Religion Clause

Friday, August 22, 2014

Summary Contempt Finding For Wearing Religious Head Covering Reversed

Without reaching the free exercise issue, in State of New Jersey v, Graham, (NJ App., Aug. 12, 2014), the New Jersey Superior Court Appellate Division held that a municipal court judge acted improperly in summarily holding a defendant facing a disorderly persons charge in contempt. As explained by an ACLU press release:

When Matthew Graham went before Egg Harbor City Municipal Judge William Cappuccio in Oct. 2013, the judge held Graham in contempt for not removing his hat, despite Graham’s explanation that he wore it for religious purposes. When Judge Cappuccio stated that he knew of no religion that required the wearing of a “ski cap,” Graham attempted to explain that he lacked the funds to travel to the store where he could purchase a more traditional religious cap.

On apppeal (after a battle over indigency status of the defendant), the appeals court in a brief order said:

We do not beleive that wearing of what the municipal judge called a "ski cap" during the proceeding, compelled invocation of the extraordinary judicial contempt powers to summarily adjudicate a defendant's conduct. A contempt proceeding on notice and an order to show cause was available to deal effectively with defendant's conduct, if warranted.

The ACLU's brief discusses the 1st Amendment issues involved.

Trial Court Strikes Down North Carolina School Voucher Program

In North Carolina yesterday, a state trial court judge struck down on state constitutional grounds North Carolina's Opportunity Scholarship program. As reported by Reuters, Judge Robert Hobgood ruled that the voucher program diverts funds which can constitutionally be used only for public schools. Also some of the funding is going to schools that discriminate on the basis of religion. A 22-minute video of the judge reading his ruling is available online. The written opinion does not appear to yet be available. Supporters of the program as well as the state's Attorney General plan to appeal. Previously the state had attempted to speed up awards of scholarship funds under the program to beat Judge Hobgood's decision. (See prior posting.) However, according to the Raleigh News & Observer:

The state agency in charge of administering the program had tried to disburse the first round of funds last week, but a technical glitch prevented the payments from going through, said Elizabeth McDuffie, director of grants, training and research at the agency.

The process was launched again starting on Monday with the goal of getting funds at the private schools by the end of this week.

When Hobgood ruled Thursday morning, the disbursement was halted. “No money has left the building,” McDuffie said.

UPDATE: A transcript of Judge Hobgood's ruling from the bench is now avaiable.

Dispute Over Suspension of Methodist Bishop Dismissed As Ecclesiastical Dispute

In Clark v. Moore, (SC Sup. Ct., Aug. 20 2014), the South Carolina Supreme Court in an unpublished (i.e. non-precedential) decision dismissed a suit growing out of a dispute between the Bishop of the Reformed Methodist Union Episcopal Church (RMUE) and the Church's General Officers. The General Officers suspended Moore as bishop after finding that he had stolen Church funds. Bishop Moore disputed their authority, removed the General Officers and cancelled the election for bishop that had been scheduled. The Court dismissed the suit because it is "an ongoing ecclesiastical dispute which cannot be resolved by neutral principles of law." Chief Justice Tole filed a concurring opinion urging that the case be remanded to the lower court for further factual findings on which party is the highest decision-making body of the RMUE so that the Court could then defer to its decision.

Settlement In Black Mass Lawsuit, But Event Will Go On Using Black Bread

Apparently there has been a settlement of sorts in the lawsuit filed two days ago by the Archbishop of Oklahoma City to obtain return of communion wafers that a Satanic group was going to use in a "Black Mass." (See prior posting.) According to VICE News yesterday, after the court quicly issued a temporary restraining order prohibiting defendant Adam Daniels or anyone under his control from concealing, damaging or destroying the wafers or removing them from the county, Daniels gave the wafers to his lawyer and then agreed to hand them over to the Archdiocese in exchange for the suit being dropped. Daniels said that he had obtained the wafers from a priest in Turkey. Daniels plans to go ahead with the Sept. 21 Black Mass, but will now use the traditional coarse black bread used in Satanic rituals.

Thursday, August 21, 2014

5th Circuit: Interior's Eagle Feather Rules Violate RFRA

In McAllen Grace Brethren Church v. Salazar, (5th Cir., Aug. 20, 2014), the U.S. 5th Circuit Court of Appeals held that the Department of Interior had not sufficiently shown that its policy of limiting permits for the possession of eagle feathers to members of federally recognized tribes meets the strict scrutiny requiremnts of the Religious Freedom Restoration Act. The regulations were adopted in order to enforce the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. At isssue was the use of eagle feathers at a powwow by a member of the Lipan Apaches which is not a federally recognized tribe. The court concluded that even if the government has a compelling interest in protecting eagles and furthering its relationship with federally recognized tribes, "the Department has not sufficiently demonstrated at this stage of the proceedings that the current regulatory framework is the least restrictive means of achieving its goals." Reuters reports on the decision.

A Note To Religion Clause Readers

A Note to Religion Clause Reders:

The corollary to this famous New Yorker cartoon by Peter Steiner is that on the Internet nobody knows where you are located either. So I wanted to let readers know that this week I am moving from Atlanta to the Detroit, Michigan area. I know there are a number of Religion Clause readers in Michigan, and I look forward to perhaps our crossing paths as I emigrate back North. In the meantime, blogging on Religion Clause over the next week is likely to be spotty. Other than that, the blog will continue to look the same.-- HMF

Pennsylvania Diocese Gets Permanent Injunction Against ACA Contraceptive Mandate

In Brandt v. Burwell, (WD PA, Aug. 20, 2014), a Pennsylvania federal district court issued a permanent injunction under RFRA against requiring the Diocese of Greensburg, Pennsylvania and affiliated organizations to comply with the compromise rules under the Affordable Care Act contraceptive coverage mandate. In its 53-page opinion, the court said in part:

Here, the issue is whether Plaintiffs, being non-secular in nature, have successfully proven that their right to freely exercise their religion under RFRA has been substantially burdened by the “accommodation,” which requires the Bishop of Greensburg (or his designees) to sign a form (EBSA Form 700) that thereby facilitates/initiates the provision of contraceptive products, services, and counseling. Based upon the evidence of record as set forth in the Court’s factual findings, this Court concludes that the accommodation substantially burdens Plaintiffs’right to freely exercise their religion.

Trib Total Meida reports on the decision. The court had previously issued a preliminary injunction in the case. (See prior posting.)

Archbishop's Suit Seeks Return of Consecrated Host Taken By Organizers Of Black Mass

The Catholic Archbishop of Oklahoma City filed an unusual lawsuit yesterday in an effort to stop a satanic "Black Mass" ritual scheduled to be held at the Oklahoma City Civic Center on Sept. 21. The complaint (full text) in Coakley v. Daniels, (OK County Dist. Ct., filed 8/20/2014), seeks replevin (recovery of possession) of a Consecrated Host that was wrongfully retained by defendants Adam Daniels and his church, Dakhma of Angra Mainyu Syndicate, for use in their planned Black Mass ceremony. According to the complaint, the Consecrated Host is a wafer "that has undergone the transubstantiation and is now the body and blood of Jesus Christ." Defendants, it is contended, intend to desecrate the host during the ceremony by corrupting it with sexual fluids and stomping on it. According to CNHI News Service, as well as a statement from the Archbishop, both Catholics and Protestants have criticized the planned mockery of Catholic beliefs and have called for the Civic Center to cancel the event.

EEOC Sues Over Food Market's Refusal To Accommodate Jehovah's Witness

The EEOC yesterday announced the filing of a lawsuit against the supermarket chain Food Lion for its refusal to accommodate the religious needs of a Jehovah's Witness minister and elder employed as a meat cutter in one of the food chain's North Carolina stores. The company originally agreed to accommodate Victaurius Bailey's request not to work on Thursday nights or Sundays so that he could attend church services and religious meetings. However when Bailey was transfered to a different store, he was fired for refusing to work on Sundays.

Supreme Court Issues Stay In Virginia Same-Sex Marriage Case

Yesterday the U.S. Supreme Court issued an order (full text) in McQuigg v. Bostic, staying the U.S. 4th Circuit Court of Appeals order that invalidated Virginia's ban on same-sex marriage. (See prior posting.) The order delays the 4th Circuit's mandate until a petition for Supreme Court review is disposed of. SCOTUS Blog reports on the stay..

