Suit Against Former Pastor For Financial Misdeeds Dismissed On Church Autonomy Grounds

In Trustees of the Alpine Methodist Episcopal Church v. New Jersey United Methodist Church, (NJ Super., Sept. 22, 2015), a New Jersey trial court dismissed on church autonomy and hierarchical deference grounds a suit by the trustees of a Methodist congregation  against its former pastor for misuse of church funds. The court said in part:

Here, Plaintiff alleges that Rev. Kim misused or misappropriated church funds and property in a variety of ways, including forging checks, paying his personal utility bills with Church funds, and utilizing Tipton [the financial secretary] as a means to convert church donations.... 

Before the Court can determine whether Rev. Kim is liable to Plaintiff under any claim, it would first have to determine whether Rev. Kim violated the rules set forth in The Book of Discipline and whether the [United Methodist Church's] policy and polity permitted Rev. Kim to engage in certain financial and managerial practices....

Moreover, Plaintiff’s sought relief through the UMC’s process, wherein Plaintiff’s representatives at the Church met with Superintendent Plumstead.... Plumstead met with the Church’s Staff Parish Relations Committee and advised the Committee that they had several options. The Committee could “move on”, i.e., accepting that grievances were duly lodged, or pursue internal church or legal action by filing a formal complaint with the bishop’s office... The Committee did not take any further internal church or legal action. In response, Plaintiff, by and through new representatives, did not accept this decision and decided to separate from the UMC.... Plaintiff believes that the hierarchical bodies of the UMC did not reach a just resolution of their claims and therefore, seeks relief in a secular court. Plaintiff’s recent disenchantment with the UMC does not warrant secular court review in contravention of the longstanding jurisprudence of this state’s Appellate Division, its sister states, and the Supreme Court of the United States

Mosque Can Proceed With RLUIPA Challenge To Denial of Use Variance

Bensalem Masjid, Inc. v. Bensalem Township, Pennsylvania, (ED PA, Sept. 22, 2015), is a suit by an Islamic religious organization that was denied a use variance to allow it to build a mosque on a split-zoned parcel of property.  Plaintiff alleges that its application was scrutinized much more harshly than those from other groups. Here a Pennsylvania federal district court held that plaintiff can proceed on its substantial burden, non-discrimination, unreasonable limitation and equal terms claims under RLUIPA, its free exercise and equal protection claims, and its state Religious Freedom Protection Act claim.

South Carolina Supreme Court Hears Oral Arguments In Episcopal Church Split

Yesterday, the South Carolina Supreme Court heard oral arguments in Protestant Episcopal Church In The Diocese of South Carolina v. Episcopal Church.  In the case, a 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. (See prior posting.)  Both The State and the Post and Courier have reports on the arguments.  Also available online are the Appellants' Brief and Respondents' Brief to the state Supreme Court.  A related case is winding its way through federal courts. (See prior posting.)

Pope Francis Addresses Joint Session of Congress

Pope Francis this morning became the first Pope to address a joint session of Congress. He delivered an hour-long speech (full text) filled with appeals, often framed in subtle and sophisticated nuance, appealing to Congress and Americans to realize their own potential on a wide range of issues-- many of them politically charged.  Here are some of the more memorable quotes:

All of us are quite aware of, and deeply worried by, the disturbing social and political situation of the world today.  Our world is increasingly a place of violent conflict, hatred and brutal atrocities, committed even in the name of God and of religion.  We know that no religion is immune from forms of individual delusion or ideological extremism.  This means that we must be especially attentive to every type of fundamentalism, whether religious or of any other kind.  A delicate balance is required to combat violence perpetrated in the name of a religion, an ideology or an economic system, while also safeguarding religious freedom, intellectual freedom and individual freedoms.  But there is another temptation which we must especially guard against: the simplistic reductionism which sees only good or evil; or, if you will, the righteous and sinners.  The contemporary world, with its open wounds which affect so many of our brothers and sisters, demands that we confront every form of polarization which would divide it into these two camps.  We know that in the attempt to be freed of the enemy without, we can be tempted to feed the enemy within.  To imitate the hatred and violence of tyrants and murderers is the best way to take their place.  That is something which you, as a people, reject..... 

In recent centuries, millions of people came to this land to pursue their dream of building a future in freedom.  We, the people of this continent, are not fearful of foreigners, because most of us were once foreigners.  I say this to you as the son of immigrants, knowing that so many of you are also descended from immigrants.  Tragically, the rights of those who were here long before us were not always respected.  For those peoples and their nations, from the heart of American democracy, I wish to reaffirm my highest esteem and appreciation.  Those first contacts were often turbulent and violent, but it is difficult to judge the past by the criteria of the present.  Nonetheless, when the stranger in our midst appeals to us, we must not repeat the sins and the errors of the past.  We must resolve now to live as nobly and as justly as possible, as we educate new generations not to turn their back on our “neighbors” and everything around us.  Building a nation calls us to recognize that we must constantly relate to others, rejecting a mindset of hostility in order to adopt one of reciprocal subsidiarity, in a constant effort to do our best.  I am confident that we can do this.....

The fight against poverty and hunger must be fought constantly and on many fronts, especially in its causes.  I know that many Americans today, as in the past, are working to deal with this problem.

It goes without saying that part of this great effort is the creation and distribution of wealth.  The right use of natural resources, the proper application of technology and the harnessing of the spirit of enterprise are essential elements of an economy which seeks to be modern, inclusive and sustainable.  “Business is a noble vocation, directed to producing wealth and improving the world.  It can be a fruitful source of prosperity for the area in which it operates, especially if it sees the creation of jobs as an essential part of its service to the common good” (Laudato Si’, 129).  This common good also includes the earth, a central theme of the encyclical which I recently wrote in order to “enter into dialogue with all people about our common home” (ibid., 3).  “We need a conversation which includes everyone, since the environmental challenge we are undergoing, and its human roots, concern and affect us all” (ibid., 14).

 Washington Post has additional reporting on the speech.

Over 700 Killed In Hajj Crush of Pilgrims

Reuters reports that at least 717 Hajj pilgrims were killed and 805 others injured in a stampede outside Mecca today.  The crush occurred when two large groups of pilgrims arrived at the same time at a crossroads on the way to performing the "stoning the devil" ceremony at Jamarat. 4,000 rescue workers have been sent to the location of the accident.

In Unscheduled Stop, Pope Supports Challenge To ACA Contraceptive Mandate Accommodation

According to the Washington Post, Pope Francis as part of his visit to Washington yesterday made an unscheduled stop at the convent of the Little Sisters of the Poor.  The Little Sisters, who operate homes for the elderly in cities across the country, is involved in a high profile court case challenging the Obama Administration's accommodation for religious non-profits that object to making contraceptive coverage available to their employees. Vatican Radio reports today:

This is a sign, obviously of support for them [in their court case]” said Father Federico Lombardi, SJ, the head of the Holy See Press Office.

“In this sense it is connected also to the words that the Pope has said in support of the Bishops of the United States in the speech to President Obama,” Father Lombardi continued.

“This was a little addition to the programme, but I think it has an important meaning in this moment,” he said.

Presumably Father Lombardi's reference to the Pope's talk at the White House (see prior posting) were to this portion of the Pope's remarks:

[American Catholics are] concerned that efforts to build a just and wisely ordered society respect their deepest concerns and their right to religious liberty.  That freedom remains one of America’s most precious possessions.  And, as my brothers, the United States Bishops, have reminded us, all are called to be vigilant, precisely as good citizens, to preserve and defend that freedom from everything that would threaten or compromise it.

Little Sisters of the Poor have filed a petition for certiorari asking the U.S. Supreme Court to review the 10th Circuit's decision upholding the Obama Administration's contraceptive coverage accommodation for religious non-profits. (See prior posting.)

Florida City Ends Invocations After Satanist Demands Participation

The Coral Springs, Florida City Council has decided to end its practice of offering an invocation to open council meetings.  According to a report this week from Christian News Network, the decision came after a Satanist requested to lead an invocation.  Bowing to the campaign by Satanist Chaz Stevens to force an end to city council prayers by "mak[ing] a fiasco out of it," Coal Gables Mayor Skip Campbell said he did not want to spend thousands of dollars on lawyers fees to fight Stevens' invocation request.

