Federal Court Issues Preliminary Injunction Against "Family Values" Ordinance Limiting City's Health Insurance

Last November, the voters of El Paso, Texas approved an ordinance aimed at barring the city from providing health benefits to domestic partners of city employees. According to KVIA News, on Thursday a federal judge issued a preliminary injunction barring implementation of the ordinance until he makes a final ruling in mid-April. The ordinance was placed on the ballot by a local Christian group that opposes homosexuality, however the language of the ordinance apparently disqualified a number of unintended individuals. The ballot measure read: "Shall the ordinance, endorsing traditional family values by making health benefits available only to city employees and their legal spouse and dependent children, be approved?"  Currently the city provides insurance to a number of non-employees, such as elected officials, retirees and affiliated contractors. It also provides insurance for dependent grandchildren, not just children. In granting the preliminary injunction, the court concluded that the city needs a legitimate governmental interest in order to take away health insurance, and that it is difficult to identify that interest when the term "traditional family values" does not have a clear definition. The court also concluded that the ordinance may violate the Contract Clause of the U.S. Constitution. The court also denied the motion by the proponents of the ballot measure-- El Paso for Traditional Family Values-- to intervene and limited it to appearing in an amicus capacity. The group argued that the city would not adequately defend the ordinance.

Justice Department Files Appellate Brief Defending DOMA

On Thursday, the federal government filed its much anticipated appellate brief (full text) in Massachusetts v. U.S. Department of Health and Human Services and a companion case defending the constitutionality of the federal Defense of Marriage Act, even though President Obama supports repeal of the law. A Massachusetts federal district court struck down the law last July, and the government appealed. (See prior posting.) The brief in the 1st Circuit appeal explains:

The Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here. This longstanding and bipartisan tradition accords the respect appropriately due to a coequal branch of government and helps ensure that the Executive Branch will faithfully defend laws with which an Administration may disagree on policy grounds.

CBS News reports that the Justice Department consulted with gay rights groups to avoid arguments in its brief that are particularly offensive to gays and lesbians. The brief argues that DOMA "is rationally related to legitimate governmental interests" of maintaining a uniform status quo at the national level while states experiment with different approaches to same-sex marriage.

Stampede During Hindu Pilgrimage In India Kills 104

In India, the government of the state of Kerala took quick rescue and relief action after a stampede near a Hindu temple Friday night killed 104 Makar Sankranti pilgrims and injured more than 60 others.  The Times of India reports that the stampede which took place near the Sabarimala Temple caught authorities off guard since it occurred on a forest route in side the Periyar tiger preserve which is less used by pilgrims. The state government will pay compensation to the injured and the families of those killed. There are conflicting stories as to the cause of the stampede, but they all involve vehicles either losing control or turning over.

Injunction Against Illinois Moment of Silence Law Formally Lifted

In October, the U.S. 7th Circuit Court of Appeals upheld upheld Illinois' Silent Reflection and Student Prayer Act against Establishment Clause and vagueness challenges. (See prior posting.) The court remanded the case to the district court with instructions to enter judgment for the state board of education. The Evanston (IL) Review reports that the district court on Thursday formally lifted its earlier injunction against implementing the moment of silence law. Schools will begin having a mandatory moment of silence each day starting this coming week.

Court Says AIG Bailout Did Not Violate Establishment Clause Despite Offering of Shariah-Compliant Products

In Murray v. Geithner, (ED MI, Jan. 14, 2011), a Michigan federal district court rejected an Establishment Clause challenge to the bailout of AIG insurance by the federal government under the Emergency Economic Stabilization Act of 2008.  Plaintiff claimed that because AIG is a leader in offering Shariah-compliant insurance products, the government is using appropriated funds to finance Islamic religious activities in violation of the Establishment Clause. The court concluded, however, that the government had secular purposes that are not secondary to religious purposes, that AIG is not engaged in religious indoctrination attributable to the government, and that the government has not become excessively entangled with religion. It also concluded that Treasury Department activities publicizing and studying Shariah-compliant financial products do not amount to governmental endorsement of religion. The Detroit Free Press reports on the decision. (See prior related posting). Plaintiff quickly filed a notice of appeal to the 6th Circuit.

Burmese Political Party Creates Group To Discourage Religious Conversions

Irrawaddy reported yesterday that in Burma (Myanmar), the ruling Union Solidarity and Development Party has formed a new organization to discourage residents from converting from Buddhism to other religions.The organization, Sasana Nugaha, was formed by businessman Khin Shwe, a USDP member of the upper house of Parliament. Critics say the organization is attempting to politicize Buddhism and violates Sec. 407 of Burma's 2008 Constitution that prohibits any political party from "directly or indirectly receiving and expending financial, material and other assistance from ... a religious association" or "abusing religion for political purpose."

