Turkey's Constitutional Court Invalidates Ban On Religious Marriage Without Civil Certificate

Anadolu Agency and Hurriyet Daily News report on the May 27 decision by Turkey's Constitutional Court striking down Sec. 230 paragraphs 5 and 6 of the Turkish Criminal Code that prohibit arranging or conducting a religious marriage ceremony without obtaining a civil marriage as well. Four of the 16 judges dissented.  Stressing the constitutional protection for freedom of religion and conscience, the court majority said that since it is legal for couples to live together without being married at all, equal treatment requires allowing couples to live together with only a religious ceremony.  Reacting, officials expressed concern that the decision will encourage the illegal marrying off of children and the erosion of the position of women. The case arose when a lower court in Erzurum province referred a case to the Constitutional Court instead of convicting an imam and the couple he married.

Kansas Catholic School Sued Over Child Neglect Report

Saturday's Kansas City Star reported on a lawsuit filed in Johnson County, Kansas state court last month against the Catholic Archdiocese of Kansas City, Sacred Heart Catholic Church and its school principal.  Plaintiff Melissa Schroeder claims that she told the school her 10-year old daughter was suffering significant health problems from ongoing bullying. Instead of resolving the problem, the suit alleges that school officials filed a false report with the state child welfare agency claiming abuse and neglect, reporting that the child's mother falsified the child's medical documents and had requested an exorcism for her daughter.

Recent Articles of Interest

From SSRN:

• Gabor Halmai, Religion and Constitutionalism, (MTA Working Paper No. 2015/05 (May 2015)).
• Elizabeth Pollman, Corporate Law and Theory in Hobby Lobby, (Forthcoming in The Rise of Corporate Religous Liberty (Zoë Robinson, Chad Flanders & Micah Schwartzman, eds., Oxford University Press 2015)).
• Michael John DeBoer, Legislating Morality Progressively -- The Contraceptive Coverage Mandate, Religious Freedom, and Public Health Policy and Ethics, (Journal of Law and Health, Vol. 28, p. 62, 2015).
• Doug Coulson, British Imperialism, the Indian Independence Movement, and the Racial Eligibility Provisions of the Naturalization Act: United States v. Thind Revisited, (Georgetown Journal of Law & Modern Critical Race Perspectives 7 (2015): 1-42).
• Timothy Zick, First Amendment Cosmopolitanism, Skepticism, and Democracy, (Ohio State Law Journal, Vol. 76, No. 3, 2015).
• Margaret M. Blair & Elizabeth Pollman, The Derivative Nature of Corporate Constitutional Rights, (56 William & Mary Law Review 1563 (2015).
• Noel Cox, Justice, Fairness and the Common Law: The Tort of Misfeasance in Public Office, (May 26, 2015).
• Michael J. Perry, On the Constitutionality and Political Morality of Granting Conscience-Protecting Exemptions Only to Religious Believers, (Emory Public Law Research Paper No. 15-356 (May 2015)).
• John D. Inazu, Introduction: Confident Pluralism: Surviving and Thriving Through Deep Difference, (in J. Inazu, Confident Pluralism: Surviving and Thriving Through Deep Difference, University of Chicago Press, 2016, Forthcoming).
• Ellen D. Katz, Dignity and Discriminatory Intent: What the Marriage Equality Cases Tell Us About Voter ID, (University of Chicago Legal Forum, Forthcoming).

Muslim Interfaith Advocate Charges United Airlines With Discrimination

CNN reports that Tahera Ahmad, the 31-year old Muslim chaplain and director of interfaith engagement at Northwestern University is charging that United Airlines discriminated against her on a flight Friday from Chicago to Washington. Wearing a hijab (headscarf), she was on her way to attend a conference promoting dialogue between Israeli and Palestinian youth. Ahmed asked the flight attendant for an unopened can of Diet Coke, but was told: "We are unauthorized to give unopened cans to people because they may use it as a weapon on the plane." However the flight attendant gave the passenger next to Ahmad an unopened can of beer. As reported by CNN:

When Ahmad told the flight attendant she was being discriminated against, the attendant abruptly opened the beer can.  "It's so you don't use it as a weapon," Ahmad said she was told. Shocked, Ahmad asked other passengers if they had seen what happened. A man sitting across the aisle turned to her and yelled, "You Muslim, you need to shut the f--- up," she said. "What?" The man leaned over, looked her in the eyes and said: "Yes, you know you would use it as a weapon. So shut the f--- up"....

