona Legal Studies Discussion Paper No. 14-10 (March 2014)).

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

• Lotem Perry-Hazan, From the Constitution to the Classroom: Educational Freedom in Antwerp's Ultra-Orthodox Jewish Schools, (Journal of School Choice, 2014, Forthcoming).
• Lotem Perry-Hazan, Court-Led Educational Reforms in Political Third Rails: The Cases of Israeli Haredi Schools' Curricula and Admission Policies, (March 18, 2014).
• Jill Marshall, The Legal Recognition of Personality: Full Face Veils and Permissible Choices, (10 International Journal of Law in Context 64-80 (2014)).
• Robert J. Delahunty, The Returning Warrior and the Limits of Just War Theory, (Rutgers Journal of Law and Religion, 2014).

From SmartCILP:

• Mark W. Cordes, The First Amendment and Religion After Hosanna-Tabor, 41 Hastings Constitutional Law Quarterly 299-355 (2014).
• Alvaro Hasani, Compatibility of Democracy and Islam...Or the Lack Thereof: A Closer Look At Whether the "Arab Spring" Was Ever Capable of Culminating Into a Viable Democracy in the Arab World, 15 Scholar 715-743 (2013).
• Ken Matheny, The Disappearance of Labor Unions and the Social Encyclicals of Popes John Paul II and Benedict XIV, 23 Southern California Interdisciplinary Law Journal 1-35 (2014).