New York's Top Court Vacates Some of the Convictions In Dead Sea Scrolls Controversy

In People v. Golb, (NY Ct. App., May 13, 2014), New York's Court of Appeals (its highest appellate court) dismissed some, but not all, of the convictions growing out of a dispute over the origins of the Dead Sea Scrolls. As explained by the court:

Norman Golb, defendant's father, is a professor at the University of Chicago, and a scholar on the subject of the Scrolls. There is disagreement among scholars and experts about who wrote the Scrolls. One view, known as the Qumran-Sectarian theory, or Sectarian theory, is that the Scrolls were writings of a Jewish sect, living in or near Qumran. Norman Golb and others disagree.... They believe that the Scrolls were writings of various groups and that the writings were rescued from libraries in Jerusalem and brought to the caves for safekeeping at the time of the siege and sacking of the city by Roman troops in 70 C.E. (the Jerusalem libraries theory).

Defendant Raphael Golb, Professor Norman Golb's son, decided to defend his father's academic views through an Internet campaign attacking the integrity and reputation of academics and scholars who disagreed with his father's theory. According to the court, to accomplish this:

defendant, using pseudonyms and impersonating real academics and scholars, sent emails to museum administrators, academics and reporters. He published anonymous blogs. He concocted an elaborate scheme in which he used a pseudonym to engage one professor in an email exchange, and then impersonated a different scholar to criticize that professor's emails. Defendant impersonated a New York University (NYU) professor and sent emails to NYU students and NYU deans indicating that the professor had plagiarized the work of Professor Golb.

The court affirmed most of the criminal impersonation convictions of defendant,  but vacated the convictions based on the mere creation of false e-mail accounts that were never used. The court vacated defendant's convictions for aggravated harassment, finding that Penal Law § 240.30(1) is unconstitutionally vague and overbroad. The court upheld defendant's convictions for forgery, but vacated his convictions for unauthorized use of a computer and identity theft.

Chief Judge Lippman dissented in part, arguing that the entire indictment should be dismissed.  Capital New York reports on the decision.

Court Says ACA Contraceptive Coverage Rules For Religious Non-Profits Do Not Violate RFRA

In Diocese of Cheyenne v. Sebelius, (D WY, My 13, 2014), a Wyoming federal district court denied a preliminary injunction in a challenge to the Affordable Care Act contraceptive coverage mandate rules for religious non-profits. Wyoming Catholic schools and charitable groups object to the opt out self-certification form that results in the third-party administrator of their self-insurance plans furnishing contraceptive coverage directly to the non-profits' employees.  The court concluded that this does not impose a substantial burden on plaintiffs' religious exercise:

It is not Plaintiffs' self-certification that authorizes or obligates the TPA to ensure the objectionable contraceptive coverage; it is the ACA that does so.... Consequently, Plaintiffs' argument that completing the self-certification form requires them to enable access to objectionable contraceptive products and services is inaccurate and unconvincing....

While Plaintiffs hold very strong religious views that the TPA should not provide (or be forced by federal law to provide) contraceptive coverage, the TPA's provision of such coverage cannot be said to be a substantial burden on Plaintiffs'religious exercise....

Through the ACA's accommodation, Plaintiffs have the right to be exempted from participating in, providing, or paying for the costs associated with the objectionable contraceptive coverage based on their sincere religious beliefs, but they have no right to prevent a third party (who does not hold those same religious objections) from meeting the ACA's requirements.

AP reports on the decision. (See prior related posting.)

Korean Court Says It Cannot Review Church Disciplinary Actions

Inside Korea reports that last Friday, a Korean appellate court held that civil courts cannot review church disciplinary actions. The Seoul High Court dismissed a suit by a former priest, identified only as Kim, who was suspended in 2005 after allegedly embezzling funds of the Samsungsan Cathedral.  He was defrocked after he filed civil suits against the Cathedral in protest of his suspension. The court said in part:

Our Constitution guarantees the freedom of religion and strictly separates the church and state. The freedom of managing and organizing religious councils must be provided for to the utmost.