Legislation Introduced To Permit Religious Symbols In U.S. Military Memorials

A press release issued Tuesday by Congressman Duncan Hunter announced that he and two other California members of Congress have introduced the War Memorial Protection Act (HR 290). The bill comes in the wake of a 9th Circuit Court of Appeals ruling holding that the Mt. Soledad veterans' memorial cross violates the Establishment Clause. (See prior posting.) The bill provides:

To recognize the religious background of members of the United States Armed Forces, religious symbols may be included as part of--
(1) a military memorial that is established or acquired by the United States Government; or
(2) a military memorial that is not established by the United States Government, but for which the American Battle Monuments Commission cooperated in the establishment of the memorial.

Stripes Central reports on the bill.

Utah Sheriff's Letter To Employees Questioned on Church-State Grounds

Weber County, Utah sheriff Terry Thompson has removed a letter he sent to his employees from the Sheriff Department's Facebook page after a church-state objection by an employee was sent to him by a Salt Lake City attorney. According to yesterday's Deseret News, the letter told employees: "Always know that God, in whatever form you picture Him, recognizes our sacrifice and service, understands our imperfections and blesses us." It went on to assert that the death penalty was morally sound and said that God was "OK with it." Today's Ogden (UT) Standard-Examiner reports that local clergy are split over the propriety of the sheriff's letter, and a number object to his views on capital punishment.

School Board Seeks To Enjoin Bus Stop Street Preacher

In Dauphin County, Pennsylvania, the Dauphin Central School District is seeking an injunction to prevent street preacher Stephen Garisto from proselytizing middle school and high school students at a school bus stop.  The Harrisburg (PA) Patriot News reports that at a hearing yesterday, a state court judge extended a temporary injunction while she considers the case. Garisto, who insisted on being sworn in on a Bible at the hearing, says he has been ministering to children since the 1980's. He says his goal is to "get them saved and get them discipled."  Parents who testified Thursday expressed concerns about their children's safety. The school district's attorney argues: "These are kids. They don’t have the wherewithal to say to Mr. Garisto, ‘I don’t want a Bible tract'." During the hearing, Judge Jeannine Turgeon told Garisto: "Mr. Garisto, you’re not Mr. Rogers. In our culture we tell children, 'Do not talk to strangers.'" She said his actions mimic those associated with pedophiles and child abductors.

New Motions To Dismiss ACLU Suit Challenging Minnesota Cultural Identity Charter School

In 2009, the ACLU of Minnesota filed a federal lawsuit  against Tarek ibn Ziyad Academy (TiZA), a publicly-funded cultural identity charter school operating in the Twin Cities area, alleging that school policies promote Islam and that the school has improperly leased land from sectarian organizations-- all in violation of the Establishment Clause as well as various state constitutional and statutory provisions. (See prior posting.) The lawsuit also named the state commissioner of education as a defendant.  The St. Paul Pioneer Press and the Minneapolis Star-Tribune on Wednesday reported on two new developments in the case. The state's new education commissioner, Brenda Cassellius, filed a motion in court to dismiss the suit against the state, arguing that TiZA made multiple misrepresentations to the state which interfered in the state's ability to oversee the charter school. Meanwhile separately TiZA filed a motion to dismiss the case on the ground that the ACLU of Minnesota cannot bring the suit because it was administratively dissolved  by the Minnesota Secretary of State in 2006 for inadvertently failing to renew its registration.

Eruv Dispute in The Hamptons Goes To Court

27 East and Hampton Bays Patch both report that a lawsuit was filed in federal district court in New York yesterday by the East End Eruv Association challenging actions by the villages of Westhampton Beach and Quogue and the town of Southampton in preventing agreements with Verizon and the Long Island Power Authority for use of utility poles to create an eruv-- a symbolic boundary that allows Orthodox Jews within it to carry items on the Sabbath. (See prior related posting.) The suit against the Long Island villages and town claims that local officials are campaigning against the eruv.  Officials assert that attaching small markings or strips (lechis) to utility poles violates local zoning rules and sign codes, and that since the poles are in the municipalities' rights of way, government approval is required.  The lawsuit alleges that blocking the eruv amounts to religious discrimination. It asks the court to rule that there is no basis for asserting that local law prohibits creation of the eruv, demands that defendants drop their objections to the eruv, and asks for damages.