Pope Addresses Politically Sensitive Topics In First U.S. Speeches

In his first full day in the United States, Pope Francis today waded into the politically sensitive topics of immigration, climate change and the Church's sex abuse scandals.  He gave two major addresses one at the White House this morning (full text) and a second (full text) to the U.S. Catholic Bishops at a mass at the Cathedral of St. Matthew the Apostle, close to the White House. Here are some excerpts:

On immigration:

As the son of an immigrant family, I am happy to be a guest in this country, which was largely built by such families. (White House speech).

My second recommendation has to do with immigrants.  I ask you to excuse me if in some way I am pleading my own case.  The Church in the United States knows like few others the hopes present in the hearts of these “pilgrims”.  From the beginning you have learned their languages, promoted their cause, made their contributions your own, defended their rights, helped them to prosper, and kept alive the flame of their faith.  Even today, no American institution does more for immigrants than your Christian communities.  Now you are facing this stream of Latin immigration which affects many of your dioceses.  Not only as the Bishop of Rome, but also as a pastor from the South, I feel the need to thank and encourage you.  Perhaps it will not be easy for you to look into their soul; perhaps you will be challenged by their diversity.  But know that they also possess resources meant to be shared.  So do not be afraid to welcome them.  Offer them the warmth of the love of Christ and you will unlock the mystery of their heart.  I am certain that, as so often in the past, these people will enrich America and its Church. (Speech at St. Matthew's').

On Church sex abuse scandals:

I am also conscious of the courage with which you have faced difficult moments in the recent history of the Church in this country without fear of self-criticism and at the cost of mortification and great sacrifice.  Nor have you been afraid to divest whatever is unessential in order to regain the authority and trust which is demanded of ministers of Christ and rightly expected by the faithful.  I realize how much the pain of recent years has weighed upon you and I have supported your generous commitment to bring healing to victims – in the knowledge that in healing we too are healed – and to work to ensure that such crimes will never be repeated. (Speech at St. Matthew's)

On climate change:

Mr. President, I find it encouraging that you are proposing an initiative for reducing air pollution.  Accepting the urgency, it seems clear to me also that climate change is a problem which can no longer be left to a future generation.  When it comes to the care of our “common home”, we are living at a critical moment of history.  We still have time to make the changes needed to bring about “a sustainable and integral development, for we know that things can change” (Laudato Si’, 13).  Such change demands on our part a serious and responsible recognition not only of the kind of world we may be leaving to our children, but also to the millions of people living under a system which has overlooked them.  Our common home has been part of this group of the excluded which cries out to heaven and which today powerfully strikes our homes, our cities and our societies.  To use a telling phrase of the Reverend Martin Luther King, we can say that we have defaulted on a promissory note and now is the time to honor it. (Speech at White House).

Parties Dismiss Suit That Claimed Teacher Punished Student For Nonbelief

WANE News reports that yesterday an Indiana federal district court dismissed, upon agreement of the parties, a suit that was filed in June claiming that a Fort Wayne (IN) elementary school teacher punished a second grade student who allegedly upset classmates by telling them that he did not go to church or believe in God. (See prior posting.)  The case is A.B. v. Meyer, (ND IN). An internal school investigation found that teacher Michelle Meyer acted appropriately and that the complaint in the lawsuit did not accurately reflect what had happened.  The teacher said her concern was that the student did not care about the impact of his words on a fellow student.

Pope Francis Visit To U.S. Begins Today-- How To Follow The Events

The White House has posted a page on its website captioned Pope Francis Is Coming To Washington.  It sets out the Pope's schedule for his visits to D.C., New York and Philadelphia, and other basic information about the visit.  It also provides a form to sign up for e-mail alerts during the Pope's visit.  He arrives from Cuba at Andrews Air Force Base today at 4:00 p.m.  Coverage of the visit will be streamed live online by the U.S. Conference of Catholic Bishops here.  EWTN is also providing live streaming of both the Cuba and U.S. portions of the visit. Of course, the Vatican News Portal also has extensive coverage.  A private Catholic evangelization website, Pope Francis Visit 2015, has extensive background material and coverage as well.  It even offers extensive Pope Francis merchandise and memorabilia for sale.

More On Rowan County, Kentucky, and Marriage Licenses

When Kentucky federal district court Judge David Bunning released Rowan County Clerk Kim Davis from jail where she had been placed for refusing to comply with a court order to issue same-sex marriage licenses (see prior posting), he also ordered the five deputy clerks who agreed to comply with the order to file a status report every 14 days. (Full text of order). The first of the ordered reports (full text) was filed on Sept. 18 on behalf of Deputy Brian Mason, the Deputy Clerk who, by mutual agreement, is actually issuing the licenses.  He reports in detail on language changes Kim Davis made in the forms. These include elimination of references to Davis in the form. The other Deputy Clerks filed their first status reports yesterday (Sept. 21).  Perhaps the most interesting (full text) is the one filed on behalf of Deputy Clerk Kristy Plank, which says in part:

As of this filing, Mrs. Plank reports that, to the best of her knowledge, all requests for marriage licenses requested by legally qualified couples have been issued.  The only denial of a marriage license application that has occurred within the last two weeks was to a gentleman who stated that he wanted a license that would permit him to marry “Jesus”. When it was explained to the individual that both parties had to be present, he stated, “Jesus is always present”. After being denied, the gentleman returned later and presented a type of Power of Attorney document issued by his church granting him authority to sign “Jesus’” name. Since both parties were not present these requests were denied.

For those who want to follow all the filings in this case (and in other cases involving LGBT rights), a comprehensive source is the non-profit organization Equality Case Files which posts these primary source materials online.  They are most easily accessed through the group's Twitter feed, its Facebook page or its library on Scribd. [Thanks to Marty Lederman via Religionlaw for the lead.]

UPDATE: On Sept. 21, the ACLU filed a motion (full text) with the court asking it to issue an order requiring marriage licences issued by the Rowan County Clerk's Office to be in the form that was used prior to Sept. 8, and not in the altered form that Davis has imposed. The motion argues that the changes-- especially listing the person signing it as "Notary Public" rather than "Deputy Clerk"-- cast question on the validity of the license and casts "a stamp of animus against the LGBT community."

CAIR Calls For Carson To Withdraw From Presidential Race Because of His Comments About Muslims

As reported by the Wall Street Journal, yesterday CAIR-- the Council on American-Islamic Relations-- called for Dr. Ben Carson to withdraw from the contest for the Republican Presidential nomination, saying that Carson "is unfit to lead and because his views are inconsistent with the United States Constitution."  The call comes after Carson, who identifies as a Seventh Day Adventist, said on Sunday's Meet the Press that a Muslim should not be made President and that Islam is inconsistent with the U.S. Constitution. (See prior posting.)  In an interview with The Hill on Sunday, Carson expanded on  his views:

I do not believe Sharia is consistent with the Constitution of this country.  Muslims feel that their religion is very much a part of your public life and what you do as a public official, and that’s inconsistent with our principles and our Constitution.

According to The Hill:

Carson said that the only exception he’d make would be if the Muslim running for office “publicly rejected all the tenants of Sharia and lived a life consistent with that.”

...  However, on several occasions Carson mentioned "Taqiyya," a practice in the Shia Islam denomination in which a Muslim can mislead nonbelievers about the nature of their faith to avoid religious persecution. “Taqiyya is a component of Shia that allows, and even encourages you to lie to achieve your goals,” Carson said.

CAIR says it will send each candidate in the primaries a copy of the Koran, and will send a copy to any American who requests it and pays the cost of shipping.

Recent Articles of Interest

From SSRN:

• Amélie Barras & Dia Dabby, Only Skin Deep? Revising the Secular Narrative Through Circumcision, (Heather Shipley (ed.), Globalized Religion and Sexual Identity: Contexts, Contestations, Voices (Brill Academic Publishing, 2014), 86-106).
• Ifzal Mehmood, Siddiq Ali Chishti & Muhammad Hassan, Right of Women to Divorce: Adjudication of Redemption (Khul‘) in Islamic Law and Pakistani Law, a Critical Analysis of the Orthodox Islamic Scholars and Recommendations of Pakistani Courts on the Basis of Legal Opinion (Ijtihad), (Australian Journal of Basic and Applied Sciences, 2015).
• Kathryn Chan, The Advancement of Religion as a Charitable Purpose in an Age of Religious Neutrality, (September 12, 2015).
• Lynne Marie Kohm, The Unspoken Consequences of Obergefell: Calling Convictional Christian Scholars, (September 15, 2015).
• Steve Sanders, RFRAs and Reasonableness, (Indiana Law Journal, Forthcoming).
• Kellen R. Funk, Shall These Bones Live? Property, Pluralism, and the Constitution of Evangelical Reform, (Law and Social Inquiry, Forthcoming).
• Kari E. Hong, Obergefell's Sword: The Liberal State Interest in Marriage, (University of Illinois Law Review, Forthcoming).