Wednesday, August 20, 2014

9th Circuit: State Can Require Care Workers To Accompany Disabled Clients To Religious Services

In Williams v. State of California, (9th Cir., Aug. 19, 2014), the U.S. 9th Circuit Court of Appeals adopted the district court's opinion in concluding that the rights of two residential care facilities and their employees were not infringed when, under state law, employees were required to personally accompany a developmentally disabled client to attend Jehovah’s Witness services. The court rejected the argument that this infringed free exercise rights and the establishment clause by requiring Catholic employees to violate their religious beliefs by attending non-Catholic religious services. Courthouse News Service reports on the decision.

Amish Lose In Suit Forcing Them To Obtain Building Permits

WQOW reported yesterday that an Eau Claire County, Wisconsin trial judge has ruled in two of the six pending cases against Old Order Amish families, requiring them to obtain building and sanitary permits for their houses. If the families do not apply for the permits within 30 days, they will be required to leave their houses. In oder to otain the permits, the Amish would have to install smoke and carbon monoxide detectors, but their religious beliefs do not allow them to own electronic devices or plug into the public grid.

India's Former Prime Minister Immune In U.S. Courts As To Some Charges Of Participation In Killing of Sikhs

In Sikhs For Justice v. Singh,(D DC, Aug. 19, 2014), the D.C. federal district court dismissed on immunity grounds most, but not all of the claims against India's former Prime Minister for his role in the torture and killing of Indian Sikhs. The court summaried its decision:

Defendant Manmohan Singh was, until very recently, the Prime Minister of India. Plaintiffs ... have brought this suit alleging that the former Prime Minister tortured and killed Indian Sikhs during his time at the helm of that country’s government and, before then, as Finance Minister. The United States, a non-party in this litigation, has filed a Suggestion of Immunity claiming that Singh, as the sitting Prime Minister, is entitled to head-of-state immunity. Although at the time of that filing, Singh was indeed Prime Minister, he left office three weeks later. Plaintiffs, consequently, counter that Singh is no longer entitled to such immunity. They are only partly correct. Although he is no longer a head of state, Singh is entitled to residual immunity for acts taken in his official capacity as Prime Minister. Because such residual immunity does not cover actions Singh pursued before taking office, however, the allegations stemming from his time as Finance Minister survive.

Reuters reports on the decision and has more on the substantive allegations in the case.

Court Reverses Divorce Order Barring Father From Disparaging Mother's Catholic Religion

In Pierson v. Pierson, (FL App., Aug. 18, 2014), a Florida appellate court reversed the portion of a trial court's order which, in granting a dissolution of a marriage, prohibited the father "from doing anything in front of ... or around the children that disparages or conflicts with the Catholic religion." During the marriage the three children had been raised in the mother's Catholic faith, but while the parties were separated the father became a Jehovah's Witness. One of the children, during a third-grade Catholic Sunday school class, told the teacher and students that their Bible and music were wrong, their priests were bad, and he was going to grow up to be a Jehovah's Witness minister. The appeals court concluded, however, that "the evidence did not establish the harm necessary to award the mother ultimate religious decision-making authority...."

Interlocutory Bankruptcy Court Order On Recovering Donations To Church Not Appealable

In re Nichols, (D MD, Aug. 15, 2014), is an action by the trustee for the bankruptcy estate of Lynette Tawana Nichols seeking to recover from God's Universal Kingdom Christian Church over $93,000 in contributions the church received from Nichols in the three years preceding her filing for bankruptcy. Nichols was president of the church, and the contributions greatly exceeded those she made in prior years. The trustee claimed these were fraudulent conveyances that could be recovered for the benefit of Nichols' creditors. The church argued that the claim was barred by the Religious Freedom Restoration Act, but the bankruptcy court issued an interlocutory order refusing to dismiss the trustee's claim. It cited the subsequently enacted Religious Liberty and Charitable Donations Act of 1998 (RLCDA) that validates in bankruptcy good faith contributions under 15% of gross income or larger contribtuions that are similar to those a debtor made in past years. The bankruptcy court concluded that, subject to those protections, the trustee's claim could proceed.

The present opinion involves a motion by the church to appeal the bankruptcy court's interlocutory order to the district court. However appeal of a bankruptcy court's interlocutory order-- as opposed to an appeal once a final judgment is entered-- is available only if there is a difference of opinion among courts on a controlling issue of law. The district court concluded that there is no controversy among courts because there is no case law indicating that application of the RLCDA violates RFRA. Thus an immeidate appeal of the interlocutory order is not appropriate.

Tuesday, August 19, 2014

Canadian "Pastafarian" Sues To Wear Pirate Bandana For License Photo

CJAD News today reports on a lawsuit in Canada in which a woman who says she is a member of the Church of the Flying Spaghetti Monster is seeking the right to wear a pirate bandana for her driver's license photo. Isabelle Narayana, a "Pastafarian," is suing the Quebec Auto Insurance Board claiming that its denial infringes her religious freedom in violation of Canada's Charter of Rights and Freedoms.The Montreal resident's license expired in March and she may lose her job if she cannot renew it.

Sides View Navy's Policy On Gideon Bibles In Starkly Contrasting Terms

Since June, a dispute has been simmering over the practice by some hotels on Naval Bases of accepting Gideon Bibles for placement in Navy Lodge guest rooms. It is interesting to compare reports by the two sides on developments. Here are excerpts from an Aug. 15 release by Freedom From Religion Foundation:

The Navy Exchange Service Command (NEXCOM) issued a quiet directive on June 19 in response to a complaint by FFRF, ordering removal of religious material from Navy-run lodges by Sept. 1.....

Yesterday (Aug. 14), it was reported that the Navy had temporarily caved and ordered the return of the bibles to hotel rooms while it reviewed its policy. Theocrats are loudly declaring victory in an effort to silence the objections of the nonreligious.

The Religious Right has orchestrated a media frenzy to intimidate the Navy into maintaining its illegal policy of providing bibles in all Navy-run hotel rooms. FFRF needs your help now to give the Navy some backbone. The Navy needs to hear from the one in five who are nonreligious and those who honor the constitutional wall of separation between state and church.

And here are excerpts from an Aug. 15 report on the same situation from Fox News:

A Navy spokesman confirms that Bibles will be returned to base lodges, and they’ve also launched an investigation to determine why God’s Word was removed from guest rooms in the first place.

Navy Exchange, which runs the base lodges, sent a directive out in June ordering the Bibles removed, after the Freedom From Religion Foundation filed a complaint. The atheist group alleged the books were a violation of the U.S. Constitution....

Navy spokesman Ryan Perry said the decision was made without their knowledge.... During the review process, Perry said the “religious materials” that were removed will be returned.

The Bibles had been donated to the Navy by Gideons International... Tim Wildmon, of the American Family Association ... [said]: “We must be alert to what the secularists are doing inside the military.... But this reversal proves that those who believe in religious freedom can make a difference when we take action.”

Group Issues Election Guides Designed To Respect Diversity and Church-State Separation

Interfaith Alliance yesterday announced the release of 3 publications for the 2014 election season, each designed to respect religious diversity and church-state constratints. The publications, aimed at candidates, houses of worship and voters, are: Running for Office in A Multifaith Nation; A Campaign Season Guide for Houses of Worship; and Five Questions for Candidates on the Role of Religion in American Public Life. Interfaith Alliance also announced a website that can be used by members of the public to report candidates' abuse of religion on the campaign trail. The site allows individuals to "Submit An Eye On The Election Report."

Monday, August 18, 2014

Groups Ask White House To End Anti-Muslim Training Material In Federal Agencies

Last week, a coalition of 75 religious and civil rights groups sent a letter (full text) to the White House asking it to " to take immediate action to end the use of anti-Muslim training materials and address anti-Muslim conduct exhibited by agencies throughout the federal government." The Aug. 14 letter to Lisa Monaco, President Obama's advisor on homeland security and counterterrorism, cites especially the findings in a July 9, 2014 article in The Intercept.

