Court Allows Eruv In Long Island Town

In Verizon New York, Inc. v. Village of Westhampton Beach, (ED NY, June 16, 2014), a New York federal magistrate judge gave at least a partial victory to the East End Eruv Association, a Jewish organization that is attempting to place an eruv in Suffolk County, New York. An eruv is a symbolic boundary, marked off with plastic strips (lechis) on telephone poles. Observant Jews may carry items within the eruv on the Sabbath without violating Jewish religious law.  In this case, Verizon and Long Island Lighting Co. granted the Association the right to use their poles for an eruv, but three municipalities objected.  The utilities sued for a declaration that they had the right to allow use of their poles for this purpose.  This opinion ultimately dealt with only one of the municipalities-- Westhampton Beach.  The court concluded that the utilities' franchise agreements do not limit their authority permit the eruv; the Transportation Corporations Law and the LIPA Act provide authority for the utilities to enter contracts for use of their poles; while Westhampton has authority to regulate utility poles owned by the utilities, it has not passed any regulations that prohibit attaching lechis to the poles.  27East and Jewish Week report  on the decision.

Court Upholds Pennsylvania's Sunday Hunting Ban

In Hunters United For Sunday Hunting v. Pennsylvania Game Commission, (MD PA, June 18, 2014), a Pennsylvania federal district court rejected constitutional challenges by a hunters' group to Pennsylvania's ban on Sunday hunting for fur bearing animals or game.  Plaintiffs had asserted that the ban violates the 2nd Amendment, the 14th Amendment's equal protection clause, and the First Amendment's religion clauses. Rejecting plaintiff's establishment clause claim, the court said in part:

The Court cannot divine Plaintiffs’ injury-in-fact from their allegation that “Defendants [sic] enforcement and prohibition on Sunday hunting no longer has a secular basis but instead a religious basis.”

The court also pointed to Supreme Court precedent upholding Sunday closing laws.  AP reports on the decision. (See prior related posting.)

$108M Damages In Faith-Healing Death Upheld

In Mansfield v. Horner, (MO App., June 17, 2014), a Missouri state appellate court upheld a wrongful death judgment of over $108 million in the faith-healing death of Misty Mansfield growing out of complications after the stillbirth of her child.  The suit was brought by Misty's parents against her husband Caleb Horner and Caleb's brother, John, who was the leader of the faith-healing sect to which Caleb and Misty belonged.  The sect, which Misty joined only when she married Caleb, also required a wife to be submissive to their husband's decisions.  Caleb convinced Misty not to go to the hospital when complications arose during her labor at home, and the breech delivery was botched by Caleb and his religious-based birth team.  Caleb's brother John arrived after the stillbirth and prayed for hours attempting to raise the child from the dead, while Misty was not treated for her vaginal cuts and an emergency team that arrived 9 hours later was denied access to Misty by Caleb. A month after the delivery, Misty died from an ongoing infection.

The appeals court rejected nine objections to the trial court's refusal to override the jury's verdict, including an objection that the suit violates the First Amendment's free exercise clause.  Rejecting that argument, the court said in part:

None of [the jury] instructions required the jury to determine the validity of the Horners' belief in faith healing. The jury never had to determine "the truth or falsity" of faith healing. Instead, the instructions required the jury to determine whether or not the Horners' actions -- particularly with respect to Caleb's actions during the home birth and John and Caleb's actions preventing Misty from seeking medical treatment following the home birth -- constituted negligence. Thus, we do not conclude that the trial court committed plain error in overruling the Horners' motion for JNOV with respect to their claim of a First Amendment violation.

District Court Upholds ACA Non-Profit Contraceptive Mandate Rules

In Eternal Word Television Network v. Burwell, (SD AL, June 17, 2014), an Alabama federal district court granted summary judgment to Department of Health and Human Services, rejecting a Catholic media network's challenges to the rules accommodating religious non-profits' objections to the Affordable Care Act contraceptive coverage mandate.  Rejecting EWTN's "substantial burden" argument under the Religious Freedom Restoration Act, the court said in part:

Legally (if not morally) speaking, there is a world of difference between a law that compels EWTN to provide contraceptive coverage directly and one in which the government places that burden on someone else after EWTN opts out. Because EWTN’s only religious objection to the mandate hinges upon the effect it will have on other parties after EWTN signs Form 700 rather than anything inherent to the act of signing and delivering Form 700 itself, the court finds that the mandate does not impose a substantial burden on EWTN’s religious practice within the meaning of RFRA. As a result, EWTN’s RFRA claim fails as a matter of law.

The court also rejected EWTN's free exercise, establishment clause and compelled speech claims.  It concluded that the mandate is a neutral law of general applicability, and that "the accommodation’s certification requirement does not compel EWTN to express any opinions or beliefs that it does not hold."

In a press release reacting to the decision, EWTN said it would file an immediate appeal to the 11th Circuit.

Utah Supreme Court Refuses To Set Aside Default Judgment In FLDS Land Case

In Wisan v. City of Hildale, (UT Sup. Ct., June 17, 2014), the Utah Supreme Court, in the latest decision in the long running litigation over the Fundamentalist Church of Latter Day Saints United Effort Plan Trust, refused on procedural grounds to set aside a default judgment that had been entered against Hildale, Utah and the Twin City Water Authority.  The default judgment came in an attempt by the court-appointed trustee to subdivide the trust land in order to facilitate distribution of separate parcels that did not carry liability for neighbors' tax delinquencies.  The court held that the grounds asserted by defendants are not ones that can be raised in a direct appeal of a trial court's refusal to set aside a default judgment.

Egyptian Appeals Court Imposes Jail Sentence On Teacher For Allegedly Insulting Islam

In Egypt on Sunday, a appellate court sentenced a 23-year old Coptic Christian elementary school teacher to 6 months in jail for insulting Islam.  According to Arutz Sheva, the head of the parents' association at a Luxor school filed a complaint last May against teacher Demiana Emad claiming that she told her students that the late Coptic pope Shenuda III was better than the Prophet Mohammed. However an Egyptian civil rights group says she only presented a lesson in comparative religion. A trial court had imposed a fine equivalent to approximately $14,000 (US) on the teacher.  Both she and the state appealed, and the appellate court imposed the heavier sentence. Apparently an additional appeal can still be filed.

Obama Moves Toward Executive Order To End LGBT Discrimination By Federal Contractors

According to The Hill, a White House official announced yesterday that "the President has directed his staff to prepare for his signature an Executive Order that prohibits federal contractors from discriminating on the basis of sexual orientation or gender identity."  No specific date for signing the executive order was announced, apparently in the hope that the House of Representatives will take up the Senate-passed Employment Non-Discrimination Act (ENDA) which would extended LGBT non-discrimination protection to all workers. However this seems unlikely in the face of opposition by House Speaker John Boehner who says that ENDA would cost jobs by creating frivolous law suits.

Man Charged After He Destroys Statue of Jesus For Religious Reasons

Yesterday's Charleston Post and Courier reports on the arrest last Sunday of 38-year old Charles Jeffrey Short for malicious injury to real property after he hammered off the head of a statue of Jesus that stands near a Charleston, South Carolina Catholic church. Short says he was making a religious statement. He told police he battered the statue with a sledge hammer "because the second or first commandment states to not make an image of a male or female to be on display to the public." Police are investigating whether Short was also involved in a similar incident last Friday in which a head and two hands were broken off another statue depicting Jesus and a child that stands at the same church.

SCOTUS Review Denied Over Interesting Dissent In Challenge To School Graduations In Churches

The U.S. Supreme Court today denied certiorari in Elmbrook School District v. John Doe 3, (Docket No. 12-755, cert. denied 6/16/2014), but with an unusual opinion dissenting to the denial of review, written by Justice Scalia and joined by Justice Thomas. (Order List, [scroll to end for opinion]). In the case, the 7th Circuit, in a 7-3 en banc decision, held that two Wisconsin high schools violated the Establishment Clause when they regularly held their graduation ceremonies in the sanctuary of a non-denominational evangelical Christian church. (See prior posting.)

Justice Scalia's dissent focuses largely on the Supreme Court's decision earlier this term in Town of Greece, reading that opinion more broadly than many commentators have so far done. Justice Scalia implicitly sees Town of Greece as impacting more than just invocations before legislative bodies, and says almost nothing about the special concern that the Court has shown historically for religious activities in public schools.  He begins his dissent with this summary:

Some there are-- many perhaps-- who are offended by public displays of religion.... I can understand that attitude: It parallels mine toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

My own aversion cannot be imposed by law because of the First Amendment.

