9th Circuit Affirms Dismissal of Establishment Clause Challenge To Waldorf Schools

In a 3-page opinion in PLANS, Inc. v. Sacramento City Unified School District, (9th Cir., June 7, 2012), the U.S. 9th Circuit Court of Appeals affirmed a federal district court's dismissal of an Establishment Clause challenge to two Northern California school districts that have created "Waldorf" schools. These schools use a holistic teaching method based on the educational philosophy of Rudolf Steiner, creator of the spiritually-based philosophy known as Anthroposophy. (See prior posting.) The 9th Circuit held that:

PLANS failed to meet its burden of showing that anthroposophy is a religion for purposes of the Establishment Clause. Although we express no view as to whether anthroposophy could be considered a religion on the basis of a fuller or more complete record, the record as it is before us is simply too thin to sustain that conclusion.

The court also held that PLANS had waived any argument that it could prevail on its Establishment Clause claim even without a determination that anthroposophy is a religion. The case has been winding its way through the courts since 1998.

USCIRF Elects Chair, Vice-Chairs

The U.S. Commission on International Religious Freedom announced yesterday that Dr. Katrina Lantos Swett has been elected Chair of USCIRF.  Rev. William J. Shaw and Mary Ann Glendon were elected Vice-Chairs. Section 201(d) of the International Religious Freedom Act mandates election of a chair by a majority of the USCIRF members present and voting at the first meeting after May 30 each year.

CDC Issues Report On Risky Ultra-Orthodox Jewish Circumcision Procedure

Time Magazine reports that the U.S. Centers for Disease Control and Prevention (CDC) released a report yesterday on Neonatal Herpes Simplex Virus Infection Following Jewish Ritual Circumcisions that Included Direct Orogenital Suction — New York City, 2000–2011. The report finds that during the 12 year period covered 11 newborn males contracted HSV infection from the ultra-Orthodox Jewish practice of  metzitzah b'peh in which the mohel places his mouth directly on the newly circumcised penis and sucks blood away from the circumcision wound. This circumcision method increases the risk for neonatal herpes 3.4 times that of male infants who have not had direct orogenital suction. On Wednesday, the New York City Health Department issued a statement (full text) strongly advising against the practice of metzitzah b’peh.  It also announced that 9 New York hospitals have agreed to distribute a Health Department pamphlet, Before the Bris: How to Protect Your Baby Against Infection, to parents considering out-of-hospital circumcision of their newborn boys. The New York Health Department's warnings echo those it issued as early as 2005. (See prior posting.) [Thanks to Vos iz Neias? for the lead.]

Egypt's Constitution Drafting Panel To Be Split Between Islamists and Non-Islamists

In Egypt, the Supreme Council of the Armed Forces has invited both chambers of parliament to meet next Tuesday to select the 100 members of the panel that is to draft the country's new constitution.  According to the Financial Times, this move came after agreement was reached on Thursday between the army and representatives of Islamist, liberal and leftwing parties in parliament on the makeup of the new drafting commission. Its membership will be split evenly between Islamists and non-Islamists, and will include members of parliament, judges, young people, women, public figures, Muslim clerics and church representatives.

Sikh Employee Wins Settlement With TSA

The Washington Post reported Wednesday that a Sikh man has won a $30,000 settlement in an employment discrimination claim against the Transportation Security Administration.  Kulwinder Singh, a TSA employee at New York's Kennedy Airport, was told by his TSA supervisor that he had to hide his kara (religious wristband) under a long sleeve shirt, or not wear it at all. In a decision last March, the EEOC ruled that the TSA needed to permit employees to wear the kara freely. Singh's attorney says that hiding the kara from sight defeats its purpose of reminding its wearer to act righteously and protect others.

Note to Readers: Comment Feature To Be Reactivated On Religion Clause Blog

A Note to Religion Clause Readers--

Beginning today, I am experimenting again with activating the Comment feature on Religion Clause blog.  Readers, after registering, will be able to post Comments relating to this and future items.  I deactivated the Comment feature in February 2010 after the Comment forum stopped serving a useful purpose. You can see my concerns that led to the decision at that time here.  Some readers were using it more to proselytize than to comment on the postings, and the number of readers submitting posts was small. I hope that its use will prove more effective this time.  However if it does not, I will again deactivate it.

Comments will not be moderated before they appear.  I do not have the time necessary to carry out that labor intensive function.  However, I reserve the right to remove any Comment that I find inappropriate for any reason.  Needless to say, though, my failure to remove a comment in no way indicates that I endorse it or find it appropriate.  Religion Clause has a knowledgeable and articulate readership. I hope the Comments will reflect this, and will respect the overall tone and goal of the blog. I also reserve the right to remove excessive numbers of postings by any individual reader, even if their content is appropriate.

The Comments will be accessible in a pop-up window so that they will not distract readers who are interested only in the main postings. I welcome Comments suggesting anything else that would make the Comment forum of more interest to you.  As always, feel free to contact me by e-mail where that is more appropriate. Thanks again to all the loyal Religion Clause readers.  I hope you find this step an improvement in the blog.

