6th Circuit Upholds Same-Sex Marriage Bans

In DeBoer v. Snyder, (6th Circuit, Nov. 6, 2014), in a 2-1 decision, the U.S. 6th Circuit Court of Appeals today became the first federal circuit court to uphold state bans on same-sex marriage and on recognition of same sex-marriages performed elsewhere.  Departing from decisions by the Fourth, Seventh, Ninth and Tenth Circuits, the court upheld state statutory and constitutional provisions from Michigan, Ohio, Kentucky and Tennessee. Judge Sutton, writing for the majority, summarized his approach:

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.

Judge Daughtry dissenting said in part:

In the main, the majority treats both the issues and the litigants here as mere abstractions.  Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status....

SCOTUSblog reporting on the 6th Circuit's decision speculated that the split among circuits that it creates is likely to lead to Supreme Court review unless en banc review from the 6th Circuit is sought and granted.

Court Says Students Can Proceed With Claims of Anti-Semitic Harassment At School

In T.E. v. Pine Bush Central School District, (SD NY, Nov. 4, 2014), a New York federal district court refused to dismiss claims by three Jewish students that they suffered extensive anti-Semitic harassment from fellow-students while attending elementary school, middle school and high school. In a 76-page opinion, the court allowed students to proceed against the school district and various school officials in their individual capacities with claims under Title VI of the 1964 Civil Rights Act, the 14th Amendment and the New York Civil Rights Law. Courthouse News Service reports on the decision.

Suit By Catholic Challenges Nigeria's Requirements For Christian Marriages

In Nigeria, Olisa Agbakoba, the former president of the Nigerian Bar Association,  has filed a lawsuit challenging the constitutionality of provisions of the Marriage Act and the Matrimonial Causes Act. According to yesterday's This Day, the suit brought in the Lagos Division of the Federal High Court contends that the Marriage Act forces Agbakoba, a Catholic, to be married in a secular ceremony rather than in accordance with Canon Law in violation of his constitutionally protected right of religious freedom.  According to the complaint:

The Marriage Act and the Matrimonial Causes Act subject the sacrament of holy matrimony to state certification thus constrained the Applicant to contract a secular marriage. But the ATR [African traditional Religion] adherents, Muslims, and traditionalists are enabled by the Nigerian legal system to contract valid marriages under their religious codes without state intervention or further ‘validation’ by a Marriage Registry or other civil authority under a secular statute.

Agbakoba also claims that the Matrimonial Causes Act is discriminatory by requiring Christians to resolve marital disputes through the civil courts by judges who are not knowledgeable in Canon law, while Muslims may use Islamic courts and adherents of African Traditional Religions may use Customary Courts.

Tuesday Exit Polls Reveal Voting Behavior By Religious Affiliation

The Fox News Exit Polls published yesterday include a number of questions about religious affiliation and voting behavior on Tuesday.  While Republicans did well nationally, the poll shows significant variation in support for Republicans depending on the voter's religious affiliation. Here are the percentages by religious persuasion who voted Republican: Mormon- 73%; Protestant-65%; Other Christian- 55%; Catholic- 34%; Jewish 33%; Other religion- 32%; No religion- 29%. For the sub-category of White evangelical or born again Christians, 78% voted Republican.

Results On Ballot Issues of Interest

Here are unofficial voting results from yesterday on several ballot issues of interest to Religion Clause readers:

Alabama Issue 1 adding a state constitutional amendment banning use of "foreign law" in Alabama courts passed with 72% in favor. (99% of votes counted) (full voting results).

Colorado personhood amendment (Amendment 67) defeated with 64.29% voting no. (17 of 64 counties not fully counted) (full voting results).

Illinois Advisory Question on requring contraception coverage as part of drug coverage passed with 66% in favor. (92% of votes counted) (full voting results).

North Dakota "life begins at conception" amendment defeated with 64.13% voting no. (100% of votes counted) (voting results).

Tennessee Amendment 1 adding a state constitutional amendment allowing regulation of abortion passed with a vote of 52.61% in favor. (100% of votes counted) (voting results).

