3rd Circuit Upholds School Board's Refusal To Submit Religious Content Issues To Voters

The U.S. 3rd Circuit Court of Appeals has upheld the Camden (NJ) Board of Education's refusal to include three proposed non-binding referendum questions on a special election ballot. In Torres v. Davis, (3d Cir., Dec. 4, 2012), the court rejected free speech, free exercise and equal protection challenges to the refusal by the Board of plaintiff's requests made over a ten-year period to place items on the ballot.  Two of plaintiff's proposals dealt with adding religious content to the public schools' curriculum. In various years, he also urged allowing prisoners to vote in school board elections and a proposal regarding prayer.

Indiana Legislator Wants To Require Science Teachers To Prove Truth of Their Teachings

In Indiana, state senator Dennis Kruse, chairman of the Senate Education and Career Development Committee, says he will try a new approach now that he failed last session to get legislation to allow the teaching of creationism along with evolution in the public schools. According to the Indianapolis Star yesterday, Kruse will introduce what he calls a "truth in education" bill.  As the senator describes the proposal: "If a student thinks something isn't true, then they can question the teacher and the teacher would have to come up with some kind of research to support that what they are teaching is true or not true."

Miami-Dade Commission Re-institutes Opening Prayer

In Florida yesterday, the Miami-Dade County Commission voted 8-3 to re-institute prayer before the opening of the Commission's formal meetings.  The Miami Herald reports that the vote comes after an intensive 18-month lobbying effort by the Christian Family Coalition to bring back prayers instead of the moment of silence that replaced the invocation in 2004. Commissioners will rotate in choosing someone to lead the prayer, or lead it themselves. The invocation must be non-denominational, and will be offered before the roll call of commissioners. During debate on the bill, the commissioners agreed to the rotation format, instead of having the county clerk compile a database of local religious leaders to choose from which would have cost $26,000 to implement. The ACLU said that if the prayers turn out to be sectarian, it will file suit.  However, Anthony Verdugo, executive director of the Christian Family Coalition, said the vote ended "8½ years of discrimination."

Judges Disagree About Constitutionality of California Sexual Orientation Change Efforts Ban

This week, two federal district court judges in the Eastern District of California, in two separate cases, reached opposite conclusions about the constitutionality of  California's new law (effective Jan. 1, 2013) totally banning mental health care providers from engaging in efforts to change the sexual orientation of anyone under under 18 years of age.  In Welch v. Brown, (ED CA, Dec. 3, 2012), Judge William Shubb entered a preliminary injunction barring enforcement of the Sexual Orientation Change Efforts legislation against the three plaintiffs who were challenging it in that case. He concluded that the law is a content-based regulation of speech subject to strict scrutiny:

Especially with plaintiffs in this case, it is ... difficult to conclude that just because SOCE utilizing speech is a type of treatment, that the treatment can be separated from a mental health provider’s viewpoint or message....  Duk is a Catholic and, with patients that share his faith, he discusses tenants of the Catholic faith, including that “homosexuality is not a natural variant of human sexuality, it is changeable, and it is not predominantly determined by genetics.”  ... Similarly, Welch has explained that he shares the views of his church that homosexual behavior is a sin and that SB 1172 will “disallow [his] clients from choosing to execute biblical truths as a foundation for their beliefs about their sexual orientation.”

However, in Pickup v. Brown, (ED CA, Dec. 4, 2012), Judge Kimberly J. Mueller refused to grant a preliminary injunction to prevent the law from taking effect.  She wrote in part:

Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct.... As SOCE therapy is subject to the state’s legitimate control over the professions,SB 1172's restrictions on therapy do not implicate fundamental rights and are not properly evaluated under strict scrutiny review, but rather under the rational basis test.

Liberty Counsel announced that it will file an appeal in the case.

