New Washington State Supreme Court Justice Has Extensive Religious Background

Washington state Governor Jay Inslee announced last week that he has appointed state trial court judge Mary Yu to the Washington state Supreme Court to fill a vacancy created by the retirement of Justice Jim Johnson.  While the media (Seattle Times article) has focused on the fact that Yu is the first openly gay, and first Asian-American justice on the Washington Supreme Court, less attention has been given to her academic training in theology and her work experience prior to law school in the Catholic Church. Yu received a bachelor's degree in religious studies from Dominican University in River Forest, Ill., in 1979.  She then went to work for the Office of Peace and Justice of the Chicago Catholic Archdiocese, eventually becoming director of the office.  She received a master's degree in theology from Loyola University in 1989, and moved to Washington state to work at the Washington state Catholic Bishop's Conference. However in 1990 she enrolled in Notre Dame law school, also working as an assistant rector in an undergraduate women's dormitory. (Biography from Wikipedia, Equal Justice Newsletter).

D.C. Circuit Hears Oral Arguments On Non-Profit Contraceptive Coverage Mandate Rules

Yesterday the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in Priests for Life v. Department of Health and Human Services and in Roman Catholic Archbishop of Washington v. Sebelius. (Audio of oral arguments [mp3 file]).  Both cases were brought by religious non-profits challenging the Obama administration's compromise rules that allow religious non-profits to opt out of the Affordable Care Act contraceptive coverage mandate and have their employees receive coverage directly from the non-profit's insurer or third-party administrator.  In Priests for Life, the district court found no substantial burden was imposed by requiring the group to complete the self-certification opt out form. (See prior posting.) In the Archbishop of Washington case, the district court upheld the challenge to the compromise as to one of the plaintiffs that offered a self-insured plan, but not for the others who offered group insurance or church plans. (See prior posting). Los Angeles Times reports on the oral arguments.

Gaddy, Head of Interfaith Alliance, Will Retire

In a press release yesterday, the Interfaith Alliance announced that after 16 years as its president, Rev. Dr. C. Welton Gaddy will step down as head of the advocacy organization at the end of 2014. The Interfaith Alliance has been a progressive advocate for religious freedom, individual rights, church-state separation and religious-cultural diversity.

Texas Court Dismisses As Moot Cheerleaders' Suit Over Religious Banners

In Kountze Independent School District v. Matthews, (TX App., May, 8, 2014), a Texas state appellate court dismissed as moot a once widely followed  suit brought by parents of high school cheerleaders.  Plaintiffs objected to a school policy change in 2012 that barred football cheerleaders from using run-through banners carrying religious messages.  The school's ban was put in place in September 2012 in response to a letter from the Freedom From Religion Foundation. Cheerleaders' parents sued, and in October 2012 a trial court issued a temporary injunction permitting cheerleaders to continue to use their own religious-themed run throughs. (See prior posting.) In response to that decision, the school district in April 2013 reversed itself and adopted a new policy again permitting religious messages on run-through banners. In May 2013, the trial court issued a declaratory judgment that neither the Establishment Clause nor any other law prohibits the religious-themed banners at school sporting events. (See prior posting.) Neither party appealed the declaratory judgement, but this left the action seeking a permanent injunction still pending. The school district appealed, arguing that the suit should be dismissed as moot. The court agreed, concluding that the school had adopted a new policy that eliminated any live controversy between the parties.  Courthouse News Service reports on the decision.

Two Op-Eds on Town of Greece Decision

Here are two rather interesting op-ed pieces (on opposite sides) on the Supreme Court's recent Town of Greece decision:

• George Will, Thin Skins and Legislative Prayer (Washington Post)
• Katherine Stewart, A Big Win for the Prayer Lobby (New York Times)

Catholic Group Criticizes 20 Colleges For Inviting "Scandalous" Commencement Speakers

The Cardinal Newman Society yesterday issued a "Special Report" criticizing 20 Catholic colleges and universities for inviting as commencement speakers this year public figures or politicians who support abortion rights or same-sex marriage.  The detailed list of schools faulted for scheduling "scandalous commencement speakers and honorees" includes Boston College whose commencement speaker is Secretary of State John Kerry, Georgetown University whose commencement speaker is Treasury Secretary Jacob Lew, and Villanova University whose commencement speaker is Dr. Jill Biden.  As is typical, honorary degrees are being awarded by the various universities to their commencement speakers as well.

