Florida District Court Judge Attempts To Clarify Injunction In Same-Sex Marriage Case

A Florida federal district court has ruled on a motion to clarify a preliminary injunction it previously issued in a suit challenging Florida's ban on same-sex marriage. (See prior related posting.) At issue was whether the court's ruling did more than require a marriage license be issued to the specific couple who filed suit. In Brenner v. Scott, (ND FL, Jan. 1, 2015), the court said:

Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees.

The Clerk has acknowledged that the preliminary injunction requires her to issue a marriage license to the two unmarried plaintiffs. The Clerk has said she will do so. In the absence of any request by any other plaintiff for a license, and in the absence of a certified class, no plaintiff now in this case has standing to seek a preliminary injunction requiring the Clerk to issue other licenses. The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk’s obligation to follow the law arises from sources other than the preliminary injunction.

As reported by SCOTUSblog, immediately following this decision the law firm advising court clerks changed the advice it had previously given and said:

Greenberg Traurig has advised the Florida Association of Court Clerks and Comptrollers that clerks should follow the judge's ruling for all marriage-license applications or face the consequences identified by Judge Hinkle.

However, apparently Judge Hinkle's opinion still left some ambiguity.  Liberty Counsel issued a press release yesterday stating in part:

Nearly all media outlets... are grossly mischaracterizing the effect of the ruling....The error is likely the result of the order's condescending lecture to clerks on why they should bow to the August injunction even though they are not bound by it. Judge Hinkle’s lecture, however, has no force of law, and only invites lawlessness throughout the state.

Ghana's Top Shia Imam Calls For Political Steps

GhanaWeb yesterday published the New Year message from the Shia National Imam of Ghana. The message set out a political agenda, calling for support of Palestinians in Gaza and promoting the battle against Muslim extremists. The Imam made an extensive appeal to fight corruption in Ghana, contending: "Corruption seems to have permeated our society from governments, politicians, religious leaders, government functionaries and top public servants."  While congratulating the government on 2014 Hajj arrangements, he additionally called for reform:

I reiterate and hope that government will harness more capabilities and commit Hajj under the full control of Muslims by setting up a permanent National Hajj Commission to organize Hajj in Ghana as previously promised.

A Survey of Law School Books On Law and Religion

With the new semester beginning in U.S. law schools, here is a listing casebooks and other publications designed for courses in law and religion:

Ravitch and Backer's Law and Religion: Cases, Materials, and Readings, 3d, (West, 2015).

Edward J. Larson, Creationism in the Classroom: Cases, Statutes, and Commentary, (West, 2013).

Leslie C. Griffin, Law and Religion: Cases and Materials, 3d, (Foundation Press, 2013).

Michael W. McConnell, John H. Garvey, Thomas C. Berg, Religion and the Constitution, Third Edition, (Wolters Kluwer, 2011).

Hon. John T. Noonan Jr. & Edward M. Gaffney Jr., Religious Freedom: History, Cases, and Other Materials on the Interaction of Religion and Government, 3d, (West, 2010).

Leslie C. Griffin, Law and Religion: Cases in Context, (Wolters Kluwer, 2010).

W. Cole Durham & Brett G. Scharffs, Law and Religion: National, International, and Comparative Law Perspectives, (Wolters Kluwer, 2009).

Frank S. Ravitch, Law and Religion, A Reader: Concepts, Cases and Theory, 2d ,(West, 2008).

Stephen G. Gey, Religion and the State, Second Edition, (LexisNexis, 2006).

Thomas C. Berg, The State and Religion in a Nutshell, 2d, (West, 2004).

UPDATE: Conkle's Constitutional Law - The Religion Clauses, 2d ,(Turning Point Series) (Foundation Press, 2009).

Former NY Governor Mario Cuomo Remebered For His Speech On The Complexity of Being A Catholic Politician

The New York Times reports that former New York Governor Mario Cuomo died today at age 82.  Among many other things, Cuomo is remembered for a groundbreaking speech given at Notre Dame University in 1984 titled Religious Belief and Public Morality: A Catholic Governor's Perspective (full text) in which he said:

I protect my right to be a Catholic by preserving your right to believe as a Jew, a Protestant or non-believer, or as anything else you choose.  We know that the price of seeking to force our beliefs on others is that they might some day force theirs on us....

Cuomo used the speech to make a forceful argument in defense of Catholic public officials who do not support anti-abortion legislation.  He said in part:

As Catholics, my wife and I were enjoined never to use abortion to destroy the life we created, and we never have..... But not everyone in our society agrees with me and Matilda.

