NY Governor Criticizes Rabbi's Comments Blaming Sandy On Same-Sex Marriage

Yesterday, New York Gov. Andrew Cuomo issued a press release strongly criticizing comments made by Rabbi Noson Leiter, Executive Director of Torah Jews for Decency. Leiter in an appearance on VC America's Crosstalk (audio recording of program) blamed the flooding from Hurricane Sandy in New York on the state's legalization of same-sex marriage. Cuomo said in part:

The comments made by Rabbi Noson Leiter that sought to link the devastation caused by Hurricane Sandy to our state's embrace of marriage equality are as offensive as they are ignorant.... This kind of hateful rhetoric has no place in our public discourse, and is particularly distasteful in times of tragedy.... I call on Rabbi Leiter to apologize immediately for his hurtful comments.

Vos Iz Neias? also reports on these developments.

Virginia County Allows Wiccan Priestess To Officiate At Weddings

Americans United reports that last month Arlington County, Virginia officials relented on an earlier refusal and have issued an order permitting a Wiccan high priestess to officiate at wedding ceremonies. Literata Hurley appeared to meet the requirements of Va. Code Sec. 20-23 for approval. She was ordained by the Order of the White Moon, a non-profit organization. Initially the clerk of court refused to approve her because her congregation has no permanent location, but meets in members' homes or outdoors.

Down-Ballot Votes To Watch Tomorrow

While the Presidential contest obviously looms largest at the polls tomorrow, those interested in church-state and religious liberty issues are watching a number of down-ballot issues and contests.

• Florida's Amendment 8 would remove the state constitution's ban on public funds going to religious institutions and instead would ban, to the extent consistent with the federal Constitution, the government from denying participation in funding or programs on the basis of religious identity or belief. (Background from Naples Daily News).
  
• Four states have same-sex marriage issues on the ballot: Maine (Question 1); Maryland (Question 6); Minnesota (Proposed Amendment 1); and Washington (Referendum Measure 74).
  
• Two states have ballot issues relating to abortion. Florida: Amendment 6 which, with limited exceptions, would prohibit the use of public funds for abortion. Montana: Legislative Referendum 120 would, with some exceptions, require physicians to notify parents 48 hours before performing an abortion on a minor under 16.

Also two votes on state supreme court justices are of particular interest:

• In Alabama, former state Supreme Court Chief Justice Roy Moore (known for his defense of a 10 Commandments monument in Alabama's Judicial Building) is again running for that office against Democrat Robert Vance (whose father, a federal appeals court judge, was assassinated by a mail bomb in 1989). (Background on the contest from AP).
• In Iowa, state Supreme Court Justice David Wiggins faces significant opposition from same-sex marriage opponents in his retention election.  Wiggins was one of the 7 justices who in a 2009 case voted to invalidate the state's law that had barred recognition of same-sex marriages. (See prior posting.)

Supreme Court In Summary Opinion Says Pro-Life Demonstrator Was Prevailing Party For Attorney Fee Award

Today, in a per curiam opinion issued without calling for briefing or oral arguments, the U.S. Supreme Court in  Lefemine v. Wideman, (Docket No. 12-168, decided 11/5/2012)  (full text, scroll to end of Order List) held that a member of Columbia Christians for Life who obtained a permanent injunction, but no monetary damages was a "prevailing party" and entitled to an award of attorneys' fees, unless on remand the lower courts find special circumstances that should preclude an award. In a 2005 anti-abortion demonstration at a busy intersection in Greenwood County, South Carolina, police officers threatened to charge picketers with breach of the peace if they did not get rid of signs picturing aborted fetuses. The lower courts permanently enjoined officials from engaging in such content-based restrictions. However, finding qualified immunity, the courts denied the request for nominal damages as well as for attorneys fees. The Supreme Court said:

Because the injunction ordered the defendant officials to change their behavior in a way that directly benefited the plaintiff, we vacate the Fourth Circuit’s decision and remand for further proceedings.

