Religion Clause

Thursday, February 19, 2015

Court Says Florist Violated Washington Public Accommodation Law In Refusing Flowers For Same-Sex Wedding

In State of Washington v. Arlene's Flowers, Inc., (WA Super. Ct., Feb. 18, 2015), a Washington state trial court held that a florist shop violated the Washington Law Against Discrimination and the state's Consumer Protection Act when the shop's owner advised a customer that for religious reasons she could not provide flower arrangements for his same-sex wedding ceremony. (See prior related posting.) The court rejected defendants' argument that application of the law to require the shop to provide flower arrangements for a same-sex wedding violates their free expression and free exercise rights. Addressing the 1st Amendment speech claim, the court said:

Defendants offer no persuasive authority in support of a free speech exception (be it creative, artistic, or otherwise) to anti-discrimination laws applied to public accommodations.

Defendants' strongest constitutional argument turned on the Washington state constitution's free exercise clause, which gives greater protection than the 1st Amendment. However the court rejected defendants' claims, concluding that even if the laws impose a substantial burden on defendants' religious exercise, the state has a compelling interest in combating discrimination in public accommodations. The court went on to reject defendants' argument that a more narrowly tailored approach would allow defendants to deny goods and services on the basis of sexual orientation and merely refer the customer to a non-discriminating business. The court said: "This rule would, of course, defeat the purpose of combatting discrimination...."

Washington state Attorney General Bob Ferguson welcomed the decision, saying: "The law is clear: If you choose to provide a service to couples of the opposite sex, you must provide the same service to same-sex couples."

California Court Says Iranian Forum Would Discriminate Against Women and Non-Muslims

In Aghaian v. Minassian, (CA App., Feb. 17, 2015), a California state appellate court held that Iranian citizens living in the United States should not be required to litigate a dispute with other Iranian citizens over property in Iran in an Iranian court. Reversing the trial court's forum non conveniens stay of the action in California, the appellate court said:

[T]he evidence is overwhelming that Iranian courts discriminate against women and non-Muslims. Among other things, Plaintiffs submitted evidence that the testimony of a woman counts for half the value of that of a man, and that women are not treated equally before the courts, particularly in personal status matters relating to marriage, divorce, inheritance, and child custody, and only men can serve as judicial officers.... [T]he judiciary in Iran is heavily influenced by religious authorities and ... the law requires the head of the judiciary as well as the prosecutor general and all Supreme Court judges to be high ranking clerics....

Two of the three Plaintiffs here are women and [plaintiffs] family members are not Muslim. Leaving aside whether Iranian courts are independent or corrupt, this is sufficient to show Iran is not a suitable alternative forum. This is the “rare circumstance” in which an alternative forum “provides no remedy at all.”

Los Angeles Metropolitan News-Enterprise reports on the decision.

Wednesday, February 18, 2015

Fired Atlanta Fire Chief Sues Mayor and City

Today former Atlanta Fire Chief Kevin Cochran filed a federal court lawsuit against Atlanta Mayor Kasim Reed and the City of Atlanta claiming that Reed's firing of Cochran last month violated Cochran's 1st and 14th Amendment rights. (See prior related posting.) The 54-page complaint (full text) in Cochran v. City of Atlanta, Georgia, (ND GA, filed 2/18/2015) contends that

[Reed] terminated Cochran for holding historical Christian beliefs about marriage and sexuality and making those views known in a self-published, non-work-related, religious book.

As reported by the Atlanta Journal-Constitution, Cochran's book, titled Who Told You That You Were Naked?: Overcoming the Stronghold of Condemnation, includes passages that describe homosexuality as a "sexual perversion" akin to bestiality. Cochran gave copies of his book to a number of city officials and employees. The suit seeks reinstatement, damages and an end to city policy that requires pre-clearance before employees publish a work. ADF issued a press release announcing the filing of the lawsuit.

School Drops Required Disclaimer In Settlement of Suit On Student-To-Student Distributions

A suit filed last year (background) against a Loomis, California elementary school was settled last week with the school agreeing to change its policy on student distribution of invitations and flyers. At issue was a reprimand to a student for handing out invitations to two of her friends for a "Genesis Apologetics" event that would discuss creation and evolution. The school insisted that even though the distribution was outside of class time, the flyers had to be stamped by the school with a disclaimer of sponsorship. According to a press release from Pacific Justice Institute, under the settlement the school will no longer insist on disclaimers on material given from one student to another.

City's Solicitiation Ordinance Held Too Restrictive

In United States Mission Corp. v. City of Mercer Island, (WD WA, Feb. 10, 2015), a Washington federal district court granted a preliminary injunction against enforcement of a Seattle suburb's solicitation ordinance in a suit by a Christian religious organization. The Mission operates residential facilities for the homeless, and requires its residents to engage in door-to-door religious solicitation on its behalf. The challenged ordinance bars door-to-door solicitations (but not proselytizing without soliciting funds) after 7:00 p.m. The Mission engages in residential solicitations between 5:00 p.m. and 8:00 p.m. on weekdays. The court held that prior cases "have continuously found that curfews prior to 9:00 p.m. are not sufficiently connected to a municipality's interest in crime prevention" to meet the compelling interest- least restrictive means requirement for content-based regulation of speech.

According to the Mercer Island Reporter, City Council will meet on Feb. 23 to amend the solicitation ordinance to comply with the court's holding.

Cert Filed In RLUIPA Zoning Case

AP reported yesterday that a petition for certiorari has been filed with the U.S. Supreme Court in Chabad Lubavitch of Litchfield County, Inc. v. Litchfield Historic District Commission, In the case, the U.S. Second Circuit Court of Appeals held that the district court had applied erroneous legal standards in deciding whether a refusal to allow a Jewish group to expand a building in Litchfield's Historic District violates RLUIPA’s substantial burden and nondiscrimination provisions. (See prior posting).

Chicago Muslim School Head Charged With Sexual Abuse of Female Staffer and Students

AP reported yesterday that 75-year old Mohammad Abdullah Saleem, founder and long-time head of the suburban Chicago Institute of Islamic Education, has been criminally charged with sexually abusing a female school employee beginning in 2012. Saleem denies the allegations. Saleem has also been sued civilly by the female victim and three female former-students who also allege sexual abuse dating back as early as the 1980's. Saleem is considered a leading Islamic scholar in the U.S. The civil suit charges the school with failure to protect students and asks for over $1.5 million in damages.

Tuesday, February 17, 2015

Apocalyptic Visions and ISIS' Actions

CNN's Peter Bergen posted a column yesterday titled Why Does ISIS Keep Making Enemies?, explaining the violent murders by ISIS as the "ideology ... of an apocalyptic cult that believes that we are living in the end times and that ISIS' actions are hastening the moment when this will happen." He argues that ISIS is focused on a prediction of the Prophet Mohammed that the Syrian town of Dabiq is the place where the armies of Islam and "Rome" will meet for the final battle that will precede the end of time and signal the triumph of Islam. Bergen says that ISIS wants a Western ground force to invade Syria to confirm the prophecy about Dabiq. (A much longer analysis of ISIS ideology appears in an article by Graeme Wood in the latest issue of The Atlantic.)

As reported by Time Magazine, ISIS' video released Sunday showing the execution of 21 Egyptian Coptic Christians is narrated in religious terms. The executioner points his knife toward the Mediterranean and says in English: "We will conquer Rome, by Allah’s permission."

Yesterday, in an address to representatives of the Church of Scotland, Pope Francis responded to the ISIS killings in equally religious terms (full text):

Today I read about the execution of those twenty-one or twenty-two Coptic Christians.... They were killed simply for the fact that they were Christians.... The blood of our Christian brothers and sisters is a testimony which cries out to be heard. It makes no difference whether they be Catholics, Orthodox, Copts or Protestants. They are Christians! Their blood is one and the same. Their blood confesses Christ. As we recall these brothers and sisters who died only because they confessed Christ, I ask that we encourage each another to go forward with this ecumenism which is giving us strength, the ecumenism of blood. The martyrs belong to all Christians.

