Obama's Statement On Yom HaShoah

Yesterday the White House released a statement (full text) from President Obama on Yom HaShoah (Holocaust Remembrance Day). The statement reads in part:

On this Yom HaShoah, I join people of all faiths in the United Sates, in the State of Israel, and around the world in remembering the six million Jews – innocent men, women and children – who were senselessly murdered during the Holocaust, as well as all the victims of Nazi brutality and violence.... [L]et us recommit ourselves to the task of remembrance, and to always oppose anti-Semitism wherever it takes root. 

White House Statement On Canonization of Popes John XXIII and John Paul II

Yesterday the White House issued a statement (full text) from President Obama celebrating Sunday's canonization of Pope John XXIII and Pope John Paul II. The statement reads in part:

We celebrate these Saints and the leadership of His Holiness Pope Francis, and we look forward to continuing to work with Pope Francis and Catholics around the world to advance peace and justice for all people.

Georgian Orthodox Patriarch Objects To Proposed Anti-Discrimination Law That Includes Sexual Orientation and Gender Identity

The nation of Georgia has entered a Visa Liberalization Action Plan which envisions a number of reforms in order for the country to obtain visa-free status in the European Union.  As reported by Civl.ge, one of those reforms involves adoption of anti-discrimination legislation. Parliament passed the bill on its first reading on April 17. It is coming up this week for its second reading.  Yesterday Georgian Orthodox Church Patriarch Ilia II issued a statement objecting to the inclusion in the bill of sexual orientation and gender identity as prohibited grounds for discrimination. The statement, asking the government to delay action on the bill, says in part:

Proceeding from God’s commandments, believers consider non-traditional sexual relations to be a deadly sin, and rightly so, and the anti-discrimination bill in its present form is considered to be a propaganda and legalization of this sin.

Church Synod and Various Clergy Sue Claiming North Carolina Same-Sex Marriage Ban Infringes Their Free Exercise Rights

A federal lawsuit with a different twist challenging North Carolina's ban on same-sex marriage was filed yesterday. In addition to same-sex couples, the plaintiffs are a religious denomination-- the United Church of Christ-- and individual clergy from UCC, Lutheran, Baptist, Unitarian-Universalist, and Reform Jewish congregations. The complaint (full text) in General Synod of the United Church of Christ v. Cooper, (WD NC, filed 4/28/2014), claims, among other things, that North Carolina law makes it a criminal offense for a member of the clergy to conduct a same-sex marriage ceremony, and that this infringes the free exercise and expressive associational rights of clergy whose religious teachings and beliefs embrace same-sex marriage. The same-sex couples also assert due process and equal protection claims.  UCC has issued a press release and created a website with additional information on the case. The Charlotte Observer also reports on the case. [Thanks to Don Clark for the lead.]

New Survey of Anti-Semitism Has Grim Narrative

Yesterday, Tel Aviv University's Kantor Center (along with the European Jewish Congress) announced the release of a new report Worldwide Report on Antisemitism 2013. (The report is also listed in my posting earlier today of Recent Articles of Interest.) The Kantor Center's report is one of several similar surveys including the European Union's Discrimination and hate crime against Jews in EU Member States (see prior posting) and the ADL's 2013 Annual Audit of Antisemitic Incidents (see prior posting). The Kantor Center's report appears to be more conservative than others in its methodology for counting incidents, finding:

554 registered violent antisemitic acts perpetrated with weapons or without, by arson, vandalism or direct threats against Jewish persons or institutions such as synagogues, community centers, schools, cemeteries, monuments as well as private property

However its narrative appears much grimmer:

Anti-Zionism, which is rampant in the west, cannot explain the present level of antisemitism, nor can it be explained by the rise of right-wing extremist parties (each having its own wider agenda), or by the economic crisis of 2008 (which is no longer ‘news’). No Middle East event tied to the Israeli-Palestinian conflict occurred in 2013, nor can elevated data of antisemitic incidents in this year be attributed to hate-generated hordes of admirers sparked by the attack on the Toulouse Jewish school in March 2012. In short, what we witness in 2013 is ‘net antisemitism’ per se.

