Suit Challenges Utah College's Treatment Of Christian Student Group

In Utah yesterday, a federal lawsuit was filed against Utah's Snow College (a public 2-year college) by a Christian student group that claims a school policy unconstitutionally treats student groups affiliated with religious institutions differently than other student groups.  The complaint (full text) in Solid Rock Christian Club v. Wyatt, (D UT, filed 10/22/2012) challenges both the rule that relegates to "affiliate" status student groups that are affiliated with commercial, for-profit or religious institutions, as well as limitations placed on plaintiffs' participation in the "Paint the Town" Homecoming activity.  In the activity, student groups get to paint the windows of participating local businesses to reflect the Homecoming spirit-- with this year's theme being "Then, Now and Forever."  School officials told Solid Rock Christian Club that it could not use religious symbols in the designs it painted on store windows. Solid Rock wanted to paint a design that included a cross and the message "The cross covers sin then, now, and forever." Plaintiffs' 8-count complaint charges violations of the 1st and 14th Amendments. In a press release announcing the filing of the lawsuit, Alliance Defending Freedom says it has delayed serving defendants in order to give the college time to change its mind and avoid litigation.

9th Circuit: Suit To Stop Release of Referendum Petition Signers Is Moot

In Doe #1 v. Reed, (9th Cir., Oct. 23, 2012), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision dismissed as moot a suit by Protect Marriage Washington to enjoin the state of Washington from releasing under the Public Records Act the names referendum petition signers.  At issue was the names of individuals who signed petitions supporting a referendum to overturn a state law that expanded the rights of domestic partners. In 2010 the U.S. Supreme Court rejected a facial challenge to the Public Records Law, but left open the possibility of an as-applied challenge if it could be shown that the release of names was undertaken to encourage harassment of signers. (See prior posting.) In yesterday's decision, a majority of the 9th Circuit panel held that the court cannot grant effective relief because the petitions are already widely available in searchable form on the Internet.

Judge Smith filed a concurring opinion concluding that the case is not moot because the court can prevent continued disclosure. However, he concluded that on the merits plaintiffs had not shown a 1st Amendment infringement. [Thanks to Alliance Alert for the lead.]

NM High Court Rejects Religious Sect Leader's Procedural Challenge To Convictions For Sexual Contact With Minors

In State of New Mexico v. Bent,(NM Sup. Ct., Oct. 22, 2012), the New Mexico Supreme Court rejected a procedural challenge to the conviction of a religious sect leader for sexual contact with his teenage followers and contributing to the delinquency of minors.  Defendant Wayne Bent, who had claimed that his lying naked with children was part of a religious healing ritual (see prior posting), challenged his conviction on the ground that the grand jury handed down his indictment after its statutory term of service had expired.  The state intermediate appeals court had held that the indictment was void.  The Supreme Court, however, said that "the view of jurisdiction taken by the Court of Appeals resembles more an artifact of a bygone era when courts took a hyper-technical, almost talismanic approach to the concept of subject matter jurisdiction." The Supreme Court held that any challenge to the indictment on these grounds should have been pursued to the Supreme Court through a petition for an extraordinary writ before trial when defendant's motion to quash the indictment was denied by the trial and appeals courts. AP reports on the decision, indicating that the 71-year old defendant, the leader of The Lord Our Righteousness Church, is serving a 10 year sentence.

NY High Court Refuses To Review Case Rejecting Challenge To Marriage Equality Law

Yesterday, the New York Court of Appeals-- the state's highest court-- denied a motion for leave to appeal in New Yorkers for Constitutional Freedoms v. New York State Senate, (Entry List).  In the case, a state intermediate appeals court in July  rejected a challenge to the state's Marriage Equality Law (which permits same-sex marriage). Plaintiffs had argued that private lobbying of the Republican Conference of the State Senate in favor of the law by New York City Mayor Michael Bloomberg and Governor Andrew Cuomo violated the Open Meetings Act. (See prior posting.) In a statement yesterday after the court's decision, Governor Cuomo said:

New York State has served as a beacon for progressive ideals and this statute is a clear reminder of what this State stands for: equality and justice for all. With the Court’s decision, same-sex couples no longer have to worry that their right to marry could be legally challenged in this State. The freedom to marry in this State is secure for generations to come.

The Legislative Gazette reports on the decision.

