Accused Ft. Hood Shooter May Get To Wear Beard At Trial

The Austin (TX) Statesman yesterday reported that now that a new military judge has been appointed to preside over the trial of accused Fort Hood shooter Maj. Nidal Hasan (see prior posting),  Hasan may be allowed to wear his beard that he has grown for religious reasons.  In an exchange at a hearing yesterday, while not finally ruling on the issue, newly-appointed military judge Col. Tara Osborn told Hasan: "I’m not going to hold (the beard) against you, but people on the (jury) panel may. Do you understand?" Col. Osborn also asked defense attorneys to draw up possible jury instructions to be used if Hasan wears a beard during his trial.

Hawaii Appeals Court Says Archaeological Survey Was Required Before Disinterments

In Hall v. Department of Land and Natural Resources, (HI App., Dec. 14, 2012), the Hawaii Intermediate Court of Appeals held that an Archaeological Inventory Survey under Hawaii's historic preservation law should have been conducted by the State Historic Preservation Commission before the state permitted the Kawaiahao Church in 2010 to disinter 69 sets of Native Hawaiian human remains while constructing a new Multipurpose Center. Plaintiff in the case, a native Hawaiian, was concerned that family members were buried in unmarked graves on the church site.  Subsequently, according to Hawaii News Now last September, another 579 more recent remains were found on the site.  Honolulu Civil Beat speculates that last week's appeals court decision may require re-interment in original burial sites of the remains of the over-600 persons that were dug up and are being stored on church property.

In Split Decision, Montana High Court Rejects Broad Challenge To Unequal Treatment Of Same-Sex Couples

In a 4-3 decision in Donaldson v. Montana, (MT Sup. Ct., Dec. 17, 2012), the Montana Supreme Court rejected a suit by couples in a committed same-sex relationship challenging their inability under Montana law to obtain the same protections and benefits available to heterosexual couples who can marry. The majority said in part:

In  the  present  case ... Plaintiffs  do  not  seek  a declaration that any particular statute is unconstitutional or that its implementation should be enjoined.  Rather, Plaintiffs seek a general declaration of their rights and seek orders enjoining the State to provide them a “legal status and statutory structure” that protects their rights.... Broadly  determining  the  constitutionality  of  a “statutory  scheme”  that  may,  according  to  Plaintiffs,  involve  hundreds  of  separate statutes, is contrary to established jurisprudence.

The majority held that plaintiffs could file an amended complaint more narrowly challenging specific laws.

Justice Nelson filed a strong 108-page dissent, saying in part:

The problem ... is that this Court has chosen to punt.  And in simply kicking  the  can  down  the  road,  the  Court  has  denied  Plaintiffs  the  dignity,  respect, fairness, justice, and equality to which they are entitled—foremost as human beings, and legally under Montana’s Constitution.... Sexual orientation is a big deal to those who demand that their personal religious beliefs, their Bible’s  abhorrence,  and their partisan ideology  concerning homosexuality must apply to everyone else, across the board, no exceptions.  But future generations—indeed, most young people today—will not fear, much less honor, the sexual-orientation taboo.... [T]he taboo will die because the scare tactics, propaganda, and misinformation of those who would hang on to the maledictions and stereotypes have proven to be so patently false, malicious, and absurd.  Most decent people  just hate  being  lied  to.

As part of his dissent, Justice Nelson concluded that Montana's "Marriage Amendment,"-- the provision in the state constitution barring the recognition of same-sex marriage-- is invalid:

Montana’s  Marriage  Amendment  is  an  unconstitutional  attempt  to  enforce  a sectarian belief (held by some) through Montana’s secular law.... Indeed, the Marriage Amendment is undisputedly grounded in religious doctrine.  That much is apparent not only from the federal district court’s findings, but particularly from the fulminations of numerous religious organizations in the present case, led by the Montana  Catholic  Conference,  against  the  prospect  that  gay,  lesbian,  and  bisexual Montanans  might  enjoy  some  measure  of  legal  protection  for  their  relationships.   If homosexuality and same-sex relationships were not a religious issue, it is highly doubtful that any of these amici would be so actively involved in this case.