Church-State Concerns Keeping Sandy-Damages Houses of Worship From Receiving FEMA Aid

The Forward reported this week that church-state concerns mean that synagogues in New York which were damaged by Hurricane Sandy are at this time seen as ineligible for FEMA assistance.  Other non-profits, including homeless shelters and soup kitchens sponsored by religious institutions, are eligible if they apply by Dec. 30. However the government is encouraging synagogues and other houses of worship to apply to FEMA and the Small Business Administration by Dec. 30 so they will have applications on file if ultimately it is decided that houses or worship do qualify for assistance.

Interview With Convicted Amish Beard-Cutting Attacker Published

The Daily yesterday published a long interview with Bergholz Amish sect leader Sam Mullet who was convicted in September on hate crime charges stemming from beard-cutting attacks on a rival Amish group. (See prior posting.) Mullet is in prison awaiting a January sentencing hearing. The interview, conducted at the Northern Ohio Correctional Center, is wide ranging. Summarizing the interview, The Daily said:

Over the course of several hours, [Mullet] described the challenges of adjusting to prison, his perspective on the beard-cutting attacks and life inside the breakaway Amish sect where he was accused of sexually preying on women and tormenting men with harsh punishments.

On the matter of the beard cuttings, Mullet told The Daily that he was wrongly convicted — that a group of his followers, including several of his children, hatched the scheme on their own.

Israeli Civil Court Asserts Jurisdiction Over Same-Sex Couple's Divorce

Jerusalem Post reported yesterday that a Tel Aviv Family Court has broken new legal ground by granting a divorce to a same-sex couple who had married in Canada but lived in Israel. In an earlier case, Israel's Supreme Court had ordered registration of these same-sex marriages. Normally under Israeli law, only religious courts have jurisdiction over divorces. However the rabbinical courts, which do not recognize same-sex marriage, had, at least so far, failed to rule in the case. The Tel Aviv court said that it would violate the couple's fundamental rights and liberties to prevent them from dissolving a marriage that the state had recognized.  The civil court held that it could exercise jurisdiction over divorces when the rabbinical courts failed to do so.

Turkey Fines TV Station For Insulting Religious Beliefs Through Broadcast of Simpsons Episode

In Turkey, the Supreme Board of Radio and Television (RTUK), the national broadcasting regulator, has fined Turkish broadcaster CNBC-E the equivalent of $30,000 (US) for broadcasting an episode of The Simpsons found to be insulting to religious beliefs. Today's London Telegraph reports that the offending episode is the Halloween special "Treehouse of Horrors XXII." Among other things, the episode shows the Devil serving coffee to God; God and the Devil appearing in human bodies; and the burning of the Bible.

Appeals Court Removes Court Martial Judge For Bias In Ft. Hood Shooter Case

As reported by the Washington Post yesterday, accused Fort Hood shooter Maj. Nidal Hasan won a significant victory yesterday in his ongoing battle with a military judge who refuses to allow him to wear a beard during his murder trial. Hasan has asserted the refusal violates his rights to the free exercise of religion. (See prior related posting.)  In Hasan v. Gross, (Armed Forc. Ct. App., Dec. 3, 2012), the U.S. Court of Appeals for the Armed Forces in a per curiam opinion not only held that there was insufficient evidence to show that Hasan's beard materially interfered with the court martial proceedings, but also held that court martial judge Gregory Gross should be removed from the case because of the appearance of bias.  The court said in part:

the decision to remove Appellant from the courtroom, the contempt citations, and the decision to order Appellant’s forcible shaving in the absence of any command action to do the same, could lead an objective observer to conclude that the military judge was not impartial towards Appellant.... [I]t could reasonably appear to an objective observer that the military judge had allowed the proceedings to become a duel of wills between himself and Appellant rather than an adjudication of the serious offenses with which Appellant is charged. Moreover, we are cognizant that the military judge and his family were present at Fort Hood on the day of the shootings.