Many Polling Places Are In Houses of Worship

Yesterday's Houston Chronicle explores the widespread practice of using churches and other houses of worship as polling places. Reporting on one Texas county, the paper says:

As Harris County voters Tuesday help select a new governor and other key officials in an unusually contentious mid-term election, many will cast their ballots at places of worship. Almost one-fifth of the county's 1,069 precincts vote in churches. And while election officials say they endeavor to ensure that such venues are neutral, recent studies suggest that even when overt political messages are absent, religious spaces can subtly affect voter choices.

Belgium's Top Administrative Court Invalidates School Bans On Religious Headwear

Strasbourg Observers blog reported yesterday on two Oct. 14 decisions by Belgium's Council of State (its highest administrative court) invalidating school regulations that banned students from wearing religious headwear or other religious insignia. The bans at issue were imposed by the Flemish Community Education Board. One of the cases decided by the court involved a Sikh turban or patka and the other involved a Muslim headscarf-- the main target of the regulations. The Court held:

Taking into account the proportionality requirement, a justification is all the more necessary as the litigious ban might lead to a denial of access to education for students for the sole reason that they exercise a fundamental right, without it being adequately demonstrated that they disrupt the public order or endanger the rights and freedoms of others.

The full text of the decisions (Case 228.751 and Case 228.752 ) are available in Dutch. [Thanks to Paul deMello for the lead].

Crimea Related Sanctions Lead To Issues For Russian Jews

After the United States and Western European nations imposed sanctions on Russia over of its annexation of Crimea and its support for rebels in eastern Ukraine, Russia imposed counter-sanctions barring import of European agricultural products.  To make up for the lost European produce, agricultural imports from Israel to Russia have increased dramatically.  According to yesterday's Jerusalem Post, this has created problems for religious Jews in Russia who want to comply with strict interpretations of religious law barring consumption of produce grown in Israel during the Biblical sabbatical year (which is this year). Russia's Congress of Jewish Religious Organizations met in Moscow this week to discuss the matter.

Federal District Court Issues Preliminary Injunction Against Kansas Same-Sex Marriage Ban

In Marie v. Moser, (D KS, Nov. 4, 2014), a Kansas federal district court issued a preliminary injunction barring Kansas officials from enforcing any law that prohibits the issuance of marriage licenses to same-sex couples. However, because of lack of standing, the injunction does not extend to Kansas provisions that prohibit the recognition of same-sex marriages performed elsewhere. The court stayed its injunction until Nov. 11 to give defendants time to appeal to the 10th Circuit. The 10th Circuit has already struck down same-sex marriage bans in Utah and Oklahoma. The Topeka Capital-Journal reports on the decision.

Home Province British Columbia Reverses Approval of Christian Law School

In Canada, the controversial Trinity Western University has been dealt a severe setback in its efforts to create a law school based on Christian teachings.  As reported yesterday by Life Site News, benchers of the British Columbia Law Society have voted to rescind their previous approval of the law school after a referendum of the entire membership voted 3 to 1 against the school because of its "community covenant" which requires staff, faculty and students to refrain, among other things, from sex outside of heterosexual marriage. (See prior posting.) Because the school is based in British Columbia, it will be particularly difficult to operate if students are ineligible for bar membership in their home province. The school is now considering whether to appeal the decision to the courts.

Suit Challenges Rules For Preaching On Boardwalk

A lawsuit was filed in New Jersey federal district court last week challenging the regulations governing preaching and distributing religious material on the Boardwalk at Point Pleasant Beach, NJ.  The complaint (full text) in Paoella v. Borough of Point Pleasant Beach, New Jersey, (D NJ, filed 10/24/2014), alleges:

Plaintiff, as an exercise of his Christian beliefs, intends to go to the public areas of the Boardwalk, hold a sign expressing a religious message, and speak about God and hand out religious literature to those who wish to receive his message. 

However the Borough insists that in order to do so, plaintiff Joseph Paoella must first submit a "hold harmless" agreement, a "Religious Activities Application and Facility Use Form," a Memorandum of Understanding, and proof of insurance satisfactory to the Municipal Clerk. Paoella alleges that his violates his rights under the 1st and 14th amendment as well as comparable state constitutional protections.  NJ Advance Media reports on the filing of the lawsuit.