The White House, however, went out of its way to avoid framing its response to ISIS' latest atrocities in the kind of apocalyptic terms ISIS apparently prefers. Sunday's statement by the White House press secretary (full text) after the release of ISIS' video studiously avoided painting the murders in terms of an Islamic battle against Christianity, saying in part:

The United States condemns the despicable and cowardly murder of twenty-one Egyptian citizens in Libya by ISIL-affiliated terrorists.... ISIL’s barbarity knows no bounds. It is unconstrained by faith, sect, or ethnicity. This wanton killing of innocents is just the most recent of the many vicious acts perpetrated by ISIL-affiliated terrorists against the people of the region, including the murders of dozens of Egyptian soldiers in the Sinai, which only further galvanizes the international community to unite against ISIL.

Three Australian Rabbis Resign As Result of Government Inquiry Into Sex Abuse Scandals

JTA reported yesterday that in Australia, three leading Orthodox rabbis have resigned from at least some of their positions as a result of an inquiry by Australia’s Royal Commission into how Chabad officials responded to child sex abuse scandals in the 1980's and 90's at two institutions-- Yeshivah College in Melbourne and Sydney’s Yeshivah Centre. Yesterday's Melbourne Herald Sun has additional details.

The Guardian reports that a turning point in the Commission's inquiry came earlier this month when Rabbi Moshe Gutnick, a senior judge of the Sydney Beth Din, told the Commission that a "culture of cover-up, often couched in religious terms" had pervaded the two schools. One of those resigning was the country's most senior rabbi-- Meir Shlomo Kluwgant, president of the Organisation of Rabbis of Australasia. His resignation was prompted by a text message he sent while the father of one of the abuse victims was testifying before the Commission. He labeled the father "a lunatic on the fringe, [who is] guilty of neglect of his own children..." Another of those resigning admitted to the Commission that in 2002 he did not know it was illegal for an adult to touch a child's genitals.

Monday, February 16, 2015

Woman Charged In Attack On Neighbor to Force Christian Belief

The Forward yesterday reported on the Feb. 12 arraignment in Boise, Idaho of a 58-year old Christian woman arrested on charges of malicious harassment of her Jewish neighbor. According to the article:

Haragan went to AG’s home on Feb. 5 and banged on her window while shouting that she “better believe in Jesus,” and that she would not leave until AG did... When AG opened the door to get Haragan’s license plate number, Haragan slapped her in the face, pulled her hair and threw her to the ground where she kicked her in the stomach, and then pressed her foot into AG’s throat until the Jewish woman said she would believe in Jesus.

The court has ordered Haragan to have no further contact with AG.

Philadelphia Church Members Sue Claiming Board Misappropriation

The Philadelphia Tribune reported yesterday on a state court lawsuit filed Feb. 5 by members of Philadelphia's historic Zion Baptist Church against the board of trustees and long-time church member Ronald Harper. The suit alleges that Harper as chairman of the trustees misappropriated and misused church assets for personal gain and profit for his law firm. Plaintiffs claim that and the board hid the transactions by making misrepresentations to the deacon board and church membership. The suit seeks an accounting and a forensic audit of the issuance of $18 million in bonds to renovate a church-owned apartment building. The suit also seeks a new membership vote on the ouster of the church's former pastor, Carl Prince, who allegedly was removed because he sought greater financial accountability.

Sunday, February 15, 2015

6th Cirucit Upholds Damage Award To Critic of Judge For Expressing Religious Views

In Pucci v. Nineteenth District Court, (6th Cir., Feb. 13, 2015), the U.S. 6th Circuit Court of Appeals affirmed the $734,000 damage award to court employee Julie Pucci who was fired after she complained to the Michigan State Court Administrative Office about Judge Mark W. Somers' expressing of religious views in the course of performing his judicial duties. It also affirmed the award of over $416,.000 in attorneys' fees. The court upheld the jury's findings that in complaining to SCAO, Pucci was speaking as a citizen on a matter of public concern. (See prior related posting.)

Tennessee Supreme Court Upholds Spiritual Healing Exemption Interpreted Narrowly

In State of Tennessee v. Crank, (TN Sup. Ct.,Feb. 13, 2015), the Tennessee Supreme Court upheld the conviction and sentence to 1-year probation of Jacqueline Crank, a member of the Universal Life Church, who was indicted for child neglect based upon her failure to obtain medical treatment for her daughter. Her daughter died at age 15 of a rare form of cancer. Crank argued for acquittal based on Tennessee's "spiritual treatment" statute, TN Code Ann.39-15-402(c), that prevents prosecution of parents who "provide[] treatment by spiritual means through prayer alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner thereof in lieu of medical or surgical treatment." The trial court however held that the Universal Life Church did not qualify as a "recognized church or religious denomination." Crank appealed arguing that the exemption is unconstitutionally vague, and violates the Establishment and Equal Protection Clauses. The Tennessee Supreme Court rejected the vagueness argument, holding:

Viewed in context, it is apparent that the legislative intent was for the exemption to apply to members of religious bodies which, like the Church of Christian Science, are established institutions with doctrines or customs that authorize healers within the church to perform spiritual treatment via prayer in lieu of medical care. Because the exemption is effectively limited to members of religious groups that closely resemble the Christian Science Church, the terms at issue are not so vague that the scope of the exemption “cannot be ascertained.”

Then, addressing Crank's argument that the exemption narrowed in this way violates the Establishment Clause and Equal Protection Clause, the Supreme Court said it need not decide that question because, even if Crank is correct, this would lead to elision of the entire spiritual treatment exemption from the child neglect statute. The Court issued a press release and summary of the decision. AP reports on the decision.

Recent Prisoner Free Exercise Cases

In Banks v. Secretary Pennsylvania Department of Corrections, (3d Cir., Feb. 9, 2015), the 3rd Circuit affirmed the dismissal of a Muslim inmate's challenge to prison policies on participation in feasts of Eid al-Fitr and Eid al-Adha, and to the use of prayer oils during religious services.

In Harris v. Pimentel, 2015 U.S. Dist. LEXIS 15338 (ED CA, Feb. 9, 2015), a California federal magistrate judge recommended refusing to strike an inmate's complaint that his cell was searched and his Qur'an kicked under the bed, defiled with a boot mark.

In Richardson v. Cheshire County, 2015 U.S. Dist. LEXIS 15903 (D NH, Feb. 6, 2015), a New Hampshire federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 15902, Jan. 14, 2015) and dismissed a Muslim inmate's complaint regarding the meals he received during Ramadan.

In Abdulkarim v. Metropolitan Sheriff Department, 2015 U.S. Dist. LEXIS 16609 (MD TN, Feb. 11, 2015), a Tennessee federal district court allowed an inmate to proceed with his claim that his jail will not provide religious services for Muslim inmates.

In Woodside-Fisher v. Pulley, 2015 U.S. Dist. LEXIS 17319 (WD CA, Feb. 12, 2015), a California federal district court, adopting a magistrate's recommendation, dismissed an inmate's complaint that his food was tampered with because it was a halal food tray, his non-halal tray was not replaced on 3 occasions, an officer made remarks about his religion, and on one occasion he did not have time for a shower because he was praying.

In Gamble v. Kenworthy, 2015 U.S. Dist. LEXIS 17587 (ED NC, Feb. 12, 2015), a North Carolina federal district court dismissed a Muslim inmate's complaint that control status inmates were not allowed to receive special food from outside the institution for Eid al Fitr.

