Understanding The Procedural Tangle In The Arkansas Same-Sex Marriage Challenge

As lower courts strike down same-sex marriage bans in various states, and state officials scramble to stay the orders and file appeals, the procedural tangles sometimes become difficult to penetrate.  So here is an attempt to clarify where things stand procedurally in one state-- Arkansas.

On May 9, an Arkansas state trial court (the Pulaski County Circuit Court which includes the city of Little Rock) held that the state's constitutional and legislative bans on same-sex marriage violate the 14th Amendment's equal protection clause.  (See prior posting.) A number of state and county officials filed an appeal with the Arkansas Supreme Court seeking an emergency stay of the trial court's order.  In Smith v. Wright, (AR Sup. Ct., May 14, 2014), the Arkansas Supreme Court dismissed the appeal without prejudice on the ground that the trial court's order was not a final adjudication of all the claims of the parties and so could not yet be appealed.  However it also held that reading the trial court's order carefully, the trial court had not issued a ruling as to Ark. Code Ann. § 9-11-208(b), prohibiting circuit and county clerks from issuing same-sex marriage licenses.  So, according to the Supreme Court, that prohibition was still in effect.

The next day, May 15, the Pulaski County Circuit Court responded by issuing three separate orders: (1) it denied a stay of its earlier ruling (full text of order); (2) the Court issued a final order permanently enjoining both the bans on same-sex marriage and the provision prohibiting circuit and county clerks from issuing licenses to same sex couples (full text of order); and (3) the court issued an order making its May 15 ruling that covered the ban on issuing marriage licenses retroactive to May 9 by an order entering the ruling nunc pro tunc. It said that the original omission of a reference to the section on issuance of licenses was an inadvertent clerical error. (Full text of ruling.) Lyle Denniston at Scotus Blog suggests that the nunc pro tunc order serves to protect those clerks who issued licenses between May 9 and 15.

According to AP, the Pulaski County clerk resumed issuing marriage licenses to same-sex couples shortly after the trial court's new orders.  Other counties though are awaiting legal advice. And after same-sex marriages resumed in Pulaski County, the Arkansas attorney general's office returned to the state Supreme Court and again asked for a stay of the trial court's order, pending appeal. [Thanks to Tom Rutledge for the lead.]

Sudanese Woman Sentenced To Flogging and Death For Apostasy and Supposed Adultery

CNN reports that in Khartoum, Sudan this week, a court has sentenced  27-year old Meriam Yehya Ibrahim to death by hanging for apostasy and to 100 lashes for adultery after she refused to recant her Christian faith.  Ibrahim was born to a Sudanese Muslim father and an Ethiopian Orthodox mother. Her father left when she was 6 years old and she was raised by her mother as a Christian. She married, has a 20-month old son and is 8 months pregnant with their second child. However because her father was Muslim, under Sudanese personal status law (based on Sharia) Ibrahim is still considered Muslim, and her marriage to a non-Muslim man is considered void-- hence the adultery charge. Ibrahim is in custody with her 20-month old son.  The verdict can be appealed. Amnesty International has strongly protested the sentence.

Court Says Catholic Health System's Pension Plans Qualify As "Church Plans" Under ERISA

In Overall v. Ascension, (ED MI, May 9, 2014), a Michigan federal district court-held that the pension plans of Ascension Health Alliance are "church plans" under ERISA, even though the plans were not "established by" a church.  Disagreeing with two other recent decisions from other districts (1, 2), the court held that it is sufficient that Ascension Health Alliance is controlled by and associated with the Roman Catholic Church. The court dismissed for lack of standing plaintiff's claim that permitting organizations associated with a church to claim church plan status would violate the Establishment Clause. Fiduciary Matters Blog discusses the decision.

North Carolina Supreme Court Stays Trial Court's Injunction Against School Voucher Program

The North Carolina Supreme Court yesterday issued an order (full text) in Hart v. State of North Carolina, granting a stay of a trial court's temporary injunction that had barred implementation of the state's Opportunity Scholarship program. (See prior posting.) The program, enacted in 2013, gives up to 2400 students from low-income families scholarships of $4200 to attend a private or religious school of the parents' choice. WRAL News reports that the North Carolina Educational Assistance Authority will now likely move ahead with its planned lottery to determine which of the 5500 applicants will receive scholarships for next year.  Two separate lawsuits have been filed against the program, arguing that it unconstitutionally spends taxpayer funds on private schools, including ones that discriminate in admissions. Parents for Educational Freedom in North Carolina issued a press release welcoming the Supreme Court's action.

Rabbi, 3 Others, Indicted For Diverting Grant Funds To Religious Schools and Camps

The Queens County, New York district attorney's office announced Tuesday that four men, including Rabbi Samuel Hiller, have been indicted on grand larceny charges for diverting over a 7-year period some $12.4 million in state and city funds meant for special needs students ages 3-5 served by Island Children's Development Center.  Approximately $8 million of the funds were diverted by Rabbi Hiller to religious schools and camps, including $3 million to the girl's school at which Rabbi Hiller serves as principal. A civil forfeiture action has also been filed.

New York's Top Court Vacates Some of the Convictions In Dead Sea Scrolls Controversy

In People v. Golb, (NY Ct. App., May 13, 2014), New York's Court of Appeals (its highest appellate court) dismissed some, but not all, of the convictions growing out of a dispute over the origins of the Dead Sea Scrolls. As explained by the court:

Norman Golb, defendant's father, is a professor at the University of Chicago, and a scholar on the subject of the Scrolls. There is disagreement among scholars and experts about who wrote the Scrolls. One view, known as the Qumran-Sectarian theory, or Sectarian theory, is that the Scrolls were writings of a Jewish sect, living in or near Qumran. Norman Golb and others disagree.... They believe that the Scrolls were writings of various groups and that the writings were rescued from libraries in Jerusalem and brought to the caves for safekeeping at the time of the siege and sacking of the city by Roman troops in 70 C.E. (the Jerusalem libraries theory).

Defendant Raphael Golb, Professor Norman Golb's son, decided to defend his father's academic views through an Internet campaign attacking the integrity and reputation of academics and scholars who disagreed with his father's theory. According to the court, to accomplish this:

defendant, using pseudonyms and impersonating real academics and scholars, sent emails to museum administrators, academics and reporters. He published anonymous blogs. He concocted an elaborate scheme in which he used a pseudonym to engage one professor in an email exchange, and then impersonated a different scholar to criticize that professor's emails. Defendant impersonated a New York University (NYU) professor and sent emails to NYU students and NYU deans indicating that the professor had plagiarized the work of Professor Golb.

The court affirmed most of the criminal impersonation convictions of defendant,  but vacated the convictions based on the mere creation of false e-mail accounts that were never used. The court vacated defendant's convictions for aggravated harassment, finding that Penal Law § 240.30(1) is unconstitutionally vague and overbroad. The court upheld defendant's convictions for forgery, but vacated his convictions for unauthorized use of a computer and identity theft.

Chief Judge Lippman dissented in part, arguing that the entire indictment should be dismissed.  Capital New York reports on the decision.

Court Says ACA Contraceptive Coverage Rules For Religious Non-Profits Do Not Violate RFRA

In Diocese of Cheyenne v. Sebelius, (D WY, My 13, 2014), a Wyoming federal district court denied a preliminary injunction in a challenge to the Affordable Care Act contraceptive coverage mandate rules for religious non-profits. Wyoming Catholic schools and charitable groups object to the opt out self-certification form that results in the third-party administrator of their self-insurance plans furnishing contraceptive coverage directly to the non-profits' employees.  The court concluded that this does not impose a substantial burden on plaintiffs' religious exercise:

It is not Plaintiffs' self-certification that authorizes or obligates the TPA to ensure the objectionable contraceptive coverage; it is the ACA that does so.... Consequently, Plaintiffs' argument that completing the self-certification form requires them to enable access to objectionable contraceptive products and services is inaccurate and unconvincing....

While Plaintiffs hold very strong religious views that the TPA should not provide (or be forced by federal law to provide) contraceptive coverage, the TPA's provision of such coverage cannot be said to be a substantial burden on Plaintiffs'religious exercise....