Women File Administrative Complaint Over NY Farm's Religious Objections To Hosting Same-Sex Wedding

In New York this month, two Albany women, Jennie McCarthy and Melissa Erwin, have filed a discrimination complaint with the New York Division of Human Rights after Liberty Ridge Farm, a Shcaghticoke (NY) tourist attraction, refused to host the women's same-sex wedding. According to yesterday's Lichtfield County (CT) Register Citizen, Robert and Cynthia Gifford, the farm's owners, have religious objections to same-sex marriage.  Their spokesman argued that "they ought to have the opportunity to say that this is a behavior that they just don’t agree with and they just don’t condone on their privately owned property."  The New York Human Rights Law bars places of public accommodation from discriminating on the basis of sexual orientation.

Vatican Releases Full Text Of Sentencing Decision Of Pope's Former Butler

News.va reports that today the Vatican made public the full text (in Italian) of the 18-month aggravated theft sentence issued by the Tribunal of Vatican City State on October 6 against the Pope's former butler, Paolo Gabriele. (See prior posting.) At a press conference, Holy See Press Office Director Fr. Federico Lombardi said that the sentence focused on the stealing of originals of documents, and did not involve a nugget of gold, a check in the Pope's name and a 16th century copy of The Aeneid, because of doubts about Gabriele's guilt in taking them and doubts about the way in which the search that located them was carried out. Lombardi also said that a psychiatric exam had not found any mental condition that made Gabriele unaware of his responsibility for his actions. Presently Gabriele remains under house arrest since an appeal by the Tribunal's promoter of justice who wanted a stronger sentence was not possible until the full text of the sentence was published.  If no appeal is filed and the Pope does not pardon him, Gabriele will serve his sentence in a prison in the Vatican, since there is no relevant treaty with Italy that would allow him to be sent to an Italian prison. Vatican Radio reports that the trial of IT expert Carlo Sciarpeletti for aiding and abetting Gabriele will open November 5th.

President Obama's Brand of Christianity Is Analyzed

CNN's Belief blog on Sunday carried a lengthy analysis of President Obama's Christian faith, titling the article The Gospel According to Obama. This excerpt gives a flavor of the article:

Historians may remember Obama as the nation’s first black president, but he’s also a religious pioneer. He’s not only changed people’s perception of who can be president, some scholars and pastors say, but he’s also expanding the definition of who can be a Christian by challenging the religious right’s domination of the national stage.

When Obama invoked Jesus to support same-sex marriage, framed health care as a moral imperative to care for “the least of these,’’ and once urged people to read their Bible but just not literally, he was invoking another Christian tradition that once dominated American public life so much that it gave the nation its first megachurches, historians say....

Some Christians, however, still see Obama as the “other.” He doesn’t act or talk like other Christians, says the Rev. Gary Cass, a conservative Christian president of the Christian Anti-Defamation Commission..... Cass says he’s never heard Obama say he’s “born-again.” There’s no emotional conversion story to hang onto.

European Court Rejects Restitution Claim By Serbian Orthodox Church

In Budimljansko-Niksicka v. Montenegro, (ECHR, Oct. 19, 2012), the European Court of Human Rights, in a Chamber judgment, rejected claims by a diocese of the Serbian Orthodox Church in Montenegro that it was entitled to restitution for property formerly belonging to its churches and monasteries that was expropriated after World War II. As summarized in the Court's press release on the decision:

The Court held in particular that the applicants had no legitimate expectation, under Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights, that they would be restituted, since the key provisions of the law on which they relied had been declared unconstitutional before they filed their request.

California Jury Awards Catholic School $1.1M In RLUIPA Case

In San Diego, California last Friday, a federal court jury awarded damages in excess of $1.1 million to a Catholic school that was denied permits by the city to build a new science classroom building and parking structure. According to the San Diego Union Tribune, the decision came in a lawsuit filed under the Religious Land Use and Institutionalized Persons Act against the city by the Academy of Our Lady of Peace after City Council overruled its Planning Commission's approval of the project.  The jury found that the city's actions imposed a substantial burden on the school's religious exercise. The court will hear arguments next month on whether it should also order the city to now issue the permits. The jury trial came after, in an earlier decision (see prior posting), the court refused to grant summary judgment to plaintiffs. [Thanks to Daniel Dalton for the lead.]

