Supreme Court Will Review 2 Same-Sex Marriage Cases

The U.S. Supreme Court today granted certiorari in two same-sex marriage cases. (Order List.) The first of the cases is Hollingsworth v. Perry, (Docket No. 12-144, cert. granted 12/7/2012).  In the case, decided by the 9th Circuit under the caption Perry v. Brown, the appeals court in a 2-1 decision struck down California's Proposition 8 that eliminated the right-- previously created by the California Supreme Court's interpretation of the state constitution-- for same-sex couples to marry. Judge Reinhardt, in an opinion joined by Judge Hawkins, held that even though California may not have had the obligation to grant same-sex couples the right to marry, once it did, it could not take that right away without some legitimate reason for doing so. Here there was no legitimate reason. (See prior posting.) En banc review was denied, but in a decision generating dissenting and responding opinions. (See prior posting.) The certiorari petition (full text), however frames the issue more broadly:

Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

Scotus blog has links to the 9th Circuit opinion and all the filings with the Supreme Court in the case.

The second case in which the Supreme Court granted review is United States v. Windsor, (Docket No. 12-307, cert. granted 12.7/2012).  In the case, the 2nd Circuit in a 2-1 decision held that Section 3 of the Defense of Marriage Act is unconstitutional under the equal protection component of the 5th Amendment. In a suit by the surviving spouse of a lesbian couple who was denied the spousal deduction under the federal estate tax law, the majority held that it must apply heightened (intermediate level) scrutiny because homosexuals are a quasi-suspect classification. (See prior posting.) The petition for certiorari (full text)-- which was filed before the 2nd Circuit came down with its decision-- defines the question presented as:

Does Section 3 of the Defense of Marriage Act,  1 U.S.C. § 7, which defines the term “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,”  deprive same-sex couples  who are lawfully married under the laws of their states (such as New York) of the equal protection of the laws, as guaranteed by the Fifth Amendment to the Constitution of the United States?

Scotus blog has links to the 2nd Circuit opinion and all the filings with the Supreme Court in the case.

Press coverage of the Supreme Court's action today included the New York Times, Yahoo! News, and Wall Street Journal.

UPDATE: See follow-up post- "More On Yesterday's Same-Sex Marriage Cases Cert. Grant- Standing".

Santa Monica Park Rules Change Impacts Hanukkah As Well As Christmas Displays

A good deal of attention has been given by the media to the change in rules adopted in Santa Monica, California, ending the traditional Christmas story dioramas in Palisades Park during the holiday season.  The new city ordinance, upheld by the courts, excludes unattended displays and has led a coalition of Christian groups plans to hold a Live Nativity Display instead. (See prior posting.) Less noticed has been the impact of the rule change on other displays.  Yesterday's Los Angeles Jewish Journal reports that it also impacts the two 12-foot-tall, propane-fueled menorahs normally set up in the park by the Chabad of Santa Monica during Hanukkah.  This year instead the menorahs will lit, and then moved away each night on pick-up trucks. The change also impacts the separate menorah lighting that has been held for the past 5 years on the Promenade sponsored by Downtown Santa Monica, Inc. They will now move their 10-foot tall menorah onto the Promenade on dollies each time it is to be lit, and then take it away.

New Trial Motion By Defendants Convicted In Amish Beard-Cutting Case Is Denied

In United States v. Mullet, (ND OH, Dec. 6, 2012), an Ohio federal district court denied a motion for a new trial by Bergholz Amish leader Samuel Mullet, Sr. and his co-defendants who were convicted in September of conspiring to violated the federal Hate Crimes Prevention Act in connection with beard- and hair-cutting attacks against a rival Amish group. (See prior posting.) The court rejected Mullet's argument that there was insufficient evidence to link him to the attacks, saying:

While it is true Defendant did not physically participate in any of the attacks, there was extensive evidence showing he was a member of the conspiracy the object of which was to commit them.... Defendant, as Bishop of Bergholz, ran his community with an iron fist—nothing of significance happened without his knowledge and approval.  Even if the Government proved nothing more than that Samuel Mullet, Sr., was told about the attacks in advance by his followers and then said or did nothing to stop or prevent them, or even voice his disapproval, a jury could conclude that he had joined the conspiracy.... 

