Tuesday, August 09, 2011

Canadian Judge Rejects Biblical Verses As Defense To Assault Charges

In the Canadian city of Halifax, Nova Scotia, a provincial judge has convicted Cornelius Jones on a number of counts of assault, as well as of uttering threats, resisting arrest and failing to appear in court.  Yesterday's Halifax Chronicle Herald , as well as CBC News, report that Jones, representing himself, defended against the charges of assaulting his wife and his 3-year old daughter by quoting Biblical verses that he says call for wives to submit to their husbands, and for disciplining children with the rod.  The judge urged Jones to retain counsel to represent him at the sentencing stage, telling Jones: "If Jesus Christ was here I would be recommending that he have a lawyer." Jones' brother told the court that he believes Jones needs psychiatric held, but says Jones has refused help from his family.

Jehovah's Witness Loses Malpractice Suit Complaining About Life-Saving Blood Transfusion

In DiGeronimo v. Fuchs, (NY S.Ct. Richmond Cty., Aug. 4, 2011), a New York trial court dismissed a medical malpractice claim brought against a doctor who saved a woman's life by giving her a blood transfusion. Plaintiff, a Jehovah's Witness, objected on religious grounds to the transfusion which became necessary due to complications after she delivered a child.  Her husband signed a consent for the transfusion when he was advised that without it his wife would die.  The court held:
there is no precedent for finding medical malpractice when a blood transfusion was the proximate cause of saving a life. Here, the plaintiff may be offended or even emotionally distressed that another person's blood was transfused into her body, which is apparently not in keeping with her beliefs as a Jehovah's Witness. Notwithstanding the fact that the plaintiff's husband, another Jehovah's Witness who was her health care proxy, signed a consent for the transfusion, the plaintiff's emotional distress concerning the blood transfusion does not rise to the level of an injury, as that term is used as an element of a medical malpractice action.

.... Since the plaintiff's transfusion saved her life, this action is analogous to one for "wrongful life" against the doctor. However, there is no cause of action for "wrongful life" in the State of New York.
 SI Live reports on the decision.

Monday, August 08, 2011

Indian Court Tells Counsel To Read Gita Before Arguing Case

In the Indian state of Madhya Pradesh, the government has ordered schools to incorporate "Gita Sar"-- the essence of Gita-- into the curriculum. According to yesterday's  Indian Express, the Catholic Bishops Council last month filed suit asking the Madhya Pradesh high court to order the government to instead include a summary of all religions in the curriculum, and not to favor a particular faith.  Plaintiffs argued that giving other religions equal prominence with Hinduism conforms to the Constitutional idea of a secular India.  Last week, the court issued an order instructing plaintiff's counsel to take two months to read the entire Gita before arguing the case so that counsel can "clearly understand whether the Gita is a philosophy of life or is associated with any religion."

Catholic Hospitals Say Exemption For Mandated Contraceptive Coverage Is Too Narrow

As previously reported, last month the Departments of Treasury, Labor and HHS issued for comment interim final rules on preventive health care services for women. They include an exemption for "religious employers" from the requirement that insurance plans fully cover contraceptive services. However, according to Fox News yesterday, Catholic hospitals, among others, object that the exemption is too narrow.  Under the interim rules, a religious employer is defined as
an organization that meets all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in ... the Internal Revenue Code....
Sister Carol Keehan, president of the Catholic Health Association, calls this "the parish housekeeper exemption", because she says that is about all it covers.  The exemption is not broad enough to cover Catholic hospitals, most of which currently do not cover contraceptive services in the insurance plans they provide their employees. The Catholic Health Association supported President Obama's health care reform when it was working its way through Congress. (See prior posting.)

Recent Articles of Interest

From SSRN:
American Political Science Association 2011 Annual Meeting Papers on SSRN:
From SmartCILP:
  • Mala Htun and S. Laurel Weldon, State Power, Religion, and Women's Rights: A Comparative Analysis of Family Law, [Abstract], 18 Indiana Journal of Global Legal Studies 145-165 (2011).