Best wishes,
Howard Friedman

Another Court Says DOMA Is Unconstitutional

Another court has held that the Defense of Marriage Act is unconstitutional.  In Windsor v. United States, (SD NY,June 6, 2012), a New York federal district court awarded plaintiff Edith Windsor damages equal to the $353,000 in estate taxes paid to the federal government on her same-sex spouse's estate. Edith and her long-time partner Thea Spyer, who were New York residents, were married legally in Canada in 2007. Spyer by will left her estate for the benefit of Windsor, but because of DOMA Spyer did not qualify for the unlimited estate tax marital deduction. Without invoking strict scrutiny, the court held that Section 3 of DOMA violates the equal protection component of the 5th Amendment because the government's asserted interests are inadequate to support the law. Jurist reports that this is the fourth federal court decision invalidating DOMA. (See prior related posting.)

Former Cadet May Challenge Required Prayer At Honor Code Hearing

In Spadone v. McHugh, (D DC, June 6, 2012), the U.S. District Court for the District of Columbia held that former West Point cadet Alan Spandone has standing to claim that the Establishment Clause was violated when, at a hearing on his alleged Honor Code violations, he was ordered by the Commandant of Cadets to stand with his body rigid in a military posture and to read aloud the "Cadet’s Prayer."  The hearing involved charges of plagiarism, and the Commandant thought that Spandone had not shown contrition or accepted responsibility for his conduct. The Army argued to the court that reinstating Spandone would not cure the Establishment Clause violation.  The court held, however, that the likely remedy would be an injunction banning forced religious prayer. The court however rejected due process and other challenges by Spandone to his removal from West Point.

9th Circuit Upholds Hawaii Licensing Requirement For Commercial Beach Weddings

In Kaahumanu v. State of Hawaii, (9th Cir., June 6, 2012), the U.S. 9th Circuit Court of Appeal for the most part upheld against 1st and 14th Amendment challenges Hawaii's regulation and associated guidelines that require permits for "commercial weddings" on public beaches.  The permit requirement applies to any wedding involving receipt of compensation for goods or services, other than service of a photographer, even if the only compensation is that paid to a member of the clergy for performing the ceremony. The court held that the state regulation "is is narrowly tailored to a significant governmental interest, is content-neutral, leaves ample alternative spaces for hosting a wedding, and does not vest too much discretion in the government official when issuing the permits." The court however struck down a provision in the regulation giving the Department of Land and Natural Resources authority to revoke or add terms and conditions to an already issued permit for any reason.  The court rejected a contention by plaintiffs that the regulation's prohibition on placing various types of wedding accessories on the beach creates a preference for nonliturgical religions and targets members of the Catholic, Orthodox or Jewish faiths. The court interpreted the regulation as permitting hand-held accessories including religious objects such as hand-held chuppas, chalices, and small, handheld kahilis.

Suit Challenges NYPD Surveillance of Muslim Communities

Yesterday, a group of Muslim organizations, Muslim-owned businesses and individuals filed suit in federal district court in New Jersey to challenge the New York Police Department's program of secretly infiltrating and monitoring Muslim religious institutions, schools, businesses, associations, and congregations around New York City. The complaint (full text) in Hassan v. City of New York, (D NJ, filed 6/6/2012), charges that the NYPD program impermissibly discriminates against plaintiffs because of their religion and intentionally denigrates Islam:

The NYPD Program is founded upon a false and constitutionally impermissible premise: that Muslim religious identity is a legitimate criterion for selection of law-enforcement surveillance targets, or that it is a permissible proxy for criminality, and that the Muslim community can therefore be subject to pervasive surveillance not visited upon any other religious group or the public at large.

The lawsuit seeks a declaratory judgment, an injunction against continuation of the program and asks that all records of plaintiffs made through unlawful spying be expunged. It also asks for nominal damages and attorneys' fees. Muslim Advocates issued a press release announcing the filing of the lawsuit.  The Wall Street Journal reports on the lawsuit.

UPDATE: An amended complaint was filed on Oct. 3, 2012. Center for Constitutional Rights has links to subsequent pleadings in the case.

Suit Claims Anti-Gay Discrimination By Doctor On Religious Grounds

In New Jersey, an HIV-positive gay man has filed suit against a hospital under the state's Law Against Discrimination charging that his treatment was delayed and he suffered embarrassment and humiliation as a result of discrimination against him on the basis of his sexual orientation and/or his HIV-positive status. The state-court complaint (full text) in Simoes v. Trinitas Regional Medical Center, (NJ Super., filed 5/23/2012) alleges that shortly after plaintiff was admitted to the hospital's mental health wing, he was approached by Dr. Susan Borga, who walked out on him after she learned that he contracted HIV from unprotected sex with men. The complaint alleges the Dr. Borga hung up the phone on plaintiff's HIV doctor, telling him: "This is what he gets for going against God's will."  The complaint faults the hospital for failing to promulgate or enforce an anti-discrimination policy. Courthouse News Service reports on the case. [Thanks to Scott Mange for the lead.]

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
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