From SmartCILP:

• Sonu Bedi, The Horizontal Effect of a Right to Non-Discrimination in Employment: Religious Autonomy Under the U.S. Constiution and the Constitution of South Africa, 95 Boston University Law Review 1181-1204 (2015).
• Robin Fretwell Wilson, Bargaining for Civil Rights: Lessons From Mrs. Murphy for Same-Sex Marriage and LGBT Rights, 95 Boston University Law Review 951-993 (2015).
• Michelle Kundmueller, The Devil Is In All the Details (Not Just In Georgia), [LEXIS link], 13 First Amendment Law Review 221-261 (2014).

Church Denied Injunction Against Noise From Downtown Festival

A Nevada federal district court last week refused to grant a preliminary injunction to a downtown Las Vegas church that fears noise and road closings from the annual Life Is Beautiful festival will interfere with its ability to hold its regular weekend services.  The festival is scheduled for this coming weekend.  While the parties worked out some compromises, the festival would not agree to cancel concerts on two stages near the church on Saturday and Sunday nights. The church refused suggestions to move its services elsewhere.  In Amistad Christiana Church v. Life Is Beautiful, LLC, (D NV, Sept. 18, 2015), the court rejected the argument that the grant of the special use permit to the festival violates the church's free exercise rights. The permit does not selectively burden the church.  The court relied heavily on the U.S. Supreme Court's statement in its 1988 Lyng case that: "The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens." The court also rejected the church's private nuisance claim.

Paper Profiles Mat Staver and His Organzation Liberty Counsel

The Orlando Sentinel this weekend carries a lengthy profile of Mat Staver and his and his Christian conservative legal organization, Liberty Counsel.  Staver has recently been in the news because of his high profile representation or Rowan County, Kentucky Clerk Kim Davis who refuses to issue marriage licenses to same-sex couples.  Here is an excerpt from the article:

The maelstrom that formed earlier this month around Davis — an Apostolic Christian who said she was acting on her faith — involves factions Staver knows well. Liberty Counsel, a Maitland-based legal organization he founded, has spent decades representing the conservative vanguard in debates over abortion, gay marriage and religion's place in the public sphere.

In the process, the nonprofit has ballooned from a tiny venture collecting less than $200,000 in yearly donations to a multipronged organization that hauled in more than $4 million in the 2013 tax year, employs 10 staff attorneys, runs an outreach to Israel and even released its own feature film last year.

Presidential Hopeful Ben Carson Says Islam Is Not Consistent With U.S. Constitution

In an interview today on Meet the Press (video excerpt), Dr. Ben Carson-- currently one of the leading contenders (latest CNN poll) for the Republican Presidential nomination-- asserted that Islam is inconsistent with the U.S. Constitution. Politico reports on Carson's responses to a series of questions from moderator Chuck Todd triggered by Donald Trump's silence last week on an audience member's assertions about Islam and President Obama:

Asked whether his faith or the faith of a president should matter, Carson said, "It depends on what that faith is."

"If it's inconsistent with the values and principles of America, then of course it should matter. But if it fits within the realm of America and consistent with the constitution, no problem," he explained, according to a transcript.

Todd then asked Carson, whose rise in the polls has been powered in large part by Christian conservatives, if he believed that "Islam is consistent with the Constitution."

"No, I don't, I do not," he responded, adding, "I would not advocate that we put a Muslim in charge of this nation. I absolutely would not agree with that."

Carson said he would not necessarily have the same view about voting for a Muslim for Congress.

Recent Prisoner Free Exercise Cases

In Finley v. Nevada ex rel. Nevada Department of Corrections, 2015 U.S. Dist. LEXIS 122165 (D NV, Sept. 14, 2015), a Nevada federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 122167, (May 27, 2015), and dismissed complaints by African American Hebrew Israelite inmates that they were switched from the pre-packaged kosher meal program to the kosher common fare diet.

In Cole v. Danberg, 2015 U.S. Dist. LEXIS 122373 (D DE, Sept. 15, 2015) a Delaware federal district court dismissed a Muslim inmate's objections to a ban on charitable fundraising and institutional accounts; his claim that Muslim inmates are prevented from attending Friday services at the proper time and are not given equal time as other religious groups to conduct services; and the failure to furnish a Muslim inmate clerk and a typewriter. However the court permitted plaintiff to move ahead with has complaint that congregational prayer was banned and a Halal diet was not available.

In Walker v. Scott, 2015 U.S. Dist. LEXIS 122467 (CD IL, Sept. 15, 2015), an Illinois federal district court allowed a civilly committed Muslim inmate to move to trial on his complaint that he was denied a Halal or kosher diet and required to choose either the standard or vegetarian diet.

In Ellis v. Avery Mitchell Correctional, 2015 U.S. Dist. LEXIS 122679 (WD NC, Sept. 15, 2015), a North Carolina federal district court gave plaintiff inmate 20 days to submit evidence that he exhausted administrative remedies in seeking a vegan diet for religious reasons.

In Watkins v. Jones, 2015 U.S. Dist. LEXIS 123648 (ND FL, Sept. 15, 2015), a Florida federal district court adopted in part a magistrate's recommendations (2015 U.S. Dist. LEXIS 123647, Aug. 28, 2015) in a suit by a Muslim inmate and ordered prison officials to make kosher or other religiously acceptable meals available to plaintiff. The court dismissed as moot plaintiff's objection to prior rules barring his quarter-inch beard and dismissed his complaint that there were not separate Sunni Muslim services.

In Munic v. Langan, 2015 U.S. Dist. LEXIS 124662 (MD PA, Sept. 18, 2015), a Pennsylvania federal district court permitted a Jewish inmate to move ahead with is damage claims for denial of kosher meals, denial of visits with his rabbi, and denial of drug and alcohol treatment because of his religious beliefs.

In Damon v. Masters, 2015 U.S. Dist. LEXIS 124754 (SD WV, Sept. 18, 2015), a West Virginia federal district court adopted a magistrate's recommendations and dismissed a complaint by a Nation of Islam inmate that his free exercise rights were infringed when kidney beans were substituted for navy beans at a religious ceremonial meal. UPDATE: The magistrate's recommendation is at  2015 U.S. Dist. LEXIS 125757 (Aug. 25, 2015).

In Harvey v. Segura, 2015 U.S. Dist. LEXIS 124998 (D CO, Sept. 17, 2015), a Muslim inmate complained that authorities confiscated his only kufi, while prison officials contended that they took a second kufi which he was not entitled to keep under prison regulations.  A Colorado federal district court, adopting a magistrate's recommendation, dismissed the suit, but ordered officials to conduct a search of plaintiff's personal property. If he has no kufi, one must be furnished to him. If he does have one, this is to be reported to the court so it can consider sanctions for frivolous litigation.

Proposed Legislation Would Exempt Christian Scientists From ACA Individual Mandate

On Thursday, the House Ways and Means Committee voted (legislative history)  to forward on to the full House of Representatives H.R. 2061, the Equitable Access to Care and Health ("EACH") Act (full text). The proposed bill would extend the current religious conscience exemption in the Affordable Care Act that applies to Amish and Old Order Mennonites to also include Christian Scientists. (Background). The bipartisan bill currently has 170 co-sponsors in the House.  An identical Senate Bill (S. 352) has 30 co-sponsors.  The bill is still in committee in the Senate.

Top Massachusetts Court Hears Arguments On Whether Religiously-Motivated Corporal Punishment Disqualifies Foster Parents

Last week (Sept. 10), the Massachusetts Supreme Judicial Court heard oral arguments (video of full arguments) in Magazu v. Department of Children and Families (docket and links to briefs). As summarized by the Court at issue is:

Whether it was proper for the Department of Children and Families to deny the plaintiffs' request to become foster parents on the basis of the parents' religiously motivated use of corporal punishment on their biological children.

Wall of Separation blog discusses the case.