Religious Non-Profit College Wins Attack on Contraceptive Mandate Compromise

In Louisiana College v. Sebelius, (WD LA, Aug. 13, 2014), a Louisiana federal district court granted summary judgment to Louisiana College on its claim that its rights under RFRA are infringed by the Affordable Care Act contraceptive coverage accommodation for religious non-profits. The college is affiliated with the Southern Baptist Convention, and offers it employees a self-insured plan through a third party administrator that is also an SBC affiliate. The court held that the requirement that plaintiff self-certify its objections, or else incur onerous penalties, creates a substantial burden on its free exercise because of its religious objections to facilitating access to contraceptive methods it deem abortifacients. The government failed to show that the compromise was the least restrictive means to achieve a compelling governmental interest. The Shreveport Times reports on the decision.

Sunday, August 17, 2014

Recent Prisoner Free Exercise Cases

In Haight v. Thompson, (6th Cir., Aug. 15, 2014), the 6th Circuit remanded, finding triable issues of fact, claims by Native American inmates that they should have access to a sweat lodge, and should have buffalo meat at their once a year powwow. The 6th Circuit held, however, that money damages are not recoverable under RLUIPA in suits against officials in their individual capaicites. (AP has more on the decision.)

In Williams v. King, 2014 U.S. Dist. LEXIS 110757 (SD NY, Aug. 11, 2014), a New York federal district court allowed a Shiite Muslim inmate to proceed with some of his free exercise and equal protection claims alleging that the penal facility's Muslim chaplain, a Sunni, discriminated agiast Shiites by allowing Muslim inmates to pray and fast only for the last two days of Muharram (the Sunni custom) rather than for the full ten days (the Sunni custom).

In Howard v. Webster, 2014 U.S. Dist. LEXIS 111301 (ED WI, Aug. 12, 2014), a Wisconsin federal magistrate judge permitted a Buddhist inmate to proceed with his complaint that Christianity was promoted in various ways in the prison: a painting of Jesus in the library, religious messages in hygiene bags, and Christian music piped through a TV channel. He also could move ahead with a complaint that he was not allowed to possess a necklace with an emblem of Buddha.

In Jones v. Nevin, 2014 U.S. Dist. LEXIS 111576 (D NV, Aug. 11, 2014), a Nevada federal district court dismissed a Jewish inmate's complaint that he did not have access to kosher meals and, instead, had only the common fare menu thast is so distasteful as to discourage inmates from practicing Judaism.

In Diaz v. Kessler, 2014 U.S. Dist. LEXIS 112357 (ND CA, Aug. 12, 2014), a California federal district court permitted an inmate to proceed with his claim that his Jewish religious service was terminated on one occassion in retaliation for his objections to the way other complaints were handled.

In Wortham v. Lantz, 2014 U.S. Dist. LEXIS 112487 (D CT, Aut. 13, 2014), a Connecticut federal district court dismissed a Hebrew Isrelite inmate's complaints that the common fare vegetarian diet did not satisfy his religious needs because it did not include kosher meat, as well as his complaints about not being able to purchase oils from outside vendors or purchase various other religious items.

In Harvey v. Segura, 2014 U.S. Dist. LEXIS 112877 (D CO, Aug. 14, 2014), a Colorado federal district court dismissed on qualified immunity grounds a Muslim inmate's religious objections to a strip search by a female officer, but permitted plaintiff to move ahead with his challenge to the confiscation of his kufi and his claim for punitive damages.

In Depaola v. Virginia Department of Corrections, 2014 U.S. Dist. LEXIS 112585 (WD VA, Aug. 12, 2014), a Virginia federal district court dismissed a Nation of Islam inmate's complaint that the prison's common fare diet does not meet his religious dietary needs.

Saturday, August 16, 2014

2nd Circuit: NYC Ritual Circumcision Informed Consent Rule Is Subject To Strict Scrutiny Analysis

In Central Rabbinical Congress of the United States & Canada v. New York City Department of Health & Mental Hygiene, (2d Cir., Aug. 15, 2014), the U.S. 2nd Circuit Court of Appeals reversed the district court's denial of a preliminary injunction against New York City's informed consent regulations governing metzitzah b’peh, a method of ritual circumcision used by some Orthodox Jewish mohels. (See prior posting.) The regulation, concerned about the possible spread of herpes, requires signed written consent from a parent before direct oral suction may be used in any circumcision. The Second Circuit disagreed with the district court's conclusion that the regulation is neutral and generally applicable and is thus subject only to rational basis scrutiny. The appellate court remanded for the district court to now rule on the likelihood of success on the merits using strict scrutiny, but added:

Acknowledging the weighty interests at stake in this litigation (the plaintiffs’ in the free exercise of their faith and the Department’s in the health of newborns and in informed parental consent concerning risks these newborns face), we express no view as to whether plaintiffs have satisfied this [strict scrutiny] standard, believing that careful adjudication will benefit in the first instance from the district court’s comprehensive analysis.

Reuters reports on the decision.

Appeals Court Reverses Dismissal of Negligence Suit Against Hospital Chaplain

In Lefkowitz v. Skokie Hospital, (IL App., July 25, 2014), an Illinois appellate court reversed a trial court's dismissal of a suit by an Orthodox Jewish man, Moshe Lefkowitz, who alleges that Skokie Hospital's Jewish chaplain was negligent in failing to prevent his amputated leg from being incinerated. Orthodox Jewish beliefs require amputated body parts to be preserved or buried so that they can eventually be buried with the individual from whom they came. The appeals court said that there was a question of whether the forms Lefkowitz signed consenting to the hospital's disposal of his amputated leg were effective since Lefkowitz was blind and did not read them. The Chicago Tribune, in an article appearing in tomorrow's edition, discusses the case and also points out that Lefkowitz is a defendant in an unrelated criminal case charging him, his father (a rabbi), and his brother with stealing $10,000 in donations from a North Shore synagogue.

Church Sues JPMorgan For $13 Million In Losses From Bad Trust Investments

This week, Christ Church, an Episcopal Church in Indianapolis, Indiana, filed suit against JP Morgan Chase alleging mishandling of the church's $35 million trust whose assets came originally from gifts from Eli Lilly, Jr. The complaint (full text) in Rector, Wardens and Vestrymen of Christ Church Cathedral of Indianapolis v. JPMorgan Chase & Co., (SD IN, filed 8/13/2014), alleges that securities law violations, fraud and breach of trust led to losses of $13 million from 2004-2013. It claims that defendants selected "high-risk, high-cost, opaque, unsuitable and poorly performing investments in order to further their own financial interests to the detriment of Christ Church." BNA Daily Report for Executives [subscription required] reports on the lawsuit.

Friday, August 15, 2014

Britain's Equality Commission Seeks Public Inupt On Religion and Belief Issues

Britain's Equality and Human Rights Commission yesterday called for input from the public as part of its three-year project to strengthen the understaning of religion and belief in public life. Yesterday's EHRC Release reads in part:

The Equality and Human Rights Commission has today launched a major call for evidence from individuals and organisations about how their religion or belief, or that of other people, may have affected their experiences in the workplace and in using the services and facilities they need in everyday life. People can give their feedback at www.equalityhumanrights.com/religion.

The Commission wants to gather as much information as possible from members of the public, employers, providers of services, legal advisors and religion or belief organisations. This will be used to assess how employers and service providers are taking religion or belief into account and the impact this has on individuals. The work covers all faiths and beliefs and experiences in England, Scotland and Wales. We want to hear about the issues people face and how they find solutions. The Commission will also use the evidence as part of its work looking at how effective the current legislation is proving in practice.

In Tennessee, A Rare Win For Opponents of Same-Sex Marriage

In the face of a long string of federal cases in recent months striking down state laws that bar recognition of same-sex marriage, the opponents of same-sex marriage last week realized a rare victory. In Borman v. Pyles-Borman, (TN Cir. Ct., Aug. 5, 2014), a Tennessee state trial court upheld Tennessee's ban on recognizing same-sex marriages performed in other states. The decision comes in a divorce case involving a same-sex couple legally married in Iowa, but now residing in Tennessee. A Tennessee court presumably cannot grant a divorce unless the marriage is first recognized in the state.