(See prior posting.) SCOTUSblog reports on today's decision.

Law On Damage To Church Property Survives Establishment Clause Challenge

In People v. Chambliss, 2012 Ill. App. Unpub. LEXIS 2653 (IL App., Nov. 1, 2012), an Illinois appellate court upheld against an Establishment Clause challenge an Illinois law (720 ILCS 5/21-1(d)(1)(C)) that makes damage to property of a place of worship, a school or agricultural equipment or property a greater offense than damage to other property. The court held that the legislature had a secular purpose in focusing on property in need of enhanced protection.

Shariah Courts Role Expands In Egypt's Sinai Peninsula

According to the Wall Street Journal last Friday, in Egypt's Sinai Peninsula Shariah courts are proliferating to fill the void in governmental services. Islamic courts have long operated in the Sinai to adjudicate minor disputes among individuals, but since the revolution they are expanding their role. According to Sheikh Asaad al Beek who oversees the Shariah judges, the caseload has risen from 50 cases two years ago to an expected 900 before this year is out. This is 75% of the caseload formerly handled by Egypt's civil courts in the Sinai. The Shariah courts presently operate like arbitration panels, with the parties agreeing in advance to follow its rulings.  The sheikhs often attempt to mediate cases presented to them, and many cases are resolved by the court merely ordering one of the parties to apologize. Apparently there have been some discussions with police about getting officers to enforce Shariah court rulings.

Recent Articles of Interest

From SSRN:

• Jennifer L. Wright, Religious Law Schools and Democratic Society, (Howard Law Journal, 2013, Forthcoming).
• Marc O. DeGirolami, The Punishment Jurist, (Foundational Texts in Modern Criminal Law, Markus Dubber, ed., Oxford University Press, Forthcoming).
• Mark Strasser, Making the Anomalous Even More Anomalous: On Hosanna-Tabor, the Ministerial Exception, and the Constitution, (Virginia Journal of Social Policy and the Law, Vol. 109, pp. 400-49, 2012).
• Richard J. Ross, Distinguishing Eternal from Transient Law: Natural Law and the Judicial Law of Moses, (Past and Present 217, November 2012: 79-115).
• Mirjana Stankovic, The Earth Revolves Around the Sun? How Science, Religion and Law Come Together, (November 1, 2012).
• Paul Finkelman, Toleration and Diversity in New Netherland and the Duke's Colony: The Roots of America's First Disestablishment, (T. Jeremy Gunn and John Witte, Jr. eds., No Establishment of Religion: America's Original Contribution to Religious Liberty 125-157, Oxford University Press, 2012).
• Wassim S. Daher, The Origin of Law in Shi’ite Islam, (September 25, 2012).
• Menachem Mautner, A Dialogue between a Liberal and an Ultra-Orthodox on the Exclusion of Women from Torah Study, (Religious Revival in a Post-Multicultural Age, S. Lavi & R. Provost, eds., 2013 Forthcoming).
• Steven Ferrey, Earth, Air, Water and Fire: The Classical Elements Confront Land and Energy, (Journal of Land Use & Environmental Law, Vol. 27, p. 259, 2012).
• James G. Dwyer, The Good, the Bad, and the Ugly of Employment Division v. Smith for Family Law, (Cardozo Law Review, Vol. 32, No. 5, p.178, 2011).

From SmartCILP and elsewhere:

• Symposium: Patriarchal Religion, Sexuality, and Gender. Introduction by Shannon Gilreath; articles by Nicholas Bamforth, David A.J. Richards and Jane Caputi, 1 Wake Forest Journal of Law & Policy 197-324 (2011).
• The Nov. 2012 Issue of Church & State has recently appeared.

Recent Prisoner Free Exercise Cases

In Muhammad v. Sapp, (11th Cir., Nov. 1, 2012), the 11th Circuit affirmed the dismissal of an inmate's claim that the Department of Corrections shaving and forced shaving policies violated his free exercise and RLUIPA rights, and also rejected his 8th Amendment claim growing out of his forced shaving with chemical agents.

