President Obama Sends Easter and Passover Greetings

President Obama used his White House address yesterday (full text) (video) to convey Easter and Passover greetings, saying in part:

These holy days have their roots in miracles that took place long ago.  And yet, they still inspire us, guide us, and strengthen us today.  They remind us of our responsibilities to God and, as God’s children, our responsibilities to one another.

For me, and for countless other Christians, Holy Week and Easter are times for reflection and renewal.  We remember the grace of an awesome God, who loves us so deeply that He gave us his only Son, so that we might live through Him.... 

The common thread of humanity that connects us all – not just Christians and Jews, but Muslims and Hindus and Sikhs – is our shared commitment to love our neighbors as we love ourselves.  To remember, I am my brother’s keeper. I am my sister’s keeper.  Whatever your faith, believer or nonbeliever, there’s no better time to rededicate ourselves to that universal mission.

Anti--SLAPP Motion Granted To Dismiss Suit Growing Out of Ground-Zero Mosque Controversy

Forras v. Rauf, (D DC, April 18, 2014), is a remnant from the widely publicized battle over attempts in 2010 to construct a mosque and community center two blocks from Ground Zero in lower Manhattan.  New York City first responder Vincent Forras sued to prevent building of the mosque, claiming that it would be a nuisance, would inflict emotional distress and amounted to an assault.  In response to the complaint in that suit, Imam Feisal Rauf and the other defendants moved to dismiss, filing a memorandum of law that, among other things, said that Forras equates Islam with terrorism and has become "America's Spokesman of Bigotry." The suit was ultimately dismissed.

Meanwhile, however, Forras filed this lawsuit against Rauf and the other defendants alleging defamation, false light, assault, and intentional infliction of emotional distress from the statements they made in their memorandum of law seeking dismissal of the original lawsuit. Forras moves to dismiss under the D.C. Anti-SLAPP Act which provides for rapid dismissal of a lawsuit that is filed to chill speech about public issues.  The court granted the motion, finding that Forras had not shown a likelihood of succeeding on the merits of his claims.  The judicial proceedings privilege would defeat the defamation and false light claims.  Plaintiffs also failed to show that they are likely to succeed on their other claims, including their claim that the statements in the original court proceedings "put a de facto Fatwah on Plaintiffs."

Kentucky Supreme Court Fleshes Out The Ministerial Exception Doctrine

In two cases decided earlier this week, the Kentucky Supreme Court clarified the ministerial exception doctrine.  In Kirby v. Lexington Theological Seminary, (KY Sup. Ct., April 17, 2014), Jimmy Kirby, a tenured professor teaching Christian social ethics at Lexington Theological Seminary had his employment terminated as part of the seminary's response to a financial crisis it was facing. Kirby sued claiming race discrimination and breach of contract. The court held that the race discrimination claim was barred by the ministerial exception doctrine, saying:

we explicitly adopt the ministerial exception as applicable to employment claims—especially discrimination claims—asserted against a religious institutional employer by an employee who is directly involved in promulgating and espousing the tenets of the employer's faith.....

From a broad perspective, the ministerial exception does not strip a court of its jurisdiction but, instead, simply disallows the forward progress of the particular suit. The ministerial exception's very name inherently suggests it does not operate as a jurisdictional bar. It is an exception, not an exemption.  Most likely, a great deal of the current disagreement over the ministerial exception's proper operation stems from the conflation of the ministerial exception with the broader principle of ecclesiastical abstention. Secular courts do not have jurisdiction to hear disputes over church doctrine. But courts do have jurisdiction to hear and resolve employment disputes, contract claims, tort claims, or similar. And that authority is not lost as a result of the ministerial exception.

However the court permitted Kirby to proceed with his claim that his dismissal violated his contractual rights as a tenured professor:

Although state contract law does involve the governmental enforcement of restrictions on a religious institution's right or ability to select its ministers, those restrictions are not governmental restrictions. Simply put, the restrictions do not arise out of government involvement but, rather, from the parties to the contract, namely, the religious institution and its employee. 

Contractual transactions, and the resulting obligations, are assumed voluntarily. Underneath everything, churches are organizations. And, like any other organization, a "church is always free to burden its activities voluntarily through contracts, and such contracts are fully enforceable in civil court."  Surely, a "church can contract with its own pastors just as it can with outside parties."  "Enforcement of a promise, willingly made and supported by consideration, in no way constitutes a state-imposed limit upon a church's free exercise rights."

