Amish Will Comply Under Protest With Court's Order, But Will Not Take Next Steps

The Eau Claire Leader-Telegram reported Monday that a Wisconsin trial court judge ordered three Amish defendants to sign applications for building and sanitary permits and pay the required fees, or otherwise to be evicted from their homes.  Defendants' lawyer says that they will sign "under protest" in order to stay in their homes, but that they have no intention of installing the required smoke and carbon monoxide detectors.  He says that the signing is an affirmation that the laws exist, not an agreement to comply with them. Electric or battry operated detectors violate Old Order Amish religious beliefs. Defendants are considering whether to appeal the court's ruling.

Plaintiffs Lose Suit Against Cisco For Developing System Used To Track Falun Gong In China

In Doe I v. Cisco Systems, Inc., (ND CA, Sept. 5, 2014), a California federal district court dismissed a lawsuit by Falun Gong practitioners that claimed Cisco aided and abetted and conspired with the Chinese Communist Party and Public Security officers in committing human rights abuses against Falun Gong. Cisco created the Golden Shield security system that was used to intercept and track communications of Falun Gong, leading to their apprehension, arrest and torture. The court dismissed plaintiffs claims under the Alien Tort Statute (ATS), holding that the actions were not suffciently related to the territory of the United States to overcome the presumptions against extraterritorial application of the ATS. It dismissed aiding and abetting claims, finding that it was not shown that Cisco had knowledge that its product would be used for torture and forced conversions.  Courthouse News Service reports on the decision.

7th Circuit Hears Oral Arguments In Parsonage Allowance Challenge

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Freedom From Religion Foundation v. Lew. In the case, a Wisconsin federal district court held that the tax code provision that excludes a minister's parsonage allowance from gross income violates the Establishment Clause. Courthouse News Service reports on the oral arguments which focused both on standing and Establishment Clause issues.

9th Circuit Hears Oral Arguments In 3 Same-Sex Marriage Cases

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in cases from Idaho, Nevada and Hawaii challenging same-sex marriage bans. Audio recordings of the full arguments in each of the cases is available: Latta v. Otter (Idaho); Sevcik v. Sandoval (Nevada); Jackson  v. Abercrombie  (Hawaii). Subsequent to the district court opinion being appealed, Hawaii legalized same-sex marriage. (See prior posting.)  MSNBC, reporting on the oral arguments, called it "a rough day for marriage equality opponents."

Civil Penalties, Injunction Issued Against FLDS Towns

Following on a $5.3 million jury verdict against the FLDS-controlled towns of Colorado City, Ariz., and Hildale, Utah for denying utility service to a couple because they are not FLDS members (see prior posting), a federal court has now imposed a civil damage award and an injunction on the request of the state of Arizona as intervenor.  In Cooke v. Town of Colorado City, (D AZ, Sept. 4, 2014), the court impopsed a $50,000 civil penalty under the Arizona Fair Housing Act against each town and their utility companies.  It also permanently enjoined defendants from discriminating on the basis of religion in performing their official duties, and retained jurisdiction for 10 years in case of violations. The court rejected the state's request that it disband the present law-enforcement offices in the two towns and appointment of a monitor because the requested relief "would burden both Defendants and the State with a layer of bureaucracy extending into potential perpetuity." Finally the court awarded attorneys' fees to the state. Courthouse News Service reports on the decision.

Suit Alleges Anti-Hasidic Conspiracy By Two Municipalities

Invoking RLUIPA, the Fair Housing Act, the 1st and 14th Amendments as well as New York statutory and constitutional provisions, in a 66-page federal court complaint a Jewish school, developers and Orthodox Jewish residents sued the Village of Bloomingburg, NY and the adjoining Town of Mamakating alleging an anti-Semitic conspiracy to prevent more Hasidic Jews from moving into the area. The complaint (full text) in The Bloomingburg Jewish Education Center v. Village of Bloomingburg, New York, (SD NY, filed 9/8/2014), alleges in part:

The Village of Bloomingburg ... and the adjoining Town of Mamakating ,,,, acting on behalf of an aggressive and hateful group of residents, are engaged in a conspiracy to prevent Hasidic Jews from buying houses, establishing a private religious school, and operating businesses in their community. After members of the Hasidic community began to move into the area, Bloomingburg and Mamakating instituted a number of roadblocks designed to stop the community from growing. These municipalities are engaged in a series of patently illegal actions to block lawful, approved and long planned developments....

The Village and Town are seeking to use their political power, economic pressure, zoning laws and sheer intimidation to prevent a certain type of people from joining their community. This type of intolerance might sound like a story from the Civil Rights Era in the South. But it is unfolding right now in a municipality just 75 miles from New York City.

As reported by JP Updates:

The lawsuit is directed at Bill Herrmann, the Supervisor of the Town of Mamakating, who has said that “the people elected him to stop the Jewish infiltration,” and Frank Gerardi, the new Mayor of Bloomingburg, who’s claim to fame is that he was elected to prevent more of “those people” – Hasidic Jews – from moving into Bloomingburg.

8th Circuit Hears Oral Arguments In Individuals' Religious Challenge To Contraceptive Coverage Mandate

The U.S. 8th Circuit Court of Appeals yesterday heard oral arguments (recording of full arguments) in Wieland v. Department of Health and Human Services. In the case, a Missouri federal district court denied a temporary restraining order to a Missouri state employee and his wife who claim that the Affordable Care Act contraceptive coverage mandate forces them to violate their religious opposition to contraception, sterilization, and abortifacients by requiring their group health insurance policy to make these services available to their daughters who are covered by the policy.  The trial court held that plaintiffs lack standing to sue. (See prior posting.) The Kansas City Star reports on yesterday's arguments in which appellants rely on the Supreme Court's Hobby Lobby decision. Appellants argued that the mandate is equivalent to requiring Mormon parents, whose religion forbids alcohol use, to stock unlocked liquor cabinets for their children’s use when parents are not home.

College Applicant Sues Claiming Rejection Because of Religious Beliefs

An applicant to Community College of Baltimore filed suit in a Maryland federal district court yesterday claiming that he was rejected from the radiation therapy program because he discussed his religious belief during his admissions interview.  The complaint (full text) in Buxton v. Kurtinitis, (D MD, filed 9/8/2014) contends that the situation is similar to that which led to a lawsuit lastt year by a different applicant who was similarly rejected. An ACLJ press release discusses yesterday's lawsuit.

Egypt Arrests 7 Who Appeared In Video Of Same-Sex Wedding

AlJazeera yesterday  reported that Egypt has arrested seven men on charges of inciting debauchery and publishing indecent images after a video of them taking part in the country's first same-sex wedding went viral on social media.  The wedding took place last April, but went viral in August. Authorities identified 9 of the 16 people in the video, and arrested 7 of them. Those arrested were remanded in custody for up to four days, and "medical tests" of the men were ordered.

