Recent Articles of Interest

From SSRN:

• Danuta Mendelson & Ian Freckelton, The Interface of the Civil and Criminal Law of Suicide at Common Law (1194-1845), (International Journal of Law and Psychiatry 36 (2013) 343-349).
• Annabelle Lever, Taxation, Conscientious Objection and Religious Freedom, (Ethical Perspectives 20, no.1(2013): 144-153).
• Lina Papadopoulou, Law and Religion in Greece, (Brill’s Encyclopedia of Law and Religion (2014)).
• Hannah C. Dugan, Cracking the Code: Amending Canon Law to Exclude Sexual Abuse Offenders from Roman Catholic Ordination, (September 1, 2013).
• Eric Heinze, Hate Speech and the Normative Foundations of Regulation, (9(4) International Journal of Law in Context (2013), pp 590-617).
• Jan Dobbernack, Sovereignty, Security and Muscular Liberalism. Debating 'Sharia Courts' in Britain, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2014/103 (2014)).

From SSRN (Hobby Lobby case):

• Amy J. Sepinwall, Corporate Piety and Impropriety: Hobby Lobby's Extension of RFRA Rights to the For-Profit Corporation, (Harvard Business Law Review (Spring 2015 Forthcoming)).
• Lyman Johnson et. al., Comments on the HHS' Flawed Post-Hobby Lobby Rules, (October 20, 2014).
• Kent Greenawalt, The Hobby Lobby Case: Controversial Interpretive Techniques and Standards of Application, (Columbia Public Law Research Paper No. 14-421 (2014)).
• Brett McDonnell, The Liberal Case for Hobby Lobby, (Minnesota Legal Studies Research Paper No. 14-39 (2014)).
• Lyman Johnson & David Millon, Corporate Law after Hobby Lobby, (The Business Lawyer, Vol 70 - November 2014 Forthcoming).

From SmartCILP:

• Amna Akbar, Policing "Radicalization," 3 University of California Irvine Law Review 809-883 (2013).
• Marie Ashe & Anissa Helie, Realities of Religio-Legalism: Religious Courts and Women's Rights in Canada, the United Kingdom, and the United States, 20 University of California Davis Journal of International Law & Policy 139-209 (2014).

Feds Will Recognize Same-Sex Marriages From 6 More States

In an announcement published yesterday, the Department of Justice said that the federal government in administering a range of federal benefits will now recognize same-sex married couples in six new states: Alaska, Arizona, Idaho, North Carolina, West Virginia, and Wyoming.  This follows the Supreme Court's refusal to hear appeals in any pending cases involving same-sex marriage.  The action brings federal recognition of same-sex marriages to 32 states and the District of Columbia. The Attorney General has also determined that the federal government will recognize same-sex marriages performed in June in Indiana and Wisconsin. The legal posture of challenges created questions about the validity of those marriages which were performed quickly after district court decisions.

Recent Prisoner Free Exercise Cases

In Blalock v. Jacobsen, 2014 U.S. Dist. LEXIS 148746 (SD NY, Oct. 29, 2014), a New York federal district court dismissed a Muslim inmate's complaint that he was twice unable to attend religious services while awaiting a disciplinary hearing, and that on two occasions he was required to wear his pants longer than allowed by Muslim law.

In Nible v. California Department of Corrections and Rehabilitation, 2014 U.S. Dist. LEXIS 148898 (ED CA, Oct. 17, 2014), a California federal magistrate judge dismissed complaints of an inmate who is an Asatru/Odinic practitioner that he was denied use of outdoor grounds, chapel time equal to others, and was denied drinking horns and other items needed for religious rituals and study.

In Weatherspoon v. Sparkman, 2014 U.S. Dist. LEXIS 149413 (ND MS, Oct. 20, 2014), a Mississippi federal district court dismissed a Muslim inmate's complaint that inadequate timely facilities were provided in his unit for weekly Jumu'ah services. Prison authorities had offered to transfer plaintiff to a different unit where services are available at the required times, but plaintiff refused.

In Hodges v. Sharon, 2014 U.S. Dist. LEXIS 150089 (ED CA, Oct. 22, 2014), a California federal magistrate judge recommended dismissing a claim for damages under RLUIPA brought by a Messianic Jewish inmate who complained about various restrictions on his ability to practice his religion. He was allowed to proceed with his attempt to obtain an injunction.

Suit Challenges Refusal To Approve Atheist To Perform Marriages

MPR News reports on a lawsuit filed last month in a Minnesota state court by an organization of atheists challenging Washington County, Minnesota's refusal to grant official certification to perform marriage ceremonies to a member who was granted a credential to perform marriages by Atheists for Human Rights. Three other counties have accepted the credential, but Washington County says it does not meet the statutory standard of being issued by a religious organization. Plaintiffs say this refusal violates the Establishment Clause as well as their free expression and equal protection rights. Atheists for Human Rights says that the alternative is obtaining online ordination in a phony religion. A bill to specifically permit atheist groups to perform weddings has been introduced in the state legislature, but has not yet passed.

Man Destroys Oklahoma Capitol Ten Commandments, Saying Satan Told Him To Do It

Yesterday the Oklahoma Highway Patrol took into custody a man who Thursday night ran his automobile into the Ten Commandments monument on the Oklahoma State Capitol grounds. The monument was broken into pieces. According to NewsOK, Michael Tate Reed, Jr. told authorities that Satan had directed him to urinate on the monument and destroy it. Reed was taken to a mental health facility for an emergency order of detention and an evaluation.  Last month, a state trial court dismissed an Establishment Clause challenge to the monument (see prior posting), and on Thursday the ACLU had filed an appeal to the state Supreme Court.  Commenting on Thursday's destruction of the monument, the Oklahoma ACLU executive director said: "Whether it is politicians using religion as a political tool or vandals desecrating religious symbols, neither are living up to the full promise of our founding documents." Oklahoma Governor Mary Fallin said she would help raise private funds to repair the monument. And a spokesman for a New York based Satanic Temple that had applied to add its own monument to the Oklahoma Capitol grounds (see prior posting) said: "If our monument stands at the state Capitol, we want it to complement and contrast the (Ten) Commandments, with both standing unmolested as a testament to American religious freedom and tolerance."

6th Circuit Grants En Banc Rehearing To Christian Evangelists Who Preached At Arab Festival

The U.S. 6th Circuit Court of Appeals has voted to grant an en banc rehearing in Bible Believers v. Wayne County, (reh. granted Oct. 23, 2014). In the case, the 3-judge panel in a 2-1 decision, affirmed the district 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. (See prior posting.) Volokh Conspiracy has more on the case.

Court Rules In Kiryas Joel Voting Inspector Challenge

Photo News and Failed Messiah report on a New York state trial court decision handed down this week in Convers v. County of Orange, (Dutchess Cty. Sup. Ct., Oct. 21, 2014) (Docket). The case grows out of ongoing friction between the largely Satmar Hasidic Jewish village of Kiryas Joel and residents of the surrounding town of Monroe. Apparently after the citizens' group United Monroe complained that voters at polling places in Kiryas Joel were being bullied into voting for candidates supported by the Kiryas Joel Satmar Rebbe (the village's religious leader), the Board of Elections approved six outside voting inspectors.  However, five days before the Sept. 4 primary, the appointment of the voting inspectors was rescinded without formal explanation, and the would-be inspectors sued. The Board has variously cited cultural differences, or failure to obtain approval of the Republican voting commissioner, as the basis for the inspectors' removal.  Justice Maria Rosa this week ruled that the inspectors' removal was arbitrary and capricious, and they should be reappointed. However she did not require that they be assigned to Kiryas Joel. Justice Rosa did rule that inspectors could not be assigned on the basis of religion. Orange County Executive Steve Neuhaus reacted saying that if outside inspectors are to be appointed, it should be done county-wide, rather than targeting Kiryas Joel.

Schools' Religious-Themed Snow Plow Decorations Rejected By City

For the last 5 years, the city of Sioux Falls, South Dakota has sponsored a "Paint the Plows" program.  Each participating public or private school is loaned a city snow plow and students use their artistic abilities to decorate the large plow blade.  Yesterday's Sioux Falls Argus Leader, however, reported that this year the designs painted on plow blades by two Lutheran schools brought complaints from a board member of the Siouxland Freethinkers. High school students painted their blade red and inscribed it in large white letters with the words "Jesus Christ."  The elementary and middle school painted its plow blade with the words "Happy birthday Jesus."  (Similar religious expressions were used last year without complaint.) After receiving this year's complaints, the city talked with the schools about creating a different design. At least the high school has decided to just let the city paint over the plow blade.

