3rd Circuit Finds Combined Restrictions On Abortion Leafleting Are Unconstitutional

In Brown v. City of Pittsburgh, (3d Cir., Oct 30, 2009), the U.S. 3rd Circuit Court of Appeals held that Pittsburgh's combination of a 15 foot buffer zone and a 100 foot "bubble zone", when taken together, were unconstitutional on their face in restricting anti-abortion leafleters. As described by an AP story on the decision: "The Pittsburgh law bans protesters from standing within 15 feet of entrances but also makes them stand 8 feet from clients in a 100-foot buffer around entrances." According to the court, the combined restrictions are not narrowly enough tailored to survive a free expression challenge. It said: "the layering of two types of prophylactic measures is 'substantially broader than necessary' to achieve" the governmental interests involved. However, the court said, either restriction by itself could be constitutional. Plaintiff also claimed that the ordinance violates her free exercise of religion because it impermissibly interferes with her religiously motivated efforts to dissuade women from undergoing abortions. The court however found that the restriction is a valid facially neutral law of general applicability. It also concluded that the law does not violate Pennsylvania's Religious Freedom Protection Act.

Bankruptcy Court Says Bishop Need Not Appear At Chpater 11 Creditors Meeting

The federal Bankruptcy Code provides that when a debtor is going through a Chapter 11 reorganization, the U.S. trustee is to convene a meeting of creditors where the trustee and creditors may question the debtor under oath. (Background.) In the pending Chapter 11 bankruptcy of the Catholic Diocese of Wilmington (see prior posting), the diocese designated its vicar general of administration, the Rev. Monsignor Thomas Cini, as the person to attend and answer questions. However, according to yesterday's South Jersey Courrier Post, victims of sexual abuse who have claims against the diocese wanted Bishop W. Francis Malooly to appear instead. An attorney for the victims said: "The goals of the debtor for transparency, for healing, for atoning, if you will, for what happened to these people requires that this person show up." Judge Christopher Sontchi however agreed that it would make more sense for Cinci to appear, since he knows more about the situation. Malooly has been with the diocese for only about a year, and there are no allegations of wrongdoing against him.

Foreclosure On Georgia Hindu Temple Can Move Ahead

The Atlanta Journal-Constitution reported yesterday that a federal bankruptcy judge has lifted a temporary stay, clearing the way for creditors to sell off at a foreclosure sale of The Hindu Temple of Georgia. The move came after the court found the Temple in contempt for failing to hand over specified financial documents. The Temple filed for bankruptcy after it defaulted on a $2.3 million loan on its $5 million facility in Norcross, Georgia. The judge also asked the U.S. trustee handling the case to have the FBI investigate potential criminal wrongdoing by Temple leaders.

DC Council Holds Hearing On Same-Sex Marriage Proposal

Last week, the District of Columbia Council, Committee on Public Safety and the Judiciary, held a hearing on the proposed Religious Freedom & Civil Marriage Equality Amendment Act of 2009 which would allow same-sex marriages to be performed in the District of Columbia. (A video of the hearing is available online.) Under the bill, no clergy would be required to solemnize a marriage if it violated the clergy person's free exercise of religion. No religious organization is required to make facilities or services available for a marriage that is in violation of the group's religious beliefs unless the group makes the facilities available to the general public. The Pilot yesterday reported on written testimony submitted at the hearing by the Catholic Archdiocese of Washington. The Archdiocese urged broader religious exemptions, including exemptions for religious groups that provide services or rent space to those outside the group's faith. The Archdiocese warned that under the current bill, organizations that oppose same-sex marriages for religious reasons but serve the community could be denied government contracts or access to government facilities. It also claimed that under the bill, doctors, social workers and child-care workers opposed to same-sex marriage could have their licenses revoked, employers could be sued for not providing benefits to same-sex couples and religious colleges could have their accreditation revoked. (See prior related posting.)

Cert. Denied In Connecticut Order For Release of Priest Abuse Records

The Supreme Court yesterday denied certiorari in Bridgeport Roman Catholic Diocese v. New York Times Co., (Docket No. 09-246, 11/2/2009) (Order List.) In the case, the Connecticut Supreme Court granted the request of four newspapers for release of some 12,600 pages of documents filed in 23 cases alleging sexual abuse by Roman Catholic clergy. (See prior posting.) The denial of certiorari is not surprising since the court last month refused to grant a stay of the Connecticut order pending a decision on the granting of cert. (See prior posting.) AP reported on the case yesterday.

