Same-Sex Marriage Proponents Win 4 Out of 4 Yesterday

In four states yesterday, voters approved of same-sex marriage.  In Washington state (official results), voters passed Referendum Measure 74 by a vote of 51.79% for approval, and 41.21% for rejection. The referendum approved the same-sex marriage law that the legislature passed earlier this year. Seattle Times reports on the measure.

In a Maryland referendum, voters approved (official results) the Civil Marriage Protection Act that had been enacted earlier this year by the state legislature. The vote on the referendum, Question 06, was 51.9% for the law, and 48.1% against the law. Washington Post reports on the vote.

In Maine, with 75% of the precincts reporting, it appears that voters have approved Question 1, authorizing the issuance of marriage licenses to same-sex couples. The vote so far is 53% in favor and 47% opposed. (Results). Boston Globe reports on the vote.

In Minnesota (official results), voters defeated a state constitutional amendment that would have provided that only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota. With almost 99% of the precincts reporting, only 47.65% voted in favor of the amendment. Duluth News Tribune reports on the vote.

Florida Voters Defeat Religious Freedom Amendment; Anti-Abortion Amendment

Florida voters yesterday (official results) defeated Amendment 8, the proposed Religious Freedom Amendment, that would have repealed the state's Blaine Amendment-- the state constitution's ban on public funds going to religious institutions. It would have cleared the way for religious institutions to participate on an equal footing with secular ones in government programs and funding, to the extent permitted by federal law. The vote on Amendment 8 was 44.47% for approval; 55.53% for rejection. A 60% affirmative vote was needed for passage.

Voters also defeated Amendment 6 which, with some exceptions, would have barred the use of public funds to pay for abortions or for insurance coverage for abortions. The vote was 44.95% for approval; 55.05% for rejection. A 60% affirmative vote was required for passage.  The Tampa Bay Times reports on the results.

10th Circuit Vacates Injunction Against Utah's Reformation of FLDS Trust

In Fundamentalist Church of Jesus Christ of Latter Day Saints v. Horne, (10th Cir., Nov. 5, 2012), the 10th Circuit Court of Appeals rejected on procedural grounds a constitutional challenge by the polygamous FLDS Church to Utah's reformation of the FLDS United Effort Plan Trust. Last year, a federal district court issued a preliminary injunction, finding that the state had impermissibly entangled itself with religion in reforming and managing a religious trust.  The 10th Circuit, ordering the injunction vacated, concluded that FLDS should be precluded from bringing the constitutional challenge. Federal courts should give full faith and credit to the Utah Supreme Court's decision that under the doctrine of laches the FLDS waited too long to challenge the state court proceedings. Reporting on the decision, KSL-TV says: "The ruling breaks a legal logjam surrounding $100 million worth of property Warren Jeffs, former leader of The Fundamentalist Church of Jesus Christ of Latter-Day Saints, once controlled."

Group Charges Catholic Bishops Conference Engaged In Prohibited Political Activity

Last week, Citizens for Responsibility and Ethics in Washington announced that it has filed a complaint asking the Internal Revenue Service to investigate whether the U.S. Conference of Catholic Bishops and its members have engaged in partisan political activity in violation of the Internal Revenue Code provisions regulating activities of non-profit organizations.  Their letter to the IRS (full text) says that:

According to press reports, a number of Catholic Bishops "are making forceful last-minute appeals to vote on election day" and at the same time, assailing the policies of the Obama administration as anti-Catholic.

Bankruptcy Court Settlement of Dispute Over Sikh Assets Approved

A federal bankruptcy court in Oregon yesterday approved a settlement agreement in a dispute over assets of a Sikh religious community.  According to the Eugene (OR) Register-Guard:

The feuding religious leaders and business leaders of the Sikh community founded by the late Yogi Bhajan agreed to drop their legal claims against each other. They will move on with an orderly give-and-take of payments and a transition to new leadership for the community’s for-profit companies, including East West Tea Company LLC.... Under the settlement agreement, former Eugene resident and prominent local businessman Kartar Singh Khalsa, will resign from the Unto Infinity management board that controlled the Sikh community’s for-profit companies and religious and educational charities.

Churches' Challenge To Hawaii Civil Union Law Dismissed

In Emmanuel Temple, The House of Praise v. Abercrombie, 2012 U.S. Dist. LEXIS 157950 (D HI, Oct. 2, 2012), a Hawaii federal district court dismissed a constitutional challenge to Hawaii's Civil Unions Law. Plaintiffs complained that the Act chills their free exercise of religion because it does not exempt churches from Hawaii's anti-discrimination laws. However the suit was filed before a 2012 amendment to the law that provides no religious organization shall be required to make their religious facility available for solemnizing civil unions if the facilities are currently limited to use for marriages only by members. The court held that the complaint as filed is moot because of the amendment to the law.  It also held that plaintiffs should not be allowed to amend their complaint to challenge the conditions on the exemption imposed by the 2012 amendment. According to the court, plaintiffs have not shown that they have standing or that the action is ripe for adjudication:

any threat of enforcement and imposition of fines by government officials ... for violating the Civil Unions Law is highly speculative. No one has asked Plaintiffs to use their facilities for a civil union. No one has inquired about such use in the days following Act 1's effective date. And, the record contains no indication that, in the nine months since its implementation, any couple has sought to use Plaintiffs' facilities in relation to solemnizing a civil union. Plaintiffs cannot say when and under what circumstances such a request might be made, if ever.

More Catholic Businessmen Sue Challenging ACA Contraceptive Coverage Mandate

Last week, one more lawsuit challenging the contraceptive coverage mandate under the Affordable Care Act was filed-- this time in federal district court in Minnesota.  The complaint (full text) in Annex Medical, Inc. v. Sebelius, (D MN, filed 11/2/2012), alleges that the individual plaintiffs are two devout Catholic businessmen, one of whom owns co-plaintiff Annex Medical, and the other of whom plans to buy a business in 2013. The plaintiffs:

believe that paying for a group health insurance plan that complies with Defendants’ Mandate is sinful and immoral because it requires them and/or the businesses they control to pay for contraception, sterilization, abortifacient drugs and related education and counseling in violation of their sincere and deeply-held religious beliefs and the teachings of the Catholic Church.

The complaint lists a number of business decisions made by plaintiffs in the past based on their religious values, including a decision by one of the plaintiffs last June to accept a below-market value offer for his former business, in part to avoid having to conform its group health plan to the mandate. The law firm representing plaintiffs issued a press release announcing the filing of the lawsuit.

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.