Monks Win Constitutional Challenge To Louisiana Limits On Selling Caskets

In St. Joseph Abbey v. Castille, (ED LA, July 21, 2011), a Louisiana federal district court ruled that Louisiana's Embalming and Funeral Directors Act (RS 37:831 ff.) cannot constitutionally be applied to prevent a Catholic monastery from selling simple wooden caskets that it manufactures. The Louisiana law provides that only licensed funeral directors may engage in the retail sale of caskets, and they may be sold only at licensed funeral establishments. The court held that the restriction violates the due process and equal protection clauses because the licensing requirements are "not rationally related to public health and safety concerns." Instead, "the provisions simply protect a well-organized industry that seeks to maintain a strict hold on this business." The Wall Street Journal yesterday reported on the decision. (See prior related posting.)

Irish Prime Minister Delivers Unprecedented Attack On Vatican

AP reports that a hard-hitting speech to the lower house of Ireland's Parliament, Irish Prime Minister Enda Kenny delivered an unprecedented attack on the Vatican's handling of priest sexual abuse in Ireland. The move comes after the release earlier this month of a report on failures in the Diocese of Cloyne to report abuse to civil authorities. (See prior posting.) In his speech (full text), Kenny said:

Because for the first time in Ireland, a report into child sexual-abuse exposes an attempt by the Holy See, to frustrate an Inquiry in a sovereign, democratic republic...as little as three years ago, not three decades ago.

And in doing so, the Cloyne Report excavates the dysfunction, disconnection, elitism....the narcissism .......that dominate the culture of the Vatican to this day.

The rape and torture of children were downplayed or 'managed' to uphold instead, the primacy of the institution, its power, standing and 'reputation'.

Far from listening to evidence of humiliation and betrayal with St Benedict's "ear of the heart"......the Vatican's reaction was to parse and analyse it with the gimlet eye of a canon lawyer.

This calculated, withering position being the polar opposite of the radicalism, humility and compassion upon which the Roman Church was founded.

Abercrombie Assessed $20,000 In Damages On Title VII Claim, But No Injunction Issued

Earlier this month,in EEOC v. Abercrombie & Fitch Stores, Inc., an Oklahoma federal district court held that Abercrombie & Fitch violated Title VII of the 1964 Civil Rights Act by refusing to hire a Muslim teenager because her religious belief requiring her to wear a headscarf violates the company's "Look Policy" for sales models. (See prior posting.) On Wednesday, according to the Tulsa World, a federal jury awarded $20,000 in damages in the case. However the court refused the EEOC's request to issue an injunction against the company that would require it to notify job applicants who wear a headscarf to their interview that they may request a religious accommodation. The EEOC also wanted the court to mandate training on the accommodation issue for store managers. The company has changed its interview procedures so applicants are now told that models may not wear head coverings, and are asked if they have any questions about that policy. [Thanks to Steven H. Sholk for the lead.]

ACLU Seeks Disclosure of Funding For Texas Governor's Prayer Event

The ACLU of Texas announced yesterday that it has filed open records requests with state,county and city offices seeking information on the amount of government support that is being devoted to Texas Gov. Rick Perry's controversial prayer service scheduled for August 6 in Houston's Reliant Stadium. The ACLU says it is not trying to stop the event, but wants to create transparency as to funding. The event, called "The Response: A Call To Prayer for a Nation In Crisis" is billed as a non-denominational, apolitical Christian prayer meeting. (See prior posting.) According to yesterday's San Antonio Express-News, a spokesperson for Gov. Perry says that the American Family Association is paying all the costs of the event, and no public funds are being used.