Through the ACA's accommodation, Plaintiffs have the right to be exempted from participating in, providing, or paying for the costs associated with the objectionable contraceptive coverage based on their sincere religious beliefs, but they have no right to prevent a third party (who does not hold those same religious objections) from meeting the ACA's requirements.

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

Korean Court Says It Cannot Review Church Disciplinary Actions

Inside Korea reports that last Friday, a Korean appellate court held that civil courts cannot review church disciplinary actions. The Seoul High Court dismissed a suit by a former priest, identified only as Kim, who was suspended in 2005 after allegedly embezzling funds of the Samsungsan Cathedral.  He was defrocked after he filed civil suits against the Cathedral in protest of his suspension. The court said in part:

Our Constitution guarantees the freedom of religion and strictly separates the church and state. The freedom of managing and organizing religious councils must be provided for to the utmost.

Separately Kim is facing criminal charges over misappropriation of $74,000 in Cathedral funds.

More Same-Sex Marriage Developments-- 4th Circuit Oral Arguments; Idaho's Laws Invalidated By District Court

The U.S. 4th Circuit Court of Appeals yesterday heard oral arguments (audio of arguments) in Bostic v. Schaefer. In the case, a Virginia federal district court held that Virginia's constitutional and statutory provisions barring same-sex marriage and prohibiting recognition of lawful same-sex marriages performed elsewhere are unconstitutional. (See prior posting.) Reporting on the oral arguments, the Washington Post said: "The sharply opposing viewpoints of two of the jurists suggested that the third, independent-minded Circuit Judge Henry F. Floyd, might hold the deciding vote."

Also yesterday, an Idaho federal magistrate judge struck down Idaho's statutory and constitutional provisions barring same-sex couples from marrying in the state or having their marriages performed elsewhere recognized in Idaho.  In Latta v. Otter, (D ID, May 13, 2014), the court concluded that Idaho's marriage laws violate same-sex couples' rights under the Due Process and Equal Protection Clauses of the 14th Amendment. The court issued a permanent injunction, effective May 16. Idaho Statesman reports on the decision and on Idaho Governor Butch Otter's written statement after the decision saying that he will continue to defend the will of the people to limit marriage to the union of a man and a woman.  UPDATE: AP reports that on May 14 the magistrate judge refused to stay her order pending appeal, writing that the appeal is unlikely to succeed.

School District Enters Consent Decree With Fellowship of Christian Athletes

Liberty Counsel announced yesterday that the Lake County, Florida, School Board has voted unanimously to enter into a Consent Decree in a suit brought against them last month by the Fellowship of Christian Athletes (FCA).  Mount Dora High School allowed secular non-curricular student clubs access to school facilities for announcing their activities, included the club in the school yearbook and allowed club members to wear a colored cord at graduation to signify membership.  FCA sued to obtain the same rights for religious non-curricular student clubs.  The consent decree (full text) in Mount Dora High School Fellowship of Christian Athletes v. Lake County School Board, (MD FL), provides:

The District is hereby permanently enjoined from denying to the FCA Club, and any other high school religious non-curricular student club, Club Benefits that the District provides to any other high school non-religious, non-curricular student club, and from enforcing its Policy in a manner that violates the Equal Access Act or the First Amendment, consistent with current, applicable law.

The consent decree still must be approved by the court.

Federal Circuit Denies Trademark Registration For "Stop the Islamisation of America"

In In re Geller, (Fed. Cir., May 13, 2014), the U.S. Court of Appeals for the Federal Circuit upheld the Trademark Office's refusal to register "Stop The Islamisation of America" as a trademark to be used in connection with understanding and preventing terrorism.  The appeals court agreed with the Trademark Trial and Appeal Board's conclusion that the phrase contains matter which may disparage a group of persons. Under 15 USC 1052(a), this is a basis for refusing registration. The court said in part:

The political meaning of Islamisation does not require violence or terrorism, and the Board properly found that associating peaceful political Islamisation with terrorism would be disparaging to a substantial composite of American Muslims.

Appellants in the case, Pamela Geller and Robert Spencer, are co-founders of the American Freedom Defense Initiative. [Thanks to How Appealing for the lead.]

New International Survey of Anti-Semitic Attitudes Released

The Anti-Defamation League today announced the release of its new worldwide survey of anti-Semitic attitudes, The ADL Global 100: An Index of Anti-Semitism. The study surveyed 102 countries and territories in order to determine the level and intensity of anti-Jewish sentiment internationally.  According to the ADL's press release:

The survey found that anti-Semitic attitudes are persistent and pervasive around the world. More than one-in-four adults, 26 percent of those surveyed, are deeply infected with anti-Semitic attitudes.  This figure represents an estimated 1.09 billion people around the world.

The overall ADL Global 100 Index score represents the percentage of respondents who answered “probably true” to six or more of 11 negative stereotypes about Jews. An 11-question index has been used by ADL as a key metric in measuring anti-Semitic attitudes in the United States for the last 50 years.

The detailed results are also available from an elaborate interactive website. Among the survey's other findings were that anti-Semitism is highest in the Middle East & North African (MENA) region. The non-MENA country with the highest level of anti-Semitic attitudes is Greece. The the country in the Middle East with the lowest amount of anti-Semitic feeling is Iran.  Around the world, 35% of those surveyed had never heard of the Holocaust.

Two Appointed As USCIRF Commissioners

In a press release yesterday, the U.S. Commission on International Religious Freedom announced the appointment of Dr. Daniel I. Mark, assistant professor of political science at Villanova University, to the Commission for a two-year term.  In addition, Dr. Robert P. George, currently Chairman of the Commission, was reappointed for an additional two-year term.  Both appointments were made by House Speaker John Boehner.  Dr. Mark replaces outgoing Commissioner Elliott Abrams. Chairman George has a post on Mirror of Justice blog indicating that Dr. Mark was a student of his at Princeton University, and says that Mark's Ph.D. thesis defense "was the most brilliant I have witnessed in twenty-nine years of teaching."

High-Ranking French Rabbi's Religious Court Accused of Extorting Funds To Get Divorce Document For Wife

The Forward yesterday reported on allegations made two months ago in France against the Chief Rabbi of Paris (who is now also serving as the interim Chief Rabbi of France) by a woman who claims that the rabbi-- Michel Gugenheim-- was involved in extorting 90,000 Euros (approximately $123,000 US) from her in exchange for her obtaining a get (Jewish divorce document). According to a deposition filed in March with Paris police by the woman's family, the 28-year old woman's husband demanded 30,000 Euros from her before he would give her a get.  Apparently Gugenheim and two other rabbis serving on his rabbinical court backed the husband's demand, and asked the woman's family to pay it by writing a check for 90,000 Euros as a charitable contribution to the Sinai religious institution.  French tax authorities would reimburse the family for 60,000 Euros of that since it was a charitable contribution. The charity would then transfer 30,000 Euros to the husband and keep the rest. Asked to comment, Gugenheim denied any wrongdoing.

Child Parenting Time Order Did Not Violate Free Exercise Protections or Establishment Clause

In In re Peace v. Peace, (AZ App., May 8, 2014), an Arizona state appellate court rejected a divorced husband's claim that a trial court's order modifying parenting time violated his free exercise rights and the Establishment Clause.  At issue was a provision in the court's order providing that the wife will have the children on Christmas Day in odd-numbered years, and the husband shall have them in even-numbered years.  The husband complained that the court order did not mention the holy days of his Baha'i faith. The court concluded that the trial court's order does not endorse Christianity nor burden husband's religious exercise.

AU Responds To Town of Greece Decision

In a press release today, Americans United announced that it is implementing a coordinated response to the U.S. Supreme Court's recent ruling in Town of Greece that permitted sectarian invocations at city council sessions.  AU's program will oppose attempts to pressure local governments to institute invocations.  It will educate local officials about the parameters of the Supreme Court's decision.  It will offer assistance to individuals from a range of religious and philosophical traditions who want to offer inclusive opening messages at local council meetings. Finally it will engage in dialogue and, if necessary, litigation where the Supreme Court's decision is being violated. According to AU:

 The plan, dubbed “Operation Inclusion,” is necessary to ensure that the rights of all Americans are protected and to respond to misleading claims by Religious Right groups....

[Thanks to Jeff Pasek for the lead.]

