Senate Judiciary Hearing Held On Nominees for Civil Rights Division, Judgeships

Yesterday, the U.S. Senate Judiciary Committee held a hearing on three nominees (webcast of hearing):

• Thomas E. Perez, to be Assistant Attorney General, Civil Rights Division, Department of Justice. (See prior posting.)
• David F. Hamilton, to be United States Circuit Judge for the Seventh Circuit. (See prior posting.)
• Andre M. Davis, to be United States Circuit Judge for the Fourth Circuit. (See prior posting.)

CQ reports that the most controversial of the nominations is that of David Hamilton. Apparently, this is because as a federal district court judge, Hamilton wrote two decisions holding that the Indiana House of Representatives, in opening its sessions with sectarian prayer, violated the Establishment Clause. (See prior postings 1, 2.) Republicans boycotted the first Judiciary Committee hearing on Hamilton on April 1, claiming that Democrats were moving too quickly on it. Only one Republican (Oklahoma's Tom Coburn) was in attendance yesterday.

Britain's New Equality Bill Published and Introduced Into Commons

Last Friday, Britain's long-awaited Equality Bill was introduced into the House of Commons, and the bill was published on Monday. (Shoosmiths). Plans for the bill were first announced in the Queen's speech to Parliament last December. (See prior posting). It is designed to place a new equality duty on public bodies, and to consolidate nine existing anti-discrimination laws into one Equality Bill. The Government Equalities Office has posted a web page with links to the full text of the bill and extensive additional information on the proposal. The government's Equality Impact Assessment says in part:

Including religion or belief in the new Equality Duty will require public authorities to consider how to eliminate discrimination, advance equality of opportunity and foster good relations for people of different religions or beliefs. This could result in health and social care providers analysing different levels of use of their services between different communities and taking positive steps to ensure access to services and better outcomes. This might, for example, particularly help Muslim women of Bangladeshi and Pakistani origin who have significantly poorer maternal and child health outcomes and are significantly less likely to access ante-natal services, partly because they are concerned they will be unable to receive services from women.

House Passes Hate Crimes Prevention Act

Yesterday, the U.S. House of Representatives, by a vote of 249-175, passed and sent on to the Senate HR 1913, the Local Law Enforcement Hate Crimes Prevention Act. The bill makes a number of changes in federal law. It expands federal support for local prosecutors investigating hate crimes and expands the definition of hate crimes to include attacks targeted at individuals because of their gender, sexual orientation, gender identity, or disability. It also expands the circumstances in which attacks motivated by an individual's race, color, religion, or national origin are treated as a federal hate crime. Reuters reports on the House action. The bill has been particularly controversial among some conservative Christian groups who claim that it threatens pastors who preach against homosexuality. (See prior posting.)

California High Court Will Not Hear Appeal On Expulsion Of Lesbian Students

The San Francisco Chronicle reports that the California Supreme Court, over the dissent of Justice Kathryn Mickle Werdegar, has refused to review the court of appeals decision in Doe v. California Lutheran High School Association. In the case, brought by two students who were expelled from a Lutheran high school because of their lesbian relationship, the court of appeals held that a private religious high school is not a "business enterprise" and therefore is not subject to the Unruh Civil Rights Act. (See prior posting.)

Suspended Proselytizing Lawyer Sues Charging Conspiracy

Yesterday's West Virginia Record reports on a lawsuit filed last month in state circuit court by suspended lawyer David Harless against a prominent Charleston (WV) lawyer, Scott Segal. (The West Virginia Record last month detailed background on the case and on the suspension of Harless who has been diagnosed with bipolar disorder.) State Supreme Court Justice Robin Davis is Segal's wife. Harless' lawsuit claims that Segal, Davis and others have conspired to keep his law license suspended because of a note regarding religion he left at Segal's office. Segal, who is Jewish, says that Harless has been trying to convert him and several other Jewish lawyers in the area to Christianity, using threatening approaches. Segal's defense will include testimony from numerous members of the Jewish community who have felt threatened by Harless. Now, in a pre-emptive move, Segal has filed a motion to disqualify Kanawha Circuit Judge Louis Bloom from hearing the case. Bloom is also Jewish, and Segal fears that if Harless loses at trial, he will use Bloom's religion on appeal to claim a Jewish conspiracy is responsible.

UPDATE: The May 7 West Virginia Record reports that Judge Bloom said, in a letter to the state's chief justice, that while he does not believe his religion is grounds for recusal, nevertheless he will recuse himself on the ground that both parties to the case are lawyers who have appeared before him in the past, and are likely to in the future.