In a companion case, Kant v. Lexington Theological Seminary, (KY Sup. Ct., April 17, 2014),  Laurence Kant, another tenured professor who was terminated at the same time, also sued for breach of contract.  The Court held that Kant, a Professor of History of Religion who was Jewish, was not a "minister" for purposes of the ministerial exception doctrine:

we find it important to emphasize the connection between the religious institution's employee and the doctrine or tenets of the religious institution. A minister, in the commonly understood sense, has a very close relationship with doctrine of the religious institution the minister represents. The members of the congregation or faith community view a minister as one who is, among other things, the face of the religious institution, permitted to speak for the religious institution, the embodiment of the religious institution's tenets, and leader of the religious institution's ritual.  Kant did none of these things....

[T]he simple fact that an employee professes a different religious belief system than his religious institutional employer does not eliminate the employee as a ministerial employee under the law. The primary focus under the law is on the nature of the particular employee's work for the religious institution. Here, Kant's work was chiefly secular.

Dobson's Family Talk Wins Preliminary Injunction Against ACA Contraceptive Coverage Rules

In Dobson v. Sebelius, (D CO, April 17, 2014), a Colorado federal district court issued a preliminary injunction preventing the government from enforcing the Affordable Care Act contraceptive coverage mandate against James Dobson's religious non-profit Family Talk.  The court concluded that the ACA regulations which allow religious non-profits to opt out, and call for contraceptive coverage to then be furnished directly by insurers or third party administrators, do not eliminate the free exercise burden:

Here, any myopic focus on the brevity of the Exemption Form and its ease of completion misses the mark. It is the de facto forced facilitation of the objectionable coverage that is religiously repugnant to the plaintiffs. The resultant moral abhorrence is not effectively extenuated by a transfer of responsibility via an Exemption Form from the plaintiffs to the TPA. For the plaintiffs, such legal legerdemain does not expiate the morally unacceptable means or end. The transformation of moral culpability from plaintiffs as principals to aiders and abettors does not absolve the plaintiffs from their immutable moral responsibility. Such a compelled concession – even by an ostensibly innocuous legal prophylactic – does not ameliorate the moral ignominy and obliquity created by the pressured participation in the process.

Further, it is of no moment that ultimately the decision by an employee to elect the objectionable coverage is optional. To the plaintiffs, it is the offer per se that is morally offensive regardless of the extent of its acceptance.

Thus, I conclude ultimately that there is a substantial likelihood that the plaintiffs can show that the pressure to execute the Exemption Form imposed on them by the ACA and the concomitant regulations constitutes impermissible pressure to act in violation of their religious beliefs.

Christian Post reports on the decision. (See prior related posting.)

University's Diversity Officer, Demoted For Anti-Gay Marriage Views, Loses Discrimination Lawsuit

In McCaskill v. Galludet University, (D DC, April 14, 2014), the District of Columbia federal district court dismissed a lawsuit brought by Angela McCaskill, Gallaudet University's former Chief Diversity Officer. The University placed McCaskill on administrative leave and eventually demoted her after it become known that at her church she had signed a petition to get a proposed state constitutional amendment to ban same-sex marriage on the Maryland ballot. The University justified its action on the ground that McCaskill's ability to advocate for her constituents, particularly the university's gay community, had been compromised.  McCaskill brought the suit alleging discrimination on the basis of race, religion, sexual orientation, marital status, and political affiliation in violation of D.C.'s Human Rights Act; infliction of emotional distress; and defamation. In rejecting McCaskill's religious discrimination  claim, the court said in part:

Even if Gallaudet knew of her religious convictions or was aware that those convictions motivated her to sign the petition – a fact that remains hazy on the face of the Complaint – there is no factual allegation that her religion somehow prompted her suspension or demotion. ... [A]lthough it may be true that McCaskill signed the petition because she is a Christian ... the university cannot be guilty of discrimination on that basis.

Washington Business Journal reports on the decision.

