New Jersey Governor Drops Appeal of Same-Sex Marriage Decision

AP reports that yesterday New Jersey Governor Chris Christie announced that he is dropping the state's appeal in Garden State Equality v. Dow, a case in which a trial court extended the right to marry to same-sex couples in New Jersey. The governor's decision comes after Friday's decision by the New Jersey Supreme Court refusing to stay the trial court's opinion pending appeal. (See prior posting.) Christie said he was dropping the appeal because the Supreme Court's opinion denying a stay made it clear that the Court agreed with the trial court's decision.

Former Kansas AG Sanctioned By State Supreme Court Over Abortion Clinic Investigations

The Kansas Supreme Court last week imposed an indefinite suspension of the right to practice law on former state attorney general Phillip Kline for 11 violations of the rules of professional conduct in his investigation of abortion clinics while he served as Attorney General and for his role with a citizen-requested grand jury while he served as Johnson County District Attorney. In In re Phillip Dean Kline, (KA Sup. Ct., Oct. 18, 2013), the Supreme Court, in a 154-page opinion, concluded:

The violations we have found are significant and numerous, and Kline's inability or refusal to acknowledge or address their significance is particularly troubling in light of his service as the chief prosecuting attorney for this State and its most populous county. 

 Ultimately, we unanimously conclude the weight of the aggravating factors—i.e., Kline's inability or refusal to acknowledge the line between overzealous advocacy and operating within the bounds of the law and his professional obligations; his selfish motives; and his lengthy and substantial pattern of misconduct—weigh more heavily than the mitigating factors and merit his indefinite suspension.

Five of the Supreme Court's seven justices disqualified themselves in the case and lower court judges were appointed to hear the case in their place. National Law Journal, reporting on the decision, says that Kline is currently on the faculty of Liberty University School of Law in Lynchburg, Virginia. He can petition for readmission in Kansas in three years.

New Zealand Rights Tribunal Upholds Church's Exclusion of Man From Clergy Because of Same-Sex Relationship

In Gay and Lesbian Clergy Anti-Discrimination Society, Inc. v. Bishop of Aukland, (NZ Human Rts. Rev. Trib., Oct, 17, 2013), the New Zealand Human Rights Review Tribunal rejected a claim by a man seeking to enter the ordained ministry of the Anglican Church that his rejection violated the New Zealand Human Rights Act 1993.  The Bishop of Auckland refused to allow Eugene Sisneros to enter the preliminary discernment process because Sisneros was in an unmarried same-sex relationship.  Sisneros claimed that this amounted to illegal discrimination on the basis of marital status and sexual orientation.  The Tribunal held, however, that the exception in Sec. 39(1) of the Act precluded the discrimination claim. Sec. 39(1) provides that:

Nothing in section 38 shall apply where the authorisation or qualification is needed for, or facilitates engagement in, a profession or calling for the purposes of an organised religion and is limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion.

In concluding that the exemption applied, the Tribunal said:

it is clear that the purpose of s 39(1) was (in the present context) to preserve the institutional autonomy of organised religions in relation to their decisions concerning the appointment of clergy and ministers. The plaintiff’s interpretation would entirely negate that purpose. The Anglican Church would be required to ordain priests who taught that the right ordering of sexual relationships can only occur within a Christian marriage (defined by the Formularies as a physical and spiritual union of a man and a woman) but who themselves did not “live” that doctrine.  Ministers would not be exemplars, nor would they be bound by submission to the Constitution of the Church or by their declaration of allegiance to its doctrine and Formularies. This would undermine in the most fundamental way the religious autonomy of the Church, its right to be selective about those who will serve as the very embodiment of its message and its voice to the faithful.

Last Friday's New Zealand Herald reported on the decision.  [Thanks to Eric Rassbach for the lead.]

Accommodating Muslim Workers' Prayer Times Created Undue Hardship In Beef Plant

In EEOC v. JBS USA, LLC, (D NE, Oct. 11, 2013), a Nebraska federal district court held that a beef processing plant need not accommodate the prayer practice of Somali Muslim employees because doing so would impose "undue hardship." Granting unscheduled prayer breaks would have impacted safety, efficiency and morale of other employees.  Rescheduling the meal break during Ramadan to coincide with sunset prayer time created problems with sanitizing the plant and impinged on other employees. Lexology reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Dutch Appeals Court Holds Church of Scientology Is Tax Exempt

In the Netherlands last week, the Amsterdam Court of Tax Appeals reversed a lower court decision and held that the Church of Scientology qualifies as a Public Benefit Organization (ANBI) which is generally tax exempt and can receive tax deductible gifts. As reported by Dutch News and a Scientology press release, the lower court had held that the organization did not qualify because it charges for its auditing and training programs. However the appeals court concluded that Scientology's activities are religious and ideological in nature, and other churches also charge for training. Unlike commercial establishments, Scientology gives the training at a reduced fee or free to those who cannot afford them otherwise.  The full text of the decision in Scientology Kerk Amsterdam v. de inspecteur van de Belastingdienst, (Amsterdam Ct., Oct. 17, 2013) is available online in Dutch. [Thanks to Tom Rutledge for the lead.]