Justices Cotter and Wheat filed a brief separate opinion concurring with most of Justice Nelson's dissent, but refusing to join the portion of the dissent dealing with the Marriage Amendment because plaintiffs did not challenge that amendment. They also disagreed with certain other language in Justice Nelson's opinion.

The Montana Supreme Court also published a Synopsis of the Case.  AP reports on the decision. [Thanks to Alliance Alert for the lead.]

Pennsylvania Settles Suit By Rabbi Challenging Funeral Director Law

AP reports  that the Pennsylvania Board of Funeral Directors has settled a federal lawsuit filed against it and other state officials by a Pittsburgh rabbi challenging the Board's requirement to use a licensed funeral director even when a funeral is supervised by a religious authority and there is no embalming or fee-for-service. (See prior posting.) Under the settlement agreement filed with the court yesterday, the state will not apply the Funeral Director Law to clergy and others carrying out their religious functions and beliefs, so long as the person does not advertise as a funeral director, engage commercially in the funeral business or perform embalming.

University's Firing Of HR-VP Over Remarks About Gays Is Upheld By 6th Circuit

In Dixon v. University of Toledo, (6th Cir., Dec. 17, 2012), the U.S. 6th Circuit Court of Appeals held that the University of Toledo-- part of the state University system in Ohio-- did not violate the 1st Amendment free expression rights of its Associate Vice President for Human Resources when it terminated her because of an op-ed column she wrote expressing her views about homosexuality.  Responding to an editorial in the Toledo Free Press that implicitly compared the gay rights movement to the civil-rights movement, UT Associate VP Crystal Dixon, expressing her views as a Christian, African-American woman, argued that homosexuality is not an immutable characteristic.  She was fired because the views she expressed contradicted University policies, procedures and the core values of its strategic plan. (See prior posting.) The 6th Circuit held that a policy-making official "who writes publicly against the very policies that her government employer charges her with creating, promoting, and enforcing" is not engaging in speech that is protected by the 1st Amendment.  According to the court, Dixon's op-ed implicitly suggests that LGBT employees and students are not entitled to civil rights protections.  AP reports on the decision. See prior related posting.) [Thanks to Alliance Alert for the lead.]

Volunteer Barred From Working With Diocese Youth Sues For Defamation

The Fort Worth Star-Telegram reports on a defamation lawsuit filed in state court last week against the Roman Catholic Diocese of Fort Worth and various Diocese officials by Joseph Jordan who was barred from serving as a volunteer with children or young people in any Diocese parish or school.  The complaint (full text) in Jordan v. Roman Catholic Diocese of Fort Worth, (TX Dist. Ct., filed 12/10/2012), alleges that Jordan and his wife have worked with youth in Catholic activities for over 20 years.  Jordan was also active with the Knights of Columbus. In July 2012, Jordan was summoned to the office of the Diocese Vicar General and read him a letter accusing him of "boundary violations" involving youth and young adults in the last few weeks. He was summarily barred from further serving as a volunteer, and the accusatory letter and an e-mail memorandum were published and circulated widely throughout the Diocese. The complaint alleges:

The language in these letters and emails individually and in combination created a false  and defamatory meaning or impression, either by omitting material facts or misleadingly juxtaposing events.  They were intended to  distort the  reader's  perception and they created  a substantially false  impression of Plaintiff....  Clearly,  an  ordinary reader would interpret the defamatory  communications ... as accusations of Plaintiff being a child molester and/or pedophile and/or sexual  abuser,  particularly when  considered  along  with  the  circumstance  of the  Fort  Worth Diocese being the subject of numerous lawsuits and enormous publicity arising from allegations of sexual abuse by Catholic priests and cover-ups by the leaders of the Diocese.... 

