Negotiators On FLDS Land Trust Still Have Not Reached Agreement

Negotiations which have been ongoing for some time on reshaping the $114 million trust holding land of the FLDS Church still have not resolved many of the outstanding issues. (See prior posting.) In 2005, after allegations of mismanagement against FLDS leader Warren Jeffs, a Utah state court appointed a special trustee to take control of the United Effort Plan Trust and reform it to provide for secular management of the property owned by the polygamous FLDS sect. Originally the trust was set up to hold the land and homes of Fundamentalist LDS Church members in Colorado City, AZ and Hildale, UT in accordance with its Holy United Order tenets that call for the sharing of assets by all church members. Yesterday the parties met with Judge Denise Lindberg to report on the progress of their negotiations which are supposed to be concluded by June 15.

According to yesterday's Houston Chronicle, current negotiations are focusing on proposals to create a neutral housing board to deal with claims, and to set aside undeveloped lots for former members who were either excommunicated or left the church voluntarily. Apparently the parties are close to agreement on access to parks, use of a cemetery and payment of outstanding bills. However, Arizona Assistant Attorney General Bill Richards said current proposals raise constitutional and trust law problems and do not meet the court's standards for secular management of the trust. Utah Attorney General Mark Shurtleff is more concerned about reaching an agreement. He says otherwise there will be year of litigation.

AU Asks IRS To Review 501(c)(3) Status of Liberty University

Americans United announced yesterday that it has written the Internal Revenue Service (full text of letter) asking it to review the tax-exempt status of Liberty University. The request pointed to the University's recent denial of recognition to a Democratic Party club formed by a group of students, while recognizing a Republican organization on campus. AU argued that recognized political clubs, funded from student fees, often work on behalf of candidates. Permitting only a Republican club effectively gives Republican candidates an in-kind contribution not made available to Democrats. (See prior related posting.)

Hate Crimes Bill Opponents Invoke "Pedophile Protection" In New Campaign

Now that the U.S. House of Representatives has passed the Local Law Enforcement Hate Crimes Prevention Act (see prior posting), some conservative religious groups are using new scare tactics to oppose passage in the Senate. World Net Daily reported yesterday on a letter-writing campaign organized by Janet Porter, head of the Faith2Action Christian ministry, that argues the bill would protect pedophiles. This notion was stoked by rather outlandish statements made recently on a radio broadcast by Texas Rep. Louis Gohmert. Relying on a statement made during the House debate by Rep. Alcee Hastings, opponents of the legislation say that the term "sexual orientation" in the bill includes "547 forms of sexual deviancies listed by the American Psychiatric Association."

Organizers online offer, for $10.95, to FedEx a letter to every Senator over the name of an individual urging a filibuster of S.909, the Senate version of the bill. The form letter reads in part: "This bill would more appropriately be called 'The Pedophile Protection Act.' The evidence for this extraordinary statement comes directly from debate in the House, when a simple amendment to exempt pedophiles from the protections offered by the bill were rejected."

Wrongful Death Case Against Jehovah's Witnesses In Canada Dismissed In Part

Hughes v. Brady, (Alb. Ct. App., May 25, 2009), is a wrongful death action by the father of Bethany Hughes. Bethany died at age 17 of leukemia. In the case, the Alberta [Canada] Court of Appeals held that Bethany's father may not introduce new evidence against the Watchtower Society or its lawyers in his suit for damages. Following her Jehovah's Witness beliefs, Bethany refused blood transfusions until she was made a ward of the state. The court affirmed the decision of the court below to dismiss claims that defendants had deceived Bethany and that Watchtower lawyers who advised her had a conflict of interest. In part the court found no causal connection between their actions and Bethany's death had been shown. However the appellate court agreed with the lower court that the case could proceed on certain other claims relating to informed consent, trespass and negligence. Yesterday's Calgary Herald reports on the decision.

Religious Protesters of Gun Store Acquitted

In Philadelphia (PA), a municipal court judge has acquitted 12 religious activists on trespass and disorderly conduct charges. AP reported yesterday that the protesters were arrested after they refused to leave Colosimo's Gun Center and blocked the store entrance sidewalk outside. The judge said prosecutors had failed to prove the charges beyond a reasonable doubt.

UPDATE: The Centre Daily Times has a more extensive report on yesterday's acquittals. Defendants, including several ministers, were part of a group called Heeding God's Call, which is attempting to involve faith groups in the gun-control movement. It chose Colosimo's for its protest because of its record for selling guns later used in crimes.