Government Responds To Lawsuit Charging Censorship of Religion In Veterans' Funerals

The U.S. Department of Veterans Affairs has now filed its answer (full text) to the complaint in a widely publicized case that charged the Houston (TX) National Cemetery with censoring veterans' committal service rites to eliminate the mention of God. (See prior posting.)  In responding for the first time to charges made by plaintiffs in Rainey v. U.S. Department of Veterans Affairs, (SD TX, answer filed 7/15/2011), the VA contended:

Houston National Cemetery employees have attempted to honor the particular religious preferences and requests by deceased Veterans’ families by offering them the option of reciting at the committal services any religious or non-religious text or recitation specifically requested by the families, and by not providing them with any religious or non-religious text or recitation when it is not desired and requested by the families.

The VA denied that the cemetery's director ever required that prayers the family wished to use in a private committal service be submitted to her in advance. However the VA did require that any request for a recitation in the cemetery service be initiated by the family. "Recitations are not to be presented to families by VA employees or registered VA honor guards to avoid imposing on them religious preferences that may not be desired."

Responding to claims regarding closure of the cemetery chapel, the VA said that it was closed for 10 months because of noise and fumes from a construction project.. A Bible, a cross and a star of David previously on display in the chapel were, after a complaint by attendees at a service, placed in storage to be used when requested by a family. The VA denied that the cemetery director stopped private funeral homes from informing families of the availability of a VFW chaplain. However, the VA claims that it moved to stop unauthorized solicitation by the VFW honor guard leader of payment from families for rendition of funeral honors. Monday's Houston Chronicle had additional coverage. [Thanks to Don Byrd for the lead.]

New Lawsuit Challenges County's Continued Denial of Water and Sewer Lines For Church

In March 2010, the U.S. 4th Circuit Court of Appeals held that a Seventh Day Adventist Congregation's rights under the Equal Protection Clause and RLUIPA were infringed when Prince George's County, Maryland refused to grant a change in sewer and water classifications for a portion of property on which the congregation planned to build a church. The court affirmed a $3.7 million jury award to the church. (See prior posting.) Nevertheless, the county has continued to deny the church a water and sewer category change so it could extend water and sewer lines to its property.  County Commissioner Mary Lehman says that the proposed change could affect the capacity of a nearby reservoir.  So now, according to AP, the church has filed another lawsuit in federal district court again asserting that the county's conduct violates RLUIPA. The complaint (full text) in Reaching Hearts International, Inc. v. Prince George's County Maryland, (D MD, filed 7/18, 2011), claims that the denials stem from a "personal, discriminatory vendetta" against the church by former city councilman Thomas Dernoga, which he continued even after his council term ended in 2011. AP reports on the filing of the lawsuit.

Suit Challenges Ballot Language Of Florida's Proposed Repeal of Blaine Amendment

As previously reported, earlier this year Florida's legislature voted to place a constitutional amendment on the November 2012 ballot that would repeal the state constitution's Blaine Amendment-- the provision that bars any state financial support of religious institutions. Yesterday a lawsuit was filed by representatives of a teacher's union, of a union representing school administrators, of an organization representing school boards, and by several clergy, seeking to have the proposal removed from the ballot.  The complaint (full text) in Shapiro v. Browning, (FL Cir. Ct., filed 7/20/2011), alleges that the title of the ballot measure and the summary of it that is to appear on the ballot are misleading. Florida statutes provide that the Attorney General may rewrite a ballot title or summary if a court finds that the version passed by the legislature is misleading. The lawsuit also seeks to have the court declare that the vesting of this power in the Attorney General is an unconstitutional delegation of legislative powers to an executive officer.  An FEA press release announcing the filing of the lawsuit says that the proposed amendment "is a shady way of opening the door for school vouchers for all." The Miami Herald also reports on the suit.

Denial of Permit For Church To Lease Space To School Is Upheld

In Calvary Christian Center. v. City of Fredericksburg, 2011 U.S. Dist. LEXIS 77489 (ED VA, July 18, 2011), a Virginia federal district court refused to grant a preliminary injunction to a church that was denied a special use permit that it sought in order to lease space in the church to a for-profit school for disabled children. The court rejected claims under the American for Disabilities Act, the Rehabilitation Act and RLUIPA. In rejecting the RLUIPA claim, the court concluded that the church was unlikely to be able to prove that leasing space for operation of a private school on church property amounts to an exercise of religion, nor that denial of the special use permit would amount to a substantial burden on religious practice. The church had argued that operation of the school was tied to its social ministry.

