2nd Circuit: Establishment Clause Claim that "Feminism Is Religion" Dismissed On Collateral Estoppel Grounds

In Hollander v. Members of the Board of Regents of the University of the State of New York, (2d Cir., April 10, 2013), the 2nd Circuit dismissed on collateral estoppel grounds an action claiming that the state and federal governments have violated the Establishment Clause by providing funding to Columbia University which maintains an Institute for Research on Women’s and Gender Studies and a Women’s Studies program. Plaintiff argues that feminism is a "modern-day religion." The courts had dismissed a similar suit in 2010 on standing grounds, and so the issue cannot now be relitigated. The court added: "Hollander is an attorney. Before again invoking his feminism-as-religion thesis in support of an Establishment Clause claim, we expect him to consider carefully whether his conduct passes muster under Rule 11," the procedural rule that imposes sanctions on attorneys for filing frivolous lawsuits. (See prior related posting.)

EEOC Raises Triable Questions of Fact On Abercrombie's Failure To Hire Muslim Teenager

Equal Employment Opportunity Commission v Abercrombie & Fitch Stores Inc., (ND CA, April 9, 2013), involves the question of whether Abercrombie & Fitch violated Title VII of the 1964 Civil Rights Act when it failed to hire a Muslim teenager, Halla Banafa, as a part-time stock-room employee. Banafa wore a hijab to her job interview. Abercrombie has a "Look Policy" that governs the dress of employees, and it precludes any kind of head wear (though the company has made exceptions). A California federal district court rejected several of Abercrombie's defenses and held that triable issues of fact exist as to whether Banafa's religion was the motivating factor in her failure to be hired.

One of Abercrombie's more interesting defenses was a 1st Amendment argument that "forcing Abercrombie to grant a Look Policy accommodation to a Muslim in-store employee who wears a hijab for religious reasons would... amount to the government's compelling it to advertise a fashion inconsistent with its “East Coast” and “preppy” style...."  The court said, however, that "Abercrombie cannot achieve an end-run around Title VII by elevating the appearance of its stock room employees to protected commercial speech." However it left open "the more difficult question of whether a living model, whose stated job responsibility is to advertise Abercrombie's brand, constitutes commercial speech." [Thanks to Jeffrey Pasek for the lead.]

6th Circuit: Church Has Standing To Sue Over Police Investigations of Loud Music

In Faith Baptist Church v. Waterford Township, (6th Cir., April 11, 2013), the U.S. 6th Circuit Court of Appeals held that a Michigan federal district court was wrong in denying a  church standing to complain about police investigations of complaints about loud music coming from the church during rehearsals, services and concerts. (See prior posting.)  The 6th Circuit said:

Plaintiffs have shown they have a reasonable fear that their speech, free exercise of religion, and freedom of association will be chilled.... Although Defendants did not actually enforce the ordinance, they credibly threatened to do so. As a result, Plaintiffs sustained a concrete and particularized injury.

The court also held that  claims against the prosecuting attorney in his individual capacity for injunctive and declaratory relief were improperly dismissed by the district court on qualified immunity grounds.  However the appeals court affirmed the district court's dismissal of civil conspiracy, equal protection and 4th Amendment claims, as well as all claims against the prosecuting attorney in his official capacity and for monetary damages in his individual capacity. [Thanks to Brian D. Wassom for the lead.]

Appeals Court: Wrong Standard Used In Denying YMCA's Property Tax Exemption

In Larimer County Board of Commissioners v. Colorado Property Tax Administrator, (CO App., April 11, 2013), a Colorado state appeals court held that the Board of Assessment Appeals applied the wrong legal test in denying the YMCA (except for its chapels and religious activity center) a religious purposes exemptions from property taxes for its two extensive recreational sites. The court concluded that the appeals Board had not applied the statutory presumption in favor of an exemption where an applicant has filed a declaration that sets forth its religious mission and purposes. Instead the Board's engaged in a detailed examination of a number of factors in determining that the YMCA's uses were not solely and exclusively religious.  The court said that this approach fosters an excessive government entanglement with religion. Also the Board erred in not considering whether the YMCA qualified for a partial charitable use exemption.