In Ouahman v. Barnes, 2012 U.S. Dist. LEXIS 153493 (D NH, Oct. 25, 2012), a New Hampshire federal district court approved a magistrate's recommendation (2012 U.S. Dist. LEXIS 153508, Oct. 1, 2012) and dismissed an inmate's claim that he was denied a Qur'an, a prayer rug and the ability to observe Ramadan.

In Emmett v. Affey, 2012 U.S. Dist. LEXIS 154535 (SD TX, Oct. 26, 2012), a Texas federal district court dismissed claims by an inmate who had changed his religious preference to Native American that he had been unable to transfer to a Native-American designated prison unit, that he was initially given an obsolete version of the Native American religious test, and that his second test was not submitted to the chaplaincy department. The court also dismissed his claim that Native American religious practitioners are discriminated against.

In Walker v. Iske, 2012 U.S. Dist. LEXIS 154780  (MD FL, Oct. 29, 2012), a Florida federal district court dismissed, with leave to amend, a Muslim inmate's complaint that he was not furnished with a diet that met the requirements of the Qur'an, even though Jewish prisoners could receive a kosher diet.

In Barstad v. Washington State Department of Corrections, 2012 U.S. Dist. LEXIS 155456 (WD WA, Oct. 30, 2012), an inmate sued claiming that the prison system's policy of consolidating all forms of vegetarian religious diets into one mainline alternative vegan diet violates his rights by requiring him to have a diet more restrictive than the ovo-lacto requirements of his religion. The court rejected the recommendation of the federal magistrate judge (2012 U.S. Dist. LEXIS 155503, Aug. 31, 2012) to dismiss the Department of Corrections and 30 defendants who were served by mail at inaccurate addresses.

In Fuller v. Prelesnik, 2012 U.S. Dist. LEXIS 155765 (WD MI, Oct. 31, 2012), a Michigan federal district court permitted an inmate to proceed against certain defendants on his claim that he was wrongly removed from the kosher food program and that the prison's program did not meet Michigan Department of Corrections kosher meal standards.

In Sledge v. Lundy, 2012 U.S. Dist. LEXIS 156346 (ED CA, Oct. 31, 2012), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that he received cold Halal meals while regulations called for hot meals.

In Keystone v. Hinkle, 2012 U.S. Dist. LEXIS 157042 (WD VA, Oct. 31, 2012), a Virginia federal district court dismissed an inmate's complaint that prison officials refused to use his now-legal name "Keystone" instead of the name under which he was committed, "Keyes." The court held in part that plaintiff had not sufficiently plead that the name change stemmed from religious motivations, and that at any rate the prison regulations have a legitimate penological purpose.

In Watkins v. Rogers, 2012 U.S. Dist. LEXIS 155879 (WD OK, Oct. 31, 2012), an Oklahoma federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 156956, Sept. 28, 2012) and dismissed without prejudice a former inmate's claim that he was denied a total of four religious meals over a two day period at a transfer center, and defendant in this case was involved in only one of those meals.

Court Questions Utah AG On Payment of Trustee Fees In FLDS Case

Attempts by the state of Utah to reform the polygamous FLDS Church's United Effort Plan Trust have been winding their way through state and federal courts for several years. As previously reported, last year State 3rd District Court Judge Denise Lindberg ordered the Utah Attorney General's Office to advance to court-appointed special fiduciary Bruce Wisan the several million dollars in unpaid fees owed to lawyers and Wisan's accounting firm for work relating to the Trust. The order contemplated that the Trust would eventually reimburse the state for the fees. The costs were supposed to have been paid from proceeds of the sale of property and from court-imposed monthly occupancy fees that were assessed on those living on trust property. However most FLDS members have refused to pay the occupancy fees, and litigation challenging the trust reformation has prevented property sales from being completed. AP reports that on Friday, Utah attorney general Mark Shurtleff was put under oath by the court and questioned as to why the state has refused to pay the $5.6 million in fees that have now accumulated.