UPDATE2: A Philadelphia Inquirer columnist on Wednesday published a lengthy account of the activities of the anti-gun violence group, the record of the gun store chosen and the arguments made by the defense at trial.

AU Asks County To Assure Homeless Shelter Does Not Pressure Residents Into Prayer

Yesterday's LaCrosse (WI) Tribune reports that Americans United has written LaCrosse County, Wisconsin, complaining that residents of the Salvation Army homeless shelter, funded by the county, are being pressured into attending religious services. Salvation Army gets $50,000 per year in public funds to offer the emergency housing. A Salvation Army official says residents are merely invited to join in services, and are not required to attend. AU wants the county to set up a monitoring system to make sure that coercion is not being used. County and Salvation Army officials will meet next month on the matter. Apparently county officials are willing to monitor activities to meet AU's objections.

California High Court Upholds Proposition 8, But Validates Pre-Prop 8 Marriages

The California Supreme Court today in Strauss v. Horton, (CA Sup. Ct., May 26, 2009), rejected a challenge to voters' approval of Proposition 8, thereby upholding the California constitutional amendment barring same-sex marriage. In a 6-1 decision, the court held that Proposition 8 was an "amendment" and not a "revision" of the state constitution, and therefore properly approved in an initiative process. However same-sex marriages entered into before the effective date of Proposition 8 will remain valid.

The majority opinion by Chief Justice George held that: Proposition 8 merely "carves out a narrow and limited exception" to privacy, due process and equal protection provision in the state constitution, "reserving the official designation of the term 'marriage' for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws."

Justices Kennard and Werdegar each wrote a concurring opinion. Justice Kennard also joined the majority opinion while Justice Werdegar only agreed with the result, but rejected much of the majority's analysis. Justice Moreno dissented arguing that Proposition 8 is a "revision" of the Constitution because it "strikes at the core of the promise of equality that underlies our California Constitution" by requiring discrimination on the basis of a suspect classification. The Court has also issued a press release describing the opinions. The New York Times reports on the decision.

Sotomayor Is High Court Pick; Here Are Her Religion Decisions

President Obama has nominated Second Circuit Judge Sonia Sotomayor to replace retiring Justice David Souter on the United States Supreme Court. (New York Times). If confirmed by the Senate, Sotomayor will be the first Hispanic to serve on the high court. Sotomayor has served on the Second Circuit since 1998. She served as a federal district court judge in the Southern District of New York from 1992 to 1998. Here is an overview of her judicial views on free exercise, establishment clause and other religion issues. She wrote more on the issue as a district court judge than she has on the 2nd Circuit.

On the Second Circuit, Sotomayor wrote an important dissent in one case

• Hankins v. Lyght, (2006): In an age discrimination challenge by a Methodist clergyman, Judge Winter writing for the majority held that RFRA is properly applied to an Age Discrimination in Employment Act claim. Judge Sotomayor dissented contending that RFRA does not apply to disputes between private parties and that the ADEA does not govern disputes between religious entities and their spiritual leaders.

Judge Sotomayor wrote the court's opinion in 3 other religion-related cases on the 2nd Circuit:

• United States v. Reimer, (2004)(citizenship revocation of Nazi collaborator);
• Ford v. McGinnis, (2003) (prisoner free exercise);
• Salahuddin v. Mead, (1999) (prisoner free exercise).

Sotomayor was on the 2nd Circuit panel that decided a number of other religion-related cases, many of which were either prisoner or immigration cases. Three that involved other types of religion issues in which Sotomayor joined the court's opinion were:

• Friedman v. Clarkstown Central School District, 75 Fed. Appx. 815 (2003) [LEXIS link] (religious objection to required immunization);
• Fifth Ave. Presbyterian Church v. City of New York, (2002) (use of church grounds as homeless shelter);
• Rosario v. Does 1 to 10, 36 Fed. Appx. 25 (2002) [LEXIS link] (teacher dismissed for introducing religious material in classroom).
• [UPDATE] Related opinions in Okwedy v. Molinari (1, 2) (Staten Island Borough president complains to billboard company about display of Biblical verses condmning homosexual behavior.) (Discussed at Volokh Conspiracy.)

