Refusing To Provide Photography Services To Same-Sex Ceremony Violates State Anti-Discrimination Law

In Elane Photography, LLC v. Willock, (NM Ct. App., May 31, 2012), a New Mexico state appeals court held that a photography firm's refusal to provide its services to photograph a same-sex commitment ceremony violates the New Mexico Human Rights Act's prohibition on discrimination in public accommodations on the basis of sexual orientation.  According to the court:

Elane Photography’s owners are Christians who believe that marriage is a sacred union of one man and one woman.  They also believe that photography is an artistically expressive form of communication and photographing a same-sex commitment ceremony would disobey God and the teachings of the Bible by communicating a message contrary to their religious and personal beliefs.

Rejecting Elane Photography's free expression arguments, the court held:

the mere fact that a business provides a good or service with a recognized expressive element does not allow the business to engage in discriminatory practices.... While Elane Photography does exercise some degree of control over the photographs it is hired to take... this control does not transform the photographs into a message from Elane Photography.

The court also rejected Elane Photography claim that applying the Human Rights Act to it would violate its free exercise of religion protected by the U.S. and New Mexico constitutions. It held that the statute is a neutral law of general applicability. Finally it rejected a claim under the New Mexico Religious Freedom Restoration Act, concluding that it applies only to suits in which government agencies are the adverse parties, not to suits against a private individual or business.  Volokh Conspiracy has an extensive discussion of this aspect of the case, as well as a posting on its more general holding.

Judge Wechsler filed a concurrence in the case, arguing that the New Mexico constitution's free exercise clause is broader than that in the First Amendment, but also concluding that Elane Photography had not properly preserved that issue for appeal. WND reports on the decision.

Defendant Says Threatening Letter Was Divinely Inspired

Last year the U.S. Department of Justice filed a civil lawsuit against Kansas resident Angel Dillard under the Freedom of Access to Clinic Entrances Act.(Full text of complaint.) She was charged with sending a threatening letter to a Wichita doctor who is training to provide abortion services.  The letter, which warned that some day explosives may be placed under the doctor's car, was a particular concern because Dillard had befriended Scott Roeder after he was convicted of murdering abortion provider Dr. George Tiller. (See prior related posting.) Yesterday AP reported that Dillard has now filed a counterclaim, contending that "she was inspired by God" to send the threatening letter. She believes that her message was "divinely inspired" and should be within the 1st Amendment's protection of speech and religion. Dillard says that the government's lawsuit and related publicity led to her losing ministry positions at her church and at the Sedgwick County Detention Center
.

8th Circuit: Trial Court Must Consider RFRA Challenges To Contempt Citations

In United States v. Ali, (8th Cir., June 4, 2012), the U.S. 8th Circuit Court of Appeals vacated 19 criminal contempt citations issued by a Minnesota federal district court against a Muslim defendant who, for religious reasons, refused to stand when the court convened and recessed.  The disputed conduct occurred during defendant's trial for providing material support to a designated foreign terrorist organization. After defendant failed to stand at the status conference for her case, the trial court had issued a specific order requiring all parties to follow the Rules of Decorum set forth by the Court.  The 8th Circuit held that the district court, in rejecting defendant's challenge to the order, had considered her 1st Amendment challenges, but had failed to consider her challenges under the Religious Freedom Restoration Act:

Because the district court applied only a First Amendment analysis, it never evaluated whether the pretrial order was  the least restrictive means to achieve a compelling government interest, as required by RFRA.

The 8th Circuit, however, upheld defendant's criminal contempt conviction on the first contempt citation against her, because she had at that point disobeyed the trial court's order without formally challenging it. AP reports on the decision.

6th Circuit Rejects Establishment Clause Challenge To AIG Bailout On Standing Grounds

In Murray v. U.S. Department of Treasury, (6th Cir., June 1, 2012), the U.S. 6th Circuit Court of Appeals dismissed on standing grounds an Establishment Clause challenge to the federal government's 2008 bailout of American International Group, Inc. (AIG). Plaintiff complained that federal dollars were committed to a company whose subsidiaries market and sell Sharia-compliant financial products. The district court dismissed on the merits, finding that the government had a secular purpose and did not become excessively entangled in religion. (See prior posting.) The 6th Circuit affirmed the dismissal but instead relied on plaintiff's lack of standing, finding that the challenged spending resulted from executive branch decisions, not a specific Congressional mandate.

