Bankruptcy Judge Shields Parish Assets In Archdiocese Bankruptcy

In the bankruptcy reorganization proceedings of the Archdiocese of Milwaukee (WI), a federal bankruptcy judge has refused to include at least most of the assets of separately incorporated parishes as part of the assets which creditors of the Archdiocese can claim. In In re Archdiocese of Milwaukee, (ED WI Bankr., Dec. 7, 2012), the court refused to apply the "alter ego" doctrine to ignore the separate corporate status of the parishes:

The Committee has failed to state a plausible claim that the Debtor and Parishes failed to observe corporate formalities, that funds were siphoned, that officers or directors of the Parishes were nonfunctional, or that there was an absence of corporate records.  Absolutely no facts were alleged to make plausible a claim that the Debtor and the Parishes “egregiously ignored” corporate formalities or that control was so "pervasively exercised" to apply the alter ego doctrine in this case.

The court similarly refused to apply the equitable doctrine of substantive consolidation to make parish assets available to creditors.  Reporting on the decision, the Milwaukee Journal-Sentinel says that the parishes, however, could still face claims that creditors should have access to $35 million in funds that the Archdiocese moved off its books in 2005.

L.A. Church Sues Former Pastor, His Wife and Others For Fiduciary Breaches and Fraud

The Los Angeles Times reports that last Tuesday a suit was filed in a California state court by the oldest Black church in Los Angeles against its former pastor John Hunter, his wife and a group of other church officials and directors of affiliated corporations in a battle for control of the church. According to the paper:

Hunter has had a rocky tenure at the church. Since taking over First AME in 2004, Hunter has been sued for sexual harassment, a civil claim that was settled for an undisclosed amount. The Times reported in 2008 that an internal audit found he charged $122,000 in jewelry, family vacations and clothing to the church's credit card. He later agreed to a nine-year repayment plan.

He earned a generous salary during his tenure, lived in a $2-million home and drove a Mercedes-Benz paid for by the church. His wife earned $147,000 a year running nonprofit organizations connected to the 19,000-member congregation.

But over the last few years, the hilltop church in the West Adams district has fallen into debt. The church owes nearly $500,000 to creditors and some vendors say they have not been paid in more than a year.

The complaint (full text) in First African Methodist Episcopal Church of Los Angeles v. Hunter, (CA Super. Ct., filed 12/4/2012), alleges that when John Hunter was transferred to a new church, his wife Denise continued to control affiliated corporations that provide social services rather than allowing FAME's new pastor to do so. It alleges breach of fiduciary duty, fraud and conversion. It asks for injunctive and declaratory relief and for damages of over $1 million.

New York Hasidic Sex Abuse Trial Uncovers Extortion From "Modesty Committees"

According to Thursday's New York Jewish Week, testimony in the Brooklyn sex abuse trial of Nechemya Weberman --  an unlicensed "therapist" to whom schools of the Hasidic Satmar sect referred "wayward" girls for "help" -- has disclosed important information about the insular Satmar community:

the alleged victim ... has been subjected to intense pressure to withdraw her claim, including intimidation, harassment, social ostracism of her family and even a reported $500,000 bribe.... The case is also significant for the amount of public support the alleged victim has received ... from her family, close friends and advocates, many of whom have used social media to spread the word about the trial and appeared in court....

However, many people with ties to the chasidic community believe there is something even more important about the Weberman case — namely, what it exposes about the larger communal role played by chasidic "modesty committees" in communities like Williamsburg, Borough Park and Kiryas Joel. These groups — to which, sources say, Weberman was connected — originated years ago to guard the "purity" of the community by enforcing strict dress and behavior codes that characterize the insular chasidic lifestyle. But, insiders say, the tactics of these self-appointed, freelance modesty patrols have evolved from public shaming to extortion and threats....

President Issues Hanukkah Greetings

Yesterday, the White House released a statement (full text) sending warmest wishes from the President and Michelle Obama to all those around the world celebrating Hanukkah. The statement said in part:

Hanukkah is a time to celebrate the faith and customs of the Jewish people, but it is also an opportunity for people of all faiths to recognize the common aspirations we share.... [L]et us reaffirm our commitment to building a better, more complete world for all.

The 8-day festival of Hanukkah begins this evening.

More On Yesterday's Same-Sex Marriage Cases Cert. Grant-- Standing

In granting certiorari yesterday in two same-sex marriage cases (see prior posting), the U.S. Supreme Court (order list) instructed the parties to brief and argue specified standing issues, in addition to the questions presented in the petitions for certiorari.  In Dennis v. Perry, the California Proposition 8 case, the Court ordered the parties to brief and argue: "Whether  petitioners have standing under Article III, §2 of the Constitution in this case."  In United States v. Windsor, the Defense of Marriage Act case, the Court ordered the parties to brief and argue: "Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case."

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.