Azerbaijan's President Approves Restrictive Law On Distribution of Religious Books and Materials

News.Az today reports that Azerbaijan's president Ilham Aliyev has signed an order approving amendments to the Law on Freedom of Religion. Under the amendments, individuals and religious organizations can only acquire and use religious books, e-books, videos and other religious products and materials that are labeled with a special control stamp by government authorities. Government approval is required for the production, import or export of religious materials which must also be marked with a special control stamp before distribution.  Sale of religious materials can take place only at specialized locations established with government approval.

2 Studies Released: Religious Courts In US and State Bans on Applying Foreign Or Religious Law

Earlier this week, the Pew Forum On Religion & Public Life released two related studies. The first, titled Applying God’s Law: Religious Courts and Mediation in the U.S. surveys the routine operation of religious courts across the United States. The second is titled State Legislation Restricting Use of Foreign or Religious Law.  It surveys developments in 32 states in which legislation has been proposed, including 6 in which legislation has been enacted, to ban state courts from considering foreign or religious law in their decision making.

President Awards Medal of Honor Posthumously To Korean War Army Chaplain

Yesterday, President Obama awarded the Medal of Honor posthumously to Army Chaplain Emil Kapaun for his bravery during the Korean War. (White House Blog report.)  The President recounted at length Chaplain Kapaun's bravery in comforting the dying in a battle with Chinese troops early in the Korean War at Unson, and his subsequent service to his fellow prisoners of war in their prison camp where Kapun eventually died from disease and mistreatment. (Full text of President's remarks.)

In 2-1 Decision, State Appeals Court Says Judge's Reference To Biblical Passage Was Not A Problem

In In re Marriage of Sarah Peterson v. Adam Peterson,(MN Ct. App., March 25, 2013), the Minnesota Court of Appeals, in a 2-1 decision, upheld a trial court's award of sole physical custody of 3 minor children to the wife in a divorce action. One issue in the case was whether the trial judge improperly interjected her personal beliefs about a Biblical passage regarding a husband's authority to make decisions in the home.  The majority concluded that the judge's "brief, personal comments" were not an abuse of discretion, particularly since husband's lawyer did not object to them.

Judge Ross, dissenting in part, however took a very different view of the trial judge's comments that in her own marriage she dismissed the Biblical injunction that wives should obey their husbands. The dissent said in part:

I think a district court acts beyond its broad discretion in deciding child custody if the judge personally suggests her approval or disapproval of a religious doctrine that only one of the parties holds.... [K]nowing that the doctrine had taken a lead role in the custody trial, the judge revealed her bias by volunteering that in her own marriage she had “dismissed” the doctrine.

Judge Ross also expressed another concern:

Despite overwhelming evidence and findings recognizing that the children have always attended and continue to be actively involved in the marital church where they grew up, the district court never assesses how the children’s need for stability is impacted by the disruption in their church-related activities if Sarah has sole physical custody.

The Minneapolis Star Tribune reports on the decision.

Israeli Court Orders Release of Women Arrested For Praying With Prayer Shawls At Western Wall

In Israel, a Jerusalem Magistrate's Court yesterday ordered the release of 5 women who had been arrested after participating with Women of the Wall in their monthly women's prayer service near the Western Wall. According to Times of Israel, the women were arrested for wearing prayer shawls (traditionally worn only by men) during their Rosh Hodesh (new month) service. Women of the Wall have engaged in increasingly large prayer services since 1988 in their efforts to obtain legal recognition of egalitarian Jewish prayer at the Wall. The arrests came just as the Israeli government is moving toward a possible compromise between the more liberal branches of Judaism and the Orthodox rabbis who currently control the customs observed at the Western Wall plaza.  Judge Sharon Lary-Bavly, in ordering the women's release from custody, said that there were no grounds for their arrest and likened actions by the police to blaming a rape victim for the clothes she wears.

UPDATE: A transcript of the Court hearing and judge's ruling is available online via Failed Messiah blog.

President's Faith-Based Advisory Council Issues Report On Combating Human Trafficking

Yesterday the President's Advisory Council on Faith-based and Neighborhood Partnerships presented its recommendations on combating human trafficking in a 35-page report titled Building Partnerships to Eradicate Modern-Day Slavery. Advisory Council chair Susie Stern presented the report, and Melissa Rogers, director of the White House Faith-Based Office thanked the Advisory Council for its recommendations.