Justice Scalia then goes on to argue first that Town of Greece abandons the "endorsement test" under the Establishment Clause, and that, second, it requires coercion amounting to more than mere offense to show an Establishment Clause violation. Lastly he emphasizes that the Establishment Clause should be interpreted according to historical practices and understandings, a consideration absent from the 7th Circuit's majority opinion. [Thanks to Marty Lederman via Rellgionlaw for the lead.]

North Carolina County Seeks Lifting of Injunction After Town of Greece Decision

The Winston-Salem Journal reported last week that Forsyth County, North Carolina is asking a federal district court to lift a 2010 injunction that barred it from continuing a policy of opening County Board of Commissioners meetings with prayers that are repeatedly Christian. The 4th Circuit had affirmed the issuance of the injunction. (See prior posting.) Last week's motion comes in light of the Supreme Court's recent decision in Town of Greece permitting a neutral policy that nevertheless results in primarily Christian invocations opening legislative bodies. Here is Forsyth County's brief in support of its motion to lift the injunction.  ADF issued a press release announcing the filing of the motion.

Recent Articles of Interest

From SSRN:

• Valerie J. Munson, Fraud on the Faithful? The Charitable Intentions of Members of Religious Congregations and the Peculiar Body of Law Governing Religious Property in the United States, (Rutgers Law Journal Vol. 44, No. 3, 2014).
• Bruce Ledewitz, Experimenting with Religious Liberty: The Quasi-Constitutional Status of Religious Exemptions, 6 Elon Law Review (2014).
• Kevin P. Lee, Emanuel Levinas on Hegel's Antigone: Levinas and the Problem of Modernity, (May 30, 2014). 
• Sara L. Ainsworth, Amicus Curiae Brief: Stormans, Inc. v. Selecky, (Hastings Women's Law Journal, Vol. 24, No. 2, pp. 303-37, Summer 2013).
• Tabatha Abu El-Haj, All Assemble: Order and Disorder in Law, Politics, and Culture, (University of Pennsylvania Journal of Constitutional Law, Vol. 16, No. 4, 2014 Forthcoming).
• Seema Mohapatra, Time to Lift the Veil of Inequality in Health Care Coverage: Using Corporate Law to Defend the Affordable Care Act, (May 23, 2014).
• Alice E. Marwick & Ross W. Miller, Online Harassment, Defamation, and Hateful Speech: A Primer of the Legal Landscape, (Fordham Center on Law and Information Policy Report No. 2, June 10, 2014).
• Nancy J. Knauer, Navigating a Post-Windsor World: The Promise and Limits of Marriage Equality, (Georgetown Journal of Gender and the Law, Vol. 16, 2014, Forthcoming).

From SSRN (Islamic law):

• Hussein Elasrag, Corporate Governance in Islamic Financial Institutions, (May 26, 2014).
• Muhammad Munir, Rights of Children in Islamic Law: A Review of Selected Literature, (May 29, 2014).
• Timur Kuran, Institutional Roots of Authoritarian Rule in the Middle East: Civic Legacies of the Islamic Waqf, (Economic Research Initiatives at Duke (ERID) Working Paper No. 171, June 12, 2014).

From SmartCILP:

• Julie Maher, Eweida and Others: A New Era for Article 9?, 63 International & Comparative Law Quarterly 213-233 (2014).

Hearing Discloses Developments In Reformation of FLDS Land Trust

On Friday, a Utah state trial court held a one-and-a-half hour hearing in the state's 9-year long effort to reform the United Effort Plan Trust.  The Trust holds property of the polygamous FLDS Church in the sect's twin towns of Hilldale, Utah and Colorado City, Ariz.  AP and Fox13 report that a number of developments were revealed at the hearing. Judge Denise Lindberg urged the court-appointed trustee to begin evicting residents who have been ignoring the $100-per month housing fee for as long as 7 years. Collectively over $4.18 million in back fees is owed. During the hearing, Utah Attorney General Sean Reyes urged the court to appoint a board to take over redistribution of the 750 homes owned by the Trust.  Judge Lindberg said that she has chosen seven people for the board, but will not set it up until fees are being paid so the trust will have a stable source of revenue, and until liability insurance can be obtained for board members. It was also announced that former-FLDS member Willie Jessop has agreed with the court-appointed trustee to cooperate with investigations and litigation in exchange for receiving land.  In yet another development, the Arizona Attorney General's office told the court that it plans to file papers today to dismantle the Hildale/ Colorado City Town Marshal’s Office.

Court Rejects Claims Against Diocese By Victim of Clergy Sexual Abuse

In John Doe v. Corporation of the Catholic Bishop of Yakima, (ED WA, June 12, 2014), a Washington federal district court  dismissed negligent supervision and negligent infliction of emotional distress claims against the Diocese of Yakima brought by the victim of an incident of sexual abuse perpetrated by a deacon that occurred when the victim was 17 years old. While finding that the suit was not barred by the statute of limitations, the court held that no special relationship existed between the diocese and plaintiff, and the diocese had no reason to believe that the deacon posed a risk of inappropriate sexual conduct. National Catholic Reporter reports on the decision.

Recent Prisoner Free Exercise Cases

In Jones v. Conrad, (8th Cir., June 2, 2014), the 8th Circuit upheld the dismissal of an inmate's complaint that he was denied permission to receive two religious publications sent to him through the mail. He failed to show that the denial substantially burdened his ability to practice his religion.

In Davis v. Abercrombie, 2014 U.S. Dist. LEXIS 74934 (D HI, June 2, 2014), a Hawaii federal district court refused to reconsider its prior denial of summary judgment to defendants on Native Hawaiian inmates' complaints that they were denied daily outdoor group worship; and were denied daily access to amulets and bamboo nose flutes. However reconsideration was granted as to inmates' lack of access to certain other sacred items. The court also dismissed certain claims for prospective equitable relief as moot.

In Porter v. Biter, 2014 U.S. Dist. LEXIS 77476 (ED CA, June 4, 2014), a California federal magistrate judge dismissed, with leave to amend, a Muslim inmate's attempt to obtain an order allowing him to change his legal name to a religious name and to use the religious name during normal prison activities such as sending and receiving mail.

In Cole v. Danberg, 2014 U.S. Dist. LEXIS 77773 (D DE, June 6, 2014), a Delaware federal district court permitted a Muslim inmate to proceed with many of his claims for injunctive relief growing out of alleged religious discrimination, denial of right to observe Islamic holidays and have congregational prayer, and refusal to allow the Islamic community to raise funds.

In Schlemm v. Frank, 2014 U.S. Dist. LEXIS 78601 (WD WI, June 10, 2014), a Wisconsin federal district court dismissed, partly on exhaustion and partly on substantive grounds, a complaint by a Native American inmate seeking sweat lodge ceremonies on a weekly basis, a Ghost Feast meal that includes wild game, and the right to wear multicolor headbands. a ribbon shirt, bear-claw jewelry and a personal pipe.

In Lindsey v. Bradley, 2014 U.S. Dist. LEXIS 78856 (SD IL, June 9, 2014), an Illinois federal district court permitted a Rastafarian inmate to proceed with his complaint that his dreadlocks were forcibly cut.

In Davis v. Hubler, 2014 U.S. Dist. LEXIS 78835 (ED NC, June 10, 2014), a North Carolina federal district court dismissed a complaint by a Nation of Islam inmate that he was not permitted to receive the weekly publication Final Call.

In Glenn v. Wilson, 2014 U.S. Dist. LEXIS 79303 (ND IN, June 10, 2014), an Indiana federal district court dismissed a complaint by an Eastern Orthodox inmate that he was unable to attend Eastern Orthodox religious services first when he was placed in administrative segregation and then when he was transferred to a prison without Orthodox services.

Sudan Apostasy Case Draws U.S. Attention As Appeal Begins

Zegabi reports that in Khartoum, Sudan last week an Appeals Court hearing began in the case of 27-year old Meriam Yehya Ibrahim Ishag who was sentenced to death last month for maintaining her Christian faith, as well as to 100 lashes for adultery. Ishag's's father was a Muslim; so she is considered Muslim under Sudan's personal status law and her marriage to her Christian husband is considered void. (See prior posting.)  Meanwhile the case is garnering extensive attention in the United States.  On June 12, a group of demonstrators representing 46 organizations held a protest outside the White House.  Among the protesters were Sen. Ted Cruz who later told Christian Post:

We need far more leadership speaking out for religious liberty of everyone. And especially for Christians who are being targeted.... The reason this rally and protest is outside the White House is President Obama has to date failed to provide leadership on Meriam Ibrahim.