In Pakistan, Human Rights Lawyer Murdered For Defending Client Accused of Blasphemy

In Pakistan's southern city of Multan yesterday, gunmen posing as clients shot and killed human rights lawyer Rashid Rehman for representing a defendant accused of blasphemy.  Reuters reports that Rehman was representing Junaid Hafeez, a lecturer in English, who has been in jail after being accused by student groups of making blasphemous remarks against the Prophet Mohammed. During court proceedings last month, three people threatened Rehman with death.  Pamphlets distributed in Multan this morning said that the lawyer had met his "rightful end" for attempting to "save someone who disrespected the Prophet Mohammed". The pamphlet added: "We warn all lawyers to be afraid of god and think twice before engaging in such acts." This is apparently the first time that a lawyer has been killed in Pakistan for taking on a blasphemy case, though defendants have often been killed before trial and attacks have previously been carried out on judges and supportive politicians.

Saudi Online Liberal Religious Activist Gets Increased Sentence On Retrial

Reuters and International Business Times report that yesterday Saudi Arabian online activist Raif Badawi was sentenced to 1000 lashes, ten years in prison and a fine equivalent to $266.600 (US) in his retrial on charges of "setting up a website that undermines general security " and "ridiculing Islamic religious figures".  Badawi is the co-founder of the Saudi Arabian Liberals website, set up to discuss liberal interpretations of Islam and political matters.  Originally he was sentenced to 7 years in prison and 600 lashes (see prior posting), but the sentence was overturned on appeal by Badawi's lawyers who argued that the sentence was too harsh.  The criminal court in the city of Jeddah however has now imposed an even harsher sentence. The prosecution's attempt to charge Badawi with apostasy (punishable by death) was dismissed in last year's original trial.

Trinity Western Will Sue Two Canadian Lawyers' Groups

Canada's Trinity Western University announced Tuesday that it has engaged law firms to bring suits challenging decisions by the Law Society of Upper Canada and the Nova Scotia Barristers Society that will prevent Trinity Western law school graduates from being admitted to the bar in Ontario or Nova Scotia. Trinity Western is located in British Columbia.  (See prior posting.) The University will also seek to intervene as a respondent in a lawsuit brought by an openly gay member of the Vancouver Park Board challenging the approval of the school by British Columbia's Advanced Education Minister. (See prior posting.)

At issue 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."  Trinity Western's new law school-- the first at a faith-based university in Canada-- is scheduled to open in 2016. Trinity Western says that actions rejecting its law school graduates send the message that one cannot fully participate in society if one holds religious values. Tuesday's Globe & Mail also reports on Trinity Western's decisions.

Student Seeks Contempt Penalties For School's Violation of Consent Decree On Prayer

As previously reported, last year the Rankin County, Mississippi school district adopted a new policy on religion in schools in order to settle a suit by a student complaining that the district high school sponsored assemblies which promoted Christianity, and which students perceived as mandatory. The new policy was incorporated into a court-ordered consent decree. Now AP reports that the student, backed by the American Humanist Association (press release), has filed a motion to hold the school district and its administrators in contempt because of a district-wide honors assembly last month which was opened with an invocation by a Methodist minister. The student says that she felt pressured to participate in the prayer which she interpreted as containing a reference to Jesus' resurrection. (Full text of Memorandum of Law in support of contempt motion).

Yakima Tribe Denied TRO To Prevent Wildflower Tours On Spiritual Area

In Washington state, a federal district judge has denied a temporary restraining order sought by the Yakima Nation to prevent scheduled wildflower tours this Thursday and Saturday on Rattlesnake Mountain.  The mountain is a cultural and spiritual area for the Yakimas.  As reported by the Tri-City Herald, the court, in a written decision, said in part:

Though the tribe certainly has a strong interest in preservation of its culture and spiritual interest, the public also has an interest in being allowed to see and experience the land, as long as precautions are taken to preserve the nature of the place.