Op-Ed Says Europe's Concern About Male Ritual Circumcision Is Not Anti-Semitic

Haaretz yesterday carried an interesting opinion piece by James McDonald titled Europe's Shudder at Circumcision. He argues that the recent resolution by the Council of Europe's Parliamentary Assembly questioning male circumcision performed for religious reasons (see prior posting) should not be seen as a reflection of anti-Semitism. Instead, he argues, it reflects Europe's "continued disposition towards cultural imperialism" in a society in which male circumcision is much more unusual than in the United States.

Recent Articles of Interest

From SSRN:

• Charles Becker, Windsor's Push Toward Universal Interstate Recognition of Same-Sex Marriages, (September 20, 2013).
• Hamid Harasani, Accommodating Two Worlds, (April 2013).
• Raini Hassan, Hanna Ambaras Khan, Imad Fakhri Al Shaikhli, & Nora Abdul Hak, Setting-Up a Sulh-Based, Community Mediation-Type of Online Dispute Resolution (ODR) in Malaysia, (May 27, 2013).
• Selim Serbes, Critiques and Suggestions as to Construction and Approach Regarding Islamic Law Clauses in the Contracts; Two Case Illustrations in Common Law, (May 15, 2013).
• Adis Duderija, Neo-Traditional Salafis in the West: Agents of (Self)-Exclusion, (in Samina Yasmeen, Muslims in the West and Social Exclusion, Ashgate, 2014, Forthcoming).

USCIRF Urges President To Raise Religious Freedom Issues With Pakistan Prime Minister

Pakistani Prime Minister Nawaz Sharif arrives in Washington today for a 4-day visit to the United States. Voice of America reports that he will meet with Secretary of State Kerry today and President Obama on Wednesday.  In a press release on Friday, the U.S. Commission on International Religious Freedom urged Obama "to raise concerns about the dire religious freedom situation in Pakistan, with both Muslims and religious minorities consistently confronting violence or jail."  In July, USCIRF issued a special report on targeted violence against minority religious communities in Pakistan, particularly against Shi'ite Muslims. (See prior posting.)

FFRF Head Interviewed

The Madison (WI) Capital Times today published an interview with Annie Laurie Gaylor, co-founder and co-president of the Freedom From Religion Foundation.  She says that the Foundation is constructing an adjoining building that will quadruple the square footage of its office space. It has 13 permanent staff employees. Asked "What is the biggest misconception about FFRF?", Gayor responded:

Maybe that we’re trying to take religion away from individuals. Or that somehow if you are working to keep government neutral, that’s attacking religion. There’s this idea that religion is good, therefore why wouldn't government want to promote something good? I think it’s a myth that all religion is good, but even if it were, that’s not the place of government. Government is supposed to be neutral. It should not make up people’s minds. It’s not majority rule when it comes to matters of personal conscience. Some of this is the fault of our school system that we don’t do enough with civics lessons. People can grow up in this county with this great Bill of Rights and freedom and not understand it. That’s dismaying.

Increasingly British Inmates Are Being Bullied Into Converting To Islam

Sky News reports today that in Britain, increasing numbers of prison inmates are being bullied into converting to Islam. The Prison Officers Association says this is a result of the growing influence of Muslim gangs in British prisons. Some victims have been terrorized by the gangs.  But there is also concern that some of the converts could become radicalized. 13% of Britain's prison population is Muslim

Recent Prisoner Free Exercise Cases

In Sanchez v. Earls, (8th Cir., Oct. 16, 2013), the 8th Circuit dismissed an inmate's complaint that he was not allowed to possess his crucifix and chain because it was valued at over $100.

In Nance v. Miser, 2013 U.S. Dist. LEXIS 144714 (D AZ, Oct. 7, 2013), an Arizona federal district court held that a Muslim inmate can move forward on his claim that he was denied a Halal diet with meat, and on his claim for damages for delay in granting him a shaving waiver.

In Ind v. Colorado Department of Corrections, 2013 U.S. Dist. LEXIS 146717 (D CO, Oct. 10, 2013), a Colorado federal district court allowed an inmate who is a member of the Christian Separatist faith to move ahead with his claim that his religious freedom is infringed by restrictions on books, magazines and correspondence courses for prisoners in administrative segregation, and with his claim that he was classified as a member of a security threat group because of his religion.