In upholding Tennessee's anti-recognition law against an equal protection challenge, the court wrote in part:

In the Windsor case the Supreme Court opines that if a state finds same-sex marriage to be valid, the Federal Government cannot trump that State's law. The Supreme Court does not go the fmal step and fmd that a State that defines marriages as a union of one (1) man and one (l) woman is unconstitutional. Further, the Supreme Court does not find that one State's refusal to accept as valid another States valid same-sex marriage to be in violation of the U.S. Constitution....

The Court finds that marriage is·a fundamental right. However, neither the Tennessee Supreme Court nor the United States Supreme Court has ever decided that this fundamental right under a state's laws extends beyond the traditional definition of marriage as a union between one (1) man and one (1) woman.... The Legislative Branch of Tennessee and the voters of Tennessee have said that the definition of marriage should be as it always has been.....

The court then adopts language from the state's brief in finding a rational basis for the state's traditional definition.

Moving to the full-faith-and-credit challenge, the court concludes:

The laws of Iowa concerning same sex marriage is so diametrically opposed to Tennessee's laws, and Tennessee's own legitimate public policy concerning same-sex marriage, that Tennessee is not required by the U.S. Constitution to give full faith and credit to a valid marriage of a same-sex couple in Iowa.

Yesterday Liberty Counsel issued a press release announcing the decision. Earlier this month, the U.S. 6th Circuit Court of Appeals heard oral arguments in a separate challenge to Tennesseee's marriage recognition laws. (See prior posting.)

Canadian Rival FLDS Leaders Indicted For Polygamy

In Canada yesterday, the Criminal Justice Branch of the British Columbia Minstry of Justice announced that indictments charging polygamy have been filed against the leaders of two rival Bountiful, BC sects of the Fundamentalist Latter Day Saints. The indictments charge that Winston Blackmore practiced a form of polygamy with 24 women, while James Oler is charged with having polygamous unions with four women. Tgey are also charged with unlawful removal of a child from Canada. National Post has more on the indictments. In 2011, atrial court upheld the constituitonality of British Columbia's anti-polygamy laws. (See prior posting.)

NY Farm Fined For Denying Its Wedding Facilities For Same-Sex Wedding

In McCarthy v. Liberty Ridge Farm, LLC, (NY Div. Human Rights, Aug. 8, 2014), the New York State Divsion of Human Rights levied a $10,000 civil fine and awarded compensatory damages of $3,000 in a proceeding against a farm that adversises itself as a venue for weddings, but which refused to contract with the two women complainants for them to use the facilities for their same-sex wedding. The Division held that the discrimination violated the public accommodation provisions of the New York Human Rights Law. Respondents were also required to take steps to prevent future discrimination. The Albany Times-Union reported on the decision.

Thursday, August 14, 2014

Leonard Fine, 80, Dies

Leonard Fine, a giant in the field of religion, public policy and social justice, died today at the age of 80. The Forward, for whom he was a long-time columnist, reported on his death. Fine was a co-founder of Moment Magazine, founder of MAZON and of the National Jewish Coalition for Literacy.

4th Circuit Refuses Stay In Invalidation of Virginia's Same-Sex Marriage Ban

By a 2-1 vote yesterday, the U.S. 4th Circuit Court of Appeals issued an Order (full text) in Bostic v. Schaeffer refusing to delay the mandate in its decision last month invalidating Virginia's ban on same-sex marriage. (See prior posting.) SCOTUSblog reports that attorneys representing the county clerk who is defending the same-sex marriage ban on appeal say they will seek a stay from the Supreme Court before the 4th Circuit's mandate takes effect next Wednesday. A petition for certiorari has already been filed seeking Supreme Court review of the underlying decision. (See prior posting.) Washington Post has more on the plans to seek a Supreme Court stay.

Indian Court Upholds National Commission For Minorities Act

The Times of India reports today that a 2-judge panel of the Allahabad high court has upheld the constitutionality of India's National Commission for Minorities Act. Rejecting claims that the Act discriminates on the basis of religion, the court said in part:

The commission cannot be regarded as a body which is constituted as an institution in aid of or for the protection of a religion but it is an institution which has been created by the Act of Parliament to ensure that minorities are able to realise their rights to development and freedom.

Recount Looming In Slim Primary Victory of Controversial Wisconsin House Candidate

The Hill reports that a likely recount in Wiconsin's Republican congressional primary has called into question Tuesday's initial apparent victory of state senator Glenn Grothman. As of Wednesday morning, Grothman was leading by only 214 votes. (Wis. Election Watch). Grothman, running for the Republican nomination for the U.S. House of Representatives in Wisconsin's 6th District, has become controversial because of his conservative social views. According to The Hill:

Grothman recently said it was "unbelievable" that Secretary of State John Kerry criticized Uganda's harsh anti-gay laws, and has repeatedly called homosexuality a "sin," saying it "should not flourish" in American society. He's also attacked what he's called the "war on men" during a 2010 Tea Party rally, has said that "money is more important for men" as part of explaining why he opposed equal pay legislation, and has sponsored legislation that said that single parenting is a contributing factor to child abuse.

Canada's Citizenship Oath To The Queen Does Not Violate Charter Rights

In McAteer v. Canada (Attorney General), (Ont. Ct. App., August 13, 2014), the Court of Appeal for Ontario rejected constitutional challenges to the requirement that immigrants who wish to become Canadian citizens must swear or affirm that "I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors." Two of the challengers were committed republicans whose consciences were offended by taking an oath to a hereditary monarch. They alleged that the oath violates their freedom of expression and their equality rights protected by Canada's Charter of Rights and Freedoms. Two other plaintiffs asserted that the oath violates their freedom of conscience and religion protected by the Charter:

The appellant Ms. Simone Topey is a Rastafarian who regards the Queen as the head of Babylon. She deposes that it would violate her religious beliefs to take any kind of oath to the Queen. She further deposes that on account of the oath, she would feel bound to refrain from participating in anti-monarchist movements. The evidence of Mr. Howard Gomberg, a former plaintiff in these proceedings, is that taking an oath to any human being is contrary to his conception of Judaism.

In rejecting the Charter challenges, the appeals court said:

Although the Queen is a person, in swearing allegiance to the Queen of Canada, the would-be citizen is swearing allegiance to a symbol of our form of government in Canada. This fact is reinforced by the oath’s reference to “the Queen of Canada,” instead of “the Queen.” It is not an oath to a foreign sovereign. Similarly, in today’s context, the reference in the oath to the Queen of Canada’s “heirs and successors” is a reference to the continuity of our form of government extending into the future.

The Globe and Mail reports on the decision.

Wednesday, August 13, 2014

In Criminal Trial of Palestinian, Jewish Judge Recuses Himself On New Grounds

In Detroit yesterday, federal district Judge Paul Borman recused himself, sua sponte, in the criminal trial of a Palestinian woman chargged with failing to disclose to immigration officials the fact that she spent ten years in an Israeli prison for participating in two terrorist plots, one of which involved the bombing of a supermarket. Last month Borman refused to recuse himself when his impartiality was challenged on the basis of his history of fundraising for the Detroit Jewish Federation and his organizing trips to Israel. (See prior posting.) Now, however, the prosecution furnished a translation of the Israeli indictment against defendant Rasmieh Odeh which indicated that the supermarket targeted in the bombing plot was a SuperSol. In United States v. Odeh, (ED MI, Aug. 12, 2014), Judge Borman wrote:

[A]t the time of the 1969 bombing, my family had a passive financial investment connection to SuperSol.... The Court concludes that my family’s passive financial investment connection to SuperSol at the time of the 1969 bombing could be perceived as establishing a reasonably objective inference of a lack of impartiality in the context of the issues presented in this case.

I recuse today, not because of my charitable giving or my work on behalf of the Jewish Federation of Metropolitan Detroit or other charities, which I concluded in my previous Order created neither the reasonable appearance nor the fact of impartiality. My decision to recuse today is based upon facts which became known to me yesterday in review of a relevant document not previously seen by the Court....

The Chicago Sun-Times reports on the decision.

