Canadian Supreme Court Rejects Prayer At City Council Meetings

In an important church-state decision, the Supreme Court of Canada yesterday held that a facially non-sectarian prayer prescribed by a municipal by-law to be said before the start of City Council meetings violates the duty of religious neutrality imposed by the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms.  At each Council meeting, the mayor would recite the prayer, while at the beginning and end of the prayer he and other Council members would make the sign of the cross and say "in the name of the Father, the Son and the Holy Spirit".  In Mouvement laïque québécois v. Saguenay (City), (SCC, April 15, 2015), the recitation of the prayer was challenged by an atheist who attended Council meetings. The Court said in part:

Neither the Quebec Charter nor the Canadian Charter  expressly imposes a duty of religious neutrality on the state. This duty results from an evolving interpretation of freedom of conscience and religion....

By expressing no preference, the state ensures that it preserves a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally. I note that a neutral public space does not mean the homogenization of private players in that space. Neutrality is required of institutions and the state, not individuals.... On the contrary, a neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity. The neutrality of the public space therefore helps preserve and promote the multicultural nature of Canadian society enshrined in s. 27  of the Canadian Charter.

UPI reports on the decision. [Thanks to Scott Mange for the lead.]

California Appeals Court: No Duty To Warn Congregants of Child Molester

In Conti v. Watchtower Bible & Tract Society of New York, Inc., (CA App., April 13, 2015), a California state appeals court held that elders of a Jehovah's Witness congregation had no duty to warn the congregation in general, or parents, that another member of the congregation had previously molested a child.  In the case, Candace Conti who as a child was subsequently molested by the same fellow Church member (Jonathan Kendrick), sued the Congregation and its national Church body. The court concluded that a duty to warn arises only where there is a special relationship with the injured party:

While it is readily foreseeable that someone who has molested a child may do so again, the burden the duty to warn would create and the adverse social consequences the duty would produce outweigh its imposition. The burden would be considerable because the precedent could require a church to intervene whenever it has reason to believe that a congregation member is capable of doing harm, and the scope of that duty could not be limited with any precision..... Child molestation is a particularly heinous evil, but which other potential harms would the church have a duty to avert?... Imposition of a duty to warn would also have detrimental social consequences. It would discourage wrongdoers from seeking potentially beneficial intervention, and contravene the public policy against disclosure of penitential communications....

However the court upheld the jury's finding that the Church was negligent in failing to prevent Kendrick from performing church-sponsored field service-- door-to-door preaching-- alone with a minor. That gave Kendrick particular opportunity to molest Conti.

Based on these conclusions, the appeals court, as reported by the San Francisco Chronicle, reversed the $8.6 million punitive damage award against the national Watchtower Society, but affirmed damages for negligence awarded against the defendants for $2.8 million.

Oklahoma AG Promotes Right of Schools To Have Neutral Policy Allowing Bible Distribution

As reported by Raw Story, on Friday attorneys for the Duncan, Oklahoma Public Schools responded (full text of letter) to an earlier letter from the Appignani Humanist Legal Center complaining that an elementary school teacher had offered Bibles to her students. The school system will advise teachers and administrators not to hand out Bibles or other religious material and not encourage students during class time to take religious materials from others.  It will stop any distributions of Bibles at elementary schools during school hours or immediately before or after, though reserves the right to permit distributions at high schools.

Meanwhile yesterday Oklahoma's Attorney General Scott Pruitt announced a new program "to defend religious freedom and provide support to Oklahoma schools facing intimidation. The assistance includes creating a statewide training program to equip superintendents, teachers, parents, school board members, and others to know their rights."  In a letter to school superintendents (full text) that focuses on complaints that had been made by the Freedom From Religion Foundation, Pruitt said in part:

Oklahomans do not need to live in fear that their government has become hostile to religion. Schools have a right to enact neutral policies that allow all viewpoints on religion to thrive. As the Attorney General of Oklahoma, I will not stand idly by while out-of-state organizations bully you or any other official in this State into restricting the religious freedom the Founders of this country held dear. 

USCIRF Press Release On Yom Hashoah

The U.S. Commission on International Religious Freedom yesterday issued a press release noting:

April 15 is Yom Hashoah, Holocaust and Heroism Remembrance Day, an international day commemorating the six million Jews murdered by Nazi Germany and her allies.  It is a solemn day of remembrance, recalling those who suffered and died and those who fought against this evil.  