Sunday, August 07, 2011

Kansas High Court Rules On Relevance of Parent's Religion In Custody Determination

In Harrison v. Tauheed, (KA Sup. Ct., Aug. 5, 2011), the Kansas Supreme Court affirmed a trial judge's decision to award custody of a 5-year old boy to the child's mother, a Jehovah's Witness, over the objections of the child's father who also sought custody. The father argued on appeal that the trial court erred in refusing to consider the negative impact on the boy of his mother's religious beliefs and practices. The Supreme Court held:
Disapproval of mere belief or nonbelief cannot be a consideration in a custody determination—judges are not trained to mediate theological disputes. Yet consideration of religiously motivated behavior with an impact on a child's welfare cannot be ignored. It is one of the many relevant factors that must be part of the holistic custody calculus required under Kansas law....
Just as mere religious beliefs cannot be solely determinative of custody, a court may not speculate about behavior that religious beliefs may motivate in the future.... A court also may not weigh the merit of one parent's religious belief or lack of belief against the other's. Nothing in law school or practice in any setting qualifies a judge for this task, and any judicial effort to tackle it is far too likely to lead to the substantial impairment of the free exercise of religion... Courts must be vigilant to avoid invidious discrimination against religious beliefs or practices merely because they seem unconventional. The consideration of religiously motivated actions as a part of holistic evaluation of the best interests of the child, while excluding consideration of religious beliefs, strikes an appropriate balance among the free exercise rights of each parent; the right of each parent to the care, custody, and control of his or her child; and the welfare of the child....
The court concluded that the trial judge's decision met this standard.

Closed Questioning In Voir Dire of Potential Juror Who Objected To Oath Leads To Reversal of Conviction

In State of Washington v. Abbey, (WA App., Aug. 5, 2011), a Washington state appeals court reversed and remanded for a new trial the voyeurism conviction, and unusual 60-month sentence (because of past convictions for attempted voyeurism), of a defendant who was charged with looking into a bathroom window as a woman was getting out of the shower.  The reversal was based on the manner in which the court questioned a juror who, because of religious objections, failed to take the juror's oath during voir dire.  The judge questioned the juror (with both counsel present) in the hallway outside of the court room instead of in open court. The juror told the judge that it is against his religious beliefs to judge a fellow human being. The court held that defendant's right to a public trial was violated when the judge excluded the public from this questioning of the juror without first conducting a hearing to determine whether the courtroom should be closed to the public. The court said:
Here, what began as a ministerial matter, i.e., finding out why the juror refused to stand and take the oath, soon evolved into a discussion highly relevant to whether the State or defendant felt that the juror should serve, such that the State even suggested removing the juror for cause. What transpired was an investigation into the juror’s ability to serve, a matter neither ministerial nor trivial, and how his religious beliefs interfered with his ability to pass judgment or render a verdict.
Judge Quinn-Brintnall concurred on the ground that the defendant was excluded from the hallway questioning. Only his counsel was present.

San Francisco Moves To Require More Disclosure By Crisis Pregnancy Centers

In a press release last week, San Francisco City Attorney Dennis Herrara and Board of Supervisors member Malia Cohen announced joint legal and legislative steps against misleading advertising by crisis pregnancy centers.  On Aug. 2, Cohen introduced the “Pregnancy Information Disclosure and Protection Ordinance", the full text of which is included in the press release.  The proposed law bars dissemination of untrue or misleading statements concerning services offered at such centers.  At the same time, Herrara sent a letter to First Resort, Inc. demanding that it change its website to eliminate language that falsely suggests that it offers, or make referrals for, abortion services. The organization has purchased a paid Google search link, that causes its website to appear near the top of the search results for "abortion in San Francisco." The full text of the demand letter is also included with the press release. Catholic News Service reports on these developments. [Thanks to Isaiah Sage for the lead.]