Recent Articles of Interest

From SSRN:

• Nimer Sultany, Religion and Constitutionalism: Lessons from American and Islamic Constitutionalism, (Emory International Law Review, Vol. 28, 2014).
• Nasty M. Vladoiu, Fundamental Freedoms Versus Religious Commandments? ,(August 3, 2014).
• Waverly Crenshaw & Brian A. Pierce, Tennessee's Unique Religious Protections in Employment: Do They Mean What They Say?, (1 Belmont Law Review 1 (2014) ).
• Hugues Fulchiron, The Family Court Judge Taking Religious Convictions into Account: A French and European Perspective, (International Journal of the Jurisprudence of the Family, Forthcoming).
• John D. Inazu, Institutions in Context, (Tulsa Law Review, 2015, Forthcoming).
• Elizabeth Papp Kamali, Felonia Felonice Facta: Felony and Intentionality in Medieval England, (Criminal Law and Philosophy (2014 Forthcoming)).
• Elizabeth Papp Kamali, The Devil's Daughter of Hell Fire: The Role of Anger in Medieval English Felony Adjudication, (August 6, 2014).
• David B. Cruz, Baker v. Nelson: Flotsam in the Tidal Wave of Windsor's Wake, (3 Ind. J. L. & Soc. Equality, 2014, Forthcoming).
• Cyra Akila Choudhury, Ideology, Identity, and Law in the Production of Islamophobia, (38 Dialectical Anthropology __ (2014 Forthcoming)).
• C. Christine Fair, Rebecca Littman & Elizabeth Nugent, Pakistani Conceptualization of Shari'a and Support for Militancy and Democratic Values: A New Empirical Approach, (August 12, 2014).
• Atif Jilani, Atif & Valeed Ahmad Ansari, Game Theory and Auctions from Islamic Viewpoint, (August 16, 2014).

From SmartCILP:

• Pamela Foohey, Bankrupting the Faith, 78 Missouri Law Review 719-776 (2013).

11th Circuit Denies Habeas Even Though Murder Victim's Pastor Opened Voir Dire With Prayer

Bates v. Secretary, Florida Department of Corrections, (11 Cir., Sept. 5, 2014), is a habeas corpus action brought by a death row inmate who was convicted of murder, kidnapping, sexual battery and armed robbery.  At issue in this proceeding was a challenge to the trial judge's action at the beginning of the jury selection process in which he asked a Baptist minister-- pastor of the church at which the victim's funeral took place-- to open the proceedings with a prayer. Petitioner claims ineffective assistance of counsel at trial because of his lawyer's failre to object to the prayer. The court unanimously rejected his claim, but with a shaarp split on the reason for the result:

In a 2-1 decision, the majority held that:

Bates’s lawyer could not be ineffective for failing to raise an Establishment Clause claim, because an Establishment Clause claim, by itself, would not help his client anyway....

More generally on the lawyer's failure to object, the majority said:

Good lawyers, knowing that judges and juries have limited time and limited patience, serve their clients best when they are judicious in making objections. In any trial, a lawyer will leave some objections on the table. Some of those objections might even be meritorious, but the competent lawyer nonetheless leaves them unmade because he considers them distractive or incompatible with his trial strategy.

Judge Wilson concurred, only because there was a "dearth of clearly established law" on the issue, so that the previous Florida Supreme Court ruling on the issue was not an unreasonable application of clearly established federal law (the requiement for habeas relief). However, he argued that if he were deciding the case de novo, he would have found a substanital problem:

Bates’s murder trial began with a prayer in the presence of the jury, and the victim’s husband subsequently gave testimony informing the jury that the prayer was delivered by none other than the victim’s own minister. This testimony had no probative value, but it had great potential to prejudice the jury against Bates. The prayer inserted God into Bates’s trial, and the husband’s testimony made clear whose side God was on. 

Last Weekend Was National Days of Prayer and Remembrance

In a Presidential Proclamation (full text) issued last Thursday, President Obama declared this past weekend (Sept 5-7) as National Days of Prayer and Remembrance for the victims of 9-11. The Proclamation reads in part:

On this solemn anniversary, let us reaffirm the fundamental American values of freedom and tolerance -- values that stand in stark contrast to the nihilism of those who attacked us.  Let us give thanks for all the men and women in uniform who defend these values from new threats, and let us remember those who laid down their lives for our country.  May our faith reveal that even the darkest night gives way to a brighter dawn.....

I ask that  the people of the United States honor and remember the victims of September 11, 2001, and their loved ones through prayer, contemplation, memorial services, the visiting of memorials, the ringing of bells, evening candlelight remembrance vigils, and other appropriate ceremonies and activities.  I invite people around the world to participate in this commemoration.

Recent Prisoner Free Exercise Cases

In Jenkins v. Meyers, (9th Cir., Sept. 4, 2014), the 9th Circuit upheld a prison's action in returning a package containing religious prayer oil sent by an unapproved religious vendor.

In Woodward v. Perez, 2014 U.S. Dist. LEXIS 121329 (SD NY, Aug. 29, 2014), a New York federal district court dismissed on qualified immunity and mootness grounds a Muslim inmate's complaint that his religious rights were infringed when he was requied to shower in the presence of a female officer and a "known homosexual" fellow-inmate.

In Lindsey v. Butler, 2014 U.S. Dist. LEXIS 121364 (SD NY, Aug. 29, 2014), a New York federal district court permitted a Black Sunni Muslim plaintiff to proceed with his claim that his free exercise and 4th Amendment rights were infringed when police forcibly shave his facial hair for purposes of a police lineup.

In Green v. Director/Secretary California Department of Corrections & Rehabilitation, 2014 U.S. Dist. LEXIS 121485 (SD CA, Aug. 29, 2014), a California federal district court permitted a Native American inmate to proceed with his complaint that he was denied access to a sweat lodge, was harassed and intimidated, and had his religious items confiscated.

In Rowe v. Indiana Department of Corrections, 2014 U.S. Dist. LEXIS 123884 (SD IN, Sept. 5, 2014), an Indiana federal district court rejected claims by a White Supremacist inmate who was a leader of the Church of Jesus Christ Christian (the religious arm of Aryan Nations) that policies of the Indiana Department of Corrections interfered with his abillity to practice his religion. The challenged policies involved security threat groups, offender visitation, property limits, offender correspondence and a policy that prevents him from wearing a swastika necklace.

8th Circuit: Small Employer Lacks Standing To Challenge Contraceptive Coverage Mandate

Annex Medical, Inc. v. Burwell, (8th Cir., Sept. 5, 2014) presents a new twist on the contraceptive coverage mandate issue decided by the Supreme Court in Hobby Lobby.  In the case, the district court had denied a preliminary injunction, but the 8th Circuit Court of Appeals then granted a preliminary injunction pending appeal. Now in a 2-1 decision, the  8th Circuit vacates the district court's order, holding that an employer of under 50 employees lacks standing to challenge the contraceptive coverage mandate on religious grounds.