In Scheeler v. Lehigh County Prison, 2015 U.S. Dist. LEXIS 17781 (ED PA, Feb. 12, 2015), a Pennsylvania federal district court dismissed for failure to exhaust administrative remedies and inmate's complaint that he was denied access to his Bible while in the Restricted Housing Unit for 9 days.

Saturday, February 14, 2015

House Holds Hearing On RFRA and RLUIPA

Yesterday the House Judiciary Committee's Subcommittee on the Constitution and Civil Justice held a hearing titled Oversight of the Religious Freedom Restoration Act and the Religious Land Use and Instituionalized Persons Act. The full text of the prepared statements of the four witnesses appearing at the hearing are available on the Committee's website.

Groups Seek Alabama Supreme Court Mandaumus To Stop Same-Sex Marriage Licenses

While Probate Judges in 50 of Alabama's 67 counties have begun to issue marriage licenses to same-sex couples, opposition to a federal district court's invalidation of the state's same-sex marriage ban has not ended. The Alabama Policy Institute and the Alabama Citizens Action Program filed a petition (full text) with the Alabama Supreme Court on Wednesday seeking a writ of mandamus ordering county probate judges not to issue marriage licenses to same-sex couples or recognize licenses issued to them. The petition argues that fededral court injunctions aimed at the state's attorney general do not bind probate judges. The Supreme Court yesterday issued an order, with two justices filing dissenting opinions, (full text) ordering respondents to file answers by Feb. 18. Justice Shaw dissenting said: "I would urge restraint and would urge this Court not to interject more confusion into what is already a very confusing situation." Also yesterday Equality Alabama filed and amicus brief (full text) urging dismissal of the petition. Meanwhile, a Mississippi Ku Klux Klan faction called for support of efforts to defy federal court same-sex marriage rulings.

Friday, February 13, 2015

Rabbi May Be Charged In Up To 88 Cases of Voyeurism

Times of Israel reports on a closed-door meeting held Wednesday evening in Washington, D.C. between federal prosecutors and alleged victims of Rabbi Barry Freundel who was arrested in October for secretly photographing women using the mikveh at Washington's Kesher Israel Synagogue. (See prior posting.) Currently Freundel has been charged with six misdemeanor counts of voyeurism under D.C. Code Sec. 22-3531(b)-(c). However, those attending were told that Freundel taped a total of 152 women. Prosecutors say that charges may be filed in a total of 88 of the cases. Either the statute of limitations has run, or the victim cannot be identified, in the other 64 cases. If convicted, Freundel could be sentenced to a $1000 fine and one year in jail on each count. Prosecutors may negotiate a plea deal, but they say it would have to include jail time. If the cases go to trial, victims would have to identify themselves in the videos, and would be subject to cross-examination.

New Museum of the Bible Being Built In Washington, D.C.

A privately financed $400 million Museum of the Bible is being constructed in Washington, D.C. according to a report today from Haaretz. The Museum, which will be located three blocks from the U.S. Capitol in a historic warehouse that is being extensively renovated, is being built by Steve and Jackie Green, owners of Hobby Lobby stores. It will house the 40,000 item collection of rare printed Bibles, manuscripts, Torahs and Dead Sea scroll fragments belonging to the Greens who are Southern Baptists. The Museum will feature permanent exhibits focusing on the impact, history and narrative of the Bible, as well as rotating displays. Scheduled to open in November 2017, the Museum plans to collaborate with Jewish organizations.

European Court Says Bulgaria's Treatment of Word of Life Member Violated Religious Freedom

In Dimitrova v. Bulgaria, (ECHR, Feb. 10, 2015), the European Court of Human Rights in a Chamber Judgment held that police action against a member of the Word of Life church violated her religious freedom rights protected by the European Convention on Human Rights. As recounted by the Court:

[A] complaint was submitted to the office of the Sofia City Public Prosecutor by the Directorate of Religious Denominations with the Council of Ministers, raising concerns about the activities of Word of Life in Bulgaria. ... [H]aving carried out an investigation, the prosecutor’s office adopted a decision stating that the “sect” had an influence on its followers which increased the risk of suicide and other psychological problems. Membership might lead to the severance of family and social ties with the wider community; followers were prohibited from watching television or reading literature other than the Bible or from undergoing any form of surgical intervention. In conclusion, the prosecutor decided to order the restriction of the right of members of the three organisations linked to Word of Life from assembling to promote their beliefs and from continuing to operate the Bible study centre....

[T]he applicant was summonsed to appear at the police station and ... a search of her flat was carried out, with a number of personal items seized, for the sole reason that she was known to be a member of the Word of Life community and had organised religious meetings at her home. Following the search, she was issued by the police with an order warning her not to host further meetings of Word of Life.... In these circumstances, since the police action was taken in direct response to the applicant’s manifestation of her religious belief and was intended to discourage her from worshipping and observing her religion further in community with others, the Court finds that it constituted a limitation on her freedom to manifest religion within the meaning of Article 9 § 2.

Law & Religion UK has more on the decision.

Federal District Court Orders Alabama County To Resume Issuing Marriage Licenses

In Alabama, marriage equality litigants have finally found the procedural key to obtaining an injunction to require Mobile County Probate Judge Don Davis to open the marriage license division and issue marriage licenses to same-sex couples. On Feb. 10, plaintiffs amended their complaint in their case challenging Alabama's same-sex marriage laws to name Judge Davis as a defendant. Two days later in Strawser v. Strange, (SD AL, Feb. 12, 2015)-- the case that had already led to an injunction against the attorney general-- the court issued a preliminary injunction barring Judge Davis, and "all his officers, agents, servants and employees, and others in active concert or participation with any of them" from refusing to issue marriage licenses to same-sex couples.

Meanwhile yesterday morning (before the district court issued its injunction against Judge Davis), Alabama Supreme Court Chief Justice Roy Moore gave a lengthy interview (full transcript) to CNN anchor Chris Cuomo, reiterating his view that Alabama courts are not bound by the district court decisions recognizing same-sex marriage.

Thursday, February 12, 2015

Canadian Court Invalidates No-Veil Policy In Taking Citizenship Oath

According to yesterday's Regina Leader-Post, a Canadian Federal Court has struck down the Canadian government's policy of requiring women who wear a face veil for religious reasons to remove it when they take the oath of Canadian citizenship. In a suit brought by a Sunni Muslim woman who immigrated to Canada from Pakistan, the court held that the policy violates the government's own citizenship regulations. Those regulations require "the greatest possible freedom in the religious solemnization" in taking the oath. (See prior related posting.)

Challengers Move Toward Success In Fraud Suit Against Conversion Therapy Provider

Plaintiffs in recent days have won two important state court victories in a New Jersey consumer fraud lawsuit against an organization that offers "conversion therapy" to gay men. In Ferguson v. JONAH (Jews Offering New Alternatives For Healing), (NJ Super. Ct. Feb. 5, 2015), the trial court ruled that expert testimony of five proposed witnesses, and part of the expert testimony of a sixth, should be excluded at trial. The court said in part:

[T]he theory that homosexuality is a disorder is not novel but -- like the notion that the earth is flat and the sun revolves around it -- instead is outdated and refuted. Homosexuality was listed as a mental disorder in the DSM until its removal in 1973.... JONAH has not identified any case that provides a standard for the admission of obsolete and discredited scientific theories. By definition, such theories are unreliable and can offer no assistance to the jury, but rather present only confusion and prejudice.

A Southern Poverty Law Center press release has more details.

Plaintiffs' second win came in Ferguson v. JONAH (Jews Offering New Alternatives For Healing), (NJ Super. Ct. Feb. 10, 2015). The court granted partial summary judgment to plaintiffs, holding in part that:

it is a misrepresentation in violation of the CFA [Consumer Fraud Act], in advertising or selling conversion therapy services to describe homosexuality ... as being a mental illness, disease, disorder, or equivalent thereof....