Obama Endorses Respect for Marriage Act That Would Repeal DOMA

The White House announced yesterday, both in a press briefing by Press Secretary Jay Carney, and in a post on the White House blog, that President Obama is "proud to support" S. 598, the Respect for Marriage Act, which would repeal the Defense of Marriage Act and recognize for purposes of federal law same-sex marriages that have been validly entered into in a state which recognizes such marriages. The Senate Judiciary Committee is scheduled to hold a hearing on the bill today. The same bill has been introduced in the House as H.R. 1116.

UPDATE: Transcripts of testimony at the hearing are now available online.

Church Sues Film For Copyright Violation In Use of Logo

According to Hollywood Reporter yesterday, the Church of God has filed suit in federal district court in Tennessee to prevent further showing of the film "Salvation Boulevard." The film was first shown at the Sundance Film Festival this year, but has now been released to theaters.  The lawsuit claims that the satirical film's use of a logo featuring the Christian cross surrounded by an abstract flame design violate's the church's copyright and trademark rights in its logo. The suit also claims unfair competition and violation of Tennessee's consumer protection act.

Hindu Vegetarians Can Sue Under UCC For Injuries After Meat Samosas Mistakenly Furnished

In Gupta v. Asha Enterprises, L.L.C., (NJ App., July 18, 2011), sixteen Hindu vegetarians sued an Indian restaurant which filled their order for vegetarian samosas with meat-filled samosas, some of which plaintiffs mistakenly ate. Plaintiffs sought damages for emotional distress as well as for the cost of traveling to India to participate in a spiritual cleansing ceremony made necessary in order to purify themselves after they ate the meat. The court rejected plaintiffs' claims that were based on the products liability law, deceptive advertising, breach of implied warranty and negligent infliction of emotional distress. However the court remanded the case for trial on plaintiffs' claim of breach of express warranty under the Uniform Commercial Code. The Newark Star-Ledger reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Can New York Municipal Clerks Require Accommodation of Objection To Licensing Same-Sex Marriages?

As previously reported, New York's recently-enacted same-sex marriage law protects from liability or penalty any clergy who refuse to officiate at a same-sex marriage, but does not contain any explicit conscience exception  to shield municipal clerks who have religious objections to issuing marriage licences to same-sex couples. At least one town clerk has already resigned over this. Now, however, Constitutional Law Prof Blog reports that the Alliance Defense Fund last week sent a memo (full text) to New York Municipal Clerks telling them that they are entitled to claim a religious accommodation to exempt them from issuing same-sex marriage licenses.  The accommodation provisions appear in the New York Human Rights Law, Executive Law Sec. 296(10)(a.). That section bars employers from requiring any employee

to violate or forego a sincerely held practice of his or her religion ... unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's ... sincerely held religious observance or practice without undue hardship on the conduct of the employer's business.

ADF's memo argues:

because New York law [Domestic Relations Law Sec. 15(3)] explicitly allows a municipality to delegate a clerk’s duties concerning marriage licenses to a deputy clerk or any other employee, a city or town should have no reason to deny a clerk’s request for an accommodation. It should be a simple matter to delegate those duties to others who do not object to issuing and signing marriage licenses for same-sex couples.

ADF's memo fails however to discuss two other provisions that may shed some question on its analysis. Executive Law Sec. 296(1)(d.) provides that:

an accommodation shall be considered to constitute an undue hardship if it will result in the inability of an employee to perform the essential functions of the position in which he or she is employed.

In addition,  Domestic Relations Law Sec. 15(3) cited by ADF, appears to allow appointment of a deputy clerk or other employee by a city, but does not appear to provide for the same delegation by towns. [Thanks to Ruthann Robson for the lead.]

