Protester At Center of SCOTUS Decision On Military Base Protests Was Catholic Worker Movement Adherent

Yesterday the U.S. Supreme Court in United States v. Apel, (US Sup. Ct., Feb. 26, 2014), held that a federal statute which makes it a crime to re-enter a military installation after the base commander orders a person not to do so applies to a protest area at Vandenberg Air Force Base that is open to the public.  The Court describes John Dennis Apel, the protester involved in the case, as an antiwar activist. It says nothing about the religious basis for Apel's protests found in his involvement in the Catholic Worker Movement. Here is some insight into Apel's religious beliefs from a Dec. 2013 article reprinted on the Pacific Life Community's website:

[Apel] and a dedicated core of volunteers — including his wife of 15 years, Tensie — provide food and clothes to the community’s poor. They run a summer children’s program and a weekly free medical clinic.

The couple are devotees of the Catholic Worker movement, a social reform cause committed to social justice, pacifism and voluntary poverty that they’ve dedicated most of their adult lives to promoting.

They receive no salary — the couple and their two young children survive on his Social Security income, as well as donations and the charity of others.

For more than a dozen years, as part of Mr. Apel’s deep peace-oriented belief system, he has regularly stood outside the gates of Vandenberg, protesting what he believes is an immoral military mission. He has been arrested 15 times, and received “ban and bar” citations that restrict his ability to protest near the classified military installation.

New Ukraine Acting President Turchynov Is Baptist Pastor

Christianity Today reports that Ukraine's new Acting President who took office on Sunday is not only a well-respected opposition politician, but is also a Baptist pastor. BBC reports that the interim President, Olexander Turchynov, was the top aide to former prime minister Yulia Tymoshenko (who was imprisoned by the now ousted President Viktor Yanukovych). Turchynov preaches regularly at one of the Baptist churches in Kiev. In an article today, Religion News Service speculates:

Acting President Oleksandr Turchynov is neither Ukrainian Orthodox nor Eastern Rite Catholic, and that may be the key to his success at a time when fissures between East and West are threatening to split the country, 

Missouri County Treasurer Will Accept Same-Sex Marriages From Other States In Unclaimed Property Claims

According to Monday's Columbia Daily Tribune, in Boone County, Missouri (which includes Columbia) County Treasurer Nicole Galloway has announced she will recognized same-sex marriages from out of state. This means that after the death of a spouse, a surviving same-sex spouse can obtain unclaimed property of the deceased being held by the county. The county treasurer took the step despite the provision in Sec. 33 of the Missouri Constitution that provides: "That to be valid and recognized in this state, a marriage shall exist only between a man and a woman." Galloway said: "In Boone County and in my office, we accept legal documents from every state in America, and this is just an extension of that." [Thanks to Alliance Alert for the lead.]

Lesbian Employee Forced To Watch Religious Anti-Gay Video Loses Claim For Harassment

As reported by the Santa Rosa Press Democrat, a Sonoma County, California trial court yesterday issued a tentative decision (full text) in White v. GC Micro Corp., (Cal. Super. Ct., Feb. 25, 2014).  Plaintiff in the case, a lesbian in a committed domestic partnership, was recruited by GC Micro's CEO to move from Colorado to California to work for the company. She was fired after 5 months.  The supervisor in charge of training sales staff made derogatory remarks about plaintiff's sexual orientation and lifestyle, and required her to watch a video featuring a minister who had "outspoken disdain for homosexuality" and believed "that all homosexuals are sinners." However, according to the court, plaintiff "does not allege that the video contained any inappropriate material." The court allowed plaintiff to move ahead with a sexual orientation discrimination claim and a fraud claim against the company, but dismissed with leave to amend the claims against the CEO and supervisor personally. The court dismissed completely plaintiff's claim for harassment.