Supreme Court Denies Review In Case of Disciplinary Sanctions On Former Kansas AG For Abortion Clinic Investigations

The Supreme Court today denied certiorari in Kline v. Kansas Disciplinary Administrator, (Docket No. 13-1104, cert. denied 4/28/2014) (Order List). In the case, the Kansas Supreme Court 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. (See prior posting.)

6th Circuit Stays Tennessee Same-Sex Marriage Ruling

In Tanco v. Haslam, (6th Cir., April 25, 2014), the U.S. 6th Circuit Court of Appeals granted a stay pending appeal of a district court preliminary injunction requiring the state of Tennessee to recognize the same-sex marriages of 3 couples who were legally married in other states. (See prior posting.) The Tennessean reports on the decision. [Thanks to How Appealing for the lead.]

Recent Articles of Interest

From SSRN:

• Asma Mushtaq, Akseer Ahmad Abbasi, Maroona Nazir, & Shagufta Omar, Inheritance, (Inheritance, Women Aid Trust, January 2014).
• Larry Catá Backer, The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States, (Cornell International Law Journal, Vol. 48, 2015).
• Robert W. McGee, Attitudes on the Ethics of Tax Evasion: A Survey of Philosophy Professors, (April 14, 2014).
• Robert W. McGee, Gender and the Ethics of Tax Evasion: An Empirical Study of 82 Countries, (April 14, 2014).
• Robert W. McGee & Geoff A. Goldman, Ethics and Tax Evasion: A Survey of South African Opinion, (April 14, 2014).
• Nelson Tebbe, Associations and the Constitution: Four Questions About Four Freedoms, (North Carolina Law Review, Vol. 92, No. 3, 2014).
• Paul Horwitz, More 'Vitiating Paradoxes': A Reply to Steven D. Smith — And Smith, (Pepperdine Law Review, Forthcoming).
• Teresa Hernandez & Robert W. McGee, The Ethical Perceptions of Bribe Taking in Four Muslim Countries, (Journal of Accounting, Ethics and Public Policy, Vol. 15, No. 1, 2014).

From SmartCILP and elsewhere:

• Sarah Barringer Gordon, The First Disestablishment: Limits On Church Power and Property Before the Civil War, 162 University of Pennsylvania Law Review 307-372 (2014).
• Lynn M. Daggett, "Minor Adjustments" and Other Not-So-Minor Obligations: Section 504, Private Religious K-12 Schools, and Students With Disabilities, 52 University of Louisville Law Review 301-331 (2014).
• Religion and Family Planning Under the U.S. Constitution. Articles by Colleen Connell, Lorie Chaiten, Richard Muniz, Steven H. Resnicoff and Tom Judge. 15 DePaul Journal of Health Care Law 1-44 (2013).
• Dina Porat (ed.), Antisemitism Worldwide 2013, European Jewish Congress, April 27, 2014.

Recent Prisoner Free Exercise Cases

In Native American Council of Tribes v. Weber, (8th Cir., April 25, 2014), the 8th Circuit affirmed a district court’s conclusion that South Dakota correctional officials violated RLUIPA by banning Native American inmates’ use of tobacco for religious purposes. Defendants failed to showthat the tobacco ban is the least restrictive means of furthering their compelling government interest.

In Hoeck v. Timme, 2014 U.S. Dist. LEXIS 55059 (D CO, April 21, 2014), a Colorado federal district court found no merit in an inmate's challenge to his conviction in a habeas proceeding complaining that his court appointed counsel would only meet with him between Friday sunset and Saturday sunset, the Sabbath for petitioner.

In Merrick v. Ryan, 2014 U.S. Dist. LEXIS 55738 ( AZ, April 17, 2014), an Arizona federal district court remanded to state court a suit in which an inmate, under his complaint as amended, claimed that the denial of religious materials violated Arizona's Free Exercise of Religion Act.  In his amended complaint he removed all references to federal law.

In Gunderson v. Pharis, 2014 U.S. Dist. LEXIS 55431 (ND IL, April 22, 2014), an Illinois federal district court dismissed on the basis of Younger abstention claims of plaintiff, a Hindu, that he was denied conjugal visits and was given inadequate time for yoga, all of which burdened his religious practices.  Plaintiff is being held at a mental health facility under an ongoing treatment plan after being found not guilty by reason of insanity. The court also dismissed on the merits plaintiffs complaint that he did not have access to an appropriate Hindu spiritual leader.