Shurtleff said his agency does not have the  money unless the legislature appropriates it. The state is concerned that it will never recover the funds if the U.S. 10th Circuit Court of Appeals upholds a federal district court ruling that the state's reformation efforts were unconstitutional. Judge Lindburgh urged the attorney general to use his best efforts to persuade the legislature to appropriate funds. She also said she will order the Utah and Arizona attorneys general to take over some of the legal work for the trust from court-appointed lawyers who are threatening to resign because they have not been paid.

Israeli Water Company Freezes Bank Account of Church of Holy Sepulchre

AP and AFP both report that in Israel, the bank account of the Church of the Holy Sepulchre in Jerusalem has been frozen in a dispute with the Hagihon water company over payment of some $2.1 million in water bills dating back decades.  The Greek Orthodox Church claims that the Church of the Holy Sepulchre-- believed to be by the site of Jesus' crucifixion-- has always been given special treatment and exempted from water fees. It objects to this change in the status quo, and threatens to shut down the church for a day in protest. It says that an agreement had been reached to cancel the past charges and have the various denominations in the church pay their current water charges in the future. But then unexpectedly the bank account was blocked two weeks ago, interfering with the church's paying priests, monks and teachers. [Thanks to Joel Katz (Religion & State In Israel) for the lead.]

In Tentative Decision, California Court Rejects Rocket Lab Employee's Claim He Was Fired Because of Intelligent Design Views

In California, a Los Angeles Superior Court judge has issued a tentative decision in favor of the Jet Propulsion Laboratory in the widely-followed suit against it by former employee David Coppedge. Plaintiff, who was a lead systems administrator in the Jet Propulsion Lab's Saturn project was demoted and eventually laid off.  He claims the actions were taken because he expressed opinions favoring intelligent design and opposing gay marriage.  The NASA rocket lab says he was demoted and fired because he was a problem employee for reasons that had nothing to do with his religious views. According to the Pasadena Sun, the court on Thursday indicated that it has tentatively decided to rule in favor of JPL on all aspects of the case.

No Florida Schools Have Used New Authority For Student-Led Inspirational Messages

As previously reported, last March Florida's legislature, at the urging of school prayer proponents, passed a new law authorizing school districts to adopt policies permitting inspirational messages to be composed and delivered by students at student assemblies. The Fort Lauderdale Sun Sentinel today reports that so far no school board in the state has implemented the new authority.  Immediately after the governor signed the bill, the ACLU and ADL wrote every school board in the state promising to sue if they adopted rules permitting student prayer.  The Florida Association of School Boards advised districts not to move ahead with implementation, since doing so would open them to litigation.

DC Circuit: Non-Liturgical Protestant Chaplains Have Standing To Pursue Discrimination Claim

In In re Navy Chaplaincy, (DC Cir., Nov. 2, 2012), the U.S. Court of Appeals for the D.C. Circuit reversed a district court's dismissal of a lawsuit by several former and current military chaplains who claimed that non-liturgical Protestant chaplains are discriminated against in the promotion recommendations of Chaplain Corps selection boards. Plaintiffs argued that the small size of selection boards, their secret voting on recommendations, and the appointment of the Chief of Chaplains as president of selection boards allow decisions to be made on the basis of religious bias. Reversing the district court, the Court of Appeals held that at least some of the plaintiffs-- those whose promotions will likely be considered in the future under the challenged policies-- have standing to pursue their claim for injunctive relief. The Court went on to reverse and remand the district court's denial of a preliminary injunction, saying that the trial court had not made factual findings to resolve the disputed claims of the parties as to whether past discrimination has been shown.