On the same day, Secretary of State John Kerry issued a statement (full text) calling on Sudan to release Ms. Ishag and to repeal its laws that are inconsistent with its 2005 Interim Constitution, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights.

Suit Claims Church's Publicity On Muslim's Conversion Led To His Torture and Near Death In Syria

In Tulsa, Oklahoma, a John Doe plaintiff has filed a state court lawsuit seeking $75,000 in punitive damages against the First Presbyterian Church of Tulsa for publishing an online announcement of his December 2012 conversion from Islam to Christianity.  The complaint (full text) in Doe v. First Presbyterian Church U.S.A. of Tulsa, Oklahoma, (OK Dist. Ct., filed 6/9/2014), alleges that plaintiff travels periodically to Syria, and the church knew that any publicity about his baptism would pose a danger to his life. He says that when he was in Syria in January 2013, he was kidnapped, tortured and nearly beheaded before he escaped by forcibly taking a firearm from his captors and killing one of them who was his paternal uncle. He alleges he has received numerous death threats since returning to the United States.

Oklahoma's NewsOn6 and Tulsa Channel 8 report on the lawsuit and quote a statement in response released by the church which says in part: "The lawsuit is brought by a person who received the Sacrament of Baptism before the Congregation during a regular Sunday service at First Church." This appears to contradict the allegation in plaintiff's complaint that he received a "private baptism" at the church.

Facebook Not Liable For Delay In Removing Page Containing Anti-Jewish Threats

In Klayman v. Zuckerberg, (DC Cir., June 13, 2014), the U.S. Court of Appeals for the D.C. Circuit dismissed a suit against Facebook and its founder Mark Zuckerberg alleging assault and breach of duty of care growing out of Facebook's delay in removing a page titled "Third Palestinian Intifada."  The page proclaimed: "Judgment Day will be brought upon us only once Muslims have killed all the Jews." The suit alleged that it took Facebook "many days" after receiving complaints to remove the offending page.  Plaintiff sought an injunction and damages exceeding $1 billion.  The court held that Sec. 230(c) of the Communications Act (47 USC Sec. 230) shields Facebook from liability. That section provides:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Order Stayed By Court After Enjoining Wisconsin's Same-Sex Marriage Ban

As previously reported, on June 6 a Wisconsin federal district court declared Wisconsin's constitutional and statutory provisions barring same-sex marriage unconstitutional and instructed the parties to submit proposed language for an injunction. Now in Wolf v. Walker, (WD WI, June 13, 2014), the court issued a carefully worded injunction against the governor, state registrar and three county clerks. However the court also stayed the injunction, as well as its earlier declaratory judgment, until the conclusion of any appeals or after the expiration of the deadline for filing appeals.  Judge Crabb wrote in part:

If I were considering these factors as a matter of a first impression, I would be inclined to agree with plaintiffs that defendants have not shown that they are entitled to a stay. However, I cannot ignore the Supreme Court’s order in Herbert v. Kitchen, 134 S. Ct. 893 (2014), in which the Court stayed a district court’s order enjoining state officials in Utah from enforcing its ban on same-sex marriage.....  [S]ince Herbert, every statewide order enjoining the enforcement of a ban on same-sex marriage has been stayed, either by the district court or the court of appeals, at least when the state requested a stay.....

It is true that the Supreme Court declined to issue a stay in a more recent case in which a district court in Oregon enjoined enforcement of that state’s ban on same-sex marriage. National Organization for Marriage v. Geiger .... (June 4, 2014). However, that order is not instructive because the district court’s injunction was not opposed by the state; rather, a nonparty had requested the stay. Thus, I do not interpret Geiger as undermining the Court’s order in Herbert.

Yesterday's Milwaukee Journal-Sentinel reports on the decision.

De Blasio's Universal Kindergarten Church-State Rules Unsatisfactory To Both Sides

In New York City, Mayor Bill de Blasio has created a free, full-day pre-kindergarten program, offered in part through community-based organizations, as a major initiative. (Implementation Plan.) Hamodia reported last month that the mayor has made a number of concessions in order to attract Orthodox Jewish schools to participate in the program. The New York Daily News reported yesterday that the New York Civil Liberties Union is concerned that some of these cross the church-state separation line:

Guidance provided to religious schools by city officials in May allows them to screen potential teachers based on their religion “to the extent permitted by law,” use religious texts “when presented objectively” and give lessons in other languages such as Yiddish and Hebrew.

Nevertheless, according to The Forward yesterday a number of ultra-Orthodox schools may opt not to participate in the program.  They are particularly concerned about the ban on staff leading blessings after meals, and about the length of the required school day which will make it difficult to add hours for religious instruction at the beginning or end of the school day. Regulations for a similar program offered by New York state outside of New York City are more flexible, and some New York City Jewish schools are looking at whether they can apply to this program instead.

European Court Faults Russia For Dissolving Pentecostal Church

In Biblical Centre of the Chuvash Republic v. Russia, (ECHR 1st Section, June 12, 2014), the European Court of Human Rights in a Chamber Judgment held that Russia violated Art. 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) interpreted in light of Art. 11 (freedom of assembly and association) when it ordered dissolution of a Pentecostal religious organization.  In a press release, the Court summarized the facts:

The applicant is a Russian religious organisation, the Biblical Centre of the Evangelical (Pentecostal) Christians of the Chuvash Republic. Belonging to the Pentecostal movement of the Christian faith, it was registered as a religious organisation in November 1991, founding a Biblical college and Sunday school in 1996. However, following inspections of the Biblical Centre in April and May 2007, the domestic courts ruled against the applicant organisation in two sets of administrative proceedings for allowing the Centre to conduct educational activities without authorisation and for violating sanitary rules and hygienic requirements. On that basis, the Supreme Court upheld the prosecuting authorities’ claim to dissolve the applicant organisation in August 2007 and, following the dismissal of the organisation’s appeal in October 2007, it was dissolved with immediate effect.

In its decision, the Court held:

the domestic authorities have not shown that the dissolution, which undermined the very substance of the applicant organisation’s rights to freedom of religion and association, was the only option for the fulfilment of the aims they pursued.

An ACLJ press release reports on the decision.

Christian-Themed Park Turns Down State Economic Grant After Church-State Complaints

In Sioux City, Iowa, developers of a Christian-themed park have decided to turn down a $140,000 state economic development grant after objections were raised by the Freedom From Religion Foundation.  AP reported this week that developers of Shepherd's Garden do not want to be in the middle of lawsuits over the park. While the park is to include a stone path with Bible verses, and prayer spaces, the funding from the state organization, Vision Iowa, was not to go to religious elements of the park.  A member of the park's board said that FFRF's objections stimulated enough private donors to pay for the project.

Consent Decree Entered In Suit Over Devotional Exercises In School

The American Humanist Association yesterday announced the entry of a consent decree which settles its lawsuit against a Missouri school district.  AHA sued the district over devotional exercises held before the beginning of school in the classroom of a teacher who is adviser to the Christian student group. (See prior posting.) The consent decree (full text) in American Humanist Association v. Fayette R-III School District, (WD MO, May 19, 2014) requires the school district to amend its Student-Teacher Handbook in various ways and provides other relief.  As summarized in AHA's press release:

In the consent decree agreed upon by the parties, the school is permanently enjoined from promoting prayer and religious activity, and religious clubs will be given no special privileges that other clubs do not enjoy. The school district also agreed to amend its announcement policies so that they will not identify any religious activities taking place at student group meetings. Also, faculty sponsors of student groups will not be permitted to participate in religious activities of the groups. School employees will also no longer be allowed to keep religious materials in places in open view.

European Court Upholds Spain's Dismissal of Priest As Public School Teacher

In Martinez v. Spain, (ECHR, June 12, 2014), the Grand Chamber of the European Court of Human Rights, in a 9-8 decision, held that there had not been a violation of a Catholic priest's rights under Art. 8 of the European Convention on Human Rights when he was not renewed as teacher of Catholic religion and ethics in a State secondary school in Spain.  Art. 8 deals with respect for private and family life.

The priest, Fr. Jose Martinez, was ordained in 1961.  He applied for a dispensation from celibacy in 1984, but when he did not receive a response by the following year he married in a civil ceremony. He and his wife had 5 children.  Martinez taught in a state high school from 1991 until 1997 when the Vatican granted his dispensation from celibacy, but at the same time ruled that he could no longer teach religion in a state school unless the local bishop decided otherwise. The Vatican's ruling obligated his removal from his position in the state school pursuant to an agreement between Spain and the Holy See. This ruling followed publication of an article in a Spanish newspaper about the "Movement for Optional Celibacy of Priests" in which Martinez was an active member. The article, illustrated with a picture of Martinez and his family, quoted members' views on abortion, divorce, sexuality and contraception which were contrary to those of the Church.