Separately Kim is facing criminal charges over misappropriation of $74,000 in Cathedral funds.

More Same-Sex Marriage Developments-- 4th Circuit Oral Arguments; Idaho's Laws Invalidated By District Court

The U.S. 4th Circuit Court of Appeals yesterday heard oral arguments (audio of arguments) in Bostic v. Schaefer. In the case, a Virginia federal district court held that Virginia's constitutional and statutory provisions barring same-sex marriage and prohibiting recognition of lawful same-sex marriages performed elsewhere are unconstitutional. (See prior posting.) Reporting on the oral arguments, the Washington Post said: "The sharply opposing viewpoints of two of the jurists suggested that the third, independent-minded Circuit Judge Henry F. Floyd, might hold the deciding vote."

Also yesterday, an Idaho federal magistrate judge struck down Idaho's statutory and constitutional provisions barring same-sex couples from marrying in the state or having their marriages performed elsewhere recognized in Idaho.  In Latta v. Otter, (D ID, May 13, 2014), the court concluded that Idaho's marriage laws violate same-sex couples' rights under the Due Process and Equal Protection Clauses of the 14th Amendment. The court issued a permanent injunction, effective May 16. Idaho Statesman reports on the decision and on Idaho Governor Butch Otter's written statement after the decision saying that he will continue to defend the will of the people to limit marriage to the union of a man and a woman.  UPDATE: AP reports that on May 14 the magistrate judge refused to stay her order pending appeal, writing that the appeal is unlikely to succeed.

School District Enters Consent Decree With Fellowship of Christian Athletes

Liberty Counsel announced yesterday that the Lake County, Florida, School Board has voted unanimously to enter into a Consent Decree in a suit brought against them last month by the Fellowship of Christian Athletes (FCA).  Mount Dora High School allowed secular non-curricular student clubs access to school facilities for announcing their activities, included the club in the school yearbook and allowed club members to wear a colored cord at graduation to signify membership.  FCA sued to obtain the same rights for religious non-curricular student clubs.  The consent decree (full text) in Mount Dora High School Fellowship of Christian Athletes v. Lake County School Board, (MD FL), provides:

The District is hereby permanently enjoined from denying to the FCA Club, and any other high school religious non-curricular student club, Club Benefits that the District provides to any other high school non-religious, non-curricular student club, and from enforcing its Policy in a manner that violates the Equal Access Act or the First Amendment, consistent with current, applicable law.

The consent decree still must be approved by the court.

Federal Circuit Denies Trademark Registration For "Stop the Islamisation of America"

In In re Geller, (Fed. Cir., May 13, 2014), the U.S. Court of Appeals for the Federal Circuit upheld the Trademark Office's refusal to register "Stop The Islamisation of America" as a trademark to be used in connection with understanding and preventing terrorism.  The appeals court agreed with the Trademark Trial and Appeal Board's conclusion that the phrase contains matter which may disparage a group of persons. Under 15 USC 1052(a), this is a basis for refusing registration. The court said in part:

The political meaning of Islamisation does not require violence or terrorism, and the Board properly found that associating peaceful political Islamisation with terrorism would be disparaging to a substantial composite of American Muslims.

Appellants in the case, Pamela Geller and Robert Spencer, are co-founders of the American Freedom Defense Initiative. [Thanks to How Appealing for the lead.]

New International Survey of Anti-Semitic Attitudes Released

The Anti-Defamation League today announced the release of its new worldwide survey of anti-Semitic attitudes, The ADL Global 100: An Index of Anti-Semitism. The study surveyed 102 countries and territories in order to determine the level and intensity of anti-Jewish sentiment internationally.  According to the ADL's press release:

The survey found that anti-Semitic attitudes are persistent and pervasive around the world. More than one-in-four adults, 26 percent of those surveyed, are deeply infected with anti-Semitic attitudes.  This figure represents an estimated 1.09 billion people around the world.