UPDATE: The Oct. 28 Argus Leader reports that Sioux Falls Mayor Mike Huether says that the city will not paint over the religious themed snow plow blades unless a court case says that it must, while city attorney David Pfeifle is taking a more nuanced approach, saying: "Our goal is to not paint them over, And we're exploring every option."

Suit Says Schools Promoted Christian Activities

The American Humanist Association and several parents of school children filed suit this week against the Douglas County, Colorado school district and its officials over the schools' alleged endorsement of Christian religious organizations.  The complaint (full text) in  American Humanist Association, Inc. v. Douglas County School District RE-1, (D CO, filed 10/22/2014), contends that by extensively promoting Operation Christmas Child and two mission trips, the school district has violated the Establishment Clause and the Equal Access Act.  Huffington Post reports on the lawsuit.

Settlement Reached In School's Ban of Religious Valentines

Alliance Defending Freedom this week announced a settlement leading to a voluntary dismissal in J.S. v. Nazareth Area School District, (ED PA, Oct. 22, 2014). The suit challenged a Pennsylvania elementary school's refusal to allow a student to hand out Valentine cards containing a religious message. (See prior posting.) In the settlement, the school district has removed language from its policies that prohibited student expression seeking to establish the supremacy of a particular religious view or denomination. The Morning Call reporting on the settlement quotes a school board attorney who says that even under the revised policy the particular Valentine message at issue here may have not been permitted because its discussion of St. Valentine's martyrdom may have been too adult a topic.

President Sends Diwali Greetings

Today is Diwali. Yesterday the White House posted a video and transcript of a message from President Obama sending wishes for a joyous celebration to Hindus, Jains, Sikhs and Buddhists celebrating this festival of lights.

Conviction of Pussy Riot Band Member Upheld By Russia's Constitutional Court

Russia's Constitutional Court yesterday issued a decision rejecting a challenge by a member of the Pussy Riot punk rock band to her 2012 conviction for disorderly conduct (hooliganism). The conviction came after a protest performance at Christ the Savior Cathedral in Moscow. (See prior posting.)  Interfax reports band member  Nadezhda Tolokonnikova argued to the Constitutional Court that  Russian Criminal Code Article 213 unconstitutionally restricts her freedom of expression, classifies violations of religious rules a violation of public order, and criminalizes actions based only on the perception of a majority of the public. The Constitutional Court concluded however that the Law on Freedom of Conscience and Religious Associations calls for it to respect the internal rules of religious denominations. It also said:

If some actions are demonstratively insulting in nature and are devoid of any aesthetic or artistic value, they go beyond the limits of the lawful use of freedom of expression guaranteed by the constitution,

Tolokonnikova was released from prison last year in an amnesty. (See prior posting.)

Paris Opera House Bans Wearing of Niqab

France's 2010 ban on wearing of the full-face veil (niqab) in public places gained new attention this month when on Oct. 3 a tourist from the Gulf States and her male companion who had purchased the most expensive seats for the opera La Traviata at Opera Bastille were ejected before the second act. They were seated directly behind the conductor.  According to an RT report this week, some of the performers said they would not continue before a faceless audience member. They claimed the woman's clothing was distracting. The couple left without trying to obtain a refund of the almost $600 they had paid for their tickets.  A day later, the Opera issued new rules in an internal memo. As subsequently reported by RT, anyone whose face is covered with a veil, mask or hood, so that only their eyes are visible, will be ejected. A hijab that only covers the hair is permitted.

New CRS Report On Expired Charitable Tax Provisions

On Oct. 17, the Congressional Research Service released a Report titled Recently Expired Charitable Tax Provisions (“Tax Extenders”): In Brief. The report discusses (1) the enhanced charitable deduction for contributions of food inventory; (2) tax-free distributions from IRA's for charitable purposes; (3) basis adjustment to stock of S corporations making charitable property contributions; and (4) special rules for contributions of capital gain real property for conservation purposes.  It also projects the cost of extending the expired provisions.

Puerto Rico Court Upholds Ban On Same-Sex Marriage

In one of the few recent victories for opponents of same-sex marriage, the federal district court for the district of Puerto Rico yesterday dismissed a challenge to the Puerto Rico law that recognizes only opposite-gender marriage.  In Conde-Vidal v. Garcia-Padilla, (D PR, Oct. 21, 2014), the court held that the Supreme Court's 1972 summary dismissal for want of  a substantial federal question in Baker v. Nelson is binding precedent. (Background.)  Baker involved an appeal of a Minnesota case that found no constitutional protection for same-sex marriage.  Reporting on the Puerto Rico decision, the Washington Post points out that the decision "puts the First Circuit back in play in the national litigation, although every state in the circuit already recognizes same-sex marriage." [Thanks to How Appealing for the lead.]

Austrian Government Proposes Dramatic Revisions In Law Governing Islamic Community

In Austria, the government presented a draft bill to Parliament earlier this month that would dramatically revise the country's 1912 Islam Law governing the status of the Muslim community.  According to AINA:

The new law would regulate at least a dozen separate issues, including relatively non-controversial matters such as Muslim holidays, Muslim cemeteries, Muslim dietary practices and the activities of Muslim clergy in hospitals, prisons and the army.

More significantly, however, the bill seeks to limit the religious and political influence of foreign governments within the Austrian Muslim community by prohibiting foreign countries--presumably Turkey, Saudi Arabia and the Arab Gulf states--from financing Islamic centers and mosques in Austria.

The legislation also seeks to prevent the growth of a parallel Islamic society in Austria by regulating mosques and requiring clerics to be trained exclusively at Austrian universities. The new law would require Muslim groups to terminate the employment of clerics who have criminal records or who are deemed to pose a threat to public safety.....

The new Islam Law also requires the Austrian Muslim community to agree on a standardized German-language translation of the Koran, the Hadiths and other Islamic religious texts. The government has argued that an official version of the texts would prevent their "misinterpretation" by Islamic extremists.

NY Top Court Hears Arguments Over Tax Exemption For Land of Pagan Group

Yesterday, the New York Court of Appeals-- the state's highest court-- heard oral arguments in Matter of Maetreum of Cybele, Magna Mater, Inc. v McCoy.  At issue is whether a neo-Pagan group is entitled to a tax exemption for a piece of property that includes a 12-bedroom house that was formerly an inn, a caretaker's cottage, several outbuildings and an outdoor temple.  The major disagreement is over whether the property is used primarily for religious purposes, as the state intermediate appellate court held (full text of opinion), or whether it is used primarily for residential purposes as the Town of Catskill and the trial court concluded. (See prior posting.) The Albany Times-Union reports on yesterday's arguments. A webcast of the oral arguments will be posted here by the Court next week.

British Parliament Passes Measure To Permit Women Bishops In Church of England

In Britain yesterday, the House of Commons debated and gave final Parliamentary approval to the Bishops and Priests (Consecration and Ordination of Women) Measure  which provides for consecration of women as bishops in the Church of England and continues the provision for ordination of women as priests. The Measure will now be presented for royal assent. Law & Religion UK has an extensive report on the Measure, debate on it and remaining steps that need to be taken by the Church. The Measure also amended the Equality Act to provide that bishops will not be considered public officers. The effect of this, according to statements made during debate, is to "enabl[e] the Church to provide for those who, as a result of theological conviction, do not wish to receive episcopal oversight from a woman."

North Carolina County Commission Resolution Opposes Court's Marriage Equality Ruling

On Monday night, the Columbus County, North Carolina Board of Commissioners, by a vote of 6-1, passed a resolution asking for the federal court ruling invalidating North Carolina's same-sex marriage ban to "be reviewed and reconsidered to protect the foundation that America was established on."  According to WECT News, Commissioner Ricky Bullard who sponsored the resolution said it was motivated by his religious views, commenting: "In the Bible, it always talks about Adam and Eve. I've never heard it talk about Adam and Steve."