Sotomayor wrote more extensively on religion clause matters as a federal district judge. Here is a survey of her religion opinions while on the Southern District of New York:

• Mehdi v. United States Postal Service, 988 F. Supp. 721 (1997) [LEXIS link] (rejecting claim by Muslim plaintiffs that post offices must include crescent and star along with Christmas and Hanukkah decorations);
• Moore v. Kennedy, 1996 U.S. Dist. LEXIS 11474 (1996) (prisoner free exercise);
• Miller v. New York State Department of Labor, 1996 U.S. Dist. LEXIS 11067 (1996) (employment discrimination);
• Utkor v. McElroy, 930 F. Supp. 881 (1996) [LEXIS link] (immigration asylum);
• DiNapoli v. DiNapoli, 1995 U.S. Dist. LEXIS 13778 (1995) (accusations against sibling, member of religious order, growing out of estate administration).
• Rodriguez v. Coughlin, 1994 U.S. Dist. LEXIS 5832 (1994) and Campos v. Coughlin, 854 F. Supp. 194 (1994) [LEXIS link] (preliminary injunction allowing Santeria prisoners to wear religious beads).
• Flamer v. City of White Plains, 841 F. Supp. 1365 (1993) [LEXIS link] (enjoining city from preventing rabbi's placing of menorah in city park during Hanukkah).
  

UPDATE: Here is the White House press release and blog posting on the nomination. Here is the full text of the President's remarks on his choice. Orin Kerr on Volokh Conspiracy points out that if Sotomayor is confirmed, six of the nine Justices will be Catholic. Two are Jewish and Justice John Paul Stevens will be the only Protestant remaining on the Court. (Background data.)

UPDATE 2: The Wall Street Journal on Wednesday posted an interesting interview with Prof. Douglas Kmiec on how Judge Sotomayor's Catholic upbringing may have affected her judicial performance and decisions.

Minnesota Boy's Mother Returns Him For Cancer Treatment

AP reports that 13-year old Daniel Hauser with his mother Colleen returned to Minnesota yesterday, after Daniel's father Anthony urged them to come home. Daniel Hauser, who has Hodgkin's lymphoma, had objected to treatment on religious grounds, and his mother fled with him after a Minnesota court overruled the objections and ordered her and her husband to obtain a new X-ray and select an oncologist for Daniel. The X-ray revealed that a tumor in Daniel's chest had grown. (See prior posting.) The arrest warrant that had been issued for Daniel's mother was lifted after their voluntary return. The FBI believe that Daniel and his mother may have been heading for one of the many alternative cancer clinics in northern Mexico. Daniel is now being evaluated at a hospital in the Twin Cities, according to the Hausers' attorney. CNN reports that while Daniel's mother intends to urge the court to permit alternative cancer treatment, she will allow her son to undergo chemotherapy if that is ordered.

UPDATE: The St. Paul Pioneer Press reports that at a May 26 hearing, a Brwon County judge retruned custody of Daniel Hauser to his parents after the parents agreed to drop their objections to his receiving chemotherapy.

Visiting Sikh Preachers In Austria Shot Over Disagreement With Sermon

In Vienna, Austria on Sunday, a Sikh Temple attended mainly by lower-caste Sikhs who are folowers of the Dera Sach Khand sect was the scene of attacks on two clergymen visiting from India. Sant Niranjan Dass, the Dera head, survived the attack after surgery, but his second in command, Sant Ramanand, died from gunshot wounds. Apparently a sermon being delivered by one of the visiting preachers set off the attacks by higher-caste Sikhs, armed with knives and a handgun, who said the preachers were insulting the Guru Granth Sahib, Sikhism's holy book. Sikhs attending worship services attempted to fight back, even using microphone stands and a frying pan. 16 people were injured. AP reports that 6 suspects are in custody, including four who are asylum seekers who have lived in Austria for some time. In response to the shootings, violence broke out in the Indian town Jalandhar where many followers of the Dera Sach Khand sect of Sikhs-- mainly "untouchables," or Dalits-- live. Yesterday's Times of India reports on the violence in India.

New York's Hate Crime Provisions Upheld In Recently Released Opinion

In People v. Ivanov, (NY Sup. Ct., Sept. 12, 2008)-- decided several months ago but posted online for the first time last Friday-- a New York trial court upheld New York's hate crime statute. The statute enhances applicable penalties when a crime is motivated by bias. Defendant was charged with spray painting and etching swastikas and other anti-Semitic graffiti on buildings (including two synagogues), on automobiles and on sidewalks in an area of Brooklyn Heights near his home. He also placed anti-Semitic flyers on the windshield of parked cars in the area. The court rejected defendant's claim that in order to violate the hate crime law, New York Penal Code. Sec. 485.05, and the related Aggravated Harassment law, New York Penal Law Sec. 240.31, the victims needed to have been selected because of their religion. The court held that as long as a religious, racial, gender, etc. group is targeted, the victim need not necessarily be a member of that class. The court also rejected defendant's constitutional challenges, concluding that the provisions are not vague as applied to this defendant, nor did they violate his free speech rights.