USCIRF Issues Report On Sectarian Violence In Pakistan

The U.S. Commission on International Religious Freedom yesterday issued a Factsheet titled Violence Towards Religious Communities In Pakistan. It reports that from July 2013 to June 2014 there were 122 incidents of sectarian violence resulting in 430 deaths and another 773 injuries. The most common kind of violence was targeted shooting. The largest number of attacks were against Shi'a Muslims, with 222 deaths. The second largest number were against Christians, with 128 deaths. The report includes details of each violent incident.

Vatican Calls On Muslims and Others To Condemn ISIS

Vatican Radio reports that the Pontifical Council for Interreligious Dialogue yesterday issued a statement strongly condemning the atrocities comitted in Iraq by ISIS. The full text of the statement is included in the Vatican Radio report. It reads in part:

The whole world has witnessed with incredulity what is now called the "Restoration of the Caliphate," which had been abolished on October 29,1923 by Kamal Ataturk, founder of modern Turkey. Opposition to this "restoration" by the majority of religious institutions and Muslim politicians has not prevented the "Islamic State" jihadists from committing and continuing to commit unspeakable criminal acts....

The dramatic plight of Christians, Yezidis and other religious communities and ethnic minorities in Iraq requires a clear and courageous stance on the part of religious leaders, especially Muslims, as well as those engaged in interreligious dialogue and all people of good will. All must be unanimous in condemning unequivocally these crimes and in denouncing the use of religion to justify them. If not, what credibility will religions, their followers and their leaders have?

Israel's Law of Return Extended To Same-Sex Non-Jewish Spouses

Since 1970, Israel's Law of Return which grants every Jew in the world the right to settle in Israel has also permitted the non-Jewish spouse of a Jew to settle in the country. The Jerusalem Post reports that yesterday Israel's Interior Minister Gidon Saar instructed the Population and Immigration Authority and the Jewish Agency to grant immigration visas and Israeli citizenship under the Law of Return to non-Jewish same-sex spouses on the same basis as to heterosexual couples. Haredi (ultra-Orthodox Jewish) groups in Israel and the United States strongly criticized the Interior Minister's decision.

Tuesday, August 12, 2014

Ohio Gubernatorial Candidates Take Different Approaches To Public Religious Expression

Yesterday's Columbus Dispatch explores the difference in the public expression of religion by Ohio's two gubernatorial candidates:

Gov. John Kasich doesn’t hide his religious convictions, talking about them frequently in speeches and at other public gatherings.

Ed FitzGerald holds religious values but rarely talks about them.

Although they espouse many of the same principles, the contrast in how Ohio’s gubernatorial candidates apply their Christianity to their public life and policies is stark.

While Democrat FitzGerald, the Cuyahoga County executive, favors abortion rights and supports same-sex marriage as public policy, the lifelong Catholic won’t say how he feels about those issues personally....

Kasich, a Republican who was raised Catholic but became a Protestant after his parents were killed by a drunken driver in 1987, cites God regularly in public, such as in justifying the building of a Holocaust Memorial on the Statehouse grounds, expanding Medicaid to more than a quarter-million Ohioans, in graduation speeches, in his State of the State addresses and even during an event launching a campaign to prevent the elderly from falling....

DC Circuit Acts On Case Remanded After Hobby Lobby

As previously reported, after the U.S. Supreme Court decided the Hobby Lobby case allowing for-profit-businesses to assert religious objections to the Affordable Care Act's contraceptive coverage mandate, it remanded three other cases on its docket posing the same issue. In what appears to be the first Circuit Court to act on the remand, the D.C. Circuit last week entered an order in Gilardi v. HHS (Aug. 8, 2014) providing:

it is ORDERED and ADJUDGED that the case be remanded to the district court with instructions to enter a preliminary injunction for the Freshway companies and to reconsider the denial of the preliminary injunction as to the individual owners in light of Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

Yesterday's Insurance Journal reports on the order. In the case, the D.C. Circuit Court had originally rejected the claim that secular corporations have free exercise rights, but had remanded to the district court for further findings the claims of the individual owners. The ruling on corporate rights had been appealed to the Supreme Court. (See prior posting.)

Little attention has been given to the fact that plaintiffs in the case asserted, consistent with their Catholic beliefs, that they have religious objections to all atificial contraception, not just the limited number of contraceptive methods involved in Hobby Lobby. (Gilardi complaint.) Apparently last week's D.C. Circuit Court order requires the district court to issue an injunction protecting these broader objections.

5th Circuit Rejects Discrimination Claim By Jehovah's Witness

In Norbach v. Woodland Village Nursing Center, Inc., (5th Cir., Augl 7, 2014), the U.S. 5th Circuit Court of Appeals, reversing the district court, dismissed a Title VII religious discrimination suit brought by a nursing home activities aide. Kelsey Nobach was fired by the nursing home after she refused to pray the Rosary with a patient. The court held that no evidence had been presented to the jury showing that the employer knew or reasonably should have known that her refusal was based on her Jehovah's Witness religious beliefs. BNA Daily Labor Report covers the decision.

Monday, August 11, 2014

Christian-Owned Bridal Shop Refuses Gown Fittings For Lesbian Couple

The latest installment in the battle over whether Christian-owned businesses can refuse service based on religious beliefs comes from Bloomsburg, Pennsylvania. According to yesterday's Christian News, W.W. Bridal Boutique in Bloomsburg recently refused to schedule gown fittings for two lesbian women who were planning their wedding. One of the women refused service took her complaints to Facebook, and the dispute has now proliferated on social media. Bridal shop owner Victoria Miller later told reporters: "We feel we have to answer to God for what we do. And providing those two girls dresses for a sanctified marriage would break God’s law." Now Bloomsburg city council is considering enacting an ordinance to prohibit discrimiantion on the basis of sexual orientation.

Texas Court Says There Is No Absolute Right To Home School Free of State Regulation

In El Paso Independent School District v. McIntyre, (TX App., Aug. 6, 2014), home-school parents challenged the right of the state to investigate the curriculum which they utilized. It was claimed that the McIntyre children did little school work, and that one of the children said they did not need to because they were going to be raptured. When another of the children ran away at age 17 so she could attend school, the parents refused to provide the school district with any information.

Most of the appellate court's lengthy decision dismissed various claims by the parents on procedural and jurisdictional grounds, including failure to exhaust administrative remedies, election of remedies and qualified immunity. Reaching the parents' 1st Amendment free exerrcise claim, the court rejected the parents' argument that the U.S. Supreme Court's 1972 Yoder decision gave them the right to withhold their children from any type of institutional school beyond the eighth grade. The court noted tha the situation of the Amish in that case was unique and observed:

No parents have ever prevailed in any reported case on a theory that they have an absolute constitutional right to educate their children in the home, completely free of any state supervision, regulation, or requirements.

Lebanon Elects New Grand Mufti

Naharnet reports that in Lebanon yesterday, Sheikh Abdul Latif Daryan has been elected as the country's new Grand Mufti. Daryan is currently head of the Sunni Sharia Supreme Court. After his election, Daryan called for moderation and vowed to end the division between the Mufti and the Higher Islamic Council.

Cert. Petitions Filed In Oklahoma and Virginia Same-Sex Marriage Cases

Following quickly on the heels of Utah's Aug. 5 certiorari petition to the U.S. Supreme Court (see prior posting), certiorari petitions have been filed in two more same-sex marriage cases:

A petition (full text) was filed Aug. 6 in Smith v. Bishop, a case in which the 10th Circuit held that Oklahoma's ban on granting licences for same-sex marriages performed in the state is unconstitutional. (See prior posting.) Reporting on the petition, Lyle Denniston at SCOTUS Blog points out that this is the longest-running federal court challenge to same-sex marriage bans, having been filed in 2004.

On Aug. 8, a petition for certiorari (full text) was filed in Rainey v. Bostic. In the case, the 4th Circuit Court of Appeals, in a 2-1 decision, struck down Virginia's ban on same-sex marriage. (See prior posting.) Reporting on the petition, Lyle Denniston at SCOTUS Blog comments that: "The Virginia case has special symbolic significance, because that is the state that produced the case of Loving v. Virginia, in which the Supreme Court in 1967 struck down a state law barring marriage by couples of different races."