Israeli Rabbinate To Review Religious Conversions By Criminally-Charged D.C. Rabbi

Haaretz reported yesterday the the Chief Rabbinate of Israel is reviewing the validity of conversions to Judaism performed in recent years by Washington, D.C. Orthodox Rabbi Barry Freundel who was arrested last week and charged with secretly videoing women who were undressing in the synagogue's mikveh (ritual bath). (See prior posting.) The review comes even though the U.S.-based Rabbinical Council of America already ruled yesterday "as a matter of Jewish law that conversions performed by Rabbi Freundel prior to his arrest on October 14, 2014 remain halakhically valid and prior converts remain Jewish in all respects." There has been tension in recent years more generally over whether Israel's rabbinate will recognize conversions performed elsewhere.  Since the Chief Rabbinate has final legal authority on who will be considered Jewish for purposes of marriage in Israel, a negative ruling by them could affect the status of at least four women converted by Freundel who have moved to Israel to marry.

UPDATE: Haaretz reportsthat the Chief Rabbinate in a statement published Oct. 21 said that it will raise no questions regarding the validity of past conversions by Rabbi Fruendel. This comes after strong international criticism of the Rabbinate's initial decision to possibly question some of the past conversions.

Malaysian State Says It Will Enforce Mosque Attendance Law

Lawyers for Liberty (LFL) issued a statement today opposing the announced plans of the government of the Malaysian state of Kelatan to enforce a provision of a 1994 law that criminalizes the failure of Muslim men to go for Friday prayers in the local mosque three times in a row. Section 104 of Enakmen Majlis Agama Islam dan Adat Istiadat Melayu Kelantan 1994 (Enactment of Religious and Malay Customs--Kelatan 1994) imposes a fine equivalent to $305 (US) and up to one year in prison for violation of the requirement. According to LFL the law violates Malaysia's Constitution:

The provision would be in serious breach of article 5 on liberty of the person; article 8 on equal protection of the law; article 9 on prohibition on freedom of movement; and arguably article 11 on freedom of religion.

From SSRN:

• Nicholas Aroney, Freedom of Religion as an Associational Right, (University of Queensland Law Journal, Vol. 33, No. 1, pp. 153-186, 2014).
• Hamid Harasani, Islamic Law as a Comparable Model in Comparative Legal Research: Devising a Method, (3 Global Journal of Comparative Law (2014) 186-202).
• Moeen Ahmed, Punishment and State’s Criminal Law (October 9, 2014).
• Prakash Shah, The Difference that Religion Makes: Transplanting Legal Ideas from the West to Japan and India, (October 14, 2014).
• Michael A. Helfand, Arbitration's Counter-Narrative: The Religious Arbitration Paradigm, (Yale Law Journal, Vol. 124 (2014)).
• Hillel Y. Levin, Rethinking Religious Minorities' Political Power, (48 UC Davis Law Review, 2015 Forthcoming).
• Claudia E. Haupt, Professional Speech (October 13, 2014).
• Georgina Yeomans, The Constitutionality of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 in Light of Shelby County v. Holder, (Columbia Law Review, Forthcoming).
• Steven G. Calabresi, Gay Marriage and the Fourteenth Amendment, Northwestern Public Law Research Paper No. 14-51 (October 13, 2014).
• Maria Linda Ontiveros, The Fundamental Nature of Title VII, (Ohio State Law Journal, Vol. 76, 2014).
• Linda C. McClain, James Q. Wilson's -- And Society's -- Marriage Problems, (Forthcoming in book on the legacy of James Q. Wilson: Political Science Rightly Understood (R. Shep Melnick et al., editors)).

From SmartCILP:

• Franciska Coleman, Separate Is Inherently Unequal, Unless You're Religious: The Peculiar Constitutionalization of Religious Segregation, 32 Buffalo Public Interest Law Journal 65-101 (2013-2014).
• Kenneth L. Parker, The Saint Louis University Prison Program: An Ancient Mission, A New Beginning, 33 St. Louis University Public Law Review 377-399 (2014).
• Symposium: Religious Freedom and Equal Treatment: An International Look. Articles by Shami Chakrabarti, Eva Brems, Alejandro Madrazo, Lucy Vickers, Noa Mendelsohn Aviv, Karon Monaghan, Marvin Lim, Louise Melling and Priscilla J. Smith. 22 Journal of Law & Policy 483-766 (2014).

Recent Prisoner Free Exercise Cases

In Carter v. Davis, 2014 U.S. Dist. LEXIS 148037 (ED VA, Oct. 16, 2014), a Virginia federal district court dismissed, with leave to amend, an inmate's complaint that he was removed from the Common Fare diet which made it impossible for him to have access to kosher food.

In Mallory v. Commissary Store at GBDF, 2014 U.S. Dist. LEXIS 148189 (SD CA, Oct. 16, 2014), a California federal district court dismissed with leave to amend an inmate's claim over lack of kosher hygiene or cosmetic products.

Pakistan Appeals Court Upholds Christian Woman's Death Sentence For Blasphemy

In Pakistan on Thursday, in a high-profile case a 2-judge panel of the High Court in Lahore upheld the death sentence on blasphemy charges that had been imposed in 2010 on a Christian woman, Asia Bibi.  Morning Star News and World Watch Monitor carry extensive reports on the decision. The charges against Bibi (who is also known as Aasiya Noreen) grew out of her alleged response to Muslim co-workers in a berry field who told her to convert to Islam after one of the workers insisted that Bibi had made the water she brought to them impure by touching it. An appeal to the Supreme Court is planned, but it will probably not be heard for at least three years.  Death sentences are rarely actually carried out in blasphemy cases in Pakistan, though the accused and their lawyers are often victims of vigilante violence.  Concern continues over Bibi's safety even as she is held in prison. In 2011, Salman Taseer, governor of Punjab province, was assassinated by one of his own security guards who was angered by Taseer's support for a pardon for Bibi. (See prior posting.)

Court Orders Minister To Return Church Keys, Mercedes and Stay Away From Church Premises

On Thursday, an Alabama state trial court issued a preliminary injunction ordering Rev. Juan McFarland to turn over his church keys to the deacons and trustees of Montgomery's Shiloh Missionary Baptist Church that he led for 24 years. He was also ordered to return the Mercedes furnished to him by the church and to stay away from the church. AP reports that lay laders of the church filed the lawsuit against McFarland after the congregation voted in a contentious meeting to fire the minister, but he refused to leave.  He continued preaching, changed the church locks, took control of its bank accounts and attempted to fire longtime church officials.  The congregation's action was triggered by a series of sermons McFarland delivered in August and September in which he confessed to having sex with married church members in the church building, not telling his sex partners that he has AIDS, and using illegal drugs. He said God commanded him to make the publc confession.  A court  hearing on a permanent injunction is scheduled for Dec. 1.

Nigerian Court Upholds Ban On Head Scarves In Public Schools

According to AFP, in Nigeria on Friday a judge on the High Court in Lagos upheld the Lagos State government's ban on wearing of the hijab (Muslim head scarf) in public schools. In upholding the ban introduced last year, the court said in part:

The ban on the use of hijab in public schools in Lagos is not a breach of the applicants' fundamental rights to religion because Nigeria as a secular state does not adopt any religion as a state religion.

Removing the ban on the hijab will be tantamount to promoting a particular religion against the others and this may lead to social tensions.

The  Muslim Students Society of Nigeria which brought the challenge says it will appeal.

Black Separatist Religious Group Wins Right To Demonstrate Outide of Mall

In Liberty Place Retail Associates, L.P., v. Israelite School of Universal Practical Knowledge, (PA Super. Ct., Oct. 14, 2014),  a 3-judge panel of the Pennsylvania Superior Court affirmed a trial court's denial of a permanent injunction to prevent a Hebrew Israelite religious organization from holding demonstrations on a public sidewalk outside a Philadelphia Center City shopping mall. At issue are hate-filled Black-separatist demonstrations held on a weekly basis. The court rejected the shopping mall's trespass and private nuisance claims. Philadelphia Daily News reports on the decision.

New Acting Head of DOJ Civil Rights Division Appointed

The Justice Department announced last Wednesday that beginning tomorrow Vanita Gupta will serve as Acting Assistant Attorney General for the Civil Rights Division. She succeeds Molly Moran who will become Principal Deputy Associate Attorney General. A New York Times editorial on Friday praised the Gupta appointment and said that the President has indicated he plans to send her name to the Senate as a nominee for the position on a permanent basis. Gupta comes to the Justice Department from the ACLU where she serves as its deputy legal director and has worked actively on criminal justice reform. She is well-liked by many conservatives as well as by liberals.  Last March the U.S. Senate rejected Debo Adegbile, President Obama's previous nominee for the permanent position of Assistant Attorney General to head the Civil Rights Division. (See prior posting.)