The court said in part:

the applicant ... must have been aware, in accepting the task of teaching Catholic religion, of the potential consequences of the heightened duty of loyalty vis-à-vis the Catholic Church by which he thus became bound, for the purpose, in particular, of preserving the credibility of his teaching....

Focusing on the Church's rights of autonomy, the court said:

the right of believers to freedom of religion encompasses the expectation that they will be allowed to associate freely, without arbitrary State intervention. The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 of the Convention affords.

Four separate dissenting opinions were also filed. The Court also issued a press release summarizing the 65 pages of decisions. The Becket Fund issued a press release on the decision applauding the vindication of church autonomy and criticizing the dissent by Judge Dedov that strongly takes issue with the Catholic Church's rules on celibacy for priests.

Groups Ask Holder To Withdraw Memo Allowing Religious Hiring Preferences In Federal Grant Programs

This week, 90 religious, educational, civil rights, labor, LGBT, women’s, and health groups signed a joint letter (full text) to Attorney General Eric Holder asking that the Office of Legal Counsel withdraw the Bush Administration's June 29,  2007 memo allowing faith-based organization that receive federal grant funds to give a preference to co-religionists in hiring. That memo concluded that RFRA overrides the religious anti-discrimination provisions of the Juvenile Justice and Delinquency Prevention Act (see prior posting). However, according this week's joint letter, the OLC memo has been applied to other grant programs as well, including most recently to grants under the Violence Against Women Act.  A Department of Justice  Frequently Asked Questions memo dated April 9, 2014 says that the non-discrimination grant provision in the Violence Against Women Reauthorization Act of 2013 does not apply to hiring of co-religionists by faith-based organizations where the funded program is an exercise of religion, foregoing a religious preference in hiring would be a substantial burden, and the funding agency cannot show a compelling interest furthered by the least restrictive means.  This week's letter argues:

RFRA should not be interpreted or employed as a tool for broadly overriding statutory protections against religious discrimination or to create a broad free exercise right to receive government grants without complying with applicable regulations that protect taxpayers.

[Thanks to Michael Lieberman for the lead.]

British Supreme Court: Civil Courts May Decide Religious Doctrine To Settle Legal Disputes

In Shergill & Ors v Khaira & Ors, (UK Sup. Ct., June 11, 2014) the United Kingdom Supreme Court held that British courts should not treat religious disputes as non-justiciable "where the determination of the dispute is necessary in order to decide a matter of disputed legal right...."  The case involves a dispute over who are the proper trustees in three Sikh temples and the powers which trustees may exercise.  The Supreme Court held in part:

... courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites. But where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective ascertainment. The court addresses questions of religious belief and practice where its jurisdiction is invoked either to enforce the contractual rights of members of a community against other members or its governing body or to ensure that property held on trust is used for the purposes of the trust....

... the court may have to adjudicate upon matters of religious doctrine and practice in order to determine who are the trustees entitled to administer the trusts. Subject to further amendment of the parties’ cases, the question whether Sant Jeet Singh has power to appoint and dismiss trustees may depend on issues such as (i) what are the fundamental tenets of the First Holy Saint and the Nirmal sect, (ii) what is the nature of the institution at Nirmal Kutia in India, (iii) what steps or formalities were needed for a person to become the successor of the First Holy Saint, and (iv) in relation to the fourth issue whether the teachings and personal qualities of Sant Jeet Singh comply with the fundamental religious aims and purposes of the trust....

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

USCIRF Criticizes Burma's Proposed Religious Conversion Law

The U.S. Commission on International Religious Freedom issued a press release yesterday strongly criticizing the draft of the Religious Conversion Law that Burma's Parlisment has recently released for comment. USCIRF said in part:

“The draft conversion law is irreparably flawed and would contravene Burma’s international commitments to protect freedom of religion or belief.  Such a law has no place in the 21st century, and we urge that it be withdrawn,” said USCIRF Chairman Robert George.  “This draft law, and the three others that may follow, risk stoking continuing violence and discrimination against Muslims and other religious minorities, including Christians.”

The draft conversion law would create a governmental Registration Board to approve all religious conversions.  While stating that “everyone has the freedom to convert from one religion to another,” the draft law would create a system clearly geared to discourage conversion.  

6th Circuit Upholds ACA Contraceptive Mandate Accommodation For Religious Non-Profits

In Michigan Catholic Conference v. Burwell, (6th Cir., June 11, 2014), the U.S. 6th Circuit Court of Appeals denied preliminary injunctions to several Catholic non-profit entities that object to the Affordable Care Act contraceptive coverage accommodation.  The accommodation allows charitable and educational non-profits to opt out of furnishing contraceptive coverage to their employees by completing a form and sending it to their insurer or third party administrator which will then furnishes contraceptive coverage directly. The court rejected arguments by the non-profits that the accommodation rules substantially burden their religious exercise under RFRA.  The court said in part:

appellants appear to ask the court to defer not only to their belief that requesting the exemption or the accommodation makes them complicit in sin, but also to defer to their understanding of how the regulatory measure actually works....  [W]e will independently determine what the regulatory provisions require and whether they impose a substantial burden on appellants’ exercise of religion....

Submitting the self-certification form to the insurance issuer or third-party administrator does not “trigger” contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage.... The government’s imposition of an independent obligation on a third party does not impose a substantial burden on the appellants’ exercise of religion.

The court also rejected plaintiffs' free speech, free exercise and Establishment Clause challenges. Finally the Court rejected plaintiffs' claim that the contraceptive coverage mandate violates the Weldon Amendment designed to allow health care entities to refuse to perform or cover abortions. Plaintiffs contend that certain of the contraceptive methods covered are abortifacients.  The Court refused to defer the plan provider's definition of abortion, saying:

the federal courts will utilize traditional methods of statutory interpretation to determine whether “abortion” in the Weldon Amendment includes FDA-approved emergency contraceptives.

The 6th Circuit also lifted its previously issued stays pending appeal of the lower courts' decisions in the case.  MLive reports on the decision.

Lawyers In British Columbia Want Trinity Western Law School Rejected

In Canada, British Columbia-based Trinity Western, a Christian liberal arts university, has suffered a setback in its efforts to open a law school in 2016. The school is controversial because of the university's "community covenant" which requires staff, faculty and students to refrain, among other things, from sex outside of heterosexual marriage.  As previously reported, earlier this year the benchers of the Law Society of British Columbia voted to approve the proposed law school, making its graduates eligible to enter the Law Society's bar admissions program. Subsequently, however, over 1,000 British Columbia lawyers petitioned the Law Society to allow a vote of the entire membership on the issue.  Canadian Press reports that an advisory vote of the general membership was held on Tuesday and lawyers voted 3,210 to 968 for a resolution calling for the benchers to reject the school. Trinity Western is already in the process of suing law societies in Ontario and Nova Scotia which have refused to approve the school's graduates for bar admission. (See prior posting.)

EEOC Sues Claiming Company Required Employees To Engage In Religious Activities

The EEOC announced yesterday that it has filed suit yesterday in a New York federal district court against Syosset, N.Y.-based United Health Programs of America and its parent corporation for forcing employees to take part in religious activities in the workplace.  According to the EEOC, since 2007 employees have been required to participate in:

group prayers, candle burning, and discussions of spiritual texts. The religious practices are part of a belief system that the defendants' family member created, called "Onionhead." Employees were told wear Onionhead buttons, pull Onionhead cards to place near their work stations and keep only dim lighting in the workplace. None of these practices was work-related. When employees opposed taking part in these religious activities or did not participate fully, they were terminated.

New York Daily News has more on the lawsuit.

Jewish Ancestry of the Late Cardinal John Joseph O'Connor Discovered

The New York Times reported at length yesterday on the newly-discovered Jewish ancestry of the the late Cardinal John Joseph O’Connor.  O'Connor was Cardinal Archbishop of New York for 16 years. It now appears that O'Connor's maternal grandfather was a rabbi, and his mother, who converted to Catholicism in 1908, was born a Jew.  The Cardinal, who apparently never learned of his Jewish roots, was born in 1920 and died in 2000. (Biography.) As Cardinal, O'Connor was strongly supportive of the Jewish community and active in Catholic-Jewish relations.

House Subcommittee Holds Hearing On Religious Liberty In U.S.