“As we honor the memory of the victims of the Holocaust and those who fought against the Nazis and their sympathizers, we must go beyond remembering and condemn the torrent of virulent anti-Semitism that has been unleashed seventy years after the Holocaust’s end.  We also must condemn the continued existence and growth of Holocaust denial, an especially solemn responsibility given the gradual disappearance of the generations who witnessed the Nazi evil," said Dr. Katrina Lantos Swett, Chair of the U.S. Commission on International Religious Freedom (USCIRF). 

Florida Lawsuit Claims Court Enforcement of Parenting Plan For Circumicison of 4+ Year Old Boy Is Unconstitutional

In Florida, a dispute between the father and mother of a now four-and-one-half year old boy has led to the filing of a federal lawsuit challenging the constitutionality of a state trial court order enforcing a parenting plan provision  calling for the boy's circumcision.  The complaint (full text) in C.R.N.H. v. Nebus, (SD FL, filed 4/13/2015), filed by the mother on her own behalf and on behalf of the child, names the boy's father, Dennis Nebus, as well as all judges and sheriffs in Florida, as defendants.  As reported by the Palm Beach Sun Sentinel and AP, the boy was born in October 2010.  In 2012, his parents who were never married agreed to a parenting plan which was approved by a Florida trial court.  The plan called for the father to arrange for the son's circumcision.  Subsequently the mother changed her mind about allowing the procedure and went into hiding at a battered women's shelter with the boy.  The father has no religious reasons for desiring the boy's circumcision. It is disputed whether he has a medical reason.

The complaint contends that under the circumstances of this case, forcing circumcision of the boy amounts to assault and battery and would impair the parents relationship with their son. It also claims that the child has been denied procedural due process. the right to privacy and bodily integrity, equal protection, and free exercise of religion. Explaining the free exercise argument, the complaint contends: "C.R.N.H. is Christian and the New Testament affirmative [sic] discourages of the practice of circumcision." The complaint stresses numerous times that its arguments are made in light of the child's current age and the lack of any religious reason for the circumcision request.

Vatican Delays Approval of France's Gay Nominee As Ambassador

Reuters reported yesterday that the Vatican has still not approved the Jan. 5 nomination of Laurent Stefanini as France's new ambassador to the Holy See. Stefanini who once served as the number two person in France's Vatican Embassy has more recently been President Francois Hollande’s head of protocol.  According to Reuters:

French Catholic daily La Croix cited an unnamed source as saying the Vatican considered it “provocation” that France’s Socialist government, which in 2013 passed a law permitting gay marriages, had proposed a homosexual for the post.

Suit Challenges Guam's Ban On Same-Sex Marriage

Yesterday a suit was filed in federal district court in Guam challenging the constitutionality of Guam's ban on same-sex marriage.  The complaint (full text) in Aquero v. Calvo, (D Guam, filed 4/13/2015) was brought by a lesbian couple who wish to marry on Guam where they live.  The complaint points out the distance plaintiffs would need to travel to go to a state where they could now legally marry. The 9th Circuit Court of Appeals that includes Guam has already held other states' same-sex marriage bans unconstitutional. (See prior posting,) Pacific News Center reports on the lawsuit.

3rd Circuit Again Rejects Challenge To New Jersey Reparative Therapy Ban

The U.S. 3rd Circuit Court of Appeals yesterday, for a second time, rejected a constitutional challenge to a New Jersey statute (A3371) that prohibits providing "sexual orientation change efforts" counseling to minors.  Last September, in King v. Governor of New Jersey, the 3rd Circuit rejected free speech and free exercise challenges to the law brought by counselors offering the therapy. (See prior posting.) Now in Doe v. Governor of the State of New Jersey, (3d Cir., April 13, 2015), the 3rd Circuit also rejected challenges brought by a minor and his parents who claim the law abridges their free exercise rights, their right to receive information and their parental rights to control the upbringing of their children. The Court relied on its King opinion in dealing with the free exorcise challenge.  There the Court had found the law to be neutral and of general applicability. It held that the right to receive information is not broader than the right to disseminate it.  Finally, rejecting the parents' due process argument, the Court held that parental rights do not include the right to choose a specific medical or mental health treatment that the state has reasonably concluded is harmful. Reuters reports on the decision.