Overview of Malaysian Dispute On Use of "Allah" By Non-Muslims To Refer To God

Today's New York Times carries an interesting overview of the conflict in Malaysia regarding non-Muslims speaking or writing in the Malay language using the word "Allah" to mean "God."  Christians , who make up 10% of Malasia's population, regularly use the term, while the country's Islamic councils say it is reserved for Muslims.

Supreme Court Hears Oral Arguments On Passport Designation For Americans Born In Jerusalem

The U.S. Supreme Court today heard oral arguments in Zivotofsky v. Kerry,  involving  a dispute between Congress and the Executive Branch over the constitutionality of a statute that calls for the State Department to change its policy and allow "Israel" rather than "Jerusalem" to be listed as the birthplace of Americans born in Jerusalem. The full transcript of the arguments are available on the Court's website. SCOTUSblog has a detailed report on the arguments, suggesting that the various justices were playing "diplomat for a day." This is the second time the case has been before the Supreme Court. (See prior posting.)

Certiorari Denied In NYC Pregnancy Center and Texas Episcopal Church Property Cases

The U.S. Supreme Court today (Order List) denied review in two groups of cases of interest to Religion Clause readers.

The first involved a challenges to the New York City ordinance requiring pregnancy service centers to disclose various items to potential clients. The 2nd Circuit upheld (by a 2-1 vote) the requirement to disclose whether or not there is a licensed medical provider on staff. It unanimously struck down the requirements to disclose whether or not the center provides or refers out for abortion, emergency contraception and prenatal care, and a requirement to disclose that the New York health department encourages women who may be pregnant to consult a licensed medical provider. (See prior related posting.) The cases are Evergreen Association, Inc.  v. New York, NY, Docket No. 13-1462, cert. denied 11/3/2014) and Pregnancy Care Center v. New York, NY, (Docket No. 13-1504, cert. denied 11/3/2014). Reuters reports on the denial of review.

The Supreme Court also denied review in Episcopal Church v. Episcopal Diocese of New York, (Docket No. 13-1520, cert. denied 11/3/2014).  The petition involved related decisions by the Texas Supreme Court in two cases holding that the neutral principles approach must be used in deciding ownership of property of the break-away Fort Worth diocese. (See prior posting.) AP reports on the Supreme Court's action.

Issues of Interest on Tomorrow's State Ballots

Tomorrow is election day. Here are some of the ballot issues in various states that may be of interest to Religion Clause readers:

• Alabama- Statewide Amendment 1: Alabama Foreign Laws In Court.
• Colorado- Amendment 67: Definition of Personhood.
• Illinois- Advisory Question: Birth Control in Prescription Drug Coverage.
• North Dakota- Measure 1: Life Begins At Conception Amendment.
• Tennessee- Amendment 1: Legislative Powers Regarding Abortion.

Recent Articles of Interest

From SSRN:

• Terri Day, Leticia M. Diaz & Danielle Weatherby, A Primer on Hobby Lobby: For-Profit Corporate Entities’ Challenge to the HHS Mandate, Free Exercise Rights, RFRA’s Scope, and the Nondelegation Doctrine, (October 26, 2014).
• Mohamad A. Arafa, Islamic Policy of Environmental Conservation: 1,500 Years Old – Yet Thoroughly Modern, (16 European J. L. Reform 2 (EJLR), Special Issue on Islamic Law (Spring 2014)).
• Steven Douglas Smith, Equality, Religion, and Nihilism, San Diego Legal Studies Paper No. 14-169 (2014)).
• Paul Horwitz, The Hobby Lobby Moment, (Harvard Law Review, Forthcoming).
• John Witte, Religious Sources and Dimensions of Human Rights, (G. J. Buis, J. T. Sunier, and P.G.A. Veenstra, eds., "Risky Liasions? Democracy and Religion: Reflections and Case Studies" (Amsterdam: VU University Press, 2013)).
• Thomas C. Berg, Religious Accommodation in the Welfare State, (Harvard Journal of Law and Gender, 2014, Forthcoming).
• Andrew Coleman, The Islamic State and International Law: An Ideological Rollercoster?, (October 29, 2014).
• Kathryn Chan, The Co-Optation of Charitable Resources by Threatened Welfare States, (Queen's Law Journal, Vol. 40, 2015, Forthcoming).
• Khrista Johnson, The Charitable Deduction Games: Catching Change, (Georgia State University Law Review, Vol. 30, No. 4, 2014).
• Khrista Johnson, The Charitable Deduction Games: Are the Laws in Your Favor?, (Columbia Journal of Tax Law, Vol. 5, 2013).
• Clarke Jones, Are Prisons Really Schools for Terrorism? Challenging the Rhetoric on Prison Radicalisation, (Punishment and Society 16(1): 74-103 (2014)).