The overall ADL Global 100 Index score represents the percentage of respondents who answered “probably true” to six or more of 11 negative stereotypes about Jews. An 11-question index has been used by ADL as a key metric in measuring anti-Semitic attitudes in the United States for the last 50 years.

The detailed results are also available from an elaborate interactive website. Among the survey's other findings were that anti-Semitism is highest in the Middle East & North African (MENA) region. The non-MENA country with the highest level of anti-Semitic attitudes is Greece. The the country in the Middle East with the lowest amount of anti-Semitic feeling is Iran.  Around the world, 35% of those surveyed had never heard of the Holocaust.

Two Appointed As USCIRF Commissioners

In a press release yesterday, the U.S. Commission on International Religious Freedom announced the appointment of Dr. Daniel I. Mark, assistant professor of political science at Villanova University, to the Commission for a two-year term.  In addition, Dr. Robert P. George, currently Chairman of the Commission, was reappointed for an additional two-year term.  Both appointments were made by House Speaker John Boehner.  Dr. Mark replaces outgoing Commissioner Elliott Abrams. Chairman George has a post on Mirror of Justice blog indicating that Dr. Mark was a student of his at Princeton University, and says that Mark's Ph.D. thesis defense "was the most brilliant I have witnessed in twenty-nine years of teaching."

High-Ranking French Rabbi's Religious Court Accused of Extorting Funds To Get Divorce Document For Wife

The Forward yesterday reported on allegations made two months ago in France against the Chief Rabbi of Paris (who is now also serving as the interim Chief Rabbi of France) by a woman who claims that the rabbi-- Michel Gugenheim-- was involved in extorting 90,000 Euros (approximately $123,000 US) from her in exchange for her obtaining a get (Jewish divorce document). According to a deposition filed in March with Paris police by the woman's family, the 28-year old woman's husband demanded 30,000 Euros from her before he would give her a get.  Apparently Gugenheim and two other rabbis serving on his rabbinical court backed the husband's demand, and asked the woman's family to pay it by writing a check for 90,000 Euros as a charitable contribution to the Sinai religious institution.  French tax authorities would reimburse the family for 60,000 Euros of that since it was a charitable contribution. The charity would then transfer 30,000 Euros to the husband and keep the rest. Asked to comment, Gugenheim denied any wrongdoing.

Child Parenting Time Order Did Not Violate Free Exercise Protections or Establishment Clause

In In re Peace v. Peace, (AZ App., May 8, 2014), an Arizona state appellate court rejected a divorced husband's claim that a trial court's order modifying parenting time violated his free exercise rights and the Establishment Clause.  At issue was a provision in the court's order providing that the wife will have the children on Christmas Day in odd-numbered years, and the husband shall have them in even-numbered years.  The husband complained that the court order did not mention the holy days of his Baha'i faith. The court concluded that the trial court's order does not endorse Christianity nor burden husband's religious exercise.

AU Responds To Town of Greece Decision

In a press release today, Americans United announced that it is implementing a coordinated response to the U.S. Supreme Court's recent ruling in Town of Greece that permitted sectarian invocations at city council sessions.  AU's program will oppose attempts to pressure local governments to institute invocations.  It will educate local officials about the parameters of the Supreme Court's decision.  It will offer assistance to individuals from a range of religious and philosophical traditions who want to offer inclusive opening messages at local council meetings. Finally it will engage in dialogue and, if necessary, litigation where the Supreme Court's decision is being violated. According to AU:

 The plan, dubbed “Operation Inclusion,” is necessary to ensure that the rights of all Americans are protected and to respond to misleading claims by Religious Right groups....

[Thanks to Jeff Pasek for the lead.]

State Court Invalidates Arkansas Ban on Same-Sex Marriage

In Wright v. State of Arkansas, (AR Cir. Ct., May 9, 2014), an Arkansas state trial court held that Arkansas' state constitutional and legislative bans on same-sex marriage violate the 14th Amendment's equal protection clause. The suit was brought by 12 same-sex couples seeking to marry in Arkansas and 8 couples who have married in states allowing same-sex marriage who want their marriages recognized in Arkansas.  In striking down the state ban, the court added:

It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.

