Religion Clause

Wednesday, May 22, 2013

5th Circuit Rejects Habeas Petition Challenging Law Making Sex Non-Consensual With Clergy Spiritual Adviser

In Smith v. Thaler, (5th Cir., May 21, 2013), the U.S. 5th Circuit Court of Appeals denied a habeas corpus petition filed by a non-ordained pastor who had been convicted of sexual assault under a Texas statute that makes sexual relations non-consensual when the actor is a clergyman who causes the other person to participate by exploiting the other person's emotional dependency on the clergyman as a spiritual adviser. The court held it was reasonable for state courts to conclude that the statute does not implicate protected sexual conduct and that the statute is not unconstitutionally vague in requiring a determination that someone acted as a clergyman who knowingly exploited the victim’s emotional dependency. The court also concluded that it was reasonable for state courts to reject the claim that the statute violates the Establishment Clause by fostering excessive entanglement.

4th Circuit Hears Oral Arguments Second Time In Liberty University's Affordable Care Act Challenge

Last Friday, in the second time the case is before the court, the U.S. 4th Circuit Court of Appeals heard oral arguments in Liberty University, Inc. v. Lew. The case is now a religious freedom challenge to the contraceptive coverage mandate, as well as a broader challenge to the Affordable Care Act. An audio recording of the oral arguments is now available on the 4th Circuit's website. Politico reports on the oral arguments. Originally the case was filed before the contraceptive coverage mandate was promulgated. The suit then claimed that the ACA more broadly permits federal funding of abortions and that it violates the Establishment Clause and equal protection clause because its narrow religious exemptions favor certain religious adherents. The 4th Circuit dismissed the case, holding that the Anti-Injunction Act barred the lawsuit, and the Supreme Court denied certiorari. Plaintiffs, however asked for a rehearing on the decision to deny review after the Supreme Court in National Federation of Independent Business v. Sebelius held that the Anti-Injunction Act does not bar a challenge to the ACA. The Supreme Court granted the rehearing, vacated it prior denial of certiorari and remanded the case to the 4th Circuit for further consideration in light of the National Federation of Business case. (See prior posting.)

Tuesday, May 21, 2013

State Department's 2012 International Religious Freedom Report Released; New Envoy To Monitor Anti-Semitism Announced

Yesterday, after comments by Secretary of Statse John Kerry, Suzan Johnson Cook, U.S. Ambassador-at-Large for International Religious Freedom, released the U.S. State Department's 2012 International Religious Freedom Report. The Report assesses the situation county-by-country around the world. The Report's Executive Summary outlines "some common themes regarding the status of religious freedom around the world":

Laws and policies that impede the freedom of individuals to choose a faith, practice a faith, change their religion, tell others about their religious beliefs and practices, or reject religion altogether remain pervasive.....

The use of blasphemy and apostasy laws continued to be a significant problem, as was the continued proliferation of such laws around the world. Such laws often violate freedoms of religion and expression and often are applied in a discriminatory manner....

This report also documents a continued global increase in anti-Semitism. Holocaust denial and glorification remained troubling themes, and opposition to Israeli policy at times was used to promote or justify blatant anti-Semitism....

In addition to anti-Semitism, intolerance by members of society towards those of other faiths besides Judaism was a growing problem, and all too often evolved into violence. While Christians were a leading target of societal discrimination, abuse, and violence in some parts of the world, members of other religions, particularly Muslims, suffered as well. Societal groups targeted members of minority branches of Islam and smaller faith groups, often those considered by the majority to be heretical or “foreign.”...

In many parts of the world... [g]overnments exacerbated religious tensions... fostering a climate of impunity, and failing to ensure the rule of law. In several instances of communal attacks on members of religious minorities and their property, police reportedly arrested the victims of such attacks....

In connection with release of the Report, Secretary of State Kerry also announced that Ira Forman will serve as the Special Envoy to Monitor and Combat Anti-Semitism.

Alaska's Compelling Interest In Limiting Yupik Eskimos' Salmon Fishing Trumps Free Exercise Claim

In an Alaska state trial court yesterday, acting Alaska District Court Judge Bruce G. Ward ruled in a 7-page opinion that Yupik Eskimos may not assert free exercise defenses to citations against them for illegally fishing for King Salmon. The judge held that while subsistence fishing by the Alaska Natives may well be the practice of their religion, the state has a compelling interest in placing limitations on the taking of Chinook salmon. According to yesterday's Alaska Dispatch, the court-- distinguishing a 1979 Alaska Supreme Court decision-- held:

based on the testimony of the fisheries biologists present during the evidentiary hearing, that the natural consequences of allowing the unfettered taking of Chinook salmon under the religious free exercise exception through subsistence harvest urged by the defendants would result in ... the decimation of the species by over fishing.