From elsewhere:

• C.G. Bateman, Method and Metaphysics: A Legal Historian’s Canon, ((2014) Journal of Jurisprudence 255.
• Faisal Kutty, Creeping Sharia or Conspicuous Islamophobia, Columbia Journal of International Affairs, Oct. 28, 2014.

Israel's Cabinet Approves Regulation That Will Ease Conversions To Judaism

In a controversial move, Israel's cabinet today approved an administrative regulation that will permit municipal chief rabbis to create conversion courts.  The Jerusalem Post reports that the new regulation, which is strongly opposed by the Chief Rabbinate and haredi (ultra-Orthodox) political parties, will ease the way for conversion for many Russians  who emigrated to Israel under the Law of Return. The government's action came as the Knesset threatened to pass its own bill. Using the route the cabinet did makes it easier to repeal the decision in the future.

Recent Prisoner Free Exercise Cases

In Turner v. Hamblin, (7th Cir., Oct. 27, 2014), the 7th Circuit affirmed the dismissal of a Muslim inmate's complaint that Islamic services were canceled when non-prisoners were unavailable to lead them, while Christian services were never canceled.

In Lewis v. Grounds, 2014 U.S. Dist. LEXIS 152288 (SD IL, Oct. 28, 2014), an Illinois federal district court permitted a Hebrew Israelite inmate to proceed with his claim that the prison grooming policy requires him to violate his Nazarite vow to never cut his "hairlocks."

In Bailey v. Ingram, 2014 U.S. Dist. LEXIS 152493 (ED KY, Oct. 24, 2014), a Kentucky federal district court dismissed a Catholic Cherokee inmate's complaint that he was terminated from his kitchen job for attending a Christian religious encounter event rather than reporting for work.

In Manges v. Harman, 2014 U.S. Dist. LEXIS 152969 (ND IN, Oct. 29, 2014), an Indiana federal district court dismissed most of the claims by an inmate described as a "serial grievance filer" who complained of various instances in which he was prevented from attending Eastern Orthodox religious services. However the court permitted him to move ahead on two retalitation claims.

In Hollins v. Munks, 2014 U.S. Dist. LEXIS 153462 (N.D. Cal.Oct. 29, 2014), a California federal district court dismissed a complaint by a Muslim inmate that he had not received a Halal diet.

In Comundoiwilla v. Liles, 2014 U.S. Dist. LEXIS 153593 (E CA, Oct. 29, 2014), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that he was not permitted to attend congregational Jumu'ah prayer services for two years because of his confinement status.

In Cash v. Armstrong, 2014 U.S. Dist. LEXIS 153739 (ED TN, Oct. 29, 2014), a Tennessee federal district court permitted an inmate to proceed with his complaint that he was not adequately furnished items he needed for his planned conversion to Islam.

Federal District Court Holds Humanism Is A Religion

In American Humanist Association v. United States, (D OR, Oct. 30, 2014), an Oregon federal district court held that "Humanism is a religion for Establishment Clause purposes," observing that "such a view is consistent with longstanding Supreme Court jurisprudence." The holding comes in a case in which a federal prisoner sought recognition of Humanism so the prison would create a Humanist study group.