State Court Invalidates Arkansas Ban on Same-Sex Marriage

In Wright v. State of Arkansas, (AR Cir. Ct., May 9, 2014), an Arkansas state trial court held that Arkansas' state constitutional and legislative bans on same-sex marriage violate the 14th Amendment's equal protection clause. The suit was brought by 12 same-sex couples seeking to marry in Arkansas and 8 couples who have married in states allowing same-sex marriage who want their marriages recognized in Arkansas.  In striking down the state ban, the court added:

It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.

According to USA Today, while state Attorney General Dustin McDaniel personally supports same-sex marriage, his office said after the ruling:

in keeping with the Attorney General's obligation to defend the state constitution, we will appeal. We will request that Judge Piazza issue a stay of his ruling so as not to create confusion or uncertainty about the law while the Supreme Court considers the matter.

  [Thanks to Alliance Alert for the lead.]

Recent Articles of Interest

From SSRN:

• Muhammad Munir, Some Reflections on the Story of Banu Quraydha: A Re-Evaluation, (May 1, 2014).
• Akiva A. Miller, The Policing of Religious Marriage Prohibitions in Israel: Religion, State, and Information Technology, (April 30, 2014).
• Douglas Laycock, Imaginary Contradictions: A Reply to Professor Oleske, (67 Vand. L. Rev. En Banc 89 (2014)).
• Robert J. Delahunty, Does Animal Welfare Trump Religious Liberty? The Danish Ban on Kosher and Halal Butchering, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-19, 2014).
• Helen M. Alvare, A 'Bare…Purpose to Harm'? Marriage and Catholic Conscience Post-Windsor, (George Mason Law & Economics Research Paper No. 14-14, 2014).
• Meghan J. Ryan, Finality and Rehabilitation, (4 Wake Forest J.L. & Pol'y 121 (2014)).
• Patrick McKinley Brennan, Implementing Religious Law in Modern Nation-States: Reflections from the Catholic Tradition, (Villanova Law/Public Policy Research Paper No. 2014-1008, 2014).
• Linda C. McClain, Common and Uncommon Families and the American Constitutional Order, (67 Vanderbilt Law Review En Banc 19 (2014)).
• Patrick Parkinson & Nicholas Aroney, The Territory of Marriage: Constitutional Law, Marriage Law and Family Policy in the ACT Same Sex Marriage Case, (May 9, 2014).
• Jerg Gutmann & Stefan Voigt, The Rule of Law and Constitutionalism in Muslim Countries, (May 8, 2014).
• Amy L. Moore, Rife with Latent Power: Exploring the Reach of the IRS to Determine Tax-Exempt Status According to Public Policy Rationale in an Era of Judicial Deference, (South Texas Law Review, Forthcoming).

From SmartCILP and elsewhere:

• Drew Stevens, By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage, 63 Emory Law Journal 979 (2014).
• Mark Goldfeder, Not All Dogs Go To Heaven: Judaism's Lessons In Beastly Morality, [Abstract], 20 Animal Law 107-118 (2013).
• Mark L. Rienzi, The Case for Religious Exemptions--Whether Religion Is Special Or Not (Reviewing: Brian Leiter, Why Tolerate Religion?; Andrew Koppelman, Defending American Religious Neutrality), 127 Harvard Law Review 1395-1418 (2014).
• Emerging Issues in First Amendment Jurisprudence: Interpreting the Relationship Between Religion and the State in the Modern Age. Articles by Alycee Lane, Bruce Ledewitz, Aaron R. Petty, Mark Strasser and Harry F. Tepker. 6 Elon Law Review 1-187 (2014).

Activist Wants To Offer Satanist Prayer In Florida After Town of Greece Decision

Just days after the U.S. Supreme Court's ruling upholding sectarian prayer at city council meetings (see prior posting), Deerfield Beach, Florida activist Chaz Stevens has written to request the Deerfield Beach City Commission and the Florida state Senate each to allow him to open one of their sessions with a Satanist prayer. Raw Story reported on developments on Friday.  Last year Stevens used the state's neutral display policy to set up an 8-foot-tall Festivus pole made of Pabst Blue Ribbon beer cans near a nativity display in the state Capitol. (See prior posting.) He said  that he recently converted from "Pabstfestidian" because "Satan is a cool dude." He added: "I just want equal billing. We allow various religious nutjobs to give a prayer. They pray to Jesus who is make-believe, god who is make-believe, why not Satan who is make-believe?"

Chinese Authorities Demolish Christian Church In Controversial Move

The Los Angeles Times reported last week on the complicated questions surrounding China's demolition last month of the Three Rivers (Sanjiang) Church in the southeastern Chinese city of Wenzhou. The $4 million church building was completed last year (background). According to the Times, the recently appointed provincial party secretary was offended by the building's size and the large cross on its spire. The paper reports:

Five local bureaucrats have been singled out for punishment, charged with failing to stop construction of a church they knew was to be much larger than building permits allowed.

Authorities say the church is just one of many illegal structures ensnared in their "Rectify Three, Demolish One" campaign intended to halt rampant violation of building regulations; signs in Wenzhou tout the campaign as a move to "make space for development."

Many local Christians, though, think the campaign aims to crack down on the churches that have proliferated in Wenzhou since the 1980s. Many members of the city's business class have flocked to the religion and funded the construction of increasingly elaborate houses of worship, in the process earning the city the moniker "China's Jerusalem."

Recent Prisoner Free Exercise Cases

In DePaola v. Virginia Department of Corrections, 2014 U.S. Dist. LEXIS 61165 (WD VA, May 2, 2014), a Virginia federal district court dismissed a claim by a Nation of Islam inmate that subjecting him to a TB screening test violates his RLUIPA rights, and remanded to a magistrate plaintiff's claim that he was denied a diet that complies with his religious beliefs.

In Brames v. Hodge, 2014 U.S. Dist. LEXIS 61591 (SD IL, May 5, 2014), an Illinois federal district court allowed a Hebrew Israelite inmate to proceed with his complaint that the prison chaplain refused to allow him to attend Jewish services and celebrations and be placed on a kosher diet, that the prison physician refused to certify him for a no-bean kosher diet, and that various defendants ignored his grievances on these matters.

In Davis v. Doe, 2014 U.S. Dist. LEXIS 63437 (MD NC, May 8, 2014), a North Carolina federal magistrate judge recommended dismissal of an inmate's claim that his free exercise rights were infringed by a policy, of which he had not been informed, that prohibited him from using the rest room during a religious service.

In Ajala v. West, 2014 U.S. Dist. LEXIS 63544 (WD WI, May 8, 2014), a Wisconsin federal district court permitted a Muslim inmate to proceed with complaints that he was denied a halal diet, but dismissed for failure to exhaust administrative remedies a claim that he was required to sign a statement that a vegan/vegetarian diet satisfied his religious needs.

In Watkins v. Fox, 2014 U.S. Dist. LEXIS 64294 (ND FL, May 9, 2014), a Florida federal district court adopted a magistrate's recommendations and dismissed for failure to exhaust administrative remedies an inmate's complaint that he was denied the use of prayer oils. The court also dismissed a prison chaplain as a defendant.

NYPD Asks Arrested Muslims To Become Anti-Terrorism Informants

In a front page article, today's New York Times reports that a special New York Police Department detective squad-- the Citywide Debriefing Team-- is regularly recruiting Muslims arrested on minor charges to become informants for the Department's anti-terrorism Intelligence Division. The Times describes the experience of several men:

Waiting in a New York station house cell or a lockup facility, expecting to be arraigned, only to be pulled aside and questioned by detectives. The queries were not about the charges against them, but about where they went to mosque and what their prayer habits were. Eventually, the detectives got to the point: Would they work for the police, eavesdropping in Muslim cafes and restaurants, or in mosques?

These revelations come less than a month after a lawsuit was filed in New York claiming that the FBI uses the No Fly List to coerce American Muslims to become informants. (See prior posting.)