Moorish Science Adherent Arrested After Claiming Change of Identity

Yesterday's Tampa Bay Times reports on the jailing in late November in Pasco County Florida of Shanita Marie Burden on charges of driving with a counterfeit car tag, driving without a Florida license (her South Carolina license was suspended), and giving a false name to police. Burden insists she is Zuri Akila Betiti Matawala Zurj-Bey, a "grand sheikess" in the Moorish Temple of Science of the World. She insists that black people are not subject to the United States government, but instead are Moorish. In September, she was stopped when she was found driving a car with license tags reading : "Moorish American Republic 070117-004." She claimed that a piece of paper with a fuzzy photo from the Moorish Divine National Movement of the World issued to a Zuri Akila Betiti Matawala Zurj-Bey was her drivers' license. The woman claims she was born of a religious conversion last year and that she declared her former self, Shanita Burden, dead. She then made herself the personal representative for Burden's estate and filed court papers declaring this. At a Nov. 19 arraignment on the traffic charges, Bey, identified herself only as "flesh and blood."  She told Circuit Judge Susan Gardner that she was appearing as the personal representative of Burden, but the court ruled that since she wan not an attorney, she could not do so.  The court then issued a warrant against Burden for failing to appear in court. She was arrested eight days later when she attempted to file papers in the clerk of court's office ordering Judge Susan Gardner not to issue any more unlawful warrants against Burden.

Recent Articles of Interest

From SSRN:

• Mark D. Rosen, The Educational Autonomy of Perfectionist Religious Groups in a Liberal State, (1 Journal of Law, Religion & State 16, 2012).
• Thomas G. Field, Crimes Involving Intangible Property, (December 11, 2012).
• Andrew M. Koppelman, The Story of Welsh v. United States: Elliott Welsh's Two Religious Tests, (Richard Garnett and Andrew Koppelman, eds., First Amendment Stories, Foundation Press, 2011).
• Andrew M. Koppelman, Defending American Religious Neutrality, (Richard Garnett and Andrew Koppelman, eds., First Amendment Stories, Foundation Press, October 2011).
• Chuck Henson, Title VII Works – That's Why We Don't Like It, (2 University of Miami Race & Social Justice Law Review 41, 2012).
• Peter Nicolas and Mike Strong, The Geography of Love: Same-Sex Marriage & Relationship Recognition in America (The Story in Maps) Third Edition, (December 12, 2012).
• Susannah William Pollvogt, Forgetting Romer, (Stanford Law Review Online, 2012).
• Andrew Kim, 'Standing' in the Way of Equality? The Myth of Proponent Standing and the Jurisdictional Error in Perry v. Brown, (American University Law Review, Vol. 61, No. 6, 2012).

From SmartCILP and elsewhere:

• Elizabeth Sepper, Taking Conscience Seriously, 98 Virginia Law Review 1501-1575 (2012).
• Jacob Turner, Towards A Synthesis Between Islamic and Western Jus in Bello, 21 Journal of Transnational Law & Policy 165-206 (2011-2012).
• Church & State: Blurring the Lines, Wisconsin Lawyer, Dec. 2012.
• Steven H. Sholk, A Guide To Election Year Activities of Section 501(c)(3) Organizations (2012 edition), PLI Course Handbook, Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings, Nov. 2012.

Utah's New Attorney General Outlines His Policies On Polygamy Prosecutions

According to yesterday's Salt Lake Tribune, Utah's newly-elected attorney general, John Swallow says he will continue the policy of his predecessor Mark Shurtleff and will not bring criminal charges against consenting adults in plural marriages if they have not violated any law other than the state's polygamy ban. It is estimated that 38,000 people live in polygamous communities in Utah. Swallow said that he however will "do everything we can to uncover any type of abusive practice going on in any community." He will continue to defend the constitutionality of Utah's bigamy statute in an ongoing challenge to it by members of an openly polygamous family (subjects of the television show Sister Wives).  (See prior posting.) Swallow will also seek an end to the drawn out litigation seeking to reform the United Effort Plan Trust that holds the property of the polygamous FLDS Church. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Schreane v. Seana, (3d Cir., Dec. 13, 2012), the 3rd Circuit upheld the dismissal of a claim by an inmate that his 1st Amendment free exercise rights were violated when his religious oils were lost, misplaced, or
stolen during his confinement in the Special Handling Unit.

In Rentz v. Borem, 2012 U.S. Dist. LEXIS 175729 (SD CA, Dec. 11, 2012), a California federal district court permitted an inmate to proceed with his 1st Amendment free exercise claim that a correctional officer confiscated his prayer oil.