Street Preacher's Challenge To Permit Requirements Dismissed

In Craft v. Village of Lake George, New York, (ND NY, Aug. 7, 2014), a New York federal district court dismissed free speech, free exercise and equal protection challenges by a street preacher to the permit requirements of a resort town in New York's Adirondacks. His "as applied" challenge to the solicitation permit requirements was dismissed because he denies ever soliciting money from passersby. Thus "he could not be deprived of what he did not attempt or intend to exercise." HIs facial challenge to the seasonal permit requirement for handing out leaflets was held to be moot because the village subsequently made "sweeping changes" to the provisions of the Village Code being challenged.

Sunday, August 10, 2014

Recent Prisoner Free Exercise Cases

In Wolcott v. Board of Rabbis of Northern and Southern California, 2014 U.S. Dist. LEXIS 105841 (ED CA, Aug. 1, 2014), a California federal magistrate judge dismissed with leave to amend an inmate's 250-page long complaint alleging denial or restrictions on conversion to Judaism; hard cover books, materials and artifacts; numbers of books; religious packages; observance of holy days; kosher diet; facial beard; and a kosher work environment.

In Dilworth v. Goldberg, 2014 U.S. Dist. LEXIS 106258 (SD NY, Au. 1, 2014), a New York federal district court allowed a former inmate to proceed with his claim that his religious freedom was infringed while in jail when he was not allowed to attend church services and had his Bible was confiscated.

In Moore v. Gloucester County Jail, 2014 U.S. Dist. LEXIS 108600 (D NJ, Aug. 5, 2-14), a New Jersey federal district court dismissed a Muslim inmate's claim that he was not allowed to practice his religion properly.

In Rojas v. Heimgartner, 2014 U.S. Dist. LEXIS 108855 (D KS, August 7, 2014), a Kansas federal district court dismissed free exercise, equal protection and Indian Religious Freedom Act claims challenging prison dress policy that limited adherents of Native American religious to wearing white bandana headbands at religious ceremonies, and denied them permission to wear colorful headbands.

In Dushane v. Sacramento County Jail, 2014 U.S. Dist. LEXIS 108628 (ED CA, Aug. 5, 2014), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that the director of chaplains denied kosher diets to Muslim inmates and limited them to vegetarian diets if they wished to observe their religious dietary requirements.

Consent Decree Allows Gospel Tracts At Street Festivals

In Price v, City of Fayetteville, North Carolina, (ED NC, Aug. 7, 2014), a North Carolina federal district court entered a consent decree enjoining the city from restricting distribution of religious literature at private festivals on public streets that are free open to the public. This specifically includes the Dogwood Festival and the Independence Day Concert held in downtown Fayetteville-- venues at which last year police prevented plaintiffs Tom Price and William Legg from distributing gospel tracts. WRAL News reports on the court's action. [Thanks to Paul de Mello for the lead.]

China Government Is Promoting A Chinese Version of Protestant Theology

China Daily this week reported on remarks by China's director of the State Administration for Religious Affairs outlining a 5-year campaign started last year to promote Christian theology in China. Wang Zuoan was speaking at a seminar in Shanghai on the Sinicization of Christianity, part of the celebration of the 60th anniversary of the founding of the National Committee of the Three-Self Patriotic Movement of the Protestant Churches in China. The new government campaign is designed to adapt Protestant theology to China's national condition and Chinese culture. It will give guidance to Protestant churches in an attempt to promote theological ideas seen as positive and correct by the government.

Egyptian Court Dissolves Muslim Brotherhood's Freedom and Justice Party

In Egypt yesterday, the Supreme Administrative Court ordered dissolution of the Freedom and Justice Party, the political wing of the Muslim Brotherhood. Reuters and BBC News report that the decision, which excludes the party from running candidates in future elections, calls for seizure of the party's assets by the state. The government's Committee of Political Party Affairs had accused the FJP of irregularities. Among other things, police found that the party's headquarters had been used to store weapons. The court's decision may not be appealed. FJP's parent Muslim Brotherhood was banned and its assets were confiscated by court order last year. (See prior posting.)

Saturday, August 09, 2014

New York City Health Department Orders 2 Mohels To Stop Controversial Circumcision Method After Infections

The Forward reported this week that the New York City Health Department has prohibited two mohels from performing Jewish religious circumcisions using the direct oral suction method (metzitzah b’peh) after infant boys allegedly contracted herpes infections from the two. The Health Department refuses to name the mohels for privacy reasons. New York City Health Department regulations adopted in 2012 require mohels to obtain written informed consent before using the controversial method for a circumcision. (See prior posting.) Only one of the two mohels targeted by the Health Department was able to produce the consent form for the infected infant.

Suit Claims Rabbi Sexually Assaulted Students At His Israeli Schools For Girls

Courthouse News Service and JTA report on a class action lawsuit filed last Monday in federal district court in Illinois against Rabbi Elimelech Meisels, his four Orthodox Jewish seminaries in Israel, the U.S. fundraising arm of the schools, and other alleged co-conspirators. The lawsuit, alleging racketeering, fraud, breach of contract, emotional distress, conspiracy and conversion, claims that Meisels induced parents in the U.S. to send their daughters to his high-tuition seminaries where he would sexually assault the girls after developing mentorship relations with them. It is alleged that he kept his victims quiet in part by threatening to ruin their reputations and their chances for an appropriate marriage candidate. A Chicago Jewish religious court that learned of the problems urged parents not to send their children to the schools. The complaint alleges that at that point Meisels engaged in a sham sale of the seminaries to try to retain students.

Friday, August 08, 2014

Ten Commandments On City Hall Lawn Violates Establishment Clause

In Felix v. City of Bloomfield, (D NM, Aug. 7, 2014), in a decision described by the court as "a very close case," a New Mexico federal district court held that a 5-foot tall Ten Commandments monument on the lawn in front of the Bloomfield, New Mexico municipal building violates the Establishment Clause. The monument was constructed on city property by a former member of city council under a city council policy on the placement of monuments on the city lawn. Summarizing its 32-page decision, the court said:

a. Plaintiffs have Article III standing because they have regular, direct, and unwelcome contact with the Ten Commandments monument and therefore have suffered an “injury-in-fact”....

b. The Ten Commandments monument is government speech ... because the ... monument is a permanent object located on government property and it is not part of a designated public forum open to all on equal terms.

c. In view of the circumstances surrounding the context, history, and purpose of the Ten Commandments monument, it is clear that the City of Bloomfield has violated the Establishment Clause because its conduct in authorizing the continued display of the monument on City property has had the primary or principal effect of endorsing religion.

Suit Challenging Hebrew National Hot Dog Advertising Is Back In State Court

American Jewish World reports at length on the July 31 Minnesota state trial court hearing on a motion to dismiss in a long-running lawsuit against the manufacturer of Hebrew National hot dogs. The suit, which alleges that ConAgra Food's advertising was deceptive because some of the meat in the hot dogs did not meet the proper standards for kosher slaughter, was remanded to state court by the U.S. 8th Circuit Court of Appeals last April. (See prior posting.) Prior decisions in the case have focused on whether the 1st Amendment bars the court from determining proper standards of kosher slaughter, and on whether any particular consumer can prove that the hot dogs he or she ate contained non-kosher meat. At the conclusion of the hearing, the court asked the lawyers to file briefs on the issue of standing to bring the suit under consumer protection laws.

Bankruptcy Court, Applying Ministerial Exception, Rejects Defrocked Priest's Claim

In In re Archdiocese of Milwaukee, (ED WI Bankr., Aug. 6, 2014), a federal bankruptcy court held that the ministerial exception doctrine requires dismissal of a claim by by a defrocked Catholic priest for back pay and related amounts. Marvin Thomas Knighton filed the claim in the bankruptcy reorganization of the Milwaukee Archdiocese, alleging that he was removed from the ministry after a canonical trial even though a state court jury found him not guilty of second degree sexual assault of a child. The court said in part:

[T]he First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them.... Accordingly, this Court cannot second-guess whether the Debtor followed applicable law - whether Canon Law or federal employment discrimination law - in terminating or failing to compensate Mr. Knighton.