The court also held that it is a CFA violation to advertise conversion therapy success statistics when there is no factual basis for calculating the statistics. As reported by The Advocate, a jury must still decide whether defendant made these kinds of misrepresentations. [See prior related posting.]

Russian Supreme Court Upholds Hijab Ban

According to World Bulletin, Russia's Supreme Court yesterday upheld the ban imposed by Russia's Mordovia region on the wearing of the hijab in schools. The appeal to Russia's top court was brought by the Muslim Tatar community in Mordovia. The ban also applies to religious symbols, as well as to piercings, mini-skirts, jeans and bright-colored hair.

Former Prison Chaplain Pleads Guilty To Passing Messages From Imprisoned Hit Man

The Chicago Tribune reports that yesterday Roman Catholic priest and former prison chaplain Eugene Klein entered a guilty plea in an Illinois federal district court to charges of passing messages hidden in religious materials from an imprisoned mob hit man to a friend when the inmate was restricted in his contact with outsiders. The messages had to do with how to get a valuable violin out of a house that the federal government had seized. As part of his plea agreement, Klein reserved the right to appeal the trial court's refusal to dismiss the charges against him on constitutional grounds.

3rd Circuit Upholds ACA Contraceptive Coverage Accommodation For Religious Non-Profits

In Geneva College v. Secretary U.S. Department of Health and Human Services, (3d Cir., Feb. 11, 2015), the U.S. 3rd Circuit Court of Appeals upheld the Obama administration's accommodation under the Affordable Care Act for religious non-profits that object to furnishing contraceptive coverage. The court rejected claims by the non-profits that the accommodation imposes a substantial burden on their religious exercise in violation of RFRA. The court said in part:

While the Supreme Court reinforced in Hobby Lobby that we should defer to the reasonableness of the appellees’ religious beliefs, this does not bar our objective evaluation of the nature of the claimed burden and the substantiality of that burden on the appellees’ religious exercise. This involves an assessment of how the regulatory measure actually works. Indeed, how else are we to decide whether the appellees’ religious exercise is substantially burdened?

... [W]e cannot agree with the appellees’ characterization of the effect of submitting the form as triggering, facilitating, or making them complicit in the provision of contraceptive coverage. At oral argument, the appellees argued that it was not merely the filing of the form that imposed a burden, but, rather, what follows from it. But free exercise jurisprudence instructs that we are to examine the act the appellees must perform—not the effect of that act—to see if it burdens substantially the appellees’ religious exercise.

The court also rejected the argument that the regulations improperly partition the Catholic Church by preventing religious non-profits from claiming the total exemption available to the diocese with which they are affiliated. Pittsburgh Post-Gazette reports on the decision.

UPDATE: On May 6, the mandate was stayed (full text of order) pending U.S. Supreme Court action in Zubik v. Burwell which raises similar issues. (See prior related posting.)

Former NYPD Officer Sues Claiming Anti-Semitic Harassment From Co-Workers

JNS.org reported yesterday on a federal lawsuit filed last month by a former New York City Police Department officer charging that he was forced out of his position by six years of anti-Semitic comments and harassment from fellow officers. The 26-page complaint (full text) in Attali v. City of New York, (SD NY, filed 1/21/2015), says that the abuse became particularly bad after plaintiff was assigned to the World Trade Center command in 2011. It alleges, among other incidents, that beginning in January 2013:

Plaintiff ATTALI's co-workers, repeatedly, and without provocation, vandalized Plaintiff's locker at the WTC Command by writing hateful and abusive language and messages consisting of swastikas, newspaper clippings of pork, ham, salami and bacon advertisements, the word "DIRTY JEW" carved into an orange sticker and the following letters cut out of various newspaper headlines: "HAIL HITLER."

Georgia School Sued Over Classroom Prayers

As reported by the Atlanta Journal Constitution, on Monday the Freedom From Religion Foundation and a non-religious family filed suit against the Emanuel County, Georgia school system challenging a school's use of prayers in kindergarten and first grade classrooms. The complaint (full text) in Freedom From Religion Foundation, Inc. v. Emanuel County School System, (SD GA, filed 2/9/2015), alleges that when parents complained about teachers' leading the classes in prayer, the teachers' response was to require objecting students to sit in the hallway while other students prayed. The teachers also made comments in front of the class embarrassing to the objecting students, pressuring the first grader to pray with the rest of the class until her parents learned of the situation. The suit seeks an injunction and damages for the school's violation of the Establishment Clause.

Wednesday, February 11, 2015

Kansas Governor Eliminates Anti-Discrimination Protection For LGBT State Employees

Yesterday Kansas Gov. Sam Brownback issued executive orders narrowing employment discrimination protections for state employees. As reported by the Wichita Eagle and a press release from the governor's office, Brownback replaced former Gov. Kathleen Sebelius' employment practices order with a new one. The new executive order eliminates the former ban on state employment discrimination on the basis of sexual orientation and gender identity, while continuing to ban various other types of discrimination. According to the Governor:

This Executive Order ensures that state employees enjoy the same civil rights as all Kansans without creating additional ‘protected classes’ as the previous order did, Any such expansion of ‘protected classes’ should be done by the legislature and not through unilateral action.

Former Israeli Chief Rabbi Indicted For Bribery

YNet News reported yesterday that Israel's former Ashkenazi Chief Rabbi Yonna Metzger has been indicted for bribery, fraud and money laundering. Israeli authorities charge that Metzger received bribes totalling 10M NIS ($826,000 US), of which he personally kept 70%. The bribes came, among others, from wealthy businessmen seeking to convert to Judaism, and for other services he performed in his role as Chief Rabbi. Many of the bribes came in the form of donations to non-profit organizations tied to Metzger. (See prior related posting.)

Tuesday, February 10, 2015

India Supreme Court Upholds State Work Rule Barring Polygamy

In Khan v. State of U.P., (India Sup. Ct., Feb.9, 2015), a 2-judge bench of the Supreme Court of India upheld the constitutionality of a rule of the government of the state of Uttar Pradesh barring employees from having more than one wife. The court held that while Muslim personal law may permit up to four wives, the rule does not violate the provision of Art. 25 of India's Constitution that protects the right to freely profess, practice and propagate religion. Quoting from an earlier decision, the Court said:

What is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion.... Assuming the practice of having more wives than one... is a practice followed by any community or group of people, the same can be regulated or prohibited by legislation in the interest of public order, morality and health or by any law providing for social welfare and reform which the impugned legislation clearly does.

The Economic Times reports on the decision.

Data On Europe's Falling Jewish Population Published

The Pew Research Center yesterday published data on the continuing decline of Europe's Jewish population:

In 1939, there were 16.6 million Jews worldwide, and a majority of them – 9.5 million, or 57% – lived in Europe... By the end of World War II, in 1945, the Jewish population of Europe had shrunk to 3.8 million, or 35% of the world’s 11 million Jews. About 6 million European Jews were killed during the Holocaust, according to common estimates.

Since then, the global Jewish population – estimated by Pew Research at 14 million as of 2010 – has risen, but it is still smaller than it was before the Holocaust. And in the decades since 1945, the Jewish population in Europe has continued to decline. In 1960, it was about 3.2 million; by 1991, it fell to 2 million.... Now, there are about 1.4 million Jews in Europe – just 10% of the world’s Jewish population, and 0.2% of Europe’s total population.

Monday, February 09, 2015

Interposition Ordered By Alabama Chief Justice On Same-Sex Marriage

Interposition-- a doctrine rarely seen since the early days of the civil rights movement-- seems to be close to reappearing in Alabama's response to federal court same-sex marriage decisions. As previously reported, on Jan. 27 Alabama Supreme Court Chief Justice Roy Moore sent a letter to Alabama Governor Robert Bentley urging defiance at least of lower federal court decisions validating same-sex marriage in the state. With the U.S. Supreme Court's order earlier today refusing to stay a federal district court order in Strange v. Searcy invalidating the state's same-sex marriage ban, same-sex marriages began in some Alabama counties. But as reported by the New York Times, at least 50 of Alabama's 67 county probate courts were not issuing licenses to same-sex couples.