The court also rejected Mullet's argument regarding newly discovered evidence and his objections to evidence presented at trial of an AP article, and of his sexual relationship with one of his daughters-in-law.  AP reports on the decision.

First Family Lights National Christmas Tree

USA Today reports that last night, President Obama, along with First Lady Michelle Obama and their daughters, lit the White House National Christmas Tree on the Ellipse. In his comments at the ceremony, Obama focused on families in the Northeast who were displaced by Hurricane Sandy. After pushing the button to light the tree, the First Family left the stage and sat in the audience to watch entertainment by Jason Mraz, Ledisi, James Taylor, Kenny "Babyface" Edmonds, Colbie Caillat and American Idol winner Phillip Phillips.

UPDATE: The full text of the President's remarks at the National Christmas Tree Lighting are now available from the White House.

Judge Charged With Improper Sale of Religious Material In Courthouse

The Florida Judicial Qualifications Commission on Wednesday filed a Notice of Formal Charges (full text) against Leon County Judge Judith Hawkins for using her judicial position to sell religious books and materials through her for-profit business, Gaza Road Ministries. Photos on her business' website show her in her judicial robes. The formal charges in part also allege:

you have sold or attempted to sell your books, study guides, and other publications in the Leon County courthouse, in the parking garage of the courthouse, in your Chambers, and even in the Courtroom in which you preside. The purchasers of your books and other publications include attorneys who regularly appear before you and court staff.  There is a disparity in authority between your position and those to whom you have sold within the courthouse.

You use your Leon County email account, your Judicial Assistant, and your office spaces and equipment within the Leon County Courthouse to create, edit and promote the products you have for sale through Gaza Road Ministries....

Your involvement with Gaza Road Ministries has caused you to devote less than your full time and full attention to your judicial duties....

AP reports on filing of the charges.

Additional Hate Crime Reporting Categories May Be Added To FBI Form

Sikh News Network reported Wednesday on efforts being made to add three additional sub-categories to the FBI's "Hate Crime Incident Report" data collection form to track anti-Sikh, anti-Hindu and anti-Arab/ anti-Middle Eastern hate crimes. Sikh advocacy groups have particularly been pressing for the changes as attacks on Sikhs have multiplied. On Oct. 18, civil rights and community relations agencies presented a recommendation to the Uniform Crime Reporting Subcommittee of the FBI Advisory Policy Board that these changes be made. The recommendation (with additional input from interested parties) will be considered by the full Advisory Policy Board at its meeting in Spring 2013 and will likely be approved by the FBI director in June 2013. The FBI will then need to revise the form, obtain approval of the revisions from the Office of Management and Budget, and modify systems to enable the data collection. If all of this goes as planned, it is likely that data collection using the revised categories would begin in 2015.

Street Preachers Keep Access To Holiday Festival For 2012

In December 2011, a Minnesota federal district court granted a preliminary injunction to prevent Duluth police officers from interfering with activities of two street preachers at the Bentleyville Tour of Lights.  The Tour is a holiday festival held each year on city property, Bayfront Festival Park, and is sponsored by a private non-profit group. (See prior posting.)  This year the city of Duluth negotiated a new contract with the sponsor of the Tour, under which the sponsor is granted exclusive use of the Park for the event. The city argued that this moots the 2011 preliminary injunction and permits the sponsor to exclude the street preachers.  In Jankowski v. City of Duluth, (D MN, Dec. 5, 2012), the court disagreed, refusing to vacate the original preliminary injunction saying:

... the City cannot change a traditional public forum by its own ipse dixit.... Because the Park is a traditional public forum, and because this year’s BTL event is free and open to the public despite the fact that the 2012 Agreement grants BTLI “exclusive use” of the Park, the Court finds that the Park has retained its public character during the 2012 BTL event.... [G]ranting exclusive use of the Park to BTLI has no impact on Plaintiffs’ First Amendment rights.