Seventh Day Adventist Sues Over Hostility To His Not Working On Saturdays

The New York Post reports on an employment discrimination lawsuit filed in a New York federal district court last Monday by a Seventh Day Adventist who formerly was employed by CVS pharmacy.  Plaintiff Nowran Busgith, who worked as a loss-prevention specialist, claims that he had no problems getting Saturdays off work until his supervisor Abdul Salui, a Muslim, learned that the reason for the request was Busgith's observance of his Sabbath. From then on Salui became hostile toward him, repeatedly asked him why he was in a "white boy religion," and refused his requests not to work on Saturdays. The suit seeks an unspecified amount of damages against CVS and Salui.

Australian Court Says Christian Camp Illegally Discriminated On Basis of Sexual Orientation

In Christian Youth Camps Ltd. v. Cobaw Community Health Service Ltd., (Vict. App., April 16, 2014), the Court of Appeal of the Australian state of Victoria, in a 2-1 decision, held that a Christian youth camp unlawfully discriminated on the basis of sexual orientation when it refused to rent out its camp for a weekend to an organization whose goals were to prevent suicide among "same-sex attracted young people."  The majority held that neither of the two religious freedom exemptions in the Equal Opportunity Act 1995 apply. The exemption in Sec. 75(2) does not apply because the camp is not "a body established for religious purposes." The exemption in Section 77 (prior to its amendment in 2010) for conduct "necessary ... to comply with the person's genuine religious beliefs or principles" should be read as covering only individuals, and not corporations.

Justice Redlich dissented, arguing that the exemption in Section 77 is available to corporations, and that in addition corporations may claim the exemption when it is validly claimed by an agent of the corporation who acted for it. Christian Today reports on the decision.

10th Circuit Hears Oral Arguments In Oklahoma Same-Sex Marriage Case

As reported by the Los Angeles Times, the U.S. 10th Circuit Court of Appeals yesterday heard oral arguments in  Bishop v. Smith.  An audio recording of the full oral arguments is available from the court's website. In the case, an Oklahoma federal district court held that the provision in the Oklahoma constitution barring same-sex marriage in the state violates the equal protection clause of the 14th Amendment.  The same 10th Circuit panel heard arguments last week in a case challenging Utah's same-sex marriage ban. (See prior posting.)

New York City Churches Still Holding Out Hope For Continued Use of Public School Space

The battle by New York City churches to continue to use public school buildings on weekends for religious services is not over despite the Second Circuit's recent decision upholding the school board's rule change barring such use. On Tuesday, appellants in Bronx Household of Faith v. Board of Education of the City of New York filed a petition (full text) for an en banc rehearing by the full Second Circuit.  According to an ADF press release, "The filing automatically puts the panel’s ruling on hold, which means that congregations will be able to continue meeting through Easter and the remainder of Passover while the 2nd Circuit decides what to do with the petition." Meanwhile, as reported by World, there continues to be speculation that New York Mayor Bill de Blasio will move to reverse the policy the school board adopted under his predecessor's administration and allow churches to continue to use school space.

Atheist Sues New Jersey Over Refusal of Vanity License Plate

A New Jersey woman yesterday filed suit in federal district court against the New Jersey Motor Vehicle Commission over its refusal to issue her a vanity license plate reading "8THEIST".  The complaint (full text) in Morgan v. Martinez, (D NJ, filed 4/17/2014), contends that in rejecting the plate because it "may carry connotations offensive to good taste and decency" the state violated plaintiff's rights under the 1st and 14th Amendments.  The state was willing to issue a vanity plate reading "BAPTIST".  Americans United issued a press release announcing the filing of the lawsuit.

New Hampshire Supreme Court Hears Arguments In Education Tax Credit Challenge

On Wednesday, the New Hampshire Supreme Court heard oral arguments in Duncan v. State of New Hampshire. A video recording of the full arguments is available from the Supreme Court's website. [File will download.]  In the case, a New Hampshire trial court held that the state's Education Tax Credit program violates the state constitution's ban on compelling any person to support sectarian schools and its "No Aid" clause, insofar as the state allows funds generated by the program to be used at religious schools. (See prior posting.) The Concord Monitor reports on the oral arguments.