Houston Narrows Subpoenas, But Pastors Say Not Enough

The city of Houston, Texas announced yesterday that it has filed narrowed subpoenas against five pastors in a lawsuit against it challenging rejection of referendum petition signatures.  At issue is an attempt by opponents of the city's Equal Rights Ordinance to obtain its repeal.  Much of the opposition-- particularly to provisions on transgender rights-- was led by clergy. Originally the city issued broad subpoenas calling for all speeches, presentations, or sermons related to the Ordinance or issues surrounding it. (See prior posting.) The new subpoenas omit any reference to sermons, but still seek information from 5 pastors who were leaders in the referendum petition drive on the petition gathering process. According to Mayor Annise Parker:

This is not about what they may be preaching from the pulpit.  It is about proving that the petition gathering process organized by these pastors did not meet the requirements of the City Charter.  This information is critical to proving the city’s contention that the petition was ineligible for placement on the ballot and that the organizers knew this.

Alliance Defending Freedom (representing the pastors) still objects to the narrowed subpoenas, stating in a press release:

The city of Houston still doesn’t get it. It thinks that by changing nothing in its subpoenas other than to remove the word ‘sermons’ that it has solved the problem. That solves nothing. Even though the pastors are not parties in this lawsuit, the subpoenas still demand from them 17 different categories of information – information that encompasses speeches made by the pastors and private communications with their church members. As we have stated many times, the problem is the subpoenas themselves; they must be rescinded entirely. The city must respect the First Amendment and abandon its illegitimate mission to invade the private communications of pastors for the purpose of strong-arming them into silence in a lawsuit that concerns nothing more than the authenticity of citizen petitions.

Kansas Diocese Settles 30 Abuse Cases On Eve of Jury Deliberations

Last Tuesday, just as the jury was about to begin deliberations after an 11-day trial in one case, the Catholic Diocese of Kansas City-St. Joseph agreed to settle 30 claims of priest sexual abuse for $9.95 million.  The Kansas City Star reports that these are all claims filed since 2010 alleging alleging abuse by 13 current or former priests taking place 20 or more years ago.

German State's Parliament Votes To Eliminate Mention of God From Constitution; Catholics Seek Reconsideration

Religion News Service reported earlier this week that in the German state of  Schleswig-Holstein, Catholics are trying to get Parliament to reverse its vote last week to exclude the mention of God from the Preamble of the new Constituiton that Parliament is drafting. In order to obtain reconsideration of the decision that passed by a two-thirds majority, proponents must obtain 20,000 signatures.  Six other of the 16 German states have already eliminated the mention of God from their state constitutions.

Canada's Supreme Court Hears Challenge To City Council Invocations

On Oct. 14, the Supreme Court of Canada heard oral arguments in Mouvement laïque québécois v. City of Saguenay. In the case (summary), appellants claim that the opening of Saguenay, Quebec's municipal council meetings with a prayer, and the presence of Christian religious symbols in council chambers, violate the provision of the Charter of Rights and Freedoms that guarantee freedom of conscience and religion. A webcast of the full oral arguments is available from the Court's website. The Globe & Mail reports on the case.

Avalanche of Same-Sex Marriage Legal Developments

In the last several days there has been an avalanche of legal developments relating to same-sex marriages:

Alaska:  Yesterday in Parnell v. Hamby, the U.S. Supreme Court issued an order denying a stay of a federal district court's decision striking down Alaska's same-sex marriage ban.

Arizona: in Majors v. Horne,(D AZ, Oct. 17, 2014) and Connolly v. Jeanes, (D AZ, Oct. 17, 2014), an Arizona federal district court in two short and substantially identical opinions struck down Arizona's ban on same-sex marriages, citing the 9th Circuit's decision earlier this month in Latta v. Otter striking down bans in Nevada and Idaho. (See prior posting.) State Attorney General Tom Horne announced he would not appeal and sent a letter to the state's 15 county clerks telling them that they may not deny marriage licenses to same-sex couples. Arizona Republic reports on developments.

Wyoming: In Guzzo v. Mead, (D WY, Oct. 17, 2014), a Wyoming federal district court granted a preliminary injunction against Wyoming's ban on same-sex marriage and recognition of same-sex marriages performed elsewhere.  However the court also granted a stay of its injunction until Oct. 23 to allow an appeal to the 10th Circuit or until an earlier date at which the state informs the court that it will not appeal. Governor Matt Mead's office announced that the state will file a notice with the district court that it will not appeal the decision.

Idaho: Two Christian ministers and their for-profit wedding chapel located across the street from the Kootenai County (Idaho) Clerk’s office (which issues marriage licenses) brought suit in an Idaho federal district court to enjoin the city of Coeur d'Alene from enforcing its anti-discrimination ordinance against them. The 63-page complaint (full text) in Knapp v. City of Coeur d'Alene, (D ID, filed Oct. 17, 2014) contends that the Ordinance violates plaintiffs' 1st and 14th Amendment rights as well as their rights under state law. Plaintiffs also filed a motion for a temporary restraining order or preliminary injunction.  ADF issued a press release announcing the filing of the lawsuit.

North Carolina: In North Carolina, the general counsel of the state's Administrative Office of the Courts on Oct. 14 issued a memo (full text) to judges and magistrates stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples. Refusal to do so could lead to suspension, removal or even criminal charges. In response, on Thursday Rockingham County Magistrate Judge John Kallam who has religious objections to performing same-sex marriages resigned.  Alamance County Judge Jim Roberson, who originally suggested that Magistrates with religious objections be excused from performing same-sex ceremonies, issued a statement yesterday saying that magistrates in his county are required to perform ceremonies for same-sex couples. (Qnotes.)  Time Warner Cable News reported on developments.

Federal Government: On Friday, the U.S. Department of Justice announced that the federal government will now recognize same-sex marriages performed in Indiana, Oklahoma, Utah, Virginia, and Wisconsin for purposes of extending federal benefits. The action came after the Supreme Court refused review of Circuit Court decisions affecting those states. Apparently (though there is some slight ambiguity in DOJ's announcement) the federal government will also recognize same-sex marriages performed in Nevada and Idaho after the Supreme Court refused to stay the 9th Circuit's decision as to those states. (See prior posting.)

Prominent D.C. Rabbi Arrested On Voyeurism Charges

The Forward reports that in Washington, DC yesterday, Rabbi Barry Freundel, head of Kesher Israel, one of the city's pre-eminent Modern Orthodox synagogues, was arrested on charges of electronic voyeurism. Apparently Freundel was caught installing a hidden camera above a shower at the synagogue's mikveh (ritual bath) so he could view women showering there. Kesher Israel's board immediately suspended Freundel without pay.  Prominent members of Kesher Israel have included Treasury Secretary Jack Lew and former U.S. Senator Joseph Lieberman.

UPDATE: Here is the Criminal Complaint filed in the case.

Virginia Governor Says Same-Sex Married Couples Can Now Adopt

Last week, Virginia's Department of Social Services (at the direction of Governor Terry McAuliffe) issued a Bulletin (full text) to its local offices informing them that court decisions legalizing same-sex marriage mean that now married same-sex couples are eligible to adopt children under Va. Code Sec. 63.2-1225. Same-sex couples in civil unions or domestic partnerships (rather than marriages) are not eligible to adopt. Reporting on the Governor's action, Metro Weekly yesterday said that, according to the ACLU, married same-sex couples with children born before same-sex marriage was legalized on Oct. 6, 2014 should be able to get an amended birth certificate listing both spouses as a legal parent.  A same-sex spouse should now also be able to adopt a spouse's child so long as the child does not have another legal parent.

Pastors Seek To Quash Subpoenas For Sermons, Communications On Houston's Equal Rights Ordinance

Opponents of Houston, Texas' Equal Rights Ordinance enacted in May have sued after the city ruled that they had insufficient signatures on their petitions to get a repeal referendum on the ballot. (See prior posting.) As part of discovery in the lawsuit in state court, the city issued broad subpoenas (full text) to a group of five pastors calling for them to produce, among other items:

All communications with members of your congregation regarding HERO [Houston Equal Rights Ordinance] or the Petition....

All speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.

The pastors last week filed a motion to quash the subpoenas (full text) and a Memorandum in Support of the Motion (full text), arguing that the subpoenas are not "reasonably calculated to lead to the discovery of admissible, relevant evidence." In a Statement emphasizing opponents' objections to provisions in the Equal Rights Ordinance relating to transgender access to bathrooms, Alliance Defending Freedom said Monday that the subpoenas are designed to stifle social commentary.  Fox News yesterday reported on developments.