In a colloquy with defense counsel, the Judge Ward said: "This court understands there will be an appeal, and frankly I think there should be." Some 22 defendants are standing trial on charges growing out of a "fish-in" protest last year. (Background.)

UPDATE: Alaska Native News reports: "Many of the fishermen were found guilty on Monday when proceedings re-started. They were given $500 fines with $250 suspended and one -year probation."

Science Education Group Issues "Scorecard" On 2013 State Anti-Evolution Proposals

The National Center for Science Education yesterday issued their "scorecard" on state legislative proposals this year that are anti-evolution or anti-climate change. It reviews activity on "anti-science" bills in 9 states-- a total of 10 bills and one resolution.

This Year's Dearborn Arab International Festival Is Canceled

For the past 18 years, the Arab American Chamber of Commerce has sponsored an Arab International Festival in Dearborn, Michigan. In recent years the festival has sparked confrontations between Christian proselytizers and Muslim attendees, some of which have led to extensive litigation. This year the Festival was to be moved to a local park that police would be able to better control-- particularly in light of anti-Muslim proselytizers that were planning to attend. (See prior posting.) Yesterday the Arab American Chamber of Commerce announced that it was canceling this year's Festival in order to give organizers a year to ensure a quality event at the new location. Macomb County Advisor & Source reported on the Chamber's decision.

Monday, May 20, 2013

Supreme Court Grants Certiorari In City Council Invocation Case

The U.S. Supreme Court today agreed to weigh in on the extensively litigated issue of opening city council meetings with prayer. It granted certiorari in Town of Greece, NY v. Galloway, (Docket No. 12-696, cert. granted 5/20/2013). (Order List). In the case, the 2nd Circuit created an extremely fact-dependent test for determining the constitutionality of opening meetings of legislative bodies (here the town board) with prayer. It concluded that in this case, "an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity." (See prior posting.) Scotus Blog's case page has links to all the certiorari stage briefs. The town's petition for certiorari framed the question presented as: "Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity."

Britain Releases 2011 Census Data On Religious Affiliation and Characteristics of Population By Religion

Last week, Britain's Office for National Statistics released new data from the 2011 census on religious affiliation for residents of England and Wales. The data on numbers and median age shows 33.2 million Christians, 14 million with no religion, 2.7 million Muslims, 817 thousand Hindus, 423 thousand Sikhs, 263 thousand Jews, and 248 thousand Buddhists. Other tables show religion by ethnicity, religion by country of birth, and religion by economic activity. The Dalles Chronicle has further analysis of the data.

Sunday, May 19, 2013

Recent Prisoner Free Exercise Cases

In Rich v. Secretary, Florida Department of Corrections, (11 Cir., May 14, 2013), the 11th Circuit sent back for trial a Jewish prisoner's challenge under RLUIPA to Florida's refusal to provide him with kosher meals.

In Watkins v. Rogers, (10th Cir., May 17, 2013), the 10th Circuit dismissed a damage claim by a former federal prisoner who alleged that when he was moved to a federal transfer center a correctional officer with whom he had a history of disputes refused to serve him a common fare or vegetarian diet at one meal.

In Spivey v. Love, 2013 U.S. Dist. LEXIS 67530 (SD IL, May 10, 2013), an Illinois federal district court adopted in part a magistrate's recommendation (2013 U.S. Dist. LEXIS 68478, March 21, 2013) and permitted an inmate who complained that he had been unable to change his records to correctly reflect his religion as Reform Judaism to move forward against some of the defendants he named.

In Talley v. Womack, 2013 U.S. Dist. LEXIS 67442 (WD KY, May 10, 2013), a Kentucky federal district court dismissed a Muslim inmate's complaint that corrections officers on one occasion told his friend to leave Muslim religious services.

In Colletti v. Arpaio, 2013 U.S. Dist. LEXIS 67686 (D AZ, May 10, 2013), an Arizona federal district court dismissed an inmate's complaint that he was not permitted to keep his religious medallion.