Important to the majority's decision is its reading of a provision of the Internal Revenue Code which many have seen as imposing a $100 per day excise tax on a small employer that chooses voluntarily to provide its employees health insurance, but insurance that not cover contraceptive services.  The court concludes that 26 USC Sec. 4980D(d) precludes penalizing the company if it offers insurance from a health insurer which is inconsistent with the contraceptive mandate.

The company complains however that no insurance company will write a policy that excludes contraceptive coverage because federal law prohibits the insurance company from doing so. The majority writes:

The standing problem is the pleadings and record contain no indication any Minnesota health insurer is willing, but for the mandate, to sell a plan allowing a small employer such as Annex to prohibit coverage for a handful of healthcare products and services....

Based on the pleadings and sparse record before us, we can only speculate whether Annex’s difficulties obtaining contraceptive-free insurance are (1) caused by the government defendants as opposed to the independent decisions of third-party insurers, and (2) redressable by the remedy available to Annex: a permanent version of the preliminary injunction Annex already received and which failed to redress Annex’s alleged injury.

Judge Colloton, concurring, argues that Annex has standing:

it should be evident that a market to serve Annex Medical is likely to develop if the requested relief is granted. It is unsurprising that insurers were not prepared to write policies for Annex Medical and submit them to state regulators for approval based on a temporary injunction pending appeal of indefinite duration while the law was unsettled. But the complaint seeks permanent injunctive and declaratory relief that the government cannot forbid the issuance of the group plan that Annex Medical wants to purchase.

[Thanks to Stephen Blakeman for the lead.] 

State Antidiscrimination Law Applies To Selection of Members of Catholic High School Basketball Team

In Cardinal Ritter High School, Inc. v. Bullock, (IN App., Sept. 5, 2014), an Indiana Court of Appeals held that the Indiana Civil Rights Law applies to alleged racial discrimination by a Catholic high school in selecting members of its basketball team. The Act, by its terms, applies to discriminatory practices relating to education. The court held that this does not offend the school's free exercise rights. However the court vacated and remanded the case because the administrative law judge who heard the testimony retired, and the findings of fact were written by a different ALJ who never heard the testimony or saw the witnesses in person.

Internet Was Scrubbed of Sotloff's Jewish Connections In Try To Protect Him

JTA reported yesterday on the extensive efforts that were made after ISIS captured American journalist Steven Sotloff to scrub the Internet of any mention that he was Jewish or held dual Israeli citizenship. Sone 150 of his friends searched out any online mention of these facts to eliminate them. They also convinced journalists wrting about Sotloff to remove any mention of these facts as a way to lessen his danger.  The efforts were successful in keeping the information from ISIS, but not successful in preventing Sotloff's beheading earlier this week.

32 States Ask Supreme Court To Grant Cert In Same-Sex Marriage Cases

As reported yesterday by AP, in two separate amicus briefs a total of 32 states have asked the U.S. Supreme Court to grant certiorari to decide on the constitutionality of state bans on same-sex marriage. Led by Massachusetts, 15 states that allow same-sex marriage joined a brief in Herbert v. Kitchen, the 10th Circuit case invalidating Utah's ban. (Full text of brief.) (Mass. AG press release.)  17 other states led by Colorado filed a brief in Rainey v. Bostic, the 4th Circuit Virginia case and Smith v. Bishop, the 10th Circuit Oklahoma case.

7th Circuit Invalidates Same-Sex Marriage Bans In Indiana and Wisconsin

Yesterday the U.S. 7th Circuit Court of Appeals in Baskin v. Bogan, (7th Cir., Sept. 4, 2014), affirmed district court decisions striking down same-sex marriage bans in Indiana and Wisconsin. The unanimous opinion, written by Judge Posner in his unquely cogent style, takes on and counters each argument in favor of same-sex marriage bans put forward by each state. He particularly emphasizes the protection-of-children argument on which Indiana relied exclusively:

The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage  because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

He derides Indiana's arguments, summarizing them as follows:

Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.

Moving to Wisconsin's ban, Judge Posner, quoting (among others) Justice Holmes and John Stuart Mill, counters each of four additional justifications the state puts forward for banning same-sex marriage-- tradition, the need to move cautiously, respect for the democratic process and damage to traditional marriage. Posner describes the last of these as an argument that "allowing [homosexuals] to marry degrades the institution of marriage (as might happen if people were allowed to marry their pets or their sports cars)...."  He summarizes:

the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.

As reported by the New York Times, yesterday's decision was handed donw only nine days after the court heard oral arguments in the case.

Catholic School Teacher Can Pursue Title VII Claim After Firing For In Vitro Fertilization

In Herx v. Diocese of Fort Wayne-South Bend, (ND IN, Sept. 3, 2014), Emily Herx, a former teacher at a Catholic school, sued under Title VII and the Americans With Disabiliteis Act after the diocese refused to renew her teaching contract because she became pregnant through in vitro fertilization. The Catholic Church considers in vitro fertilization immoral.  The court granted the Diocese's motion to dismiss the ADA claim becuase no jury could reasonably find that she lost her job because of her infertility (her claimed disability).  Instead it was because of her treatment for her disability. The court however refused to dismiss Herx's Title VII sex discrimination claim.  First it concluded that the ministerial exception doctrine did not apply because Herx was not a "minister."  It then went on to hold:

while a jury could find that a gender-neutral rule against in vitro fertilization prompted her nonrenewal, a jury also could find that a male teacher’s contract would have been renewed under the same circumstances.

The Fort Wayne Gazette reports on the decision.

Protestant Navy Chaplains Denied Class Action Certification

Yesterday the D.C. federal district court issued yet another opinion in In re Navy Chaplaincy, (D DC, Sept. 4, 2014)-- a long running case that has already generated over twenty district court and Court of Appeals opinions. As summarized by the court:

Plaintiffs, 65 current and former nonliturgical Protestant chaplains in the United States Navy, their endorsing agencies, and a fellowship of non-denominational Christian evangelical churches... , bring this consolidated action against the Department of the Navy and several of its officials.... Plaintiffs allege that Defendants discriminated against non-liturgical Protestant chaplains on the basis of religion, maintained a culture of denominational favoritism in the Navy, and infringed on their free exercise and free speech rights.

In this most recent decision the court first held that it lacks jurisdiction over plaintiffs' challenge to an alleged denominational quota system for chaplains because the Navy many years ago eliminated the policy rendering the challenge to it moot. It then went on to deny class certification as to the remainder of the claims, concluding that plaintiffs "have not presented 'significant proof' of any specific unconstitutional policy or practice that applied to them across the board as a class and produced a common legal injury."

Settlement Reached In Synagogue's Suit Challenging Historic Site Designiation

The AP reports that a Florida, federal district court last week approved a settlement agreement in Temple B'nai Zion, Inc. v. City of Sunny Isles Beach, Florida, a case on remand from the 11th Circuit (see prior posting). In the case the synagogue claims that its designation as an historic site-- thereby preventing demolition and construction of a new building on the site-- violated its relgious freedom rights. The Temple was declared a landmark because of a 2004 meeting of Holocaust survivors there. Three of the city commission members involved in the decision were former members of the synagogue before it moved from embracing Conservative Judaism to becoming an Orthodox synagogue. The hearing on the synagogue's objections to the designation was filled with comments from individuals unhappy about actions of the synagogue's rabbi. Under the settlement, the historic landmark designation remains, but the Temple will be permitted to make certain structural changes. The city will also give the Temple a transferable development right elsewhere in the city.