And those who don't -- those who endorse legalized abortions -- aren't a ruthless, callous alliance of anti-Christians determined to overthrow our moral standards. In many cases, the proponents of legal abortion are the very people who have worked with Catholics to realize the goals of social justice set out in papal encyclicals: the American Lutheran Church, the Central Conference of American Rabbis, the Presbyterian Church in the United States, B'nai B'rith Women, the Women of the Episcopal Church. These are just a few of the religious organizations that don't share the Church's position on abortion....

I repeat, there is no Church teaching that mandates the best political course for making our belief everyone's rule, for spreading this part of our Catholicism. There is neither an encyclical nor a catechism that spells out a political strategy for achieving legislative goals....

This latitude of judgment is not something new in the Church, not a development that has arisen only with the abortion issue. Take, for example, the question of slavery. It has been argued that the failure to endorse a legal ban on abortions is equivalent to refusing to support the cause of abolition before the Civil War.....

But the truth of the matter is, few if any Catholic bishops spoke for abolition in the years before the Civil War....  They weren't hypocrites; they were realists. At the time, Catholics were a small minority, mostly immigrants, despised by much of the population, often vilified and the object of sporadic violence. In the face of a public controversy that aroused tremendous passions and threatened to break the country apart, the bishops made a pragmatic decision. They believed their opinion would not change people's minds.... [S]o they were silent. As they have been, generally, in recent years, on the question of birth control. And as the Church has been on even more controversial issues in the past, even ones that dealt with life and death.

... The decision they made to remain silent on a constitutional amendment to abolish slavery or on the repeal of the Fugitive Slave Law wasn't a mark of their moral indifference: it was a measured attempt to balance moral truths against political realities. Their decision reflected their sense of complexity, not their diffidence....

Supreme Court Will Finally Move To Electronic Filing and Public Access

Chief Justice John Roberts announced yesterday in his Year-End Report on the State of the Judiciary (full text) that the U.S. Supreme Court will finally develop its own system for electronic filing and retrieval of documents. He said in part:

The Supreme Court is currently developing its own electronic filing system, which may be operational as soon as 2016. Once the system is implemented, all filings at the Court—petitions and responses to petitions, merits briefs, and all other types of motions and applications—will be available to the legal community and the public without cost on the Court’s website. Initially, the official filing of documents will continue to be on paper for all parties in all cases, with the electronic submission an additional requirement for parties represented by attorneys. Once the system has operated effectively for some time and the Supreme Court Bar has become well acquainted with it, the Court expects that electronic filing will be the official means for all parties represented by counsel, but paper filings will still be required. Parties proceeding pro se will continue to submit documents only on paper, and Court personnel will scan and upload those documents to the system for public access.

Much of his report is an explanation of why the Court has been so slow in adopting this technology.  Legal Times has more on the announcement.

Happy New Year 2015!

Dear Religion Clause Readers:

Happy New Year 2015!  Last year was important.  The religious liberty and church-state developments of 2014 have raised fundamental questions about arrangements that have evolved over decades in the United States:

• Does the Religious Freedom Restoration Act still draw the proper balance for religious accommodation?  
• Should the civil and religious aspect of marriage be more clearly separated?
• As small and marginal faith groups, as well as mainstream ones, compete for a place on statehouse lawns and in lineups for delivering legislative invocations, is a rush toward creating limited public forums for religious expression still the preferable policy? 
• Can the government assure universal access to health care services that some find religiously objectionable without creating a single-payer system?
• How much of a burden on third parties is justified in order to provide religious accommodation?

Religion Clause has attempted to provide the raw materials for the inevitable debate over these and other important policy questions. I have also attempted to expand coverage of law and religion issues arising outside the United States.

As we enter 2015, I want to again thank all of you who read Religion Clause-- both long-time followers and those who have discovered the blog more recently. And thanks to all of you who send me leads or corrections. Your input is important in maintaining completeness and accuracy. I read all of your e-mails and comments and appreciate receiving them, even though time constraints often prevent me from replying individually. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want to be mentioned, I will be happy to honor that request if you let me know when sending me information.

Religion Clause's established format of neutrality, broad coverage and links to extensive primary source material has produced a loyal readership.  Often Religion Clause carries a story well before mainstream media feature it. This year, for the sixth time in 8 years, Religion Clause was named by the ABA Journal as one of the 100 top blogs for a legal audience. This year Religion Clause was also added to the ABA's "Blawg 100 Hall of Fame."