Extremist Hindu Groups In India Using Violence To Prevent Hindu-Muslim Marriages

Today's New York Times carries an opinion piece on right-wing extremist Hindu groups in India that are using violence to stop marriages between Hindu women and Muslim men, saying in part:

right-wing politicians have used the boogeyman of love jihad in states with sizable Muslim populations like Gujarat and Maharashtra to present themselves as the protectors of Hindu virtue and win Hindu votes. Their behavior fit the descriptions of a hate crime, although no charges have ever been filed against them. 

Philadelphia Passes Hate Crimes Ordinance

The Philadelphia Inquirer reports that on Thursday Philadelphia City Council unanimously passed Bill No. 140720 (full text) which provides an additional penalty of up to 90 days in jail and a $2000 fine where any of several crimes are motivated by hatred toward the actual or perceived sexual orientation, gender or gender identity, or disability of the victims. It is expected that Mayor Nutter will sign the bill into law.

Egyptian Court Sentences Men In Gay Wedding Party To 3 Years In Prison

AP reports tht in Egypt today, 8 men who were shown in an Internet video as part of a same-sex wedding party were each sentenced to 3 years in prison for "inciting debauchery."  According to AP:

The verdict is the latest in a crackdown by authorities against gays and atheists. The campaign also targets liberal and pro-democracy activists and violators of a draconian law on street protests.

(See prior related posting.)

Abuse Victim Awarded $13.5 M In Suit Against Jehovah's Witness Watchtower Society

The San Diego Union Tribune reports that last Wednesday a California state trial court judge awarded compensatory and punitive damages totalling $13.5 million to 36-year old Jose Lopez who, in 1986 as a 7-year old child, was sexually molested by Jehovah's Witness church leader Gonzalo Campos. After the victim's mother reported the abuse the church decided Campos was repentant, and he rose through the ranks, was expelled for a few years after another victim came forward, but was then reinstated.  The judge had previously imposed sanctions on the church's governing body, the Watchtower Bible and Tract Society of New York, for not producing documents, and it was precluded from presenting evidence in defense in the 6-day trial.

GITMO Detainee Seeks End To Use of Female Guards In Transporting Him

On Oct. 16, lawyers for Guantanamo detainee Abdul Hadi al Iraqi filed an Emergency Motion (full text, redacted) with the Military Commission seeking an order to prohibit female guards from being used during al Iraqi's transfers to and from hearings and meetings with attorneys.  Al Iraqi's Muslim beliefs prohibit him from having physical contact with women, which occurs during guards' shackling and unshackling him.  In seeking relief, al Iraqi's attorneys cite RFRA, as well as the 1st, 5th and 6th Amendments.  A hearing on the motion is scheduled for Nov. 17. Reporting on developments, the Miami Herald focuses on the decision by military censors to black out references to "female" and "male" in the redacted version of the motion.

Justice Alito Gets Award From St. Thomas More Society

The St. Thomas More Society of Maryland yesterday presented U.S. Supreme Court Justice Samuel Alito with its "Man for All Seasons Award."  According to The Daily Record, Catholic groups have particularly praised Alito for his majority opinion earlier this year in Burwell v. Hobby Lobby Stores. The award was presented to Justice Alito at the Society's Red Mass Banquet.

Florida Supreme Court Removes Trial Judge For Promoting Her Faith-Based Business From Courtroom

In Re: Judith Hawkins, (FL Sup. Ct., Oct. 30, 2014), the Florida Supreme Court, imposing a harsher penalty than recommended by a Hearing Panel (see prior posting), removed a Florida trial court judge from the bench. One of the major charges against Judge Hawkins was that she used her judicial office to promote her business, Gaza Road Ministries, and her book based on Biblical stories. She sold her Gaza Road Ministry products to lawyers appearing before her, promoted the products online wearing her judicial robes, and used her judicial assistant to promote and produce the products. She also failed to pay state sales tax on the sale of her books and failed to register her business.  AP reports on the court's decision.

IRS Approves Leave-Based Programs That Contribute To Non-Profits Fighting Ebola

On Wednesday, the Internal Revenue Service announced the release of Notice 2014-68 that encourages contributions to non-profits, including religious non-profits, that are engaged in fighting the Ebola outbreak in Guinea, Liberia, and Sierra Leone.  Under the ruling, employers may set up leave-based programs under which the employer will make a contribution to fight Ebola when an employee forgoes vacation, sick leave or personal leave.  Contributions made by the employer will not be considered gross income or wages of the employee. Concomitantly, the employee may not claim a charitable deduction for the payments.