UPDATE 2: The May 12 West Virginia Record reports that Circuit Judge Alan D. Moats has been appointed by the state Supreme Court to preside over the trial.

New Hampshire Senate Passes Same-Sex Marriage Bill Different From House Version

Yesterday, the New Hampshire Senate passed by a vote of 13-11 a bill authorizing same-sex marriage in the state. The House also approved a same-sex marriage bill last month, but differences between the Senate and House versions mean that the bill must now go back to the House for its approval. HB436, as amended by the Senate, provides:

Any person who otherwise meets the eligibility requirements of this chapter may marry any other eligible person regardless of gender. Each party to a marriage shall be designated "bride," "groom," or "spouse."

The bill also provides that a marriage may be solemnized either in a civil ceremony or a religious ceremony, and that neither clergy nor civil officials shall be required to officiate at any civil of religious marriage ceremony that would violate their free exercise of religion. Baptist Press reports that the Senate amendment clearly recognizing a difference between religious and civil ceremonies convinced Senate Judiciary Committee Chairwoman Deborah Reynolds to vote for the bill in the full Senate after opposing it in committee.

Under the bill, previous civil unions will be recognized as marriages in the state. AP reports that New Hampshire Governor John Lynch has said that the crucial issue is providing the same rights and protections to same-sex couples as to others, and that the state's existing civil unions law does that. Thus it is unclear whether the Governor will sign the same-sex marriage bill even if both houses agree on it.

Court Enjoins Use of RLDS Name By Break Away Church

In Community of Christ Copyright Corp. v. Devon Park Restoration Branch of Jesus Christ's Church, (WD MO, April 23, 2009), a Missouri federal district court granted a preliminary injunction to prevent a break-away church from using the name, initials or signage designs of the Reorganized Church of Jesus Christ of Latter Day Saints (RLDS). According to the Kansas City Star, RLDS has change its name to to the Community of Christ. The court found that Community of Christ however still holds the rights related to its RLDS name.

Michigan Civil Rights Commission Opposes Proposed Rule On Niqabs In Court

According to the Detroit Free Press, the Michigan Civil Rights Commission voted on Monday to oppose an amendment to the Rules of Evidence proposed by the Michigan Supreme Court that would give judges "reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons." The proposed amendment (full text) was first published by the Supreme Court last December in response to a federal lawsuit against a district judge for dismissing a woman's case when she refused to remove her niqab while testifying. (See prior posting.) The federal court dismissed the case on procedural grounds. The Civil Rights Commission directed its staff to write the Supreme Court expressing the Commission's concerns. The formal comment period on the proposed amendment expired April 1, and the Court has scheduled a hearing on the proposal (No. 2007-13) for May 12.

Court Says Former Episcopal Congregation Loses Trust In Break-Off

Diocese of Central New York v. Rector, Church Wardens, & Vestrymen of Church of Good Shepherd, (NY Sup. Ct., April 22, 2009), is another installment in the litigation involving property ownership after Church of Good Shepherd in Binghamton (NY) broke away from the Episcopal Church USA and affiliated with the more conservative Anglican Church of Kenya. (See prior postings 1, 2.) Having already ruled that Good Shepherd's property belongs to the Episcopal Church, in this decision the court concluded that Christ Episcopal Church of Binghamton, the alternative beneficiary, is now the primary beneficiary of a trust set up under the will of Robert A. Branan. The court concluded: "By all accounts, Mr. Branan was an active member of The Episcopal Church and there is simply no basis on which to find that Mr. Branan would want his money to go to those former members of The Church of the Good Shepherd that abandoned the faith that he, apparently, held so dear." [Thanks to Y.Y. Landa for the lead.]

Israeli Official Suggests Different Name For "Swine Flu"

Now that two cases of swine flu have been diagnosed in Israel in men who recently visited Mexico, the country's Deputy Health Minister Yakov Litzman is suggesting that the disease be called "Mexican flu" because of Jewish and Muslim sensitivities over pork products. Yesterday AFP and the London Guardian both reported on the comments by Litzman, a member of the United Torah Judaism Party. Not surprisingly, Mexico's ambassador to Israel registered an official complaint over the suggestion. Litzman, by the way, heads the Ministry of Health holding the title of "Deputy" Minister because of another religious nicety. As explained by the Forward in an article earlier this month:

[UTJ] has joined numerous past coalitions without ever accepting a Cabinet ministry, because its non-Zionist principles do not allow it to become part of the state's ruling establishment. Instead, its leaders have become deputy ministers in departments where the minister's chair is left vacant. Therefore, the party can control an influential, patronage-rich ministry without taking an oath of allegiance to the Jewish state.