Suit Challenges County's Refusal To Display Church-State Separation Posters

Yesterday Americans United announced that it has filed a federal lawsuit on behalf of a resident of Johnson County, Tennessee who sought to have the county display two posters on the separation of church and state in the lobby of the county court house.  The complaint (full text) in Stewart v. Johnson County, Tennessee,  (ED TN, filed 1/13/2010), alleges that the county has adopted a limited public forum policy permitting local residents and organizations to donate displays of historical documents that "directly relate to the development of law, the universally-valued principle of equal justice under the law, the history and heritage of the law of Johnson County, State of Tennessee, or the United States, and/or the specific function of the Courthouse itself."

Among the displays already in the court house is a display that features the Ten Commandments and other historical documents along with a 26-page pamphlet that includes an introduction titled "From Biblical Morality to Modern Law."  Plaintiff's proposed 44 inch by 28 inch posters were titled "On the Legal Heritage of the Separation of Church and State" and "The Ten Commandments Are Not the Foundation of American Law." The county rejected them because they did not contain historical documents.The lawsuit contends that the display of the Ten Commandments while rejecting these posters violates plaintiff's free speech rights, the Establishment Clause and Art. I, Sec. 3 of the Tennessee Constitution that prohibits giving legal preference to any religion. [Thanks to Bob Ritter for the lead.]

Appeals Court Rejects Anti-SLAPP Motion In Suit Growing Out of Sikh Temple Elections

In Grewal v. Jammu, (CA App., Jan. 11, 2011), a California appellate court rejected defendants' motion to strike plaintiff's defamation claims under California's anti-SLAPP statute.  The claims grew out of a series of articles published in the Punjab Times relating to contentious elections of members of the Supreme Council of the San Francisco Bay Area Sikh Temple.The articles made various allegedly false charges of religious and financial wrongdoing by plaintiff, including charges that plaintiff had referred to the Temple school as a training school for terrorists and students of the Taliban. In a decision that is highly critical of misuses of the anti-SLAPP statute, the court concluded that the statute did not apply here because plaintiff had carried his burden of showing that he was likely to succeed on the merits of his defamation claims. The court described defendants' anti-SLAPP motion as one "that should never have been brought, generating an appeal that ... is utterly lacking in merit."

Church is Employer of Parish School Custodian for Workers' Comp Purposes

In Bravo v. Church of the Annunciation at Manhattanville, (S. Ct. NY, Jan. 10, 2011), a New York state trial court held that a Catholic Church exercised complete domination and control over a parish school so that the Church will be seen as the employer of  a custodian at the Annunciation School. This finding precludes the custodian, who has received workers' compensation payments for an injury suffered while working at the school, from bringing suit for additional recovery against the Church. Workers compensation precludes further recovery from one's employer. Had the court found that the School, which had a separate tax identification number, was the custodian's employer, a suit could have been maintained against the Church for additional damages.

Westboro Agrees Not To Picket Tucson Funerals In Exchange For Radio Appearances

The Topeka (KA) Capital-Journal reports that the Westboro Baptist Church has agreed to call off its planned picketing of the funerals of victims of the Tucson shooting massacre (see prior posting) in exchange for appearances by church spokesperson Shirley Phelps-Roper on several radio talk shows.The protest at the funeral of 9-year old Christina Green was bartered for appearances on talk shows on a suburban Phoenix station and a Canadian station. Picketing of the other funerals was called off after the nationally syndicated talk show hosted by Mike Gallagher offered time to Phelps-Roper and her daughters on Monday's show.

Sarah Palin's Use of Term "Blood Libel" Draws Jewish Criticism

The Washington Post reports on the controversy that has been stirred up by Sarah Palin in her release of a video criticizing those who are blaming the Tucson shooting tragedy on political rhetoric such as hers. Her statement included the following:

Journalists and pundits should not manufacture a blood libel that serves only to incite the very hatred and violence they purport to condemn.

Jewish groups, such as the National Jewish Democratic Council, took umbrage at her use of the term "blood libel", pointing out that the term has traditionally described the anti-Semitic canard that Jews use the blood of Christian children for rituals such as baking of Passover matzoh. Critics found use of the term particularly insensitive because wounded Congresswoman Gabrielle Giffords is Jewish. However some, like Harvard law professor Alan Dershowitz, defended Palin saying that the term blood libel has taken on a broader meaning of any kind of untrue charges.