Yesterday the U.S. House Judiciary Committee, Subcommittee on the Constitution and Civil Justice held a hearing on The State of Religious Liberty In the United States.  Witnesses from Liberty Counsel, Christian Legal Society, Americans United for Separation of Church and State, and Alliance Defending Freedom testified.  The full text of each witness' prepared remarks is available online, as is a video of the full hearing.

UPDATE: Christian News (June 11) carries an account of an exchange during the hearing between Texas Rep. Louie Gohmert and Americans United leader Rev. Barry Lynn questioning Lynn's Christian beliefs.

DC Circuit Dismisses Suit By Former Gitmo Detainees Claiming Disruption of Religious Practices

In Allaithi v. Rumsfeld, (DC Cir., June 10, 2014), former Guantanamo detainees brought a damage action under the Alien Tort Statute, as well as under the 1st Amendment and RFRA, against various individuals who authorized and supervised their detention.  At issue in this appeal is the claim by certain of the plaintiffs that after they were cleared by the Combatant Status Review Tribunal, but before they were released, they were mistreated in various ways, including disruption of their religious practices. The appeals court agreed with the district court that the individual defendants were acting within the scope of their employment in carrying out the challenged actions.  Therefore the claims should have been brought against the United States government pursuant to 28 USC Sec. 2679(d), and not against the individuals. Center for Constitutional Rights issued a press release discussing the decision.

Another Lawsuit Is Filed Challenging Alabama's Refusal To Recognize Same-Sex Marriages

On Monday, the ACLU filed a federal lawsuit challenging Alabama's refusal to recognize same-sex marriages performed in other states. (Press release). The complaint (full text) in Aaron-Brush v. Bentley, (ND AL, June 9, 2014), was filed on behalf of two women who have been together for 17 years and were legally married in Massachusetts in 2012. They have a 7-year old daughter they are raising together, though Alabama law presently bars them from jointly adopting her.  There are already three other lawsuits in federal courts seeking to require Alabama to recognize same-sex marriages from other jurisdictions.

Kentucky City Passes Ordinance Barring LGBT Discrimination, But With Broad Exemption For Faith-Based Institutions

According to Central Kentucky News, on Monday night, the Danville, Kentucky City Commission, by a vote of 4-1, adopted an ordinance barring discrimination on the basis of sexual orientation or gender identity, but with a broad exclusion for all "faith-based institutions."  An earlier version of the ordinance would not have excluded faith-based institutions that receive a majority of their funding from government agencies.  However last month after Sunrise Children's Services which receives 80% of its funding from the government threatened to sue, Council came up with the new draft containing the broader exemption.  An attempt to go back to the initial version was defeated on Monday by a vote of 3-2.  Mayor Bernie Hunstad, who voted against the final version as well, said that he objects to special protection for individuals "who chose to make an unconventional choice in their method of sexual practices."

Conversion Therapy Victims Can Recover Treble Damages Under New Jersey Consumer Fraud Act

In Ferguson v. JONAH (Jews Offering New Alternatives for Healing), (NJ Super., June 6, 2014), a New Jersey trial court held that plaintiffs who paid defendant for counseling and other methods to purge unwanted same-sex attractions can recover treble damages under the New Jersey Consumer Fraud Act, Sec. 56:8-19 for money spent on therapy to repair the damage done by JONAH's original conversion therapy. The court concluded that those costs constitute the kind of "ascertainable loss" required by the statute before treble damages may be recovered. The Southern Poverty Law Center issued a press release announcing the decision.

9th Circuit: Suit To Claim Nazi Confiscated Artwork Can Proceed

In Von Saher v. Norton Simon Museum of Art at Pasadena, (9th Cir., June 6, 2014), the U.S. 9th Circuit Court of Appeals held in a 2-1 decision that the sole living heir of a Jewish family whose art collection was forcibly "purchased" for a fraction of its value by Nazi leader Herman Goring can proceed with a suit to recover two of the paintings presently in a California art museum. The majority held that the suit. brought under California law, is not in conflict with U.S. foreign policy. Judge Wardlaw dissented.

Czech Court Wipes Away 45 Year Old Convictions of 4 Jehovah's Witnesses

In the Czech Republic last Friday, a court in Pizen entered an order of judicial rehabilitation wiping away the 1969 convictions of four Jehovah's Witnesses who were fined for visiting people and speaking with them about the Bible.  At that time, the Communist regime in the country combated all churches. According to yesterday's Prague Post, Judge Iveta Zítková said that the rehabilitation gives "a sort of moral satisfaction" to the four who are now in their 60's and retired.

Suit Challenges North Dakota's Same-Sex Marriage Ban

Religion News Service reports that on Friday, a federal lawsuit was filed challenging North Dakota's state constitutional and statutory bans on same-sex marriage.  Up to now, North Dakota had been the last state with an unchallenged gay marriage ban.  The complaint (full text) in Ramsay v. Dalrymple, (D ND, filed 6/6/2014) challenges both the ban on same-sex marriages in the state and the state's refusal to recognize same-sex marriages performed elsewhere. It contends that the bans violate the equal protection and due process clauses of the 14th Amendment, and that the non-recognition of out-of-state marriages infringes on the fundamental right to travel. According to Freedom To Marry, there are now ongoing court challenges to same-sex marriage bans and/or non-recognition requirements in 31 states and Puerto Rico. Nineteen states and the District of Columbia already have full marriage equality.

Court Rejects Challenge To New York Vaccination Requirements

In Phillips v. City of New York, (ED NY, June 4, 2014), parents who object to vaccinating their children on religious grounds challenged New York's law that allows religious exemptions.  Even though most of the children involved received an exemption, plaintiffs complain that the state requires them to detail their religious beliefs in order to qualify.  Schools also apparently require unvaccinated children to remain home when any classmate contracts a vaccine-preventable disease. The court dismissed plaintiffs' free exercise, substantive due process and equal protection challenges to the law.

Pope Hosts Prayer Summit With Israeli, Palestinian Presidents

As reported by the New York Times, yesterday Pope Francis hosted a "prayer summit" in the Vatican bringing together Palestinian President Mahmoud Abbas and Israeli President Shimon Peres. Ecumenical Patriarch Bartholomew of Constantinople, head of Orthodox Christians, also attended the ceremony held in a garden behind St. Peter’s Basilica. Vatican Radio has the full text of the remarks of the Pope, President Abbas and President Peres.

Suit Charges Religious Discrimination, Claims Retaliation For Complaining About Training Video Using Nazi Images

Reuters reports on a $40 million federal religious discrimination lawsuit filed Friday in New York by Jean-Marc Orlando, a former managing director at BNP Paribas North America.  Orlando, an Orthodox Jew, claims he was fired after 18 years with the bank because he complained about Nazi imagery in a video he and other managers were shown in 2011 at a training session in Amsterdam. The video was a parody on the depiction of the final days of the Hitler regime, and portrayed BNP's competitor Deutsche Bank as Hitler.

Recent Articles of Interest

From SSRN:

• François Foret, Democratic Representation and Religion. Differences and Convergences between the European Parliament and the US House of Representatives, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2014/58 (2014)).
• Paul T. Babie, Private Property in Post Secular Law: An Introductory Foray, (2013 University of Queensland Law Journal 32 (2) p238).
• D. Brian Dennison, The Resonance of Christian Political Conceptions within International Humanitarian Law, (Uganda's Paper Series on International Humanitarian Law, 2013).
• Ryan M. Hrobak & Robin Fretwell Wilson, Emergency Contraceptives or 'Abortion-Inducing' Drugs? Empowering Women to Make Informed Decisions, (Washington and Lee Law Review, Vol. 71, Issue 2, 2014).
• Brett G. Scharffs, Our Fractured Attitude Towards Corporate Conscience, (March 12, 2014).
• Sarah Schiesz, Hezbollah: Before and after the Syrian War, (May 12, 2014).
• Samuel Wolf Calhoune, Justice Lewis F. Powell's Baffling Vote in Roe v. Wade, (71 Wash. & Lee L. Rev. 925 ( 2014).
• Meg Mary Margaret Penrose, Unbreakable Vows: Same-Sex Marriage and the Fundamental Right to Divorce, (58 Villanova Law Review 169 (2013)).
• Muhammad Munir, The Law of Khul' in Islamic Law and the Legal System of Pakistan: The Sunnah of the Prophet or Judicial Ijtihad?, (May 24, 2014).