Recent Prisoner Free Exercise Cases

In Riley v. Beard, 2011 U.S. Dist. LEXIS 83445 (MD PA, July 29, 2011), a Pennsylvania federal district court rejected prison officials' motion for reconsideration and permitted a Muslim inmate to proceed with his claims that his rights were violated when dates he used to break the Ramadan fast were confiscated from his cell.

In Lacey v. Braxton, 2011 U.S. Dist. LEXIS 84313 (WD VA, Aug. 1, 2011), a Virginia federal district court dismissed claims by an inmate who was a member of the House of Yahweh that his religious books and his tallit were wrongfully confiscated.

In Shepherd v. Fisher, 2011 U.S. Dist. LEXIS 84110 (SD NY, July 27, 2011), a New York federal district court refused to permit a Rastafarian prisoner to amend his complaint to charge the deputy superintendent with denying him specially requested religious meals on holy days.

In Henry v. Schriro, 2011 U.S. Dist. LEXIS 84883 (SD NY, Aug. 2, 2011), a New York federal district court dismissed a Jewish inmate's claim for $9.999 billion in damages for denial of his request for matzoh and grape juice.

In Cardew v. Bellnier, 2011 U.S. Dist. LEXIS 84949 (ND NY, Aug. 2, 2011), a New York federal district court adopted a federal magistrate's recommendations (2010 U.S. Dist. LEXIS 143515, Dec. 9, 2010) and dismissed inmates' challenge to prison rules that called for consideration of ethnic and religious backgrounds in determining double celling assignments. The court also dismissed plaintiffs' claims that authorities violated their 1st Amendment rights and rights under RLUIPA by serving all inmates meals without red meat on Ash Wednesday and Fridays during Lent.

In Florez v. McCormac, 2011 U.S. Dist. LEXIS 85214 (D CO, Aug. 3, 2011), a Colorado federal district court dismissed on statute of limitations grounds an inmate's complaint that his Bible was confiscated and destroyed and he was unable to obtain a replacement Bible for 138 days.  The court rejected the argument that the the limitations period had not run because this was a "continuing violation" of plaintiff's rights.

In Fricks v. Upton, 2011 U.S. Dist. LEXIS 81373 (MD GA, July 26, 2011), a Georgia federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 85071, April 14, 2011) and permitted an inmate to move ahead with his claim that his free exercise rights were infringed, though the magistrate judge expressed doubt that plaintiff's Church of Creativity qualifies as a religion.

In Grumbley v. Michigan, 2011 U.S. Dist. LEXIS 85940 (WD MI, Aug. 4, 2011), a Michigan federal district court dismissed a Jewish inmate's complaint that his rights were violated when prison authorities would allow him to use a prayer shawl purchased with prison funds only if it was marked as prison property.

In Jernigan v. Atkins, 2011 U.S. Dist. LEXIS 85773 (ND FL, Aug. 4, 2011), a Florida federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 85879, June 30, 2011) and permitted a Muslim inmate to proceed against certain defendants with his claim that he was denied adequate food at times that would permit him to observe the Ramadan fast.

In Briley v. Cole, 2011 U.S. Dist. LEXIS 86345 (ED AR, Aug. 4, 2011), an Arkansas federal district court adopted a portion of a federal magistrate's recommendations (2011 U.S. Dist. LEXIS 86383, July 8, 2011), and dismissed an inmate's free exercise complaint, holding that occasional failure to provide plaintiff with a completely meatless meal did not substantially burden the practice of his religious beliefs.

In Romero v. Lappin, 2011 U.S. Dist. LEXIS 86435 (ED KY, Aug. 4, 2011), a Kentucky federal district court held that guards at a federal prison were protected by qualified immunity in both constitutional and RFRA damage claims alleging that they violated the religious rights of a Native American prisoner by removing a length of green string from his prayer feather.