In Porter v. Wegman, 2013 U.S. Dist. LEXIS 67959 (ED CA, May 9, 2013), a California federal magistrate judge permitted an inmate who is a member of the House of Yahweh religion to move ahead with his free exercise, RLUPA and equal protection claims growing out of alleged denials of reasonable accommodations for observing HOY Passover and of access to the Jewish Kosher Diet Program. UPDATE: The court adopted the magistrate's recommendations at 2013 U.S. Dist. LEXIS 100835, July 18, 2013.

In Montgomery v. Hall, 2013 U.S. Dist. LEXIS 69213 (SD NY, May 15, 2013), a New York federal magistrate judge held that insofar a a Muslim inmate was asserting a free exercise complaint about being strip searched, there was no showing of a burden on his religious beliefs.

In Munoz v. Tilton, 2013 U.S. Dist. LEXIS 69330 (ND CA, May 15, 2013), a California federal district court dismissed as moot a complaint by an inmate that at his former prison facility he was not allowed to have Christian CDs that had been mailed to him because they did not come from an approved vendor.

In Guillory v. Ellis, 2013 U.S. Dist. LEXIS 68752 (ND NY, May 14, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 69183, April 3, 2013) and permitted an inmate to move ahead with his free exercise and RLUIPA complaints that on two occasions he was not permitted to attend religious services for invalid reasons, including retaliation for filing a grievance. On another occasion plaintiff's meeting with rabbis was cut short. Plaintiff's equal protection claim was dismissed without prejudice.

In Lisasuain v. Hillsborough County Department of Corrections, 2013 U.S. Dist. LEXIS 70403, (D NH, May 17 2013), a New Hampshire federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 70425, May 6, 2013), and dismissed a complaint by an inmate that while he was on suicide watch he was allowed access to his Bible and rosary beads only one hour per day.

In Weathers v. Rock, 2013 U.S. Dist. LEXIS 69828 (ND NY, May 16, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 70058, April 23, 2013), and refused to dismiss a Jewish inmate's claim that his rights were violated when authorities refused to provide him with seder meals at Passover in his cell in the special housing unit, even if he was not allowed to attend seders with other inmates.

Appeals Court Dismisses Suit Alleging Defamation In Church Annulment Proceedings

A Kansas appellate court, in a 2-1 decision, affirmed the dismissal of a suit brought by plaintiff against his former wife alleging that she made defamatory statements to a Catholic Archdiocesan Tribunal in seeking an annulment of their marriage. The annulment petition claimed plaintiff had been diagnosed as bipolar. Purdum v. Purdum, (KA Ct. App., May 17, 2013), produced three separate opinions. Judge Green, while rejecting the trial court's "absolute privilege" rationale, dismissed on Establishment Clause grounds holding that moving forward with the case would excessively entangle the court with the Archdiocese's annulment proceedings.

Judge Bruns concurred, holding that the church autonomy doctrine-- also known as the ecclesiastical abstention doctrine-- applies and requires dismissal of the case. He said in part:

In order for authorities within the Roman Catholic Church to perform their duties in an ecclesiastical annulment proceeding, I believe it is imperative that the parties be free to allege their version of the facts with candor and without fear of being sued in secular courts.

Judge Atcheson dissented, arguing that the defenses put forward are not jurisdictional, and that the case has been dismissed at too early a stage. He also argued that this case does not threaten undue entanglement:

Purdum alleges that the petition for annulment contains a factual representation about him that is false and defamatory. The representation has nothing to do with his religious beliefs or the Catholic Church's ecclesiastical doctrine or views.... A court or a jury would not be drawn into a theological debate or an evaluation of annulments or other Catholic ritual in assessing the statement's falsity or its defamatory nature. In other words, the forum of publication—as part of a request to the Archdiocese for an annulment—is immaterial to the content of the statement that Purdum says makes it libelous.

Saturday, May 18, 2013

Afghan Parliament Tables Bill Protecting Women After Objections From Islamic Legislators

Today's Deutsche Welle reports that in Afghanistan's Parliament, lawmakers have withdrawn a bill that would have instituted a number of protections for women. The action came after religious parties complained that the proposed law was un-Islamic. The law would have set a minimum age for marriage for girls, outlawed domestic violence, supported shelters for women who were victims of domestic abuse, barred prosecution of women for rapes committed against them, and banned "baad" (a practice of trading a young girl to settle a family dispute). Conservative member of parliament Khalil Ahmad Shaheedzada said that the law reflected values not applicable in Afghanistan, that it might encourage promiscuity and give girls ideas about running away from home. In 2009, President Hamid Karzai had promulgated a Law on Elimination of Violence Against Women. The bill in Parliament was an attempt to assure that those protections could not be reversed by a future president.