Lawsuit Challenges Christian Flag In City Veterans' Memorial Park

A federal lawsuit was filed yesterday against King, North Carolina alleging that flying a Christian flag  over a veterans' memorial in a city park violates the Establishment Clause as well as provisions of the North Carolina constitution. Plaintiff, Steven Hewett, is a decorated Army veteran who served in Afghanistan. The complaint (full text) in Hewett v. City of King, (MD NC, filed 11/2/2012), alleges :

2.... the City has exploited the memory of American soldiers for the purpose of promoting Christianity. When the City built a Veterans’ Memorial in the City’s Central Park, it included a Christian flag; no other religions were represented in the Memorial. When Mr. Hewett objected, the City Manager warned that Mr. Hewett would “answer to God and Jesus Christ”; the Mayor stated—at a City Council meeting, no less—that Mr. Hewett “needs us to pray for him.”

3. After its lawyer warned that its conduct was unconstitutional, the City purported to remove the flag; but it immediately established a sham “limited public forum” as a “plan for returning the Christian flag to the Veteran’s Memorial.” True to plan, under the so-called public forum, the very same Christian flag has flown at the Veterans’ Memorial all but a few weeks of every year. 

4. Flying the Christian flag is not the only way that the City promotes Christianity at the Veterans Memorial. Next to the Christian flag, the City built a statue of a soldier kneeling before a cross.... Official, City-sponsored events to commemorate Veterans’ Day, Memorial Day, and September 11 have consistently featured multiple Christian prayers delivered by City officials and invited clergy.

WMFY News reported on the filing of the lawsuit.

Christian College Sues Challenging Contraceptive Coverage Mandate

Add one more lawsuit to the dozens already filed challenging the contraceptive coverage mandate under the Affordable Care Act.  Yesterday, Criswell College in Dallas, Texas filed suit. The complaint (full text) in Crisell College v. Sebelius, (ND TX, filed Nov. 1, 2012), describes Criswell as "a Christ-centered institution of higher learning."  It alleges:

Criswell believes that the procurement, participation in, facilitation of, or payment for abortion (including abortion-causing drugs like Plan B and Ella) violates the Sixth Commandment and is inconsistent with the dignity conferred by God on creatures made in His image as stated in his Word.

The suit alleges RFRA, 1st and 14th Amendment, and Administrative Procedure Act violations. Liberty Institute issued a press release announcing the filing of the lawsuit.

Church Gets Preliminary Injunction Under RLUIPA Against Zoning Ban

In Opulent Life Church v. City of Holly Springs, Mississippi, (ND MS, Nov. 1, 2012), in a case on remand from the 5th Circuit (see prior posting) a Mississippi federal district court granted a TRO and a preliminary injunction against enforcement of a total zoning ban on religious congregations in the area where plaintiff church's property is located. Invoking the "equal terms" provision of RLUIPA, the court, echoing the 5th Circuit, held that the city's justification of the ban as creating a commercial district fails because it permits other non-commercial, non-tax generating uses in the area. The court also concluded that the threatened injury to the church outweighs any harm the city will suffer from the temporary injunction. Liberty Institute issued a press release announcing the decision.

Bishop Issues Pre-Election Letter To Be Read At All Masses In Peoria Diocese

Bishop Daniel R. Jenky, head of the Catholic Diocese of Peoria, Illinois, has issued a letter on religious liberty and the election (full text) which is to be read at all masses on Nov. 3-4, the weekend before election day. The letter reads in part:

Since the foundation of the American Republic and the adoption of the Bill of Rights, I do not think there has ever been a time more threatening to our religious liberty than the present. Neither the president of the United States nor the current majority of the Federal Senate have been willing to even consider the Catholic community’s grave objections to those HHS mandates that would require all Catholic institutions, exempting only our church buildings, to fund abortion, sterilization, and artificial contraception....

Today, Catholic politicians, bureaucrats, and their electoral supporters who callously enable the destruction of innocent human life in the womb also thereby reject Jesus as their Lord. They are objectively guilty of grave sin. For those who hope for salvation, no political loyalty can ever take precedence over loyalty to the Lord Jesus Christ and to his Gospel of Life....

I therefore call upon every practicing Catholic in this Diocese to vote. Be faithful to Christ and to your Catholic Faith. 