The confusion stems in part from an Administrative Order issued yesterday by Alabama Chief Justice Moore providing in part:

To ensure the orderly administration of justice within the State of Alabama, to alleviate a situation adversely affecting the administration of justice within the State, and to harmonize the administration of justice between the Alabama judicial branch and the federal courts in Alabama:

Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.

Should any Probate Judge of this state fail to follow the Constitution and statutes of Alabama as stated, it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley....

However, in response Gov. Bentley issued a statement saying in part:

This issue has created confusion with conflicting direction for Probate Judges in Alabama. Probate Judges have a unique responsibility in our state, and I support them. I will not take any action against Probate Judges, which would only serve to further complicate this issue.

Earlier today, plaintiffs in the Searcy case filed a motion with an Alabama federal district court asking it to hold in contempt the Probate Court judge in Mobile County who, without explanation, has not opened the court's marriage license division today. [Thanks to Tom Rutledge for the lead on part of this post.]

UPDATE: In a Feb. 9 opinion (full text), the district court refused to hold the Probate Judge in contempt since the injunction did not directly order him to do anything.

Supreme Court Denies Stay Of Alabama Same-Sex Marriage Decision

The U.S. Supreme Court today in Strange v. Searcy refused to grant a stay of an Alabama federal district court order invalidating Alabama's ban on same-sex marriage, allowing same-sex marriages to begin in the state today. (See prior related posting.) Justice Thomas, joined by Justice Scalia, dissented from the denial of a stay, saying in part:

Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds.... It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.

Reuters reports on the Court's action.

Free Exercise Challenge To Marijuana Seizure Rejected

In Jenkins v. Micks, (ND CA, Feb. 5, 2014), a California federal magistrate judge dismissed a civil rights action alleging that plaintiff's free exercise rights were infringed when Del Norte, California sheriff's officers seized marijuana allegedly authorized for medical use. The court said:

Plaintiff provides a discussion of the use of cannabis by different cultures and religions, including the Native American Church. He states that he believes that for him, "Cannabis enhances the truth of the universe," that this plant is a "beneficial and life sustaining herb," and that "by consuming Cannabis [he] is communing with nature."... He also expresses his views regarding the regulation of Cannabis by governmental entities, and some of his political and religious beliefs. No where, however, does Plaintiff allege that he has a central religious belief or practice that is burdened by the criminalization of marijuana. The court finds, therefore, that Plaintiff has failed to state a free exercise of religion claim under the First Amendment.

Bitter Legal Dispute Continues Over Colorado Land For Jewish Retreat Center

The Denver Post reported yesterday on a long-running and bitter legal dispute over 22 acres of desert land in Gardner, Colorado that Gary Lensky, an Orthodox Jew who is also versed in Eastern religions, is attempting to develop as a Jewish spiritual retreat center. In 1997, Lensky purchased a small home in the center of Gardner for $29,000. He then discovered that adjacent structures used by the house's former owners were on property technically owned by an individual who had died decades ago. Lensky paid the back taxes on 17 acres of the land, planning to build a religious retreat on it that he would call Camp D'ORvid at Casa D'el Arroyo. Claiming under the doctrine of adverse possession, Lensky then proceeded to file a suit to quiet title not just on the 17 acres, but on 5 additional adjoining acres that other neighbors were using as well. Initially the court granted his quiet title request, but reversed itself seven years later. Lensky has spent nearly $200,000 in legal fees to try to get title to the 22 acres that have an assessed value of $13,450. There have also been physical confrontations, harassment and ethnic slurs, with Lensky charging anti-Semitism. The neighbors say Lensky is trying to steal their land. A non-binding mediation of the dispute is scheduled for March 20.

Catholic and Conservative Christian Groups Urge Congressional Disapproval of Two D.C. Ordinances

Under Title VI of the District of Columbia Home Rule Act, Congress may disapprove laws enacted by the D.C. City Council. Last week, fifteen Catholic and conservative Christian organizations sent a letter (full text) to members of Congress urging disapproval of two recently enacted D.C. laws-- the Reproductive Health Non-Discrimination Amendment Act of 2014 and Human Rights Amendment Act of 2014 (see prior posting). According to the U.S. Conference of Catholic Bishops press release:

The Reproductive Health Non-Discrimination Amendment Act of 2014 prevents religious institutions, faith-based employers, and pro-life advocacy organizations in the city from making employment decisions consistent with their sincerely held religious beliefs or moral convictions about the sanctity of human life.

For example, the law requires “organizations to hire or retain individuals whose speech or public conduct contradicts the organizations’ missions,” the letter stated. “The law plainly violates the First Amendment, the federal Religious Freedom Restoration Act of 1993 (RFRA), and possibly other federal laws and clearly contradicts the Supreme Court’s recent, unanimous ruling in Hosanna-Tabor Evangelical Church and School v. EEOC.”

Another law enacted by the Council of the District of Columbia, the Human Rights Amendment Act of 2014, requires religiously affiliated educational institutions to endorse, sponsor, and provide school resources to persons or groups that oppose the institutions’ religious teachings regarding human sexuality.

“In doing so, the law violates the First Amendment and RFRA on similar grounds”....

Sunday, February 08, 2015

Recent Prisoner Free Exercise Cases

In Patterson v. Linderman, (9th Cir., Feb. 3, 2015), the 9th Circuit upheld an inmate's suspension from the kosher meal plan for sharing or trading of food with other inmates.

In Karsjens v. Jesson, 2015 U.S. Dist. LEXIS 11779 (D MN, Feb. 2, 2015), a Minnesota federal district court, in a suit challenging many aspects of the Minnesota Sexual Offender Program, permitted plaintiffs to move ahead with their claim that MSOP's policies and practices restrict when and where plaintiffs may worship and limit their ability to practice their sincerely held religious beliefs.

In Stemple v. Shearin, 2015 U.S. Dist. LEXIS 12253 (D MD, Feb. 2, 2015), a Maryland federal district court dismissed a Wiccan inmate's complaints regarding the inadequacy of the previous location of Wiccan services and his 6-month suspension from congregate worship opportunities for rule violations.

In Woodstock v. Shaffer, 2015 U.S. Dist. LEXIS 13158 (D CO, Feb. 4, 2015), a Colorado federal magistrate judge ordered plaintiff, a Messianic Jewish inmate, to file an amended complaint setting out the personal involvement of each defendant in the alleged failure to provide a kosher diet

In Trice v. Shearin, 2015 U.S. Dist. LEXIS 13653 (D MD, Feb. 4, 2015), a Maryland federal district court permitted a Native American inmate to move ahead with his complaint that he was not permitted to attend congregate services and that Cherokee Native American religious services were not permitted in an outside grassy area as religiously required.

In Jackson v. Crawford, 2015 U.S. Dist. LEXIS 14222 (WD NO, Feb. 6, 2015), a Missouri federal district court permitted an inmate to proceed with his complaint that his religious exercise was substantially burdened by the inability to list atheism as his religion.

Challenge To "Under God" In Pledge Rejected

In American Humanist Association v. Matawan-Aberdeen Regional School District, (NJ Super. Ct., Feb. 4, 2015), a New Jersey state trial court dismissed a lawsuit that claimed the daily recitation of the pledge of allegiance in public schools violates the equal protection guaranties of the New Jersey constitution to atheist and humanist students, even when they are not required to participate in the pledge. The court said in part:

the court is not insensitive to the Does and Doechild's claim that they feel marginalized by the inclusion of the words "under God" in the text of the Pledge. Subjective feelings, however, do not and cannot serve as a constitutional litmus test for equal protection in the absence of some invidious classification because potentially anything offensive to one's subjective sensibilities could be struck down as unconstitutional.