Pope Arrives In U.S. Tuesday; White House Guest List Already Raises Controversy

Pope Francis will arrive in the United States on Tuesday afternoon. Here is his official schedule. One event already creating controversy is the reception for the Pope on the South Lawn of the White House on Wednesday morning before his personal meeting with the President. According to Religion News Service today, while it is expected that nearly 15,000 people will attend the reception, conservative Catholics and at least one Vatican official are upset at invitations that have been extended to "a number of gay Catholics and LGBT advocates, an openly gay Episcopal bishop, and to a nun who is a prominent social justice activist." Other officials in the Vatican however apparently have no problem with the guest list.

6th Circuit Denies Kim Davis Stay of Injunction Pending Appeal

Yesterday in Miller v. Davis, (6th Cir., Sept. 17, 2015), the U.S. 6th Circuit Court of Appeals denied a motion by Rowan County, Kentucky Clerk Kim Davis to stay the preliminary injunction against her, pending appeal. The district court had enjoined Davis from refusing to issue marriage licenses to same-sex couples.  The appeals court said that Davis had not sought a stay from the district court, as required by Federal Rules, before asking the Court of Appeals for a stay.  Davis argued that it would have been useless to go to the district court first.

UPDATE: Marty Lederman at Balkinization blog (9/19) has a lengthy discussion of whether Kim Davis or her office is in violation of the federal district court's injunction in the implementation of the issuance by a deputy clerk of marriage licences with modified language.

8th Circuit Creates Circuit Split On ACA Contraceptive Mandate Accommodation For Religious Non-Profits

Disagreeing with the decisions of several other Circuit Courts of Appeal, yesterday the 8th Circuit held that the Obama administration's contraceptive coverage accommodation for religious non-profits violates RFRA.  In Sharpe Holdings, Inc. v. U.S. Department of Health and Human Services, (8th Cir., Sept. 17, 2015), the court held the requirement that CNS International Ministries and Heartland Christian College complete notification forms to opt out of providing coverage imposes a substantial burden on their exercise of religion:

Even if the ACA requires that insurance issuers and group health plans include contraceptive coverage regardless of whether CNS and HCC self-certify, it also compels CNS and HCC to act in a manner that they sincerely believe would make them complicit in a grave moral wrong as the price of avoiding a ruinous financial penalty.... [I]f one sincerely believes that completing Form 700 or HHS Notice will result in conscience-violating consequences, what some might consider an otherwise neutral act is a burden too heavy to bear.... Religious beliefs need not be “acceptable, logical, consistent, or comprehensible to others” to deserve protection.

The court went on to hold that even if the government has a compelling interest here, it has not used the least restrictive means to achieve its goals. Those less restrictive means include requiring the government to identify the third party administrator who will be responsible for furnishing coverage; having the government directly furnish contraceptive coverage to women whose employers object to doing so; or making contraceptive coverage available through insurance exchanges.

In a second opinion issued yesterday, Dordt College v. Burwell, the 8th Circuit applied its Sharpe Holdings precedent to a similar challenge by two religiously affiliated colleges.

In a press release on the decision, Becket Fund says that the split in Circuits created by yesterday's opinions greatly increases the likelihood that the Supreme Court will grant review in one or more cases raising the issue.  Cert petitions have already been filed in seven other cases in which circuit courts upheld the accommodation rules.

Probate Judge Asks Alabama Supreme Court To Protect His Refusal To Issue Same-Sex Marriage Licences

As reported by AL.com, on Wednesday Alabama Probate Judge Nick Williams filed an "Emergency Petition for Declaratory Judgment and/or Protective Order In Light of Jailing of Kentucky Clerk Kim Davis" (full text of petition) and a Memorandum In Support of the motion (full text). Williams objects on religious grounds to issuing marriage licenses to same-sex couples. The petition begins:

The jailing of Kentucky Clerk Kimberly B. Davis puts at immediate risk the liberty interest of all faithful and religiously sincere public officials in Alabama whose office has responsibility for making decisions as to whether to give sanction and honor to homosexual relationships to include the issuance of a license to engage in sodomy.  These officers need this Court's declaration that their sincerely held religious beliefs do not disqualify them from holding their office.

Last March, the Alabama Supreme Court issued a writ of mandamus ordering Probate Court judges around the state to discontinue the issuance of marriage licenses to same-sex couples, (See prior posting.)  Judge Williams emergency motion was technically filed as a motion in that case, captioned in the motion as Ex parte State of Alabama ex rel Alabama Policy Institute v. King (Case No. 1140460). .

Remaining Challenges To California's Ban On Reparative Therapy For Minors Dismissed

In 2013, the 9th Circuit rejected a facial free speech challenge by mental health providers to California's ban on engaging in sexual orientation change efforts with patients under 18. It also rejected a parental rights claim.  (See prior posting.) Now in Pickup v. Brown, (ED CA, Sept. 15, 2015), a California federal district court dismissed remaining challenges to the statute.  Finding the law is neutral and generally applicable, the court dismissed a facial Free Exercise challenge. The court also rejected, with leave to file an amended complaint, plaintiffs' "as applied" free speech challenge.

Court Says Lutheran Synod Dispute Panel's Decision Was Only Advisory

In Hillenbrand v. Christ Lutheran Church of Birch Run, (MI App., Sept. 15, 2015), a Lutheran pastor who was fired by his congregation filed suit after the Lutheran Church- Missouri Synod (LCMS) Dispute Resolution Panel concluded that the decision to terminate the pastor should be revised, and he should be paid his salary and benefits until he takes another position. The court held that LCMS is congregational and not hierarchical, and that the Dispute Resolution Panel's decision was merely advisory, even if the congregation wrongfully attempted to withdraw from the Synod in order to avoid the dispute resolution process.  The court added:

plaintiff is asking this Court to do exactly what the United States Supreme Court [in Hosanna-Tabor] said courts should not, i.e., impose an unwanted minister on a church.

Recent Articles of Interest

From SSRN:

• Deepa Das Acevedo, Divine Sovereignty, Indian Property Law, and the Dispute Over the Padmanabhaswamy Temple, (Modern Asian Studies, 2016).
• Giancarlo Anello, The Islamic Religion in the 'Architecture' of the 2014 Egyptian Constitution, ( Diritto & Questioni pubbliche, Forthcoming (2015)).
• Daniel Augenstein, Freedom of Religion and the Politics of the Liberal Public-Private Divide, (44(1) Netherlands Journal of Legal Philosophy (2015) 8-23).
• J. Patrick Dobel, Ethics: Holy Evil and Theocracy, (Encyclopedia of Public Administration and Public Policy, Third Edition 2015 by Taylor & Francis).
• Frederick Mark Gedicks, 'Substantial' Burdens, (BYU Law Research Paper No. 15‐18, Sept. 2015).
• Eleni Polymenopoulou, A Thousand Ways to Kiss the Earth: Artistic Freedom, Cultural Heritage and Islamic Extremism, (Rutgers Journal of Law and Religion, Volume 17, Fall 2015).
• John W. Ragsdale, Sacred in the City: The Huron Indian Cemetery and the Preservation Laws, (August 20, 2015).
• Nancy J. Knauer, Religious Exemptions, Marriage Equality, and the Establishment of Religion, (University of Missouri-Kansas City Law Review, Vol. 83, No. 1, 2015 Forthcoming).
• Peter Nicolas, Fundamental Rights in a Post-Obergefell World, (Yale Journal of Law & Feminism, Forthcoming.
• Burlette Carter, Brief of Amici Curiae Professor W. Burlette Carter in Support of Neither Party: Obergefell v. Hodges; Deboer v. Snyder; Tango v. Haslam; Bourke v. Beshear,  (GWU Law School Public Law Research Paper No. 2015-32).

From SmartCILP:

• Neil S. Siegel & Reva B. Siegel, Compelling Interests and Contraception, 47 Connecticut Law Review 1025-1043 (2015).

Note also that the various publications listed under "Journals" in the Religion Clause sidebar continue to publish regularly.

IRS Requires Speedier Responses From Applicants for Non-Profit Status

Last week the Internal Revenue Service issued a Memorandum For Exempt Organization Determination Employees (Sept. 8, 2015) giving organizations that apply for tax exempt status less time to submit additional information requested by the IRS. Under the new procedures if an organization does not provide the information by the due date, the case will be closed and fees will not be refunded.  A manager-approved extension of up to 14 days can be granted.  Previously an applicant could get a standard 14 day extension and then its file was held for an additional 90 days before it was closed.

Recent Prisoner Free Exercise Cases

In Ladner v. Hull, 2015 U.S. Dist. LEXIS 118269 (ED VA, Sept. 3, 2015), a Virginia federal district court dismissed a Born-Again Christian inmate's complaint that there were not church services or Bible study sessions available to him. It found that a faith representative was available, and that plaintiff could file requests for other religious needs.