New York Bishop Supports City Council Candidate Through Recorded Phone Message

In New York, Catholic clergy are becoming surprisingly involved in the election race tomorrow for the New York City Council seat from Brooklyn's District 34. Today's New York Times reports that this week end, a recorded phone message from Bishop Nicholas A. DiMarzio was sent to every registered voter in the district. The call praised Assemblyman Vito J. Lopez who supports one of the two City Council candidates, Maritza Davila. Lopez was key in defeating a bill in the New York Assembly earlier this year that would have provided a one-year window for bringing clergy sexual abuse cases as to which the statute of limitations had already expired. (See prior posting.) The other candidate in the City Council race, Diana Reyna (who is Catholic), has been fighting Assemblyman Lopez over the rezoning of the 31-acre Brooklyn Triangle site. (See prior posting.) At one point she urged the ouster of a local priest as head of the local housing group that was opposing the rezoning.

Another Lawsuit Against A Dissident Episcopal Parish- This Time In Tennessee

On Friday, the Episcopal Diocese of Tennessee filed suit against St. Andrew's parish in Nashville to obtain title to church property. Yesterday's Tennessean reports that in 2006 St. Andrews broke away from the Diocese of Tennessee and affiliated with a more conservative Anglican Church in North America. The Tennessee diocese claims that the the church's Dennis Canon which provides that parish property is held in trust for the diocese controls the case. This is one of about 60 cases involving break-away Episcopal congregations in recent years.

Israel's Transportation Ministry Reports To High Court on Sex-Segregated Buses

In two articles last week, the Jerusalem Post reports on the response of Israel's Transportation Ministry to an order of Israel's High Court of Justice originally issued in 2008 calling for the Ministry to report on gender-segregated public bus lines being operated by the Egged Bus Cooperative. At issue are bus lines serving the haredi (strictly Orthodox Jewish) community whose religious beliefs call for gender separation. A lawsuit filed in 2007 challenged the legality of these so-called "Mehadrin" (kosher) buses (see prior posting). The Transportation Ministry's report concludes that imposed sex segregation on buses serving the public violates basic human rights such as equality and freedom of movement. It recommended a year-long trial of a voluntary system in which buses in haredi neighborhoods would open both the front and rear doors when picking up passengers so that those who wish to voluntarily sit separately could do so. Drivers would be responsible for preventing passengers from coercing others who do not wish to comply with separate seating arrangements. Also there will be no restrictions on the type of clothing that men or women wear on these buses. [Thanks to Religion & State In Israel for the lead.]

Recent Articles of Interest

From SSRN:

• Jeremy J. Patrick, Canadian Blasphemy Law in Context: Press, Legislative, and Public Reactions, (October 29, 2009).
• Liav Orgad & Ted Ruthizer, Race, Religion and Nationality in Immigration Selection: 120 Years after the Chinese Exclusion Case, (Constitutional Commentary, Forthcoming).
• Ruthann Robson, Compulsory Matrimony, (Feminist and Queer Legal Theory, pp. 315-328, Ashgate 2009).

From SmartCILP and elsewhere:

• Steve Sheppard, What Oaths Meant To the Framers' Generation: A Preliminary Sketch, 2009 Cardozo Law Review de novo 273.
• Shirin Ebadi, Keynote Address: Islam, Human Rights, and Iran, 23 Emory International Law Review 13-24 (2009).
• L. Bennett Graham, Defamation of Religions: The End of Pluralism?, 23 Emory International Law Review 69-84 (2009).
• Russell Powell, Theology In Public Reason and Legal Discourse: A Case for the Preferential Option for the Poor, 15 Washington & Lee Journal of Civil Rights & Social Justice 327-404 (2009).

Recent Prisoner Free Exercise Cases

In Givens v. Walker, 2009 U.S. Dist. LEXIS 98876 (CD IL, Oct. 23, 2009), an Illinois federal magistrate judge upheld the constitutionality of regulations promulgated by the Illinois Department of Corrections imposing a number of conditions on inmates conducting religious activities where religious program volunteers or chaplains of that particular faith are unavailable. Plaintiff complained that no Hebrew Israelite religious services were available.

In Kanda v. Walker, 2009 U.S. Dist. LEXIS 98938 (ED CA, Oct. 23, 2009), a California federal magistrate judge recommended that a preliminary injunction be granted ordering prison officials to furnish a Hindu prisoner with a diet that meets his religious requirements-- a diet that includes only vegetables, fruits and fish.

In Uhuru v. Hart, 2009 U.S. Dist. LEXIS 100267 (CD CA, Sept. 24, 2009), a California federal magistrate judge recommended rejecting the complaint by a prisoner (who attends both Jewish and Muslim activities) that occasionally he was not permitted to wear a head covering.

In Rice v. Curry, 2009 U.S. Dist. LEXIS 100443 (ND CA, Oct. 14, 2009), a California federal district court permitted an inmate who was a practicing Ansare EL Mohammed Muslim to move ahead with his claim that he was denied access to the prison chapel to conduct classes and group worship consistent with his movement in Islam, and that prison officials refused to serve him a pre-dawn "suhoor" meal during the month of Ramadan.