4th Circuit Hears Oral Arguments In County Board Invocation Policy

Tuesday's arguments (audio of full arguments) in Hudson v. Pittsylvania County, Virginia are now available on the 4th Circuit Court of Appeals' website.  In the case, a Virginia federal district court held that the prayer policy of Pittsylvania County differed from the policy upheld by the U.S. Supreme Court in the Town of Greece case. (See prior posting.)  Much of Tuesday's 4th Circuit arguments focused on the timeliness of the appeal and liability for legal fees. Go Dan River reports on the oral arguments.

Catholic Hospital's Disability Plan Does Not Qualify As A "Church Plan" Exempt From ERISA

In Hanshaw v. Life Insurance Company of North America, (WD KY, Oct. 24, 2014), a Kentucky federal district court held that a long term disability insurance plan offered to its employees by a Catholic hospital is covered by ERISA and does not qualify as an exempt "church plan." The court held that even if it is sufficient to qualify for an exemption that a plan is established and maintained by an organization affiliated with a church rather than by the church itself, ERISA also requires that the organization have as its principal purpose the administration or funding of a benefits plan.  Here the hospital's primary purpose is the provision of health care, not the administration of a benefits plan. Since the plan is covered by ERISA, the court upheld defendant's removal of the case to federal court.

New York's Top Court OKs Marriage With Half-Niece

In Nguyen v. Holder, (NY Ct. App., Oct. 28, 2014), the New York Court of Appeals-- the state's highest court--  answering a question certified to it by the Second Circuit, held that a marriage between a man and his half-niece (i.e. between a woman and her mother's half-brother) is not void as incestuous under the state's Domestic Relations Law. The issue arose in an immigration proceeding involving a woman who claimed permanent residency status by reason of her marriage to an American citizen.  New York Post reports on the decision. [Thanks to Alliance Alert for the lead.]

Signatures Sought For Mississippi Amendment Affirming State's Christian and Southern Heritage

After its filing was approved earlier this month by the Mississippi Secretary of State, the Magnolia State Heritage Campaign is seeking to obtain the 107,000 signatures needed to place Initiative 46, the Mississippi Heritage amendment (full text), on the 2016 ballot. Among the provisions in the lengthy proposed state constitutional amendment is the following:

The State of Mississippi hereby acknowledges the fact of her identity as a principally Christian and quintessentially Southern state, in terms of the majority of her population, character, culture, history, and heritage, from 1817 to the present; accordingly, the Holy Bible is acknowledged as a foremost source of her founding principles, inspiration, and virtues; and, accordingly, prayer is acknowledged as a respected, meaningful, and valuable custom of her citizens. The acknowledgments hereby secured shall not be construed to transgress either the national or the state Constitution’s Bill of Rights.

Hotty Toddy yesterday reported on the Initiative.

Buddhist Group Presses Burma Parliament To Restrict Interfaith Marriage

According to a report yesterday from The Irrawaddy, in Burma the influential Association for the Protection of Race and Religion (known as  Ma Ba Tha) is organizing demonstrations calling for passage of the Interfaith Marriage Bill that the Buddhist nationalist organization first proposed last year.  Prompted by concerns over Buddhist women marrying Muslim men, the bill would require Buddhist women to obtain permission from their parents and government authorities before marrying a man of another faith.  It would also require the man to convert to Buddhism. The bill is strongly opposed by women's rights and other civil society organizations.

Houston Withdraws Controversial Subpoenas Issued To Pastors

Houston (TX) Mayor Annnise Parker announced yesterday the complete withdrawal of subpoenas the city had issued to 5 pastors seeking information about their support of a petition drive to obtain a referendum on the city's recently enacted Equal Rights Ordinance. (See prior posting.) According to Click2 Houston, while announcing withdrawal of the subpoenas, the mayor said that the city will continue to defend the ordinance against repeal efforts.  The mayor's decision comes one day after pastors from across the country came to Houston to protest, and people across the country mailed more than 1000 Bibles to the mayor as a protest.