UPDATE: The full opinion in  Confederated Tribes & Bands of the Yakama Nation v. United States Fish & Wildlife Service, 2014 U.S. Dist. LEXIS 63824 (ED WA, May 5, 2014) is now available via Lexis.

District Court Vacates Preliminary Injunction Against Maryland County After Town of Greece Decision; Plaintiffs Will Go On

Within hours after Monday's U.S. Supreme Court decision in Town of Greece permitting sectarian invocations at city council meetings, a Maryland federal district court vacated a preliminary injunction it had issued (see prior posting) barring a Maryland county from opening its Commission meetings with sectarian prayers.  The Order (full text) in Hake v. Carroll County, Maryland, (D MD, May 5, 2014), merely recites that its action is "consistent with" the Supreme Court's decision.  In Carroll County, invocations were delivered by members of the County Commission, on a rotating basis, rather than by invited clergy or a chaplain.  The Commission had guidelines urging non-sectarian language, but they were often ignored. The Baltimore Sun reports that plaintiffs, pointing to these differences, say they will continue to pursue the Carroll County challenge. The American Humanist Association, one of the plaintiffs, says: "Unlike in the town of Greece, where even an atheist could give an invocation, in this case you have a very exclusive policy."

Malaysian Court Rejects Church's Challenge To Seizure of Books Using Term "Allah"

Malay Mail reports that in Malaysia on Monday the Kuala Lumpur High Court dismissed a suit that had been filed in 2007 by Sidang Injil Borneo (Borneo Evangelical Church) challenging the Home Ministry’s decision to seize three boxes of Malay-language Christian educational books imported from Indonesia that contained the word "Allah." The books were seized in 2007 at the airport while in transit, but were returned to the church several months later. The High Court said it was bound by the precedent established by the Court of Appeal last October that prevented the Catholic Herald from using the word Allah in its Malay language editions.  The High Court said the Herald case concluded that the Arabic word “Allah” is not an integral part of the practice and faith of Christianity. (See prior posting.)

According to Malaysian Insider, critics of the decision say the judge ignored special laws on religious freedom in Sabah and Sarawak.

Alaska Supreme Court Holds Tax Exemption Unconstitutionally Discriminates Against Same-Sex Couples

In State of Alaska v. Schmidt, (AK Sup. Ct., April 25, 2014), the Alaska Supreme Court held that a state tax exemption program that discriminates against same-sex couples violates the state constitution's equal protection clause. Same-sex marriages are not permitted or recognized in the state. Alaska exempts from municipal property tax up to $150,000 in value of a home of a senior citizen or disabled veteran.  The full exemption is available where the senior's or veteran's spouse who co-owns the home also lives there.  However the exemption is reduced where a same-sex partner who co-owns the home lives there. According to the court, this creates an equal protection problem:

we hold that committed same-sex domestic partners who would enter into marriages recognized in Alaska if they could are similarly situated to those opposite-sex couples who, by marrying, have entered into domestic partnerships formally recognized in Alaska.

Two Less Expected Reactions To Yesterday's Supreme Court Decision On Legislative Prayer

While many of the reactions to yesterday's Supreme Court decision in Town of Greece v. Galloway were predictable, here are two that might be classified as surprises:

• Yair Rosenberg, writing at Tablet Magazine, finds a historical error in Justice Kagan's dissent.  She refers to Newport, Rhode Island as "the home of the first community of American Jews." However that honor goes to New Amsterdam. Newport is home to the oldest standing synagogue in the U.S.
• The American Humanist Association announced that in reaction to the Supreme Court's decision it is launching a program to provide resources for atheists and humanists to deliver secular invocations at legislative meetings. A new website allows governmental entities to identify humanists within their borders who can be invited to deliver invocations.