The Becket Fund issued a press release announcing the court's decision.

UPDATE: Here is a link to the full opinion and court's order.

Saturday, February 07, 2015

2nd Circuit OK's Differential Child Protection Requirements In Public and Private Schools

In U.L. v. New York State Assembly, (2d Cir., Feb. 5, 2015), the U.S. 2nd Circuit Court of Appeals affirmed the district court's dismissal of a lawsuit brought by a minor student enrolled in a Nassau county yeshiva and by her father claiming that students' equal protection, due process and free exercise rights are violated by the state legislature's exclusion of private schools (including religious schools) from some of the state child protection requirements that are mandatory in public schools. (See prior posting). The district court dismissed on sovereign and legislative immunity grounds. The 2nd Circuit in affirming and refusing to allow plaintiffs to replead the case said:

Assuming U.L. could successfully plead around the immunity doctrines, his claims would still fail as a matter of law. The challenged child-protection laws, which are unquestionably secular, are equally inapplicable to all private schools, religious and secular. Nothing about them offends the Establishment or Free Exercise Clauses of the First Amendment....

U.L.’s claims under the Equal Protection and Due Process Clauses of the Fourteenth Amendment likewise fail, because the laws neither target a suspect class nor impair the exercise of a fundamental right, and easily pass muster under rational basis review.

[Thanks to Elliot Pasik for the lead.]

Friday, February 06, 2015

New Poll Shows Americans Favor Same-Sex Marriages, But Want To Protect Religious Objectors

Yesterday AP-GfK announced the release of their latest poll (full poll results) which asks respondents about their views on same-sex marriage and abortion rights. In the poll, 35% favor same-sex marriage, while 31% oppose. Respondents are divided 48% to 48% on how the Supreme Court should rule in its pending same-sex marriage cases. By 50% to 46%, respondents favor religious exemptions to the requirement to issue same-sex marriage licences for officials who object to doing so. By 57% to 39%, respondents favor exemptions for wedding related businesses who object to providing services for same-sex couples. Finally poll showed a 51% to 45% margin favoring legalized abortion in most or all cases.

Newly Added Religious Items Must Be Covered Before Hernandez Jury Visit

Jurors in the murder trial of former New England Patriots player Aaron Hernandez are scheduled to visit Hernandez's home today. Hernandez is charged in the 2013 murder of Odin Lloyd. AP reports that when the prosecutor took a tour through the house yesterday ahead of the jury visit, he found that religious items (as well as career memorabilia) had been added in several rooms, along with furniture to hold them. Bristol County Superior Court Judge Susan Garsh ruled yesterday that anything added to the house since 2013 must be removed or covered before the jury's visit which is designed to see the house as it existed at the time of the killing. The defense has agreed to remove or cover the new items.

Court Refuses To Defer To Ecclesiastical Determination In Church Embezzlement Prosecution

Chicago Tribune reports that a Wisconsin state trial court has refused to apply the ecclesiastical abstention doctrine to a criminal prosecution of a Greek Orthodox priest charged with embezzling trust funds from the church where he served for many years. James Dokos was trustee of a $1.1 million trust benefiting Annunciation Greek Orthodox Church in Milwaukee. The indictment (full text) alleges that Dokos wrote checks for $110,000 outside the terms of the trust, and mostly for his personal benefit. Before going to civil authorities, leaders of Annunciation complained to its parent body, the Metropolis of Chicago, which investigated and concluded that Dokos had done nothing wrong.

Dokos claimed that the case involves a dispute between a priest and a parish council over the use of church funds, and should be decided by the Greek Orthodox Church's internal dispute resolution process. The court disagreed, holding:

Determining whether or not the defendant embezzled money does not require this court to appoint religious ministers, decide tenets of faith (or) interpret church doctrine.

6th Circuit: Ministerial Exception Is Non-Waivable

In Conlon v. InterVarsity Christian Fellowship/ USA, (6th Cir., Feb. 5, 2015), the U.S. 6th Circuit Court of Appeals faced its first "ministerial exception" case since the Supreme Court's 2012 Hosanna-Tabor decision. In the case, InterVarsity Christian Fellowship, a Christian campus organization, asserted a "ministerial exception" defense in a sex discrimination suit against it by its former spiritual director who claimed that her firing because her marriage was heading toward divorce violated Title VII of the 1964 Civil Rights Act and Michigan's Elliot-Larsen Act. The 3-judge panel's majority opinion held first that IVCF, while not a church, is still a religious organization that can claim the ministerial exception for a ministerial employee such as plaintiff.

Conlon claimed that IVCF had waived the ministerial exception, but the majority held:

The ministerial exception is a structural limitation imposed on the government by the Religion Clauses, a limitation that can never be waived....

Finally the majority held that the First Amendment's ministerial exception can be asserted as a defense against state law claims, and can be raised by individuals when they are personally sued for discrimination as the agents of a religious employer.

Judge Rogers concurred in the result, but contended that the majority went further than necessary in reaching its conclusion. He said:

Our decision today does not require us to decide whether a religious employer could enter into a judicially-enforceable employment contract with a ministerial employee not to fire that employee on certain grounds (such as pregnancy). Judicial enforcement of such a contract might unduly interfere with the independence of religious institutions, but barring religious institutions from offering such a legally binding guarantee might make it harder for some religious institutions to hire the people they want. Conlon in this case now disavows any contractual argument. Thus, to the extent that any analysis in the majority opinion might be read to govern non-Title VII employer obligations, such analysis is not necessary to our judgment.

Acton Institute Power Blog reports on the decision. [Thanks to Paul deMello Jr. for the lead.]

Thursday, February 05, 2015

President Delivers Important Address To National Prayer Breakfast

President Obama delivered an important address (full text) at today's annual National Prayer Breakfast in Washington, D.C. First, in a gesture defying China's objections, the President warmly welcomed the Dalai Lama, saying:

I want to offer a special welcome to a good friend, His Holiness the Dalai Lama -- who is a powerful example of what it means to practice compassion, who inspires us to speak up for the freedom and dignity of all human beings. (Applause.) I’ve been pleased to welcome him to the White House on many occasions, and we’re grateful that he’s able to join us here today. (Applause.)

As reported by the Washington Post:

Obama bowed his head and brought his hands together in a Namaste gesture when the Dalai Lama was introduced at the beginning of the breakfast. The Dalai Lama was seated at a table with top Obama adviser Valerie Jarrett. She was dispatched to Dharamsala, India, where the Dalai Lama lives in exile, after the White House canceled a meeting with the leader ahead of Obama's first visit to Beijing in 2009.

Chinese leaders sharply criticized the presence of the Dalai Lama at the Prayer Breakfast -- as Beijing did the previous three times the two men met in the past. This time, the White House stressed they did not invite the Dalai Lama and that he and Obama had no plans to meet.

Second, the President spelled out at length his views on the complex relationship of religion and world affairs, and emphasized the U.S. view on the relationship of religious liberty and freedom of expression. These portions of his remarks are sufficiently important to be set out at length:

[P]art of what I want to touch on today is the degree to which we've seen professions of faith used both as an instrument of great good, but also twisted and misused in the name of evil.

As we speak, around the world, we see faith inspiring people to lift up one another -- to feed the hungry and care for the poor, and comfort the afflicted and make peace where there is strife....

But we also see faith being twisted and distorted, used as a wedge -- or, worse, sometimes used as a weapon. From a school in Pakistan to the streets of Paris, we have seen violence and terror perpetrated by those who profess to stand up for faith, their faith, professed to stand up for Islam, but, in fact, are betraying it. We see ISIL, a brutal, vicious death cult that, in the name of religion, carries out unspeakable acts of barbarism -- terrorizing religious minorities like the Yezidis, subjecting women to rape as a weapon of war, and claiming the mantle of religious authority for such actions.