The court also vacated Hasan's contempt convictions and the judge's order to forcibly shave him. It said: "We need not and do not decide if and how RFRA might apply to Appellant’s beard.  Should the next military judge find it necessary to address Appellant’s beard, such issues should be addressed and litigated
anew."

Chaplain Sues Church-State Activist For Defamation, Abuse of Process

Earlier this year, a Texas state trial court dismissed a suit brought by Mikey Weinstein, founder of the Military Religious Freedom Foundation (MRFF), against former Navy chaplain Gordon Klingenschmitt, contending that Klingenschmitt was conspiring to encourage violence against him through use of "imprecatory prayers." The court concluded that Weinstein had shown no connection between the prayers and the threats and vandalism suffered by his family. (See prior posting.) Last week, Klingenschmitt reciprocated, filing suit against Weinstein and MRFF in state court in New Mexico claiming defamation and malicious abuse of process. The complaint (full text) in Klingenschmitt v. Weinstein, (NM Dist. Ct.), alleges in part:

The factual assertion or implication that Klingenschmitt’s 2009 prayers somehow incited or caused unidentified others to commit acts of vandalism including “a swastika emblazoned on their home in New Mexico, animal carcasses left on their doorstep and feces thrown at the house,” is demonstrably false in that both Mikey and Bonnie Weinstein have admitted these acts of vandalism occurred in 2006, 2007 or 2008, and therefore could not have been caused by Klingenschmitt’s 2009 prayers....

Upon information and belief, the primary motive for Weinstein and Bonnie L. Weinstein to file the lawsuit against Klingenschmitt was an illegitimate end, specifically to cause Klingenschmitt or his interests financial difficulties, to prevent Klingenschmitt from promoting his philosophy or his religious beliefs, to marginalize Klingenschmitt’s influence, goals, and impact, and to subject Klingenschmitt to the expense, delay, and distraction of protracted litigation.

In a Dec. 2 press release, Klingenschmitt announced that Weinstein had been served in the lawsuit. God and Country blog reports on the lawsuit.

French Lawyer Fined, Faces Discipline, For Alleging Judicial Religious Bias Based On Jewish Name

Digital Journal reports that in Lyon, France last week, the Lyon Bar referred lawyer Alexis Dubruel for disciplinary proceedings after Dubruel sought disqualification of a judge because of the judge's Jewish name.  Dubruel, representing a grandmother seeking to obtain visitation rights to see her granddaughter, argued that Judge Albert Levy should be disqualified for lack of impartiality. According to Dubrel:

The presiding judge whose disqualification is sought has the surname "Levy". The "Papa" of the person in this case Miss X (...) had been prosecuted for the offence of taking away a minor under 18, is named Moses (Moïse). The first page of reference for the word "Lévy" on Wikipedia says that the word is, “according to tradition, the founder of the Jewish religion, Judaism, which is sometimes called, for this reason, Mosaic, that is to say, the religion of Moses. The materiality of these findings is incontestable.

The court denied Dubrel's motion and fined him 750 Euros. According to The Algemeiner, in an earlier hearing a client of Dubruel's felt she was unfairly treated and attributed it to Levy's bias in favor of a Jewish defendant. Judge Levy has previously been the subject of anti-Semitic attacks, including threats when he investigated the far-right Front National Party and his being placed under police protection when an Islamist group threatened him.

Appeals Court Says Amish Must Abide By Consent Judgment On Sewers

In Wagler v. West Boggs Sewer District, Inc., (IN App., Nov. 29, 2012), an Indiana appeals court refused to set aside consent judgments entered into by several members of an Old Order Amish community under which they are to connect to the public sewer system and install a grinder pump despite their religious beliefs that preclude using electricity from the public grid and being on a public utility sewer.