Tax Court Rejects Minister's Attempt To Shield Income From Taxes

In Cortes v. Commissioner, (T.C., Sept. 3, 2014), the United States Tax Court rejected a claim by a minister of the Seventh Day Sabbath Church that an arrangement invovling setting up a ministry, creation of a corporation sole and taking a vow of poverty excused him from paying income tax on amounts paid to his ministry but used for his family's personal expenses. The minister's tax avoidance scheme, promoted by Frederic and Elizabeth Gardner, has been the subject of litigation in prior cases. [Thanks to Steven H. Sholk for the lead.]

District Court Upholds Louisiana's Same-Sex Marriage Ban

A Louisiana federal district court yesterday became only the second court (see prior posting) after the U.S. Supreme Court's Windsor decision to uphold a state law banning same-sex marriage.  In Robicheaux v. Caldwell,  (ED LA, Sept. 3, 2014), the court rejected the argument that heightened scrutiny should apply, and concluded that Louisiana had a rational basis for addressing the meaning of marriage through the democratic process. It held:

This Court is persuaded that Louisiana has a legitimate interest...whether obsolete in the opinion of some, or not, in the opinion of others...in linking children to an intact family formed by their two biological parents.... 

This Court has arduously studied the volley of nationally orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue on same-sex marriage. The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos.  Courts that, in the words of Justice Scalia in a different context ... appear to have assumed the mantle of a legislative body. 

SCOTUSblog reports on the decision.

New Website Launched To Cover Catholic Issues

Boston Globe Media Partners on Tuesday announced the launch of a new website devoted to reporting on issues related to the Catholic Church and Catholic lifestyles.  The site, titled Crux, will provide national and international news and analysis of the Church and Catholic practice. A link to Crux has been added to the Religion Clause sidebar under "Resources."

New EEOC Chair Appointed

The Equal Employment Opportunity Commission announced yesterday that President Obama has appointed EEOC vice-chair Jenny R. Yang as Chair of the EEOC. She will be the first Asian-American chair of the Commission. She replaces Jacqueline A. Berrien. The EEOC enforces federal employment anti-discrimination laws, including laws prohibiting religious discrimination.

In Germany, New Tax Rules Lead To Departures From Churches

Reuters reported last week that a change in Germany's tax law has prompted a large jump in the number of Germans leaving both Catholic and Protestant churches. Under Germany's tax law, church members are assessed another 8% or 9% which goes to pay the salaries of clergy, charitable services and other expenses of the church. While the church tax applies to all income, apparently many Germans have paid it only on their salaries and not on their investment income.  Under tax changes that become effective next year, banks will automatically withhold church taxes from accounts in which individuals earn more than 801 Euros in capital gains. Many are leaving their church rather than pay the increased amounts.  Leaving a church means that an individual is no longer entitled to receive sacraments or marry in the church, or receive a religious burial. [Thanks to Scott Mange for the lead.]

Saudi Appeals Court Upholds Harsh Blasphemy Sentence

AFP reports that an appellate court in Saudi Arabia has upheld a sentence of ten years in jail, 1000 lashes, and a fine equivalent to nearly $267,000 (US) imposed on the founder of a liberal human rights group. The sentence was imposed on Raef Badawi for "creating a website insulting Islam," and criticizing the religious police.

Indian Court Bans Religious Animal Sacrifices

In the Indian state of Himachal Pradesh, a 2-judge bench of the High Court has banned the traditional practice of animal sacrifice in any place of public religious worship.  The decision (full text) handed down on Sept. 1 reads in part:

Sacrifice causes immense pain and suffering to the innocent animals. The innocent animals cannot be permitted to be sacrificed to appease the God/deity in a barbaric manner. Compassion is basic tenets in all the religions. The practice of animal sacrifice is a social evil and is required to be curbed.

The decision also calls into question whether animal sacrifice "can be termed as religious practice."  According to the Business Standard:

Gory goat slaughtering festivals take place in winters across Himachal Pradesh. Often, scores of goats are butchered in single day to appease village deities.

Today's Times of India reports on reactions to the decision.

British Group Rallies Against Rising Anti-Semitism

In Britain on Sunday, some 3500 to 4500 people gathered in front of London's Royal Courts of Justice to protest rising anti-Semitism in Britain. As reported by International Business Times, the rally was organized by the Campaign Against Anti-Semitism (CAAS) which said that Jews in Britain are facing levels of anti-Semitism not seen in almost a century. CAAS called on police to demonstrate a zero-tolerance for anti-Semitism.

American Muslims Seek U.S. Protection During Hajj

Last week, a coalition of 28 Muslim groups in the United States wrote Securetary of State John Kerry (full text of letter) asking for U.S. action to protect the safety of American Muslims who will travel to Saudi Arabia in October on Hajj.  According to the letter, in the past protection was lacking:

In 2013, a group of American Muslims from Dearborn, Michigan, was attacked during the Hajj by a group of Australian pilgrims because they are Shias, a minority denomination within Islam. The Americans were physically and verbally assaulted—including men being strangled and women threatened with rape—and alleged that though Saudi authorities were present, these authorities did not intervene or take their complaints seriously. Further, the victims allege that Saudi authorities deleted cell phone video recordings of the attack.  The victims sought assistance from the U.S. Embassy, but disturbingly their phone calls were not returned.

RNS reports on the letter.  On Sunday, without mentioning the letter, the State Department posted a Hajj Fact Sheet on its website. The section on Safety mentions problems of fraud and theft, but does not allude to physical attacks. The State Department's website also has a general page on "Help for U.S. Citizen Victims of Crime Overseas."

More Recent Prisoner Free Exercise Cases

In Kilgore v. Gerlicher, 2014 U.S. Dist. LEXIS 119578 (D MN, Aug. 8, 2014), a Mionnesota federal magistrate judge recommended dismissing an inmate's claim that his free exercise rights were substantially burdened by the Department of Corrections designating Nation of Gods and Earths as a security threat group.

In Green v. Hawkinberry, 2014 U.S. Dist. LEXIS 120020 (WD PA, Aug. 28, 2014), a Pennsylvania federal magistrate judge permitted an inmate to proceed against all but one defendant with his complaint that he was wrongfullydenied a kosher diet.

In Muhammad v. Pearson, 2014 U.S. Dist. LEXIS 120396 (ED VA, Aug. 22, 2014), a Virginia federal district court dismissed a complaint by a Nation of Islam inmate that he was denied study guides, DVD's, and a second NOI meeting. The court did not dismiss, pending a motion to do so, plaintiff's complaint that he was unable to have NOI meetings while on lockdown.