In  Adeyemi v. Murphy, 2012 U.S. Dist. LEXIS 175081 (D CT, Dec. 11, 2012), a Connecticut federal district court held that an inmate's claims that his religious pamphlets and newspapers, along with other specified documents, were confiscated did not allege a violation of his free exercise of RLUIPA rights.

In Mitchell v. New York State Department of Correctional Services, 2012 U.S. Dist. LEXIS 176209 (WD NY, Dec. 12, 2012), a New York federal district court dismissed claims by a Nation of Islam inmate that the Department of Corrections failed to accommodate his religious diet, that he was denied two Eid festival meals, and that inmates are are allowed to attend services of a religion in which they are not registered only three times per year.

In Deaton v. Arkansas Department of Corrections, 2012 U.S. Dist. LEXIS 174598 (ED AR, Dec. 10, 2012), an Arkansas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 174602, Oct. 15, 2012) and dismissed claims by an inmate who refused to cut his hair for religious reasons. Plaintiff contended that the Department of Corrections' grooming policy violates his rights under the free exercise clause and RLUIPA.

In Lomax v. Straughn, 2012 U.S. Dist. LEXIS 175910 (ED AR, Dec. 12, 2012), an Arkansas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 175924, Oct. 16, 2012) and dismissed an inmate's claim that his free exercise rights were violated when, while he was being held for 3 days on behavior control, he had no access to religious items.

Claim Against Archdiocese By Bookkeeper Who Exposed Abusive Priest's Presence Is Dismissed On 1st Amendment Grounds

In Weiter v. Kurtz, (KY App., Dec. 14, 2012), the Court of Appeals of Kentucky dismissed a wrongful discharge claim against the Archdiocese of Louisville and other defendants by Margie Weiter, a former bookkeeper-receptionist who was fired from her position at a Louisville parish after she insisted on complaining to her supervisor and Archdiocese personnel that James Schook, a priest accused of child molestation, was being allowed to live at the parish. She also alerted parents of this fact. Additionally, the court dismissed a claim for outrage filed by Weiter and her husband (who as a child was a victim of clergy sexual abuse).  The court said in part:

Although Margie is a secular employee, her wrongful termination claim necessarily depends on matters of church governance and church administration and is therefore barred by the First Amendment.  The root of Margie’s wrongful termination claim is her disagreement with church policy.  She claims that the Archdiocese eliminated her position in retaliation for speaking out against decisions made by the Archdiocese’s governing body; i.e., where Schook should be allowed to reside pending the outcome of the investigation.  Margie’s complaint cites Archdiocese policies and procedures.  Accordingly, to adjudicate that claim, the court would be forced to decide whether the Church acted in accordance withits policies and whether those policies were appropriate matters that the First Amendment commits solely to the Church.  The trial court properly held Margie’s claims for outrage and wrongful termination were barred by the First Amendment.

The court also rejected on the merits plaintiff's claim for wrongful discharge.  Judge Moore concurred only in the result.  (See prior related posting.)

President Obama Hosts White House Hanukkah Reception

On Thursday evening, President Obama and First Lady Michelle Obama hosted a Hanukkah reception in the Grand Foyer of the White House. Among those present were a number of members of Congress, two Supreme Court justices,  Cabinet members, and the Israeli ambassador to the United States. The West Point Jewish Chapel Cadet Choir sang. Rabbi Larry Bazer, Joint Forces Chaplain for the Massachusetts National Guard, lit a 90-year old menorah that recently survived Hurricane Sandy in a damaged Long Beach, New York synagogue.  In his remarks (full text), the President said in part: "To this day, Jews around the world honor the Maccabees' everlasting hope that light will overcome the darkness, that goodness will overcome evil, and that faith can accomplish miracles."