Recent Articles and Book of Interest

From SSRN (U.S. Law):

• Justin B. Richland, Hopi Tradition as Jurisdiction: On the Potentializing Limits of Tribal Sovereignty, (Law and Social Inquiry, Vol. 36, No. 1, 201-234, Winter 2011).
• Dominic Draye, Baptizing the Fourteenth Amendment: Equal Protection and Religion, (August 30, 2011).
• Nicholas P. Cafardi, Saving the Preachers: The Tax Code's Prohibition on Church Electioneering, (Duquesne University Law Review, Vol. 50, p. 503, 2012).
• Robert A. Kahn, Karl Loewenstein, Robert Post and the Ongoing Conversation between Europe and America Over Hate Speech Laws, (U of St. Thomas Legal Studies Research Paper No. 12-38, 2012).
• Eric Lane, On Madison, Muslims, and the New York City Police Department, (Hofstra Law Review, Vol. 40, No. 3, 2012).
• Courtney G. Joslin, Marriage, Biology, and Federal Benefits, (Iowa Law Review, Forthcoming).
• Linda Sugin, The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures, (November 30, 2012).

From SSRN (Non-U.S. Legal Systems):

• Omar Salah, Legal Infrastructure of Sukuk Structures – Part 1, (TISCO Working Paper Series on Banking, Finance and Services No. 04/2012).
• Javaid Rehman and Eleni Polymenopoulou, Is Green a Part of the Rainbow? Sharia, Homosexuality and LGBT Rights in the Muslim World, (October 10, 2012).
• Juan Carlos Riofrio Martinez Villalba, El Derecho al Nombre de las Confesiones Religiosas (The Right to Religious Confession Name), (La Propiedad Inmaterial, No. 16, p. 77, 2012).
• Patrick McKinley Brennan, Subsidiarity in the Tradition of Catholic Social Doctrine, (Subsidiarity in Comparative Perspective, Michelle Evans and Augusto Zimmermann, eds., Springer, Forthcoming).
• Alan Greene, Natural Law and the Basic Norm of the Irish Constitution, ((2012) 30 (19) Irish Law Times 298-300).
• Shafi'i Abdul Azeez Bello, The Scope and Application of Wa' Ad, Muwa'Adah and Wa'Dan in Islamic Finance, (November 20, 2012).
• Renae Barker, The Full Face Covering Debate: An Australian Perspective, (University of Western Australia Law Review, Vol. 36, No. 1, 2012).

From SmartCILP and elsewhere:

• Religious Freedom in a Pluralistic Age: Trends, Challenges, and Practices. Articles by Zaki Azmi, Jorge Adame Goddard, Jose Ferrer Sanchez, Syamsul Arifin, Gennadiy Druzenko, Brian J. Grim, Gregor Puppinck and Renata Uitz. 2012 Brigham Young University Law Review 689-967.
• Steven J. Heyman, To Drink the Cup of Fury: Funeral Picketing, Public Discourse and the First Amendment,  45 Connecticut Law Review 101 (2012).

New Book:

• Brian Leiter, Why Tolerate Religion?, (Oct. 28, 2012).

Federal Court Upholds Nevada's Ban On Same-Sex Marriage

In Sevcik v. Sandoval, (D NV, Nov. 26, 2012), a Nevada federal district court upheld against an Equal Protection Clause challenge the constitutionality of Nevada's ban on same-sex marriages. Nevada does recognize same-sex and opposite-sex domestic partnerships, with the parties having most, but not all, of the same rights and responsibilities as do spouses in a marriage. The court concluded that it need apply only rational basis scrutiny to Nevada's state constitutional provisions limiting marriage to heterosexual couples:

Here, there is no indication of any intent to maintain any notion of male or female superiority, but rather, at most, of heterosexual superiority or “heteronormativity” by relegating (mainly) homosexual legal unions to a lesser status....