UPDATE: According to KTRH News:

City Attorney David Feldman argues the subpoenas are justified because the churches are where opponents of the ordinance met. "We're certainly entitled to enquire about the communications that took place in the churches regarding the ordinance and the petitions because that's where they chose to do it," Feldman tells KTRH News. "Its relevant to know what representations and instructions were given regarding these petitions," he says. [Thanks to Matthew Crawley for the lead.]

$1.9M Settlement In Suit Over Parole Revocation For Refusal To Attend Religious 12-Step Program

The Redding Record Searchlight reported yesterday that a settlement has been reached in Hazle v. Crowfoot, a suit in which the 9th Circuit held that plaintiff, an atheist whose parole on drug possession charges was revoked after he refused to participate in a faith-based drug treatment program, is entitled to compensatory damages. (See prior posting.) Hazle served over 100 additional days in prison.  Under the settlement agreement, the state of California will pay Hazle $1 million and Westcare California, Inc., the contractor that offered only a faith-based 12-step program for parolees, will pay him $925,000.

"Birther" Sues Obama Claiming Ebola Rules Aid Muslim Terrorism

A rather bizarre lawsuit was filed yesterday in federal district court in the District of Columbia charging President Obama and various federal health officials with acting recklessly in attempting to restrain the Ebola epidemic in order to aid Muslim terrorism and discriminate against Christian and Jewish Caucasian Americans. The suit was brought by Larry Klayman, an activist who has filed hundreds of lawsuits and who has been prominent in the anti-Obama "birther" movement. The complaint (full text) in Klayman v. Obama, (D DC, filed 10/14/2014), alleges seven causes of action ranging from providing material support for terrorists to civil rights claims and conspiracy to commit murder. It alleges that the CDC, at the direction of President Obam, is intentionally lying to the American public about the possibility of airborne transmission of Ebola.  The following excerpt gives a flavor of the allegations in the wide-ranging complaint:

Defendants actions in exposing Plaintiff to the Ebola virus as well as other Americans is the direct result of discrimination against Plaintiff on the basis of his Caucasian race and Jewish-Christian religion and in favor of people of the African-Black race and the Islamic religion.... Defendant Obama ... values an African-Black and Muslim life more than he does the lives of persons from the Caucasion or other races and religions, and this is reflected in his and the other Defendants’ actions with regard to allowing past and continued entry of persons from Ebola stricken Liberia and the rest of West Africa into the United States, despite the likelihood of an epidemic occurring.

Washington Post reports on the lawsuit.

Supreme Court Temporarily Stays Texas Abortion Clinic Restrictions

The U.S. Supreme Court this evening issued an Order (full text) in Whole Women's Health v. Lakey preventing portions of Texas' new regulation of abortion clinics from taking effect while a challenge to them is pending in the 5th Circuit. The 5th Circuit (full text of decision) had stayed the district court's injunction against enforcement of certain of the law's provision. As reported by SCOTUSblog, under the Supreme Court's ruling:

The state may not now enforce a requirement that all clinics in the state upgrade their facilities to be hospital-like surgical centers, even when they perform abortions only through the use of drugs, not surgery.  And it may not enforce, against the clinics in McAllen and El Paso, a requirement that all doctors performing abortions have privileges to admit patients to a hospital within thirty miles of the clinic.  That requirement can continue to be enforced elsewhere in Texas, the Court indicated.

Those two provisions, together, had reduced the number of clinics still operating in the state to seven, with an eighth soon to open.  At one time recently, Texas had forty-one clinics.  The Supreme Court’s action Tuesday will allow the reopening of thirteen closed clinics on Wednesday, lawyers for the clinics said.

Justices Scalia, Thomas and Alito dissented.

Sukkah At High School Rejected After Other Jewish Students Raise Church-State Complaints

The Milwaukee Journal-Sentinel reported Sunday on a new permutation in the battle over religious symbols in public schools. Last year, Jewish students at Glendale's Nicolet High School put up a temporary sukkah in the school's courtyard to mark the Jewish fall harvest festival of Sukkot.  This year the activity was moved to a private home nearby after other Jewish students, through the Milwaukee Jewish Community Relations Council, complained that the sukkah on school grounds would violate principles of church-state separation.

9th Circuit Says Same-Sex Marriages Can Go Ahead In Idaho

In what could be the final procedural step in the challenge to Idaho's ban on same-sex marriage, the U.S. 9th Circuit Court of Appeals yesterday issued an order dissolving its prior stay of its decision invalidating the Idaho ban.  According to KVPI News, the court's order provides that the lifting of the stay is effective at 10 a.m. tomorrow, at which time same-sex marriages will be legal in the state.

North Carolina Supreme Court Allows Direct Appeal of School Voucher Program

The Winston-Salem Journal reports that on Friday the North Carolina Supreme Court decided to allow a direct appeal of a trial court decision striking down the state's school voucher program. In August, trial court judge Robert Hobgood held that the state's Opportunity Scholarship Program violates various provisions of the state constitution relating to school funding and permits funds to go to private schools that discriminate on the basis of religion. (See prior posting.) Friday's ruling allows the parties to skip the usual appeal to an intermediate appellate court.  The North Carolina court of appeals has already allowed the voucher program to continue to partially operate while appeals are pending. (See prior posting.)

Minnesota Archdiocese Enters Historic Settlement In Clergy Abuse Case

As reported by AP, yesterday a settlement considered as historic by both sides was reached in a clergy sex abuse case, Doe 1 v. Archdiocese of St. Paul and Minneapolis. As part of the settlement, the Archdiocese adopted 17 Child Protection Protocols. The Diocese of Winona adopted similar Protocols. In a Statement announcing the agreement, Archbishop John Nienstedt emphasized:

The agreement embodies a strengthened spirit of collaboration in addressing the issues related to clerical sexual abuse.

In a separate Statement, defense attorney Jeff Anderson, said:

This child protection protocol, invested in by Doe 1, survivors and the Archdiocese, signals a new day and a new way for protection of children, healing of survivors, and full transparency and disclosure in a new way we’ve never seen.

Notre Dame Asks For Supreme Court GVR In Contraceptive Coverage Challenge

On Oct. 3, a petition for certiorari was filed with the U.S. Supreme Court in University of Notre Dame v. Burwell, (Docket No. 14-392). In the case, the U.S. 7th Circuit Court of Appeals denied a preliminary injunction to Notre Dame in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits. (See prior posting.) As reported by MSNBC, the petition does not seek full Supreme Court review, but instead asks the Court to grant certiorari, vacate the 7th Circuit's decision and remand for reconsideration ("GVR") in light of the Supreme Court's Hobby Lobby decision. In the petition, Notre Dame argued:

Just as a Mormon might refuse to hire a caterer that insisted on serving alcohol to his wedding guests, or a Jew might refuse to hire a caterer determined to serve pork at his son’s bar mitzvah, it violates Notre Dame’s religious beliefs to hire or maintain a relationship with any third party that will provide contraceptive coverage to its plan beneficiaries,

Churches File Complaint With HHS Over California Abortion Coverage Requirement

Following up on a similar complaint filed last month on behalf employees of Loyola Marymount University (see prior posting), two advocacy groups filed a complaint (full text) last week with the Department of Health and Human Services on behalf of seven churches and a church-run school objecting to recent California actions requiring all group health plans to cover elective abortions. The complaint contends that the churches' health plans were changed without their consent to comply with the California Department of Managed Health Care's directive interpreting the scope of "basic health care services."  The churches argue that the California requirement violates the federal Hyde-Weldon Conscience Protection Amendment (Sec. 507 of the 2014 Consolidated Appropriations Act) that prohibits states from discriminating against a health care entity because it does not provide abortion coverage. They say that denying approval of their plans that do not cover abortions amounts to illegal discrimination. Alliance Defending Freedom issued a press release announcing the filing of the Oct. 9 complaint.