Preliminary Injunction Denied In Business' Challenge To Contraceptive Coverage Mandate

In Korte v. United States Department of Health and Human Services, (SD IL, Dec. 14, 2012), an Illinois federal district court denied a preliminary injunction sought by a for-profit construction business and its controlling shareholders in a free exercise challenge to the contraceptive coverage mandate under the Affordable Care Act.  The court held that the exercise of religion is a purely personal right; corporations cannot exercise religion even though they may advance a belief system.  However, the court held that because the religious and financial interests of the the individual controlling shareholders and the family-owned S corporation involved in the case are virtually indistinguishable, the shareholders satisfy the third-party standing test and can present the Free Exercise Clause and RFRA claims. Moving to the merits, the court rejected plaintiffs' 1st Amendment claim, finding it likely that the mandate is a neutral law of general applicability that only incidentally burdens free exercise.  Moving to plaintiffs' claim under the Religious Freedom Restoration Act, the court concluded that the mandate does not create a "substantial burden" on plaintiffs' free exercise rights:

While neither dispositive nor determinative, the Court again notes the Plaintiffs’current health insurance plan covers the very preventive health services  they seek to enjoin.  There is a palpable inconsistency in claiming the ACA contraception mandate substantially burdens their religious beliefs while they currently maintain the same coverage in their existing pre-ACA health plan.... 

Any inference of support for contraception stemming from complying with the neutral and generally applicable mandate is a de minimus burden. It appears that Plaintiffs’ objection presupposes that an insured will actually use the contraception coverage.  Even assuming that there is a substantial likelihood that a K&L employee will do so, at that point the connection between the government regulation and the burden upon the Kortes’ religious beliefs is too distant to constitute a substantial burden....

Business Owned By Pizza Mogul Challenges Contraceptive Coverage Mandate

Yesterday yet another lawsuit was filed by a closely-held business raising religious objections to the mandate under the Affordable Care Act that requires most health insurance policies to include contraceptive coverage.  The suit was filed by Domino's Farms Corp. and its sole stockholder, Domino's Pizza founder Thomas Monaghan, alleging that the mandate violates plaintiffs' rights under the 1st and 14th Amendments, RFRA and the Administrative Procedure Act.  The complaint (full text) in Domino's Farms Corp. v. Sebelius, (ED MI, filed 12/14/2012) sets out Monaghan's strong Catholic beliefs and his involvement with Catholic organizations, and alleges that he and  Domino’s Farms "share a common mission of conducting their business operations with integrity and  in compliance with the teachings, mission, and values of the Catholic Church." The complaint elaborates:

Based on the teachings of the Catholic Church, and  their deeply held  religious beliefs, Plaintiffs do not believe that contraception,  sterilization,  or abortion are properly understood  to constitute medicine, health care, or a means of providing for the well being of persons.   Indeed,  Plaintiffs believe these procedures involve gravely immoral practices, specifically the intentional destruction of innocent human life.

The Examiner reports on the filing of the lawsuit.

UPDATE: On Dec. 21, plaintiffs filed a motion for a temporary restraining order and a brief in support of the motion. (Full text.)

Walmart Pharmacist Sues Claiming She Was Fired For Praying With Customers

ABC News reported yesterday that a former pharmacist at a Bakersfield, California Walmart store has filed a religious discrimination suit in state court complaining that she was fired for praying for customers to be healed when they requested her to do so.  59-year old Anhue Doan says that in the particular incident that led to her firing she was merely touching a customer and talking to her.  Walmart says it has not had an opportunity to review the lawsuit, but that it makes reasonable accommodations for religious reasons.

U.N. Human Rights Panel Says France Violated Sikh Student's Religious Freedom Rights In Banning Turban

In a press release yesterday, United Sikhs reported on a decision by the United Nations Human Rights Committee holding that France violated a 17-year old Sikh student's freedom of religion protected under Art. 18 of the Covenant on Civil and Political Rights when it expelled him from school for wearing a keski (small turban).  The lycée took the action based on Art. L.141-5-1 of France's Education Code which enforces the principle of secularism (laïcité) by providing: "In public primary schools, secondary schools and lycées, the wearing of symbols or clothing by which pupils manifest their religious affiliation in a conspicuous manner is forbidden."  The U.N. decision, Communication 1852/2008 was adopted by the Human Rights Committee on Nov. 1, and published on Dec. 4, 2012. It reads in part:

for Sikhs males, wearing a keski or turban is not simply a religious symbol, but an essential component of their identity and a mandatory religious precept.... [T]he prohibition of wearing religious symbols affects only symbols and clothing which conspicuously display religious affiliation, does not extend to discreet religious symbols and the Council of State takes decisions in this regard on a case by case basis.  However, the Committee is of the view that the State party has not furnished compelling evidence that by wearing his  keski  the author would have posed a threat to the rights and freedoms of other pupils or to order at the school.... [T]he State party imposed this harmful sanction on the author, not because his personal conduct created any concrete risk, but solely because of his inclusion in a broad category of persons defined by their religious conduct....  [T]he  State party has not shown how the sacrifice of those persons’ rights is either necessary or proportionate to the benefits achieved.

(See prior related posting.)

IRS Rules Various Tribal Payments To Shamans Are Not Taxable Income

Last week, the Internal Revenue Service released a proposal for a Revenue Procedure to provide guidance on certain payments by tribal governments to tribe members. Application of the General Welfare Exclusion to Indian Tribal Government Programs That Provide Benefits to Tribal Members (Notice 2012-75) spells out certain payments that need not be included in the individual's gross income for federal income tax purposes.  Among excluded items are:

benefits provided under an Indian tribal governmental program that are items of cultural significance (not lavish or extravagant) or nominal cash honoraria provided to medicine men or women, shamans, or similar religious or spiritual officials to recognize their participation in cultural, religious, and social events (for example, pow-wows, rite of passage ceremonies, or funerals, wakes, burials, or other bereavement events).

Also excluded are reimbursements to tribal members for them to attend traditional ceremonies or learn about a Tribe's culture, history and traditions.  Also, payments a tribe makes to an Indian medicine man to use traditional practices to treat a tribal member's disease are not included as income by the tribal member receiving the treatment. AP reports on the IRS release.

Claims of 2 Abuse Victims Dismissed In Milwaukee Archdiocese Bankruptcy

In the ongoing Chapter 11 bankruptcy proceedings of the Catholic Archdiocese of Milwaukee, the court yesterday dismissed fraud claims by two sex abuse victims. Numerous claimants argue that the Archdiocese defrauded them by moving abusive priests to new assignments without warning parents of the danger. The Milwaukee Journal-Sentinel reports that in one of the dismissed claims the court held that the 6-year statute of limitations had run. In the other dismissed claim, the court found no fraud because the accused priest had not previously engaged in abuse. The Archdiocese says it will pay only those claims required by law. Abuse victims say it is at least morally wrong to attempt to dismiss large numbers of claimants. The Archdiocese says it should not have to pay where the statute of limitations has run, where abusing priests were not direct employees of the Archdiocese, and where victims have previously negotiated settlements.

Muslim Cabbie Sues Over Commission Dress Code That Bars Religious Clothing

According to yesterday's St. Louis Post Dispatch, Muslim cab driver Raja Awais Naeem has filed a religious discrimination lawsuit in state court against the city of St. Louis, its Metropolitan Taxicab Commission and Whelan Security, a private security company apparently in charge of security at the St. Louis airport.  Naeem, originally from Pakistan, wears religiously mandated clothing-- a kufi, a kurta (loose-fitting shirt) and shalwar (loose fitting pants).  This violates the Taxicab Commission's dress code that calls for a white shirt, black pants and does not permit a kufi (but does permit a baseball cap). He has been given a ticket by Whelan Security for wearing "foreign country religious dress." At other times his taxi license has been suspended and last week he was arrested and charged with trespassing. The Missouri Human Rights Commission issued Naeem a right-to-sue letter on his complaints.

University Settles Suit Brought By Christian Counseling Student Who Was Expelled

As reported by Baptist Press, earlier this week, Eastern Michigan University agreed to settle a lawsuit by a former student in its graduate counseling program who was expelled after she refused in a practicum course to counsel gay clients on same-sex relationships. The U.S. 6th Circuit last January held that the case should go to trial on the issue of whether the Christian student, Julea Ward, was ejected from the counseling program because of hostility toward her speech and faith. (See prior posting.) The University has agreed to pay Ward $75,000 and remove the expulsion from her record. No changes in the University's policies, programs or curricular requirements, however, were involved in the settlement.