The court also found that the claim was barred by the statute of limitations and additionally rejected Knighton's suggestions of racial discrimination.

U.S. Drops Supplies To Yazidi Stranded In Iraq After Islamic State Attack

U.S. cargo planes yesterday dropped supplies to some 40,000 members of the Yazidi sect in Iraq who have fled the town of Sinjar after it was taken over by the insurgent group Islamic State (known variously as IS, ISIS or ISIL). The Yazidi follow an ancient religion that is related to Zoroastrianism. More than 100,000 Yazidi have fled northern Iraqi towns taken over by IS, and some 40,000 of them remain stranded on Mount Sinjar. In a statement last night (full text), President Obama said:

ISIL forces ... have called for the systematic destruction of the entire Yezidi people, which would constitute genocide.

Fox News and the Los Angeles Times have additional details.

In a related development, Reuters reports that on Wednesday an air strike by the Iraqi government targeted a Sharia court set up in the city of Mosul by IS. Sixty people were killed, including the judge.

Thursday, August 07, 2014

Suit Against FLDS Towns Over Utility Denials Is Settled

Last March, an Arizona federal court jury awarded damages of nearly $5.3 million to Ronald and Jinjer Cooke who sued claiming religious discrimination after towns controlled by the Fundamentalist Church of Jesus Christ of Latter Day Saints in 2008 denied them access to water, sewers and electricity for the home they were building. They claimed that Hilldale, Utah and Colorado City, Arizona refused them utility service because they are not FLDS members. (See prior posting.) Reuters reported yesterday that the litigation has now been settled and the court has dismissed the case. The financial terms of the settlement were not disclosed. The couple now has utility services from the cities.

6th Circuit Hears Oral Arguments In Same-Sex Marriage Cases

The U.S. 6th Circuit Court of Appeals yesterday heard oral arguments in same-sex marriage cases from 4 states. Here are links to the audio of the argument in each case:

Michigan: DeBoer v. Snyder (Oral argument)
Ohio: Obergefell v. Himes; Henry v. Himes (Oral argument).
Kentucky: Bourke v. Beshar; Love v. Beshar (Oral argument).
Tennessee: Tanco v. Haslem (Oral argument).

Detroit Free Press and MLive reported on the oral arguments.

Opponents of Houston's Equal Rights Ordinance Sue After Referendum Petitions Rejected

In May, Houston, Texas City Council passed an Equal Rights Ordinance that attracted significant opposition because of its ban on discrimination on the basis of sexual orientation or gender identity. (See prior posting.) Opponents have been circulating petitions to get a repeal referendum on the ballot. On Monday, the city ruled that there were insufficient valid signatures on the petitions. As reported by the Houston Chronicle, strict city rules disqualify entire pages of signatures when those collecting them are not registered voters or did not themselves sign the petition. On Tuesday, opponents of the ordinance filed suit in state court challenging the procedure used to disqualify signatures-- city attorneys eliminated numerous names after the City Secretary had initially determined that there were sufficient signatures. The lawsuit sought an immediate injunction against enforcement of the Equal Rights Ordinance. In response, the city has removed the lawsuit to federal court on the ground that one paragraph of the complaint raises a federal claim of interference with the right to petition the government for a redress of grievances. Houston Chronicle says that opponents of the Ordinance see this as a delaying tactic to prevent a state court injunction from being issued.

Wednesday, August 06, 2014

Rules Limiting Area Around State Fair Where Preacher Can Speak Upheld

In Powell v. Noble, (SD IA, Aug. 5, 2014), an Iowa federal district court in a 40-page opinion refused to issue a preliminary injunction in a Christian preacher's challenge to rules barring his proselytizing in areas around the Iowa State Fair where he might impede traffic flow. The court held preliminarily that the entire Fairgrounds are a limited public forum, at least during the days the Fair is held. Restrictions on activities that could impede traffic flow are reasonable. However the court did enjoin defendants from arresting plaintiff (or threatening arrest) solely for protected speech in locations where Defendants conceded there was not interference with traffic flow. Des Moines Register reports on the decision.

Utah Files First Cert Petition In Same-Sex Marriage Challenges

The state of Utah-- acting 6 weeks before its deadline-- yesterday became the first to file a petition for certiorari with the U.S. Supreme Court in the growing number of decisions striking down state bans on same sex-marriage. The petition (full text) in Herbert v. Kitchen urges Supreme Court review of the 10th Circuit's 2-1 decision (see prior posting), saying in part:

This case presents an immensely important question: whether the United States Constitution compels states to adopt a single marriage policy that every individual is allowed “to marry the person of their choice.”... The Tenth Circuit said yes and struck down Utah’s definition—statutorily enacted and adopted into the Utah Constitution by two-thirds of voters in a statewide referendum—that marriage is only between a man and a woman. That ruling deprives Utah citizens of the “fundamental right” to “act through a lawful electoral process,” ... and ignores that the Constitution says nothing about how states must define marriage.

Salt Lake Tribune reports on the filing, and SCOTUS Blog has more background.

NYC Pre-Kindergarten Funding Requires Religious Schools To Draw Fine Church-State Lines

The New York Times reported Monday on the fine church-state lines being drawn by religious schools hosting Mayor de Blasio's government-funded pre-kindergarten programs. Brief guidelines issued to the schools allow the teaching of culture, but not religion. Religious texts may be presented objectively as part of a secular program of instruction. The Times describes the accommodation reached by some schools:

The biblical story of Noah’s Ark will be taught, without mention of who told Noah to build it. Challah, the Jewish bread eaten on the Sabbath, will be baked, but no blessings said over it. Some crucifixes will be removed, but others left hanging.

(See prior related posting.) [Thanks to Scott Mange for the lead.]

District Court Says Town of Greece Decision Does Not Cover Invocations Offered Directly By County Board Members

After the U.S. Supreme Court decided the Town of Greece case last May, a number of local governments that had been enjoined by lower courts from opening council meetings with sectarian prayers petitioned lower courts to dissolve or modify the injunctions. One of these was Pittsylvania County, Virginia. However, in Hudson v. Pittsylvania County, Virginia, (WD VA, Aug. 4, 2014), the federal district court held that while it was willing to modify its prior injunction, it would not dissolve it:

... unlike in Town of Greece, where invited clergy and laypersons offered the invocations, the Board members themselves led the prayers in Pittsylvania County. Thus, in contrast to Town of Greece, where the town government had no role in determining the content of the opening invocations at its board meetings, the government of Pittsylvania County itself, embodied in its elected Board members, dictated the content of the prayers opening official Board meetings. Established as it was by the Pittsylvania County government, that content was consistently grounded in the tenets of one faith. Further, because the Pittsylvania County Board members themselves served as exclusive prayer providers, persons of other faith traditions had no opportunity to offer invocations.

While the court was willing to modify the injunction to make it consistent with Town of Greece, it concluded it did not have jurisdiction to do so until the 4th Circuit to which the case had been appealed granted at least a limited remand. AP reports on the decision.

Tuesday, August 05, 2014

Trial Court Invalidates Florida's Ban On Recognizing Same-Sex Civil Unions

Tampa Bay Times reports that in a ruling on Monday, a Broward County, Florida trial court judge invalidated the 2008 amendment to the Florida Constitution that prohibits recognition of any "legal union that is treated as marriage or the substantial equivalent thereof." The ruling comes in a case in which plaintiff Heather Brassner asked the Florida court to dissolve her same-sex Vermont civil union. The court concluded that it could not do so without first ruling on the constitutionality of Florida's same-sex marriage ban. After ruling, the court immediately stayed the order, pending appeal. This is the third Florida trial court ruling since July invalidating Florida's same-sex marriage ban. (See prior posting.) Yesterday's opinion in Brassner v. Lade does not appear to be available online yet, but here is the full text of plaintiff's motion for a declaratory judgment and injunctive relief.