From SmartCILP and elsewhere:

• Mark Goldfeder, The Adoption of Children In Judaism and In Israel; A Conceptual and Practical Review, 22 Cardozo Journal of International & Comparative Law 321-353 (2014).
• Daniel Ross Goodman, Ethical Falsehood: Towards A Moral Values Paradigm In False-Speech Adjudication, [Abstract], 55 South Texas Law Review 71-112 (2013).
• Austin R. Nimocks, History and Recent Developments in Same-Sex Marriage Litigation, Federalist Society State Courts Project White Paper (May 28, 2014).
• Brian J. Grim, Greg Clark & Robert Edward Snyder, Is Religious Freedom Good for Business?: A Conceptual and Empirical Analysis, 10 Interdisciplinary Journal of Research on Religion, Article 4, 2014.

Judge's Religious References In Sentencing Did Not Prejudice Defendant

In State of North Carolina v. Earls, (NC App., June 3, 2014), a North Carolina appellate court held that a defendant who was convicted on charges of rape, incest and taking indecent liberties with a child was not prejudiced by the trial judge's references to the Bible and divine judgment in sentencing him to 45 to 55 years in prison. [Thanks to Alliance Alert for the lead.]

Pro-Marriage Group Entitled To Actual Damages For Erroneous IRS Release of Donor Data

In National Organization for Marriage, Inc. v. United States, (ED VA, June 3, 2014), a non-profit organization whose purpose is "to protect marriage and the faith communities that sustain it" sued the federal government under 26 USC Sec. 7431 for damages growing out of the IRS's unauthorized release in 2011 of Schedule B of the organization's Form 990. Schedule B lists donors of over $5000 to the organization and should have been redacted before releasing the Form 990 in response to a media request.  The Schedule B was ultimately published by the Huffington Post along with an article focusing on the fact that it showed a $10,000 donation by a political action committee associated with Mitt Romney. The court held that plaintiff is entitled to actual damages, but not to punitive damages for willful disclosure or gross negligence.  The court also dismissed plaintiff's unauthorized inspection claim.

European Court Says Turkey Mistreated Jehovah's Witness Conscientious Objectors

In Buldu and Others v. Turkey, (ECHR Second Section, June 3, 2014) (full text in French), the European Court of Human Rights held that Turkey violated the European Convention on Human Rights Art. 3 (inhuman and degrading treatment) and Art. 9 (freedom of thought conscience and religion) in its prosecution and conviction of four Jehovah's Witnesses who were conscientious objectors to military service. It also held that Turkey violated Art. 6, Sec. 1 (fair trial) as to one of the petitioners who complained that he had had to appear as a civilian before a court made up exclusively of military personnel. The court (in an appealable Chamber Judgment) awarded substantial amounts in damages to each petitioner. More information on the decision is available in the Court's English language press release, and from Law & Religion UK blog.

Supreme Court Review Sought In NY Pregnancy Service Center Case

On Friday, the American Center for Law and Justice filed a petition for certiorari (full text) with the U.S. Supreme Court in Evergreen Association, Inc. v. City of New York.  In the case, the 2nd Circuit upheld a portion of a New York City ordinance requiring pregnancy service centers to make certain disclosures to potential clients in waiting rooms, in advertisements and in telephone conversations.  The Second Circuit in its Jan. 17, 2014 opinion (full text) upheld (by a 2-1 vote) the requirement to disclose whether or not there is a licensed medical provider on staff. The circuit court unanimously struck down the requirements to disclose whether or not the center provides or refers out for abortion, emergency contraception and prenatal care, and a requirement to disclose that the New York health department encourages women who may be pregnant to consult a licensed medical provider.

Recent Prisoner Free Exercise Cases

In Hailes v. Collier, 2014 U.S. Dist. LEXIS 76127 (SD OH, June 3, 2014), an Ohio federal magistrate judge recommended dismissing a complaint by Seventh Day Adventist inmate that he was retaliated against for not reporting for snow removal duty on his Sabbath.

In Watts v. Allen, 2014 U.S. Dist. LEXIS 76402 (MD GA, June 5, 2014), a Georgia federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 76763, May 14, 2014) and dismissed an inmate's complaint that he is being denied a vegan diet.

In Parkell v. Morgan, 2014 U.S. Dist. LEXIS 76989 (D DE, June 6, 2014), a Delaware federal district court dismissed an inmate's complaint that he was denied a kosher diet.

In Mead v. Palmer, 2014 U.S. Dist. LEXIS 77011 (ND IA, June 6, 2014), an Iowa federal district court dismissed a complaint by plaintiff, an involuntarily committed patient at a civil commitment sexual offender unit, that he was not provided a Pentecostal minister to meet with.

In Williams v. Emmons, 2014 U.S. Dist. LEXIS 76528 (MD GA, June 5, 2014), a Georgia federal district court, rejecting in part a magistrate's recommendation (2014 U.S. Dist. LEXIS 77342, May 8, 2014), refused to permit a Muslim inmate to proceed with his claim for compensatory damages despite his weight loss and headaches stemming from the failure to provide him with vegan meals. The court concluded that plaintiff had not alleged more than de minimis physical injury as required by the Prison Litigation Reform Act. However the court permitted plaintiff to proceed with his claim for nominal damages.

Mexican Destination Wedding Using Internet-Ordained Clergy Did Not Create Lawful New York Marriage

In Ponorovskaya v. Stecklow, (NY County Sup. Ct., May 29, 2014), a New York state trial court dismissed a divorce action, finding that the parties were never legally married.  At issue was what the court described as:

a license-less marriage supposedly solemnized in what can only be described as a "pseudo-Jewish" wedding ceremony conducted at a Mexican beach resort by a New York dentist who became a Universal Life Church minister on the internet solely for the purpose of performing weddings for friends and relatives.

The wife who was suing for divorce claimed that even though the ceremony was invalid under Mexican law, the parties were still married because  New York Domestic Relations Law §25 provides in part:

Nothing in this article ... shall be construed to render void by reason of a failure to procure a marriage license  any  marriage  solemnized  between  persons of full age....

However the court held that "DRL § 25 should be construed to apply to weddings that take place outside of New York State only under the most extraordinary of circumstances."

The court went on to discuss, but not decide, whether the marriage was properly solemnized:

These provisions call into question whether a person like Dr. Arbeitman, the dentist/Universal Life Church minister who conducted the ceremony here, is a "clergyman" or "minister" under New York law and thus authorized to officiate at weddings.....

Whether the ULC is a church or not, and whatever its belief system may be, compared to other online "religions" that enable people to pay a small fee, obtain a certificate of ordination and then perform religious wedding ceremonies, it seems practically mainstream. There is, for instance, the Church of the Flying Spaghetti Monster, a religious group comprised of atheists, which, upon the payment of a $20 fee, will make an online applicant a "pastafarian minister." Then there is Dudeism, also referred to the Church of the Latter Day Dude, which portends to be a religious philosophy based on the protagonist in the Coen Brothers' cult classic The Big Lebowski. One can be ordained online for free and be authorized to perform weddings as a Dudeist Priest.

Fortunately, this court need not wade into the treacherous waters of attempting to determine what is a "real" religion and what is not, something that would seem to "necessarily involve an impermissible inquiry into religious doctrine or practice".... Given the finding that ... the parties' purported marriage is invalid because it was "an absolute nullity" under the law of the jurisdiction where it took place, it is not of great moment whether Dr. Arbeitman was legally entitled under New York law to solemnize the marriage. 

Egyptian Government Decree Bars Unapproved Imams From Preaching Publicly

Reuters reports that today the Egyptian government issued a decree allowing only state approved clerics to preach in mosques or other public places:

According to the decree, "only designated specialists at the Ministry of Religious Endowments and authorized preachers from al-Azhar shall be permitted to practice public preaching and religious lessons in mosques or similar public places."

Only al-Azhar officials and graduates as well preachers from the ministry or the grand mufti's office will be allowed to wear the trademark "turban" - a red hat with a white cloth band - and robes that designate an al-Azhar cleric, it said.

Unauthorized preachers face fines jail terms up to a year and fines up to 50,000 Egyptian pounds ($7,000). Wearing or denigrating al-Azhar garments in any way will carry similar penalties, it added.

The decree is another step in the government's attempt to prevent mosques from being used as recruiting grounds for Islamist political parties.

Wisconsin's Same-Sex Marriage Ban Struck Down; Marriages Begin Ahead of Motion To Stay Court's Order

Yesterday in Wolf v. Walker, (WD WI, June 6, 2014), a Wisconsin federal district court, in an 88-page opinion, struck down Wisconsin's ban on same-sex marriage. Judge Barbara Crabb wrote in part:

I conclude that the Wisconsin laws prohibiting marriage between same-sex couples interfere with plaintiffs’ right to marry, in violation of the due process clause, and discriminate against plaintiffs on the basis of sexual orientation, in violation of the equal protection clause.... To decide this case in favor of plaintiffs, it is not necessary, as some have suggested, to “cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools,”....  Rather, it is necessary to conclude only that the state may not intrude without adequate justification on certain fundamental decisions made by individuals and that, when the state does impose restrictions on these important matters, it must do so in an even-handed manner.