According to USA Today, while state Attorney General Dustin McDaniel personally supports same-sex marriage, his office said after the ruling:

in keeping with the Attorney General's obligation to defend the state constitution, we will appeal. We will request that Judge Piazza issue a stay of his ruling so as not to create confusion or uncertainty about the law while the Supreme Court considers the matter.

  [Thanks to Alliance Alert for the lead.]

Recent Articles of Interest

From SSRN:

• Muhammad Munir, Some Reflections on the Story of Banu Quraydha: A Re-Evaluation, (May 1, 2014).
• Akiva A. Miller, The Policing of Religious Marriage Prohibitions in Israel: Religion, State, and Information Technology, (April 30, 2014).
• Douglas Laycock, Imaginary Contradictions: A Reply to Professor Oleske, (67 Vand. L. Rev. En Banc 89 (2014)).
• Robert J. Delahunty, Does Animal Welfare Trump Religious Liberty? The Danish Ban on Kosher and Halal Butchering, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-19, 2014).
• Helen M. Alvare, A 'Bare…Purpose to Harm'? Marriage and Catholic Conscience Post-Windsor, (George Mason Law & Economics Research Paper No. 14-14, 2014).
• Meghan J. Ryan, Finality and Rehabilitation, (4 Wake Forest J.L. & Pol'y 121 (2014)).
• Patrick McKinley Brennan, Implementing Religious Law in Modern Nation-States: Reflections from the Catholic Tradition, (Villanova Law/Public Policy Research Paper No. 2014-1008, 2014).
• Linda C. McClain, Common and Uncommon Families and the American Constitutional Order, (67 Vanderbilt Law Review En Banc 19 (2014)).
• Patrick Parkinson & Nicholas Aroney, The Territory of Marriage: Constitutional Law, Marriage Law and Family Policy in the ACT Same Sex Marriage Case, (May 9, 2014).
• Jerg Gutmann & Stefan Voigt, The Rule of Law and Constitutionalism in Muslim Countries, (May 8, 2014).
• Amy L. Moore, Rife with Latent Power: Exploring the Reach of the IRS to Determine Tax-Exempt Status According to Public Policy Rationale in an Era of Judicial Deference, (South Texas Law Review, Forthcoming).

From SmartCILP and elsewhere:

• Drew Stevens, By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage, 63 Emory Law Journal 979 (2014).
• Mark Goldfeder, Not All Dogs Go To Heaven: Judaism's Lessons In Beastly Morality, [Abstract], 20 Animal Law 107-118 (2013).
• Mark L. Rienzi, The Case for Religious Exemptions--Whether Religion Is Special Or Not (Reviewing: Brian Leiter, Why Tolerate Religion?; Andrew Koppelman, Defending American Religious Neutrality), 127 Harvard Law Review 1395-1418 (2014).
• Emerging Issues in First Amendment Jurisprudence: Interpreting the Relationship Between Religion and the State in the Modern Age. Articles by Alycee Lane, Bruce Ledewitz, Aaron R. Petty, Mark Strasser and Harry F. Tepker. 6 Elon Law Review 1-187 (2014).

Activist Wants To Offer Satanist Prayer In Florida After Town of Greece Decision

Just days after the U.S. Supreme Court's ruling upholding sectarian prayer at city council meetings (see prior posting), Deerfield Beach, Florida activist Chaz Stevens has written to request the Deerfield Beach City Commission and the Florida state Senate each to allow him to open one of their sessions with a Satanist prayer. Raw Story reported on developments on Friday.  Last year Stevens used the state's neutral display policy to set up an 8-foot-tall Festivus pole made of Pabst Blue Ribbon beer cans near a nativity display in the state Capitol. (See prior posting.) He said  that he recently converted from "Pabstfestidian" because "Satan is a cool dude." He added: "I just want equal billing. We allow various religious nutjobs to give a prayer. They pray to Jesus who is make-believe, god who is make-believe, why not Satan who is make-believe?"