Suit Challenges World War I Memorial Cross

A humanist organization and three individuals yesterday filed suit challenging the constitutionality of a 40-foot tall cross erected nearly 90 years ago as a memorial to those killed in World War I.  The cross is located on a median between roadways in Bladensburg, Maryland.  The complaint (full text) in American Humanist Association v. Maryland- National Capital Park and Planning Commission, (D MD, filed 2/25/2014) contends that the county's:

ownership, maintenance and prominent display on public property of the Bladensburg Cross amounts to the endorsement and advancement of religion (and, specifically, an endorsement of and affiliation with Christianity) in violation of the Establishment Clause.

American Humanist Association issued a press release announcing the filing of the lawsuit.

Universities In Crossfire Over Bibles In Hotel Rooms

Two state universities find themselves in the cross fire of rival advocacy groups over the issue of Gideon Bibles in the night stands at university hotels and conference centers.  The Blaze reported yesterday that after complaints by the Freedom from Religion Foundation, Iowa State University's Hotel Memorial Union agreed to remove bibles from in-room night stands and place them instead in its downstairs library and reading room. The University of Wisconsin-Extension also agreed to remove bibles from guest rooms in its conference center. Now however Alliance Defending Freedom has told both universities that the 1st Amendment does not require them to remove the Bibles, and doing so amounts to viewpoint discrimination.

Greek Jews Sue Germany In European Court For Return of Ransom Paid To Nazis

AP reports that the Jewish community of Thessaloniki, Greece last week filed an appeal with the European Court of Human Rights in a suit against Germany seeking to recover the $69 million in ransom paid in 1942 to Nazi occupiers for the release of thousands of Jewish men aged 18-45 who were forced as slave laborers to work on construction projects across Greece. Soon after their release, the city's entire Jewish population was sent to German death camps anyway. Greece's Supreme Court dismissed the lawsuit last year on jurisdictional grounds.

Obama Criticizes Uganda President's Signing of Anti-Gay Law

As he said he would, yesterday Ugandan President Yoweri Museveni signed into law a harsh Anti-Homosexuality bill. CNN reports that at the public signing of the bill, Museveni said he would not allow the West to impose its values on Uganda.  In response, the White House issued a statement (full text) reading in part:

Instead of standing on the side of freedom, justice, and equal rights for its people, today, regrettably, Ugandan President Museveni took Uganda a step backward by signing into law legislation criminalizing homosexuality.  As President Obama has said, this law is more than an affront and a danger to the gay community in Uganda, it reflects poorly on the country's commitment to protecting the human rights of its people and will undermine public health, including efforts to fight HIV/AIDS.... 

Court Rules That Illinois Same Sex Couples Can Wed Immediately In Cook County

In Lee v. Orr, (ND IL, Feb. 21, 2014), an Illinois federal district court, in a 4-page opinion, held that Illinois statutes barring same-sex marriages violate the 14th Amendment's equal protection clause by discriminating on the basis of sexual orientation.  Illinois has already enacted a law allowing same-sex marriages, but that law does not take effect until June 1. (See prior posting.) In this decision, however, the court ruled that same-sex couples need not wait for June:

There is no reason to delay further when no opposition has been presented to this Court and committed gay and lesbian couples have already suffered from the denial of their fundamental right to marry.

However because the suit was filed only against the Cook County Clerk, the court's decision applies only to marriage licenses issued by Cook County. The Chicago Tribune reports that same-sex couples began lining up for marriage licenses within an hour after the ruling was issued.

Temporary Injunction Issued Stopping North Carolina School Voucher Program

According to the Lincoln (NC) Times-News, after a hearing last Friday, a North Carolina trial court judge issued a temporary injunction barring the state (at least for the time being) from moving ahead with a lottery to choose families to receive school vouchers for use at private schools next year. The state has received over 4,700 applications for the 2,400 vouchers that would be awarded to income-eligible families. According to the Times-News report:

Friday’s arguments focused on what the state constitution allows and whether the legislature improperly took money away from the state’s public schools to give to private schools. Opponents of the bill have argued that vouchers would send money to schools that discriminate based on religion or disability. 

One school that has come under fire is Raleigh Christian Academy, which requires its students and parents to sign a contract stating they are in 100 percent agreement with its fundamental doctrinal practices. Their school application states, “we are not a church school for those in cults, i.e. Mormons, Jehovah’s Witness, Christian Science, Unification Church, Zen Buddhism, Unitarianism, and United Pentecostal.”