7th Circuit: Civil Courts Are Bound By Church Ruling That Defendant Is Not A Member Of A Religious Order

McCarthy v. Fuller, (7th Cir., April  10, 2013), is a complicated dispute over who is entitled to the possession of documents and artifacts of Sister Mary Ephrem who claimed to have experienced a series of apparitions of the Virgin Mary in which Mary told Sister Ephrem, "I am Our Lady of America." Sister Ephrem willed all her property to Sister Mary Joseph Therese, referred to in the litigation by her birth name, Patricia Fuller.  However, a lawyer, Kevin McCarthy and a Catholic layman, Albert H. Langsenkamp, who claims to be a Papal Knight of the Holy Sepulcher, contend they are entitled to the property and artifacts after they had a falling out with Fuller.  In this decision, an interlocutory appeal of an Indiana federal district court's order, the U.S. 7th Circuit Court of Appeals held that civil courts must recognize a ruling by the Holy See that "Patricia Ann Fuller is not a member of any religious Institute, formally recognized by the Catholic Church." That status is relevant to several issues in the litigation brought by McCarthy against Fuller-- allegations by Fuller that McCarthy defamed her by calling her a "fake nun," and allegations by McCarthy that Fuller defrauded him by misrepresenting herself as being a nun and living in a convent. Writing for a unanimous 7th Circuit panel, Judge Posner said:

In [its amicus brief] the Holy See has spoken, laying to rest any previous doubts: Fuller has not been a member of any Catholic religious order for more than 30 years. Period. The district judge has no authority to question that ruling. A jury has no authority to question it. We have no authority to question it.

AP reports on the decision.

Kansas Governor Signs Preservation of Religious Freedom Act

Yesterday, Kansas governor Sam Brownback signed HB 2203, the Preservation of Religious Freedom Act (full text). The new law provides in part:

Government shall not substantially burden a person’s civil right to exercise of religion even if the burden results from a rule of general applicability, unless such government demonstrates, by clear and convincing evidence, that application of the burden to the person: (1) Is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest....

Section 4 of the new law, however, limits its application in a number of ways.  Among other things, it does not apply to suits challenging prison or jail rules or conditions. It also does not authorize the application or enforcement in Kansas courts "of any law, rule, code or legal system other than the laws of the state of Kansas and of the United States." AP has further background on the law.

Singapore Court Refuses To Strike Down Ban On Male Homosexual Conduct

In Lim Meng Suang v. Attorney General, (Singapore High Ct., April 9, 2013), a Republic of Singapore trial court refused to declare Singapore's ban on male homosexual conduct to  be unconstitutional. Holding that the  ban is "an issue of morality and social values," the court in a lengthy opinion concluded that it cannot substitute its own views for that of Parliament where Parliament's decision is not "undeniably wrong." The National Law Journal, reporting on the decision, quotes the reaction of the gay couple who unsuccessfully challenged the law: "it is disheartening that we are criminals in the eyes of the law because of a segment of society ... insist on pushing their version of religion and morality on us."

President Renews Faith-Based Advisory Council

Last Friday, President Obama issued an Executive Order (full text) extending the life of the President's Advisory Council on Faith-Based and Neighborhood Partnerships for another two years. [Thanks to Blog From the Capital for the lead.]

Washington State AG Sues Florist Who Refused To Sell Flowers For Gay Wedding

Washington state attorney general Bob Ferguson announced yesterday that his office has filed a consumer protection lawsuit against a retail florist for refusing to sell flowers to a customer who wanted to purchase them for his wedding.  The complaint (full text) in  State of Washington v. Arlene's Flowers, Inc.,(Super Ct., filed 4/9/2013), alleges that the flower shop owner, Barronelle Stutzman, told customer Robert Ingersoll that she could not provide the flowers for his same-sex wedding "because of [her] relationship with Jesus Christ." The complaint alleges further that the sexual orientation discrimination involved here is a violation of the public accommodate provisions of Washington's Law Against Discrimination and thus a per se violation of the state's Consumer Protection Act. AP reports on the lawsuit.