The flight attendant as well as the pilot later apologized.  Ahmed has Premier frequent flier status with United.  United said: "We are ... discussing the matter ... with Shuttle America, our regional partner that operated the flight. We look forward to speaking with Ms. Ahmad and hope to have the opportunity to welcome her back."

Recent Prisoner Free Exercise Cases

In Grief v. Ask-Carlson, 2015 U.S. Dist. LEXIS 66653 (ED NY, May 21, 2015), a New York federal district court dismissed with leave to amend an inmate's claim that he needs two stuffed animals to use in his practice of meditation that is part of his quest for spiritual enlightenment.

In Allah v. Wade, 2015 U.S. Dist. LEXIS 66690 (ED NC, May 20, 2015), a North Carolina federal district court dismissed an inmate's claim that his religious material was seized and declared contraband and non-religious.

In Shabazz v. Lokey, 2015 U.S. Dist. LEXIS 67051 (WD VA, May 22, 2015), a Virginia federal district court permitted an inmate to move ahead with his claim that his Nation of Islam materials were seized and wrongly declared to be gang-related "Five Percenter" documents.

In Aytch v. Cox, 2015 U.S. Dist. LEXIS 67180 (D NV, May 21, 2015), a Nevada federal district court granted a Muslim inmate a preliminary injunction ordering prison officials to provide him with a diet that complies with both the tenets of his Muslim faith and his low sodium medical needs.

In Quinn v. Management & Training Corp., 2015 U.S. Dist. LEXIS 68388 (SD MS, May 4, 2015), a Mississippi federal magistrate judge recommended that an inmate's claim that officials refused to recognize Voodoo as his religion and to allow him access to written religious materials be dismissed as abandoned by plaintiff at the hearing.

In Winston v. Gray, 2015 U.S. Dist. LEXIS 69388 (ED MO, May 29, 2015), a Missouri federal district court dismissed an inmate's complaint that he is being denied kosher meals because he failed to comply with the court's discovery order.

In Sessing v. Beard, 2015 U.S. Dist. LEXIS 69916 (ED CA, May 28, 2015), a California federal magistrate judge vacated his earlier findings and recommendation to dismiss and gave plaintiff 30 days to file a new complaint alleging that Asatru/Odinists were arbitrarily denied access to the Native American fire pit and to a suitable worship area.

In Wahid v. Cruzen, 2015 U.S. Dist. LEXIS 70036 (ND CA, May 28, 2015), a California federal district court allowed a Muslim inmate to proceed with his claim for nominal and punitive damages for authorities' interrupting Muslim congregational prayer on one day.

Lack of Judges Creates Huge Backlog In Israel's Highest Religious Court

Haaretz reported last week on the paralysis in Israel's Rabbinical Court because of the partisan fighting that has prevented the appointment of new judges by the committee charged with doing so.  The High Rabbinical Court is the highest appellate court in the religious court system that handles personal status issues-- especially divorces.  Four urgent appeals will finally be heard this week, but the court faces a backlog of 2900 other cases. Six permanent judges are need for the High Rabbinical Court and 25 are needed for regional religious courts. (See prior related posting.)

UPDATE:  Jerusalem Post reports that on Monday June 1,  Justice Minister Ayelet Shaked approved the temporary appointment, for a period of 6 months, of three new judges to the High Rabbinical Court.