In Guillory v. Ellis, 2014 U.S. Dist. LEXIS 120709 (ND NY, Aug. 29, 2014), a New York federal district court adopted a magistrate's recommendation and dismissed a suit in which plaintiff claimed defendant caused him to miss one religious service and there was a shortened Purim celebration.

In Shabazz v. Giurbino, 2014 U.S. Dist. LEXIS 121037 (ED CA, Aug. 28, 2014), a California federal magistrate judge recommended that a Muslim inmate be allowed to move forward with some of his claims alleging that he received Halal meals containing meat only once a day (the others were vegetarian) while Jewish prisoners received kosher meat meals three times a day.

Recent Articles and Book of Interest

From SSRN:

• Inna Semenenko & Ruslan Galgash, Role of Religion as a Social Institution in Sustainable Development: View from Ukraine, (Problemy Ekorozwoju-- Problems of Sustainable Development 2014, vol. 9, no 2, 65-72).
• Richard K. Sherwin, Law in the Flesh: Tracing Legitimation's Origin to 'The Act of Killing', (No Foundations: An Interdisciplinary Journal of Law and Justice, No. 11, June 2014).
• Eli Wald & Russell G. Pearce, What's Love Got to Do with Lawyers? Thoughts on Relationality, Love, and Lawyers’ Work, (17 Legal Ethics (2014)).
• Christopher McCrudden, Human Rights, Southern Voices, and ‘Traditional Values’ at the United Nations, (May 28, 2014).
• Brian Leiter, Reply to Five Critics of Why Tolerate Religion?, (Criminal Law & Philosophy, 2015, Forthcoming).
• Asad Zaman, Building Genuine Islamic Financial Institutions, (Presented at Conference on: Economics and Ethics” organized by the Center for Islamic Legislation and Ethics (CILE) in Doha, Qatar on the 10-12 of June 2014).

From SmartCILP:

• Calum Carmichael, Interpreting Law: Jesus, the Lawyer, and the Parable of the Good Samaritan, 41 Georgia Journal of International & Comparative Law 697-710 (2013).
• Julia L. Ernst, Rethinking the Validity of State Religions: Is Antiestablishmentarianism a Fundamental Prerequisite for the Protection of Religious Rights Under International Human Rights Law? 34 Northern Illinois University Law Review 333-390 (2014).
• Christine Haight Farley, Stabilizing Morality In Trademark Law, 63 American University Law Review 1019-1050 (2014).
• Mark Goldfeder, Defining and Defending Borders; Just and Legal Wars in Jewish Thought and Practice, [Abstract], 30 Touro Law Review 631-653 (2014).
• Kenneth Shuster, "When Has the Grim Reaper Finished Reaping?" How Embracing One Religion's View of Death Can Influence Acceptance of the Uniform Determination of Death Act, [Abstract], 30 Touro Law Review 655-674 (2014).

Recent Book:

• Daniel P. Dalton, Litigating Religious Land Use Cases, (ABA Book Publishing, July 2014).

Recent Prisoner Free Exercise Cases

In Phillip v. Schriro, 2014 U.S. Dist. LEXIS 117720 (SD NY, Aug. 22, 2014), a New York federal district court allowed a Muslim inmate to proceed with most of his claims that his free exercise rights were violated when he was denied participation in Friday Jumu'ah services while in punitive segregation.

In Vann v. Fischer, 2014 U.S. Dist. LEXIS 118247 (SD NY, Aug. 25, 2014), a New York federal district court dismissed a complaint by a Santeria practitioner that his religious rights were violated by Directives requiring that he obtain approval to wear his religious beads, conceal them while wearing them, and not wear them while in transit.

In Moon v. Pratte, 2014 U.S. Dist. LEXIS 118707 (ED MO, Aug. 26, 2014), a Missouri federal district court allowed a Muslim inmate to proceed with his claims for religious discrimination. Plaintiff had claimed denial of halal food, a clean place to pray, Islamic religious materials, and services or speakers.

In Ex parte Herrera, 2014 Tex. App. LEXIS 9511 (TX App., Aug. 26, 2014), a Texas state appeals court denied habeas corpus relief to petitioner, in pre-trial home confinement under charges of sexually assaulting a child, who was barred from attending church services as a condition of his electronic monitoring.

In Kyles v. Chartier, 2014 U.S. Dist. LEXIS 119270 (D SC, Aug. 26, 2014), a South Carolina federal district court adopted a magistrate's recommendation and held that the religious exercise of a Hebrew Messianic Yisraelite inmate was not substantially burdened by allowing him to worship with the Jewish congregation but not in separate services.

In Hoeck v. Miklich, 2014 U.S. Dist. LEXIS 119490 (D CO, Aug. 27, 2014), a Colorado federal district court denied injunctive relief to an inmate who claimed that authroties were preventing him from observing his religion of Biblical Christianity that has its own times for various holidays and its own dietary requirements. The court concluded that the relief requested either related to past events or was too vague to implement.

In Williamson v. Twaddell, 2014 U.S. Dist. LEXIS 119566 (CD IL, Aug. 25, 2014), an Illinois federal district court permitted a Messianic Black Hebrew Israelite inmate to proceed with his complaint that he was denied kosher meals, access to Messianic service, baptism, a prayer cap and a ATanach@ religious book.

In Farrad v. Evans, 2014 U.S. Dist. LEXIS 119704 (SD NY, Aug. 15, 2014), a New York federal district court dismissed an inmate's complaint that he was denied Islamic services and ministerial consultation while he was in the prison's medical ward.

In Lloyd v. City of New York, 2014 U.S. Dist. LEXIS 119706 (SD NY, Aug. 4, 2014), a New York federal district court allowed Muslim inmates held at Rikers Island to move ahead with their complaint that they were not provided adequate or appropriate worship space, but dismissed their complaint that they were not furnished an adequate supply of religious materials.

5th Circuit: Religious Accommodation Turns On Employee's Personal Sincere Beliefs

In Davis v. Fort Bend County, (5th Cir., Aug. 26, 2014), in a 2-1 decision, the U.S. 5th Circuit Court of Appeals in a Title VII religious accommodation case held that employee Lois Davis, a county desktop support supervisor, had arguably acted out of religious belief when she absented herself from working on Sunday on a move into a new courthouse building in order to attend a special church ground breaking and community service event.  The district court had granted summary judgment to defendant holding that "being an avid and active member of church does not elevate every activity associated with that church into a legally protectable religious practice." The majority in the Court of Appeals concluded, however, that there is a genuine issue of material fact as to whether Davis had a sincere religious belief that she needed to attend church on that Sunday:

 A showing of sincerity ... does not require proof that the July 3rd church event was in itself a true religious tenet, but only that Davis sincerely believed it to be religious in her own scheme of things.

The majority also concluded that there is a genuine factual issue as to whether allowing an available substitute to work Davis' shift would have created undue hardship. Judge Smith dissented.