(See prior related posting.)

Missouri Catholic Diocese Settles Two Abuse Lawsuits

Last week, the Catholic Diocese of Kansas City-St. Joseph settled two separate state court lawsuits stemming from the child pornography activities of priest Shawn Ratigan.  AP reports that last Friday a court approved a settlement of $1.275 million in a suit brought by parents whose daughter was photographed in nude and semi-nude poses by Ratigan when the girl was 10 to 12 years old. A $525,000 settlement in a second suit was approved last Wednesday in a suit involving a girl who was photographed by Ratigan when the girl was 9 years old. In each of the suits, thejudge also entered a $500,000 default judgment against Ratigan who was sentenced to 50 years in prison last year. In 2012 Bishop Robert Finn was convicted of a misdemeanor for failing to authorities his suspicion of child abuse by Ratigan.  Finn was sentenced to two years probation. (See prior posting.)

Arizona Legislature Passes RFRA Amendments To Allow Businesses To Refuse To Serve Gays On Religious Grounds

The Arizona legislature on Thursday passed and sent to the governor SB 1062 which amends the state's Religious Freedom Restoration Act to extend its coverage to the exercise of religion by corporations and other business organizations. The bill also provides that its protections may be asserted in lawsuits even if the government is not a party. (Background form Arizona Center for Policy.) The controversial bill is designed to permit businesses that oppose homosexuality or same-sex marriage on religious grounds to refuse to provide goods or services if it violates their religious beliefs. ABC News reports that Gov. Jan Brewer is still deciding whether or not to sign the bill. Some suggest that if the controversial bill becomes law, it could lead to boycotts in connection with the Super Bowl scheduled for Arizona next year. AP reports further on the legislation.

Professor Loses On Claim of Retaliation For Religious Speech Aimed At Students

In Payne v. University of South Mississippi, (SD MI, Feb. 21, 2014), a Mississippi federal district court held that the 1st Amendment does not preclude a faculty member at a public university being disciplined for religious speech made as part of his duties as a professor. According to the court:

A graduate student employed in a program administered by Plaintiff ... complained: “Sometimes during conversations with Dr. Payne, religion or Bible verses are usually brought up by him in some way. This makes me and others very uncomfortable. . . . While in Scotland with CJA staff, Dr. Payne made the statement that anyone who is not a Christian is going to hell.” She continued: “I have been told to go pray about certain issues when they are being discussed with Dr. Payne numerous times. . . . I do not feel comfortable when told to go pray from my supervisor instead of dealing with the situation.”

The court dismissed plaintiff's 1st Amendment retaliation claim.

Recent Articles of Interst

From SSRN:

• John D. Haskell, The Scandal of Disenchantment: Blind Spots in Modern Anglo-American Approaches to the History and Politics of International Law, (University of Memphis Law Review, Vol. 44, 2013).
• Oren Gross, Venerate, Amend...and Violate, (Arizona State Law Journal, Vol. 46, Forthcoming).
• James M. Oleske, Obamacare, RFRA, and the Perils of Legislative History, (67 Vanderbilt Law Review En Banc (2014 Forthcoming)).
• Stephen M. Bainbridge, A Critique of the Corporate Law Professors’ Amicus Brief in Hobby Lobby and Conestoga Wood, (UCLA School of Law, Law-Econ Research Paper No. 14-03, 2014).
• Daniel John Crooks, Toward 'Liberty': How the Marriage of Substantive Due Process and Equal Protection in Lawrence and Windsor Sets the Stage for the Inevitable Loving of Our Time, (8 Charleston L. Rev. 223 (2014)).
• Dorit Rubinstein Reiss, Thou Shalt Not Take the Name of the Lord Thy God in Vain: Use and Abuse of Religious Exemptions from School Immunization Requirements, (Hastings Law Journal, Vol. 65, No. 6, 2014).
• Brian Leiter, Preface to the Paperback Edition of Why Tolerate Religion?, (Why Tolerate Religion? (Princeton University Press, cloth edition, 2013; 2014 Forthcoming)).
• Michael J. Perry, Adjudicating Rights-Based Constitutional Claims: The Morality of Human Rights and the Power of Judicial Review, (Emory Legal Studies Research Paper No. 14-271 (2014)).