The States are currently in the midst of an intense democratic debate about the novel concept of same-sex marriage, and homosexuals have meaningful political power to protect their interests. At the state level, homosexuals recently prevailed during the 2012 general elections on same-sex marriage ballot measures in the States of Maine, Maryland, and Washington, and they prevailed against a fourth ballot measure that would have prohibited same sex marriage under the Minnesota Constitution. It simply cannot be seriously maintained, in light of these and other recent democratic victories, that homosexuals do not have the ability to protect themselves from discrimination through democratic processes such that extraordinary protection from majoritarian processes is appropriate.

Applying rational basis scrutiny, the court concluded that "the protection of the traditional institution of marriage, which is a conceivable basis for the distinction drawn in this case, is a legitimate state interest."   The court also held that protection of Nevada's public policy is a valid reason for it to refuse to recognize same-sex marriages performed in other states.  AP reporting on the decision says that plaintiffs plan an appeal.

State Court Says Louisiana Voucher Program Violates State Constitution

In Louisiana Federation of Teachers v. State of Louisiana, (LA 19th Dist. Ct., Nov. 30, 2012), a Louisiana trial court held that the state's voucher program unconstitutionally diverts to nonpublic schools or entities funds which the state constitution's Minimum Foundation Program allocates to elementary and secondary public schools. The court said that its decision, however, does not foreclose "establishing educational programs that are funded outside the constitutional limitations of the Minimum Foundation Program...." Ponchartrain Newspapers reports more extensively on the testimony in the case, the decision and the reaction to it.

Raelians Ask UN Human Rights Council To Investigate Switzerland's Actions Against Them

Last week, the International Raelian Movement filed a Petition (full text) with the United Nations Human Rights Council asking it to investigate Raelian charges that Switzerland, conspiring with the Vatican, has misused the European Court of Human Rights to defame the Raelian movement.  The petition reads in part:

The honor and reputation of the entire leadership of a recognized worldwide religious movement has been intentionally defamed based on a manipulation of the facts by Judge Bratza of the European Court of Human Rights in a case involving Switzerland’s refusal to permit the inoffensive poster above to be displayed in public. Underlying this betrayal of justice by Judge Bratza was a conspiracy by Switzerland and the Vatican to bizarrely label the Raelian Movement leadership as pedophiles in retaliation for its stand against clerical pedophilia worldwide and in particular in francophone countries.

The European Court decision about which the Raelians complain is attached as an appendix to their petition. The Raelian Movement also issued a press release announcing the filing of their petition.

Recent Prisoner Free Exercise Cases

In Finney v. Marshall, 2012 U.S. Dist. LEXIS 167765 (ED TX, Nov. 27, 2012), a Texas federal magistrate judge dismissed as frivolous a complaint by a Mormon inmate that he was not allowed to take Sundays off from his job in the prison kitchen.

In Allen v. Hense, 2012 U.S. Dist. LEXIS 168217 (ED CA, Nov. 26, 2012), a California federal magistrate judge dismissed a Muslim inmate's complaint that on one day during his Administrative Segregation Unit confinement he was served the regular breakfast and sack lunch instead of his religious vegetarian meal.

In Heggem v. Holmes, 2012 U.S. Dist. LEXIS 168935 (WD WA, Nov. 27, 2012), a Washington federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 168936, Oct. 4, 2012) and dismissed an inmate's claims that the revocation of her alternative drug offender sentence involved retaliation because of her religious beliefs. Prior litigation had already rejected the same contentions.

In Lapine v. Vilgos, 2012 U.S. Dist. LEXIS 170011 (WD MI, Nov. 27, 2012), a Michigan federal district court rejected free exercise retaliation and equal protection claims by a Native American inmate who had a disciplinary misconduct charge for threatening behavior filed against him after he disrupted religious services because he was upset over new limits on the smudging ceremony.

In Goodson v. Clark, 2012 U.S. Dist. LEXIS 169906 (WD VA, Nov. 29, 2012), a Virginia federal district court dismissed an inmate's complaint that defendants told him that Satanism is not a religion recognized by the Department of Corrections and refused to allow him to order a Goat Head Star Amulet.