School Officials Do Not Enjoy Immunity In Equal Protection Suit Claiming Anti-Jewish Fellow-Student Harassment

In Shiveley v. Green Local School District Board of Education, (6th Cir., Aug. 27, 2014), parents sued school board members for permitting the anti-Jewish harassment and bullying of their daughter by fellow students.  School board members claimed qualified immunity.  In a 2-1 decision, the court held that defendants were not entitled to immunity as to plaintiffs' equal protection claim.  The majority said:

It is difficult to imagine how any school administrator could think he would not be liable for allowing unregulated religious and gender-based persecution that spanned a four-year period.

The majority also held that defendants were not entitled to immunity on plaintiffs' state law claim that defendants were liable for negligence for making the deliberate decision not to enforce anti-bullying policies even though they knew of the bullying of their daughter, including a report that her name was on a "kill list."

All three judges agreed that plaintiffs were entitled to qualified immunity as to plaintiffs' substantive due process claim. saying that " it was not clearly established that school officials violate due process by failing to address student-on-student harassment."

Another Controversy Over Religious Symbols and Public Schools

Two elementary schools in Midlothian, Texas are the latest focus of controversy over religious symbols on public property. As reported by today by Courthouse News Service, the plaques, featuring two crosses, read: "Dedicated in the Year of Our Lord 1997 to the Education of God's Children and to their Faithful Teachers in the Name of the Holy Christian Church." Freedom From Religion Foundation complained about the plaques two months ago. The Dallas Observer yesterday reported on what happened next:

The district, advised by its attorneys that it would lose any lawsuit regarding the plaques, covered them with duct tape and prepared for their being replaced as the new school year began. Wednesday, the district posted a notice on its website that the plaques had been uncovered, but the district was "unsure who uncovered them" and had "no plans to recover them."

Meanwhile each side is marshalling its arguments. FFRF says:

Public schools may not advance, prefer, or promote religion. The plaque on the front of Mt. Peak Elementary violates this basic constitutional prohibition by creating the appearance that the school, and by extension the district, prefer religion to nonreligion and Christianity to all other religions.

Liberty Institute responds:

Our preliminary investigation of the Midlothian plaque issue leads us to believe the school district created a limited public forum for plaques relating to the topic of the building dedication.  The plaque at issue is thus private speech and the First Amendment prohibits the government from censoring private speech simply because of its religious viewpoint.

And media headlines fan the controversy, such as this one from Christian News: "Texas School District Duct Tapes Over Plaques Glorifying God Following Atheist Complaint."

Recent Prisoner Free Exercise Cases

In Smart v. Aramark Inc., 2014 U.S. Dist. LEXIS 113266 (D NJ, Aug. 15, 2014), a New Jersey federal district court reaffirmed its prior holding that an inmate, who variously claimed his relgion as Muslim or Jewish, did not have his ability to practice his religion affected by his inability to have his beard at the prison's kitchen.

In Fields v. Martin, 2014 U.S. Dist. LEXIS 114224 (ED MI, Aut.18, 2014), a Michigan federal district court accepted a magistrate's report and rejected an inmate's claim that his Buddhist religion required him to have a vegan diet.

In Nelson v. Jackson, 2014 U.S. Dist. LEXIS 115111 (SD OH, Aug. 19, 2014), an Ohio federal magistrate judge recommended rejecting a Jewish inmate's complaint that he was served meat and dairy products during the same meal and was required to cook or reheat his kosher meals in a microwave on the Sabbath.

In Mason v. Clear Creek County, 2014 U.S. Dist. LEXIS 115840 (D CO, Aug. 20, 2014), a Colorado district court, while dismissing a number of claims unrelated to prison conditions, permitted a Messianic Hebrew inmate to proceed with his claim that he was denied a religious diet and subjected to religious persecution.

In Hardy v. Agee, 2014 U.S. Dist. LEXIS 115488 (WD MI, Aug. 20, 2014), a Michigan federal district court dismissed a complaint by a Muslim inmate that because of his refusal to take a job in the kitchen he was placed on room restriction and was prevented from attending Islamic services and classes.

In Chau v. Young, 2014 U.S. Dist. LEXIS 116252 (ND CA, Aug. 20, 2014), a California federal district court dismissed a complaint by a Muslim inmate that a "modified program" imposed after a prison riot prevented his participation in Friday prayers, Islamic study classes and Ramadan observance with other inmates.

In Hunter v. Corrections Corporation of America, 2014 U.S. Dist. LEXIS 116156 (SD GA, Aug. 20, 2014), a Georgia federal magistrate judge dismissed, with leave to amend, a Muslim inmate's complaint that he was coerced into participating in a Christian faith-based program.

In Annabel v. Michigan Department of Corrections, 2014 U.S. Dist. LEXIS 116440 (WD MI, Aug. 21, 2014), a Michigan federal district court rejected an inmate's claim that his free exercise rights were infringed when correctional officers mocked his Judaic Christian religion. It also rejected his claim that he was rataliated against for settling a lawsuit granting him a kosher diet.

Bolivian Evangelical Group Sues To Challenge New Rules Imposed On Religious Groups

In Bolivia last month, the National Association of Evangelicals of Bolivia filed a Petition of Unconsitutionality with the country's Constitutional Tribunal challenging new provisions regulating churches. The Protestant group is challenging Law 351 ("Granting of Juridical Personality to Churches and Religious Groups") passed in March 2013 and Supreme Decree 1987 implementing the law. The petition argues that various provisions of the law violate Art. 4 of the country's constitution protecting religious liberty. As reported by Morning Star News:

Decree 1987 imposes a list of burdensome preconditions upon religious organizations that contradict the language of Article 4. For example, denominations must file a “notarized listing” of the names, ID numbers, tax certificates and police files of national leaders, as well as notarized lists of names and ID numbers of their entire membership....

Decree 1987 also requires churches, synagogues and mosques to file copies of their bylaws with the Ministry of Foreign Affairs. To gain official approval, these documents must include procedures for “the admission and exclusion of members, the rights and obligations of members, an internal disciplinary regimen which includes infractions, sanctions and procedures,” and other such provisions.

NAEB argues that Decree 1987 requires churches "to operate under a model of administration contrary to our own faith doctrines."

N.H. Supreme Court Dismisses Challenge To Education Tax Credits On Standing Grounds

In Duncan v. State of New Hampshire, (NH Sup. Ct., Aug. 28, 2014), the New Hampshire Supreme Court vacated and remanded a trial court decision that invalidated New Hampshire's Education Tax Credit program. The trial court held that the program was a violation of the state constitution's ban on compelling any person to support sectarian schools. (See prior posting.) In yesterday's decision, the state Supreme Court did not reach the merits of the argument, but instead dismissed on standing grounds.  The Court summarized its holding:

We do not reach the merits of the petitioners’ declaratory judgment petition because we conclude that: (1) the 2012 amendment to RSA 491:22, I, which allows taxpayers to establish standing without showing that their personal rights have been impaired or prejudiced, is unconstitutional; and (2) absent that amendment, the petitioners have no standing to bring their constitutional claim.