This case is not about whether marriages between same-sex couples are consistent or inconsistent with the teachings of a particular religion, whether such marriages are moral or immoral or whether they are something that should be encouraged or discouraged....  Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution.

 As reported by the Milwaukee Journal-Sentinel, the court's decision does not make clear whether counties may begin to immediately issue marriage licenses. The court declared the state constitutional and statutory provisions barring same-sex marriage unconstitutional and gave the parties until June 16 to submit proposed language for an injunction. The paper reports:

Dane County Clerk Scott McDonell, a Democrat, began issuing marriage licenses at 5 p.m. Friday as gay couples were married there throughout the night. He said state Department of Justice officials advised him not to issue the licenses but McDonell moved forward despite that.

Wisconsin Attorney General J.B. Van Hollen issued a news release announcing that he will file emergency motions in federal courts seeking a stay of the district court's order. Yesterday Van Hollen also issued a statement in a series of nine Tweets saying that his office will continue to defend the constitutionality of "our traditional marriage laws."

Another Temporary Stay For Same-Sex Couples Married In Utah During Gap Period

As previously reported, on May 19 in Evans v. Utah a Utah federal district court granted a preliminary injunction requiring the state to recognize same-sex marriages solemnized under Utah marriage licenses on the 17 days between a federal district court decision striking down Utah's ban  on same-sex marriages, and the U.S. Supreme Court's stay of that order. However the district court postponed the effectiveness of its order for 21 days to give the state time to decide how to proceed.  The 21-day period would expire on Monday.  Yesterday the Utah Attorney General's office announced that it has filed a notice of appeal and a request for a stay with the 10th Circuit in Evans.  In response, within hours, the 10th Circuit issued a temporary stay and ordered plaintiffs to respond by June 12 to the motion for a stay pending appeal. (AG office announcement.)

House-Passed Version of Defense Authorization Bill Impacts Chaplains, Religious Expression

The text of HR 4435, the "Howard P. ‘Buck’ McKeon National Defense Authorization Act for Fiscal Year 2015" as it passed the House of Representatives on May 22 is finally available online. The bill contains three provisions impacting military chaplains and religious expression by service members:

• Section 507 allows the Secretary of Defense to defer the retirement of a chaplain beyond age 68 if necessary for the needs of the military.
• Section 525 authorizes chaplains "called upon to lead a prayer outside of a religious service ... to close the prayer according to the traditions, expressions, and religious exercises of the endorsing faith group."
• Section 528 requires the Department of Defense to revise  Instruction 1300.17 (DOD's January 2014 policy on accommodation of religious practices-- see prior posting) "to ensure that verbal and written expressions of an individual’s religious beliefs are protected by the Department of Defense as an essential part of a the free exercise of religion by a member of the Armed Forces."  Section 528 also requires a similar revision in Air Force Instruction 1-1 (the Air Force's Aug. 2012 policy on free exercise and government neutrality-- see prior posting).

Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

In Valent v. Board of Review, Department of Labor, (NJ App., June 5, 2014), the New Jersey Superior Court Appellate Division held that a nurse employed by a hospital was entitled to unemployment compensation after she was fired for refusing to obtain a flu vaccination as required by the hospital's policy.  The hospital policy allowed exemptions for religious or medical reasons, however here the nurse's objections were based on secular non-medical concerns.  The court wrote in part:

By exempting employees who can produce religion-based documentation, the employer's flu vaccination policy is clearly not exclusively driven by health-related concerns. The Board cannot therefore accept the policy as a proper basis to find appellant committed an act of insubordination of sufficient magnitude to render her disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(b)....

The religion exemption merely discriminates against an employee's right to refuse to be vaccinated based only on purely secular reasons.  Our Supreme Court has clearly cautioned that "[g]overnment may not, under the First Amendment, prefer one religion over another or religion over non-religion but must remain neutral on both scores.".... Under these circumstances, by denying appellant's application to receive unemployment benefits based only on her unwillingness to submit to the employer's religion-based policy, the Board violated appellant's rights under the First Amendment.

AP reports on the decision.

Court Grants Preliminary Injunction To For-Profits and Non-Profits Challenging Required Contraceptive Coverage

In Catholic Benefits Association LCA v. Sebelius, (WD OK, June 4, 2014), an Oklahoma federal district court granted a preliminary injunction to prevent enforcement of the contraceptive coverage mandate against both non-profit and for-profit members of the Catholic Benefits Association, a third-party administrator of health insurance plans for Catholic employers. As to for-profit employers, the court was bound by the 10th Circuit's decision in Hobby Lobby.  Finding that the non-profit employers also suffered a substantial burden on their religious exercise by completing the opt-out form that results in contraceptive coverage directly from the third-party administrator, the court said in part:

the Court’s inquiry is focused upon how the plaintiffs themselves measure their degree of complicity in an immoral act, not whether a reasonable observer would consider the plaintiffs complicit in such an act....  Here, Plaintiffs sincerely believe that in executing the form and providing it to their issuers or TPAs, they play a central role in the provision of contraceptive services to their employees—something Plaintiffs find morally repugnant. This is where the Court’s inquiry ends, as it is not the Court’s role to say Plaintiffs’ religious beliefs are mistaken.

The court concluded, however, that as to the Archdioceses of Oklahoma City and of Baltimore, no substantial burden on religious exercise existed because they are totally exempt from the contraceptive coverage mandate. AP reports on the decision. (See prior related posting.)

Cert. Petition Filed In Challenge To Navy Chaplain Corps Procedures

The Rutherford Institute announced yesterday that it has filed a petition for certiorari (full text) in In re Navy Chaplaincy. In the long-running case, the D.C. Circuit Court of Appeals denied a preliminary injunction in a challenge to the Navy's procedures for promoting members of the Navy Chaplains Corps.  Petitioners argue that the current procedures favor Catholics and liturgical Protestants over various non-liturgical denominations.

Supreme Court Denies Stay In Oregon Same-Sex Marriage Case

In May, an Oregon federal district court struck down Oregon's ban on same-sex marriage. (See prior posting.) The state declined to appeal, but the National Organization for Marriage (NOM) has been seeking to intervene as a plaintiff so it can appeal the decision.  So far it has been unsuccessful.  Yesterday the U.S. Supreme Court, in a one-sentence order, denied NOM's request for a stay of the district court's order while NOM appeals the district court's denial of its motion to intervene. All the pleadings in the complex procedural battle by NOM are here. The Oregonian reports on the Supreme Court's action, as does SCOTUSblog.

Israel's Justice Minister Officiates At Same-Sex Jewish Wedding; Marriage Not Legally Recognized

In Israel yesterday, Justice Minister Tzipi Livni officiated at a same-sex wedding ceremony, even though the marriage will not be recognized by the Israeli government.  Jerusalem Post reports that Livni conducted the ceremony for Tsach Sa'ar, a former aide to a member of the Knesset, and Guy Arad, an attorney.  The ceremony used a traditional huppah (wedding canopy), and the traditional breaking of a glass by the groom used two glasses, one for each man to break. Posting pictures on her Facebook page, Livni wrote that the ceremony was not intended to be a provocation against Judaism, but instead respected Jewish tradition.  She added, "In our eyes, Judaism is open, accepting and respects all people who were created in God's image."

Baptist, Jewish Groups Join As Plaintiffs In Challenge To North Carolina Same-Sex Marriage Ban

The United Church of Christ announced today that two national religious bodies and a number of individual clergy have joined as plaintiffs in its lawsuit that contends that North Carolina law makes it a criminal offense for a member of the clergy to conduct a same-sex marriage ceremony.  This, they argue, infringes the free exercise and expressive associational rights of clergy whose religious teachings and beliefs embrace same-sex marriage.  The national groups joining the lawsuit are the Alliance of Baptists and the Central Conference of American Rabbis.

In Modified Opinion, Court Dismisses Some Diocesan Contraceptive Coverage Claims

In Roman Catholic Archdiocese of Atlanta v. Sebelius, (ND GA, May 30, 2014), a Georgia federal district court in part granted the government's motion to reconsider its March 26 decision.  That decision, invoking RFRA, had  permanently enjoined the government from requiring Catholic Education of North Georgia and Atlanta Catholic Charities to comply with the self-certification requirements to opt out of contraceptive coverage.  In that decision, the court refused on mootness grounds to grant summary judgment to the Atlanta Archdiocese and the Savannah Diocese because they are totally exempt from the contraceptive coverage mandate.  In its May 30 opinion, the court completely dismissed these claims by the Diocesan plaintiffs, as well as dismissing the non-RFRA claims by all the plaintiffs.  The court however refused to reconsider its conclusion that the health plans involved are "church plans" under ERISA.