Recent Articles and Podcast of Interest

From SSRN:

• Olga Redko, Religious Practice as a 'Thin Skull' in the Context of Civil Liability, (University of Toronto Faculty of Law Review, Vol. 72, No. 1, 2014).
• J. R. Kerns, Protecting the Faithful from Their Faith: A Proposal for Snake-Handling Law in West Virginia, (West Virginia Law Review, Vol. 116, p. 561, 2014).
• Robert P. Bartlett, et. al., Comment on the Definition of ‘Eligible Organization’ for Purposes of Coverage of Certain Preventive Services under the Affordable Care Act, (October 8, 2014).
• Alan E. Brownstein, Constitutional Myopia: The Supreme Court's Blindness to Religious Liberty and Religious Equality Values in Town of Greece v. Galloway, (Loyola of Los Angeles Law Review, Forthcoming).
• George P. Smith & Philip Donoho, RLUIPA: Re-Aligning Burdens of Proof, Clarifying Freedoms, and Re-Defining Responsibilities, (New York University Journal of Legislation and Public Policy, Forthcoming).
• Zachary R. Calo, Constructing the Secular: Law and Religion Jurisprudence in Europe and the United States (September 2014).
• Adam Lamparello, 'God Hates Fags' Is Not the Same as 'Fuck the Draft': Introducing the Non-Sexual Obscenity Doctrine, (October 8, 2014).
• Nadia B. Ahmad, The Islamic Influence in (Pre-)Colonial and Early America: A Historico-Legal Snapshot, (Seattle Journal for Social Justice, Vol. 12: Iss. 3, Article 7, p. 913 (2014)).
• John M. Bradley, Empowering Employees to Prevent Fraud in Nonprofit Organizations, (Cardozo Public Law, Policy and Ethics Journal, Vol. 13, 2015, Forthcoming).

Non-U.S. Law (from SSRN):

• Naheed Ghauri, The Qur’anic Model (QM): A Praxiological Study of Religious Tribunals in the United Kingdom (UK), (September 7, 2014).
• Craig A. Stern, Megillath Esther and the Rule of Law: Disobedience and Obligation, (October 9, 2014).
• Alice Woolley, Equality Rights, Freedom of Religion and the Training of Canadian Lawyers, (17 Legal Ethics, 2014, Forthcoming).
• Mohammad Rizal Salim, Sherin Kunhibava & Lim Soo H'an, Shariah Governance and Corporate Governance: A Malaysian Case Study, (2014, The Law Review, pp 47-58).

From SmartCILP:

• Sharia Law: From Oman to Oklahoma. Articles by Moorthy S. Muthuswamy, Sameer Ahmed, Mervate Mohammad, David R. Lavoie, Umar F. Moghul and student Emily von Werlhof. 7 Albany Government Law Review 347-507 (2014).

Recent Podcast:

• Howard Friedman & Marci Hamilton, The Supreme Court Tackles Prison Beards and Religious Liberty, (National Constitution Center, Oct. 2014).

Same-Sex Marriage Developments In Kansas, West Virginia, Alaska

Developments relating to same-sex marriages have been moving rapidly in Kansas.  Last Wednesday, Chief Judge Kevin Moriarty of the state's 10th judicial district (Johnson County) issued Administrative Order No. 14-11 (Oct. 8, 2014), instructing the clerk of the court, as well as all deputy clerks, to issue marriage licenses to same-sex couples. However, on Friday (Oct. 10) Kansas Attorney General Derek Schmidt filed a petition (full text) for issuance of a writ of mandamus to stop the Johnson County order from taking effect, and asking the Kansas Supreme Court to decide the issue. (Press release; Memorandum in Support of Petition). Before the state Supreme Court could act, one same-sex couple in Johnson County were married. (Kansas Equality Coalition statement.) However a few hours later, in State of Kansas v. Moriarty, (KA Sup. Ct., Oct. 10, 2014), the state Supreme Court issued a stay of Judge Moriary's order "in the interest of establishing statewide consistency." It set oral arguments for Nov. 6, but said that applications for same-sex marriage licenses may continue to be accepted. As pointed out by KCTV 5 News, the November hearing date is two days after the general election.

Meanwhile in West Virginia, on Thursday (Oct. 9) state Attorney General Patrick Morrisey issued a statement (full text) saying in part:

In the upcoming days, we will now seek to bring to a close the pending litigation over West Virginia’s marriage laws, consistent with the Fourth Circuit’s now-binding decision.... [However] only the State Registrar may alter state marriage forms, and the Secretary of State’s Office has authority over marriage celebrants and their ability to solemnize marriages.  While we will take steps to seek to end the litigation, the conclusion of the lawsuit cannot and will not alone effectuate the Fourth Circuit’s mandate.

AP reports that after the Attorney General's statement, State Registrar Gary Thompson sent a letter to clerks in all 55 West Virginia counties setting out new protocols for marriage licenses allowing for same-sex marriages. At least one couple was issued a license on Friday.

And in Alaska yesterday, a federal court declared its ban on same-sex marriages to be in violation of the 14th Amendment's due process and equal protection clauses.  As reported by Think Progress, the decision in Hamby v. Parnell, (D AK, Oct. 12, 2014), came just two days after the court heard oral arguments in the case. However, according to KTUU News, Alaska Governor Sean Parnell issued a statement Sunday saying that he would appeal the decision.

Withdrawal of Land From Uranium Mining Survives Establishment Clause Challenge

In Yount v. Salazar, (D AZ, Sept. 30, 2014), an Arizona federal district court held that the Secretary of Interior's withdrawal of more than 1 million acres of federal land surrounding Grand Canyon National Park from uuanium mining did not violate the Establishment Clause. While one of the government's purposes was "to protect against the impact of uranium mining on cultural and tribal resources," this was a proper secular purpose.

1999 E-Mail Urged Clinton To Invoke Talmudic Law As Lewinsky Defense

The New York Post  reported yesterday that among the final 10,000 documents released by the Clinton presidential library on Friday was a 1999 e-mail-- that eventually found its way to White House adviser Sidney Blumenthal-- urging Clinton to rely on the Jewish law definition of adultery in defending against charges growing out of his relationship with Monica Lewinsky. The e-mail that originated with a Long Island woman, who sent on an analysis of Talmudic law developed by Dartmouth Jewish Studies professor Susannah Heschel, read in part:

According to classical Jewish law, President Clinton did not commit adultery; adultery is defined as a married man having intercourse with a married woman, and Monica Lewinsky is single,

Recent Prisoner Free Exercise Cases

In Elizondo v. Livingston, 2014 U.S. Dist. LEXIS 141413 (ND T, Oct. 3, 2014), a Texas federal district court dismissed an inmate's complaint that for safety purposes he needed to be single celled or celled with someone of his same Jewish faith.

In Storm v. Reinke, 2014 U.S. Dist. LEXIS 141472 (D ID, Sept. 29, 2014). an Idaho federal district court dismissed an inmate's claim in a habeas corpus proceeding that, while on parole, his free exercise rights were curtailed when he was placed on sex offender caseload. The court concluded that the claim does not bear on petitioner's custody.

In Strickland v. Godinez, 2014 U.S. Dist. LEXIS 141863 (SD IL, Oct. 6, 2014), an Illinois federal district court permitted an inmate to proceed with his free exercise and RLUIPA claims that he is being denied Asatru group worship as well as individual Asatru ritual practices.

Enforcement of Israeli Child Support Order Does Not Violate Establishment Clause

In Jenkins v. Jenkins, (OH App., Oct. 3, 2014), an Ohio Court of Appeals rejected Establishment Clause and equal protection challenges to enforcement of a child support order issued by an Israeli court. While the Israeli civil family court cited Jewish law tradition that makes the father responsible for his daughter's essential support, it went beyond that and applied other considerations as well is setting support.

Collateral Estoppel Bars Title VII Religious Accommodation, But Not Retaliation, Claim

In Mathis v. Christian Heating & Air Conditioning, Inc., (ED PA, Oct. 7, 2014), plaintiff Paul Mathis, an atheist, was fired from his position as a sheet metal installer when he insisted on covering with tape his employer company's mission statement printed on the back of his identification badge. The statement read in part: "This company is not only a business, it is a ministry. It is set on standards that are higher than man’s own. Our goal is to run this company in a way most pleasing to the lord...." Mathis claimed that the mission statement was an attempt by the company to force its religious ideology on its employees.

In this Title VII action, a Pennsylvania federal district court held that Mathis was barred by collateral estoppel from proceeding with his Title VII claim of failure to accommodate his religious beliefs. In a prior state court worker's compensaton proceeding, the court held that Mathis had not shown any actual conflict between a sincere religious belief and the employer's requirement, nor had he requested an accommodation. Thefederal district court went on to hold, however, that Mathis was not barred by collateral estoppel from moving ahead with his claim under Title VII for unlawful retaliation against him for opposing what he saw to be religious discrimination.