Saturday, August 06, 2011

Cuba's Raul Castro Says Government Should Welcome Religious Believers

Cuba's president, Raul Castro, gave a speech (full text) to Cuba's Parliament (Legislature of the National Assembly of People's Power) on Monday, reviewing economic and other developments in recent months.  A lengthy section of his speech was captioned: "A Painful Indictment Caused by Errors in the Implementation of the Cadre Policy and Attitudes Toward Religion." Castro described at length the demotion of a government employee who "became the victim of the dominant mentality at distinct levels of the Party and state, because of professing religious beliefs and on occasions, attending services at the church in her locality."  Saying he wished to "repair this injustice," he spoke at length about the need to respect those who hold religious beliefs:
Many years ago our Revolution overcame the scenes of confrontation with some of the religious institutions, a stage during which both parties committed excesses of greater or lesser magnitude. We are also aware of the enemy’s aspirations to foment confrontation and distrust between believers and the revolutionary process, calculations which have proved themselves erroneous because, from the outset, the vast majority of Cubans from modest backgrounds with religious beliefs supported the Revolution.
To anyone who is in any doubt about that, I would recommend that they read the Bush (Junior) Plan for transition in Cuba, which we know has not been abolished, and the role to be allocated to all the religious organizations in its subversive strategy against our country and which, despite the failure reaped, we know that these intentions have not been renounced....
...[A]ttitudes like those criticized here endanger our principal weapon for consolidating independence and national sovereignty; in other words, the unity of the nation.
Peoples World yesterday reported on Castro's speech.

Ft. Bragg Will Now Host "Rock Beyond Belief"

After being cancelled earlier this year (see prior posting), it now appears that "Rock Beyond Belief"-- a program sponsored by a group of atheists and secular humanists-- will be held next March at the U.S. Army base in Ft. Bragg, North Carolina.  According to RNS yesterday, the decision comes after complaints over funding given by the Army for the "Rock the Fort" concert held at the base last year under the auspices of the Billy Graham Evangelistic Association. The Rock Beyond Belief program-- that will now receive similar support-- will feature music and speakers, including well-known atheist author Richard Dawkins.  Ed Brayton, who blogs at Dispatches from the Culture Wars, says that he will emcee the event. [Thanks to Scott Mange for the lead.]

Gov. Perry's Prayer Rally Held In Houston Today

In Houston today, the controversial Christian prayer rally initiated by Texas Gov. Rick Perry (see prior posting) was held in Reliant Stadium. The Los Angeles Times reports that while Perry invited governors of every other state to attend the rally (billed as "The Response: A Call To Prayer for a Nation in Crisis"), only Kansas Gov. Sam Brownback accepted the invitation.  The event was financed by the American Family Association.  Gov. Perry read several Bible verses, and told the audience of over 30,000: "Like all of you, I love this country deeply. Indeed, the only thing you love more is the living Christ." According to the rally's official website, Perry also delivered a prayer, which reads in part:
Father, our heart breaks for America. We see discord at home. We see fear in the marketplace. We see anger in the halls of government. And as a nation we have forgotten Who made us, Who protects us, Who blesses us, and for that we cry out for Your forgiveness.
We pray for our nation’s leaders, Lord -- for parents, for pastors, for the generals, for governors -- that You would inspire them in these difficult times. Father, we pray for our president, that You would impart Your wisdom upon him, that You would guard his family. We pray for our military and the families who love them. Father, especially for those special operators who lost their life yesterday in defending our freedoms.

Friday, August 05, 2011

3rd Circuit: School Board Prayer Governed By School Prayer Tests, Not By Test For Legislative Invocations

In Doe v. Indian River School District, (3d Cir., Aug. 5, 2011), the U.S. 3rd Circuit Court of Appeals held that the test for whether prayers opening school board meetings violate the Establishment Clause is the test used for prayer at school events (Lee v. Weisman) , not the test for when invocations are permitted in legislative bodies  (Marsh v. Chambers). The Indian River, Delaware, school board routinely opened its meetings with a prayer offered by one of the board members, on a rotating basis. The prayers that were delivered were almost always Christian in their orientation. The court held that since students almost always attend Board meetings, either to receive awards or as part of their extracurricular activities or to comment on school policies, these meetings are analogous to graduation ceremonies which, while not technically mandatory, nevertheless result in students feeling coerced into participating in religious exercises. The court then found that the Board's prayer policy has the primary effect of advancing religion and involves excessive entanglement of government with religion. Board members are government actors composing and delivering prayers.  The Wilmington News Journal reports on the decision. (See prior related posting.)