StatCounter shows over 256,000 vists to the blog during 2014, but those numbers are skewed for many reasons. For me, raw numbers are not as important as the quality of the audience and the usefulness of the blog to readers. On this score, I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, and others working professionally dealing with church-state relations and religious liberty concerns.  I encourage you to recommend Religion Clause to colleagues and friends who might find it of interest.  Increasingly readers are finding Religion Clause through links on Twitter and Facebook.  I urge you to share Religion Clause postings on your social media platforms.

Finally, I remind you that the Religion Clause sidebar contains links to a wealth of resources.

Feel free to contact me by e-mail (religionclause@gmail.com) or through comments to this or other posts throughout the year.

Best wishes for 2015!  It is already shaping up as a year of important developments.

Howard M. Friedman

Church Files RLUIPA and Constitutional Challenges To Zoning Delays

Earlier this month, a lawsuit was filed against the Town of Colonie, New York, its Planning Board and officials claiming that the town's refusal to give a church various zoning approvals for a new facility violated RLUIPA, the 1st and 14th Amendments and New York state constitutional provisions.  The complaint (full text) in Life Covenant Church, Inc. v. Town of Colonie, (ND NY, filed 12/17, 2014), alleges:

LifeChurch’s zoning requests have been lost in a bureaucratic maze as the Town and Town Officials have routinely made conflicting requests and continued to unnecessarily delay in requesting and reviewing materials prior to the Planning Board’s consideration of LifeChurch’s zoning requests.

RLUIPA Defense blog has additional details.

Flurry of Court Filings Seeks To Clarify Status of Same-Sex Marriage In Florida

Florida counties find themselves uncertain about the legality of same-sex marriage in the state.  In August, in Grimsley v. Scott, a Florida federal district court issued a preliminary injunction barring various state officials from enforcing the state's ban on same-sex marriage, and ordering the Clerk of Court of Washington County, Florida to issue marriage licenses to a same-sex couple that brought the lawsuit. The court temporarily stayed these orders, but with the denial of further stays by higher courts (see prior posting), the orders are scheduled to take effect on Jan. 5. That leaves in some confusion the effect of the court's injunction.  On Dec. 24, the Clerk of Washington County filed an Emergency Motion for Clarification with the court asking it whether the court's injunction means that marriage licenses must be granted to all same-sex couples, or only to the couple specifically named in the injunction.

In response, the ACLU filed a legal memo (full text) arguing that because the court found Florida's same-sex marriage ban facially unconstitutional, the order means that all county clerks must issue marriage licenses to all same-sex couples. The court also ordered the state to respond to the motion for clarification. In its response (full text), the Attorney General said that the court is best situated to determine the reach of its own order.

Meanwhile this week an advocacy group filed state court lawsuits against two separate sets of local Florida officials seeking to prevent them from issuing licenses or performing same-sex marriages after Jan. 5. The complaint (full text) in Florida Family Action, Inc. v. Ramirez, (FL Cir. Ct., filed 12/29/2014), seeks a writ of mandamus ordering the Osceola County Clerk to deny any application for marriage license by same-sex couples.  The complaint (full text) in Florida Family Action, Inc. v. Dyer, (FL Cir. Ct., filed 12/30/2014) seeks a writ of mandamus barring the mayor of Orlando and a local judge from performing same-sex wedding ceremonies.  In both cases, the officials had expressed their intent to move ahead with same-sex marriages.

Orthodox Jewish Group To Lobby For More New York Day School Aid

The Forward reported this week that the Orthodox Union, the organization representing non-haredi Orthodox Jewish synagogues, is planning a multi-million dollar, multi-year advocacy campaign to try to increase governmental aid for Jewish day schools in New York.  The OU already has ten full-time staff members working on the project, and will be adding more. New York state has over 150,000 students in Jewish day schools and yeshivas. Tuition at some New York Jewish schools exceeds $30,000 per year.

President Sends Kwanzaa Greetings

Last Friday the White House released a statement (full text) from the President and First Lady extending warmest wishes to those celebrating Kwanzaa.  The festival, which celebrates African American heritage and culture, began Dec. 26 and extends through Jan. 1.