However, the court refused to hold defendants in contempt because of ambiguity in the language of the original preliminary injunction, instead issuing a new modified injunction to cover future Festivals. Alliance Defending Freedom issued a press release announcing the court's decision. Duluth News Tribune reports on the decision.

Ousted Deacons and Their Supporters, Seeking To Attend Church, Sue Pastor

Saginaw News yesterday reported on a lawsuit filed in state court in Saginaw County, Michigan by 5 former deacons and two other members of the Zion Missionary Baptist Church who support them.  Plaintiffs complain that the church's pastor, Rodrick Smith, invoking state trespass laws, falsely told police he had fear that they would disrupt services.  Smith got police to threaten plaintiffs with arrest if they continued to attend church services. In the case of one member, police did arrest him for trespass, but never filed formal charges. Plaintiffs include a former Saginaw mayor and two Saginaw County commissioners. They have not attended services since, but have carried protest signs in front of the church on Sunday mornings.  The recently-filed complaint (full text) in Robinson v. Smith, (MI Cir. Ct., filed 11/29/2012), recounts Smith's attempt to remove 5 of the plaintiffs as deacons, and asks for a declaratory judgment that plaintiffs may attend church so long as they do not disrupt services.  It alleges that "Smith injected the secular police powers of the state into the internal affairs" of the church by means of wrongful use of the criminal trespass law, in violation of their 1st Amendment rights. The complaint also seeks damages for malicious prosecution. A suit against the church itself was dismissed by the court in October. That suit, similarly complaining about actions against plaintiffs, had sought return of nearly $130,000 in tithes the plaintiffs had given the church over the past 6 years.

Supreme Court Asked To Bypass 9th Circuit To Review Nevada Same-Sex Marriage Case

On Wednesday, the Coalition for the Protection of Marriage filed a petition for certiorari with the United States Supreme Court asking it to take the unusual step of reviewing the district court decision in Sevcik v. Sandoval before the case is briefed, argued or decided by the 9th Circuit. (Full text of certiorari petition.)  In the case, a Nevada federal district court upheld Nevada's ban on same-sex marriages, rejecting an Equal Protection Clause challenge to the law. (See prior posting.) The certiorari petition essentially argues that this is a better case for the Supreme Court to use in deciding basic constitutional issues on same-sex marriage than are the other cases which the Court is currently considering for possible review. Dale Carpenter at Volokh Conspiracy discusses the Cert. petition and predicts the court will not grant review in the case.

Report On Enhancing Accountability of Religious Organizations Released

The Commission on Accountability and Policy for Religious Organizations this week issued its first report to Sen. Charles Grassley. The Commission was set up by the Evangelical Council for Financial Responsibility after the Senate Finance Committee in 2011 released a staff review of the activities of media-based ministries. (See prior posting.)  This week's 94-page report titled Enhancing Accountability for the Religious and Broader Nonprofit Sector, sets out numerous recommendations on compensation, accountability and IRS practices. The Chronicle of Philanthropy yesterday summarized some of the recommendations, saying that the report rejects federal efforts to impose new laws or regulations on religious organizations.

West Point Cadet Resigns Over School's Promotion of Religion

In a Huffington Post essay on Monday, West Point cadet Blake Page announced that he is resigning from West Point 5 months short of graduation in protest of the school's promotion of religion. He wrote in part:

... [C]ountless officers here and throughout the military are guilty of blatantly violating the oaths they swore to defend the Constitution. These men and women are criminals, complicit in light of day defiance of the Uniform Code of Military Justice through unconstitutional proselytism, discrimination against the non-religious and establishing formal policies to reward, encourage and even at times require sectarian religious participation. These transgressions are nearly always committed in the name of fundamentalist evangelical Christianity. The sparse leaders who object to these egregious violations are relegated to the position of silent bystanders, because they understand all too well the potential ramifications of publically expressing their loyalty to the laws of our country.