Proponents Drop Oregon Conscience Initiative After Losing Challenge To Ballot Title

In Fidanque v. Rosenblum, (OR Sup. Ct., May 8, 2014), the Oregon Supreme Court in a brief order denied oral argument and rejected challenges to the ballot title certified by the Attorney General for a proposed ballot measure.  The initiative measure was designed to allow religious belief exceptions to anti-discrimination laws for refusals to provide goods or services for same-sex marriage or partnership ceremonies and their arrangements. The title, approved by the Court, is: "'Religious belief' exceptions to anti-discrimination laws for refusing services, other, for same-sex ceremonies, 'arrangements'". As reported by The Oregonian, after losing their objections, backers said they would drop the initiative in favor of legal action. A press release yesterday by Friends of Religious Liberty said in part:

Current Oregon law provides protection to religious institutions and clergy for choosing nonparticipation in same sex ceremonies. But the law discriminates against individuals of faith who wish to choose nonparticipation. A Jewish pianist or a Christian violinist who may not want to participate in a same sex ceremony based on deeply held religious beliefs is currently subject to government penalties and civil actions.... 

The intent of IP52 is to end this religious discrimination in Oregon by providing individuals of faith with protection equal under the law to that of religious clergy. But the certified ballot title does not acceptably state this. Indeed, it stages it as intolerant instead of protecting equal rights of conscience..... Thus, we have resolved to suspend IP52 and, instead, back an enforcement lawsuit that will be filed shortly in Oregon on behalf of individuals of faith in expressive professions who are currently being coerced to violate their faiths.... 

[Thanks to James Oleske via Religionlaw for the lead.]

Massachusetts Supreme Court Upholds Daily Voluntary Recitation of Pledge of Allegiance In Schools

In Doe v. Acton-Boxborough Regional School District, (MA Sup. Jud. Ct., May 9, 2014), the Massachusetts Supreme Judicial Court rejected claims by school children and their parents who are atheists and humanists that the voluntary daily recitation of the Pledge of Allegiance-- including the phrase "under God"-- violates the equality provisions (Art. 106) of the Massachusetts state Constitution and 76 MGL Sec. 5 that prohibits discrimination in public education. The Court said in part:

The plaintiffs do not appear to be claiming that their children have been punished, bullied, criticized, ostracized, or otherwise mistreated by anyone as a result of their decision to decline to recite some (or all) of the pledge.... [T]here is nothing empirical or even anecdotal in the summary judgment record to support a claim that the children actually have been treated or perceived by others as "outsiders," "second-class citizens," or "unpatriotic."

The plaintiffs' claim of stigma is more esoteric. They contend that the mere recitation of the pledge in the schools is itself a public repudiation of their religious values, and, in essence, a public announcement that they do not belong. It is this alleged repudiation that they say causes them to feel marginalized, sending a message to them and to others that, because they do not share all of the values that are being recited, they are "unpatriotic" "outsiders." We hold that this very limited type of consequence alleged by the plaintiffs -- feeling stigmatized and excluded -- is not cognizable under art. 106.

Justice Lenk filed a brief concurring opinion, stating in part:

[O]ur holding today should not be construed to bar other claims that might rely on sufficient indicia of harm. Should future plaintiffs demonstrate that the distinction created by the pledge as currently written has engendered bullying or differential treatment, I would leave open the possibility that the equal rights amendment might provide a remedy.

Boston Globe reports on the decision. [Thanks to How Appealing for the lead.]

Episcopal Church Wins Lawsuit Over San Joaquin Diocese Property

A California state trial court this week released a Tentative and Proposed Statement of Decision giving a victory to The Episcopal Church (TEC) in its property-ownership dispute with the break-away Diocese of San Joaquin. The decision comes after a trial. (In an earlier decision the court concluded that there was not evidence that would allow adjudication on summary judgment.) In Diocese of San Joaquin v. Schofield, (CA Super. Ct., May 5, 2014), the court held that the purported transfer of property to the Anglican Diocese Holding Corporation, affiliated with the Province of the Southern Cone instead of TEC, was invalid because the transfers were made by Bishop John David Schofield after he was removed as an Episcopal bishop by TEC. It went on to hold that the Diocese could not "leave" the Church because it is a geographical construct of the Church. The Church's governing documents "make clear that a local parish owns local church property in trust for the greater church and may use that property only so long as the local church remains part of the greater church." Anglican Curmudgeon blog comments on the ruling from the perspective of the break-away Diocese.

New Washington State Supreme Court Justice Has Extensive Religious Background

Washington state Governor Jay Inslee announced last week that he has appointed state trial court judge Mary Yu to the Washington state Supreme Court to fill a vacancy created by the retirement of Justice Jim Johnson.  While the media (Seattle Times article) has focused on the fact that Yu is the first openly gay, and first Asian-American justice on the Washington Supreme Court, less attention has been given to her academic training in theology and her work experience prior to law school in the Catholic Church. Yu received a bachelor's degree in religious studies from Dominican University in River Forest, Ill., in 1979.  She then went to work for the Office of Peace and Justice of the Chicago Catholic Archdiocese, eventually becoming director of the office.  She received a master's degree in theology from Loyola University in 1989, and moved to Washington state to work at the Washington state Catholic Bishop's Conference. However in 1990 she enrolled in Notre Dame law school, also working as an assistant rector in an undergraduate women's dormitory. (Biography from Wikipedia, Equal Justice Newsletter).

D.C. Circuit Hears Oral Arguments On Non-Profit Contraceptive Coverage Mandate Rules

Yesterday the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in Priests for Life v. Department of Health and Human Services and in Roman Catholic Archbishop of Washington v. Sebelius. (Audio of oral arguments [mp3 file]).  Both cases were brought by religious non-profits challenging the Obama administration's compromise rules that allow religious non-profits to opt out of the Affordable Care Act contraceptive coverage mandate and have their employees receive coverage directly from the non-profit's insurer or third-party administrator.  In Priests for Life, the district court found no substantial burden was imposed by requiring the group to complete the self-certification opt out form. (See prior posting.) In the Archbishop of Washington case, the 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). Los Angeles Times reports on the oral arguments.

Gaddy, Head of Interfaith Alliance, Will Retire

In a press release yesterday, the Interfaith Alliance announced that after 16 years as its president, Rev. Dr. C. Welton Gaddy will step down as head of the advocacy organization at the end of 2014. The Interfaith Alliance has been a progressive advocate for religious freedom, individual rights, church-state separation and religious-cultural diversity.

Texas Court Dismisses As Moot Cheerleaders' Suit Over Religious Banners

In Kountze Independent School District v. Matthews, (TX App., May, 8, 2014), a Texas state appellate court dismissed as moot a once widely followed  suit brought by parents of high school cheerleaders.  Plaintiffs objected to a school policy change in 2012 that barred football cheerleaders from using run-through banners carrying religious messages.  The school's ban was put in place in September 2012 in response to a letter from the Freedom From Religion Foundation. Cheerleaders' parents sued, and in October 2012 a trial court issued a temporary injunction permitting cheerleaders to continue to use their own religious-themed run throughs. (See prior posting.) In response to that decision, the school district in April 2013 reversed itself and adopted a new policy again permitting religious messages on run-through banners. In May 2013, the trial court issued a declaratory judgment that neither the Establishment Clause nor any other law prohibits the religious-themed banners at school sporting events. (See prior posting.) Neither party appealed the declaratory judgement, but this left the action seeking a permanent injunction still pending. The school district appealed, arguing that the suit should be dismissed as moot. The court agreed, concluding that the school had adopted a new policy that eliminated any live controversy between the parties.  Courthouse News Service reports on the decision.

Two Op-Eds on Town of Greece Decision

Here are two rather interesting op-ed pieces (on opposite sides) on the Supreme Court's recent Town of Greece decision:

• George Will, Thin Skins and Legislative Prayer (Washington Post)
• Katherine Stewart, A Big Win for the Prayer Lobby (New York Times)

Catholic Group Criticizes 20 Colleges For Inviting "Scandalous" Commencement Speakers

The Cardinal Newman Society yesterday issued a "Special Report" criticizing 20 Catholic colleges and universities for inviting as commencement speakers this year public figures or politicians who support abortion rights or same-sex marriage.  The detailed list of schools faulted for scheduling "scandalous commencement speakers and honorees" includes Boston College whose commencement speaker is Secretary of State John Kerry, Georgetown University whose commencement speaker is Treasury Secretary Jacob Lew, and Villanova University whose commencement speaker is Dr. Jill Biden.  As is typical, honorary degrees are being awarded by the various universities to their commencement speakers as well.