Scientology and Its Leaders In France Go On Trial For Fraud

In France yesterday, the Church of Scientology and six of its leaders went on trial on charges of organized fraud and of illegally prescribing drugs. The Guardian and the Telegraph yesterday both had accounts of the proceedings that target the Church's AGES-Celebrity Centre, and its Freedom Space bookshop in Paris. The case began with a complaint filed over ten years ago by a French woman, Aude-Claire Malton, who claims that at a time she was "psychologically fragile," she was pressured into spending her life savings of 21,000 Euros on life healing lessons, books, an "electrometer" and other products including "purification packs" and vitamins. Three other individuals had also filed complaints against Scientology, but they have withdrawn them after settling out of court.

The indictment by the investigating magistrate charges Scientology is a commercial business that runs a deliberately manipulative system which exploits vulnerable people. Scientology's lawyer says: "It's a trial for heresy: this could only happen in France..." If convicted, the individual defendants each face a possible 1 million Euro fine 10 years in prison. The Celebrity Centre and bookshop could be fined $5 million Euros and closed down in France.

Memorial Day Proclaimed As Day of Prayer For Veterans and Peace

Today is Memorial Day. 36 USC 116 also calls on the President to issue an annual proclamation:

(1) calling on the people of the United States to observe Memorial Day by praying, according to their individual religious faith, for permanent peace;
(2) designating a period of time on Memorial Day during which the people may unite in prayer for a permanent peace;
(3) calling on the people of the United States to unite in prayer at that time; and
(4) calling on the media to join in observing Memorial Day and the period of prayer.

On Friday, President Obama issued a Proclamation, "Prayer for Peace, Memorial Day, 2009" (full text), providing in part:

As we remember the selfless service of our fallen heroes, we pray for God's grace upon them. We also pray for all of our military personnel and veterans, their families, and all those who have lost loved ones in the defense of our freedom and safety....

I ... do hereby proclaim Memorial Day, May 25, 2009, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time to unite in prayer.

Episcopal Church and Break-Away Diocese Litigate Over Retainer Paid To Counsel

As previously reported, the break-away San Joaquin, California Diocese of the Episcopal Church appears poised to lose in its attempt to keep Diocesan property after its affiliation with the more conservative Province of the Southern Cone. A collateral aspect of the property lawsuit filed against the Diocese in 2008 by the Episcopal Church USA is a dispute over use of Diocese funds to pay attorneys' fees in the litigation. Virtue Online on Saturday reported in detail on a state trial court's resolution of the dispute.

Back in 2007, the Diocesan Council paid $500,000 as an advance on legal fees to its law firm, Wild, Carter & Tipton of Fresno, California, in anticipation of litigation that might be filed over property ownership. After the break-off, ECUSA appointed new officials to continue as the Episcopal diocese. They sued the law firm for declaratory relief and to recover the advanced attorneys' fees, invoking several theories of wrongful transfer. The court dismissed most of them, invoking the rule that an agent cannot conspire with its own principal. The court concluded, however, that the claim the transfer was a fraudulent conveyance could succeed, but only if ECUSA is able to prove its allegation that the transfer of funds was undertaken with the intent to injure ECUSA and that the Diocese did not receive reasonably equivalent value in exchange for the fund transfer.

Recent Articles of Interest

From SSRN:

• Zachary R. Calo, The Internationalization of Church-State Issues, (Church and State Issues in America Today, 3 Volumes, Ann W. Duncan & Steven L. Jones, eds., Praeger Publishers, 2008).
• Eric Segall, Mired in the Marsh: Legislative Prayers, Moments of Silence, and the Establishment Clause, (Forthcoming, University of Miami Law Review, 2009).
• Zachary R. Calo, 'The New Internationals': Human Rights and American Evangelicalism, (Is the Good Book Enough?, David K. Ryden, ed, Forthcoming).
• Jeffrey R. Baker, Whom Would Jesus Cover? A Biblical, Ethical Lens for the Contemporary American Health Care Debate, (Journal of Law & Health, Vol. 23, Fall 2009).