In Dempsey v. Ahern, 2009 U.S. Dist. LEXIS 100520 (ND CA, Oct. 14, 2009), a California federal district court held that an inmate could move forward with his claim that his 1st and 8th Amendment rights were violated when the Santa Rita Jail failed to accommodate the religious diet needs of inmates such as himself. He alleged that a 26-day denial violated his religious and nutritional needs.

Last Friday's Omaha World-Herald reported that a Nebraska trial court judge has given a prisoner permission to change his name from Billy Joe McDonald to his "witch" name, Hayden Autumn Blackthorne. McDonald, who is serving a sentence for sexual assault of a teenage girl, asserted in his petition for a name change that he is "a lifetime member of Witch School," a "recognized Wiccan Priest" and has "successfully completed Correllian Wicca — First Degree."

Court Rejects Constitutional Challenges To Marijuana Possession Charges

In State of New York v. Storm-Eggnick, (Albany City St., Oct. 21, 2009), an Albany New York City Court rejected claims by a woman charged with possession of marijuana that the possession statute is unconstitutional on free exercise of religion, equal protection, vagueness, and due process grounds. The court concluded that the statute does not purposefully target religious activity. At to defendant's free exercise challenge under the New York Constitution, the court found that any incidental burden of the statute on religion is justified. Rejecting defendant's due process privacy argument, the court pointed out that here the issue was not possession of marijuana in the home. Defendant had twice carried a marijuana plant into the capital building.

Students Organize Football Game Prayers To Avoid Ban On School Doing So

Earlier this year, the Santa Rosa County, Florida School Board entered into a high profile, and locally unpopular, consent decree in a lawsuit brought against it by the ACLU challenging religious practices in schools. (See prior posting.) Yesterday's Panama City (FL) News Herald reports that now, since school officials cannot lead prayers, students have taken up the cause. At each home football game, students hand out cards with the words of the Lord's Prayer outside the stadium. Then ten minutes before game time, students hold up signs in the stadium asking fans to stand and recite the Lord's Prayer with them. Later, a voice over the PA system, will announce that the school did not organize or participate in the prayer.

Washington State Adopts Final Rules On Displays and Gatherings At Capitol

Washington State's Department of General Administration on Friday announced the adoption of new rules, effective Dec. 1, governing displays and exhibits in the public areas of the state capitol. Yesterday's Seattle Times reports that in order to avoid the controversies that were generated during last year's holiday season, only government-sponsored displays will be allowed inside buildings. This permits the state to continue its state-sponsored holiday tree in the Capitol Rotunda. However private displays will not be allowed there. Last December, the attempt to use an open forum policy led to chaos as applicants sought to put up competing signs and displays. (See prior posting.)

The new rules (full text) allow gatherings, including free speech activities, of up to 25 people inside the Capitol building or up to 75 outside without a permit. For larger groups, a permit is required. Only hand-held banners and signs are permitted inside the Capitol during these events. For events outside on the Capitol grounds, temporary signs, exhibits or displays can be placed on the grounds during the activity, but must then be removed. The state has also published a 113-page "Concise Explanatory Statement" summarizing of all the comments received on the new rules when they were issued in proposed form, and an explanation of the differences between the proposed and final rule.

First Women Appointed To Shariah Courts In Palestinian Authority

In the Palestinian Authority West Bank towns of Hebron and Ramallah, the first women to preside over Shariah courts have been appointed. Australia's ABC News reported yesterday that Sheikh Tayseer al Tamimi, effectively the Chief Justice of the Palestinian state, paved the way by permitting Asmahan Liwheidi in Hebron and Khulud Mohammed Faqih in Ramallah to sit the judges' exam. The new judges hope to bring changes to the way Islamic courts treat Muslim women.

James Dobson Will Step Down As Radio Host For Focus On Family

James C. Dobson, the 73-year old founder of Focus on the Family, will end 32 years as its primary spokesman in February when he steps down as host of its radio program. The announcement by Focus on the Family on Friday said that this "is just the 'third chapter in a transition that began in 2003,' when Dr. Dobson stepped down as Focus president." At that time, Jim Daly took over the presidency. The Colorado Springs Gazette reports that the powerful conservative Christian leader, who was asked for advice by Presidents Ronald Reagan and George H.W. Bush, has become a polarizing figure through his strong support of the traditional family and his opposition to pornography and same-sex marriage. Focus on the Family has suffered from declining donations in recent years. The Denver Post says that under Daly's presidency, Focus on the Family has become less confrontational and political as a younger generation of evangelical leadership is developing.