The Chicago Tribune yesterday reported on the Bishop's letter.

Preliminary Injunction Granted In Catholic Business Owner's Challenge To Contraceptive Coverage Mandate

In Legatus v. Sebelius, (ED MI, Oct. 31, 2012), a Michigan federal district court issued a preliminary injunction under RFRA barring the government, at least for the time being, from enforcing the contraceptive coverage mandate under the Affordable Care Act against Weingartz Supply Co., a family-owned business, and Daniel Weingartz who serves as the company's president. Weingartz, as a Catholic, has religious objections to his company participating in or providing health insurance that includes contraceptive coverage. (See prior related posting.) Another plaintiff in the lawsuit was Legatus, a non-profit organization devoted to reinforcing the Catholic faith in its members' business, personal and professional lives.  The court concluded that Legatus lacks standing to challenge the mandate because it is covered by the government's temporary non-enforcement safe harbor. However, that safe harbor is unavailable to for-profit businesses, and the court held that the remaining plaintiffs thus had standing:

Weingartz Supply Co. was founded as a family business and remains a closely held family corporation.  Accordingly, the court need not, and does not, decide whether Weingartz Supply Co., as a for-profit business, has an independant [sic.] First Amendment right to free exercise of religion.  For the purposes of the pending motion, however, Weingartz Supply Co. may exercise standing in order to assert the free exercise rights of its president, Daniel Weingartz, being identified as “his company.”

Moving to whether on the merits a preliminary injunction under the Religious Freedom Restoration Act should be granted, the court said:

Plaintiffs have made some showing, but not strongly so, of a likelihood of success on the merits, and the Government has made some showing, but not strongly so, of advancing a “compelling” interest by the “least restrictive means.” ... The harm in delaying the implementation of a statute that may later be deemed constitutional must yield to the risk presented here of substantially infringing the sincere exercise of religious beliefs.  The balance of harms tips strongly in Plaintiffs’ favor.  A preliminary injunction is warranted.

Thomas More Law Center issued a press release announcing the court's decision. Reuters reports on  the decision. [Thanks to Rabbi Michael Simon for the lead.]

UN Special Rapporteur Focuses On Right To Religious Conversion and Freedom From Forced Conversion

According to a UNHR press release, last week United Nations Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, presented to the General Assembly a report prepared in August (full text) that focuses on the right of religious conversion, as well as the right not to be forced to convert. The report says in part:

Countless reports of grave violations  of the right to freedom of religion or belief relate to converts and those who try to convert others by means of non-coercive persuasion. This has become a human rights problem of great concern which occurs in various parts of the world and seems to stem from different motives. For instance, abuses are perpetrated in the name of religious or ideological truth claims, in the interest of promoting national identity or protecting societal homogeneity, or under other pretexts such as maintaining political and national security. While some undue restrictions on the rights of converts or those trying non-coercively to convert others are undertaken by State agencies, other abuses, including acts of violence, stem from widespread societal prejudices. Violations in this sensitive area also include forced conversions  or reconversions, again perpetrated either by the State or by non-State actors....

Is "Vote the Bible" T-Shirt Electioneering By Voter?

Texas Election Code Sec. 85.036 prohibits electioneering within 100 feet of an early polling location.  Apparently based on this section, a poll worker in Williamson County, Texas last week required a voter to put on a jacket to cover the words "Vote the Bible" on her T-shirt before the worker would allow the voter to cast a ballot.  According to a press release and complaint letter yesterday by Texas Values, the poll worker told voter Kay Hill that her shirt might be offensive to some people. The Williamson County Election Administrator later told Hill that the worker probably felt that the phrase meant "vote Republican." Texas Values says it will file a formal complaint with the Texas Secretary of State's Office if county election officials do not issue an apology and inform the public and election workers that "Vote the Bible" T-shirts are permissible. Texas Election Code Sec. 61.003 imposes the same ban on electioneering at polls on election day.