In Cooper v. Sowers, 2015 U.S. Dist. LEXIS 118181 (D MD, Sept. 4, 2015), a Maryland federal district court dismissed a Catholic inmate's complaint that he was not provided a meatless diet on Ash Wednesday and on Fridays during Lent. Prison policy provides no special meal adjustments for those days and leaves it up to each inmate to decide what food to abstain from.

In Mootry v. Flores, 2015 U.S. Dist. LEXIS 118632 (ED CA, Sept. 4, 2015), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that he was denied Jumu'ah prayer services because of a policy barring inmate ministers from leading inmate religious services without a supervising chaplain or volunteer.

In Sherman v. Jess, 2015 U.S. Dist. LEXIS 119282 (ED WI, Sept. 8, 2015), a Wisconsin federal district court dismissed a complaint by a Pagan Wiccan inmate that he did not get his religious text, Book of Shadows, while in temporary lockup.

In Mitchell v. Cate, 2015 U.S. Dist. LEXIS 120059 (ED CA, Sept. 8, 2015), a California federal magistrate judge recommended dismissing a Christian inmate's complaint that he was not allowed to participate in religious activities or speak to a religious adviser during the time he was subject to a restricted modified program.

In Applegate v. Kokor, 2015 U.S. Dist. LEXIS 120107 (ED CA, Sept. 8, 2015), a California federal magistrate judge dismissed with leave to amend a 252-page complaint alleging "various religious claims against eight Defendants," saying "it is neither time-efficient nor fair to other litigants for the Court to hunt through Plaintiff's Complaint for camouflaged cognizable claims."

In Robinson v. Cate, 2015 U.S. Dist. LEXIS 120870 (ED CA, Sept. 9, 2015), a California federal magistrate judge recommended that a Muslim inmate be permitted to move ahead with free exercise and equal protection claims for injunctive relief on his complaint that the Religious Meat Alternate Program fails to provide a fully Halal diet that is comparable to the fully Kosher diet provided to Jewish inmates.

In Moon v. Unterreiner, 2015 U.S. Dist. LEXIS 121171 (ED MO, Sept. 11, 2015), a Missouri federal district court dismissed on various procedural grounds a suit by an inmate held under home confinement with electronic monitoring who claimed that his free exercise rights are infringed by requiring him to state the times he is going to and leaving his mosque for prayer.

Australian Court Awards Damages For Sexual Abuse By Headmistress of Jewish School

In Erlich v. Leifer, (SC Victoria, Sept. 16, 2015), a trial court in the Australian state of Victoria awarded compensatory and exemplary damages to Hadassa Sara Erlich who as a student in an ultra-Orthodox school was sexually abused by the school headmistress Malka Leifer,  The court found that the school directly and vicariously liable for the psychological injuries to Erlich. In an 82-page opinion, the court described Leifer's unusual position of power over students.  The Melbourne Herald Sun reports on the decision.

EEOC Sues Health Care System For Denying Religious Accommodation

The EEOC announced that it filed suit yesterday against the Minnesota-based North Memorial Health Care for withdrawing a job offer to a Seventh Day Adventist nurse after she requested an accommodation for religious practices.The federal court lawsuit seeks damages for nurse Emily Sure-Ondara, as well as an injunction barring retaliation against employees or job applicants who request religious accommodations.

Denial of Use Permit Did Not Violate RLUIPA

In Livingston Christian Schools v. Genoa Charter Township, (ED MI, Sept. 15, 2015), a Michigan federal district court denied a temporary restraining order to a Christian school that wants to move to property owned by the Brighton Church of the Nazarene.  The township board denied the Church's application to amend its special use permit to allow the school to operate on the property because of objections from neighbors about traffic and non-compliance with the current special use permit. The school claims this violate its rights under RLUIPA.  The court held that the school had not shown a likelihood of success on that claim:

LCS cannot meet its burden in establishing that the denial has more than a minimal impact on its free exercise of religion. The township’s denial of the church’s special use permit does not preclude either the church ... or LCS from freely exercising their religious tenets. The church is free to continue its normal operations pursuant to its existing special use permit. Similarly, LCS is free to continue operating as a religious school, and it has a building in Pinckney that it owns and has been using as the location for its school for the past nine years. Moreover, LCS recently found a second location from which it can operate. The fact that LCS has “ready alternatives” more than sufficient to meet its religious needs despite the township’s denial makes it unlikely that it has suffered a substantial burden on its free exercise of religion.

Abuse Victims Will Press Pope For More Accountability

In an article posted yesterday, the New York Times reports that when Pope Francis visits the United States later this month, survivors of clergy sexual abuse will be pressing him to do more to deal with abusers:

Advocates and victims say that while the church has improved in preventing abuse, it is still resisting full accountability. It blocks efforts to overhaul statute of limitations laws that protect many priests from prosecution and the church from lawsuits that could lead to more payouts to victims, they say. Outside the United States, the church still does not require those who face accusations of abuse to be removed from active ministry. And the Vatican has never explicitly punished a bishop for shielding accused priests, instead quietly accepting a few resignations....

He could also direct archdioceses to release the names of credibly accused American priests, at least 2,400 of whom have never been identified, said Terence McKiernan, the president of BishopAccountability.org,

Canadian Appeals Court Invalidates Niqab Ban At Citizenship Ceremonies

In Canada yesterday the Federal Court of Appeal in a rapid ruling from the bench following a half-day hearing held that the government's guideline banning the wearing of the niqab when taking the citizenship oath at naturalization ceremonies is invalid. According to the National Post, the judges moved quickly so that Zunera Ishaq could obtain her citizenship in time to vote in the October 19 federal election. The appeals court affirmed a lower court's ruling (see prior posting) that the policy against face coverings violates the government's own citizenship regulations. At the appeals court hearing, a Justice Department lawyer conceded that the face covering policy is not mandatory because a mandatory policy cannot be imposed through a mere guideline.

Arizona City Adopts Christian-Only Invocation Policy

At its September 14 meeting, the Coolidge, Arizona City Council had before it a resolution (full text) to open each Council meeting with a prayer.  The resolution was drafted to comply with the Supreme Court's Town of Greece guidelines.  However, according to the Coolidge Examiner, in passing the resolution, Council by a 4-2 vote also adopted an amendment offered by Councilman Rob Hudelson to limit invocations to Christian prayers.  The paper reports:

Speaking last was Hudelson, who himself is a preacher. He made clear his views that the United States is a Christian nation.

“I think it’s very important,” Hudelson said. “We just proclaimed Constitution Week. You know what was said at the end of the [Revolutionary] war? A treaty in Paris that said ‘In the name of the most holy and undivided trinity.’ You don’t get that from the Quran. You get it from the Bible. You get it from Christianity. That’s our heritage.”

After this, Hudelson motioned to accept the resolution with the stipulation that this be a Christian item

The City Attorney told Council that this amendment would violate the Establishment Clause, but nevertheless Council passed it.  The Resolution is subject to a 30-day review period, and the City Attorney will now rewrite it to comply with Council's amendment.

Challenge To Kaporos Ritual Fails

According to the New York Post, on Monday a New York state trial court judge ruled against activists challenging the Jewish pre-Yom Kippur ritual of kaporos, which involves use of a live chicken in a ceremony to symbolically atone for the past year's sins.  The chicken is then slaughtered and donated to the needy.  The lawsuit (see prior posting) claimed the practice violates various health and animal cruelty laws.  The court found that challengers had not shown that the ritual was a public nuisance, avoiding the need to rule on defendants' free exercise defenses.

Woman Sues NYPD Over Required Removal of Hijab For Mug Shot

Courthouse News Service and the New York Daily News report on a suit filed Monday in federal court in the Eastern District of New York against the New York Police Department by a Muslim woman forced to remove her hijab (head scarf)  before having her mug shot taken. Mervat Soliman, a 53-year old Egyptian woman,was arrested after a fight with her neighbor over a parking space. Alleging various disrespectful incidents during questioning, when Soliman objected to removing her hijab, police allegedly said: "This is America, we don't care."

