In Canada, Scams Are Reviving Use Of Ban On Fraudulent Use Of Sorcery

Last Saturday's National Post reports that new scams are leading Canadian authorities to revive prosecutions under an an old statute (Canada Criminal Code Sec. 365) that prohibits fraudulently pretending "to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration."  Last month, charges under the section were filed against Gustavo Gomez who, using Spanish-language radio and print ads in Quebec and Ontario convinced people they were under a curse. He then offered to lift the curse for $10,000 to $15,000. In Toronto, a similar curse-lifting scam is being carried out in the city's Chinese community. Cantonese-speaking residents are warned of a curse and are convinced to fill a bag with valuables for a special ritual to lift it. Then the fraudster runs off with the bag.  Vancouver police are reporting similar scams.

Recent Prisoner Free Exercise Cases

In Kramer v. Pollard, (7th Cir., Dec. 5, 2012), the 7th Circuit rejected an Odinist inmate's claim for damages on qualified immunity grounds. At issue were claimed free exercise and equal protection violations growing out of the refusal to allow group worship for Odinists separate from other Pagan groups. However the court reversed the dismissal of plaintiff's religious diet claim.

In Riddick v. Herlock, 2012 U.S. Dist. LEXIS 171855 (ED VA, Nov. 30, 2012), a Virginia federal district court deferred ruling on dismissal of an inmate's claim that his copy of the Qur'an was confiscated so plaintiff could amend his complaint.

In People ex rel. Day v New York State Dept. of Corrections and Community Supervision, (NY Supr. Ct., Nov. 30, 2012), a New York trial court held that an inmate was denied due process when his parole violation hearing was held in abstentia, but the reason for his absence was his Muslim Friday religious observance.

In Johnson v. Director VDOC, 2012 U.S. Dist. LEXIS 173203 (WD VA, Dec. 6, 2012), a Virginia federal district court dismissed an inmate's complaint that the Department of Corrections banned his "Nuwaupian Moorish" religion and therefore he cannot have religious DVDs or CDs in DOC facilities.

In Benton v. Yon, 2012 U.S. Dist. LEXIS 173197 (ND FL, Dec. 6, 2012), a Florida federal district court, rejecting a magistrate's recommendation (2012 U.S. Dist. LEXIS 173196, Oct. 22, 2012) that plaintiff be permitted to proceed on most of his claims, dismissed on qualified immunity grounds an inmate's complaint that his free exercise and equal protection rights were infringed when a correctional officer tore and crumbled pages in plaintiff's Qur'an and drenched his prayer rug with water, apparently out of bias toward Muslims.  According to the court: "no authoritative court has decided—as a broad principle—that a correctional officer's disrespectful treatment of an inmate's religious property ... was unconstitutional under the First and Fourteenth Amendments even when, as in this case, there is no allegation that such treatment burdened the inmate's ability to practice his religion."

In Forter v. Geer, 2012 U.S. Dist. LEXIS 54400 (D OR, April 17, 2012), an Oregon federal district court dismissed an inmate's free exercise and RLUIPA complaint regarding withholding from him of certain Christian Identity material sent to him. The court also dismissed without prejudice other claims for failure to exhaust administrative remedies. [This case while several months old was not previously covered by Religion Clause.]

Court Rejects Quaker's Challenge To Tax Procedures Invoked After Anti-War Withholding Of Amounts Due

In Boardman v. Commissioner of Internal Revenue, (ED CA, Dec. 6, 2012), a California federal district court dismissed free exercise claims by a Quaker peace activist who challenged provisions of the Tax Relief and Health Care Act of 2006 (26 USC Sec. 6330(g)) that curtail the administrative appeals process for "frivolous" taxpayer claims. The provision was invoked when plaintiff withheld half of her tax payments due because of her objections to government spending on war. She said she would pay the remaining amounts only if they were redirected to peaceful purposes. Relying on the 1st Amendment and RFRA, plaintiff argued that the government intentionally frustrated her religious beliefs by depriving her of rights and procedures that would have been available had she not asserted a religious motive for withholding a portion of her taxes. The court held that the Anti-Injunction Act (26 U.S.C. § 7421) requires dismissal of the lawsuit, since a ruling in favor of plaintiff would negatively impact the government's tax assessment methods. Alternatively, the court dismissed on the merits, holding that under past precedent plaintiff may not assert a religious objection to the country's tax system, even if she does not dispute her overall tax liability.

DNA Testing For Immigration Purposes Is Neutral Rule of General Applicability In Free Exercise Claim

In S. T. v. Napolitano, 2012 U.S. Dist. LEXIS 172658 (SD TX, Dec. 5, 2012), a Texas federal district court held that there is no 1st Amendment free exercise problem with denial of plaintiff's certificate of citizenship, passport and related documents.  S.T.'s parents-- both American citizens-- practice the Swaminarayan religion. They believe they are required to follow their swami's religious instruction to never subject S.T., as a gift from a divine source, to medical testing. U.S. officials refuse to certify S.T. as a child of American citizens born abroad without DNA testing to establish a blood relationship. The court rejected the claim that requiring DNA testing violates the 1st Amendment free exercise rights of S.T. and his parents, finding that the testing requirement is a neutral rule of general applicability. However the court and defendants agreed that plaintiff may assert his claim under the Religious Freedom Restoration Act

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.