Court Says District Council Wrongly Took Local Church's Property

In Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American District of the Assemblies of God, (CA App., April 27, 2009), a California appellate court held that a district council of the Assemblies of God Church improperly assumed corporate control of a local church and had no authority to take title to the local church's real estate. The district council took action against the Church after removing an assistant pastor who had been accused by one faction in the congregation of taking Church funds. The court concluded that it could apply neutral common law property principles to reach this conclusion, reversing the trial court whose decision had focused on the authority of an hierarchical church to adjudicate disputes. Yesterday's Los Angeles Metropolitan News-Enterprise reported on the decision, and the local church faction that prevailed in the appeal issued a lengthy press release describing the background and the implications of the court's holding.

Irish Justice Minister Proposes Blasphemy Law

Irish Times reports today that the country's Minister of Justice plans to introduce an amendment to a pending Defamation Bill to create a new crime of blasphemous libel. The proposed legislation would prohibit publishing or uttering matter "that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage." Currently Ireland has no statute on blasphemy, even though the Irish Constitution (Art. 40, Sec. 6.1) provides: "The publication or utterance of blasphemous, seditious, or indecent material is an offence which shall be punishable in accordance with law." Last year the Oireachtas Committee on the Constitution recommended amending the Constitution to remove references to sedition and blasphemy.

Court Finds Land Used By Religious Order Is Entitled To Tax Exemption

In Matter of Legion of Christ, Inc. v Town of Mount Pleasant, (NY Sup. Ct., March 25, 2009), a New York trial court ordered the town of Mount Pleasant to grant a tax exemption to Legion of Christ, Inc. for a parcel of real estate it owned. The town argued that Legion of Christ was not using the real estate exclusively for carrying out its own religious purposes but, instead, was leasing the land to several other groups. The court held that the various organizations, all set up by the Roman Catholic religious order Legionaries of Christ, should essentially be treated as a single organization, i.e. Legion of Christ was carrying out its own religious purposes through a closely related group of organizations. The court held, alternatively, even if the various corporations involved are not seen as a single organization, another exemption provision applies because the land was still being used for religious purposes and the rents received by Legion of Christ did not exceed its carrying, maintenance and depreciation charges for the property. [Thanks to Y.Y. Landa for the lead.]

White House Religious Liaison Appointed

The Adventist News Network today reports on the appointment of Paul Monteiro to serve as religious liaison in the White House Office of Public Liaison. Monteiro's duties include scheduling events and meetings with representatives from various organizations and denominations. Their concerns are then transmitted on to the appropriate office or agency. Monteiro, who also serves as youth liaison in the Office of Public Liaison, is a Howard Law School graduate who had served on Barack Obama's Senate staff. Monteiro recently became a member of the Adventist Church.

Wyoming High Court Finds Free Exercise Claim Improperly Raised In Workers Comp Proceeding

In re Workers Compensation Claim for Howard W. Williams, (WY Sup. Ct., April 21, 2009), involved a claim for workers' compensation death benefits by the wife of a an employee who had refused for religious reasons to allow blood products to be used in treating his injuries from a work-related auto accident. The court held that the constitutional question of whether denial of benefits violated the Jehovah's Witnesses [corrected] husband's free exercise rights was not properly before the court. A constitutional challenge to the statute involved needs to be raised in a separate declaratory judgment action, and cannot be raised in an administrative proceeding which is the source of the ruling being appealed in this case. However, the court reversed the denial of benefits on other grounds. It found that the state failed to show that the husband's refusal of blood products contributed to his death. Chief Justice Voigt dissented on this point, finding sufficient evidence that blood product treatment and immediate surgery were reasonably essential for the husband's recovery.

Alaska High Court Rules On Constitutionality of Required TB Test

In Huffman v. State of Alaska, (AK Sup. Ct., April 3, 2009), the Alaska Supreme Court rejected a claim by parents of elementary school children that their religious liberty rights were violated by the state requirement that their children receive a PPD skin test for tuberculosis in order to enroll in school. The court held that the state requirement survived plaintiffs' 1st Amendment challenge as a neutral law of general application. Analyzing the claim under the free exercise clause of the Alaska Constitution (Art. I, Sec. 4), the court held that the parents had not shown that their objections were based on religious beliefs:

The Huffmans do not profess to subscribe to any organized religion. They rely solely on their affidavits as evidence of their nontraditional religious beliefs. Their statements use the terms "religion" and "religious beliefs," but they discuss only an opposition to putting harmful substances into the body. The record provides no indication that the Huffmans’ feelings are connected to a comprehensive belief system, set of practices, or connection to ideas about fundamental matters.