In Wall v. Wade, 2012 U.S. Dist. LEXIS 170537 (WD VA, Nov. 30, 2012), a Virginia federal district court dismissed an inmate's complaint that his rights were violated when he (along with 183 others) was removed from the Ramadan participation list for not having Islamic materials to demonstrate his religious sincerity.

In Cloyd v. Dulin, 2012 U.S. Dist. LEXIS 170100 (MD TN, Nov. 30, 2012), a Tennessee federal district court rejected a Muslim inmate's complaint that the prison's halal diet did not include real meat.

In Galdones v. Department of Public Safety, 2012 U.S. Dist. LEXIS 169824 (D HI, Nov. 29, 2012), an Hawaii federal district court dismissed without prejudice various claims by an inmate of interference with his practice of his Native Hawaiian religion and related retaliation and due process claims.

In Goodman v. Ramey, 2012 U.S. Dist. LEXIS 169264 (SD WV, Nov. 29, 2012), a West Virginia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 170527, May 17, 2012) and rejected an inmate's claim that his free exercise rights were violated when was disciplined for accepting a money order from the parents of another inmate who sent the money to thank him for being a "Christian brother" to their son.

Court Upholds Indiana's Marriage Solemnization Statute Over Objections of Secular Celebrant

In Center for Inquiry v. Clerk, Marion Circuit Court, (SD IN, Nov. 30, 2012), an Indiana federal district court rejected constitutional challenges to Indiana's marriage solemnization statute (IN Code 31-11-6-1).  Under the statute, clergy can obtain a license to solemnize marriages, but those certified as "Secular Celebrants" by the non-religious Center for Inquiry cannot.  The court said in part:

We conclude that the Solemnization Statute is rationally related to the legitimate purpose of alleviating significant governmental interference with pre-existing religious beliefs about marriage. Additionally, the statute bears a  rational relation to the equally reasonable purpose of allowing the government to assume responsibility for the marriage regulation function without ostracizing its religious constituents. For these and all of the reasons explicated above, we find that Plaintiffs' First Amendment claim-whether grounded in Free Exercise Clause or Establishment Clause jurisprudence-does not succeed on the merits.

The court likewise rejected plaintiffs' equal protection claim. In reaching its conclusions, the court pointed out:

there are several readily available avenues by which a Secular Celebrant may facilitate a marriage ceremony in Indiana: she may (1) preside at a wedding and then instruct the couple to go before one of the individuals listed in the Solemnization Statute to have the marriage solemnized; (2) become a member of the "clergy" by seeking immediate Internet ordination from the Universal Life Church; or (3) seek certification to solemnize marriages from the Humanist Society.

Federal Court Refuses To Order Trailer of "Innocence of Muslims" Taken Down From YouTube

As reported by AP, a federal court in Los Angeles on Friday refused to grant a preliminary injunction to actress Cindy Lee Garcia who appears in the controversial film "Innocence of Muslims" and wants the trailer for the film removed from YouTube.  Garcia claims she was deceived about the film's subject matter and that her voice was dubbed over after filming. Her federal lawsuit alleges copyright infringement.  In Garcia v. Nakoula, (CD CA, Nov. 30, 2012), the court held that even if Garcia owns a copyright in her performance in the film, she necessarily "granted the Film’s author a license to distribute her performance as a contribution incorporated into the indivisible whole of the Film."

Oregon High Court Rules That Parent Church Owns Property of Breakaway Presbyterian Congregation

In Hope Presbyterian Church or Rogue River v. Presbyterian Church (U.S.A.), (OR Sup. Ct., Nov. 29, 2012), the Oregon Supreme Court held that the property of a break-away Presbyterian congregation belongs to PCUSA, the national church body.  The court concluded that it would use the "neutral principles" approach in determining the rights of the parties. Applying that approach, the court found that "Hope Presbyterian held its property in trust for the benefit of PCUSA."