Muslim Waiter Alleges Religious Harassment

The New York Daily News reported Thursday on a lawsuit filed in a New York federal district court against the famous Peter Luger Steak House in Great Neck, Long Island by a Muslim waiter asserting a variety of grievances, including one of religious harassment.  The Bangladeshi-born employee, Altaf Chowdhury, alleged, among other things, that two managers tricked him into eating a pork hot dog, telling him it was chicken. Chowdhury says that after he discovered the true facts, he vomited ten times. The steak house says the claims lack merit.

Marriage Equality Proponents Win Victories In Nevada, Idaho, North Carolina

As previously reported, on Wednesday U.S. Supreme Court Justice Anthony Kennedy issued an order temporarily staying the 9th Circuit's  mandate invalidating same-sex marriage bans in Idaho and Nevada, even though only Idaho officials applied for the stay.  Later the same day, Justice Kennedy issued a second order (full text) vacating the portion of his order staying the 9th Circuit's decision as to Nevada, presumably allowing same-sex marriages to begin immediately there.Then yesterday, the full Court issued an order as to the Idaho case (full text) reading:

The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.

The 9th Circuit's decision affirmed the Idaho federal district court's decision invalidating Idaho's same-sex marriage ban.  However, because the 9th Circuit recalled its mandate ordering its affirmance effective immediately once the petition for a stay was filed with the Supreme Court, the parties are concerned that the decision by itself did not serve to dissolve the stay pending appeal of the district court's decision entered by the 9th Circuit in May. So yesterday the plaintiffs filed a motion (full text) to dissolve that stay, and (as reported by SCOTUblog) the 9th Circuit has called for a response by noon Monday, and a reply to that by 5:00 p.m. Monday. [Corrected chronology.]

Meanwhile, in General Synod of the United Church of Christ v. Resinger, (D NC, Oct. 10, 2014), a North Carolina federal district court on its own motion in a case challenging North Carolina's same-sex marriage ban held that the ban is unconstitutional as a matter of law.  In a brief opinion and order, the court pointed to the 4th Circuit's decision in Bostic v. Schaefer striking down Virginia's ban on same-sex marriage. (See prior posting.) The Charlotte Observer reports on the decision.

9th Circuit's Invalidation of Idaho and Nevada Same-Sex Marriage Bans Temporarily Stayed By Justice Kennedy

U.S. Supreme Court Justice Anthony Kennedy today temporarily stayed the 9th Circuit's mandate yesterday invalidating same-sex marriage bans in Idaho and Nevada. (Full text of order.) Even though only Idaho officials applied for the stay, Justice Kennedy's to stays the 9th Circuit's mandate in the Nevada case as well. Nevada officials had withdrawn their answering briefs in the 9th Circuit, conceding that discrimination against same-sex couples is unconstitutional.  Justice Kennedy's order calls for those opposing the bans to file a response by 5 p.m. tomorrow. NPR reports on Justice Kennedy's action.

European Court Says Violence Against Jehovah's Witnesses Violates Human Rights Convention

In Begheluri and Others v. Georgia, (ECHR, Oct. 7, 2014), in a Chamber Judgment, the European Court of Human Rights held that numerous incidents of violence against Jehovah's Witnesses, even when carried out only by private individuals, violated Articles 3 (freedom from inhuman or degrading treatment) and 9 (freedom of conscience and religion) of the European Convention on Human Rights because of the government's indifference and failure to protect those attacked.

... [T]he Court concludes that the relevant authorities were ineffective in preventing and stopping religiously motivated violence. Through the conduct of their agents, who either participated directly in the attacks on Jehovah’s Witnesses or by their acquiescence and connivance into unlawful activities of private individuals, the Georgian authorities created a climate of impunity, which ultimately encouraged other attacks against Jehovah’s Witnesses throughout the country. Furthermore, by an obvious unwillingness to ensure the prompt and fair prosecution and punishment of those responsible, the respondent Government failed to redress the violations, thereby neglecting the inherent preventive and deterrent effect in relation to future violations against Jehovah’s Witnesses.

... All of the above leads the Court to conclude that the Government simply declined to apply the law to protect the applicants. It therefore establishes that Article 3 of the Convention has been violated....

... [S]everal violent attacks took place with the direct participation of various public officials or with their connivance and acquiesence. As to the adequacy of the response, the applicants’ religious gatherings were violently disrupted on a large scale, their religious literature was confiscated and burnt, and their homes were ransacked. Having been treated in that way, the applicants were subsequently confronted with total indifference and a failure to act on the part of the authorities, who, on account of the applicants’ adherence to a religious community perceived as a threat to Christian Orthodoxy, took no action in respect of their complaints.... The authorities’ negligence opened the doors to widespread religious violence throughout Georgia against Jehovah’s Witnesses. The applicants were thus led to fear that they would be subjected to renewed violence at each fresh manifestation of their faith.

... [T]hrough their involvement, connivance or at least acquiescence, the relevant authorities failed in their duty to take the necessary measures to ensure that Jehovah’s Witnesses were able to exercise their right to freedom of religion.... The Court thus concludes that the State’s failures in connection with the circumstances concerning the Jehovah’s Witnesses and the practice of their religion, seen as a whole, resulted in a violation of Article 9 of the Convention...

Art. 3 violations were found as to 32 applicants and Art. 9 violations were found as to 88.  The court also issued a press release summarizing the decision. Chamber Judgments are appealable to the Grand Chamber.

9th Circuit: Same-Sex Marriage Bans In Idaho and Nevada Are Unconstitutional

In Latta v. Otter, (9th Cir., Oct. 7, 2014), a 3-judge panel of the U.S. 9th Circuit Court of Appeals held unanimously that laws in Idaho and Nevada that prohibit same-sex marriage and recognition of same-sex marriages performed elsewhere violate the Equal Protection Clause of the 14th Amendment because they discriminate on the basis of sexual orientation. Judge Reinhardt, who wrote the court's opinion, also filed a concurring opinion arguing that the bans also infringe plaintiffs' fundamental right to marriage protected by the 14th Amendment's due process clause.  Judge Berzon wrote a concurring opinion holding that the bans also amount to unconstitutional discrimination on the basis of gender.

A mandate issued by the 9th Circuit yesterday evening decreed that its decision takes effect immediately.

Reporting on the decision, Lyle Denniston at SCOTUSblog says that the decision is expected to control pending challenges to similar laws in Alaska, Arizona and Montana-- all in the 9th Circuit.

Bangladeshi Cabinet Minister Fired Over Anti-Hajj Remarks

In Bangladesh last week, the ruling Awami League party dismissed Post and Telecommunication Minister Abdul Latif Siddique from the cabinet after he made unusually critical remarks about the tradition of the hajj. Yesterday's International Policy Digest reports that while in New York, exchanging views with expatriates, Siddique said:

I am dead against hajj. Hajj costs a substantial amount of manpower. About two million people are now in Saudi Arabia to perform Hajj. These people have no work, no production. [They are] only causing reduction [in wealth]. [They are] only having meals [inside the country] and spending money [abroad].

Siddique's remarks led to 19 court cases being quickly filed against him for hurting religious sentiment.

District Court Carries Out Supreme Court's Contraceptive Coverage Decision In Conestoga

The U.S. Supreme Court's Hobby Lobby opinion handed down last June also applied to the companion case of Conestoga Wood Specialties Corp. v. Burwell.  Since the 3rd Circuit in Conestoga had denied a preliminary injunction against enforcement of the contraceptive coverage mandate (see prior posting), the Supreme Court reversed the 3rd Circuit and remanded the case for further proceedings. Last week in Conestoga Wood Specialties Corp. v. Burwell, (ED PA, Oct. 2, 2014), the federal district court, in light of the Supreme Court's decision, issued a permanent injunction barring the government from enforcing the contraceptive coverage mandate against Conestoga as to those contraceptive services to which the company and its owners object on religious grounds. The court noted that if the proposed rules creating an accommodation for businesses asserting a religious objection are adopted, the government reserves the right to enforce the accommodation against Conestoga. Christian News reports on the court's action.