From SSRN (Establishment Clause issues):

• Alan E. Brownstein, Town of Greece v. Galloway: Constitutional Challenges to State Sponsored Prayers at Local Government Meetings, (47 UC Davis Law Review, (2014 Forthcoming)).
• Edward A. Zelinsky, The First Amendment and the Parsonage Allowance, (Tax Notes, Vol. 142, No. 4, Jan. 27, 2014).
• Carolyn Homer Thomas, The Copyright Act's Licensing Exemption for Religious Performances of Religious Works Is Unconstitutional, (DePaul Law Review, Vol. 63, No. 1, p. 49, 2013).
• Haley Palfreyman Jankowski, Neutrality Fatality as between Government Speech and Religion and Nonreligion: How the Government Speech Doctrine Provides a Solution, (Brigham Young University Law Review 363, 2013).

From SSRN (Non-U.S. Law):

• Dmitry Uzlaner, The Pussy Riot Case and the Peculiarities of Russian Post-Secularism, (State, Religion and Church. 2014. 1(1): 23-58).
• Rajeev Bhargava, State and Religious Diversity: Can Something Be Learnt from the Indian Model of Secularism?, (Robert Schuman Centre for Advanced Studies Research Paper No. PP 2014/03 (Feb. 2014)).
• Sorin Alexandru Vernea, Engagement Prior to Marriage – A Short Walk Through the History of Romanian Law, (Social Economic Debates, December 2013, Vol. 2, No. 2). 
• Kerstin Steiner, The Case Continues? The High Courts in Malaysia and Unilateral Conversion of a Child to Islam by One Parent, (Australian Journal of Asian Law, Vol. 14, No. 2, Article 10, 2013).
• M.B. Hooker, Essay: Maria Was a Christian - Nadra Was a Muslim: Hertogh Revisited, (Australian Journal of Asian Law, Vol. 14, No. 2, Article 8, 2013).
• Uladzislau Belavusau, Hate Speech and Constitutional Democracy in Eastern Europe: Transitional and Militant? (Czech Republic, Hungary and Poland), (Israel Law Review, Vol. 47, Issue 1. pp. 27-61 (2014)).

SCOTUS Blog Contraceptive Mandate Symposium (Feb. 17-24, 2014):

• Marty Lederman, Symposium: How to understand Hobby Lobby.
• Jessie Hill, Symposium: The Contraceptives Coverage Controversy-- What's Old Is New Again.
• John Bursch, Symposium: Hobby Lobby and Conestoga: The Most Difficult-to-Answer Question.
• Michael Dorf, Symposium: Why is RFRA Still Valid Against the Federal Government?
• Douglas Laycock, Symposium: Congress Answered This Question: Corporations Are Covered.
• Ira Lupu and Robert Tuttle, Symposium: Religious Questions and Saving Constructions.

From SmartCILP:

• Daniel P. Dalton, The Religious Land Use and Institutionalized Persons Act--Recent Decisions and Developments, 45 Urban Lawyer 741-767 (2013).
• Robert W. Kerns Jr., Protecting the Faithful From Their Faith: A Proposal for Snake-Handling Law in West Virginia, [Abstract], 116 West Virginia Law Review 561-581 (2013).
• Monica Youn, Proposition 8 and the Mormon Church: A Case Study in Donor Disclosure, 81 George Washington Law Revies 2108-2154 (2013). 
• Mee-Yin Mary Yuen, Human Rights in China: Examining the Human Rights Values in Chinese Confucian Ethics and Roman Catholic Social Teachings, 8 Intercultural Human Rights Law Review 281-321 (2013).

