Idaho Says Vodka's Label Could Be Offensive To Mormons; Decision Challenged On Constitutional Grounds

Jonathan Turley reports that yesterday, on behalf of his client Ogden's Own Distillery, he wrote the director of the Idaho Liquor Division objecting on 1st and 14th Amendment grounds to the state's refusal to approve the sale of "Five Wives Vodka" in Idaho. (Full text of letter.) A Liquor Division official said that an important factor in the denial is that the name and packaging could be offensive to members of the Church of Jesus Christ of Latter-Day Saints, as well as to women. The Distillery argues that the refusal violates the Establishment Clause, denies free speech, due process and equal protection, and violates the commerce clause.

UPDATE: Jonathan Turley reports that in a letter sent May 6, Idaho has agreed to lift its ban on special orders of Five Wives Vodka and is prepared to consider approving general listing for the vodka at the Liquor Division's next meeting with brokers in July. [Thanks to Don Byrd for the update lead.]

New Science May Modify Debate On Contraceptive Coverage Mandate

Surprising scientific disclosures in a lengthy New York Times article today could change the debate over the Obama administration's health insurance contraception coverage mandate. The free exercise challenges to the mandate have been given special force because the mandate covers Plan B and Ella-- so-called morning-after pills-- which until now had been thought by most of the public to prevent implantation of a fertilized egg in the wall of the uterus.  That is seen by many objectors as equivalent to abortion. (Background.) The Times discloses however that this is not the way the morning-after pill works.  Instead it delays ovulation.  The article traces how the information on preventing implantation came to appear on FDA-required labels. However, Richard Doerflinger, associate director of the Secretariat of Pro-Life Activities for the United States Conference of Catholic Bishops says: "So far what I see is an unresolved debate and some studies on both sides...."

9th Circuit Denies En Banc Review In Proposition 8 Case

As reported by The Recorder, the U.S. 9th Circuit Court of Appeals yesterday denied en banc review in Perry v. Brown.  In the case in February, a 3-judge panel (by a 2-1 vote) struck down Proposition 8 that eliminated the right for same-sex couples to marry. (See prior posting.) However the court stayed the mandate in the case pending any petition to the Supreme Court for review and until final disposition by the Supreme Court. In denying en banc review, the 9th Circuit issued an order along with a dissent by 3 judges, plus a response to the dissent by two others. (Full text.) The dissent, written by Judge O'Scannlain, said in part:

A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same sex marriage as a policy matter.  Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”  

Today our court has silenced any such respectful conversation.  Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia....  Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.

The response, written by Judge Reinhardt expressed puzzlement over the dissenters' "unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion."

New Ontario Anti-Bullying Law Generates Catholic Opposition Over Required "Gay-Straight Alliances" In Schools

The Toronto Globe and Mail reports that yesterday Ontario's Legislative Assembly passed by a vote of 65-36 the third and final reading of Bill 13, the Accepting Schools Act (full text). The bill will become law later this month when it receives Royal Assent. The law, which is designed to prevent and punish bullying in government funded Catholic schools as well as public schools, has generated opposition from from the Assembly of Catholic Bishops of Ontario because of its requirement that all schools support "activities or organizations that promote the awareness and understanding of, and respect for, people of all sexual orientations and gender identities, including organizations with the name gay-straight alliance...."  As reported by an earlier Globe and Mail article, Catholic schools want to be able to use a different name for student clubs that encourage respect for all students, objecting to the use of the word "gay" or "rainbow" in the names of the groups. The controversy is apparently part of the larger debate over government funding of Catholic schools in Ontario.

Churches Challenge Philadelphia's Ban On Feeding Programs In Parks

In Pennsylvania, a group of churches and church leaders have filed suit in federal district court challenging the constitutionality of regulations and policies adopted by Philadelphia's city government in anticipation of the opening of the Barnes Foundation's relocated art collection in downtown Philadelphia.  The new regulations operate to close down the churches' decade-long programs of feeding of the homeless outdoors in Philadelphia's public parks.  The complaint (full text) in Chosen 300 Ministries, Inc. v. City of Philadelphia, (ED PA, filed 6/5/2012), alleges that these governmental actions were designed to remove the food program and homeless persons from the vicinity of a new art gallery in order to bolster the city's public image.  Plaintiffs claim the city's action violate their 1st Amendment free exercise and free speech rights, as well as their rights under the Pennsylvania Religious Freedom Protection Act. The complaint claims that the regulations target religiously sponsored feeding programs, while creating exceptions to permit social, family or business picnics, and  outdoor commercial food service. The ACLU issued a press release announcing the filing of the lawsuit.

7th Circuit: No Taxpayer Standing To Challenge Bald Knob Cross Grant

In Sherman v. State of Illinois, (7th Cir., June 4, 2012), the U.S. 7th Circuit Court of Appeals held that activist and atheist Robert Sherman lacks taxpayer standing to challenge a $20,000 grant by the Illinois Department of Commerce and Economic Opportunity to Friends of the Cross for restoration of the Bald Knob Cross, an Illinois tourist attraction. Nor can he force Friends of the Cross to return the funds to the state.  Under the Supreme Court's decision in Hein v. Freedom from Religion Foundation, Inc., taxpayers have standing to bring an Establishment Clause challenge only where funds have been spent pursuant to a legislative mandate, and not where the spending decision was an administrative one under a general appropriation. The 7th Circuit held that the procedure in Illinois under which an administrative agency makes grants from a general appropriation pursuant to patronage-based decisions from legislative political leaders is not the same as a specific legislative appropriation. The court said:

It is not enough to say that Friends was "specifically selected" by the legislative leadership for the grant, as we see no room in the Supreme Court’s decisions for the Realpolitik approach that Sherman urges.

(See prior related posting.)

Kuwaiti Trial Court Sentences Man To 10 Years For Blasphemous Tweets

Christian Post reported yesterday that a Kuwaiti trial court has sentenced 26-year old Hamad al-Naqi to 10 years in prison for making insulting comments about Islam on Twitter.  According to Gulf News, prosecutors charged that between February 5 and March 27, al-Naqi posted comments and tweets that insulted Prophet Mohammad, his companions Abu Baqer, the first Caliph, and Omar, the second caliph, and his wife Aisha. He also, it was charged, insulted the political regimes in two Gulf Cooperation Council countries. Al-Naqi claims that he did not compose the tweets, and that his account was hacked.  Al-Naqi's lawyer says they will appeal and are optimistic about their chances of success.

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.]