Recent Articles of Interest

From SSRN:

• Richard W. Garnett, Neutrality and the Good of Religious Freedom: An Appreciative Response to Professor Koppelman, (Pepperdine Law Review, Vol. 39, p. 1001, 2012).
• Jeff Redding, What American Legal Theory Might Learn from Islamic Law: Some Lessons About 'The Rule of Law' from 'Shari‘a Court' Practice in India, (University of Colorado Law Review, Vol. 83, p. 1027, 2012).
• Pauline M. Kruiniger, Article 16 of the Women’s Convention and the Status of Muslim Women at Divorce, (In: I. Westendorp (ed.), The Women's Convention Turned 30: Achievements, Setbacks, and Prospects, Antwerp: Intersentia, Forthcoming).
• Edward A. Zelinsky, Do Religious Tax Exemptions Entangle in Violation of the Establishment Clause? The Constitutionality of the Parsonage Allowance Exclusion and the Religious Exemptions of the Individual Health Care Mandate and the Fica and Self-Employment Taxes, (Cardozo Legal Studies Research Paper No. 362, March 2012).
• Adam Shinar and Anna Su, Religious Law as Foreign Law in Constitutional Interpretation, (International Journal of Constitutional Law, Forthcoming).
• Jonathan C. Augustine and Roslyn Satchel Augustine, Religion, Race and the Fourth Estate: Xenophobia in the Media Ten Years after 9/11, (Tennessee Journal of Race, Gender & Social Justice, Vol. 1, Issue 1, pp. 1-56, 2012).
• Timothy J. Tracey, Christian Legal Society v. Martinez: In Hindsight, (University of Hawaii Law Review, Forthcoming).

From SmartCILP:

• Raymond C. Pierce, The First Amendment "Under God": Reviewing the Coercion Test in Establishment of Religion Claims, [Abstract], 35 Hamline Law Review 183-228 (2012).
• Khaled Abou El Fadl, Donald A. Giannella Memorial Lecture. Conceptualizing Shari'a in the Modern State, 56 Villanova Law Review 803-817 (2012).
• Kari Mercer Dalton, The Priest-Penitent Privilege v. Child Abuse Reporting Statutes: How to Avoid the Conflict and Serve Society, [Abstract], 18 Widener Law Review 1-25 (2012).
• Kellen Zale, God's Green Earth? The Environmental Impacts of Religious Land Use, 64 Maine Law Review 207-237 (2011).

From Engage: Vol. 13, Issue 1 (March 2012):

• Carl H. Esbeck, A Religious Organization's Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment.
• David W. Scott, The Ohio Constitution of 1803, Jefferson's Danbury Letter, and Religion in Education.
• Elizabeth K. Dorminey, Veiled Meaning: Tolerance and Prohibition of the Hijab in the U.S. and France.
• Michael B. Mukasey, Eleventh Annual Barbara K. Olson Memorial Lecture.

Chinese Clamp Down On Tibetan Monastery Leads To Wave of Self-Immolations

Today's New York Times reports that Chinese control of the Kirti Monastery in Tibet and the city of Ngaba in which the monastery is located has led to the largest wave of self-immolations in modern history.  At least 38 Tibetans have set themselves afire since 2009.  Of those, 15 were monks or former monks from Kirti. A Chinese occupation of the monastery has radicalized it over the last four years.

Harsh Islamic Law Imposed In Northern Mali

The New York Times today reports on the dismal situation in Timbuktu, in northern Mali, since Islamists have taken over. It explains:

All of northern Mali, an area the size of France, has been in the hands of a loose coalition of Islamists and nomadic Tuareg rebels since late March, when resistance by the Malian Army collapsed after a coup d’état by junior military officers in the capital.

Since the takeover, however, the Islamists of Ansar Dine, supported by Al Qaeda, have gained the upper hand over the Tuaregs, and they are aggressively promoting their brand of Islamic law.

The paper summarizes the situation:

Women are now forced to wear full, face-covering veils. Music is banned from the radio. Cigarettes are snatched from the mouths of pedestrians. And the look of the ancient mud-brick town is changing. A centuries-old monument, the shrine of a 15th-century saint, has been defaced; bars have been demolished; and black flags have been hung around town to honor Ansar Dine, or Defenders of the Faith, the radical Islamist movement that emerged from the desert and turned life upside down.