White House Will Host "The Gospel Tradition: In Performance"

As part of the "In Performance At the White House" series, tomorrow night President and Mrs. Obama will host a program on The Gospel Tradition. According to the White House announcement last week,:

The event will pay tribute to the fundamental role gospel music has played in the American musical tradition and the important artists and repertoire that have marked its vibrant history. The program will include performances by Bishop Rance Allen, Pastor Shirley Caesar, Aretha Franklin, Rodney Crowell, Rhiannon Giddens, Emmylou Harris, Darlene Love, Lyle Lovett, Tamela Mann, the Morgan State University Choir, and Michelle Williams — with T Bone Burnett as executive music director and Billy Maxwell as music director.

The program will be streamed live a 7 pm ET at  https://www.whitehouse.gov/live , and will be broadcast by PBS at 9 pm ET on June 26. Tomorrow during the day the First Lady will host a workshop for middle school, high school and college students on The History of Gospel Music.

Recent Articles of Interest

From SSRN:

• Paul Horwitz, The Religious Geography of Town of Greece v. Galloway, (Supreme Court Review, Forthcoming).
• Leonid Sykiainen, Is Sharia Compatible with Contemporary Russian Law?, (Higher School of Economics Research Paper No. WP BRP 49/LAW/2015, April 2015).
• Leslie C. Griffin, A Word of Warning from a Woman: Arbitrary, Categorical and Hidden Religious Exemptions Threaten LGBT Rights, (LGBT Antidiscrimination Law and Policy After Hobby Lobby Symposium, March 2015).
• Naheed Ghauri, Domestic Violence (Q.4:34) and the Qur’Ānic Model: Q.4:34 – Hermeneutical Analysis of Verse 34 and the Surrounding Controversy, (March 9, 2015).
• Amna A. Akbar, National Security's Broken Windows, (UCLA Law Review, Forthcoming).
• Danieli Evans, Commercial Religious Exercise: Translating the Commercial Speech Doctrine to the Free Exercise Clause, (Georgetown Law Journal, Vol. 103, No. 50, 2014).
• Gary J. Simson, Religious Arguments by Citizens to Influence Public Policy: The Lessons of the Establishment Clause, (Mercer Law Review, Vol. 66, p. 273, 2015).
• Carlos A. Ball, Obsecenity, Morality, and the First Amendment: The First LGBT Rights Cases Before the Supreme Court, (Columbia Journal of Gender and Law, Vol. 28, No. 2, 2015).
• Christopher R. Leslie, Justice Alito's Dissent in Loving v. Virginia, (Boston College Law Review, Vol. 55, 2014).

From SmartCILP:

• Delaram Farzaneh, One Step Forward, Two Steps Back: A Brief History of Legal Discriminations Against Women in Iran and the Violations of International Human Rights. 20 Annual Survey of International & Comparative Law 201-237 (2014).
• Isaac Kfir, Feminist Legal Theory As a Way to Explain the Lack of Progress of Women's Rights in Afghanistan: The Need for a State Strength Approach. 21 William & Mary Journal of Women & Law 87-152 (2014).
• Maita, Aida. Arbitration of Islamic Financial Disputes. 20 Annual Surey of International & Comparative Law 35-71 (2014).
• Shari'a and Halakha in North America. Introduction by Mark D. Rosen; roundtable discussion with Wajahat Ali, Lee Ann Bambach, Samuel Freedman, participants; articles by Charlotte Elisheva Fonrobert, Mustafa R.K. Baig and Michael A. Helfand; keynote addresses by Michael J. Broyde and Mohannad H. Fadel. 90 Chicago-Kent. Law Review 3-181 (2015).

Recent Prisoner Free Exercise Cases

In Wilkinson v. Geo Group, Inc., (11th Cir., April 7, 2015), the 11th Circuit affirmed the dismissal of a Santeria inmate's complaint that during a cell search a Santeria artifact was confiscated and a shrine destroyed. Authorities had offered to reimburse him for the shrine.

In Giorgio v. Jackson, 2015 U.S. Dist. LEXIS 44243 (D MA, April 1, 2015), a Massachusetts federal district court allowed Native American inmates to proceed with their complaint that they were denied access to smudging materials and ceremonies.  Claims regarding denial of feathers, off-site pow-wows and purification lodge ceremonies were dismissed.

In Mitchell v. Mississippi Department of Corrections, 2015 U.S. Dist. LEXIS 43600 (ND MI, April 2. 2015), a Mississippi federal district court dismissed a Muslim inmate's complaint that Friday Jumu'ah services were cancelled for a number of months in one prison unit for security reasons.