Update on Kim Davis and Marriage Licenses In Kentucky

On Monday, Rowan County, Kentucky Clerk Kim Davis, after spending 5 days in jail on contempt charges, returned to work still opposed on religious grounds to issuing marriage licences to same-sex couples.  However, as reported by CNN, she did not prevent her deputy clerks from issuing licences reading that they were issued "pursuant to federal court order." Kentucky Governor Steve Beshear said that the state will recognize these licenses as valid.  Meanwhile, yesterday in Davis v. Beshear, (6th Cir., Sept. 15, 2015), the U.S. 6th Circuit Court of Appeals denied Davis request for a preliminary injunction against the Governor and the Commissioner of the Kentucky Department of Libraries and Archives seeking to prevent them from enforcing the district court order that county clerks issue marriage licenses to same-sex couples and exempting her from issuing licenses pending appeal of the district court's delay in passing on her request for an injunction. (See prior related posting.) The court said in part:

Davis maintains that the issuance of marriage licenses to same-sex couples burdens her sincerely held religious beliefs in violation of the U.S. Constitution, the Kentucky Constitution, and the Kentucky Religious Freedom Restoration Act. Davis has not demonstrated a substantial likelihood of success on her federal constitutional claims. We need not address the merits of her claims under Kentucky law because the Eleventh Amendment of the U.S. Constitution precludes the federal courts from compelling state officials to comply with state law.

Crane Collapse Kills 107 At Mecca's Grand Mosque As Hajj Approaches

According to CNN, yesterday in Mecca, ten days before the beginning of the Hajj, a powerful storm caused a construction crane to collapse through the roof of the Grand Mosque, killing 107 and injuring 238 others. The Mosque surrounds the Kaaba, the holiest site in Islam.  The Mosque is being expanded to better handle the large number of visitors that make the Hajj pilgrimage each year.

Court Issues Interim $43.7M Judgment Against Russia In Fight Over Return of Jewish Library

In Agadus Chasidei Chabad of United States v. Russian Federation, (D DC,Sept. 10, 2015), the D.C. federal district court entered an interim judgment for accrued sanctions totaling $43.7 million against the Russian Federation, the Russian Ministry of Culture and Mass Communication, and the Russian State Military Archive.  It went on to hold that plaintiffs may petition the clerk every 90 days for an additional judgment until defendants comply with a 2010 order of the court.

The sanctions grow out of a ten-year effort by Chabad to regain possession of two expropriated collections of religious books held by the Russian government. After losing its jurisdictional arguments, the Russian government refused to participate in the litigation and in 2010 a default judgment was entered against it. The court then imposed civil sanctions of $50,000 per day until defendants comply with the court's order. (See prior posting.)  The United States government argued against the court granting the current interim judgment, claiming that this will further damage U.S. foreign policy interests including efforts to reach a settlement with defendants on plaintiffs' behalf. The court disagreed saying generally:

Given the United States' current sanctions against Russia and Russian interests based upon various geopolitical events, the Court is unpersuaded by such a vague concern in this case.

The court also pointed out that this is not an enforcement action. Enforcement issues will arise only when plaintiff identifies property in the United States to attach.

Reporting on the decision, the Legal Times quotes plaintiffs' lawyer who says this decision will permit plaintiffs to register a judgment in other states and look for assets to attach. He said Chabad will not go after Russian art or cultural objects on loan to U.S. museums. Meanwhile, as previously reported, in a split with Chabad in the U.S., the Russian branch of Chabad supports the Russian government's compromise arrangement which involves digitizing one of the collections and moving it to Moscow's new Jewish Museum and Tolerance Center.

Counter-Letter Urges Obama To Retain 2007 Office of Legal Counsel Interpretation of RFRA

As previously reported, last month a coalition of 130 religious, civil rights and advocacy organizations sent a letter to the President urging that the Justice Department's Office of Legal Counsel reconsider a 2007 Memorandum that interpreted RFRA to require exemptions for religiously-affiliated organizations from non-discrimination provisions in federal grant programs. Now a counter-letter dated Sept. 10 and signed by 70 religious leaders and faculty at religiously-affiliated colleges (full text) has been sent to the President urging him to retain "basic principles and provisions of federal law that support religious staffing by religious organizations." The letter reads in part:

We are grateful that you have welcomed “all hands” to contribute to federal social policy by maintaining and refining the federal faith-based initiative and its rules that provide for equal opportunity for faith-based organizations to collaborate with government in serving community needs. Making it more difficult for faith-based organizations to join those partnerships would undermine, rather than burnish, your commitment to effective and flourishing “all hands” partnerships.

Mirror of Justice reports on the letter.

Obama Holds Conference Call With U.S. Rabbis In Advance of Rosh Hashanah

A White House press release reports that yesterday President Obama held a conference call with over 500 U.S. rabbis from the four major Jewish religious denominations to mark Rosh Hashanah, the Jewish New Year, which begins at sundown on Sunday. According to the readout of the President's call:

In addition to wishing the Rabbis and their congregations a happy, healthy new year, the President discussed and answered participants' questions on a range of topics, including the nuclear deal among the P5+1, the EU, and Iran that will verifiably prevent Iran from obtaining a nuclear weapon. 

Second Suit Filed Challenging Nevada's School Voucher Law

This week a second state court lawsuit challenging Nevada's broad school voucher program was filed. The complaint (full text) in Lopez v. Schwartz, (NV Dist. Ct., filed 9/10/2015), claims that the challenged statute violates the Education Article (Art. XI) of the Nevada Constitution. The suit alleges that the new law diverts funds appropriated for uniform public schools to non-uniform private ones,  A press release announcing the filing of the lawsuit said that it complements the one filed last month by the ACLU (see prior posting) by raising a separate and independent basis for invalidating the law.

New York City Repeals Circumcision Informed Consent Rule

As reported by the New York Times, on Wednesday the New York City Board of Health by a vote of 9-1-1 repealed its largely unenforced regulations that required parental consent forms be signed in cases of ritual circumcision using the direct oral suction technique (metzitzah b'peh). The original regulations were adopted in 2012 in order to prevent passage of the herpes simplex virus to infants. (See prior posting.)  In its Notice of Adoption the Board said in part:

In February, 2015, the Mayor announced a new strategy to address this problem. As part of this approach, the Department will work cooperatively with leaders of the Orthodox Jewish community to educate parents about the risks of DOS. These educational efforts will include working with hospitals throughout the City to distribute educational materials about the risks of DOS to the parents of all newborn infant boys, as well as making this information available at other health care settings, such as obstetric and pediatric practices. These materials, which include a Department telephone number for parents who may have questions, have been translated into Yiddish and are being distributed at hospitals and medical offices that service communities where DOS is practiced. The Department’s educational initiative is more likely to succeed if the Department can restore a strong relationship with these communities.

City officials expect Orthodox Jewish leaders to cooperate in banning mohels  who are found to have infected an infant, though formal arrangements with them are not yet complete. (See prior related posting.) [Thanks to Scott Mange for the lead.]

Guilty Pleas In Indictment For Exporting Meat Falsely Labeled As Halal

According to the Des Moines Register, yesterday Midamar Corp. and Islamic Services of America each pleaded guilty in federal court in Iowa to one count of conspiracy to make false statements on export certificates, sell misbranded meat and commit wire fraud in the export to Malaysia and Indonesia of beef products purporting to be Halal. Each company will forfeit $600,000 in profits and may face probation and additional fines at sentencing. The related companies and their principals were indicted last year. (See prior posting.) Midamar’s founder, Bill Aossey Jr., was convicted earlier this summer of falsifying documents, while Aossey’s two sons who are directors of Midamar will enter guilty pleas on Friday. (See prior related posting.)

Oregon Judge Faces Ethics Charges Over Refusing Same-Sex Weddings and Other Matters

The Oregon Commission on Judicial Fitness and Disability announced in a press release issued Tuesday that a hearing is scheduled next month on ethics charges filed against Marion County Judge Vance Day.  (See prior related posting.) Day has religious objections to same-sex marriage, and one of the charges against him is that before he decided to discontinue entirely performing wedding ceremonies, he had his staff screen wedding applicants to assure that he was not presiding over a same-sex marriage.  However Day, who is head of the Veterans Treatment Court, also faces five other unrelated charges including false statements, improperly allowing a veteran with a prior felony conviction to handle firearms and posting a picture of Adolph Hitler in the county courthouse.  According to CBS News, the Hitler portrait was part of a collage included in memorabilia of a local doctor who had served in World War II. The portrait was surrounded and partially obscured by pages from the doctor's diary, medals and photos.