Supreme Court Denies Review In RLUIPA Zoning Case

Yesterday, the U.S. Supreme Court denied certiorari in Eagle Cove Camp & Conference Center v. Woodboro, (Docket. No. 13-1099, cert. denied 5/5/2014) (Order List). In the case, the 7th Circuit rejected RLUIPA challenges to county land use regulations that barred petitioner from operating a year-round Bible camp on residentially zoned property. (See prior posting.)

Supreme Court Upholds Sectarian Invocations At City Council Meetings

The U.S. Supreme Court today handed down a 5-4 decision in Town of Greece, New York v. Galloway, (Sup. Ct., May 5, 2014), upholding the constitutionality of non-coercive sectarian invocations at city council meetings. Justice Kennedy's opinion-- minus one section of it-- constituted the opinion of the court.  Chief Justice Roberts, and Justices Alito, Scalia and Thomas joined with Justice Kennedy in making this the prevailing opinion.  Much of the opinion is devoted to refuting respondents' argument that the Establishment Clause requires legislative invocations to be non-sectarian:

An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases.... To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of nei­ther editing or approving prayers in advance nor criticizing their content after the fact....

Respondents argue, in effect, that legislative prayer may be addressed only to a generic God. The law and the Court could not draw this line for each specific prayer or seek to require ministers to set aside their nuanced and deeply personal beliefs for vague and artificial ones. There is doubt, in any event, that consensus might be reached as to what qualifies as generic or nonsectarian....

Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Marsh....

Finally, the majority disagrees with the view taken by the Court of Appeals that the Town of Greece violated the Establishment Clause by inviting predominantly Christian ministers to deliver the invocations:

The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimina­tion, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing....

One section of Justice Kennedy's opinion-- Part II-B-- was joined only by Chief Justice Roberts and Justice Alito.  This section amounts to an extensive argument as to why the city council invocations at issue were not coercive:

The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing....

The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity. No such thing occurred in the town of Greece. Although board members themselves stood, bowed their heads, or made the sign of the cross during the prayer, they at no point solicited similar ges­tures by the public. Respondents point to several occa­sions where audience members were asked to rise for the prayer. These requests, however, came not from town leaders but from the guest ministers, who presumably are accustomed to directing their congregations in this way and might have done so thinking the action was inclusive....

In their declarations in the trial court, respondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.....

An opinion by Justice Thomas, joined by Justice Scalia, explained their refusal to join Part II-B of Justice Kennedy's opinion. They argued that the Establishment Clause should not be seen as being applicable to the states. The then added that even if the Establishment Clause is seen as incorporated against the states, "the municipal prayers at issue in this case bear no resemblance to the coercive state establishments that existed at the founding." In their view: "to the extent that coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts-- not the "subtle coercive pressures" allegedly felt by respondents...."

Justice Kagan wrote a dissent, joined by Justices Ginsburg, Breyer and Sotomayor, emphasizing the difference between city council meetings and state legislatures, and arguing that the Town of Greece has violated the constitutional requirement of religious equality:

Greece’s town meetings involve participation by ordinary citizens, and the invocations given—directly to those citizens—were predominantly sectarian in content. Still more, Greece’s Board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions. So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.

Justice Kagan added:

[T]he not-so-implicit message of the majority’s opinion—“What’s the big deal, anyway?”—is mistaken. The content of Greece’s prayers is a big deal, to Christians and non-Christians alike.....  Contrary to the majority’s apparent view, such sectarian prayers are not “part of our expressive idiom” or “part of our heritage and tradition,” assuming the word “our” refers to all Americans.... They express beliefs that are fundamental to some, foreign to others—and because that is so they carry the ever-present  potential to both exclude and divide. The majority, I think, assesses too lightly the significance of these religious differences, and so fears too little the “religiously based divisiveness that the Establishment Clause seeks to avoid.” 

Justice Breyer also filed a separate dissent.  Justice Alito (joined by Justice Scalia) also wrote a concurrence directly responding to Justice Kagan's dissent.  CNN reports on today's decision.