Kentucky Legislature Hearing Rooms Now Have "In God We Trust" Signs

In Kentucky, state officials have hung eleven "In God We Trust" signs in committee rooms in the state Capitol building and Capitol annex.  According to AP, the signs-- paid for with private donations-- were authorized by legislation enacted earlier this year. Similar signs already hang in the House and Senate chambers.  Sen. Albert Robinson, sponsor of the legislation authorizing the signs, said: "This is America. I feel like this nation was and is established by God.  We need to show the same respect in the committee rooms that we show in the Senate and House chambers." The signs put up in the committee rooms are temporary ones, because the permanent ones would not be ready by the time the legislature reconvenes on Jan. 6.

Egyptian Court Bans Jewish Pilgrimage Festival To Moroccan Rabbi's Grave

In Egypt on Monday, the Administrative Court of Alexandria banned an annual Jewish religious pilgrimage that has been held since 1979 to the grave of the Moroccan rabbi Yaakov Abu Hatzira. The grave, in the Nile Delta, was declared an Egyptian cultural monument by the government in 2001. AP and World Bulletin report on the court's action not only banning the annual festival that honors Abu Hatzira's birth, but also ordering that the shrine be removed from the list of Egyptian antiquities and barring the removal of Abu Hatzira's remains to Israel as Israel had requested through UNESCO.  The annual festival which has drawn hundreds of Jews each year from Israel, Morocco and France has been controversial. The court's action came in response to a complaint filed by local residents objecting to the mingling of men and women at the festival and the consumption of alcohol. They also contended that security for the festival was disruptive to them.

Rhode Island Supreme Court Rejects Firefighters' Objections To Riding In Pride Parade

In Fabrizio v. City of Providence, (RI Sup. Ct., Dec. 19, 2014), the Rhode Island Supreme Court dismissed a suit brought by two Catholic firefighters who objected on religious grounds to serving as part of the crew on a fire engine in a gay pride parade. They contended that "their beliefs as Catholics do not allow them to “support, encourage, nor condone homosexual behavior.'" The Court said, however:

The respondents' appearance in the parade, solely as members of the Providence Fire Department, did not constitute a form of expression on their part. Rather, it was simply the accomplishing of a task assigned to an engine company of the Providence Fire Department, and the individuals chosen to carry out that assignment cannot be said to have engaged in personal speech by carrying out their work as public servants.

Courthouse News Service reports on the decision.

District Court Enjoins Latest ACA Non-Profit Contraceptive Coverage Mandate Accommodation

In Catholic Benefits Association LCA v. Burwell, (WD OK, Dec. 29, 2014), an Oklahoma federal district court granted a preliminary injunction against the latest Affordable Care Act contraceptive mandate accommodation to a Catholic nonprofit association that was formed to assist Catholic employers in providing health benefits.The court said:

Although CBA members may be “effectively exempt” from directly providing contraceptive services if they comply with the notification requirement, they are not exempt from the notification requirement itself. This requirement also violates their religious beliefs because, they argue, it requires them to be complicit in indirectly providing their employees with contraceptive services.

After thus finding a substantial burden on plaintiffs' religious exercise, the court concluded that prior 10th Circuit precedent (its decision in  Hobby Lobby) has held that the government does not  have a compelling interest in requiring contraceptive coverage, and the Supreme Court in Hobby Lobby did not conclusively rule otherwise.

Former Navy Instructor Sues Claiming Anti-Muslim Bias

CAIR has announced the filing last week of a religious discrimination lawsuit against the United States Navy on behalf of a former barracks instructor whose reenlistment was blocked.  The complaint (full text) in Berts v. Mabus, (ED CA, filed 12/23/2014) alleges that the plaintiff Jonathan Berts, an African-American Muslim, was denied his request to wear a beard as a religious accommodation. For four years prior to making has religious accommodation request, Berts had worn a beard under a medical waiver. He alleges that after his religious accommodation request was denied, his commander refused to promote him, subjected him to questions about his beard, to racist and anti-religious jokes, and questioned his loyalty to the United States.  He was removed from his teaching duties and assigned to watch duty in a roach-infested building guarding piles of old office equipment.  Berts claims his treatment burdened his religious exercise in violation of RFRA and the Administrative Procedure Act and seeks a return to active duty along with an accommodation to allow him to grow a beard.