In Shaw v. Hall, 2013 U.S. Dist. LEXIS 145860  (MD GA, Oct. 9, 2013), a Georgia federal district court permitted a Muslim inmate to amend his complaint to pursue claims arising after the suit was originally filed involving denial of meals and medication before daylight during Ramadan. The court rejected defendants' claim that these cannot be raised because administrative remedies were not exhausted before the original filing of the lawsuit.

In Finn v. Medlin, 2013 U.S. Dist. LEXIS 145361 (SD GA, Oct. 8, 2013), a Georgia federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 145912, July 25, 2013) and dismissed an inmate's challenge to a rule barring insulin dependent diabetics from living in the faith-based dorm.

In LaPlante v. Lovelace, 2013 U.S. Dist. LEXIS 145870 (WD MI, Oct. 9, 2013), a Michigan federal district court allowed an inmate to move ahead with a claim that his free exercise rights were infringed when he was not allowed to attend church services because of a no-contact order between him and another inmate, and a challenge to the jail's rule against receiving books, including a Bible, through the mail.

In Ford v. Bureau of Prisons, 2013 U.S. Dist. LEXIS 147524 (MD PA, Oct. 11, 2013), a Pennsylvania federal district court dismissed a complaint by a Nation of Islam inmate that no break fast meals were provided on certain NOI holidays and that other impediments were placed in the way of practicing his religion.

In Jackson v. Keith, 2013 U.S. Dist. LEXIS 146441 (WD LA, Oct. 9, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 146443, June 3, 2013) and dismissed an inmate's complaint regarding delays and a cancellation of call-outs for the Islamic Community of Winnfield.

In Clark v. Tucker, 2013 U.S. Dist. LEXIS 147572 (MD FL, Oct. 11, 2013), a Florida federal district court dismissed with leave to amend an inmate's complaint that he was placed in confinement for four weeks without any clothes for speaking in tongues.

Cert. Denied In Monks' Victory Over Restrictive Rules Limiting Sale of Caskets

Last Tuesday, the U.S. Supreme Court denied review in Castille v. St. Joseph Abbey, (Docket No. 13-91, certiorari denied 10/15/2013). (Order List.) In the case, the U.S. 5th Circuit held unconstitutional rules issued by the Louisiana State Board of Embalmers and Funeral Directors that only allow funeral homes to sell caskets. The law was challenged by a group of Benedictine monks who make and sell wooden caskets at prices significantly lower than offered by funeral homes. (See prior posting.) The Baton Rouge Advocate yesterday reported on the Court's action.

New York Mayoral Candidate Criticized For Breach of Customs In Orthodox Jewish Neighborhood

New York City Republican mayoral candidate Joe Lhota is being criticized for his lack of familiarity with Orthodox Jewish customs during campaign stops this week in Brooklyn's Boro Park neighborhood.  According to Haaretz yesterday, in a stop at a small Orthodox synagogue, Lhota had female staffers among those who walked  with him into an ongoing sex-segregated prayer service.  Subsequently at a kosher soup kitchen, Lhota twice tried to shake hands with Orthodox Jewish women whose beliefs preclude physical contact with men other than their husband.  Lhota's Democratic opponent in the mayoral race, Bill de Blasio, said:  "I find it perplexing that he would have organized an event in a situation women wouldn’t have access to."

New Jersey Supreme Court Refuses Stay of Decision Allowing Same-Sex Marriage

The New Jersey Supreme Court yesterday denied a stay of a trial court's decision (see prior posting) extending the right to marry to same-sex couples. Before this decision, New Jersey law allowed same-sex couples to enter civil unions, but not to marry.  Beginning Monday they will now be able to marry.  In Garden State Equality v. Dow, (NJ Sup. Ct., Oct. 18, 2013), the state Supreme Court held unanimously that the state had not shown a reasonable probability of success on the merits in its appeal, saying:

The State's statutory scheme effectively denies committed same-sex partners in New Jersey the ability to receive federal benefits now afforded to married partners.

Bergen County Record reports on the decision.

French Constitutional Council Rejects Mayors' Attempt To Avoid Performing Same-Sex Marriages

France's Constitutional Council, its highest constitutional tribunal, today rejected claims by seven mayors that their freedom of conscience is violated by imposing on them an obligation to perform same-sex marriages.  According to Reuters, French law requires all couples to be married in civil ceremonies conducted by mayors or their deputies, after which the couples may also have a religious ceremony. After several mayors announced they would not perform same-sex marriages, the Interior Minister issued a memo warning them that they risked five years in jail or a 7,500€ fine. Here is the full text (in French) of today's decision in M. Frank M. et autres, (Const. Counc., Oct. 18, 2013) rejecting the mayors' complaint that no conscience clause was included in France's same sex marriage law enacted last May.  It is expected that the case will be appealed to the European Court of Human Rights.  [Thanks to Scott Mange for the lead.]