In Dodds v. Quintero, 2014 U.S. Dist. LEXIS 56487 (D CO, April 23, 2014), a Colorado federal district court dismissed discrimination and free exercise claims by an African-American inmate who practices Judaism against a sheriff's deputy who allegedly greeted plaintiff with the words "Asalam Walakim" while plaintiff was waiting for his kosher breakfast.

In Pouncil v. Tilton, 2014 U.S. Dist. LEXIS 56786 (ED CA, April 22, 2014), a California federal district court permitted a Muslim inmate to move forward with his claim that his rights under RLUIPA were violated by a rule that barred inmates serving a sentence of life without possibility of parole from having conjugal visits.

In George v. County of Westchester, 2014 U.S. Dist. LEXIS 57185 (SD NY, April 10, 2014), a New York federal district court permitted a Jewish inmate to move ahead with  his complaint of denial of Jewish congregate religious services and inadequate hot water and microwave oven for preparation of his kosher food.

In Payne v. Duncan, 2014 U.S. Dist. LEXIS 57335 (MD PA, April 23, 2014), a Pennsylvania federal district court dismissed a Muslim inmate's complaint that his free exercise rights were infringed when his books were confiscated and discarded, preventing him from studying his religion.

In JCG v. Ercole, 2014 U.S. Dist. LEXIS 57417 (SD NY, April 24, 2014), a New York federal magistrate judge recommended that a Messianic Jewish inmate be permitted to move forward with his complaint that the prison's Jewish chaplain refused to approve kosher meals for him or his attendance at Jewish religious services and Jewish holiday celebrations.

New Law Aims To Increase Availability of Kosher and Halal Food In Emergency Assistance Programs

AP in a report today calls attention to a little-noticed provision in the Agriculture Act of 2014 that was signed into law by the President on Feb. 7.  Sec. 4207 of the Act provides for increased purchase of kosher and halal food for the government's emergency food assistance program.  The Section provides:

As soon as practicable after the date of enactment of this subsection, the Secretary shall finalize and implement a plan— 

(1) to increase the purchase of Kosher and Halal food from food manufacturers with a Kosher or Halal certification to carry out the program established under [the Emergency Food Assistance Act] if the Kosher and Halal food purchased is cost neutral as compared to food that is not from food manufacturers with a Kosher or Halal certification; and 

(2) to modify the labeling of the commodities list used to carry out the program in a manner that enables Kosher and Halal distribution entities to identify which commodities to obtain from local food banks.

Court Issues Preliminary Injunction and Halts Other Rulings in Non-Profit's ACA Challenge Until Supreme Court Decides Hobby Lobby

In Fellowship of Catholic Students v. Sebelius, (D CO, April 23, 2014), a Colorado federal district court issued a preliminary injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate against a non-profit Catholic student organization. The court entered the order after the government failed to respond to the plaintiff's motion for a preliminary injunction. The court also stayed discovery and any ruling on plaintiff's summary judgment motion until after the U.S. Supreme Court issues its decision in the Hobby Lobby case. (Full text of orders.) CNS reports on the decision. (See prior related posting.)

Article Recounts Continued Lack of Religious Freedom In Egypt

Today's New York Times carried a front-page article titled Vow of Freedom of Religion Goes Unkept in Egypt. Here are some excerpts:

The architects of the military takeover in Egypt promised a new era of tolerance and pluralism when they deposed President Mohamed Morsi of the Muslim Brotherhood last summer.

Nine months later, though, Egypt’s freethinkers and religious minorities are still waiting for the new leadership to deliver on that promise. Having suppressed Mr. Morsi’s Islamist supporters, the new military-backed government has fallen back into patterns of sectarianism that have prevailed here for decades.

Prosecutors continue to jail Coptic Christians, Shiite Muslims and atheists on charges of contempt of religion..... The military leader behind the takeover, Abdul-Fattah el-Sisi, often appeals to the Muslim majority in a language of shared piety....