President Takes Steps To Counter Future Mass Atrocities and Genocides

The White House yesterday announced two major steps taken by President Obama designed to help prevent mass atrocities and prevent the United States from becoming a haven for serious human rights violators.  Obama issued a Presidential Study Directive on Mass Atrocities (full text) creating an Interagency Atrocities Prevention Board and ordering an interagency study on implementing the new Board's role.  The memorandum explains the goal of the new arrangements:
Governmental engagement on atrocities and genocide too often arrives too late, when opportunities for prevention or low-cost, low-risk action have been missed. By the time these issues have commanded the attention of senior policy makers, the menu of options has shrunk considerably and the costs of action have risen.
In the face of a potential mass atrocity, our options are never limited to either sending in the military or standing by and doing nothing. The actions that can be taken are many they range from economic to diplomatic interventions, and from non combat military actions to outright intervention. But ensuring that the full range of options is available requires a level of governmental organization that matches the methodical organization characteristic of mass killings.
Sixty six years since the Holocaust and 17 years after Rwanda, the United States still lacks a comprehensive policy framework and a corresponding interagency mechanism for preventing and responding to mass atrocities and genocide. This has left us ill prepared to engage early, proactively, and decisively to prevent threats from evolving into large scale civilian atrocities.
Obama also issued a Presidential Proclamation (full text) barring (with exceptions for foreign policy reasons) entry into the United States of:
(a) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, widespread or systematic violence against any civilian population based in whole or in part on race; color; descent; sex; disability; membership in an indigenous group; language; religion; political opinion; national origin; ethnicity; membership in a particular social group; birth; or sexual orientation or gender identity, or who attempted or conspired to do so.
(b) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, war crimes, crimes against humanity or other serious violations of human rights, or who attempted or conspired to do so.

Priest Abuse Plaintiffs In Delaware Settle With Religious Order

In Delaware yesterday, plaintiffs in numerous priest sexual abuse lawsuits agreed to a settlement with the Oblates of St. Francis Desales.  According to WDEL News, the Catholic religious order will pay $24.8 million to 39 plaintiffs. This comes a week after a federal bankruptcy court confirmed a bankruptcy plan of reorganization of the Diocese of Wilmington. (See prior posting.) Earlier this year, the Delaware Supreme Court rejected a challenge by the Oblates of St. Francis Desales to the state law that created a 2-year window for filing of sex abuse claims that were previously barred by the statute of limitations. (See prior posting.)

Jeffs Convicted On 2 Counts of Sexual Assault of Child

According to CNN, a jury in San Angelo, Texas yesterday found FLDS leader Warren Jeffs guilty on two counts of sexual assault of a child.  The victims were 12 and 14 year old girls who were Jeffs' "spiritual wives".  The jury deliberated for less than 4 hours in reaching its verdict, after a trial in which Jeffs represented himself and invoked religious freedom as a defense. A second phase of the trial which began yesterday evening will determine Jeffs' sentence, which could be as much as life in prison. The Salt Lake Tribune reports that yesterday also the Principle Rights Coalition-- representing 5 polygamous churches-- denounced Jeffs' child abuse (full text of statement), saying in part:
As new evidence has surfaced in Texas detailing reprehensible acts of sexual abuse against children as young as twelve years old, we are alarmed that such depravity could have been perpetrated by anyone... We repudiate and denounce Warren Jeffs’ inappropriate actions in linking his despicable and unconscionable acts to the Gospel of Jesus Christ and to Joseph Smith Jr. and Mormonism.