Presidential Delegation Attends Canonization of 2 Americans, 5 Others

Yesterday in Rome, Pope Benedict XVI celebrated a special mass to canonize 7 individuals, including two Americans. (Full text of Pope's homily.) As reported by CNN, the Americans are the first Native American saint, 17th century Mohawk Kateri Tekakwitha; and  German-born Marianne Cope, who came to the U.S. as a child, became a nun and devoted 30 years to helping lepers in Hawaii. Last week, President Obama announced a Presidential delegation to attend the canonization mass: the U.S. ambassador to the Vatican, Miguel Humberto Diaz; Sister Agnelle Ching, an official with the Saint Francis Healthcare System of Hawaii; and Sister Kateri Mitchell, director of the Tekakwitha Conference whose patroness is the newly named saint.

Bible Club's Equal Protection Claim Dismissed For Lack of Standing

In Youth Alive v. Hauppauge School District, (ED NY, Oct. 12, 2012), a New York federal district court dismissed for lack of standing a claim by a high school after-school Bible club that the school board violated the Equal Protection clause when, in order to comply with the federal Equal Access Act, it refused to furnish the club a paid advisor. Instead the board required the club to have a volunteer advisor.  In finding no injury-in-fact and dismissing the claim, the court said:

The use of an unpaid supervisor to monitor Youth Alive meetings has had no discernible effect on Plaintiffs' ability to exercise their First Amendment rights..... Plaintiffs speculate that a paid advisor would be less likely to cancel meetings than an unpaid advisor, which, in theory, could affect their rights to free speech and exercise of religion.... But the parties stipulated that, unlike all other clubs, if Youth Alive's unpaid supervisor cannot attend a meeting, Defendants provide a substitute volunteer to supervise the students.... Youth Alive, then, very well may be able to conduct more meetings than non-religious clubs.  In  any event, the evidence shows at most three cancelled meetings..., which is comparable to clubs with paid advisors.

Recent Articles of Interest

From SSRN:

• Jerg Gutmann, Causes of Corruption in Religious Organizations, (October 19, 2012).
• Caroline Mala Corbin, The Contraception Mandate, (Northwestern University Law Review Colloquy, Vol. 106, Forthcoming).
• Charlton C. Copeland, Creation Stories: Stanley Hauerwas, Same-Sex Marriage, and Narrative in Law and Theology, (Law and Contemporary Problems, Vol. 75, No. 4, 2012).
• Frederick Mark Gedicks, With Religious Liberty for All: A Defense of the Affordable Care Act's Contraception Coverage Mandate, (American Constitution Society for Law and Policy Issue Brief, Oct. 18, 2012).
• Menachem Mautner, Religion in Politics: Rawls and Habermas on Deliberation and Justification, (Hanoch Dagan, Yedidia Z. Stern and Shachar Lifshitz eds., The Israel Democracy Institute, 2013).
• Wassim Rajhi, Islamic Finance, Distress and Restructuring: Lessons from Asian Financial Crises, (October 17, 2012).
• Roberta Rosenthal Kwall, Is the Jewish Tradition Intellectual Property?, (4 WIPO Journal, Forthcoming).

From SmartCILP:

• Rex Ahdar, Regulating Religious Coercion, [Abstract], 8 Stanford Journal of Civil Rights & Civil Liberties 215-243 (2012).
• Yaseen Eldik and Monica C. Bell, The Establishment Clause and Public Education in an Islamophobic Era, [Abstract], 8  Stanford Journal of Civil Rights & Civil Liberties 245-258 (2012).
• Mary Ann Glendon, Harold J. Berman Lecture. Religious Freedom--A Second-Class Right?, 61 Emory Law Journal 971-990 (2012).
• Myriam Hunter-Henin, Why the French Don't Like the Burqa: Laicite, National Identity and Religious Freedom, [Abstract], 61 International & Comparative Law Quarterly 613-639 (2012).
• John Witte, Jr. and Don S. Browning, Christianity's Mixed Contributions to Children's Rights: Traditional Teachings, Modern Doubts, 61 Emory Law Journal 991-1014 (2012).

Recent Prisoner Free Exercise Cases

In Peterson v. Lampert, (10th Cir., Oct. 15, 2012), the 10th Circuit dismissed an inmate's due process, free exercise and RLUIPA complaints growing out of the loss of religious personal property, including a crystal wand, tarot cards, feathers, incense, a prayer cloth, and a satanic Bible, after a transfer from one facility to another.