Recent Prisoner Free Exercise Cases

In Ekene v. Cash, 2012 U.S. Dist. LEXIS 74786 (CD CA, May 30, 2012), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 155244, Sept. 13, 2011)  and dismissed, with leave to amend, an inmate's complaint that a correctional officer confiscated his Bible when he was placed on management cell status, thereby depriving him of the opportunity to do his daily devotions.

In Morris v. Yates, 2012 U.S. Dist. LEXIS 74896 (ED CA, May 30, 2012), a California federal magistrate judge, in recommending a denial of an inmate's habeas corpus petition, concluded that petitioner had not shown that he was prejudiced at trial by the prosecutor wearing a small cross as a necklace.

In Cullen v. Illinois Department of Human Services, 2012 U.S. Dist. LEXIS 75483 (CD IL, May 31, 2012), an Illinois federal district court dismissed, with leave to file an amended complaint, a lawsuit by a former inmate challenging the Illinois correctional system's endorsement, funding, and implementation of a 12-step program based on Alcoholics Anonymous' religious model.

In Johnson v. Randle, 2012 U.S. Dist. LEXIS 75080 (SD IL, May 31, 2012), a Buddhist inmate, on a Locto-Ovo-Vegetarian diet for religious reasons, was permitted to move ahead with his free exercise and RLUIPA claims for injunctive relief.  Plaintiff claims that his religious exercise is burdened by a prison rule that requires those on special diets to to to the back of the chow line and receive their meals last. This gives him inadequate time to eat, thus, he alleges, pressuring him to  abandon his religious beliefs.

In Kruger v. Kaemingk, 2012 U.S. Dist. LEXIS 75640 (D SD, May 30, 2012), a South Dakota federal district court permitted an inmate to move ahead with his complaint that prison officials have refused his requests for a place and time to conduct Messianic Jewish worship services.

9th Circuit: Tribe Delays Mining Under Endangered Species Act Because of Religious and Spiritual Concerns

In Karuk Tribe of California v. United States Forest Service, (9th Cir., June 1, 2012), the U.S. 9th Circuit Court of Appeals en banc agreed with the federal district court that the Karuk Indian Tribe has standing to challenge the continuation of gold mining operations along the Klamath River and its tributaries because these operations may, among other things, impact the Tribe’s ability to enjoy the spiritual, religious, subsistence, recreational, wildlife, and aesthetic qualities of the areas affected by the mining operations. Then in a 7-4 decision, the majority held that the Forest Service violated the Endangered Species Act when it allowed mining operations to proceed in areas of critical habitat for coho salmon without first consulting appropriate wildlife agencies. The New York Times reports on the decision.

Court Rules Town Meeting Prayer Violates Vermont Constitution

In Hackett v. Town of Franklin, (VT Super. Ct., May 29, 2012), a Vermont trial court held that a town's practice of including a prayer at its town meetings violates Art. 3 of the Vermont constitution that prohibits a person from being "compelled to attend any religious worship." The prayer was regularly led by a local Christian minister. The court enjoined the town from continuing such prayers in the future, and it also scheduled a further hearing on damages that should be awarded to plaintiff. However, the court held that town meeting prayer does not violate the "compelled support" clause of Vermont's constitution (Art. 3) nor its statutory prohibition on religious discrimination in public accommodations. A release from the Vermont ACLU reports on the decision, and links to all the pleadings in the case.

Court Upholds City's Holiday Display and Rejection of Anti-Religious Sign

In Freedom from Religion Foundation, Inc. v. City of Warren, Michigan, 2012 U.S. Dist. LEXIS 75464 (ED MI, May 31, 2012), a Michigan federal district court upheld Warren, Michigan's 2011 holiday display in the Atrium entrance area of city hall. The display included a Nativity scene, but the mayor refused to include an FFRF sign that read in part: "There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is but myth and superstition...."  The court concluded that the holiday display was overwhelmingly secular in nature, despite the inclusion of the Nativity scene, and that the FFRF sign was properly excluded from the display, which was a limited public forum:

[T]he Mayor sets forth permissible bases for denial—that the Sign was meant to counter the Nativity Scene, not celebrate the holiday season, and that the anti-religious language of the sign, in this context, could lead to a disruption of city business. There is nothing indicating the Mayor denied placement of the Sign solely in defense of religion; religion was simply not the appropriate subject-matter.