Meanwhile, The Oregonian reported yesterday that another Oregon state trial court judge, Washington County Judge Thomas Kohl, has also stopped performing weddings now that same-sex marriages are legal.  Kohl has written and speaks widely in churches and prisons about the transformative power of faith.

Fayetteville Voters Approve Controversial Anti-Discrimination Law

In Fayetteville, Arkansas on Tuesday voters approved the city's controversial Uniform Civil Rights Protection Ordinance.  According to the Arkansas Democrat-Gazette, complete unofficial returns show 7,666 votes for and 6,860 against the Ordinance that bars discrimination in employment, public accommodations, real estate, contracts and voting on the basis of sexual orientation and gender identity. Opponents, many of whom object that the religious exemptions in the ordinance are too narrow, have filed suit challenging the legality of the Ordinance. They claim it violates free exercise and free speech rights as well as Arkansas' recently enacted Intrastate Commerce Improvement Act that prohibits counties, municipalities and other political subdivisions from expanding civil rights protections beyond those found in state law. (See prior posting.)

Suit Challenges Kapparot Ceremonies Under California's Unfair Competition Law

In Los Angeles a group of animal rights activists have filed a state court lawsuit seeking to stop public kapparot ceremonies.  The Jewish Journal reports on the lawsuit, filed August 26,  challenging the pre-Yom Kippur ceremony which uses live chickens that are subsequently slaughtered.  Apparently, at least in previous years, in the Pico-Robertson neighborhood kapparot has been promoted with booths set up in parking lots, large banners and barkers in chicken costumes. Some say that the anti-kapparot protests in the Pico-Robertson area of Los Angeles have now driven the practice underground.

The lawsuit contends that the practice violates California's Unfair Competition Law (Bus. & Prof. Code Sec. 17200- 17210). The law's definition of unfair competition includes "any unlawful ... business act or practice."  A suit for an injunction and damages may be brought by "a person who has suffered injury in fact and has lost money or property as a result of the unfair competition."  The complaint, filed on behalf of seven plaintiffs, claims that in transporting, storing, and slaughtering the chickens, and later disposing of their blood and fecal matter, the six synagogues and five individuals named as defendants violate an average of eleven laws. Plaintiffs claim interesting losses to give them standing: expenses for travel to kapparot protests, time lost from work as a result of attending the protests and the cost of printing leaflets. One plaintiff claimed veterinarian bills for two chickens she rescued from one of the synagogues named as a defendant.

Suit Challenging Teaching of Evolution Dismissed

In Smith v. Jefferson County Board of Education, (D WV, Aug. 25, 2015), a West Virginia federal district court dismissed a suit, filed pro se by a historically litigious plaintiff, seeking to have the court outlaw the teaching of evolution in public schools. The complaint filed by plaintiff, a parent and taxpayer, is described by the court:

The three page complaint alleges that the Defendants have “fostered the propagation of religious faith” in West Virginia public schools, by way of “denying the Plaintiff’s accurate scientific mathematical system of genetic variations that proves evolution is a religion.”

National Center for Science Education reports on the decision.

Clergy-Penitent Privilege Does Not Shield Disclosure of Writer of Defamatory Letter

In Jaime Doe v. Catholic Diocese of Rockford, (IL App., Sept. 4, 2015), plaintiff sued seeking the identity of the writer of an allegedly defamatory letter about her son.  The letter, sent to the pastor of the parish, alleged that plaintiff's son engaged in the sexual touching of another minor child.  The appeals court affirmed the trial court's order that the writer of the letter be disclosed.  In doing so, the court concluded that the letter is not covered by the Clergy-Penitent Privilege, saying in part:

The writer was a volunteer for a religious-education program conducted by the parish and had the responsibility of monitoring the children in the program. In our view, at least on the present record, the statements in issue are simply not of the character of a confession or admission for which the writer was seeking spiritual guidance. Rather, they are outlining a potential source of risk for the parish and the children if J. Doe were to repeat such conduct while participating in the educational program offered by the parish. This is fundamentally not a matter of conscience for the writer; rather it is a matter of risk management for the writer as an agent of the parish and a guardian of children. Accordingly, we hold that the clergy-penitent privilege is simply inapplicable.

Medical Examiner Need Not Wait To See If Religious Objection To Autopsy Is Made

In Rugova v. City of New York, (NY App. Div., Sept. 8, 2015), a New York intermediate appellate court held that the trier of fact should determine whether the Medical Examiner's 36-hour delay in informing next of kin that an accident victim's body was available amounted to interference with a family's burial rights (right of sepulcher). However the court held that the Medical Examiner was not liable for conducting an autopsy after the accident even though that was inconsistent with the family's Muslim religious beliefs. The court said in part:

As a matter of statute, the Medical Examiner has extensive authority to perform autopsies within the exercise of professional discretion ... including where, as here, circumstances indicate that the death was accidental....  

Pursuant to statute, compelling public necessity is only required where the Medical Examiner has received an objection on religious grounds from a surviving friend or relative or has reason to believe that an autopsy is contrary to the decedent's religious beliefs.... While plaintiffs obviously could not make such objection, since they had not been informed of decedent's death, it is submitted that the Medical Examiner's office was not obligated to wait and see if an objection would be made before performing the autopsy....

District Judge Lifts Contempt Sanction and Orders Kentucky Clerk Released From Jail

Today as Republican Presidential candidates Mike Huckabee and Ted Cruz prepared to visit Rowan County (KY) Clerk Kim Davis (CNN), federal district judge David Bunning ordered her released from jail.  His order (full text) read in part:

On September 8, 2015, Plaintiffs filed a Status Report at the Court’s behest.  According to the Report, Plaintiffs have obtained marriage licenses from the Rowan CountyClerk’s Office. The Court is therefore satisfied that the Rowan County Clerk’s Office is fulfilling its obligation to issue marriage licenses to all legally eligible couples, consistent with the U.S. Supreme Court’s holding in Obergefell  and this Court’s August 12, 2015 Order. For these reasons, the Court’s prior contempt sanction against Defendant Davis is hereby lifted. 

Accordingly, IT IS ORDERED as follows:

1.Defendant Davis shall be  released  from the custody of the U.S. Marshal forthwith. Defendant Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples. If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this Order and appropriate sanctions will be considered....

In a footnote to his order, Judge Bunning said:

While the Status Report reflects that Plaintiffs’ marriage licenses have been altered so that “Rowan County” rather than “Kim Davis” appears on the line reserved for the name of the county clerk, Plaintiffs have not alleged that the alterations affect the validity of the licenses. Nor do the alterations impact the Court’s finding that the deputy clerks have complied with the Court’s Order.

Washington Post reports on the court's action.

UPDATE: As Kim Davis was released from jail on Tuesday afternoon, Republican presidential hopeful Mike Huckabee, standing beside her, told the media: "If somebody needs to go to jail, I am willing to go in her place, and I mean that,"(The Hill).

Satanic Temple Asks To Place Baphomet On Arkansas Capitol Grounds

In a press release today, The Satanic Temple announced that it has formally asked the Arkansas’ Capitol Arts and Grounds Commission for permission to place its "Baphomet" monument on the Capitol grounds next to an already-authorized Ten Commandments monument.  The Satanic Temple contends that when Arkansas earlier this year enacted SB 939 authorizing the Ten Commandments monument, it effectively opened the Capitol grounds to private donations and may not engage in viewpoint discrimination in accepting them.It says it will place an inscription on the Baphomet monument reading:

Be it known to all that this statue commemorates the history of law in the United States of America. From the deplorable Satanic Witch Hunts, the cherished doctrines of due process, presumption of innocence and the protection of minorities from the tyranny of mob rule became part of the established foundation of American jurisprudence.

Baphomet was unveiled in a ceremony in Detroit earlier this summer. (See prior posting.) A Hindu group also wants to place a monument on the Arkansas Capitol grounds. (See prior posting.)

Pope Francis Reforms Church's Annulment Process

As reported by CNN and Vatican Radio, Pope Francis today issued two Apostolic  Letters motu proprio (by the Pope's own initiative) introducing major changes in the Church procedures for annulling marriages. One of the letters, Mitis Iudex Dominus Iesus (full text in Latin and Italian) reforms the Code of Canon Law of the Latin Church, while the other, Mitis et misericors Iesus (full text in Latin and Italian) reforms the Code of Canon Law for Oriental Churches. According to CNN, the documents make three major changes in the annulment process:  (1) they eliminate a second review by a cleric before a marriage can be nullified; (2) they give bishops the ability to fast-track and grant the annulments themselves in certain circumstances, for example when spousal abuse or an extramarital affair has occurred; and (3) they provide that the annulment process should be free, except for a nominal fee for administrative costs, and should be completed within 45 days.