In  White v. Lindermen, 2012 U.S. Dist. LEXIS 150107 (D AZ, Oct. 18, 2012), an Arizona federal district court denied a Messianic Jewish inmate a preliminary injunction he sought to allow his family members to purchase religious items, including incense, scented oils, candles, a kippah, a talit, and herbs, for him from a vendor.

In McDaniel v. Fizer, 2012 U.S. Dist. LEXIS 147900 (D AZ, Oct. 15, 2012), an Arizona federal district court dismissed, with leave to amend, a Muslim inmate's complaint that his lacto-vegetarian diet was replaced by a vegan diet, and that he was being denied a kosher diet.

In Coulter v. Studeny, 2012 U.S. Dist. LEXIS 147230 (WD PA, Oct. 12, 2012), a Pennsylvania federal district court largely adopted a magistrate' recommendations (2012 U.S. Dist. LEXIS 150473, Sept. 21, 2012) and, among other things, rejected plaintiff's claim that her free exercise rights were violated by a special condition of her probation. She claimed that a 10 p.m. to 6 a.m. curfew prevented her from attending unspecified religious services.

In Rice v. Curry, 2012 U.S. Dist. LEXIS 134284 (ND CA, Sept. 18, 2012), a California federal district court dismissed without prejudice for failure to exhaust administrative remedies a claim by an inmate who was a member of the Muslim Ansar El Mohammad faith that AEM Muslims were not provided a Suhoor meal during Ramadan. The court dismissed on the merits plaintiff's complaint that AEM Muslims were not granted separate access to the interfaith chapel and that the prison refused to hire an AEM imam.

In Palermo v. Libby, 2012 U.S. Dist. LEXIS 148577 (D NH, Sept. 12, 2012), a New Hampshire federal magistrate judge recommended that an inmate be permitted to proceed with his free exercise and RLUIPA claims that he was denied a religious diet, religious reading materials, and ritual items, and an equal protection claim that he was denied religious reading materials and ritual items.

House of Lords Debates Placing Restrictions On Sharia Arbitration Panels

As reported today by The Telegraph, in Britain on Friday the House of Lords debated a bill to place restrictions on Sharia arbitration tribunals. (Full text of Lords' debate.) The proposed Arbitration and Mediation Services (Equality) Bill would add several provisions to British law. The Equality Act would be amended to prohibit anyone providing arbitration services from doing anything that constitutes discrimination, harassment or victimization on grounds of sex. The Arbitration Act would be amended to bar any arbitration agreement or process that gives more weight to the testimony of men than women, or which gives women fewer inheritance or property rights. The amendments would also exclude from arbitration anything within the jurisdiction of the criminal or family courts. The Family Law Act would be amended to allow a court to set aside any negotiated or mediated agreement if it concludes that one party's consent was not genuine. The proposed bill also takes aim at informal Sharia councils that deal with divorce and child custody.  It prohibits anyone from purporting to determine family law or criminal maters in arbitration, and from falsely purporting to exercise the power of a court to make legally binding rulings.

Miami Archdiocese Sues Over Contraceptive Coverage Mandate

On Friday, the Catholic Archdiocese of Miami announced that, along with its Catholic Health Services and Catholic Hospice, it has filed a federal lawsuit against the Department of Health and Human Services challenging the contraceptive coverage mandate imposed under the Affordable Care Act. It says that because the Archdiocese is self-insured, the Obama administration's compromise announced in February to have insurance companies pay for objectionable services is not a solution.  In remarks (full text), Archbishop Thomas Wenski said that the suit joins nearly 50 other across the country filed by Catholic dioceses, charities,  hospitals and schools, in coordination with the Jones Day law firm that is providing its services pro bono. At a news conference, the Archbishop said that the Catholic Church supports universal health care, but a plan "should kill no one and it should cover everyone." He added that the Affordable Care Act fails this test by requirmg employers to provide drugs and services that result in the killing of unborn children, and,on the other hand, excluding "millions of immigrants." Catholic News Agency reports on the lawsuit.

School Quickly Ends Pastor's Access To Cafeteria After Suit Is Filed

Within minutes after a lawsuit was filed by the ACLU yesterday, a Fort Wayne, Indiana middle school agreed to stop its practice of allowing a local youth pastor to regularly visit the school's cafeteria during lunch, where he stands in a prominent place, hands out materials and talks with students who are required to eat in the cafeteria.  The Fort Wayne News-Sentinel reports that the suit was filed by parents of an 11-year old who attends Summit Middle School in the Southwest Allen County school district who say no other outsider is given this kind of access to the cafeteria. The ACLU says the lawsuit will be dropped once it receives formal notice from the school district that it is changing its practices.