We see sectarian war in Syria, the murder of Muslims and Christians in Nigeria, religious war in the Central African Republic, a rising tide of anti-Semitism and hate crimes in Europe, so often perpetrated in the name of religion.

So how do we, as people of faith, reconcile these realities -- the profound good, the strength, the tenacity, the compassion and love that can flow from all of our faiths, operating alongside those who seek to hijack religious for their own murderous ends?

Humanity has been grappling with these questions throughout human history. And lest we get on our high horse and think this is unique to some other place, remember that during the Crusades and the Inquisition, people committed terrible deeds in the name of Christ. In our home country, slavery and Jim Crow all too often was justified in the name of Christ. Michelle and I returned from India -- an incredible, beautiful country, full of magnificent diversity -- but a place where, in past years, religious faiths of all types have, on occasion, been targeted by other peoples of faith, simply due to their heritage and their beliefs -- acts of intolerance that would have shocked Gandhiji, the person who helped to liberate that nation.

So this is not unique to one group or one religion. There is a tendency in us, a sinful tendency that can pervert and distort our faith. In today’s world, when hate groups have their own Twitter accounts and bigotry can fester in hidden places in cyberspace, it can be even harder to counteract such intolerance. But God compels us to try. And in this mission, I believe there are a few principles that can guide us, particularly those of us who profess to believe.

And, first, we should start with some basic humility. I believe that the starting point of faith is some doubt -- not being so full of yourself and so confident that you are right and that God speaks only to us, and doesn’t speak to others, that God only cares about us and doesn’t care about others, that somehow we alone are in possession of the truth.

Our job is not to ask that God respond to our notion of truth -- our job is to be true to Him, His word, and His commandments. And we should assume humbly that we’re confused and don’t always know what we’re doing and we’re staggering and stumbling towards Him, and have some humility in that process. And that means we have to speak up against those who would misuse His name to justify oppression, or violence, or hatred with that fierce certainty. No God condones terror. No grievance justifies the taking of innocent lives, or the oppression of those who are weaker or fewer in number.

And so, as people of faith, we are summoned to push back against those who try to distort our religion -- any religion -- for their own nihilistic ends. And here at home and around the world, we will constantly reaffirm that fundamental freedom -- freedom of religion -- the right to practice our faith how we choose, to change our faith if we choose, to practice no faith at all if we choose, and to do so free of persecution and fear and discrimination.

There’s wisdom in our founders writing in those documents that help found this nation the notion of freedom of religion, because they understood the need for humility. They also understood the need to uphold freedom of speech, that there was a connection between freedom of speech and freedom of religion. For to infringe on one right under the pretext of protecting another is a betrayal of both.

But part of humility is also recognizing in modern, complicated, diverse societies, the functioning of these rights, the concern for the protection of these rights calls for each of us to exercise civility and restraint and judgment. And if, in fact, we defend the legal right of a person to insult another’s religion, we’re equally obligated to use our free speech to condemn such insults -- (applause) -- and stand shoulder-to-shoulder with religious communities, particularly religious minorities who are the targets of such attacks. Just because you have the right to say something doesn’t mean the rest of us shouldn’t question those who would insult others in the name of free speech. Because we know that our nations are stronger when people of all faiths feel that they are welcome, that they, too, are full and equal members of our countries.

So humility I think is needed. And the second thing we need is to uphold the distinction between our faith and our governments. Between church and between state. The United States is one of the most religious countries in the world -- far more religious than most Western developed countries. And one of the reasons is that our founders wisely embraced the separation of church and state. Our government does not sponsor a religion, nor does it pressure anyone to practice a particular faith, or any faith at all. And the result is a culture where people of all backgrounds and beliefs can freely and proudly worship, without fear, or coercion....

That’s not the case in theocracies that restrict people’s choice of faith. It's not the case in authoritarian governments that elevate an individual leader or a political party above the people, or in some cases, above the concept of God Himself. So the freedom of religion is a value we will continue to protect here at home and stand up for around the world, and is one that we guard vigilantly here in the United States.

Alabama Asks Supreme Court For Stay of Same-Sex Marriage Injunction

As reported by Jurist, Tuesday the U.S. 11th Circuit Court of Appeals refused to grant a stay beyond the current Feb. 9 effective date of a district court order in Searcy v. Strange invalidating Alabama's bans on same-sex marriage. (See prior posting.) The state immediately filed an application for a stay of the injunction (full text) with Supreme Court Justice Clarence Thomas, who has the option of ruling on the application himself or referring it to the full court. SCOTUSblog also reports on developments.

Court Says Religious Non-Profits Need Not Identify Their Insurers To HHS

In Christian and Missionary Alliance Foundation, Inc. v. Burwell, (MD FL, Feb. 3, 2015), a Florida federal district court granted a preliminary injunction barring enforcement of part of the latest rules accommodating religious non-profits' objections to the Affordable Care Act contraceptive coverage mandate:

The Court finds that the portion of the accommodation process which requires plaintiffs to self-certify their eligibility for the accommodation and provide that written self-certification to the HHS does not substantially burden plaintiffs’ exercise of religion.... This notification need not be on a government-issued form.

... [However] the Court reaches the opposite conclusion as to the portion of the government form which requires identification of and the contact information for plaintiffs’ insurance carrier and/or third party administrator.... Compelling plaintiffs to identify their providers or administrators to the HHS clearly facilitates the government’s ability to implement contraceptive coverage for plaintiffs’ female employees. While plaintiffs cannot preclude the government from such implementation, the identification requirement compels plaintiffs to become excessively entangled in the process of providing coverage for services which their sincerely held religious beliefs prohibit....

AP reports on the decision.

California Legislators Urge End To Vaccination Exemptions For Religious and Personal Beliefs

With the number of measles cases in California since December reaching 99, California's two U.S. Senators-- Barbara Boxer and Dianne Feinstein-- yesterday sent a letter (full text) to the state's Health and Human Services Secretary urging that state religious and personal belief exemptions to vaccination requirements be eliminated. The letter reads in part:

California’s current law allows two options for parents to opt out of vaccine requirements for school and daycare: they must either make this decision with the aid of a health professional, or they can simply check a box claiming that they have religious objections to medical care. We think both options are flawed, and oppose even the notion of a medical professional assisting to waive a vaccine requirement unless there is a medical reason, such as an immune deficiency.

The Wall Street Journal reported yesterday that State Sen. Richard Pan, a pediatrician, plans to introduce legislation to end these exemptions, though he is open to discussion about keeping the religious exemption.

EEOC Releases 2014 Data

The Equal Employment Opportunity Commission yesterday released fiscal year 2014 private sector data tables providing detailed breakdowns for the 88,778 charges of workplace discrimination filed with the agency. During the year, the EEOC received 3549 complaints alleging religious discrimination (4% of all complaints), and it resolved 3575 religious discrimination cases. In 65.1% of the cases resolved, the agency found no reasonable cause. 19.2% of the complaints were administratively closed. 268 cases were settled. In cases not settled or withdrawn, the EEOC found reasonable cause to believe that religious discrimination occurred in 116 cases. Successful conciliation was reached in 34 of those cases. Settlements and conciliations of religious discrimination complaints resulted in complainants receiving $8.7 million in benefits. This does not include additional amounts that may have been recovered in litigation. Wall Street Journal reports on other data released.

Biblical Theme Park To Sue Over Denial of Tax Rebates

Answers in Genesis announced this week that it plans to file a federal lawsuit challenging Kentucky's refusal to allow its planned Ark Encounter theme park to participate in the state's tax rebate incentive program. In December, the state reversed an earlier preliminary decision to allow the Noah's Ark theme park some $18 million in sales tax rebates in a program designed to promote Kentucky tourism. The state said that the park had evolved from a tourist attraction into a project to promote a literal reading of the Biblical book of Genesis. It also objects to the park's plan to hire only Christians. (See prior posting.) The lawsuit will contend that the state's action amounts to unconstitutional viewpoint discrimination.