British Trial Court Rejects Claim That Wealthy Family's Property Was Held Under Hindu/ Sikh Law

Singh v. Singh, (EWHC, April 8, 2014) is a property dispute between members of an extremely wealthy Sikh family living in Britain. In the case, the eldest son in the family, Jasminder Singh, claims ownership of Tetworth Hall, described as "a spacious house standing in its own grounds on the edge of Ascot race course." He also claims ownership of 5.28% of the shares of Edwardian Group, Ltd., a very profitable company that operates hotels in central London and elsewhere. Both the house and the company shares are registered in Jasminder's name.

According to the court, Jasminder's father, however, claims that:

these and other items of property are joint family assets which are held in accordance with the principles of what is known as the Mitakshara. This is the legal code ... by which a Hindu family living and eating together as a composite household may hold its property. The code which is of very ancient origin applies as much to Sikhs as to Hindus. This is relevant because, as their name implies, the Singh family are Sikhs. The beneficial interest in property of a joint Hindu (or Sikh) family, if held subject to the Mitakshara, belongs jointly to the male members of that family down to the third generation from a common male ancestor.

Jasminder responds that: "until this dispute first arose he had never even heard of the Mitakshara, let alone had any understanding of how it operates."

The court prefaced a lengthy review of the family's history with this observation:

If nothing else this litigation has highlighted the extraordinary enterprise that has enabled the Singh family, in the space of just two generations, to rise from obscurity and very modest circumstances in what was then rural British India, overcome all manner of difficulties, come eventually to this country and make a fortune for itself. I dare say it is not untypical of many such families but there can be few whose rise has been quite so meteoric. The family's story as it unfolded in the course of this trial has a heroic quality to it. It has made it all the more painful to have to listen to the tragic differences that now divide its members.

In a 248 paragraph opinion, th High Court judge concluded:

At the end of the day the question is whether Father has demonstrated that as between himself and Jasminder there existed an understanding that any property which they or either of them acquired would be held as joint family property.... I am unable to find that there was such an understanding.

[Thanks to Law & Religion UK for the lead.] 

Suit Over Sale of Former Public School To Yeshivas Is Settled

Lower Hudson Journal News reports on the settlement of a lawsuit between the East Ramapo, New York school district and two Orthodox Jewish schools (yeshivas) that are leasing and seeking to purchase an elementary school building that was closed as a public school in 2009. Congregation Bais Malka of Monsey and the Hebrew Academy for Special Children, a religious school for children with special needs, have been renting the former Colton school since 2011. They sued last summer seeking credits for rent paid to reduce the purchase price of the building.  Opponents claim a conflict of interest in the entire transaction since a majority of the school board members are Orthodox Jews whose families use Orthodox Jewish yeshivas. In the settlement agreement, East Ramapo will give the yeshivas over $1 million in rent credits, will waive late fees for rent that was never paid, and give additional credits for repairs that the tenants made. A New York trial court judge finally approved the settlement on Monday, but insisted that it include language that the court does not endorse the findings of fact in the settlement. (See prior related posting.)

3 USCIRF Commissioners Are Reappointed

The U.S. Commission on International Religious Freedom announced last week that three of its commissioners have been reappointed. On March 28, Senate Minority Leader Mitch McConnell announced his reappointment of Mary Ann Glendon and Dr. M. Zuhdi Jasser. On April 9, Senate Majority Leader Harry Reid announced his reappointment of Dr. Katrina Lantos Swett. Commissioners are appointed for 2-year terms, some by Congressional leaders and some by the President, as specified in Section 201 of the International Religious Freedom Act.

U.S. Embassy Is One Sponsor Of School Program In Czech Republic To Fight Prejudice Against Muslims

AINA reported this week that the U.S. Embassy in Prague is one of a half dozen sponsors of a program titled "Muslims in the Eyes of Czech School Children."  The project, authorized by the Czech Republic's Ministry of Education, is designed to fight stereotypes and prejudices about Muslims by teaching school children about Islamic beliefs and practices. The first phase of the project is aimed at analyzing the accuracy of information about Islam in Czech school textbooks. Later phases involve examination of issues such as veiling of women and media coverage of Islam, artistic projects and thematic lectures. Critics of the program are concerned that it will involve proselytizing.

Religion Clause Is 9 Years Old Today

Religion Clause is 9 years old today! Thanks to all of you who have made the blog successful as the "go to" resource for coverage of religious liberty and church-state developments.  I appreciate your readership and hope you will continue to recommend the blog to others.  I remain committed to religiously and ideologically neutral reporting, with extensive links particularly to primary source material. As always, I welcome your e-mails on leads for blog posts, or on factual corrections. You can reach me at religionclause@gmail.com. Also feel free to send along any suggestions for change through Comments to this post.