In Varsanyi v. Piazza, 2015 U.S. Dist. LEXIS 46473, (MD PA. April 9, 2015), a Pennsylvania federal district court dismissed a complaint by a now-released Jewish inmate that the correctional facility's kosher diet did not meet Orthodox Jewish standards, that he was denied visits by an Orthodox Jewish rabbi and denied religious materials.

In Tamayo v. Fisher, 2015 U.S. Dist. LEXIS 46694 (ED CA, April 9, 2015), a California federal magistrate judge recommended that a Muslim inmate be allowed to proceed with his free exercise and RLUIPA complaint that his request to be placed on the list for Ramadan meals was ignored.

In Porter v. Biter, 2015 U.S. Dist. LEXIS 46725 (ED CA, April 9, 2015), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that he was denied permission to legally change his name to one consistent with his Islamic faith.

Jindal Tells NRA That After Religious Liberty Challenges Comes Challenge To 2nd Amendment Rights

Louisiana Governor Bobby Jindal, a potential Republican candidate for President, is staking out a strong conservative religious liberty position. The Tennessean reports that Jindal, speaking to the National Rifle Association convention in Nashville on Friday, stressed religious liberty concerns for his audience in this way:

Now, I know you did not come here today expecting to hear a speech on religious liberty.  But my friends, if these large forces can conspire to crush the First Amendment, it won't be long before they come after the Second Amendment. Michael Bloomberg is already trying. He's pressuring grocery stores and restaurants to ban guns. Next, he will bully sporting goods stores to quit selling guns and ammo. Bloomberg can not beat Chris Cox and Wayne LaPierre in the elections — so he's trying to beat us in the boardrooms of corporate America.

Long Arm Jurisdiction Upheld Against Churches Using Plaintiff's Men's Ministry Logo

In Mighty Men of God, Inc. v. World Outreach Church of Murfreesboro Tenn., Inc., (MD FL, April 6, 2015), a Florida federal district court ruled that it can exercise personal jurisdiction over two religious organizations in Murfreesboro, Tennessee who were sued by a Florida-based Christian educational service for improperly using its trademark.  Plaintiff offered conferences directed at Christian men using the trademarks "Might Men of God" and "Mighty Men."  Defendants, World Outreach Church and Intend Ministries, organized conferences in Tennessee using the same names. The court held that under Florida's long-arm statute which was used to obtain jurisdiction over defendants, the intentional trademark infringement claims constitute tortious acts within Florida.

European Court Will Hear Case of Greek Muslim Widow Contesting Inheritance Rules

The Guardian yesterday reported on the first case to be taken to the European Court of Human Rights by a Greek Muslim woman who objects to Greece's application of Muslim personal law to her inheritance rights. The 1923 Treaty of Lausanne between Greece and Turkey provides in part:

Article 42. The Turkish Government undertakes to take, as regards non-Moslem minorities, in so far as concerns their family law or personal status, measures permitting the settlement of these questions in accordance with the customs of those minorities....

Article 45.  The rights conferred by the provisions of the present Section on the non-Moslem minorities of Turkey will be similarly conferred by Greece on the Moslem minority in her territory.

In 2013, Greece's Supreme Court, applying Article 45, held that matters of inheritance involving Greece's Muslim minority in Thrace must be resolved by muftis under sharia law.  Chatitze Molla Sali had by will been left all her husband's property. The husband's family contested the will, and a local mufti ruled that under sharia law, Muslims may not make wills. Instead property passes according to sharia rules.

Group Files FOIA Suit Seeking Disclosure of New IRS Church Audit Procedures

Alliance Defending Freedom filed a Freedom of Information Act lawsuit on Thursday seeking IRS documents on changes in  procedures for church tax inquiries or examinations.  The complaint (full text) in Alliance Defending Freedom v. Internal Revenue Service, (D DC, filed 4/9/2015) also asks for all documents that were referred to in a July 2014 press release by Freedom From Religion Foundation. That press release (see prior posting) indicated that FFRF had settled a lawsuit against IRS over non-enforcement of non-profit limits against churches because IRS had now created new procedures for initiating church investigations. One News Now reports on ADF's lawsuit.