... But the complaints about continued sectarianism have not deterred church leaders from firmly supporting Mr. Sisi as their protector against worse treatment by the Muslim majority.

Head of Jewish Free Loan Society Pleads Guilty To Operating An Unchartered Bank In Money Laundering Case

The New Jersey U.S. Attorney's Office announced that on Wednesday criminal defendant Moshe Schwartz pleaded guilty to charges of operating an unchartered bank and aiding in the filing of a false tax return. As reported by the Newark Star-Ledger, the case grows out of the arrest of 46 politicians and Jewish religious leaders in 2009 in an investigation of  money laundering and corruption. (See prior posting.) Schwartz, who was not among those initially arrested, headed a supposed charitable organization, Gemach Shefa Chaim. The organization was created to provide interest-free loans to needy members of the Sanz Hasidic community in Union City, New Jersey.  However it was also used to launder millions of dollars, free from oversight by banking regulators.  By 2009, the Gemach had 350 client accounts. It accepted deposits from the clients and then made wire transfers and wrote Genach checks at the direction account holders to disburse funds. Schwartz, who will be sentenced in July, could face up to 5 years in prison.

Alabama Supreme Court Concurrence Relies On Natural Law Argument To Define Fetus as A "Child"

In a blog post yesterday, Americans United called attention to the concurring opinion of Alabama Supreme Court Chief Justice Roy Moore in Ex parte Hicks, (AL Sup. Ct., April 18, 2014). In the case, in an 8-1 decision, the Court upheld the conviction of Sarah Janie Hicks for ingesting cocaine while pregnant, concluding that "the use of the word 'child' in the chemical-endangerment statute includes all children, born and unborn." Justice Parker's majority opinion focused mainly on legislative intent.  Chief Justice Moore's concurrence, however, made a broader natural law argument, rooted in language from the Declaration of Independence.  He wrote in part:

[A]s stated by James Wilson, one of the first Justices on the United States Supreme Court: "Human law must rest its authority ultimately upon the authority of that law which is divine." ***

 Under the Equal Protection Clause of the Fourteenth Amendment, states have an obligation to provide to unborn children at any stage of their development the same legal protection from injury and death they provide to persons already born. Because a human life with a full genetic endowment comes into existence at the moment of conception, the self-evident truth that "all men are created equal and are endowed by their Creator with certain unalienable rights" encompasses the moment of conception. Legal recognition of the unborn as members of the human family derives ultimately from the laws of nature and of nature's God, Who created human life in His image and protected it with the commandment: "Thou shalt not kill." Therefore, the interpretation of the word "child" in Alabama's chemical-endangerment statute, § 26-15-3.2, Ala. Code 1975, to include all human beings from the moment of conception is fully consistent with these first principles regarding life and law.

Trinity Western Grads Will Not Be Eligible For the Ontario Bar

The controversy over Canada's newest proposed law school-- Christian affiliated Trinity Western-- continues. At the center of the controversy is a provision in the school's "community covenant" that calls for abstention from "sexual intimacy that violates the sacredness of marriage between a man and a woman." The Toronto Star reports that after receiving approval earlier this month from the Law Society of British Columbia-- the school's home province-- yesterday the school suffered a defeat in the province of Ontario.  The Law Society of Upper Canada voted 28-21 against granting the school accreditation. This means that the school's graduates will not be permitted to apply for admission to the bar in Ontario.  A vote is expected today by the Nova Scotia Barristers' Society, and in June by the Law Society of New Brunswick.

UPDATE: On April 25, the Nova Scotia Barristers' Society voted 10-9 to only give provisional accreditation to Trinity Western law school. Its graduates will be allowed to enroll in the province's bar admission program only if the school drops its Community Covenant that bars same-sex intimacy.  If the Covenant is not dropped graduates will not be allowed to article in the province, but they can still practice in Nova Scotia according to the Prince George Citizen.