AP reported yesterday that  despite Page's concerns to the contrary, he has now received an honorary discharge and will not have to reimburse the military for the cost of his education. A spokesperson for West Point disputed Page's claims, saying that prayer is voluntary where invocations are offered, and that Page served as president of the school's Secular Student Alliance. Page had recently been disqualified on medical grounds from receiving a Second Lieutenant commission after graduation. He suffers from clinical depression and anxiety which have gotten worse since his father committed suicide last year.

EEOC Sues UPS Over Failure To Accommodate Jehovah's Witness New Hire

The EEOC announced that last week it filed a religious discrimination lawsuit against United Parcel Service, Inc. for its failure to accommodate a newly-hired Jehovah's Witness employee. The employee wanted either to start a  different day, start later than his scheduled time on his start date, or be given an hour's leave during his shift on his first day so he could attend the Memorial of Christ's Death, an  annual Jehovah's Witness religious service. UPS rejected his request and fired him when he attended the service instead of reporting for work.

Contraceptive Coverage Challenge By NY Archdiocese Survives Standing and Ripeness Challenge

In Roman Catholic Archdiocese of New York v. Sebelius, (ED NY, Dec. 5, 2012), a New York federal district court permitted the Archdiocese of New York, the Catholic Health Care System (ArchCare) and Catholic Health Services of Long Island to proceed with their 1st Amendment, RFRA and Administrative Procedure Act challenges to the contraceptive coverage mandate imposed under the Affordable Care Act.  The court rejected standing and ripeness challenges to their lawsuits.  It held that the temporary enforcement safe harbor for non-profits with religious objections does not prevent plaintiffs from establishing imminent injuries. The announced review that may lead to changes in the coverage mandate for organizations with religious objections does not assure that changes will be made, and in any event costs are already being incurred in planning for possible compliance with the mandate or payment of fines for noncompliance.  The court however dismissed claims by the Diocese of Rockville Centre and Rockville Centre Catholic Charities because it appears that their health care plans are grandfathered and thus not covered by the challenged mandate. Reuters reported on the decision.

Couple Convicted For Mistreatment of Lamb Purchased For Religious Sacrifice

The Colorado Springs Gazette reports that on Tuesday, an El Paso County, Colorado state court jury convicted Periz Jackson and Elijah Black on animal cruelty charges for the confined and unsanitary conditions under which they kept a lamb they had purchased to sacrifice on Passover. Prosecutors charged defendants, who face a sentence of up to 18 months in jail and a $5000 fine, failed to feed and water the lamb. The couple, who are members of the largely African-American Hebrew-Israelite sect, planned to slaughter and roast the lamb in accordance with the ritual description in the Biblical book of Exodus. The lamb, discovered by the couple's landlord, was seized by the Humane Society of the Pikes Peak Region.  Defendants say they intend to sue for federal civil rights violations because the government's actions prevented them from carrying out their religious obligations on their first Passover together as man and wife.

ACLU Files Complaint Against Judge Who Sentenced Teen To Church As Part of Probation

The Oklahoma ACLU has filed  a complaint with the state's Council on Judicial Complaints against Muskogee County District Judge Mike Norman over the judge's inclusion in a probation arrangement for a 17-year old of a requirement that he attend church for ten years. The sentence came after Tyler Alred plead guilty to manslaughter in the death of his friend who was riding with him in an alcohol-related auto crash. Apparently the defendant has no objections to the probation conditions. (See prior posting.) In a press release announcing the filing of the complaint, the Oklahoma ACLU's legal director said: "Acts of worship should come from a freely-made choice to adopt a faith, not from the government giving its citizens an ultimatum to sit either in a pew or a prison cell." The Tulsa World today reports on the ACLU's action.

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.