7th Circuit Hears Oral Arguments On Several Milwaukee Archdiocese Bankruptcy Issues

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in two cases relating to the Archdiocese of Milwaukee. The first is Official Committee of Unsecured Creditors v. Listecki (audio of oral argument). It involves a number of complex legal issues growing out of a trial court decision that $50 million in a cemetery perpetual care trust fund is unavailable to creditors, including abuse victims, in the Archdiocese's bankruptcy reorganization. (See prior posting.) Among other issues is the question of whether RFRA can be raised as a defense to action taken by a Creditors' Committee in bankruptcy.  The case on appeal also involves the refusal of the trial court judge to recuse himself in the case. (See prior posting.)

The second case is Doe v. Archdiocese of Milwaukee (audio of oral argument). It involves the question of whether the bankruptcy court was correct in dismissing the claim of a sexual abuse victim who had signed a settlement agreement with the Archdiocese after mediation.  The victim contends that he was fraudulently induced to sign the agreement.  Milwaukee Journal Sentinel reports on yesterday's arguments.

Supreme Court Denies Review In Murfreesboro Mosque Case

The U.S. Supreme Court today denied certiorari in Fisher v. Rutherford County Regional Planning Commission, (Docket No. 13-1214, cert. denied, 6/2/2014). (Order List).  In the case, a Tennessee Court of Appeals reversed a trial court's holding that Rutherford County had given inadequate public notice of a meeting which approved the site plan for the controversial Murfreesboro mosque. (See prior posting.) The Tennessee Supreme Court denied review. The first portion of the planned Islamic center was completed and occupied in August 2012. Today's Tennessean has more details.

Government Says There Is No Controversy In Unusual Contraceptive Mandate Case

An unusual lawsuit involving the Affordable Care Act contraceptive coverage mandate was filed in April by Media Research Center (MRC) with little notice given to it, at least until a May 15 press release. MRC is the parent of CNSNews. In dozens of other cases, religious non-profits have sued objecting to the requirement that they complete the self-certification form to opt out that will lead to contraceptive coverage being furnished directly by the insurer or third-party administrator. The complaint (full text) in Media Research Center v. Sebelius, (ED VA, April 11, 2014), on the other hand, alleges that plaintiff has filed the self-certification form and has sought assurance from the government that it qualifies as an "eligible organization" entitled to avail itself of the opt out. It alleges that the government has refused to provide such assurance, and asks the court to issue a declaratory judgment that Media Research Center is an "eligible organization".

Then in a second count, it seeks an injunction against enforcement of the mandate and a declaratory judgement that the regulations allowing religious non-profits to opt out violates the Establishment Clause:

89. Determining which entities qualify as "religious employers" or "eligible organizations" requires the Government to determine (1) whether the organization truly seeks to inculcate "religious values," (2) whether an objection to the Contraception Mandate is truly "religious", and (3) whether an entity truly holds itself out as a "religious" organization.

90. The Contraception Mandate thus makes the Government the arbiter of which organizations are, or are not, sufficiently "religious" to qualify for exceptions to the Contraception mandate.

91. This entails an unconstitutionally invasive inquiry into an organization's religious purpose, beliefs, and practices.

92. Furthermore, the regulations are framed to value the activities of traditional religious groups (e.g, churches, ministries, and proselytizing organizations) more highly than non-traditional religious organizations (like MRC, which defends traditional American Judeo-Christian beliefs by exposing the hypocrisies and fallacies of media attacks on those beliefs).

The government in its Memorandum In Opposition (May 23, 2014) (full text) argues that there is no controversy present:

There is no dispute that MRC has determined that it is eligible for an accommodation and has executed the self-certification. There is also no dispute that MRC has now done everything that the regulations require in order to avail itself of an accommodation. Defendants have not disputed MRC’s status as an eligible organization, and have not suggested that they have any intent or reason to do so in the future. In fact, there is no dispute of any kind relevant to the instant motion....

Qualification for an accommodation depends on a self-certification—it does not require the government to make any determination at all. Nothing in the regulations or elsewhere suggests that defendants will undertake any sort of inquiry regarding MRC’s determination. Indeed, defendants refused to make a definitive pronouncement on MRC’s eligibility for an accommodation in this case because the government cannot possibly be in the business of making the type of individualized determination that MRC seeks for every potentially eligible organization. To agree to do so here would be to open the floodgates for such requests, which could quickly overwhelm defendants’ resources.

Recent Articles of Interest

From SSRN:

• Jeffrey A. Redding, Marriage ≠ Marriage: Querying the Relevance of Equality to the Interstate Recognition of Same-Sex Relationships, (University of Miami Law Review, Forthcoming).
• D. Brian Dennison, Faith Frieda Letacie & Heather M. Pate, Confronting Child Sacrifice in Uganda: A Multi-Layered View, (Kabarak University Law Review, Forthcoming).
• Kevin J. Murphy, Administering the Ministerial Exception Post-Hosanna-Tabor: Why Contract Claims Should Not Be Barred, (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 28, No. 1, 2014).
• Brian D. Galle, How Do Nonprofit Firms Respond to Tax Policy?, (May 29, 2014).

From SmartCILP:

• Elizabeth A. Clark, Liberalism In Decline: Legislative Trends Limiting Religious Freedom In Russia and Central Asia, 22 Transnational Law & Contemporary Problems 297-342 (2013).

Fired Principal of Seventh Day Adventist School Can Pursue Her Claim

In Galetti v. Reeve, (NM App., May 28, 2014), the New Mexico Court of Appeals held that the church autonomy doctrine does not require dismissal at this time of a damage claim by a former principal and teacher at a Seventh Day Adventist school who was fired from her position. Plaintiff claims that she was harassed by by her supervisor and was fired in retaliation for filling a complaint about it. The court held that the trial court erred in dismissing her breach of contract, retaliatory discharge, intentional interference with contract, civil conspiracy, and defamation claims, saying:

The First Amendment does not immunize every legal claim against a religious institution or its members, but only those claims that are rooted in religious belief.

It added that if later it becomes apparent that any of the claims turn on matters of doctrine or church governance, summary judgment may be proper then.

Colorado Civil Rights Commission Affirms Initial Decision In Gay Wedding Cake Case

According to the Denver Post, the Colorado Civil Rights Commission on Friday affirmed the Initial Decision of an administrative law judge in Craig v. Masterpiece Cake Shop. The initial decision rejected free speech and free exercise claims, and held that a bakery and its owner illegally discriminated against a same-sex couple on the basis of sexual orientation in refusing to sell them a wedding cake. (See prior posting.)  To prevent future discrimination, in Friday's decision the Commission required bakery owner Jack Phillips to submit quarterly reports for two years on steps taken to change company policies and train employees. The bakery must also disclose the names of any clients who are turned away. [Thanks to Tom Rutledge for the lead.]

Recent Prisoner Free Exercise Cases

In Funtanilla v. Williams, 2014 U.S. Dist. LEXIS 71354 (ED CA, May 22, 2014), a California federal magistrate judge allowed a Seventh Day Adventist inmate housed at a substance abuse treatment center to move forward against most of the defendants with his complaint that he was not permitted to place a copy of the Ten Commandments above his door, get his meals for the Sabbath ahead of time or delivered, and attend worship services.

In Rivera v. Michigan Department of Corrections, 2014 U.S. Dist. LEXIS 72325 (WD MI, May 28, 2014), a Michigan federal district court permitted Moorish Science inmate to proceed against certain of the defendants for an injunction to require recognition of  Moorish Science Temple of America-1928 as a separate religious group from Moorish Science Temple of America, Inc., (1934 Portion).

In Smart v. Aramark Inc., 2014 U.S. Dist. LEXIS 73106 (D NJ, May 29, 2014), a New Jersey federal district court dismissed an inmate’s complaint that prison rules requiring inmates who work in the kitchen to shave their facial hair discriminates against Muslim, Jewish and Christian inmates who wear beards for religious reasons.

In Free v. Ellis, 2014 U.S. Dist. LEXIS 73118 (D NJ, May 29, 2014), a New Jersey federal district court dismissed without prejudice an inmate’s claim that he was not allowed to attend religious services for a 15-month period.