Preliminary Injunction Issued Against Latest Religious Non-Profit ACA Contraceptive Compromise

Yesterday a Florida federal district court handed down the first judicial decision on the Obama Administration's August 2014 Interim Final Rules that attempted to create a more acceptable compromise for religious non-profits subject to the Affordable Care Act contraceptive coverage mandate.  In Ave Maria University v. Burwell, (MD FL, Oct. 28, 2014), the court granted a preliminary injunction against enforcing the new rules against a religiously affiliated university.  The court relied heavily on the 11th Circuit's decision in late June granting an injunction pending appeal to Eternal Word Television Network, a religious broadcasting network that was challenging the prior version of the regulations accommodating religious non-profits. (See prior posting.) Explaining this reliance, the district court yesterday said:

In Eternal Word, under the 2013 Final Rules, an eligible organization was required to submit the Form 700 to its insurance issuer in order to self-certify....  Here, pursuant to the Interim Final Rules, Ave Maria may, instead, send a notice containing certain information about its insurance issuer and plan directly to HHS in order to self-certify. It is the Court’s conclusion that this distinction is not so significant as to warrant departure from the Eleventh Circuit’s precedent in Eternal Word. 

The court then stayed further proceedings in the case until the 11th Circuit decides the pending appeal in Eternal Word. Naples Daily News reports on the decision.

Halloween Not For Muslims Says Malaysian Fatwa Council

In Malaysia yesterday, the National Fatwa Council released a ruling on its website categorizing Halloween as a Christian holiday that celebrates the dead.   According to Malay Mail Online, the fatwa said in part:

The Halloween celebration is clearly against the values of Shariah.  It cannot be celebrated by Muslims. To remember those who have passed away, Islam suggests the practices of reciting doa (prayers) and Quran.

Cuba Approves First New Catholic Church Building In 55 Years

Construction of the first Catholic Church to be built in Cuba in 55 years has been approved by the Cuban government, according to yesterday's Latin America News Dispatch.  The new church will be built in Sandino, a town on Cuba's west coast, and will be financed by the Cuban exile community in Tampa, Florida.

New Mexico Court Upholds Furnishing Instructional Materials To Private and Religious Schools

In Moses v. Skandera, (NM App., Oct. 26, 2014), a New Mexico appellate court upheld New Mexico's Instructional Materials Law which provides for the state purchase of books and instructional materials for students in public and private schools, including religious schools.  The court rejected claims that the law violated various provisions of the New Mexico Constitution, including Art. XII, Sec. 3 which prohibits funds appropriated for educational purposes from being used to support any sectarian, denominational or private school. Becket Fund, in a press release, called the decision "a blow to anti-religious Blaine Amendments found in many State constitutions."  AP reports on the decision.

Kazakhstan Court Upholds Elementary School's Ban On Muslim Headscarf For 6-Year Old

In the central Asian Republic of Kazakhstan, where 70% of the population is Muslim, a court has upheld a school's refusal to allow a 6-year old girl to wear a headscarf that her family believes is religiously required.  According to Tengri News yesterday, the Burlin District Court of West Kazakhstan Oblast rejected claims by the girl's father that she was being denied her constitutionally protected right to education on the basis of religion. The father believes that Sharia law requires Muslim women to cover their head, regardless of their age.

Israeli Cult Leader Sentenced To 30 Years In Prison

The Jerusalem Post reports that yesterday an Israeli 3-judge court sentenced 64-year old cult leader Goel Ratzon to 30 years in prison. Before his arrest in 2010, Ratzon had 21 wives and over 40 children who had been part of his cult for 39 years.  He was convicted of sex crimes and financial fraud for his long pattern of requiring his wives to hand over their money to him, tattoo his name and image on their bodies, cut off ties with family and fulfill his demands, including sexual ones. He was acquitted of the charge of "spiritual enslavement."