Southern Baptist Public Policy Spokesman Reprimanded For Trayvon Martin Comments

Baptist Press reported on Friday that the executive committee of the Southern Baptist Convention's Ethics & Religious Liberty Commission has issued two reprimands to Richard Land, president of the Commission and its prominent spokesman on public policy issues.  The reprimands grew out of Land's comments on March 31 regarding the Trayvon Martin shooting.  The comments, made on Land's March 31 radio show, "Richard Land Live!", criticized African-American leaders such as Jesse Jackson, Al Sharpton and Louis Farrakhan (April 10 Baptist Press report), saying: that "they need the Trayvon Martins to continue their central myth: America is a racist and an evil nation. For them, it's always Selma, Ala., circa 1965. They haven't noticed that the nation has changed."  Land contended that criticism by African-American leaders was politically motivated:

Instead of letting the legal process take its independent course, race mongers are anointing themselves judge, jury and executioners.... This is being done to try to gin up the black vote for an African American president who is in deep, deep, deep trouble for reelection and who knows that he cannot win reelection without getting the 95 percent of blacks who voted for him in 2008 to come back out and show that they're going to vote for him again,

Land issued a length apology on May 9, a week after meeting with key Baptist African-American clergy. The reprimands issued Friday criticized Land's "hurtful, irresponsible, insensitive, and racially charged words" and also criticized his lifting of those remarks from a Washington Times column without attribution. The Executive Committee also indicted that it is terminating Land's radio show.

Virginia County Again Modifies Display of 10 Commandments In School

As previously reported, the ACLU last year filed suit in a Virginia federal district court on behalf of a high school student and the student's parent challenging the posting of Ten Commandments displays in the Giles County, Virginia Public Schools. Last month, the judge ordered the case to mediation. (See prior posting.) Now, according to the Roanoke Times, the Giles County School Board yesterday voted unanimously to replace the Ten Commandments text that is displayed at Narrows High School with a copy of a page from a history textbook captioned "Roots of Democracy".  That page includes a depiction of the Ten Commandments tablets, but without the full text of the Commandments, with the explanation: "The values found in the Bible, including the Ten Commandments and the teachings of Jesus, inspired American ideas about government and morality." The page also depicts Greco-Roman, Enlightenment, and English Parliamentary roots of American government.  This is the third version of the Ten Commandments display, as the School Board struggles with how to respond to legal challenges. (See prior posting.)  [Thanks to Scott Mange for the lead.]

Hate Crimes Prevention Act Is Constitutional and Covers Intra-Religious Violence

In United States v. Mullet, (ND OH, May 31, 2012), an Ohio federal district court upheld the constitutionality of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act against commerce clause and First Amendment challenges.  The case involves the indictment of 16 members of an Amish community led by Sam Mullet who are charged with attacking and cutting off the beards and hair of members of a rival Amish community who did not comply with Mullet's directives. (See prior posting.) The court held that because the Hate Crimes law requires an explicit nexus between defendants conduct and interstate commerce, it is a constitutional exercise of Congress' lawmaking power. The court also rejected a claim that the statute infringes defendants' freedom of expression and free exercise of religion, saying that "the First Amendment has never been construed to protect acts of violence against another individual, regardless of the motivation or belief of the perpetrator."  The court rejected defendants' claim that the Hate Crimes Prevention Act does not cover intra-religious violence. The court said:

While hate crimes are often committed by members of one religious (or racial or ethnic) group against another, history is replete with examples of internecine violence. 

Finally, the court rejected the argument that the Hate Crimes Prevention Act violates the Religious Freedom Restoration Act. AP reports on the decision.

Online Resource On Challenges To Health Insurance Contraceptive Services Mandate Launched

As reported by Eurasia Review, the Becket Fund last week launched the HHS Mandate Information Central, an online resource for reporters and the public on the 23 separate lawsuits that have been filed to challenge the federal mandate that health insurance policies cover contraceptive services. The webpage links to legal documents, press releases and other materials for each case, as well as furnishing more general background material on the mandate.