Recent Prisoner Free Exercise Cases

In Howard v. Connett, 2014 U.S. Dist. LEXIS 19231 (D NV, Feb. 14, 2014), a Nevada federal district court refused to grant summary judgment to defendants on an inmate's claims that Nation of Islam services are held only once monthly and he is not released regularly for other Muslim services[ on his claim that he was deprived of his Qur'an for 12 days while in disciplinary segregation; and on his claim of a conspiracy to deprive him of medical treatment based on animus toward his religion.

In Hoeck v. Miklich, 2014 U.S. Dist. LEXIS 20381 (D CO, Feb. 19, 2014), a Colorado federal district court adopted a magistrate's recommendations in part and allowed an inmate to proceed with his claims against certain defendants complaining that the practices of his "Biblical Christian" faith were not accommodated.

In Karsjens v. Jesson, 2014 U.S. Dist. LEXIS 20911 (D MN, Feb. 19, 2014), a Minnesota federal district court allowed plaintiffs to proceed with their claim that portions of the Minnesota civil commitment sex offender program violate their free exercise rights.  Plaintiffs claim they are monitored during religious services and private meetings with clergy, are not allowed to wear religious apparel or have certain religious property, are not allowed communal religious feasts and cannot receive Kosher or Halal meals.

In Rahman v. Fischer, 2014 U.S. Dist. LEXIS 20846 (ND NY, Feb. 20, 2014), a New York federal district court adopted a  magistrate's recommendation and dismissed a number of claims but permitted a Muslim inmate to proceed with his complaint that he was denied access to the sink to make ablution.

In Pelayo v. Hernandez, 2014 U.S. Dist. LEXIS 20616 (ND CA, Feb. 18, 2014), a California federal district court dismissed with leave to amend an inmate's complaint that he was prevented from entering the dining hall at breakfast because he was carrying a pocket Bible and thin Bible folder.

In Walker v. Artus, 2014 U.S. Dist. LEXIS 21745 (ND NY, Feb. 21, 2014), a New York federal district court adopted a magistrate's recommendations and dismissed a complaint that Muslim inmates in the special housing unit are not allowed to attend congregate religious services, nor are they allowed to watch or listen through closed circuit transmissions.

7th Circuit Affirms Denial of Preliminary Injunction to Notre Dame In Contraceptive Coverage Challenge

In University of Notre Dame v. Sebelius, (7th Cir., Feb. 21, 2014), the U.S. 7th Circuit Court of Appeals on Friday, in a 2-1 decision, denied a preliminary injunction to Notre Dame University in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits. Handing down its decision only 9 days after hearing oral arguments, the majority in an opinion by Judge Posner affirmed the district court, saying in part:

We imagine that what the university wants is an order forbidding Aetna and Meritain to provide any contraceptive coverage to Notre Dame staff or students pending final judgment in the district court.  But we can’t issue such an order; neither Aetna nor Meritain is a defendant (the university’s failure to join them as defendants puzzles us)..... Furthermore, while a religious institution has a broad immunity from being required to engage in acts that violate the tenets of its faith, it has no right to prevent other institutions, whether the government or a health insurance  company, from  engaging in acts that merely offend the institution..

If the government is entitled to require that female contraceptives be provided to women free of charge, we have trouble understanding how  signing the form that declares Notre Dame’s authorized refusal to pay for  contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to “trigger” the provision of female contraceptives....

The novelty of Notre Dame’s claim—not for the exemption, which it has, but for the right to have it without having to ask for it—deserves emphasis. United States law and public policy have a history of accommodating religious beliefs....  What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths. The closest  analogues we have found  are  cases in which  churches seeking rezoning or variances claim that the process for obtaining permission is so cumbersome as to constitute a substantial burden on religious practice....  

The process of claiming one’s exemption from the duty to provide contraceptive  coverage is the opposite of cumbersome. It  amounts  to signing  one’s  name  and  mailing  the signed form to two addresses. Notre Dame may consider the process a  substantial burden, but substantiality—like  compelling  governmental  interest—is  for  the court  to  decide.

The majority also rejected Notre Dame's establishment clause challenge, and left its free speech challenge for further development in the district court.