Chinese Authorities Demolish Christian Church In Controversial Move

The Los Angeles Times reported last week on the complicated questions surrounding China's demolition last month of the Three Rivers (Sanjiang) Church in the southeastern Chinese city of Wenzhou. The $4 million church building was completed last year (background). According to the Times, the recently appointed provincial party secretary was offended by the building's size and the large cross on its spire. The paper reports:

Five local bureaucrats have been singled out for punishment, charged with failing to stop construction of a church they knew was to be much larger than building permits allowed.

Authorities say the church is just one of many illegal structures ensnared in their "Rectify Three, Demolish One" campaign intended to halt rampant violation of building regulations; signs in Wenzhou tout the campaign as a move to "make space for development."

Many local Christians, though, think the campaign aims to crack down on the churches that have proliferated in Wenzhou since the 1980s. Many members of the city's business class have flocked to the religion and funded the construction of increasingly elaborate houses of worship, in the process earning the city the moniker "China's Jerusalem."

Recent Prisoner Free Exercise Cases

In DePaola v. Virginia Department of Corrections, 2014 U.S. Dist. LEXIS 61165 (WD VA, May 2, 2014), a Virginia federal district court dismissed a claim by a Nation of Islam inmate that subjecting him to a TB screening test violates his RLUIPA rights, and remanded to a magistrate plaintiff's claim that he was denied a diet that complies with his religious beliefs.

In Brames v. Hodge, 2014 U.S. Dist. LEXIS 61591 (SD IL, May 5, 2014), an Illinois federal district court allowed a Hebrew Israelite inmate to proceed with his complaint that the prison chaplain refused to allow him to attend Jewish services and celebrations and be placed on a kosher diet, that the prison physician refused to certify him for a no-bean kosher diet, and that various defendants ignored his grievances on these matters.

In Davis v. Doe, 2014 U.S. Dist. LEXIS 63437 (MD NC, May 8, 2014), a North Carolina federal magistrate judge recommended dismissal of an inmate's claim that his free exercise rights were infringed by a policy, of which he had not been informed, that prohibited him from using the rest room during a religious service.

In Ajala v. West, 2014 U.S. Dist. LEXIS 63544 (WD WI, May 8, 2014), a Wisconsin federal district court permitted a Muslim inmate to proceed with complaints that he was denied a halal diet, but dismissed for failure to exhaust administrative remedies a claim that he was required to sign a statement that a vegan/vegetarian diet satisfied his religious needs.

In Watkins v. Fox, 2014 U.S. Dist. LEXIS 64294 (ND FL, May 9, 2014), a Florida federal district court adopted a magistrate's recommendations and dismissed for failure to exhaust administrative remedies an inmate's complaint that he was denied the use of prayer oils. The court also dismissed a prison chaplain as a defendant.

NYPD Asks Arrested Muslims To Become Anti-Terrorism Informants

In a front page article, today's New York Times reports that a special New York Police Department detective squad-- the Citywide Debriefing Team-- is regularly recruiting Muslims arrested on minor charges to become informants for the Department's anti-terrorism Intelligence Division. The Times describes the experience of several men:

Waiting in a New York station house cell or a lockup facility, expecting to be arraigned, only to be pulled aside and questioned by detectives. The queries were not about the charges against them, but about where they went to mosque and what their prayer habits were. Eventually, the detectives got to the point: Would they work for the police, eavesdropping in Muslim cafes and restaurants, or in mosques?

These revelations come less than a month after a lawsuit was filed in New York claiming that the FBI uses the No Fly List to coerce American Muslims to become informants. (See prior posting.)