AP reports on the decision.

6th Circuit Affirms Dismissal of Suit By Christian Evangelists Preaching At Arab Festival

In Bible Believers v. Wayne County, (6th Cir., Aug. 27, 2014), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, affirmed the distrct court's dismissal of civil rights claims by Christian evangelists who engaged in aggressive preaching at the 2012 Arab International Festival in Dearborn, Michigan. Police insisted that they leave when the crowd turned hostile. The majority held that this action by the police did not violate plaintiffs' 1st or 14th Amendment rights:

The video from the 2012 Festival demonstrates that Appellants’ speech and conduct intended to incite the crowd to turn violent. Within minutes after their arrival, Appellants began espousing extremely aggressive and offensive messages—e.g., that the bystanders would “burn in hell” or “in a lake of fire” because they were “wicked, filthy, and sick”—and accused the crowd of fixating on “murder, violence, and hate” because that was “all [they] ha[d] in [their] hearts.” These words induced a violent reaction in short order; the crowd soon began to throw bottles, garbage, and eventually rocks and chunks of concrete..... As in Feiner, the situation at the 2012 Festival went far beyond a crowd that was merely unhappy and boisterous; as Richardson explained to the Bible Believers, the threat of violence had grown too great to permit them to continue proselytizing.

Judge Clay dissented, saying:

This is a clear heckler’s veto, breaching the principle that “hostile public reaction does not cause the forfeiture of the constitutional protection afforded a speaker’s message so long as the speaker does not go beyond mere persuasion and advocacy of ideas [but rather] attempts to incite to riot.”

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

Suit By Pastor To Sex Offenders Challenges Law Restricting His Ministry

In Montgomery, Alabama yesterday, Ricky Martin, pastor of the Triumph Church in Clanton, Alabam filed a lawsuit challenging a recently enacted state law aimed at shutting down his ministry to sex offenders. The complaint (full text) in Martin v. Houston, (MD AL, filed 8/27/2014) contends that Al. Code Sec. 45-11-82 violates RLUIPA, the Alabama Religious Freedom Amendments, and the free exercise, bill of attainder and due process clauses of the federal Constitution. The law, which is applicable only in Chilton County, prohibits registered adult sex offenders who are not related from living in the same residence or within 300 feet of another registered sex offender. Martin, as part of his ministry, allows sex offenders to live in trailers behind his church while they are locating more permanent housing. AL.com reports on the case.

Court Awards Attorneys' Fees In Utah Polygamy Law Challenge

Last year, a Utah federal district court held that most of Utah's anti-polygamy statute is unconstitutional. (See prior posting.) After that grant of summary judgment, there remained a claim for monetary damages by plaintiffs based on 42 USC Sec. 1983. Yesterday in Brown v. Shurtleff, (D UT, Aug. 27, 2014) the court entered judgment on this remaining claim, awarding attorneys' fees, costs and expenses to plaintiffs.  The court concluded that defendants had waived their claims of prosecutorial immunity and qualified immunity.  Plaintiffs, subjects of the reality series "Sister Wives," decded to drop their claim for addtiional damages stemming from the criminal investigation and public comments in their case. The court's order reiterated last year's holding that the only portion of the Utah statute which is constituitonal is a provision that bars marriages inwhich an individual seeks multiple marriage licenses from the state. Provisions barring cohabiting or entering a religious marriage with someone else are unenforceable. Salt Lake Tribune reports on the decision.

Justice Department Sues Minnesota Town Over Denial of Use Permit To Mosque

The Justice Department announced yesterday the filing of a civil lawuit against St. Anthony Village, Minnesota for violating the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act.  The suit challenges the village's refusal to issue a conditional use permit to the Abu Huraira Islamic Center that seeks to purchase an existing business center in an area zoned "light industrial," use the basement for worship space and continue to rent the remainder of the building to existing business tenants. According to the Minneapolis Star-Tribune, the 4-1 City Council vote reversing the recommndation of the City Planning Staff came after a Council meeting at which some residents made disparaging remarks about the Muslim faith.

6th Circuit Reverses Hate Crime Convictions In Amish Beard-Cutting Case

In an important decision under the Hate Crimes Prevention Act of 2009, the U.S. 6th Circuit Court of Appeals in a 2-1 decision reversed the convictions of 16 members of the Bergholz Amish community for their roles in beard and hair-cutting attacks on other Amish men and women. In United States v. Miller, (6th Cir., Aug. 27, 2014), the majority held that the district court gave an erroneous instruction to the jury on motivation that went to the central issue in the trial.

18 USC Sec. 249 prohibits willfully causing bodily injury "because of" the victim's actual or perceived religion. The entire panel agreed that the U.S. Supreme Court's January 2014 decision in Burrage v. United States, which post-dated the district court's decision, should be read to require "but for" causation here. The district court judge had refused to giv e a "but for" causation instruction, and instead instructed the jury that the victims' religion need only be a "significant factor" in motivating the assaults. Judge Sutton's majority opinion on appeal, after closely examining the testimony at trial, concluded:

When all is said and done, considerable evidence supported the defendants’ theory that interpersonal and intra-family disagreements, not the victims’ religious beliefs, sparked the attacks. And all of this evidence could have given a reasonable juror grounds to doubt that religion was a but-for cause of the assaults.

Judge Sargus (sitting by appointment) dissented arguing that there can be more than one "but-for" causes, and that here it was only because of the religious significance of the act that defendants chose to cut off the hair and beards of their victims. He contended that the majority had wrongly required faith-based animus in order to convict.  New York Times, reporting on the decision, points out that defendants are still in prison on other charges.  [Thanks to Tom Rutledge for the lead.]

Court Dismisses Lease Dispute That Involves Hutterite Competing Factions

According to the Aberdeen News, a South Dakota trial court Monday dismissed a lawsuit over the right to farm leased land that in reality was part of the ongoing battle between two Hutterite factions over who controls the Hutterville Colony in South Dakota.  Red Acre LLC sued claiming that it entered a lease to allow it to farm 9800 acres in the Colony and that Hutterville Hutterian Brethren and four colony residents, including George Waldner, tried to plant crops and interfere with Red Acre.  Waldner, who leads one of the competing factions, responded that Red Acre is merely a shell for his rival Johnny Wipf Sr., and asked for the lease be declared void.  The court, relying on prior decisions of the South Dakota Supreme Court (see prior posting), held that civil courts have no jurisdiction of the internal dispute of the religious colony.

8th Circuit: North Dakota Ten Commandments Monument Is OK

In Red River Freethinkers v. City of Fargo, (8th Cir., Aug. 25, 2014), the U.S. 8th Circuit Court of Appeals in a 2-1 decision held that a Ten Commandments monument at Civic Plaza in Fargo, North Dakota is permissible under Supreme Court and 8th Circuit precedent. Judge Bye dissening argued that this case differs from those where similar monuments have been upheld because here it permanently stands alone in a prominent location. He contended that the district court erred in granting summary judgment for defendants because factual questions remain about the city's involvement with the religious motives of the monumnent's backers.