In Pakistan, Human Rights Lawyer Murdered For Defending Client Accused of Blasphemy

In Pakistan's southern city of Multan yesterday, gunmen posing as clients shot and killed human rights lawyer Rashid Rehman for representing a defendant accused of blasphemy.  Reuters reports that Rehman was representing Junaid Hafeez, a lecturer in English, who has been in jail after being accused by student groups of making blasphemous remarks against the Prophet Mohammed. During court proceedings last month, three people threatened Rehman with death.  Pamphlets distributed in Multan this morning said that the lawyer had met his "rightful end" for attempting to "save someone who disrespected the Prophet Mohammed". The pamphlet added: "We warn all lawyers to be afraid of god and think twice before engaging in such acts." This is apparently the first time that a lawyer has been killed in Pakistan for taking on a blasphemy case, though defendants have often been killed before trial and attacks have previously been carried out on judges and supportive politicians.

Saudi Online Liberal Religious Activist Gets Increased Sentence On Retrial

Reuters and International Business Times report that yesterday Saudi Arabian online activist Raif Badawi was sentenced to 1000 lashes, ten years in prison and a fine equivalent to $266.600 (US) in his retrial on charges of "setting up a website that undermines general security " and "ridiculing Islamic religious figures".  Badawi is the co-founder of the Saudi Arabian Liberals website, set up to discuss liberal interpretations of Islam and political matters.  Originally he was sentenced to 7 years in prison and 600 lashes (see prior posting), but the sentence was overturned on appeal by Badawi's lawyers who argued that the sentence was too harsh.  The criminal court in the city of Jeddah however has now imposed an even harsher sentence. The prosecution's attempt to charge Badawi with apostasy (punishable by death) was dismissed in last year's original trial.

Trinity Western Will Sue Two Canadian Lawyers' Groups

Canada's Trinity Western University announced Tuesday that it has engaged law firms to bring suits challenging decisions by the Law Society of Upper Canada and the Nova Scotia Barristers Society that will prevent Trinity Western law school graduates from being admitted to the bar in Ontario or Nova Scotia. Trinity Western is located in British Columbia.  (See prior posting.) The University will also seek to intervene as a respondent in a lawsuit brought by an openly gay member of the Vancouver Park Board challenging the approval of the school by British Columbia's Advanced Education Minister. (See prior posting.)

At issue is a provision in the school's "community covenant" that calls for abstention from "sexual intimacy that violates the sacredness of marriage between a man and a woman."  Trinity Western's new law school-- the first at a faith-based university in Canada-- is scheduled to open in 2016. Trinity Western says that actions rejecting its law school graduates send the message that one cannot fully participate in society if one holds religious values. Tuesday's Globe & Mail also reports on Trinity Western's decisions.

Student Seeks Contempt Penalties For School's Violation of Consent Decree On Prayer

As previously reported, last year the Rankin County, Mississippi school district adopted a new policy on religion in schools in order to settle a suit by a student complaining that the district high school sponsored assemblies which promoted Christianity, and which students perceived as mandatory. The new policy was incorporated into a court-ordered consent decree. Now AP reports that the student, backed by the American Humanist Association (press release), has filed a motion to hold the school district and its administrators in contempt because of a district-wide honors assembly last month which was opened with an invocation by a Methodist minister. The student says that she felt pressured to participate in the prayer which she interpreted as containing a reference to Jesus' resurrection. (Full text of Memorandum of Law in support of contempt motion).

Yakima Tribe Denied TRO To Prevent Wildflower Tours On Spiritual Area

In Washington state, a federal district judge has denied a temporary restraining order sought by the Yakima Nation to prevent scheduled wildflower tours this Thursday and Saturday on Rattlesnake Mountain.  The mountain is a cultural and spiritual area for the Yakimas.  As reported by the Tri-City Herald, the court, in a written decision, said in part:

Though the tribe certainly has a strong interest in preservation of its culture and spiritual interest, the public also has an interest in being allowed to see and experience the land, as long as precautions are taken to preserve the nature of the place.

UPDATE: The full opinion in  Confederated Tribes & Bands of the Yakama Nation v. United States Fish & Wildlife Service, 2014 U.S. Dist. LEXIS 63824 (ED WA, May 5, 2014) is now available via Lexis.

District Court Vacates Preliminary Injunction Against Maryland County After Town of Greece Decision; Plaintiffs Will Go On

Within hours after Monday's U.S. Supreme Court decision in Town of Greece permitting sectarian invocations at city council meetings, a Maryland federal district court vacated a preliminary injunction it had issued (see prior posting) barring a Maryland county from opening its Commission meetings with sectarian prayers.  The Order (full text) in Hake v. Carroll County, Maryland, (D MD, May 5, 2014), merely recites that its action is "consistent with" the Supreme Court's decision.  In Carroll County, invocations were delivered by members of the County Commission, on a rotating basis, rather than by invited clergy or a chaplain.  The Commission had guidelines urging non-sectarian language, but they were often ignored. The Baltimore Sun reports that plaintiffs, pointing to these differences, say they will continue to pursue the Carroll County challenge. The American Humanist Association, one of the plaintiffs, says: "Unlike in the town of Greece, where even an atheist could give an invocation, in this case you have a very exclusive policy."

Malaysian Court Rejects Church's Challenge To Seizure of Books Using Term "Allah"

Malay Mail reports that in Malaysia on Monday the Kuala Lumpur High Court dismissed a suit that had been filed in 2007 by Sidang Injil Borneo (Borneo Evangelical Church) challenging the Home Ministry’s decision to seize three boxes of Malay-language Christian educational books imported from Indonesia that contained the word "Allah." The books were seized in 2007 at the airport while in transit, but were returned to the church several months later. The High Court said it was bound by the precedent established by the Court of Appeal last October that prevented the Catholic Herald from using the word Allah in its Malay language editions.  The High Court said the Herald case concluded that the Arabic word “Allah” is not an integral part of the practice and faith of Christianity. (See prior posting.)

According to Malaysian Insider, critics of the decision say the judge ignored special laws on religious freedom in Sabah and Sarawak.

Alaska Supreme Court Holds Tax Exemption Unconstitutionally Discriminates Against Same-Sex Couples

In State of Alaska v. Schmidt, (AK Sup. Ct., April 25, 2014), the Alaska Supreme Court held that a state tax exemption program that discriminates against same-sex couples violates the state constitution's equal protection clause. Same-sex marriages are not permitted or recognized in the state. Alaska exempts from municipal property tax up to $150,000 in value of a home of a senior citizen or disabled veteran.  The full exemption is available where the senior's or veteran's spouse who co-owns the home also lives there.  However the exemption is reduced where a same-sex partner who co-owns the home lives there. According to the court, this creates an equal protection problem:

we hold that committed same-sex domestic partners who would enter into marriages recognized in Alaska if they could are similarly situated to those opposite-sex couples who, by marrying, have entered into domestic partnerships formally recognized in Alaska.

Two Less Expected Reactions To Yesterday's Supreme Court Decision On Legislative Prayer

While many of the reactions to yesterday's Supreme Court decision in Town of Greece v. Galloway were predictable, here are two that might be classified as surprises:

• Yair Rosenberg, writing at Tablet Magazine, finds a historical error in Justice Kagan's dissent.  She refers to Newport, Rhode Island as "the home of the first community of American Jews." However that honor goes to New Amsterdam. Newport is home to the oldest standing synagogue in the U.S.
• The American Humanist Association announced that in reaction to the Supreme Court's decision it is launching a program to provide resources for atheists and humanists to deliver secular invocations at legislative meetings. A new website allows governmental entities to identify humanists within their borders who can be invited to deliver invocations.

Supreme Court Denies Review In RLUIPA Zoning Case

Yesterday, the U.S. Supreme Court denied certiorari in Eagle Cove Camp & Conference Center v. Woodboro, (Docket. No. 13-1099, cert. denied 5/5/2014) (Order List). In the case, the 7th Circuit rejected RLUIPA challenges to county land use regulations that barred petitioner from operating a year-round Bible camp on residentially zoned property. (See prior posting.)