Judge Flaum dissenting said in part:

Having to submit the EBSA Form 700, Notre Dame maintains, makes it “complicit in a grave moral wrong” by involving it with a system that delivers contraceptive products and services to its employees and students.

The majority has trouble accepting this position, in part due  to  the  university’s  statement  that  its  signature  will “trigger”  contraceptive  coverage, because the majority understands federal law to require contraceptive coverage regardless of what Notre Dame signs or does not sign.... Yet we are judges, not moral philosophers or theologians; this is not a question of legal causation but of religious faith. Notre Dame tells us that Catholic doctrine prohibits the action that the government requires it to take. So long as that belief is sincerely held, I believe we should defer to Notre Dame’s understanding.

Wall Street Journal reports on the decision.

Oregon Will Not Defend Its Same-Sex Marriage Ban In Pending Litigation

In its answer filed yesterday in Geiger v. Kitzhaber, a suit challenging Oregon's same-sex marriage ban, Oregon officials notified the federal district court:

State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review. In the meantime, as the State Defendants are legally obligated to enforce the Oregon Constitution’s ban on same-sex marriage, they will continue to do so unless and until this Court grants the relief sought by the plaintiffs.

The lawsuit was filed last October. (See prior posting.) SCOTUSblog reports on Oregon's decision not to defend its ban.

UAE Fatwa Committee Says Mars Settlement Proposal Violates Islamic Law

Last year, a Dutch company, Mars One, announced plans to establish a permanent human colony on Mars.  Plans are for the first volunteers to fly there in 2023, with others following every two years.  No technology currently exists to bring the colonizers back to earth.  This week the Khaleej Times reports that a fatwa committee under the General Authority of Islamic Affairs and Endowment in the United Arab Emirates has ruled that promoting or participating in the one-way trips violates Islamic law:

 “Such a one-way journey poses a real risk to life, and that can never be justified in Islam,” the committee said.  “There is a possibility that an individual who travels to planet Mars may not be able to remain alive there, and is more vulnerable to death.”

Whoever opts for this “hazardous trip”, the committee said, is likely to perish for no “righteous reason”, and thus will be liable to a “punishment similar to that of suicide in the Hereafter”.

Some 500 Saudis and other Arabs are among those who have already applied to take part in the mission.

Court Dismisses Challenge To NYPD's Surveillance of Muslims

In Hassan v. City of New York, (D NJ, Feb. 20, 2014), a New Jersey federal district court dismissed a constitutional challenge to the New York City Police Department's surveillance of the Muslim community in New Jersey following 9/11. Plaintiffs claimed that the surveillance was motivated solely by animus against Muslims. The court concluded first that plaintiffs lack standing because they did not allege a sufficient injury from the surveillance. The alleged injury to reputations and to the religious functioning of various organizations was caused by the AP's unauthorized release of documents about the program, not by the NYPD's surveillance.  The court also concluded that plaintiffs failed to show intentional discrimination:

Plaintiffs in this case have not alleged facts from which it can be plausibly inferred that they were targeted solely because of their religion. The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies. The most obvious reason for so concluding is that surveillance of the Muslim community began just after the attacks of September 11, 2001.

The Center for Constitutional Rights issued a press release reacting to the decision. AP reports on the decision.

Los Angeles Archdiocese Settles Remaining Clergy Abuse Cases For $13 Million

As reported by KPCC News, earlier this week the Catholic Archdiocese of Los Angeles agreed to settle the 17 clergy abuse lawsuits remaining against it for a total of $13 million. Eleven of the suits involve charges relating to Mexican priest Nicolas Aguilar Rivera who molested at least 26 boys in his 10 months in Los Angeles and then fled before the Archdiocese notified police about complaints against him. Cardinal Roger Mahoney who headed the Archdiocese at the time of the molestations and is now retired was sanctioned last year by his successor after released files showed he was involved in shielding accused priests from law enforcement authorities. (See prior posting.) The KPPC article includes a link to Augilar Rivera's full personnel file.