3rd Circuit Invalidates Portion of Religious Worker Visa Rules

The U.S. Third Circuit Court of Appeals in Shalom Pentecostal Church v. Acting Secretary U.S. Department of Homeland Security, (3d Cir., April 7, 2015), invalidated a provision in Department of Homeland Security regulations on qualification for an I-360 special immigrant religious worker visa.  The court summarized its decision as follows:

The Immigration and Nationality Act (INA) enables an immigrant to obtain a visa as a “special immigrant religious worker” if the immigrant meets certain statutory criteria, including that he has been “carrying on” religious work for at least the two years preceding the filing of the visa petition.  This case presents the question whether a requirement imposed in the relevant regulation [8 CFR 204.5(m)] that this religious work have been carried on “in lawful immigration status” crosses the line from permissible statutory interpretation by the responsible agency to ultra vires regulation contrary to the clear intent of Congress.....  [T]he District Court here concluded that the regulation is ultra vires because it contradicts the plain language of the INA..... For the reasons set forth below, we agree. We therefore will affirm the District Court’s order as to the invalidity of the regulation but will reverse and remand for further fact-finding on the remaining visa criteria.

Courthouse News Service reports on the decision.

Southern Baptist Convention Urges Prayer Sessions On Morning of Same-Sex Marriage Arguments

The U.S. Supreme Court hears oral arguments in the same-sex marriage cases on April 28.  The Ethics & Religious Liberty Commission of the Southern Baptist Convention in a web posting is urging organizations and churches to set aside time that morning "to appeal to God to preserve marriage in our land."  It sets out a sample prayer guide to use.  It adds:

The command to pray for leaders is an appeal to pray for leaders, who in Paul’s time were avowed enemies of Christ and his church. Still, despite their hostility to the burgeoning Christian movement, Paul says that government is a gift from God meant for our good, and that Christians should pray for government officials’ betterment and their wisdom; that they’d execute justice accurately and indiscriminately. So we must....

The outcome of this decision will shape the landscape of the church’s ministry in the United States for generations to come; and it will have significant consequences on the future of religious liberty.

[Thanks to Center for Inquiry for the lead.] 

White House Supports National Ban on LGBTQ Conversion Therapy

The White House has announced that the Administration supports a national ban on sexual orientation conversion therapy for minors.  In an Official White House Response to a petition on We the People website, senior advisor Valerie Jarrett wrote in part:

When assessing the validity of conversion therapy, or other practices that seek to change an individual’s gender identity or sexual orientation, it is as imperative to seek guidance from certified medical experts. The overwhelming scientific evidence demonstrates that conversion therapy, especially when it is practiced on young people, is neither medically nor ethically appropriate and can cause substantial harm.

As part of our dedication to protecting America’s youth, this Administration supports efforts to ban the use of conversion therapy for minors.

New York Times reporting on Jarrett's response also reported that an “all-gender restroom” has been created in the Eisenhower Executive Office Building to provide an additional option for transgender individuals working on the White House staff who are not comfortable using either the men’s or women’s restrooms.

New Employment Discrimination Suits-- Ballpark Ushers and Firefighters

NBC Washington reported yesterday that three ballpark ushers for the Washington Nationals who lost their jobs have sued alleging religious discrimination against Seventh Day Adventists. Plaintiffs claim in the federal court lawsuit that the team recently changed its work policy and schedule for ushers in a way that precludes them from taking off for religious reasons from Friday evening and Saturday afternoon games. There has also been an increase in home games and concert events at the park. During the 2013 season, the team accommodated plaintiffs' Sabbath observance, but at the end of the season fired them because of their need to miss work on their Sabbath.

Connecticut Law Tribune reports on a recent suit in federal district court in Connecticut by a Jehovah's Witness firefighter who contends that there has been a pattern of harassment against him ever since he refused several years ago for religious reasons to march in a Memorial Day Parade. He also refuses to take part in flag-raising ceremonies at the Hamden fire house.

Ministry Can Proceed On RLUIPA Equal Terms Claim Over Transitional Housing

In Holy Ghost Revival Ministries v. City of Marysville, (WD WA, April 7, 2015), pastors who operate a group "Mack houses"-- low-cost transitional housing facilities for released convicts, many of whom are registered sex offenders-- brought suit in federal district court.  They claim that the city has a policy of discriminating against them because of their religion and that city officials promote citizen complaints about Mack houses.  The court concluded that there was not religious discrimination because the city's objections rest on the fact that the housing caters to registered sexual offenders.  However the court did permit plaintiffs to proceed on one of their RLUIPA claims:

Because the complaint alleges that the Mack Houses, which are religious institutions, were singled out by the City for enforcement of the zoning code, the court concludes that Plaintiffs have adequately alleged treatment on a less than equal basis with secular comparators, such as other group housing institutions.