International Representatives Call For Effective Measures To Combat Religious Discrimination

As previously reported, in March 2011, in a major policy shift, the 47-member United Nations Human Rights Council unanimously adopted a Resolution on Freedom of Religion or Belief which omits any reference to the concept of "defamation of religion" and instead focuses on the individual's right to freedom of belief.  Last week during her trip to Turkey, which included addressing the Organization of the Islamic Conference High-Level Meeting on Combating Religious Intolerance  (see prior posting), Secretary of State Hillary Rodham Clinton joined with the Secretary General of the OIC and representatives of the EU, the Arab League, the African Union and 19 individual nations in issuing a joint statement calling for implementation of the the Human Rights Council resolution.  According to a State Department release issued July 15:

Participants, resolved to go beyond mere rhetoric, and to reaffirm their commitment to freedom of religion or belief and freedom of expression by urging States to take effective measures, as set forth in Resolution 16/18, consistent with their obligations under international human rights law, to address and combat intolerance, discrimination, and violence based on religion or belief.

New Jersey Rabbi Charged By Feds With Kidnapping Man To Coerce a "Get"

The U.S. Attorney's Office for the District of New Jersey announced yesterday that authorities have arrested a Lakewood, New Jersey rabbi and his wife and charged them (full text of criminal complaint) with kidnapping an Israeli citizen living in New York in order to coerce him to grant a Jewish religious divorce (get) to his wife in Israel.  The victim of the kidnapping is identified by the London Daily Mail as Yisrael Briskman, who fled Israel two years ago after refusing  to give his wife a get. Israeli rabbinical authorities have called on members of the religious community to place pressure on Briskman to end his 5-year refusal to grant his wife a divorce. Briskman wants custody of the couple's son.  The charges in New Jersey were brought against David and Judy Wax who, it is alleged, got Briskman to their residence under false pretenses, where he was beaten and robbed. David Wax is also charged with phoning Briskman's father in Israel demanding payment of $100,000 to the family of Briskman's wife. The Wax's were released on $500,000 bail.

Michigan Church Sues Claiming RLUIPA and Constitutional Violations In Zoning Law

A lawsuit was filed in federal district court in Michigan yesterday challenging a rezoning ordinance adopted by Inkster, Michigan which prevented a church from renovating fire-damaged buildings and locating a church and parochial school on property the it owned in an area zoned as a business district. The complaint (full text) in T.C. Spann Bible Institute v. City of Inkster, (ED MI, filed 7/18/2011), alleges violations of the Religious Land Use and Institutionalized Persons Act as well as numerous provisions of the state and federal Constitutions-- including the free exercise clause and a claim that the city's excessively burdensome regulations amounted to a regulatory taking of the church's property. The complaint contends, among other things, that:

The Inkster Code effectively prohibits... any ... religious organization from locating their church and parochial school in Inkster unless such organization meets a series of burdensome Special Conditions, which apply only to churches and parochial schools.

The complaint asks for damages of $1.5 million on each of ten counts. [Thanks to Brian D. Wassom for the lead.]

Illinois Will Continue Catholic Charities For New Foster Care Cases While Litigation Is Progressing

According to a press release from the Thomas More Society, the state of Illinois announced in court yesterday that it will resume the referral of new foster care cases to Catholic Charities in the state while litigation continues. The dispute began when the state legislature failed to enact an exemption that would protect Catholic agencies who refuse to place children with same-sex couples who now may enter civil unions in Illinois. (See prior posting.) Three dioceses sued to confirm that they do not need to place children with same-sex couples, and the court granted a preliminary injunction while the litigation was pending in order to prevent abrupt termination of foster care relationships. However the injunction was unclear as to whether it applied only to children already in foster care, or to new referrals as well. So the dioceses filed an emergency motion to clarify that point. (See prior posting.) The state's concession appears to eliminate the need for the court to pass on the emergency motion.