Saga of Recalcitrant Rowan County Clerk Continues

Developments over the Labor Day weekend have made same-sex marriage opponent Kim Davis-- the Rowan County, Kentucky Clerk who was remanded to jail on civil contempt charges Thursday for refusing to allow her office to issue marriage licenses-- into a high profile symbol of conservative Christian resistance to the U.S. Supreme Court's same-sex marriage decision. (On details of her jailing, see prior posting.)  As reported by the Washington Post, on Friday morning, Deputy Clerk Brian Mason began issuing marriage licenses without Davis' name appearing on them. The County Attorney had ruled that deputy clerks do not need Davis' approval to issue licenses.  However Davis' attorneys argue that these licenses are void.   Marty Lederman at Balkinization blog on Saturday posted a detailed analysis of Kentucky law on this and related issues.

Meanwhile Davis' attorneys have filed motions seeking to get Davis released from jail. Before Davis was held in contempt, she had already filed an appeal with the 6th Circuit seeking to overturn the preliminary injunction that had been issued ordering her to end her resistance. (See prior posting). On Sunday, her attorneys filed an amended notice of appeal (full text), appealing the contempt citation against her as well as the district court's order clarifying that its injunction required issuance of licenses to all qualified couples, not just the plaintiffs in the lawsuit. A Liberty Counsel press release announcing the filing said in part:

“While most Americans are enjoying the extended holiday weekend with family and friends, Kim Davis sits in isolation for the fourth day in jail,” said Mat Staver, Founder and Chairman of Liberty Counsel. “We are working through the holiday to secure Kim’s freedom”....

In a subsequent press release on Monday announcing a press conference and rally for this afternoon, Davis' attorneys said:

Kim Davis has never sought the spotlight. Although some people have said she is a hero and some accuse her of wanting to be a martyr, neither is true. Kim bristles at the thought. She loves God, loves people, and loves her job. She remains faithful to all three and that is why she is here in jail. She may be a prisoner because of her faith, but Kim is freer than most Americans.

Yesterday, Davis' attorneys also filed a separate emergency motion for an injunction (full text) asking the 6th Circuit Court of Appeals to bar enforcement against her of Kentucky Governor Steve Beshear's memo ordering Clerks to comply with the Supreme Court's same-sex marriage decision, and asking that the court exempt her from being required to authorized same-sex marriages. Marty Lederman has extensive analysis of this motion as well.

Mic reports that conservative politicians are drawing analogies to the civil rights movement.  Iowa Congressman Steve King said that Davis should be considered for the Rosa Parks award, and Republican presidential candidate Mike Huckabee compared the Supreme Court's same-sex marriage decision to the Dred Scott decision.

Catholic Bishops Issue Labor Day Statement

The U.S. Conference of Catholic Bishops this weekend issued its annual Labor Day Statement, saying in part:

The continuing struggles of most families to make ends meet are on display before our eyes, both at home and abroad. This Labor Day, we have a tremendous opportunity to reflect on how dignified work with a living wage is critical to helping our families and our greater society thrive....

This Labor Day, the violation of human dignity is evident in exploited workers, trafficked women and children, and a broken immigration system that fails people and families desperate for decent work and a better life. How do we participate in this wounding of human dignity, through choices about the clothes we wear, food we eat, and things we buy--most of which is unaffordable to the very workers who make it? .... These are difficult questions to ask, yet we must ask them. 

This year's statement gives particular attention to Pope Francis' recent encyclical, Laudato Si’ (see prior posting).  The USCCB website also makes available extensive legislative advocacy statements and background materials on labor and employment.

Catholic Diocese Can Move To Trial In 20-Year Battle To Create A Cemetery

Last week, a New York federal district court came down with another decision in the battle-- waged since 1994-- by the Catholic Diocese of Rockville Centre, New York to develop the Queen of Peace Cemetery in the Long Island village of Old Westbury.  The cemetery, which would be on a vacant 97-acre parcel that was once a horse farm, has already been the subject of extensive state court litigation. At issue in this lawsuit are restrictions imposed by the Village under its Places of Worship (POW) zoning law.  In Roman Catholic Diocese of Rockville Centre, New York v. Incorporated Village of  Old Westbury, (ED NY, Sept. 3, 2015), the court rejected a facial constitutional challenge to the POW law as well as a RLUIPA equal terms claim.  A 2011 federal court decision rejected various other federal and state claims. (See prior posting.), However last week's decision allowed the Diocese to proceed to trial on a RLUIPA substantial burden claim, an as-applied constitutional challenge to the POW law, a First Amendment Free Exercise claim, a retaliation claim and a claim for unlawful search of the cemetery site by a village official. New York Law Journal today has more background on the case.

Recent Articles of Interest

From SSRN:

• Antony Barone Kolenc, Not 'For God and Country': Atheist Military Chaplains and the Free Exercise Clause, (48 U.S.F. L. Rev. 395 (2014)).
• James M. Oleske, Doric Columns Are Not Falling: Wedding Cakes, the Ministerial Exception, and the Public-Private Distinction, (Maryland Law Review, Vol. 75, 2015, Forthcoming).
• Erwin Chemerinsky & Michele Goodwin, Religion Is Not a Basis for Harming Others, (Georgetown Law Journal, 2015/16, Forthcoming).
• Chad G. Marzen & William Woodyard, Catholic Social Teaching, the Right to Immigrate, and the Right to Regulate Borders: A Proposed Solution for Comprehensive Immigration Reform Based Upon Catholic Social Principles, (September 3, 2015).
• Steven J. Heyman, A Struggle for Recognition: the Controversy Over Religious Liberty, Civil Rights, and Same-Sex Marriage, (First Amendment Law Review, Forthcoming).
• Robert A. Kahn, Rethinking the Context of Hate Speech (Book Review: Michael Herz & Peter Molnar, The Content and Context of Hate Speech: Regulation and Responses), (First Amendment Law Review, Forthcoming).
• Isam M. Shihada,The Backlash of 9/11 on Muslims in Mohsin Hamid's The Reluctant Fundamentalist, (International Journal of Humanities and Cultural Studies, Vol. 2, Issue 2 (2015)).
• Angela Riley & Kristen A. Carpenter, Owning Red: A Theory of Indian (Cultural) Appropriation, (Forthcoming Texas Law Review (2016)).

From SSRN (Non-U.S. law):

• Paul Andrew Gwaza & Yusuph Moses Garba, Promoting Ethnic and Religious Harmony in Nigeria through Fidelity to Human Rights Principles, (August 30, 2015).
• Bernard M. Levinson, 'Better that You Should Not Vow than that You Vow and Not Fulfill': Qoheleth's Use of Textual Allusion and the Transformation of Deuteronomy's Law of Vows, (in Reading Ecclesiastes Intertextually. Edited by Katharine Dell and Will Kynes. Library of Hebrew Bible/Old Testament Studies 587. London: T&T Clark, Pages 28–41, 2014).
• Patrick McKinley Brennan, An Essay on Christian Constitutionalism: Building in the Divine Style, for the Common Good(s), (Rutgers Journal of Law and Religion, Forthcoming).
• Aleksandra Lis & and Tomasz Pietrzykowski, Animals as Objects of Ritual Slaughter: Polish Law after the Battle Over Exceptionless Mandatory Stunning,(August 29, 2015).
• Peter Oliver, Companies and Their Fundamental Rights: A Comparative Perspective, (64 International and Comparative Law Quarterly, pp 661-696, 2015).

From SmartCILP:

• Symposium: From the Magna Carta to the Montgomery March: The Career of Rights in the Anglo-American Legal Tradition. Articles by Winston P. Nagan, Bradley W. Miller, James R. Stoner, Jr., Adam J. MacLeod, Dwight G. Duncan, David VanDrunen and Michael J. DeBoer. 6 Faulkner Law Review 1-196 (2014).
• Symposium: Pursuit of Happiness in Interreligious Perspective. Articles by His Holiness the 14th Dalai Lama, Matthieu Ricard, Ch-Rab Jonathan Sacks, Michael J. Broyde, The Most Rev. Katharine Jefferts Schori, Luke Timothy Johnson, Seyyed Hossein Nasr and Khaled Abou El Fadl; response by Vincent J. Cornell. 29 Journal of Law & Religion 5-123 (2014).