Suit Challenges High School Graduation Prayer Policy

The Freedom From Religion Foundation announced Wednesday that it, along with one of its members who is a graduating senior at Irmo High School, has filed a federal lawsuit suit against a South Carolina school district challenging the district's policy that allows a student vote each year on whether or not to have prayer at the high school graduation ceremony.  The complaint (full text) in Nielson v. School District Five of Lexington & Richland Counties, (D SC, filed 5/30/2012), alleges that the policy violates the Establishment Clause and Equal Protection Clause. The district superintendent had told plaintiff, when he complained about the policy: "while I am a staunch supporter of the separation of Church and State, I do not believe that Freedom of Religion should be interpreted as requiring Freedom from Religion within the public schools." Cranston Patch reports on the lawsuit.

Obama Speaks At White House Reception For Jewish American Heritage Month

President Obama spoke on Wednesday at a reception in the East Room of the White House marking Jewish American Heritage Month. (Full text of remarks.) In his remarks, he reminded his audience of a sometimes forgotten episode in American history:

This year, we celebrate ... Jewish American Heritage Month, and we're also commemorating an important anniversary. One hundred-fifty years ago, General Ulysses Grant issued an order –- known as General Orders Number 11 –- that would have expelled Jews, “as a class,” from what was then known as the military department of the Tennessee.  It was wrong.  Even if it was 1862, even if official acts of anti-Semitism were all too common around the world, it was wrong and indicative of an ugly strain of thought.

But what happened next could have only taken place in America. Groups of American Jews protested General Grant’s decision.  A Jewish merchant from Kentucky traveled here, to the White House, and met with President Lincoln in person.  After their meeting, President Lincoln revoked the order -- one more reason why we like President Lincoln.  (Laughter and applause.)

And to General Grant’s credit, he recognized that he had made a serious mistake.  So later in his life, he apologized for this order, and as President, he went out of his way to appoint Jews to public office and to condemn the persecution of Jews in Eastern Europe.

1st Circuit Invalidates Defense of Marriage Act

Today in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (1st Cir., May 31, 2012), the U.S. First Circuit Court of Appeals held unconstitutional Section 3 of the Defense of Marriage Act that denies federal benefits to same-sex couples (and surviving same-sex spouses) lawfully married in Massachusetts. The 3-judge panel (composed of 2 judges nominated by Republican presidents and 1 nominated by a Democratic president) was unanimous in its decision. The court said:

This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.  In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation.  We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.

Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine--not to create some new category of "heightened scrutiny" for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.

Describing recent Supreme Court equal protection decisions, the 1st Circuit said:

In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification.  In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible.

Concluding that "Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest," the court explained:

In reaching our judgment, we do not rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality.  The many legislators who supported DOMA acted from a variety of motives, one  central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization.  ...

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute....  But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today.  One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage.

CNN reports on the decision.

Malaysian Federal Court Upholds Licensing of Muslim Teachers

A 5-judge panel of Malaysia's Federal Court has upheld the constitutionality of Sec. 53(1) of the state of Negeri Sembilan's Syariah Criminal Enactment 1992 which outlaws Muslims teaching Islam without accreditation by the state's Islamic Religious Council.  Malaysian Insider reported yesterday that a challenge to the law was brought by a Muslim counselor with the Patient Counseling Division of the National Heart Institute who (along with another defendant) faces a fine and up to two years in jail for delivering a religious talk at a celebration of the Prophet Muhammad's birthday in 2010. Plaintiffs claimed that the law exceeds the powers of the state's legislature. In upholding the state law, the Federal Court said:

We are of the view that it is necessary in this day and age for the authority to regulate the teachings or preachings of the religion in order to control, if not eliminate deviant teachings. The integrity of the religion needs to be safeguarded at all costs. That is what Section 53 of the enactment purports to do.

Pakistan Indicts Former Officials On Hajj Corruption Charges

In Rawalpindi, Pakistan on Wednesday, a trial court indicted former minister for Religious Affairs Syed Hamid Saeed Kazmi, former Hajj director general Rao Shakeel and former Hajj joint secretary Aftab-ul-Islam Raja in a case charging corruption in connection with administering hajj arrangements.  According to The News and Central Asia Online, the three are charged with arranging housing for Pakistan's Hajj pilgrims in Saudi Arabia at exorbitant rates, taking kickbacks for doing so, and making advance payments in violation of Pakistani policy. It is variously reported that the indictments relate to arrangements in 2009 or in 2010. (See prior related posting.)