Supreme Court Upholds Sectarian Invocations At City Council Meetings

The U.S. Supreme Court today handed down a 5-4 decision in Town of Greece, New York v. Galloway, (Sup. Ct., May 5, 2014), upholding the constitutionality of non-coercive sectarian invocations at city council meetings. Justice Kennedy's opinion-- minus one section of it-- constituted the opinion of the court.  Chief Justice Roberts, and Justices Alito, Scalia and Thomas joined with Justice Kennedy in making this the prevailing opinion.  Much of the opinion is devoted to refuting respondents' argument that the Establishment Clause requires legislative invocations to be non-sectarian:

An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases.... To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of nei­ther editing or approving prayers in advance nor criticizing their content after the fact....

Respondents argue, in effect, that legislative prayer may be addressed only to a generic God. The law and the Court could not draw this line for each specific prayer or seek to require ministers to set aside their nuanced and deeply personal beliefs for vague and artificial ones. There is doubt, in any event, that consensus might be reached as to what qualifies as generic or nonsectarian....

Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Marsh....

Finally, the majority disagrees with the view taken by the Court of Appeals that the Town of Greece violated the Establishment Clause by inviting predominantly Christian ministers to deliver the invocations:

The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimina­tion, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing....

One section of Justice Kennedy's opinion-- Part II-B-- was joined only by Chief Justice Roberts and Justice Alito.  This section amounts to an extensive argument as to why the city council invocations at issue were not coercive:

The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing....

The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity. No such thing occurred in the town of Greece. Although board members themselves stood, bowed their heads, or made the sign of the cross during the prayer, they at no point solicited similar ges­tures by the public. Respondents point to several occa­sions where audience members were asked to rise for the prayer. These requests, however, came not from town leaders but from the guest ministers, who presumably are accustomed to directing their congregations in this way and might have done so thinking the action was inclusive....

In their declarations in the trial court, respondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.....

An opinion by Justice Thomas, joined by Justice Scalia, explained their refusal to join Part II-B of Justice Kennedy's opinion. They argued that the Establishment Clause should not be seen as being applicable to the states. The then added that even if the Establishment Clause is seen as incorporated against the states, "the municipal prayers at issue in this case bear no resemblance to the coercive state establishments that existed at the founding." In their view: "to the extent that coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts-- not the "subtle coercive pressures" allegedly felt by respondents...."

Justice Kagan wrote a dissent, joined by Justices Ginsburg, Breyer and Sotomayor, emphasizing the difference between city council meetings and state legislatures, and arguing that the Town of Greece has violated the constitutional requirement of religious equality:

Greece’s town meetings involve participation by ordinary citizens, and the invocations given—directly to those citizens—were predominantly sectarian in content. Still more, Greece’s Board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions. So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.

Justice Kagan added:

[T]he not-so-implicit message of the majority’s opinion—“What’s the big deal, anyway?”—is mistaken. The content of Greece’s prayers is a big deal, to Christians and non-Christians alike.....  Contrary to the majority’s apparent view, such sectarian prayers are not “part of our expressive idiom” or “part of our heritage and tradition,” assuming the word “our” refers to all Americans.... They express beliefs that are fundamental to some, foreign to others—and because that is so they carry the ever-present  potential to both exclude and divide. The majority, I think, assesses too lightly the significance of these religious differences, and so fears too little the “religiously based divisiveness that the Establishment Clause seeks to avoid.” 

Justice Breyer also filed a separate dissent.  Justice Alito (joined by Justice Scalia) also wrote a concurrence directly responding to Justice Kagan's dissent.  CNN reports on today's decision.

AT U.N. Review of Anti-Torture Treaty Compliance, Holy See Says Its Ratification Applied Only To Vatican City State

The United Nations Committee Against Torture met today and will meet again tomorrow (UN press release) to review the Vatican's compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Every country that has signed the Convention must undergo a periodic review of its compliance record before the Committee.  The hearing is being watched closely on the issue of whether clergy sexual abuse around the world violated the Convention. The Holy See's initial report to the Committee and submissions from civil society organizations are all available from the UN's website. The full text of the presentation to the Committee today by Archbishop Silvano Tomasi is reported by Vatican Radio. As reported by AP, the Holy See contends that its obligations under the treaty only extend to the territory of the Vatican City State, and do not apply more broadly to the Holy See which governs the Catholic Church around the world. At issue is the language in the Declaration made by the Holy See when it became a party to the Convention:

The Holy See, in becoming a party to the Convention on behalf of the Vatican City State, undertakes to apply it insofar as it is compatible, in practice, with the peculiar nature of that State.

Recent Articles of Interest

From SSRN:

• Bernard M. Levinson, La scoperta goethiana della versione ‘originale’ dei Dieci Comandamenti e la sua influenza sulla critica biblica: Il mito del particolarismo ebraico e dell’universalismo tedesco (The Impact of Johann Wolfgang von Goethe’s Discovery of the 'Original' Version of the Ten Commandments upon Biblical Scholarship: The Myth of Jewish Particularism and German Universalism), (in Il roveto ardente: Scritti sull’ebraismo Tedesco in memoria di Francesca Y. Albertini, Edited by Irene Kajon, Lithos Editrice, 2013).
• Thad C. Eagles, Free Exercise, Inc.: A New Framework for Adjudicating Corporate Religious Liberty Claims, (New York University Law Review, Forthcoming).
• Ping Xiong, Freedom of Religion in China Under the Current Legal Framework and Foreign Religious Bodies, (Brigham Young University Law Review, No. 3, 2013).
• Frederick Schauer, On the Utility of Religious Toleration, (Criminal Law and Philosophy, 2014, Forthcoming).
• Paolo Lobba, A European Halt to Laws Against Genocide Denial? In Perinçek v. Switzerland, the European Court of Human Rights Finds that a Conviction for Denial of Armenian ‘Genocide’ Violates Freedom of Expression, (European Criminal Law Review, Vol. 4, Issue 1 (2014), 59-77).
• Pawel Niszczota, Religious Prohibitions and Investment: The Effect of the Islamic Moral Code on Investment in Foreign Debt Securities, (January 31, 2014).
• Paolo Lobba, Holocaust Denial Before the European Court of Human Rights: Evolution of an Exceptional Regime, (Oxford University Press, European Journal of International Law, Forthcoming).

From SmartCILP:

• Lara Cartwright-Smith, Benefit or Burden? Religious Employers and the Patient Protection and Affordable Care Act's Contraception Coverage Mandate, [LEXIS Advance Link],18 NEXUS 29-56 (2012-2013).
• 19th Annual International Law and Religion Symposium: "Religion, Democracy, and Civil Society." Articles by Shaun de Freitas, Augusto Zimmermann, Frank S. Ravitch, Neville Rochow, Jaview Saldana Serrano, Aldir Guedes Soriano and Pink Xiong. 2013 Brigham Young University Law Review 421-617.

Pope's New Commission On Protecting Minors Concludes First Meetings

Pope Francis' new Pontifical Commission for the Protection of Minors held its first meeting in the Vatican from May 1-3.  Vatican Radio sets out the full text of the statement issued on behalf of the Commission at the end of the meeting.  It reads in part:

Our conversations included many proposals for ways in which the Commission might collaborate with experts from different areas related to safeguarding children and vulnerable adults.... 

We will propose Statutes to the Holy Father to express more precisely the Commission’s nature, structure, activity, and the goals.... [T]he Commission will not deal with individual cases of abuse, but we can make recommendations regarding policies for assuring accountability and best practice.... [W]e plan to make specific proposals regarding the importance of emphasizing ways for raising the awareness of all people regarding the tragic consequences of sexual abuse and of the devastating consequences of not listening, not reporting suspicion of abuse, and failing to support victims/survivors and their families.

Florida Judge Ordered To Stop Offering Bibles To Criminal Defendants

According to News 13 today, Osceola County, Florida state criminal court judge Hal Epperson has been ordered by Chief Judge Belvin Perry to end his practice of offering criminal defendants a Gideon Bible. The move came after one of the attorneys who responded to a survey by the Central Florida Association of Criminal Defense Lawyers complained about the practice.