French President Signs Same-Sex Marriage Bill After Constitutional Council Upholds It

The New York Times reports that in France today, President Francois Hollande signed into law Projet de Loi Ouvrant le Mariage aux Couples de Personnes de Même Sexe, making France the 14th country to legalize same-sex marriage. Hollande's action follows a decision handed down yesterday by France's Constitutional Council rejecting constitutional challenges to the new law. (Full text of decision in French; Council's press release in French). Parliament passed the law last month. (See prior posting.)

Friday, May 17, 2013

Catholic Diocese Settles Suit Complaining About Priest's Statements During Confession

The Concord Monitor reports today that the Catholic diocese of Manchester has settled a breach of contract lawsuit filed against it in February in which a 14-year old boy's parents complained about statements made by a priest to their son during confession at his Catholic school. The suit claims the school failed to provide the safe learning environment that was promised. In the settlement, the diocese will pay only $2000, which will be used for the boy's future educational costs. According to the paper's report:

In the lawsuit filed at Hillsborough County Superior Court, [the parents] accused [Rev. George] Desjardins of asking the boy whether he had “engaged in watching pornographic material and masturbating.” When the boy said that he hadn’t and that he had a girlfriend, Desjardins told the boy to use “rubbers” and warned him to be careful because a girl can “yell ‘rape’ ” during sex, the lawsuit continued.

The parents also accused Desjardins, who is an assisting retired priest at Christ the King Parish, of attempting to grab the boy twice as the student tried to avoid him. [A diocese spokesman] has said that physical contact was nothing more than a handshake after Mass....

Even though school officials did not believe that the priest's remarks amounted to misconduct, Desjardins took a leave of absence once the lawsuit was filed.

Rabbi's Sex Assault Conviction May Encourage Others In New Jersey Orthodox Community To Bring Complaints To Civil Authorities

AP reported earlier this week that a guilty plea in the sexual assault trial of former yeshiva teacher Rabbi Yosef Kolko "may be a watershed for the prosecutor's office and the Orthodox Jewish community in Lakewood [New Jersey]." The plea came Monday, part way through Kolko's trial, after two others claiming to have been abused by Kolko contacted the prosecutor's office last week. The Orthodox Jewish community in Lakewood has been reluctant to report sex abuse complaints to civil authorities, preferring instead to handle them through rabbis and rabbinical courts. (See prior posting.) In this case, the young victim's family had been ostracized by the community for taking the case to civil courts. Senior Assistant Prosecutor Laura Pierro said she hoped that this trial would open the door to others in the community cooperating with prosecutors.

Convictions Handed Down In Securities Fraud Conspiracy That Used Ministers To Sell Stock

The U.S. Attorney's Office for the Western District of Missouri announced Wednesday that 5 defendants were convicted in federal court in a $10.2 million securities fraud conspiracy involving the use of clergy to sell shares in Petro America Corporation. Nine other plead guilty in the conspiracy. According to the press release:

The defendants used religious language in their pitches and often recruited through churches. [Defendant] Hawkins cultivated relationships with numerous ministers, whom he dubbed the Ministers Alliance. The Ministers Alliance was a group of about 15 ministers (most of whom resided in the Kansas City area) who supported and promoted Petro America. He gave them white fedora hats and millions of Petro shares, which he encouraged them to sell secretly, accepting kick-backs from the proceeds. Members of the Ministers Alliance sold Petro shares to their congregants and others. The Ministers Alliance frequently met at restaurants and participated in weekly conference calls with hundreds of investors in dozens of states.

Louisiana Appeals Court Upholds Election, Injunctive Relief In Baptist Church Dispute

In Thornton v. Carthon, 2013 La. App. LEXIS 923 (LA App., May 15, 2013), a Louisiana state appeals court affirmed the trial court's decision confirming the court-ordered election of the board of trustees of Shreveport's Baptist Temple Church. Some of the newly elected trustees had been attempting to call a membership meeting to oust Rev. Alvin Carthon as the church's pastor. The trial court found, and the appeals court agreed, that a membership meeting purporting to vote Carthon out had been premature, but that Carthon should be enjoined from entering the church without court approval and from acting on behalf of the church in any natter. Affirming the trial court's judgment, the appeals court said: "The court's rulings sanctioning the newly-elected Board and holding Rev. Carthon's immediate participation in abeyance were clearly aimed at allowing the Board and church membership time to deliberate and choose the ministerial leadership for the church."