IRS Has Suspended Church Audits Until Rule Changes Are Finalized

BNA Daily Report for Executives dated 10/22/2012 (subscription required) reports that the Internal Revenue Service has temporarily suspended tax audits of churches pending final adoption of IRS rule changes to clarify which high level Treasury official has authority to make a determination under IRC Sec. 7611 that there are reasonable grounds to begin a church tax inquiry. (See prior posting.) At an American Law Institute Continuing Legal Education conference, IRS speaker Russell Renwicks, area group manager from the Mid-Atlantic region of the Tax-Exempt and Government Entities division, said the IRS has been bombarded with complaints about churches becoming involved in the elections, but it has been unable to respond even to potentially egregious cases. The rule changes are necessitated by a 2009 Minnesota federal district court ruling. (See prior posting.)

Another Suit Challenges Contraceptive Coverage Mandate of ACA

Yesterday, yet another federal lawsuit was filed challenging on RFRA, 1st Amendment and Administrative Procedure Act grounds the contraception coverage mandate under the Affordable Care Act.  The complaint (full text) in Griesedieck v. U.S. Department of Health and Human Services, (WD MO, filed 10/19/2012), alleges that the two individual plaintiffs, who are Evangelical Christians, own a controlling interest in four industrial companies that employ a total of 175 people. Citing the requirement that the companies' policies cover drugs that have a post-fertilization mechanism of action (such as Plan B and Ella), plaintiffs assert that:

As evangelical Christians, Plaintiffs believe in the sanctity of human life from the moment of conception.  They believe it would be sinful to for them to pay for services that have a significant risk of causing the death of embryonic human lives.

American Center for Law and Justice issued a press release announcing the filing of the lawsuit.

In Mali, Islamists Destroy Historic Tombs They Consider Idolatrous

According to CNN, in northern Mali, for the fourth time this year al-Qeda linked Ansar Dine rebels have destroyed historic tombs. Some 30 armed fighters arrived in Timbuktu yesterday to reinforce local Islamists and destroyed three mausolea that have been designated by the United Nations as World Heritage Sites. The Islamists consider these Sufi shrines to be idolatrous and thus religiously prohibited.

Appeals Court: Accused Ft. Hood Shooter Can Be Forcibly Shaved

Accused Fort Hood shooter, Maj. Nadal Hasan, who has been seeking the right to wear a beard for religious reasons at his court martial trial, lost yesterday in the U.S. Army Court of Criminal Appeals.  In Hasan v. United States, (Army Ct. Cr. App., Oct. 18, 2012), an opinion of 5 judges held that Hasan's petition for a writ of prohibition should be denied. Hasan sought to prevent the government from forcibly shaving him after the military judge at his court martial ordered Hasan to be clean shaven for all subsequent pretrial proceedings and for his trial. (See prior posting.)  The majority concluded that the trial judge did not commit clear error in  concluding that Hasan was not necessarily growing his beard for religious reasons. The majority went on to hold that even if Hasan demonstrated that he was wearing a beard out of sincere religious conviction, the Army has compelling interests in requiring him to shave, and no less restrictive means are available to accomplish these interests:

The Army has a compelling interest to ensure uniformity, good order and discipline.... The Army has a further interest in the fair and proper administration of military justice. We agree with the military judge's conclusion that petitioner's wearing of the beard denigrates the dignity, order and decorum of the court martial and is disruptive under the current posture of the case.  Furthermore, in front of a military panel, it is undeniable that petitioner's failure to comply with Army grooming regulations without explanation of a suitable exception would cast him in a negative light. In this respect, the military judge has the authority ... to safeguard petitioner against the injection of prejudice into the court-martial process as a result, even where petitioner consents to that prejudice.

Two judges joined in an opinion dissenting in part, arguing that the court-martial judge should have merely ordered the government to ensure that the defendant was in proper uniform for the trial, leaving decisions about forced shaving or granting an exception to grooming regulations to the chain of command. The dissenters would not only grant the writ of prohibition invalidating the military judge's order, but would also disqualify the judge from further participation in the case because his action reasonably put into question his impartiality. Stars and Stripes reports on the decision.