Uncertainty Continues On Religious Expression In the Military

Stars and Stripes yesterday reports at length on the ambiguity in the military's current policy on expression of religious speech that is illustrated by a mandatory suicide prevention briefing last month for soldiers at Ft. Benning. At the session, a chaplain, Capt. Joe Lawhorn, told members of a Ranger battalion that faith in Jesus is what helped him through depression, though he also presented non-religious methods of combating suicide. Handouts to soldiers were a sheet which on one side gave secular suicide prevention tips, and on the other presented Christianity as the solution. According to Stars and Stripes:

After the incident was publicized by the Military Association of Atheists and Freethinkers advocacy group, Fort Benning’s command warned the chaplain to cool the religious content in mandatory briefings.

In response, Lawhorn’s attorney, Michael Berry — of the Liberty Institute, a competing advocacy group — cited the wording in the [military's] new policy in a letter demanding that the Army explicitly approve religious content in the chaplain’s briefings.

Recent Articles of Interest

From SSRN:

• Muhammad Munir, Rights of the Child: An Islamic Perspective on Preventing Violence, Abuse, and Exploitation of Children and Pakistani Law, (December 14, 2014).
• Lorenz Blume, Bernd Hayo & Stefan Voigt, Correlates and Determinants of Direct Democracy, (December 23, 2014).
• Kenneth L. Marcus, Higher Education, Antisemitism, and the Law, (December 22, 2014).
• Moslay Uddin & MD Ayatullah, Muslim Law: Judicial and Legislative Changes Around the World, (December 17, 2014).
• Peter Hostettler, The Protection of Cultural Property in Armed Conflict and Peace Operations – Achievements and Challenges Ahead, (December 24, 2014).
• Deborah A. Widiss & Andrew Koppelman, A Marriage by Any Other Name: Why Civil Unions Should Receive Federal Recognition, (Indiana Journal of Law and Social Equality, Forthcoming).
• Tristin Green, On Employment Discrimination and Police Misconduct: Title VII and the Mirage of the 'Monell Analogue', (Boston University Law Review, 2015, Forthcoming).

Defendant's Failure To Touch Bible During Oath Leads NJ High Court To Remand

In Davis v. Husain, (NJ Sup. Ct., Dec. 23, 2014), the New Jersey Supreme Court remanded a case to the trial court for a different judge to consider whether religious considerations tainted a $12,500 verdict in a sexual harassment suit by a woman against her former employer. As described by the Supreme Court:

After the verdict was rendered and the jury was discharged, but before post-trial motions were argued and the judgment was entered, the trial judge conducted an ex parte discussion with the jurors, which was not recorded. According to the judge, one juror noted during that discussion that she was surprised that defendant had not placed his hand on the Bible before he testified. The judge did not make a record of the juror’s observation, but he did inform counsel as later events reveal.

The court indicated in a footnote:

Husain’s certification, submitted during post-verdict motion practice, indicates that Husain’s action was based on his religious beliefs. He states that it is his religious belief that the left hand should never be placed on a holy book.” He also states that he is “of Indian descent and the left hand is not used for any official purpose because of our culture.” 

The Supreme Court also banned for the future any post-verdict communications between a trial judge and jurors outside the presence of counsel. New Jersey Advance Media reports on the decision.

Recent Prisoner Free Exercise Cases

In McElroy v. Mathena, 2014 U.S. Dist. LEXIS 175956 (WD VA, Dec. 22, 2014), a Virginia federal district court dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint regarding his removal from the Ramadan fast list.

In Webb v. Californa Department of Corrections, 2014 U.S. Dist. LEXIS 177044 (ED CA, Dec. 22, 2014), a California federal magistrate judge dismissed with leave to amend an inmate's complaint regarding lack of funds, denial of religious items, chapel time and outdoor worship space for the Asatru/Odinic religion.

Airlines Facing Religious Objections By Passengers

At least two instances have been reported in the past ten days in which U.S. airlines have had to deal with passengers who have become unruly because of religion-related objections to some aspect of the flight.  The New York Post reports on an incident last Tuesday in which American Airlines escorted a passenger off a flight he had just boarded at LaGuardia Airport.  The passenger, despite attempts to calm him, continued to shout at the flight crew objecting to the gate agent and flight attendant wishing passengers "Merry Christmas." He shouted that not everyone celebrates Christmas. Passengers applauded his ouster from the plane.

Meanwhile Failed Messiah reports on a December 20 incident at New York's JFK Airport on a Delta flight to Israel. Haredi (Jewish ultra-Orthodox) men refused to take their assigned seats that turned out to be between two women. Other passengers, many of them Israeli, refused to move. The flight finally took off 30 minutes late after an American passenger changed seats to accommodate the men.