NYPD Ends Muslim Neighborhood Surveillance Unit

The New York Times yesterday reported that the New York Police Department is dropping its controversial Demographics Unit that has sent plainclothes detectives into Muslim neighborhoods to secretly monitor individuals. The reassignment of detectives that has inactivated the Unit appears to be part of new Police Commissioner William Bratton's attempt to build better relations with minority communities.

New Approval, But Also Law Suit, Are Latest Steps In Creating New Canadian Christian Law School

In Canada last week, the Law Society of British Columbia announced that it has voted to approve the proposed law school at Trinity Western University, making TWU graduates eligible to enter the Law Society's admissions program. The full text of the documents underlying the vote are available online. This follows similar approval last December by Advanced Education Minister Amrik Virk, and by the Federation of Law Societies of Canada. (See prior posting.)  A TWU press release says that BC Society's decision now allows it to move forward with creating the law school.  The opening of a law school at the evangelical Christian university has been controversial because of the university's Biblical-based "community covenant" which requires staff, faculty and students to refrain from homosexual relationships (as well as gossip, lying, smoking and consuming alcohol). (See prior posting.)

Meanwhile, according to the Victoria (BC) Times Colonist, on Monday an openly gay member of the Vancouver Park Board filed suit in B.C. Supreme Court challenging the approval of the school by the government's Advanced Education Minister. The suit contends that the approval fosters a discriminatory policy that violates the Canadian Charter of Rights and Freedoms.

Ohio's Ban On Recognizing Same-Sex Marriages From Elsewhere Invalidated, But Most of Order Stayed Pending Appeal

In Henry v. Himes, (SD OH, April 14, 2014), an Ohio federal district court held that Ohio's bans on recognizing same-sex marriages validly performed in other jurisdictions are "facially unconstitutional and unenforceable under any circumstances." Legal Times reports on the decision. Judge Black had announced earlier this month that this ruling was coming. In a follow-up opinion today (full text) the court stayed its broad ruling on facial unconstitutionality  while the case is appealed  However the court refused to stay the order as to the "as applied" claims of the four same-sex couples who brought the lawsuit. Judge Black ordered the state to issue birth certificates for these Plaintiffs’ children which list both lawfully married same-sex spouses as parents.

President Sends Passover Greetings

The White House issued a statement from the President (full text) today sending greetings from himself and Michelle to all those celebrating Passover. Passover begins this evening.  Mr. Obama announced that, as in past years of his Presidency, on Tuesday he will be joining friends and loved ones at a Seder. His statement spoke both of the meaning of Passover and, in light of yesterday's shootings in Kansas, of the need to combat ignorance and intolerance, including anti-Semitism, that can lead to violence.

President Hosts Easter Prayer Breakfast

This morning, President Obama hosted religious leaders at the White House for his 5th annual Easter Prayer Breakfast marking the beginning of Holy Week. (Press release and video of remarks).  He began his remarks (full text) by speaking of the shootings in Kansas City yesterday. He then went on:

So this Easter Week, of course we recognize that there’s a lot of pain and a lot of sin and a lot of tragedy in this world, but we’re also overwhelmed by the grace of an awesome God.  We’re reminded how He loves us, so deeply, that He gave his only begotten Son so that we might live through Him.  And in these Holy Days, we recall all that Jesus endured for us -- the scorn of the crowds and the pain of the crucifixion, in our Christian religious tradition we celebrate the glory of the Resurrection -- all so that we might be forgiven of our sins and granted everlasting life. 

He went on to speak about his recent meeting with Pope Francis, and to thank religious leaders in the audience for their good works, including participation in the My Brother's Keeper initiative.

U.S. Delegation To Canonization Mass Named

Last Friday the White House announced the makeup of the Presidential Delegation to the Holy See which will attend the Canonization Mass of Pope John XXIII and Pope John Paul II on April 27, 2014.  The delegation will be led by Presidential Counselor John Podesta. Other members of the delegation are Rep. Xavier Becerra, Chairman of the House Democratic Caucus; and Katie Beirne Fallon, Assistant to the President and Director of Legislative Affairs.

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.