South African Human Rights Commission Says Christian Center Violates LGBTI Rights

The South African Human Rights Commission yesterday issued a statement finding the Christian-affiliated Creare Training Centre has violated Lesbian, Gay, Bisexual, and Transgender (LGBTIs) rights to equality, dignity, religion, freedom of association, freedom and security of the person and education. The Centre was created by Our Father's Home Church and specializes in Christian studies and Christian Arts and Mission, It does not permit anyone in a same-sex "lifestyle" who "is not willing to be disciplined in this regard" to continue to study or lecture at the Centre. The Centre adds: "We offer ministry to help people that want to change their sexual orientation...." Gay Star News reports on the statement.

Catholic Diocese Sues Metals Dealer For Buying Stolen Church Vessels

According to the Toledo Blade, on Monday the Catholic Diocese of Toledo filed suit in an Ohio state trial court against a precious metals dealer that bought a solid silver gold-plated chalice and a gold ciborium. Both items were stolen from local Catholic churches. The complaint alleges that Toledo Coin Exchange "knew or should have known that the person from whom he purchased the stolen items was either a thief or a receiver of stolen property."

White House Issues Yom Hashoah Statement

Yesterday was Yom Hashoah, Holocaust Remembrance Day, on the Jewish calendar. The White House released a statement from President Obama (full text) marking the commemoration. The statement said in part:

Today, we honor the memories of the six million Jewish victims and millions of others who perished in the darkness of the Shoah.  As we reflect on the beautiful lives lost, and their great potential that would never be fulfilled, we also pay tribute to all those who resisted the Nazis’ heinous acts and all those who survived.

JTA reports on this, as well as a separate statement by Rep. Nancy Peolsi.

Romanian High Court Rejects Strange Religious Malpractice Lawsuit

The London Daily Mail reported last Saturday that Romania's High Court of Cassation has affirmed a lower court's decision rejecting a bizarre "religious malpractice" suit brought by lawyer Madalin Ciculescu against Orthodox bishop Constantin Argatu and four priests.  The lawsuit claims that the clergy failed to properly exorcise demons that were responsible for the bad smells that were ruining Cirlescu's business. Plaintiff says that the demons are now haunting him at home as well. The court agreed with the Church that the continued bad smells are imagined, and ordered Ciculescu to pay defendants' legal costs. Ciculescu says he plans to appeal to the European Court of Human Rights.

10th Circuit: School Did Not Violate Constitution In Preventing Religious Group From Distributing Fetus Dolls

In Taylor v. Roswell Independent School District, (10th Cir., April 8, 2013), the U.S. 10th Circuit Court of Appeals rejected 1st and 14th Amendment challenges by student members of a religious group, Relentless, to decisions by Roswell, New Mexico school officials that prevented them from distributing 2500 rubber fetus dolls to other high school students. The schools took the action after disruptions, described by the court as follows, caused by an initial distribution of the dolls:

Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops. Others threw dolls and doll parts at the “popcorn” ceilings so they became stuck. Dolls were used to plug toilets. Several students covered the dolls in hand sanitizer and lit them on fire. One or more male students removed the dolls’ heads, inverted the bodies to make them resemble penises, and hung them on the outside of their pants’ zippers.

The court also reject plaintiffs' challenge to a district policy requiring pre-approval for distribution of all non-school sponsored material on school grounds. Summarizing its 55-page opinion, the court said:

Plaintiffs’ free speech challenges fail because school officials reasonably forecasted that the distribution would cause substantial disruption and because the distribution did cause substantial disruption. Plaintiffs’ free exercise and equal protection claims fail because the decision to stop the distribution was not based on religion, and Plaintiffs failed to show they were treated differently from similarly situated students. Plaintiffs’ facial challenge to the school policy also fails. The policy is not unconstitutional under the prior restraint doctrine because it constrains official discretion and contains adequate procedural safeguards—and because it applies to the school environment where greater deference is given to school officials. It is not void for vagueness because students of ordinary intelligence can understand its meaning and it neither authorizes nor encourages arbitrary or discriminatory enforcement.

Education Week reports on the decision.