From SmartCILP:

• Darshan Brach, Logic for the Magic of Mindful Negotiation, 24 Negotiation Journal 25-44 (2008).
• Samuel J. Levine, Louis Marshall, Julius Henry Cohen, Benjamin Cardozo, and the New York Emergency Rent Laws of 1920: A Case Study in the Role of Jewish Lawyers and Jewish Law in Early Twentieth Century Public Interest Litigation, 33 Journal of the Legal Profession 1-29 (2008).
• Robert Steinbuch, Kidneys, Cash, and Kashrut: A Legal, Economic, and Religious Analysis of Selling Kidneys, 45 Houston Law Review 1529-1607 (2009).
• Adrien Katherine Wing, International Law, Secularism, and the Islamic World, 24 American University International Law Review 407-428 (2009).

Somalia Moves Toward Sufi vs. Shabab Warfare

A New York Times report this morning from Somalia says that the African country is moving from clan warfare to religious warfare. In the central part of the country, moderate Sufi militias are winning against the conservative extremist Shabab movement, even though the Shabab is increasingly taking over the capital of Mogadishu on the country's coast.

Court Upholds Montana Law School's Refusal To Fund Christian Legal Society

In Christian Legal Society v. Eck, 2009 U.S. Dist. LEXIS 42980 (D MT, May 19, 2009), a Montana federal district court accepted a magistrate's recommendations and upheld the University of Montana Law School's non-discrimination and open-membership policies for recognized student groups. The court concluded that Christian Legal Society's requirements for voting membership violate those policies and thus disqualify CLS from receiving Student Bar Association funding. CLS requires that students, in order to be voting members, sign a Statement of Faith. It also treats "unrepentant participation in or advocacy of a sexually immoral lifestyle" as inconsistent with the required Statement. The court held that the law school's policies are viewpoint neutral and were not intended to single out or limit CLS' rights to free expression. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Marsh v. Florida Department of Corrections, (11th Cir., May 18, 2009), the U.S. 11th Circuit Court of Appeals rejected a free exercise challenge to a policy of the Florida Civil Commitment Center that bars plaintiff from practicing Nisei GoJu-Ryu Karate, a form of martial arts practiced by Zen Buddhists for spiritual enlightenment. The court concluded it did not have to decide whether Turner v. Safley applies to civilly committed detainees as well as those committed criminally. It concluded that even were it to apply the constitutional protections granted to non-detained individuals, the institution's martial arts ban would be upheld as a neutral and generally applicable rule.

In Florer v. Johnson, 2009 U.S. Dist. LEXIS 41960 (WD WA, May 4, 2009), a Washington federal magistrate judge granted plaintiff leave to amend his complaint to allege that that the 2004, 2006 and 2008 kosher and mainline dietary menus offered by the Washington Department of Corrections were nutritionally and religiously inadequate. It rejected defendants' claims that the amended complaints were barred by res judicata.

In Trotter v. Schwarzennegger, 2009 U.S. Dist. LEXIS 41554 (ED CA, May 5, 2009), a California federal magistrate judge dismissed a prisoner's complaint alleging a lack of religious programs at his prison.

Objections To Religious References At Trial of Juvenile Not Preserved For Appeal

In In re A.D., (TX App., May 15, 2009), a 14-year old Mennonite boy challenged the 10-year sentence imposed on him for driving while intoxicated, thereby causing the death of a passenger in his SUV. The boy claims that repeated references at trial to the nature of the religious community in which he and his family reside violated his equal protection rights. He claimed that the jury assessed punishment at least in part based on the beliefs and practices of his Mennonite community. However the a Texas state appellate court concluded that failure to object to the statements at trial forfeited the right to raise them on appeal. Nevertheless, the court reversed and remanded the sentence on other grounds, finding that no evidence was presented to show that efforts were made, as required by Texas law, to prevent removing the juvenile from his home.

Wisconsin Jury Convicts Mother Who Relied on Faith Healing of Homicide

The Chicago Tribune and the Wausau Daily Herald report that yesterday in Wausau, Wisconsin, a state court jury found Leilani Neumann guilty of second-degree reckless homicide in the death of her 11-year old daughter, Kara, whose diabetes went untreated. Instead the girl's parents, relatives and friends prayed for her as her health deteriorated and she finally went into a coma. In closing arguments, the prosecutor described Neumann as a religious zealot who let her daughter die as a test of faith. Defense counsel responded that Neumann did not realize her daughter was so ill and did all she could consistent with her family's belief in faith-healing. Neumann faces a possible sentence of 25 years in prison, and her attorney says an appeal is planned based on the trial court's refusal to allow a faith-healing expert to testify at trial. Neumann's husband, Dale, will be tried separately on similar charges in July.