Jury Questions Remain In Town Hall Bar Mitzvah Challenge

In Whitnum v. Town of Greenwich, 2014 U.S. Dist. LEXIS 115617 (D CT, Aug. 19, 2014), a Connecticut federal district court refused to grant summay judgment to plaintiff who complained that the Town of Greenwich and its First Selectman allowed a bar mitzvah to take place in the Greenwich Town Hall, but denied similar requests from other religious groups. At issue was the ceremony for three Israeli exchange students after an Israeli Independence Day ceremony. In plaintiff's Establishment Clause challenge, the court held that substantial fact questions remain for the jury as to whether the ceremony amounted to an endorsement of religion by the city.

Recent Articles of Interest

From SSRN:

• Giancarlo Anello & Ulrico Agnati, The Time Reserved for Religious Practice as a Mainstay of the Religious Freedom. Constantine's Statutes on Sunday Rest and its Legacy in Contemporary Multicultural Society, (July 29, 2014).
• John Gillespie, Human Rights as a Larger Loyalty: The Evolution of Religious Freedom in Vietnam, (Harvard Human Rights Journal, Vol 47 (1) 107-149 (2014)).
• Ioana Cismas, Religious Actors and International Law, (Oxford University Press, 2014).
• Ruth E. Gavison, Reflections on the Meaning and Justification of 'Jewish' in the Expression 'A Jewish and Democratic State', (The Israeli Nation-State: Political, Constitutional, and Cultural Challenges, p. 135, 2014).
• Lauren Maisel Goldsmith & James R. Dillon, The Hallowed Hope: The School Prayer Cases and Social Change, (St. Louis University Law Journal, Forthcoming).
• Scott Thomas Fitzgibbon, The Law's Duty to Promote the Kinship System: Implications for Assisted Reproductive Techniques and for Proposed Redefinitions of Familial Relations, (Boston College Law School Legal Studies Research Paper No. 329 (2014)).
• Steven Douglas Smith, Die and Let Live? the Asymmetry of Accommodation, (San Diego Legal Studies Paper No. 14-162 (2014).
• Michael L. Helfand, Religious Institutionalism, Implied Consent and the Value of Voluntarism, (Southern California Law Review, Vol. 88, No. 3, 2014).
• Avigail I. Eisenberg, Religion as Identity, (August 4, 2014).
• Russell Powell & Arthur DeLong, The Possible Advantages of Islamic Financial Jurisprudence: An Empirical Study of the Dow Jones Islamic Market Index, (Fordham Journal of Corporate and Financial Law, Vol. 19, 2014).

From SmartCILP:

• Lewis M. Wasserman, Overcoming Obstacles to Religious Exercise in K-12 Education, 40 Journal of Legislation 96-153 (2013-14).

Police Officer States Establishment Clause Claim

In Marrero-Mendez v. Pesquera, 2014 U.S. Dist. LEXIS 116118 (D PR, Aug. 19, 2014), a Puerto Rico federal district court held that a Puerto Rico police force officer had adequately stated an Establishment Clause claim.  Plaintiff Alvin Marrero-Méndez claimed that his commander opened and closed police officer formations with Christian prayers, and when Marrero-Méndez complained and attempted to walk away, he was told to stop until the prayer was completed. Then his commander shouted that Marrero-Méndez was standing apart because "he doesn't believe in what we believe."

Federal Agencies Act To Expand Exemptions To Contraceptive Madate For Religious Objectors

Federal agencies today issued two relases on changes to the contraceptive coverage mandate under the Affordable Care Act.  The first Release adopts interim final rules for non-profit religious charities and educational instituitons that have objections to providing contraceptive coverage. The changes react to the order the Supreme Court issued in the Wheaton College:

These interim final regulations amend the Departments’ July 2013 final regulations to provide an alternative process for the sponsor of a group health plan or an institution of higher education to provide notice of its religious objection to coverage of all or a subset of contraceptive services, as an alternative to the EBSA Form 700 method of self-certification. These interim final regulations continue to allow eligible organizations to use EBSA Form 700....

The alternative process ... is consistent with the Wheaton order. It provides that an eligible organization may notify HHS in writing of its religious objection to coverage of all or a subset of contraceptive services. The notice must include the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on sincerely held religious beliefs to providing coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable); the plan name and type ...  and the name and contact information for any of the plan’s third party administrators and health insurance issuers.....

When an eligible organization that establishes or maintains or arranges a self-insured plan subject to ERISA provides such a notice to HHS, DOL (working with HHS) will send a separate notification to each third party administrator of the ERISA plan. DOL’s notification will inform each third party administrator of the eligible organization’s religious objection to funding or administering some or all contraceptive coverage and will designate the relevant third party administrator(s) as plan administrator under section 3(16) of ERISA for those contraceptive benefits that the third party administrator would otherwise manage. The DOL notification will be an instrument under which the plan is operated and shall supersede any earlier designation....

If an eligible organization that establishes or maintains an insured health plan provides a notice to HHS under this alternative process, HHS will send a separate notification to the plan’s health insurance issuer(s) informing the issuer(s) that HHS has received a notice under §2590.715-2713A(c)(1) and describing the obligations of the issuer(s) under § 2590.715-2713A. Issuers remain responsible for compliance with the statutory and regulatory requirement to provide coverage for contraceptive services to participants and beneficiaries, and to enrollees and dependents of student health plans, notwithstanding that the policyholder is an eligible organization with a religious objection to contraceptive coverage that will not have to contract, arrange, pay, or refer for such coverage. 

The second Release propses amendments as to for-profit entities with religious objections, responding to the Supreme Court's Hobby Lobby decision.  As summarized in the Release:

In light of the Court’s decision in Hobby Lobby, the Departments propose to amend the definition of an eligible organization under the July 2013 final regulations to include a closely held for-profit entity that has a religious objection to providing coverage for some or all of the contraceptive services otherwise required to be covered. Under these proposed rules, a qualifying closely held for-profit entity that has a religious objection to providing coverage for some or all of the contraceptive services otherwise required to be covered would not be required to contract, arrange, pay or refer for contraceptive coverage; instead, payments for contraceptive services provided to participants and beneficiaries in the eligible organization’s plan would be provided separately by an issuer ...  or arranged separately by a third party administrator ....

In considering inclusion of certain closely held for-profit entities ..., the Departments are considering and seek comment on how to define a qualifying closely held for-profit entity.... [T]he Departments are proposing for comment two possible approaches to defining a qualifying closely held for-profit entity.... Under the first proposed approach, a qualifying closely held for-profit entity would be an entity where none of the ownership interests in the entity is publicly traded and where the entity has fewer than a specified number of shareholders or owners...... Under a second, altertnative approach, a qualifying closely held entituy would be a for-profit entity in which a specified fraction of the ownership interest is concentrated in a limited and specified number of owners.

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.

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..

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.

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.