Proponents Drop Oregon Conscience Initiative After Losing Challenge To Ballot Title

In Fidanque v. Rosenblum, (OR Sup. Ct., May 8, 2014), the Oregon Supreme Court in a brief order denied oral argument and rejected challenges to the ballot title certified by the Attorney General for a proposed ballot measure.  The initiative measure was designed to allow religious belief exceptions to anti-discrimination laws for refusals to provide goods or services for same-sex marriage or partnership ceremonies and their arrangements. The title, approved by the Court, is: "'Religious belief' exceptions to anti-discrimination laws for refusing services, other, for same-sex ceremonies, 'arrangements'". As reported by The Oregonian, after losing their objections, backers said they would drop the initiative in favor of legal action. A press release yesterday by Friends of Religious Liberty said in part:

Current Oregon law provides protection to religious institutions and clergy for choosing nonparticipation in same sex ceremonies. But the law discriminates against individuals of faith who wish to choose nonparticipation. A Jewish pianist or a Christian violinist who may not want to participate in a same sex ceremony based on deeply held religious beliefs is currently subject to government penalties and civil actions.... 

The intent of IP52 is to end this religious discrimination in Oregon by providing individuals of faith with protection equal under the law to that of religious clergy. But the certified ballot title does not acceptably state this. Indeed, it stages it as intolerant instead of protecting equal rights of conscience..... Thus, we have resolved to suspend IP52 and, instead, back an enforcement lawsuit that will be filed shortly in Oregon on behalf of individuals of faith in expressive professions who are currently being coerced to violate their faiths.... 

[Thanks to James Oleske via Religionlaw for the lead.]

Massachusetts Supreme Court Upholds Daily Voluntary Recitation of Pledge of Allegiance In Schools

In Doe v. Acton-Boxborough Regional School District, (MA Sup. Jud. Ct., May 9, 2014), the Massachusetts Supreme Judicial Court rejected claims by school children and their parents who are atheists and humanists that the voluntary daily recitation of the Pledge of Allegiance-- including the phrase "under God"-- violates the equality provisions (Art. 106) of the Massachusetts state Constitution and 76 MGL Sec. 5 that prohibits discrimination in public education. The Court said in part:

The plaintiffs do not appear to be claiming that their children have been punished, bullied, criticized, ostracized, or otherwise mistreated by anyone as a result of their decision to decline to recite some (or all) of the pledge.... [T]here is nothing empirical or even anecdotal in the summary judgment record to support a claim that the children actually have been treated or perceived by others as "outsiders," "second-class citizens," or "unpatriotic."

The plaintiffs' claim of stigma is more esoteric. They contend that the mere recitation of the pledge in the schools is itself a public repudiation of their religious values, and, in essence, a public announcement that they do not belong. It is this alleged repudiation that they say causes them to feel marginalized, sending a message to them and to others that, because they do not share all of the values that are being recited, they are "unpatriotic" "outsiders." We hold that this very limited type of consequence alleged by the plaintiffs -- feeling stigmatized and excluded -- is not cognizable under art. 106.

Justice Lenk filed a brief concurring opinion, stating in part:

[O]ur holding today should not be construed to bar other claims that might rely on sufficient indicia of harm. Should future plaintiffs demonstrate that the distinction created by the pledge as currently written has engendered bullying or differential treatment, I would leave open the possibility that the equal rights amendment might provide a remedy.

Boston Globe reports on the decision. [Thanks to How Appealing for the lead.]

Episcopal Church Wins Lawsuit Over San Joaquin Diocese Property

A California state trial court this week released a Tentative and Proposed Statement of Decision giving a victory to The Episcopal Church (TEC) in its property-ownership dispute with the break-away Diocese of San Joaquin. The decision comes after a trial. (In an earlier decision the court concluded that there was not evidence that would allow adjudication on summary judgment.) In Diocese of San Joaquin v. Schofield, (CA Super. Ct., May 5, 2014), the court held that the purported transfer of property to the Anglican Diocese Holding Corporation, affiliated with the Province of the Southern Cone instead of TEC, was invalid because the transfers were made by Bishop John David Schofield after he was removed as an Episcopal bishop by TEC. It went on to hold that the Diocese could not "leave" the Church because it is a geographical construct of the Church. The Church's governing documents "make clear that a local parish owns local church property in trust for the greater church and may use that property only so long as the local church remains part of the greater church." Anglican Curmudgeon blog comments on the ruling from the perspective of the break-away Diocese.