Excluding Churches From Unemployment Compensation Coverage Does Not Violate 1st or 14th Amendment

In Spicer v . Texas Workforce Commission, (TX App., April 22, 2014), a Texas state appellate court upheld the statutory exclusion of persons employed by churches from Texas' unemployment compensation coverage.  Appellant, formerly an organist and pianist for a Methodist church, claimed that denying him unemployment compensation violates his free exercise and equal protection rights. The court disagreed.  Appellant also argued that the exemption of churches from the tax required  by the unemployment compensation system violates the Establishment Clause. Again the court disagreed, saying in part:

a number of types of work are excluded from employment under the TUCA, reflecting the Legislature’s decision that the entities for whom that work is performed should not be subject to the burden of paying the tax required by the unemployment compensation system..... The breadth of the exemptions demonstrates the exemption ... was not “aimed at establishing, sponsoring, or supporting religion."

Sri Lanka Deports British Tourist Because of Buddha Tattoo

BBC News reports that on Monday a British tourist in Sri Lanka was arrested, ordered deported by a magistrate and placed in an immigration detention camp until she is sent back to the UK because she has a tattoo of Buddha on her arm. Sri Lankan police say tourist Naomi Coleman with hurting the religious feelings of others. Coleman was originally cleared through the airport, but two taxi drivers and a plain clothes policeman later took her to a police station when they saw the tattoo.

UPDATE: According to AFP report, on May 21, 2014 Coleman filed suit against Sri Lankan police, immigration and prison officials over the incident. The suit in the Supreme Court in Colombo seeks the equivalent of $78,000 (US) in damages.

Cert. Petition Filed In Challenge To California's Ban On Teen Repairative Therapy

In a press release yesterday, the Pacific Justice Institute announced that it has filed a petition for certiorari with the U.S. Supreme Court in Pickup v. Brown. In the case, the 9th Circuit upheld the constitutionality of California's  ban on state-licensed mental health providers engaging in sexual orientation change efforts with patients under 18. (See prior posting.)

Suit Claims FBI Infringes Muslims' Free Exercise Rights By Using No Fly List To Coerce Them To Become Informants

The Center for Constitutional Rights yesterday announced the filing of a lawsuit against the FBI on behalf of four American Muslim men who were placed on the No-Fly List after they refused to work as FBI informants in their religious communities, or were told they would be removed from the List only if they agreed to work with the FBI.  The complaint (full text) in Tanvir v. Holder, (SD NY, filed 4/22/2014) claims that the FBI's actions violate plaintiffs' procedural due process rights, 1st Amendment free exercise rights and the Religious Freedom Restoration Act. It alleges in part:

65.  Many American Muslims, like many other Americans, and many followers of other religions, have sincerely held religious and other objections against becoming informants in their own communities, particularly when they are asked to inform on the communities as a whole rather than specific individuals reasonably suspected of wrongdoing. Acting as an informant would require them to lie and would interfere with their ability to associate with other members of their communities on their own terms. For these American Muslims, the exercise of Islamic tenets precludes spying on the private lives of others in their communities.

66. The FBI uses the No Fly List to coerce American Muslims into becoming informants and to retaliate against them when they exercise constitutionally protected rights.

Washington Post reports on the lawsuit.

Court Dismisses Episcopal Priest's Suit Against Bishop Who Fired Him

In Warnick v. All Saints Episcopal Church, (PA Com. Pl., April 15, 2014), a Pennsylvania trial court dismissed a suit brought by Episcopal priest Jeremy Warnick against All Saints Episcopal Church (his former parish), the Episcopal Bishop of Pennsylvania and three All Saints congregants.  The suit, alleging contract and defamation claims, challenges Bishop Charles Bennison's revocation of Warnick's license to minister in Pennsylvania, the Bishop's letter to the congregation explaining the decision and statements made by three congregants at a church meeting. The controversy revolved around Warnick's proposal for a radical restructuring of the parish.  It also involved complaints that Warnick was living on week ends with a woman (who he then married in a Methodist ceremony) before his divorce from his wife was finalized, and Warnick had posted answers to a "sexual position quiz" on Facebook.

After Warnick unsuccessfully pursued a canonical complaint against Bennison, he filed this civil lawsuit. The court held that both the First Amendment requirement of deference to ecclesiastical courts and the ministerial exception doctrine require dismissal of the complaint. The court added that even if all the claims were not barred by the First Amendment, "Father Warnick’s claims fail as a matter
of law because the undisputed evidence shows that necessary elements have
not been shown for defamation, contract and civil conspiracy claims."