Supreme Court Hears Oral Arguments In Prison Beard Case; Full Transcript Available

The U.S. Supreme Court today heard oral arguments in Holt v. Hobbs, a case in which a Muslim inmate seeks for religious reasons to grow a one-half inch beard, in violation of Arkansas prison grooming rules. The prisoner asserts that RLUIPA affords him that right.  The transcript of the full oral argument is available from the Supreme Court's website. SCOTUSblog also has a lengthy report on the oral argument, saying:

The Supreme Court on Tuesday sent a blunt message to prison officials planning a policy that limits the religious freedom of inmates:  it would be important to have a good reason for the restriction before it gets into court.  Trying to bolster the rationale at the lectern is not a promising strategy.

A lawyer for Arkansas prison officials found that out in two quick exchanges with Justice Samuel A. Alito, Jr., that came close to collapsing his case.

Court Allows NYC Muslim Bus Driver To Move Ahead With Challenge To Headwear Policy

In Muhammad v. New York City Transit Authority, (ED NY, Sept. 30, 2014), a New York federal district court denied the Transit Authority's motion for summary judgment in a suit filed against it by a female Muslim bus driver who was reassigned to a less desirable position after she refused to remove her khimar or cover it with a Transit Authority uniform cap. Originally filed in 2004, the lawsuit alleges violations of Title VII and the First Amendment. The court concluded that a reasonable jury could find that the Transit Authority failed to offer plaintiff a reasonable accommodation of her religious beliefs. It also concluded that plaintiff had presented a prima facie case of disparate impact under Title VII and religious discrimination in violation of the First Amendment. Two years ago, the Transit Authority settled a parallel suit brought against it by the U.S. Department of Justice. (See prior posting.)

Pending Lawsuit In Spain Challenges Award of State Medals To Icons

The Wall Street Journal reported yesterday on a lawsuit filed in Spain earlier this year challenging the odd practice of awarding state medals to Roman Catholic icons.  The suit was triggered by the latest example-- the presentation of Spain’s Gold Medal of Police Merit last April to a statue named Virgin del Amor (Our Most Holy Mary of Love) located in a church in the city of Malaga. The state award is supposed to go to a member of the police force who suffered injury or death in the line of duty. In announcing the award last February, the Interior Ministry praised the icon "for sharing police values such as dedication, caring, solidarity and sacrifice." The lawsuit, filed in Spain's National Court, was brought by Jorge García González, head of the Movement Towards a Secular State. Officials say such awards merely recognize long-standing ties between Catholic lay communities and the police. An April article in The Guardian has additional background.

Suit Accuses Author Nicholas Sparks of Discrimination Against Jewish-Quaker School Headmaster

Times of Israel reports on a lawsuit filed last week against popular author Nicholas Sparks by the fired head of The Epiphany School of Global Studies. The K-12 school in New Bern, North Carolina was founded by Sparks. The suit claims that Sparks and other members of the school's board engaged in a campaign to humiliate and defame plaintiff Saul Hillel Benjamin by displaying contempt for his Jewish heritage and Quaker faith. The Oct. 2 lawsuit was filed in North Carolina federal district court.

State Trooper Sued Over Proselytizing After Traffic Stop

Huffington Post reported yesterday on a federal lawsuit filed last month against an Indiana State Police Trooper for proselytizing a driver after stopping her for a traffic violation. The complaint (full text) in Bogan v. Hamilton, (SD IN, filed 9/23/2014), alleges that after stopping driver Ellen Bogan and issuing her a warning ticket for speeding, Trooper Brian Hamilton asked Bogan whether she had a home church and had accepted Jesus as her savior. He then gave her a pamphlet from a Cambridge City, Indiana Baptist church. The suit asks for damages alleging that the trooper's coercive questioning and proselytizing violated the First Amendment.

More Certiorari Denials From SCOTUS Yesterday

Yesterday the U.S. Supreme Court issued it usual long beginning-of-term list of cases in which it is denying review. (Order List). In addition to the already widely reported denial of certiorari in same-sex marriage cases from five states (see prior posting), the Court also denied certiorari in the following cases of interest:

• Mehanna v. United States, (Docket No. 13-1125). At issue was whether a citizen's political or religious speech may constitute provision of material support or resources to a Foreign Terrorist Organization. (1st Circuit's opinion in the case.)
• Freshwater v. Mount Vernon School District, (Docket No. 13-1311). In the case, the Ohio Supreme Court upheld the firing of a middle school science teacher for insubordination in failing to comply with orders to remove religious materials from his classroom. (See prior posting.)
• Pittman-Bey v. Celum, (Docket No. 13-10031). In the case, the 5th Circuit held that defendants had qualified immunity in a suit by a Muslim inmate who was not allowed to participate in Ramadan activities without first having participated in Jumu'ah services. (See prior posting.)

Supreme Court Denies Review In Same-Sex Marriage Cases From 5 States

The U.S. Supreme Court today denied certiorari in seven same-sex marriage cases from 5 states that had been decided by various circuit courts. (Order List). All of the Circuit Court decision had invalidated bans on same-sex marriage and/or recognition of same-sex marriages performed elsewhere. The cases are:

Herbert v. Kitchen (Docket No. 14-124) (Utah)
Smith v. Bishop (Docket No. 14-136) (Oklahoma)
Rainey v. Bostic (Docket No. 14-153) (Virginia)
Schaefer v. Bostic (Docket No. 14-225) (Virginia)
McQuigg v. Bostic (Docket No. 14-251) (Virginia)
Bogan v. Baskin (Docket No. 14-277) (Indiana)
Walker v. Wolf (14-278) (Wisconsin)

AP reports on the Court's action.

Red Mass and Modernized Website Herald Opening of Supreme Court's 2014 Term

The Supreme Court's new term opens today.  To mark the occasion, the annual Catholic Red Mass was held yesterday in Washington's Cathedral of St. Matthew the Apostle.  According to the Legal Times, four of the Court's six Catholic Justices (Roberts, Scalia, Kennedy, Thomas) and two of its three Jewish Justices (Breyer and Kagan) attended. So did a number of D.C. lower court judges.

Tomorrow the Court will hear oral arguments in a religious accommodation case-- Holt v. Hobbs.  At issue is whether the Religious Land Use and Institutionalized Persons Act permits Arkansas to bar a Muslim prison inmate from growing a one-half inch beard. (See prior related posting.) All the briefs filed in the case are available from SCOTUSblog.

The Court usually issues a long list of certiorari denials on its first day of the term, and might grant review in additional cases as well.  Among the most closely watched are a number of petitions for review in same-sex marriage cases.

The Court also begins the Term displaying a revamped website with a modernized look and improved navigation features. (Court press release.)

Recent Articles and Books of Interest

From SSRN:

• Kara Loewentheil, Satanists, Scott Walker, & Contraception: A Partial Account of Hobby Lobby's Implications for State Law, (Harvard Law & Policy Review, Vol. 9, No. 1, 2015, Forthcoming).
• Robert J. Delahunty, The Conscience of a King: Law, Religion, and War in Shakespeare's King Henry V, (Journal of Catholic Legal Studies (2014), Forthcoming).
• Tamir Moustafa, The Politics of Religious Freedom in Malaysia, (Maryland Journal of International Law, Vol. 29 (2014) 468-491).
• Richard Moon, Preface to Freedom of Conscience and Religion, (February 9, 2014).
• Hannibal Travis, The United Nations and Genocide Prevention: The Problem of Racial and Religious Bias, (Genocide Studies International, 8(2) (2014), pp. 122-152).
• Spencer Churchill, Whose Religion Matters in Corporate RFRA Claims after Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751 (2014)?, (Harvard Journal of Law and Public Policy, Vol. 38, No. 1, 2014).
• Jason Juliano, Do Corporations Have Religious Beliefs?, (Indiana Law Journal, Vol. 90, 2014).
• Laura Underkuffler, Religious Exceptionalism and Human Rights, (Religion and the Discourse of Human Rights: The Israel Democracy Institute; Editors: Hanoch Dagan, Shahar Lifshitz, Yedidia Z. Stern, 2014)

From SmartCILP:

• Dora W. Klein, The Dignity of the Human Person: Catholic Social Teaching and the Practice of Criminal Punishment, [Abstract], 60 Loyola Law Review 1-31 (2014).

Recent Books:

• Ellen L. Idler (ed.), Religion as a Social Determinant of Public Health, (Oxford Univ. Press, Sept. 2014).
•  Linford D. Fisher, J. Stanley Lemons and Lucas Mason-Brown, Decoding Roger Williams: The Lost Essay of Rhode Island’s Founding Father, (Baylor Univ. Press, Aug. 2014).