Atheist Groups Begin New Project To Combat Discrimination

RNS reported last week that a group of four secular organizations has begun a new project called Openly Secular.  Its goal is to draw attention to incidents of anti-atheist discrimination in hopes of making bias against secularists socially unacceptable. Its first project is to gather stories from individual secularists about discrimination they have faced.

Recent Prisoner Free Exercise Cases

In Todd v. Holt, 2014 U.S. Dist. LEXIS 57961 (MD PA, April 25, 2014), a Pennsylvania federal district court allowed an inmate to proceed with his complaint that he was denied religious certified meals for 14 days while the prison was in lockdown status.

In Sharonoff v. Nash, 2014 U.S. Dist. LEXIS 58114 (ED CA, April 25, 2014), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that his free exercise and equal protection rights were in fringed when authorities confiscated his mail package containing a copy of the publication "Cosmic Hidden" which contains messages from the edge of eternity.

In Allah v. Virginia, 2014 U.S. Dist. LEXIS 58529 (WD VA, April 28, 2014), a Virginia federal district court rejected an inmate's claim that his rights under RLUIPA were violated when authorities refused to recognize Nation of Gods and Earths as a religion or to allow NGE to meet communally, barred his wearing NGE clothing or having NGE publications, and allegedly did not accommodate his religious diet.

In Poslof v. CDCR, 2014 U.S. Dist. LEXIS 60776 (ED CA, April 30, 2014), a California federal magistrate judge held that an inmate's complaint regarding lack of a proper kosher diet would be dismissed unless an amended complaint is filed curing pleading defects.

In McBryde v. Thomas, 2014 U.S. Dist. LEXIS 59476 (D MT, April 29, 2014, a Montana federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 60657, April 7, 2014) and dismissed an inmate's claim that his parole was conditioned on his completion of a drug treatment program containing religious elements.

Court Invalidates Limits On Muslim Worship In Texas Prisons

A Texas federal district court has handed down a decision giving a major victory to Muslim inmates in Texas seeking more access to religious worship services. In Brown v. Livingston, (SD TX, April 30, 2014), the court held that

(a) [Texas Department of Criminal Justice] current Administrative Directive 7.30 ... which embodies TDCJ’s policy that inmates may not gather in groups of more than four for religious services unless a TDCJ staff member or outside volunteer is available to provide “direct supervision,” is an ongoing violation of the Muslim inmates’ federal rights under the Religious Land Use and Institutionalized Persons Act ... and the First Amendment; (b) the “Scott Plan,” which is TDCJ’s policy of providing TDCJ staff to supervise only one hour of religious services per week for each faith group unless an outside volunteer is present to provide direct supervision, is an ongoing violation of the Muslim inmates’ federal rights under RLUIPA and the First Amendment....

The court enjoined the prison system from applying Administrative Directive 7.30 or the Scott Plan to Muslim and Jehovah’s Witness inmates.

Defamation Claim Between Hindu Temple Members Dismissed

In Thiagarajan v. Tadepalli, (TX App., April 30, 2014), a three-judge panel of the Texas Court of Appeals dismissed under the ecclesiastical abstention doctrine both a defamation action against the secretary of the board of directors of a Hindu temple, and (by a 2-1 vote) a claim by the secretary against the Temple for indemnification for the costs of defending the action.  At issue were the alleged defamatory content of e-mails sent out by Sharma Tadepalli objecting to the DVDs available for purchase or rental from the Temple's library.  Thiagarajan, plaintiff in the defamation action, oversaw operation of the temple’s library.  Tadepalli claimed that some of the DVDs were non-religious and included X-rated Indian movies. The court held:

allowing Thiagarajan’s defamation claim to proceed unavoidably would lead a civil court into the forbidden territory of litigating “‘conformity of the members of a church to the standard of morals required of them.... Subject matter jurisdiction is foreclosed when defamation claims are bound up with ecclesiastical implications such as those present in this case.

The majority also concluded that:

Having pleaded that MTS [the Temple] should indemnify him precisely because the statements at issue “concerned  matters related to the conduct and governance of MTS and to other ecclesiastical matters,” Tadepalli cannot plausibly contend that a determination as to whether MTS should indemnify him nonetheless will avoid determination of “ecclesiastical matters.”

A concurring and dissenting opinion by Chief Justice Frost agreed that the defamation claim should be dismissed, but argued that the claim for indemnification can be decided using neutral principles of law and without resolving religious controversies.

Chaplain's Complaint Over Actions During Government Shutdown Dismissed As Moot

In Leonard v. United States Department of Defense, (D DC, April 30, 2014), the D.C. federal district court dismissed as moot claims by Catholic Navy chaplain Father Ray Leonard that his free exercise and RFRA rights were infringed when military authorities prevented him from performing his ecclesiastical duties during last year's government shutdown. The government asserted that this was required by the Anti-Deficiency Act, 31 U.S.C. § 1342, even if performed voluntarily. However, one day after this suit was filed, the government informed Father Leonard that he and other chaplains would be permitted to continue working during the shutdown and would be paid when funds later became available. The court similarly dismissed Leonard' retaliation claim because he is suffering no ongoing injury. (See prior related posting.)

Report on Human Rights In Pakistan Issued

Last week, the Human Rights Commission of Pakistan (an independent non-governmental organization) issued its 2013 annual report on the state of human rights in the country (full text). In a lengthy chapter on "Freedom of thought, conscience and religion", the Commission said in part:

Pakistan’s record in protecting members of its religious and sectarian minorities from faith-based violence and discrimination has been far from impressive in recent years. In fact, the year under review saw continuation of the recent trend of violence and impunity that seemed to reinforce each other. The growing problems for the minorities came from extremist militant groups seeking to justify violence and brutalities in the name of religion. Secondly, the challenges came from the local factors; and finally, from the government’s failure to protect members of minority religions and sects from faith-based violence or to confront hate speech, intimidation or intolerance. This year also nothing was done to weed out discrimination against non-Muslim citizens written into law or to introduce safeguards widely acknowledged to be needed in order to prevent abuse of the blasphemy law

The Commission made 5 recommendations in this area:

1. Unless serious steps are taken to stop sustained hate campaigns against members of religious and sectarian minority groups and unless those fanning hate speech are brought to justice, the bloodletting in the name of religious faith cannot be stopped.....

2. The blasphemy law is in urgent need of reform to prevent its abuse by extremists and opportunists.... The systematic and organised intimidation of judges in cases of blasphemy or desecration of scripture undermines administration of justice.... 

3. There is considerable evidence that those involved in faith-based violence have penetrated law enforcement agencies..... [T]hese elements should be urgently identified and weeded out....

4. Codification of personal law for Hindus and Sikhs should be a priority.....

5. Nothing has caused as great frustration and desperation among Pakistan’s minority religious faiths as incidents of forced conversion and lack of action against the perpetrators. The state should introduce a mechanism to ensure that the girls in question and their families get justice without having to suffer harassment and threats from rowdy crowds in courts and powerful politicians patronising this repulsive trampling of rights.

Pennsylvania Appellate Court: Property of Breakaway Congregation Belongs To PCUSA

In Peters Creek United Presbyterian Church v. Washington Presbytery of Pennsylvania, (PA Commonw. Ct., April 30, 2014), the Pennsylvania Commonwealth Court in a 4-3 decision held that the church building and other property of Peters Creek Church is held in trust for the Presbyterian Church USA, despite the vote of a majority of the congregation's members to break away and instead affiliate with the Evangelical Presbyterian Church. Applying neutral principles of civil law, the majority held that 2001 Peters Creek bylaw amendments bound the congregation to the PCUSA Book of Order (including its trust clause), and attempts in 2007 to revise the bylaws were invalid. The majority said in part:

[E]nforcement of Peters Creek Church’s commitment to the PCUSA is required by neutral principles if that commitment does not violate the laws of the Commonwealth. The non-profit corporation Peters Creek Church unequivocally incorporated into its own governing documents the mandatory provisions of the Book of Order, including the commitment not to disaffiliate without permission from the Washington Presbytery. Enforcement of those documents, in accordance with neutral principles, does not prevent any individual member of Peters Creek Church from exercising his or her religious preference to leave the Presbyterian Church (U.S.A.) and join the Evangelical Presbyterian Church, or any other church, or no church at all.