Oregon Will Recognize Out-of-State Same Sex Marriages For Purposes Of Tax and Benefit Laws

In Oregon, an Oct. 16 opinion of the Deputy Attorney General (full text) concludes that state agencies can and should recognize same-sex marriages validly performed in other states, for purposes of administering tax laws and benefit programs. Oregon permits same-sex domestic partnerships, and under the Oregon Family Fairness Act, domestic partners are entitled to the same benefits as married couples.  This week's opinion allows similar treatment for couples not registered as domestic partners in Oregon but validly married elsewhere, despite Oregon's state constitutional provision (Art. XV, Sec. 5a) prohibiting same-sex marriage. The opinion concludes that construing the constitutional provision to prohibit the recognition of out-of-state same-sex marriages would likely violate the federal constitution. BuzzFeed discusses the opinion and reprints a memo from the state Department of Administrative Services to state agency directors directing that "Oregon agencies must recognize all out-of-state marriages for the purposes of administering state programs." [Thanks to Dale Carpenter at Volokh Conspiracy for the lead.]

U.S. Ambassador-At-Large For International Religious Freedom Resigns

World reports that U.S. Ambassador-at-Large for International Religious Freedom Suzan Johnson Cook has resigned.  Wednesday was her last day at the U.S. State Department. Here is World's assessment of Cook's tenure:

[O]verall Cook left little impression among religious freedom advocates. She came to the position with a background as a pastor, with no diplomatic experience, and never seemed to embrace that diplomatic role for herself. While religious freedoms, especially in the Middle East, have spiraled downward in the last couple years, Cook did little publicly in the way of advocacy beyond presenting annual reports on violations.

[Thanks to Blog From the Capital for the lead.]

Camp Counselor Seeks To Withdraw Guilty Plea In Sex Assault Case, Claiming Pressure From Orthodox Jewish Community Led To Plea

In Toms River, New Jersey yesterday, a state Superior Court judge heard testimony in connection with the motion by former Orthodox Jewish camp counselor Yosef Kolko to withdraw his guilty plea to charges of sexual assault against a boy when the boy was 11 and 12 years old.  According to the Asbury Park Press, Kolko claims he was the target of a campaign in the Lakewood (NJ) Orthodox Jewish community to pressure him to plead guilty in order to avoid the negative publicity for the community that would come with a trial. Witnesses for Kolko say the campaign involved a combination of vivid descriptions of what prison would be like, and an offer of $100,000 and a job when he got out of jail if he plead guilty. Kolko steadfastly maintained his innocence until he decided to plead guilty while the trial was under way.

Belgian Animal Rights Group Accused of Exploiting Holocaust In Campaign Against Ritual Slaughter

In Belgium, Jewish and Muslim groups are strongly criticizing a radio ad calling for an end to Halal and kosher slaughter of animals (which is performed without first stunning the animal).  The ad was produced by the Antwerp-based animal welfare group GAIA.  According to yesterday's Times of Israel, the ad, which was sent by e-mail to 200 politicians, is seen by critics as using Holocaust themes to further the group's animal rights cause.  The ad delivers testimony of capture and transportation from a lamb waiting for slaughter. A Jewish spokesman called the ad "a new example of the trivialization of the crime of genocide..." However GAIA said: "This is an attempt to describe what animals experience now without any religious or historic connotations."

Missouri Bill To Restore School Christmas Celebrations Takes Effect After Override of Governor's Veto

As previously reported, last July Missouri Governor Jay Nixon vetoed HB 278 that provides:

No state or local governmental entity, public building, public park, public school, or public setting or place shall ban or otherwise restrict the practice, mention, celebration, or discussion of any federal holiday.

The bill was particularly aimed at restoring Christmas celebrations. Last week's St. Louis Jewish Light reports however that in an action largely unnoticed by the media (see this coverage), on Sept. 11 the state legislature voted to override the governor's veto.  The bill went into effect Oct. 11. In a letter sent to Missouri school administrators and board members, the bill's sponsor Rep. Rick Brattin wrote:

It is an honor for me to play a role in this process and to stand in defense to celebrate our holidays in the same ways that our parents and grandparents did. My hope is that HB 278 will help reverse the chilling effect we have seen on the ability of teachers and students to observe these holidays.

[Thanks to Joe Bernstein for the lead.]