Malaysian Court Says Constitution Does Not Protect Right To Renounce Islam

According to the Malay Mail, an appeals court in Malaysia yesterday rejected a claim that the protection in Art. 11(1) of the Malaysian Constitution allowing every person the right to profess and practice his religion precludes prosecution of a follower of Ayah Pin for apostasy by a Syariah court. Kamariah Ali had filed suit in the civil courts seeking a declaration that the Constitution protects the right of Muslims who reach adulthood to leave the religion. She argued that her declaration that she no longer professes Islam should remove her from the jurisdiction of Syariah law.  However the appeals court held that the Constitution gives Syariah Courts exclusive jurisdiction to determine matters relating to Islam. (See prior related posting.)

Court Orders 10 Commandments Monument Removed From Florida Courthouse

In ACLU of Florida Inc. v. Dixie County Florida, (ND FL, July 15, 2011), a Florida federal district court held that Dixie County must remove a large Ten Commandments monument that has been displayed since 2006 on the steps of the County Courthouse. (Photo om monument). The monument was authorized at the urging of a local businessman who paid for it and challenged the Board of County Commissioners to have the courage to allow him to put it up. The court rejected the argument that the monument protected private speech of the businessman who paid for, and owns, it:

Dixie County contends that the six-ton granite monument is not permanent because it is not anchored to the stone of the courthouse steps. Because it is not a permanent monument, Dixie County argues, the display should be analyzed as would a speaker speaking in a public forum on the topic of their choosing, rather than as a monument that may imply government endorsement by the circumstances of its placement or continued presence. The Court disagrees. In this analysis, the opposite of permanent is not “detached,” but rather “temporary.” Dixie County cites no authority for the proposition that only monuments anchored or affixed to their surroundings should be considered permanent. The monument in question weighs twelve thousand pounds, has been there for three years, and Dixie County has no plans to move it....

Despite the actual ownership of the monument, the location and permanent nature of the display make it clear to all reasonable observers that Dixie County chooses to be associated with the message being conveyed. As such, the Court finds that the monument displaying the Ten Commandments is government speech and must comport with the Establishment Clause.

Moving to the Establishment Clause issue, the court concluded:

The monument is five-feet tall, made of six tons of granite, and sits alone at the center of the top of the steps in front of the county courthouse that houses every significant local government office. “No viewer could reasonably think that it occupies this location without the support and approval of the government.”

The court ordered the monument removed within 30 days and awarded nominal damages of $1 to the ACLU. The ACLU issued a press release announcing the decision and the Gainesville (FL) Sun reports on the decision.

President Meets With Dalai Lama

According to the White House Blog, on Saturday morning President Barack Obama met with the Dalai Lama in the Map Room at the White House.  The Dalai Lama is on a two-week visit to the United States. (See prior posting.) After the meeting, the White House issued a statement, which read in part:

The President reiterated his strong support for the preservation of the unique religious, cultural, and linguistic traditions of Tibet and the Tibetan people throughout the world. He underscored the importance of the protection of human rights of Tibetans in China.... Reiterating the U.S. policy that Tibet is a part of the People’s Republic of China ..., the President stressed that he encourages direct dialogue.... The Dalai Lama stated that he is not seeking independence for Tibet and hopes that dialogue between his representatives and the Chinese government can soon resume.

Irish Government To Propose Ending Confidentiality of Confessions When Child Abuse Is Reported

After new disclosures last week of the Catholic Church in Ireland concealing clergy sexual abuse of children from authorities as late as 2009 (see prior posting), Ireland's prime minister Enda Kenny said that his government will submit legislation to Parliament that will require reporting of child abuse to civil authorities. According to Reuters last Thursday, the law will override the confidentiality of the confessional and require disclosure even when the abuse is disclosed only in confession to a priest. [Thanks to Pew Sitter for the lead.]