Kansas City Diocese Settles A Child Pornography Lawsuit

The Kansas City Star reported that on Tuesday the Kansas City-St. Joseph (MO) Catholic Diocese has agreed to settle a child pornography lawsuit filed against it, Bishop Robert Finn and Catholic priest Shawn Ratigan, for $600,000. The suit was brought by parents of a girl who claimed that Ratigan took sexually explicit photos of the girl when she was 2 years old, and distributed them over the Internet. Ratigan plead guilty to child pornography charges last year, and is awaiting sentence. Bishop Finn was found guilty last year on misdemeanor charges of failing to report suspicion of child abuse. (See prior posting.)

In the civil suit settled this week, the only claim the court permitted to move ahead was one alleging that Bishop Finn and the diocese possessed child pornography by viewing and making copies of Ratigan's photos. The court must still approve the structure of the settlement, which will be covered by insurance. The diocese has been named in dozens of priest sexual abuse lawsuits, including three others involving Ratigan.

Thursday, May 16, 2013

Florist Counter-Sues State AG Over Right To Refuse To Create Floral Arrangements For Same-Sex Wedding

As previously reported, last month the Washington state attorney filed a consumer protection lawsuit in state court against a retail florist for refusing, because of her religious opposition to same-sex marriage, to furnish floral arrangements for a customer's same-sex wedding. Now defendants Arlene's Flowers, Inc. and its owner Barronelle Stutzman, have not merely filed an answer, but at the same time filed a third-party complaint, counter-suing the state attorney general for violating the shop owner's free speech and free exercise rights under the U.S. and Washington state constitutions. The third party complaint (full text) in State of Washington v. Arlene's Flowers Inc., (WA Super Ct., filed 5/16/2013) alleges in part:

Barronelle is being sued, and she fears future suits by the Attorney General, for following her conscience in her work, which has resulted in a chilling effect in the exercise of her constitutional rights and a chill in the exercise of constitutional rights by other small business owners in Washington.

Alliance Defending Freedom issued a press release announcing the filing of the counter-suit.

In Wake of IG Report, Evangelical Leaders Charge IRS Also Dealt Improperly With Religious Non-Profits

As widely reported, this week the Treasury Department's Inspector General for Tax Administration issued a report (full text) concluding that the Internal Revenue Service used inappropriate criteria in reviewing applications of Tea Party and similar conservative organizations for tax exempt 501(c)(4) status. Now, two well-known Christian evangelical leaders are claiming that the IRS also dealt improperly with certain conservative religious non-profits.

In a May 14 press release, Dr. James Dobson said that Family Talk Action Corp., formed to provide Christ-oriented advice and education and speak on cultural issues that affect the family, filed its Form 1024 application for 501(c)(4) status in September 2011. In March 2013 the group still had not received its determination letter. The attorney who filed the application had a conversation with the IRS reviewing agent. According to the press release:

Ms. Medley [the IRS agent] responded saying, I don't think your Form 1024 ... will be granted because Family Talk Action is "not educational" because it does not present all views. She continued, saying that Family Talk Action sounded like a "partisan right-wing group" because, according to Ms. Medley, it only presents conservative viewpoints. She then added, "you're political" because you "criticized President Obama, who was a candidate."

Opposing Views has more on the case.

Meanwhile, as reported by CNN, on May 14 prominent evangelical leader Franklin Graham wrote President Obama (full text of letter) complaining of tax audits last year. After the Billy Graham Evangelistic Association ran full page ads supporting North Carolina's proposed Marriage Amendment, the Association as well as an affiliated group, Samaritan's Purse, were notified by IRS that a review would be conducted of their tax status as Section 501(c)(3) organizations for the 2010 tax year. Franklin wrote:

I do not believe that the IRS audit of our two organizations last year is a coincidence-- or justifiable.

UPDATE: On May 17, the Thomas More Society (TMS) announced that it has submitted 150 pages of materials (full text) to the House Ways and Means Committee which, according to TMS, shows IRS harassment of pro-life organizations.