NY Condo Settles Complaint That It Restricted Placing Mezuzahs On Doors

According to MCT News Service yesterday, the New York Attorney General's office has won a settlement with a condominium homeowners association after beginning an investigation of a complaint that Stone Ridge Estates in Dix Hills (NY) was restricting Jewish residents from placing mezuzahs on their door frames. Condo resident Patti Werner claimed she was being discriminated against on religious grounds when residents were told to "either take down their mezuzahs or purchase a screen door costing between $300 to $500 dollars to conceal the object." Under the settlement, the condo association will pay a $10,000 fine and amend its bylaws so they "do not discriminate against residents because of their religion." [Thanks to Vos Iz Neias? for the lead.]

Priest's Claims of Abuse and Retaliation From Fellow-Priests Dismissed

In Hoatson v New York Archdiocese, (NY S.Ct., Oct. 26, 2009), a New York trial court dismissed claims brought against the Congregation of Christian Brothers, various clergy, the Archdiocese of New York and the Diocese of Albany by a priest who claimed that he had been sexually abused by fellow priests for 12 years. He alleged that he was denied promotions and experienced retaliation because he refused and complained about sexual advances and that he experienced retaliation when he complained of alleged inappropriate sexual behavior of priests with minors. He says he was fired from his position at a parochial school in the Archdiocese of Newark for speaking critically about the Catholic Church at a public hearing before the New York State Senate in Albany, on behalf of victims of clergy sexual abuse. The court dismissed all the claims on various procedural and pleading grounds, including statute of limitations. In doing so, the court avoided having to determine whether the "ministerial exception" applies to claims under New Jersey's Conscientious Employee Protection Act that protects whistle blowers.

9th Circuit Denies En Banc Rehearing On Washington State Pharmacy Board Regs

In Stormans Inc. v. Selecky, (9th Cir., Oct. 28, 2009), the U.S. 9th Circuit Court of Appeals refused to grant an en banc rehearing. In July, a 3-judge panel in the case refused to preliminarily enjoin enforcement of Washington State Pharmacy Board regulations that require pharmacists to fill all prescriptions (including Plan B, the "morning after" contraceptive) even if doing so violates their religious beliefs. (See prior posting.) Along with this week's denial of a rehearing, the original panel granted a request for a rehearing by the panel, and without hearing further arguments vacated its original opinion and issued a new opinion reaching the same conclusion as it did before. However the new opinion, in discussing whether the regulation is neutral and generally applicable, eliminates the section that was in the July opinion taking the district court to task for considering the rule's legislative history . This allowed Judge Clifton to join in the opinion fully and omit the concurrence he filed in July objecting to the majority's conclusion that it was inappropriate to consider the legislative history.

State Department Helps Bring Threatened Yemeni Jews To U.S.

The tiny remaining Jewish community in Yemen has been in increasing danger over the last year as growing internal strife and Islamic militancy has made it more difficult for Yemeni President Ali Abdullah Saleh to continue to protect the 350-person community. Today's Wall Street Journal carries a long article on the U.S. State Department's role (along with private relief groups) in secretly getting some 60 Yemeni Jews out of the country and resettling them in Monsey, New York. Up to 100 more could still come to the U.S. Others will settle in Israel and and some will remain in a protected government enclave in Yemen. Those arriving in the U.S. have had little contact with the West. The Journal's striking photo of one family arriving shows a father with his hair in traditional peyot (sidelocks), and his three daughters all wearing burkas.

Halloween Creates Church-State Puzzle For Some Schools

Tomorrow is Halloween, a holiday which has varied religious connections. It has roots in the Celtic festival of Samhain. In the 7th and 8th centuries, the Catholic Church tried to co-opt the day as the eve of All Saints Day. Some Protestant groups have used it as a celebration of the Reformation. More recently some Christians have rejected Halloween because they see it as celebrating the occult or promoting Satanism, or stemming from Pagan origins. (Background from Wikipedia.) No wonder all of this is confusing to school officials concerned about maintaining the proper line between church and state. Guampdn reported yesterday that at C.L. Taitano Elementary School in the Guam town of Sinajana, Halloween celebrations were replaced by a costume parade designed to promote literacy. Students could dress up as a character from any book they had read.

Last month, Guam Department of Education legal counsel Fred Nishihira sent out a routine annual notice to principals telling them that they must remain neutral in their treatment of religion. The memo allowed him to provide the required annual certification to the U.S. Department of Education that Guam schools are complying with the separation of church and state. Nishihira's memo created uncertainty for C.L. Taitano principal Corina Paulino as to whether a Halloween celebration would be permissible. So, out of an abundance of caution, she scheduled the book character costume parade instead. Nishihira said that when he sent out the religious neutrality memo, the question of Halloween had not occurred to him.