Religious Freedom Laws Limit Reach of Homeowners Association Rules

A state court judge in Collin County, Texas yesterday ruled that the Texas Religious Freedom Restoration Act and the federal Religious Land Use and Institutionalized Persons Act trump Home Owners' Association rules. According to the Dallas Morning News, a neighbor, joined later by the property owners association, sued to enforce deed restrictions barring use of a north Dallas home by Congregation Toras Chaim, a group of 30 Orthodox Jewish families, for daily prayer services. Plaintiffs argued unsuccessfully that the state and federal religious freedom statutes apply only to action by governmental entities. [Thanks to Steven H. Sholk for the lead.]

Wednesday, February 04, 2015

Suit Against Legion of Christ Over Bequest Settled

According to Monday's Providence Journal, a Rhode Island federal district court lawsuit against the scandal-ridden Catholic order, the Legion of Christ, has been settled out of court. The suit was brought by Paul Chu as executor of his father's estate. (See prior related posting.) His father, James Boa-Teh Chu, a former Brown University mechanical engineering professor who died in 2009, left annuities worth between $1 and $2 million to the Legion. The suit claimed that the Legion used undue influence on the elder Chu in his last years in order to obtain the bequest. The terms of the out-of-court settlement were not disclosed.

Break-Away S.C. Episcopal Churches Win Right To Real, Personal and Intellectual Property

In Protestant Episcopal Church In The Diocese of South Carolina v. Episcopal Church, (SC Cir. Ct., Feb. 3, 2015), a South Carolina state trial court held that 38 break-away Episcopal parishes in South Carolina retain ownership of their real, personal and intellectual property. It rejected claims by The Episcopal Church that an express or a constructive trust existed under which it could claim the property. Finally the court enjoined The Episcopal Church from using the names or seals of the break-away churches and their Diocese. FITS News reports on the decision.

New Islamic Tribunal Is Set Up In Texas

What is perhaps the first Islamic Tribunal in the United States has been set up in Dallas, Texas. The Tribunal offers to the Muslim community mediation and non-binding arbitration that follows Islamic principles. CBS 11 News reports on the new Tribunal. Breibart last week carried a rather unsympathetic article on the Tribunal

International Court of Justice Clears Both Serbia and Croatia of Genocide Charges

Yesterday the International Court of Justice at The Hague handed down a 145-page opinion rejecting both Croatia's claim of genocide against Serbia (vote of 15-2) and Serbia's claim of genocide against Croatia (unanimous decision) growing out of the 1991-2001 War in the Balkans. Twelve judges filed separate opinions. The Telegraph has an excellent summary of the decision:

Croatia’s case turned on the fate of the city of Vukovar, which endured three months of bombardment by Serbian irregular forces and the Yugoslav national army in 1991.... Croatia argued that the “attacks on Vukovar were directed not simply against an opposing military force, but also against the civilian population”.... But the ICJ rejected Croatia’s case, concluding that the crucial element of an intention to destroy a specific ethnic group had not been proved....

Serbia, for its part, accused Croatia of committing genocide by launching “Operation Storm” in 1995. During this military offensive, Croatia recaptured a Serb-inhabited region of its territory known as Krajina. In the process, about 200,000 Serbs were driven from their homes.

The crucial evidence was a meeting held on the Croatian island of Brioni between Franjo Tudjman, then president, and the country’s military leaders. Serbia argued that the full transcript of this conversation showed the aim of Operation Storm was the elimination of the Serbs of Krajina. But the ICJ rejected this interpretation.... The “specific intent to destroy which characterises genocide” was missing from the Krajina offensive, found the ICJ.

All the pleadings and records of proceedings in the case are available from the Court's website. The Court also issued its own press release summarizing the decision.

Administrative Law Judge Finds Bakery's Refusal To Furnish Same-Sex Wedding Cake Violates Anti-Discrimination Law

In In re Melissa Klein, (OR BOLI, Jan. 29, 2015), an Oregon Bureau of Labor and Industries Administrative Law Judge, in a 52-page opinion, held that Aaron Klein, a co-owner of the bakery "Sweetcakes by Melissa", discriminated on the basis of sexual orientation, in violation of the public accommodation provisions of ORS 695A.403. The case grew out of the refusal on religious grounds to provide a wedding cake for a same-sex couple. The court held that co-owner Melissa Klein will be jointly and severally liable for any damages awarded. The ALJ rejected free exercise and compelled speech defenses put forward by respondents, concluding that the state's anti-discrimination law is a neutral law of general applicability.

The administrative agency issued a press release announcing the Interim Order, saying:

The Interim Order finds that the undisputed material facts support charges of unlawful discrimination under the Oregon Equality Act. An administrative hearing scheduled for March will focus on damages for the same-sex couple.

The Oregonian reports on the decision. [Thanks to Joel Sogol via Religionlaw for the lead.]

Tuesday, February 03, 2015

Summum Loses Monument Bid Again-- This Time In Utah Supreme Court

Since 2003, Summum has been attempting to require Pleasant Grove City, Utah to accept a "Seven Aphorisms" monument to be placed in a city park where a Ten Commandments monument already stands. In litigation, part of which went to the U.S. Supreme Court, federal courts held that the city had violated neither the 1st Amendment's free speech or Establishment clause in refusing the monument. Summum then filed suit in state court contending that the Utah Constitution's religious liberty clause requires the city to erect the Seven Aphorisms monument. In Summum v. Pleasant Grove City, (UT Sup. Ct., Jan. 30, 2015). the Utah Supreme Court rejected Summum's contention. The Court, emphasizing that Summum had not asked for it to order the removal of the Ten Commandments monument, held that monuments are different than sectarian prayers before city council. The neutrality test the Court had developed in the context of legislative prayer does not apply to public monuments:

[R]equiring Pleasant Grove to erect a second religious monument would not render the allocation of public property and money to the two monuments neutral. The citizens of Pleasant Grove, and Utah in general, undoubtedly espouse a broad variety of religious views.... Displaying monuments that communicate the beliefs of only two of these viewpoints would not amount to an impartial distribution of public property.... And because there is a finite amount of space in Pioneer Park, allowing all interested groups to install their own religious or antireligious monuments in the park would be unworkable....

Because the government property at issue in this case is itself the message, it cannot be allocated in an impartial manner.... Summum attempts to use the neutrality test as a tool to facilitate the placement of its own proposed monument in Pioneer Park. It argues that the district court should order the installation of a Seven Aphorisms monument in order to establish an impartial allocation of public property towards religious expression in the park. But because the neutrality test does not apply in the context of public monuments, this tool is unavailable to Summum.

Justice Lee filed an opinion concurring in part and concurring in the judgment.

Monday, February 02, 2015

No Title VII Liability For Refusing To Hire Applicant Who Will Not Furnish Social Security Number

In Yeager v. FirstEnergy Generation Corp., (6th Cir., Jan. 28, 2015), the U.S. 6th Circuit Court of Appeals held that an employer is not liable under Title VII or Ohio's anti-discrimination law when the employer refuses to hire an applicant because the applicant has not furnished a social security number. The Internal Revenue Code requires employers to collect and provide employees' social security numbers. Plaintiff Donald Yeager disavowed his social security number for religious reasons-- he believes it is the "mark of the beast" referred to in the Book of Revelation. The court said:

Title VII does not require an employer to reasonably accommodate an employee’s religious beliefs if such accommodation would violate a federal statute.

Cleveland.com has details of the case beyond those set out by the 6th Circuit in its per curiam opinion.