AT U.N. Review of Anti-Torture Treaty Compliance, Holy See Says Its Ratification Applied Only To Vatican City State

The United Nations Committee Against Torture met today and will meet again tomorrow (UN press release) to review the Vatican's compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Every country that has signed the Convention must undergo a periodic review of its compliance record before the Committee.  The hearing is being watched closely on the issue of whether clergy sexual abuse around the world violated the Convention. The Holy See's initial report to the Committee and submissions from civil society organizations are all available from the UN's website. The full text of the presentation to the Committee today by Archbishop Silvano Tomasi is reported by Vatican Radio. As reported by AP, the Holy See contends that its obligations under the treaty only extend to the territory of the Vatican City State, and do not apply more broadly to the Holy See which governs the Catholic Church around the world. At issue is the language in the Declaration made by the Holy See when it became a party to the Convention:

The Holy See, in becoming a party to the Convention on behalf of the Vatican City State, undertakes to apply it insofar as it is compatible, in practice, with the peculiar nature of that State.

Recent Articles of Interest

From SSRN:

• Bernard M. Levinson, La scoperta goethiana della versione ‘originale’ dei Dieci Comandamenti e la sua influenza sulla critica biblica: Il mito del particolarismo ebraico e dell’universalismo tedesco (The Impact of Johann Wolfgang von Goethe’s Discovery of the 'Original' Version of the Ten Commandments upon Biblical Scholarship: The Myth of Jewish Particularism and German Universalism), (in Il roveto ardente: Scritti sull’ebraismo Tedesco in memoria di Francesca Y. Albertini, Edited by Irene Kajon, Lithos Editrice, 2013).
• Thad C. Eagles, Free Exercise, Inc.: A New Framework for Adjudicating Corporate Religious Liberty Claims, (New York University Law Review, Forthcoming).
• Ping Xiong, Freedom of Religion in China Under the Current Legal Framework and Foreign Religious Bodies, (Brigham Young University Law Review, No. 3, 2013).
• Frederick Schauer, On the Utility of Religious Toleration, (Criminal Law and Philosophy, 2014, Forthcoming).
• Paolo Lobba, A European Halt to Laws Against Genocide Denial? In Perinçek v. Switzerland, the European Court of Human Rights Finds that a Conviction for Denial of Armenian ‘Genocide’ Violates Freedom of Expression, (European Criminal Law Review, Vol. 4, Issue 1 (2014), 59-77).
• Pawel Niszczota, Religious Prohibitions and Investment: The Effect of the Islamic Moral Code on Investment in Foreign Debt Securities, (January 31, 2014).
• Paolo Lobba, Holocaust Denial Before the European Court of Human Rights: Evolution of an Exceptional Regime, (Oxford University Press, European Journal of International Law, Forthcoming).

From SmartCILP:

• Lara Cartwright-Smith, Benefit or Burden? Religious Employers and the Patient Protection and Affordable Care Act's Contraception Coverage Mandate, [LEXIS Advance Link],18 NEXUS 29-56 (2012-2013).
• 19th Annual International Law and Religion Symposium: "Religion, Democracy, and Civil Society." Articles by Shaun de Freitas, Augusto Zimmermann, Frank S. Ravitch, Neville Rochow, Jaview Saldana Serrano, Aldir Guedes Soriano and Pink Xiong. 2013 Brigham Young University Law Review 421-617.

Pope's New Commission On Protecting Minors Concludes First Meetings

Pope Francis' new Pontifical Commission for the Protection of Minors held its first meeting in the Vatican from May 1-3.  Vatican Radio sets out the full text of the statement issued on behalf of the Commission at the end of the meeting.  It reads in part:

Our conversations included many proposals for ways in which the Commission might collaborate with experts from different areas related to safeguarding children and vulnerable adults.... 

We will propose Statutes to the Holy Father to express more precisely the Commission’s nature, structure, activity, and the goals.... [T]he Commission will not deal with individual cases of abuse, but we can make recommendations regarding policies for assuring accountability and best practice.... [W]e plan to make specific proposals regarding the importance of emphasizing ways for raising the awareness of all people regarding the tragic consequences of sexual abuse and of the devastating consequences of not listening, not reporting suspicion of abuse, and failing to support victims/survivors and their families.