Judge Refuses To Recuse Himself On Charges That Jewish Charitable Activities Bias Him In Immigration Trial

The Chicago Sun-Times reports on a decision last week by Michigan federal district court judge Paul Borman in which he angrily refused to recuse himself in the trial of a Palestinian woman charged with hiding her terrorism-related past in coming to the U.S. and applying for U.S. citizenship. Defendant Rasmieh Odeh failed to disclose the fact that she had spent 10 years in prison in Israel after being convicted of taking part in two terrorist bombings in Jerusalem. Her lawyers claim that Judge Borman's long history of support and fund-raising for the Detroit Jewish Federation and his organizing trips to Israel bias him and likely gave him extra-judicial information relevant to defendant's claim that she was beaten and raped while in Israeli custody. In United States v. Odeh, (ED MI, July 31, 2014), Judge Borman wrote:

My relationship to my faith and my heritage through my activity on behalf of the Detroit Jewish Federation, reads nothing like the innuendo and rank speculation that infects Defendant’s motion.

Report Focuses On Expensive Homes of U.S. Catholic Archbishops

CNN yesterday published an investigative report titled "The Lavish Homes of American Archbishops." The investigation found that 10 of the 34 active U.S. Catholic archbishops live in buildings worth more than $1 million.

Documents Reveal Current IRS Procedures On Church Tax Inquiries

In 2012, the Internal Revenue Service temporarily suspended tax audits of churches accused of violating Section 501(c)(3)'s ban on political participation, pending final adoption of IRS rule changes to clarify which high level Treasury official has authority to make a determination under IRC Sec. 7611 that there are reasonable grounds to begin a church tax inquiry. (See prior posting.) The proposed rules have never been adopted in final form, but as was reported last month, in settling a lawsuit challenging the suspension of church tax inquiries, the IRS assured the Freedom From Religion Foundation that it has adopted procedures for reviewing, evaluating and determining whether to initiate church investigations.

As pointed out yesterday by The Blaze, from a letter attached to the FFRF's Memorandum In Support of Motion To Dismiss, a good deal can be learned of the practices which the IRS now uses. A decision to begin a church tax inquiry is "made by the Commissioner, TEGE, either directly or as concurrence to the determination made by the Director, Exempt Organizations." Complaints about violations of the political intervention ban are evaluated by the Review of Operations unit, and then by the Political Activities Referral Committee. That process has led to the conclusion that 99 churches merit a high priority examination for activities since 2010.

Monday, August 04, 2014

Dispute Over Authority To Fire Minister Dismissed Under Ecclesiastical Abstention Doctrine

In Anderson v. Truelove, (TX App., July 31, 2014), a Texas appellate court invoked the ecclesiastical abstention doctrine to dismiss a lawsuit brought by Jamall Anderson, the minister of a small 16-member church. At issue was whether two members who claimed to be a majority of the trustees of the church could dismiss Anderson as minister for taking church funds in order to pay expenses for his sick mother. Two meetings of members-- called without the required days advance notice-- had agreed to forgive Anderson and retain him. The court held that it could not apply the neutral principles approach to decide the dispute because the church's bylaws do not contain any provisions regarding removal of the minister.

Sunday, August 03, 2014

Recent Prisoner Free Exercise Cases

In Dulaney v. Hollingsworth, 2014 U.S. Dist. LEXIS 102220 (D NJ, July 28, 2014), a New Jersey federal district court held that habeas corpus is not a proper route to challenge a prison's treatment of the Hebrew Israelite religion as being part of plaintiff's Messianic Sabbatarian religion.

In Stokley v. Dismas Charities, Inc., 2014 U.S. Dist. LEXIS 102234 (WD KY, July 25, 2014), a Kentucky federal district court allowed an inmate to proceed with his claim that the parole board required him to attend a drug and alcohol treatment program at a Catholic-sponsored facility that imposed religion on its residents.

Mitchell v. Indiana Department of Corrections, 2014 U.S. Dist. LEXIS 102418 (SD IN, July 28, 2014), an Indiana federal district court, while dismissing a number of claims, allowed a Rastafarin inmate to proceed with his claim against a corrections officer who allegedly forced him to cut his dreadlocks.

In Bobbitt v. Whitener, 2014 U.S. Dist. LEXIS 102678 (WD NC, July 28, 2014), a North Carolina federal district court dismissed a complaint by an inmate that authorities seized and would not return his Moorish Science Temple of America literature after he refused to sign a Personal Property Inventory Form.

In Mendell v. Kline, 2014 U.S. Dist. LEXIS 103322 (SD IL, July 28, 2014), an Illinois federal magistrate judge permitted a Wiccan inmate to proceed, but only in his action for a declaratory judgment, with his complaint that he was denied the sue of Tarot cards.

In Lyons v. Nevada ex rel. Ortiz, 2014 U.S. Dist. LEXIS 104902 (D NV, July 31, 2014), a Nevada federal district court dismissed a Muslim inmate's claim that inmates were charged $1.25 to participate in the Eid al-Fitr feast and that Muslim inmates were yelled at while picking up their Ramadan meals.

In Oliver v. Harner, 2014 U.S. Dist. LEXIS 105437 (SD IL, Aug. 1, 2014), an Illinois federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 105438, July 10, 2014) and refused to issue a preliminary injunction to a Hebrew Israelite inmate who complained that he received only a vegan, and not a kosher, diet, while Caucasians similarly situated received kosher meals.

Davis v. Abercrombie, 2014 U.S. Dist. LEXIS 105006 (D HI, July 31, 2014), is another in a line of numerous decisions in a suit by Native Hawaiian inmates who complain they were denied daily outdoor group worship and access to various sacred items. In this decision the court granted summary judgment to defendants on various claims, but permitted plaintiffs to proceed with claims for compensatory and nominal damages for free exercise and RLUIPA violations.

In Shabazz v. Robinson, 2014 U.S. Dist. LEXIS 105370 (WD VA, July 31, 2014), a Virginia federal district court dismissed a Muslim inmate's challenge to prison rules that allow inmates to grow beards for religious reasons only in segregated confinement, and not if they want to be housed in the general population.

Parties' Agreement To Dismiss Challenge on IRS Church Audit Rules Trumps Intervenors' Objections

As previously reported, last month the Freedom From Religion Foundation agreed to drop its suit against the Internal Revenue Service after the IRS eliminated its blanket policy of not enforcing Section 501(c)(3) restrictions on political activity against churches. Now the court has granted the parties' joint motion to dismiss the case, over objections of a pastor who had intervened in the case. In Freedom from Religion Foundation v. Koskinen, (WD WI, Aug. 1, 2014), Holy Cross Anglican Church and Father Patrick Malone had been permitted to intervene to argue that any IRS policy of non-enforcement against churches was required by the Establishment Clause and RFRA. (Background and documents.) In now dismissing the case without prejudice, the court concluded that the dismissal would not prejudice the intervenors. Meanwhile Alliance Defending Freedom has filed a Freedom of Information Act request (full text) seeking copies of any new IRS policies or procedures on church audits.

Saturday, August 02, 2014

Uganda's Constitutional Court Invalidates Anti-Gay Law Because of Lack of Parliamentary Quorum

Uganda's Constitutional Court yesterday struck down the controversial anti-homosexuality law passed by the country's Parliament last December and signed into law by Ugandan President Yoweri Museveni in February. The Court avoided the substantive constitutional issue, instead finding procedural defects in the bill's enactment. As reported by AP:

The panel of five judges on the East African country's Constitutional Court said the speaker of parliament acted illegally when she allowed a vote on the measure despite at least three objections - including from the country's prime minister - over a lack of a quorum when the bill was passed on Dec. 20.

The bill provided for punishment up to life in prison for engaging in homosexual relationships, and also called for prison terms for promoting homosexuality. The World Bank and some European countries have withheld aid because of the law.

According to BuzzFeed, the courtroom yesterday became something of a circus as anti-LGBT pastor Martin Ssempa prayed loudly and argued with petitioners in the case as those in the courtroom sat through a 3-hour recess that preceded the Court's handing down its decision.

It is not clear what the practical effect of the ruling will be. There have been no actual arrests under the law, but there has been a 20-fold increase in incidents of anti-LGBT harassment. Also a colonial-era law criminalizing sex acts "against the order of nature" was unaffected by yesterday's ruling.