Vanderbilt's Nurse Residency Application Challenged As Violating Church Amendment

Alliance Defense Fund announced yesterday that it had filed a complaint (full text) with the U.S. Department of Health and Human Services Office for Civil Rights challenging Vanderbilt University's nurse residency application requirements. A federal statute, 42 USC 300a-7 (known as the "Church Amendment"), prohibits any entity reveiving grants under various federal programs from discriminating against applicants for training or study "because of the applicant's reluctance, or willingness, to counsel, suggest, recommend, assist, or in any way participate in the performance of abortions or sterilizations contrary to or consistent with the applicant's religious beliefs or moral convictions."  The Vanderbilt application packet contains an acknowledgement that must be signed by applicants seeking admission to the Women's Health Track of the Nurse Residency Program which states in part:

If you are chosen for the Nurse Residency Program in the Women's Health track, you will be expected to care for women undergoing termination of pregnancy....  It is important that you are aware of this aspect of care and give careful consideration to your ability to provide compassionate care to women in these situations. If you feel you cannot provide care to women during this type of event, we encourage you to apply to a different track of the Nurse Residency Program to explore opportunities that may best fit your skills and career goals.

UPDATE: On Jan. 12, Vanderbilt announced that it was changing its nurse residency application, according to a release by ADF. The application now says that "no health care provider is required to participate in a procedure terminating a pregnancy if such participation would be contrary to an individual’s religious beliefs or moral convictions." [Thanks to Friendly Atheist for the update.]

Sunrise Rock Cross Litigation Becomes Even More Complicated

The complex procedural history of the Establishment Clause challenge to the Sunrise Rock Cross in the Mojave Preserve veterans' memorial has just become more complicated. Liberty Institute announced yesterday that it has filed a new lawsuit on behalf of the VFW seeking to enforce the statute passed by Congress in 2003 (Defense Appropriations Act 2004, Sec. 8121) directing the Secretary of Interior to transfer title to the property to the VFW. The constitutionality of the transfer statute was challenged on Establishment Clause grounds in a previous lawsuit. Last year the U.S. Supreme Court reversed the 9th Circuit's decision that had found Establishment Clause problems with the transfer. However the Supreme Court's reversal and remand -- in six fragmented opinions-- did not clearly decide the merits of the case. (See prior posting.) Now in VFW Post 385 v. United States, (CD CA, filed 1/10/11) (full text of complaint), the VFW asks the court to quiet title to the parcel of land, to issue a declaratory judgment that the VFW is the owner of the land and to issue an injunction requiring the Secretary of Interior to consummate the land transfer. The lawsuit was apparently triggered by the district court's recent decision refusing to permit the VFW to intervene in the case on remand from the Supreme Court. Riverside (CA) Press Enterprise reports on the new lawsuit. For other developments, see prior related posting. [Thanks to Alliance Alert for the lead.]

Regional NLRB Decision Holds Manhattan College Is Secular; Representation Election Ordered

In In re Manhattan College, (NLRB, Jan. 10, 2010), a National Labor Relations Board regional director held that the judicially and administratively developed exemption from NLRB coverage for colleges whose purpose is the propagation of a religious faith does not apply to New York's Manhattan College. The holding comes in response to a petition by the Manhattan College Adjunct Faculty Union to hold an election for it to become the collective bargaining representative for part-time adjunct faculty.  The decision concludes that the evidence shows the purpose of the college is secular. It finds that there is little risk that exercising NLRB jurisdiction will lead to unconstitutional entanglement of government and religion because the "school's stated purpose does not involve the propagation of a religious faith, teachers are not required to adhere to or promote religious tenets, a religious order does not exercise control over hiring, firing, or day-to-day operations, and teachers are given academic freedom..." According to Inside Higher Ed yesterday, the case has been closely followed by both labor unions and religious organizations. The college administration has emphasized the Catholic nature of the institution. (See prior related posting.)

Pakistani Court Imposes Life In Prison For Blasphemy In Disagreement Between Sunni Sects

AFP reported yesterday on another controversial blasphemy conviction in Pakistan. An anti-terrorism court in the town of Muzaffargarah sentenced imam Mohammad Shafi and his son Mohammad Aslam to life imprisonment for tearing down and trampling a poster containing Quar'anic verses. The poster, which had been  put up outside their grocery store, advertised an event in a nearby village celebrating the birthday of the Prophet Muhammad.  Islamic sects differ on whether celebrating Mawlid (the Prophet's birth) is permissible. (Background.) Apparently those promoting the event were members of the Barelvi sect of Sunni Islam which publicly celebrates Mawlid, while defendants are members of the Deobandi sect of Sunni Islam which considers the celebration forbidden.