The dissenters, in an opinion by Judge McCulloch contended that no trust in favor of PCUSA was created and the 2007 vote to disaffiliate was valid.

Suit Challenging Denial of IRS Non-Profit Exemption Dismissed On Numerous Grounds

In Lock v. United States, (D OR, April 29, 2014), an Oregon federal district court allowed a pro se plaintiff to proceed in forma pauperis, but dismissed, with leave to amend, his suit complaining that the Internal Revenue Service had denied Section 501(c)(3) status for a small church he had founded.  The court held that the claim would need to be brought by the church itself, not by its founder, and also that only the Tax Court, Court of Claims or D.C. District Court would have jurisdiction over such a claim.  Finally it held that plaintiff had not alleged facts to show that the exemption denial was discriminatory.

USCIRF Issues 2014 Annual Report

The U.S. Commission on International Religious Freedom yesterday issued its 2014 Annual Report (full text). Its press release describes highlights of the report. Here are excerpts:

[The Report] recommended that the State Department add eight more nations to its list of “countries of particular concern,” defined under law as countries where particularly severe violations of religious freedom are tolerated or perpetrated: Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan, Turkmenistan, and Vietnam. USCIRF also recommended that the following eight countries be re-designated as “countries of particular concern,” or CPCs: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan. 

This year’s report, the 15th since the Commission’s creation in 1998, documents religious freedom violations in 33 countries and makes country-specific policy recommendations. The report also examines U.S. international religious freedom policy over the past decade and a half, reviewing what IRFA requires, assessing the record on implementing its provisions, and recommending ways to strengthen U.S. engagement on and promotion of religious freedom.....

Along with recommending CPC designations, USCIRF also announced the placement of 10 countries on its 2014 “Tier 2” list, a USCIRF designation for governments that engage in or tolerate violations that are serious, but which are not CPC-level violators. USCIRF urged increased U.S. government attention to these countries, which include Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos, Malaysia, Russia, and Turkey.

The USCIRF report also highlights religious freedom concerns in countries/regions that do not meet the Tier 1 (CPC) or Tier 2 threshold, but should also be the focus of concern, including Bahrain, Bangladesh, Belarus, Central African Republic, Ethiopia, Kyrgyzstan, Sri Lanka, and Western Europe.

The 200 page report also includes lists of prisoners in various countries held for their religious beliefs or views, or on blasphemy charges. Commissioner William Shaw (at pg. 165) dissented from the decision to make Turkey a Tier 2 country, as well as dissenting from the 15 year IFRA review chapter in the report.

Today Is National Day of Prayer

Today is National Day of Prayer.  36 USC Sec. 119 provides:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

Presumably this year's Proclamation will be posted on the White House website sometime today. Meanwhile the private National Day of Prayer Task Force has scheduled a national observance at the Cannon House Office Building at 9:00 a.m. this morning.  The Task Force's observances traditionally are Christian in focus-- and that remains the case this  year.  The event will be hosted by Alabama Congressman Robert Aderholt.  While two rabbis are listed as participants in the program, they are both from Messianic Jewish organizations.

According to CBN, in preparation for National Day of Prayer, the 25th annual U.S. Capitol Bible reading marathon began Sunday evening. The entire Bible is being read non-stop, and will be completed today.

UPDATE: The Presidential Proclamation -- National Day of Prayer, 2014 is now available on the White House website.

Court OK's Sale of Mausoleum Space and Headstone Inscriptions By NJ Catholic Cemeteries

In Monument Builders of New Jersey v. Roman Catholic Archdiocese of Newark, (NJ Super., April 29, 2014), a New Jersey trial court upheld the right of the Newark Catholic Archdiocese to sell monument inscription rights and burial rights in mausoleums at Catholic cemeteries. Commercial monument builders argued that the Archdiocese has engaged in unfair competition with them, and that the sale of monuments by the Archdiocese is ultra vires and against public policy. (See prior posting.) The court held first that the state's statutory ban on cemeteries selling monuments or mausoleums is inapplicable to religiously owned cemeteries that restrict burial to members of the religious faith and their families.  Secondly, the court concluded that if the Archdiocese is statutorily authorized to engage in its monument and mausoleum programs, its alleged competitive advantage is irrelevant.  The court went on to conclude that the state's religious corporation law grants the Archdiocese the authority to acquire and install mausoleums and monuments and to sell inscription rights. Newark Star-Ledger reports on the decision.

President Declares May As Jewish American Heritage Month

President Obama issued a Proclamation (full text) yesterday declaring May as Jewish American Heritage Month. The Proclamation reads in part:

For thousands of years, the Jewish people have sustained their identity and traditions, persevering in the face of persecution. Through generations of enslavement and years of wandering, through forced segregation and the horrors of the Holocaust, they have maintained their holy covenant and lived according to the Torah. Their pursuit of freedom brought multitudes to our shores, and today our country is the proud home to millions of Jewish Americans. This month, let us honor their tremendous contributions -- as scientists and artists, as activists and entrepreneurs. And let all of us find inspiration in a story that speaks to the universal human experience, with all of its suffering and all of its salvation.

Bill Would Eliminate Constitutional Problems With Parsonage Allowance

As previously reported, an appeal has been taken to the 7th Circuit in Freedom From Religion Foundation v. Lew, in which a Wisconsin federal district court held that the tax code provision excluding a minister's parsonage allowance from gross income violates the Establishment Clause because it benefits religious persons but not others. The appeal has drawn a number of amicus briefs from religious organizations across the spectrum. (Links to briefs and other documents.) On Monday, Louisiana Representative Bill Cassidy introduced a bill into Congress which, if enacted, would presumably remove the constitutional problems with the parsonage allowance. (Cassidy press release.)  H.R. 4493 provides that Section 107 of the Internal Revenue Code that grants the parsonage allowance to any "minister of the gospel"-- a term already interpreted by the courts to include non-Christian clergy as well-- is amended to add:

For purposes of this section, the term `minister of the gospel' includes any duly recognized official of a religious, spiritual, moral, or ethical organization (whether theistic or not).

So far, the bill has no co-sponsors and hearings on it have not been scheduled.  The progress (if any) of the bill through Congress can be followed here. [Thanks to Robert Baty for the lead.]

Suit Challenges Ohio's Refusal To Allow Same-Sex Marriages

In the wake of a federal district court ruling two weeks ago that Ohio's refusal to recognize same-sex marriages performed elsewhere is unconstitutional (see prior posting), a new federal lawsuit was filed yesterday challenging Ohio's ban on issuing marriage licenses to same-sex couples who wish to wed in Ohio.  The complaint (full text) in Gibson v. Himes, (SD OH, filed 4/30/2014), contends:

Ohio Rev. Code § 3101.01 and OH Const. Art. XV, §11 violate fundamental liberties that are protected by the Freedom of Association Clause of the First Amendment, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment on their face.

Cincinnati Enquirer reports on the filing of the lawsuit.

Suit Voluntarily Dismissed After School District Changes Rule On Distribution of Religious Material

ADF announced yesterday that it has voluntarily dismissed it lawsuit in K.R. v. Unified School District No. 204, (D KA, April 29, 2014) (full text of Notice of Voluntary Dismissal) after the school district removed its restriction on distribution of religious material.  The suit challenged school district rules that originally permitted students to post information and hand out flyers during non-instructional time, except for religious material. (See prior posting.)

Kenyan President Signs New Marriage Act, Allows Polygamy

BBC News and Jurist report that in Kenya, President Uhuru Kenyatta has signed into law the controversial Marriage Act 2014. The new law requires that all marriages be registered and provides that a woman is entitled to 50% of the property acquired during marriage. However the greatest attention has been given to provisions that allow polygamous marriages. Men may marry as many women as they wish, without consulting their current wives. Christian leaders have opposed the law.

California Court Refuses To Allow Sikh Juror To Wear Kirpan

In Yuba City, California, members of the Sikh community protested yesterday when officials refused to allow Gursant Singh to enter the Sutter County Courthouse to report for jury duty. Singh has been unable to convince authorities to allow him to wear his kirpan (a religious dagger with a 5 inch blade) in the courthouse.  CBS13 reports that court officials insist on enforcing their no-weapons policy to ban the traditional religious symbol. It is unclear whether Singh will be penalized for not appearing for jury duty.