The court however remanded the case to the lower court for it to consider further plaintiffs' alternative claim that the required TB test violates their privacy interest in making decisions about their children's medical treatments, protected by Article I, sections 1 and 22 of the Alaska Constitution. It instructed the trial court to consider whether alternative tests for TB which do not involve injecting substances into the body could be used effectively to achieve the state's goals.

Mary Ann Glendon Turns Down Notre Dame's Laetare Medal

Harvard Law Professor (and former U.S. ambassador to the Vatican) Mary Ann Glendon has told Notre Dame University President Rev. John Jenkins that she has decided to turn down the prestigious Laetare Medal that she was to have been awarded at the upcoming graduation at which President Barack Obama will speak. (See prior posting.) Yesterday's Boston Globe reprinted Glendon's letter to Jenkins which said she was dismayed when she learned that Notre Dame would also award Obama, who supports abortion rights, an honorary degree. She said that decision by the University was in violation of a policy of the U.S. Conference of Bishops that "those who act in defiance of our fundamental moral principles ... should not be given awards, honors or platforms which would suggest support for their actions." Apparently, according to Glendon's letter, the final straw was "talking points" issued by Notre Dame that suggested Glendon's acceptance speech would be a balance to Obama's remarks.

Florida City Pays Chabad Damges and Attorneys Fees After Losing Zoning Case

Last August, a federal jury awarded Chabad of Nova $325,750 in damages on its RLUIPA claim after a federal district court ruled in favor of Chabad on most of its challenges to a Cooper City (FL)'s zoning restrictions imposed on houses of worship. (See prior posting.) The South Florida Sun-Sentinel reported yesterday that Cooper City's insurer has now agreed to pay the award, plus interest, to Chabad and to also pay $470,000 for Chabad's attorneys fees. Chabad Rabbi Shmuel Posner was forced to move to a shopping center in Davie (FL) after Cooper City prevented his Outreach Center from opening as he had originally-planned. Now Rabbi Posner says he hopes to return to Cooper City when space becomes available. [Thanks to both Steven H. Sholk and Joel Katz [Relg. & State In Israel] for the lead.]

Navajos Plan Meeting With Obama Administration On Pending Snowbowl Case

The Gallup (NM) Independent reported yesterday that the Navajo Nation Council has approved its attorneys meeting with the Obama administration to try to work out a settlement in Navajo Nation v. United States Forest Service. The Navajo Nation hopes that the meeting can be held before My 8 when the Solicitor General's brief in opposition to granting certiorari is due to be filed with the U.S. Supreme Court. (See prior posting.) In an 8-3 en banc decision in the case, the U.S. 9th Circuit Court of Appeals held that the Religious Freedom Restoration Act does not bar the Forest Service from approving the use of recycled waste water to make artificial snow at Arizona's Snowbowl ski resort, which operates on federal land that the tribes consider sacred. (See prior posting.) Some delegates to the Navajo Council say the organization may have to appeal to international bodies under principles of international law to obtain relief. They point especially to the United Nations 2007 Declaration on the Rights of Indigenous Peoples and the Organization of American States' American Declaration of the Rights and Duties of Man.

National Mock Trial Championship Refuses Religious Accommodation For Jewish School

According to a posting yesterday on the blog Teaneck Progress , the National High School Mock Trial Championship is refusing to accommodate Maimonides High School of Brookline Massachusetts by rescheduling the school's rounds so they do not take place on the Jewish Sabbath. Maimonides, as winner of the Massachusetts Bar Association's statewide competition, is entitled to move to the national competition. This year the nationals are being hosted by the Young Lawyers Division of the State Bar of Georgia on May 6-10, with the schedule calling for actual competition rounds on Friday and Saturday. Accommodation apparently would have required moving two of the rounds from Saturday to Friday. Reportedly both the attorney general of Georgia and the Anti Defamation League have expressed concern over the competition's refusal to grant the requested schedule change.

In 2005, accommodation was made for a New Jersey Jewish day school, but competition organizers voted to refuse accommodation in future years. Following the 2005 incident, the New Jersey State Bar Foundation and the North Carolina Academy of Trial Lawyers created an alternative American Mock Trial Invitational to permit state high school champions with weekend religious obligations to still enter a national competition. Also in 2007, the U.S. House of Representatives passed a resolution urging the NHSMTC to accommodate religious beliefs of students. (See prior posting.)

UPDATE: Here (via Blog of the Legal Times) is the full text of a letter from counsel for some of the Maimonides students and their parents to the U.S. Justice Department asking it to investigate and take action to remedy the accommodation denial.