6th Circuit Refuses Modification of 16 Year Old Church Zoning Consent Decree

In Northridge Church v. Charter Township of Plymouth, (6th Cir., July 28, 2011), the U.S. 6th Circuit Court of Appeals refused to set aside or modify a consent judgment that had been entered 16 years earlier in a case involving an attempt by a large congregation to obtain zoning approval for construction of a church building and related recreational facilities. Among the restrictions set out in the consent decree were limitation of the church's total auditorium seating to no more than 3,500 and no more than 1,167 parking spaces. At the time of the consent decree, average Sunday church attendance was 1,100. It has now grown to 14,000-- requiring multiple weekly services and costly shuttle buses. The court rejected the church's argument that the enactment of RLUIPA 5 years after the entry of the consent decree voided the judgment. The court also concluded that RLUIPA did not create sufficient changed legal circumstances to justify a modification of the decree since at the time of the decree RFRA was in effect and had not yet been invalidated in its application to states. Finally the court concluded that there had not been a sufficient change in factual circumstances to find that the district court had abused its discretion in refusing to modify the consent judgment. [Thanks to Brian D. Wassom for the lead.]

Thursday, August 04, 2011

White House Releases New Plan For Supporting Local Efforts Against Violent Extremism

The White House yesterday released the President's plan for Empowering Local Partners to Prevent Violent Extremism in the United States (full text). The report sets out a community-based approach that includes greater support and information sharing with local officials.  In his introduction to the report, President Obama says:
As we approach the 10th anniversary of the September 11 attacks, we remember that al-Qa'ida tried to spark a conflict between faiths and divide us as Americans. But they failed.
Addressing the threat of extremist propaganda, the report says:
we must counter al-Qa’ida’s propaganda that the United States is somehow at war with Islam.... Al-Qa’ida and its supporters spread messages of hate, twist facts, and distort religious principles to weave together a false narrative that Muslims must attack Americans everywhere because the United States is waging a global war against Islam. While al-Qa’ida claims to be the vanguard of Islam, the overwhelming majority of its victims are Muslim.
We will challenge this propaganda through our words and deeds, defined by the very ideals of who we are as Americans. As the President has stated repeatedly, the United States is not, and never will be, at war with Islam. Islam is part of America, a country that cherishes the active participation of all its citizens, regardless of background and belief. We live what al-Qa’ida violently rejects—religious freedom and pluralism.... 
The report also emphasizes that : "Strong religious beliefs should never be confused with violent extremism."

U.S. House Files Memo In Court Supporting DOMA

As previously reported, after the Obama administration announced that it would no longer defend the constitutionality of the federal Defense of Marriage Act, the U.S. House of Representatives decided to defend the constitutionality of the statute.  New York Law Journal reports that on Monday, lawyers for the Bipartisan Legal Advisory Group of the U.S. House of Representatives filed a memorandum of law (full text) in one of the cases in which the House is defending DOMA.  The case is Windsor v. United States, (SD NY), in which the surviving spouse of a same-sex marriage performed in Canada is seeking to have her marriage recognized for federal estate tax purposes. The memo argues that the court should apply merely rational basis review in assessing the challenge to DOMA, and that the courts should leave any redefinition of marriage to the democratic process. (See prior related posting.) [Thanks to Alliance Alert for the lead.]

Tennessee City's Resolution Supporting Israel Criticized For Religious References

The Mt. Juliet, Tennessee City Commission at its July 25 meeting passed, by a 4-1 vote, a resolution (full text Word.doc) supporting the nation of Israel.  The Tennessean, however, reports that one person at the meeting objected on First Amendment grounds to one of the eight "Whereas" clauses with which the resolution begins.  That clause reads: "WHEREAS, the Lord of Abraham, Isaac, and Jacob promises in Genesis 12:3 to bless those that bless Israel: 'I will bless them that bless thee, and curse him that curseth thee: and in thee shall all families of the earth be blessed.'" The vice-mayor said he saw nothing in the resolution that established a state-run church.