Pope Francis Affirms Consistency of Bible With Evolutionary Theory

As reported by Vatican Radio, Pope Francis yesterday delivered an address to the Pontifical Academy of Sciences, dedicating a bust of his predecessor Benedict XVI in the Academy building. His address (full text) affirmed the consistency of the Biblical account of creation and modern science's understanding of evolution.  He said in part:

When we read in Genesis the account of Creation, we risk imagining that God was a magician, with such a magic wand as to be able to do everything. However, it was not like that. He created beings and left them to develop according to the internal laws that He gave each one, so that they would develop, and reach their fullness. He gave autonomy to the beings of the universe at the same time that He assured them of his continual presence, giving being to every reality. And thus creation went forward for centuries and centuries, millennia and millennia until it became what we know today, in fact because God is not a demiurge or a magician, but the Creator who gives being to all entities. The beginning of the world was not the work of chaos, which owes its origin to another, but it derives directly from a Supreme Principle who creates out of love. The Big-Bang, that is placed today at the origin of the world, does not contradict the divine intervention but exacts it. The evolution in nature is not opposed to the notion of Creation, because evolution presupposes the creation of beings that evolve.

Today Is 5th Anniversary of Expanded Hate Crimes Law

Today is the 5th anniversary of the enactment of the Matthew Shepard and James Byrd, Jr. Hate Crimes Pre­ven­tion Act (Pub. L. 111-84).  The important legislation was enacted essentially as a rider to the lengthy 2010 National Defense Authorization Act. (See prior posting.)  In a blog post earlier this month, the ADL reviews the history of the law and the present state of hate crimes enforcement.

Today Is International Religious Freedom Day

In a press release issued today, the U.S. Commission on International Religious Freedom reminds us that today is International Religious Freedom Day, marking the 16th anniversary of the passage of the International Religious Freedom Act of 1998 (IRFA).

Westboro Baptist Church Seeks To Intervene In Kansas Same-Sex Marriage Case

As reported by the Washington Blade, yesterday the virulently anti-gay Kansas-based Westboro Baptist Church filed a motion (full text) to intervene as a defendant in Marie v. Moser, a Kansas federal court lawsuit challenging Kansas' ban on same-sex marriages. In its 26-page motion filled with religious references and quotations, the church argues:

WBC desires to assert that it is constitutional folly to suggest that a sinful-behavior-based union should be a union that is afforded civil rights and granted the imprimatur of respectability by a license from the government; and that in doing so the government violates its duty of religious neutrality; and puts itself in the position of imposing sin on the citizens, to the great detriment and harm of the health and welfare of the citizenry....

The Kansas Attorney General is unable to adequately represent WBC because to do so would cause the Attorney General to assert religious viewpoints and constitutionally protected religious rights, which is arguably contrary to the duty of the government to remain neutral on matters of religion, and would constitute a breach of the separation of church and state doctrine.

City Now Says Ministers' For-Profit Wedding Chapel Need Not Perform Same-Sex Marriages

In Coeur d'Alene, Idaho, the Hitching Post, a for-profit wedding chapel across the street from the county clerk's office now seems in the clear to refuse to perform same-sex marriages.  Earlier this month, the ministers filed suit against the city which had threatened to enforce its non-discrimination ordinance against the chapel. (See prior posting.) However now, as reported Friday by Boise State Public Radio, the city attorney says that the chapel is exempt, even though it is a for-profit entity.   Last month it reorganized as a limited liability company and provided in its operating agreement: "The Hitching Post is a religious corporation owned solely by ordained ministers of the Christian religion who operate this entity as an extension of their sincerely held religious beliefs and in accordance with their vows taken as Christian ministers."

On Friday, the Kootenai County Task Force on Human Relations sent a statement (full text) to Couer d'Alene officials agreeing that the chapel is exempt:

When they are performing a religious activity like marrying people, ministers have the right to choose which marriages they will solemnize. That's why we don't think the public accommodation law applies to ministers making choices about performing marriages. So, if the only service offered is a religious wedding ceremony performed by a minister, then the law would not apply. But that reasonable exception doesn't change the general rule that businesses that open their doors to the public to provide services, including services related to weddings, cannot turn people away just because of who they are.

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.]