District Court Modifies, But Will Not Dissolve, Injunction Barring Sectarian Invocations

In Hudson v. Pittsylvania County, Virginia, (WD VA, May 28, 2015), a Virginia federal district court modified, but refused to dissolve, its prior injunction (issued before the Supreme Court's Town of Greece decision) barring sectarian prayer at Pittsylvania County's Board of Supervisors meetings. The court said in part:

By opening its meetings with prayers led by Board members, the Supervisors of Pittsylvania County determined the content of the prayers offered at Board meetings and did so by consistently referencing the tenets of one denomination. In so doing, the Board involved itself “in religious matters to a far greater degree” than was the case in Town of Greece.... Moreover, by delivering the prayers to the assembled public and asking them to stand for the prayers, the Board members “directed the public to participate in the prayers.”... Finally, because the Board itself determined the content of the Pittsylvania County prayers, persons of other faiths had no opportunity to offer opening prayers in their faith traditions. As such, the Supreme Court’s decision in Town of Greece was decided on very different facts, and its decision does not alter the conclusion that the prayer practice of the Board of Supervisors of Pittsylvania County violated the Establishment Clause of the First Amendment of the United States Constitution.

While the injunction in this case will be modified to eliminate any suggestion that legislative prayer must be nonsectarian, the Board’s exclusive practice of determining the content of and leading the citizens of Pittsylvania County in prayer associated with one faith tradition at the opening of Board meetings will remain enjoined.

Last August the district court had issued an opinion expressing a similar conclusion (see prior posting), but refused to modify the injunction then because it concluded  it did not have jurisdiction to do so until the 4th Circuit to which the case had been appealed granted at least a limited remand. In December, the 4th Circuit dismissed the appeal finding that it was untimely. (See prior posting.)

8th Circuit Upholds Missouri's Blaine Amendments Against 1st and 14th Amendment Attack

In Trinity Lutheran Church of Columbia, Inc.v. Pauley, (8th Cir., May 29, 2015), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, rejected arguments that Missouri's Blaine Amendments violate the free exercise, establishment and equal protection clauses of the federal Constitution. At issue was the refusal by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would allow it to resurface a playground at its day care and preschool facility on church premises. In refusing the grant, the Department pointed to Missouri Constitution, Art. I Sec. 7, that prohibits public funds from being spent "in aid of any church, section or denomination of religion." The majority said in part:

Trinity Church seeks an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church. To prevail, Trinity Church must clear a formidable if not insurmountable hurdle, what appears to be controlling adverse precedent.

Judge Gruender dissented, saying that Trinity Church has sufficiently pleaded a Free Exercise violation.

British Education Officials Launch Investigation of Jewish Schools Over Women's Driving Ban

The Guardian reports today that Britain's Department of Education is launching an investigation into an order issued by the Jewish Hasidic Belz sect that operates two schools in North London. The sect's order bans women from driving their children to school-- saying (as reported in a second Guardian article) that women's driving violates "the traditional rules of modesty in our camp." The decision was made upon the advice of the Belzer spiritual leader in Israel. A letter to school parents said that beginning in August, children driven to school by their mothers would be turned away.  A special committee will consider requests for exceptions for medical and similar reasons. Education Secretary Nicky Morgan (who is also minister for women and equalities) said:

This is completely unacceptable in modern Britain. If schools do not actively promote the principle of respect for other people they are breaching the independent school standards. Where we are made aware of such breaches we will investigate and take any necessary action to address the situation.”

UPDATE: A June 4 report by JTA indicates that the schools have backed off.  The schools' CEO said that the letter had not been seen in advance by the schools' board and that "women have a choice about whether they want to drive or not, and our policy is to accept all children who are members of our community..."

North Carolina Governor Vetoes Bill Allowing Magistrates To Refuse To Perform Same-Sex Marriages

As reported by The Advocate, yesterday North Carolina Governor Pat McCrory, a Republican, announced he would veto Senate Bill 2 (full text), which was sent to him earlier in the day by the state legislature. The bill provides that individual magistrates have the right to recuse themselves from performing all lawful marriages based on any sincerely held religious beliefs and that individual register of deeds personnel similarly may opt out of issuing marriage licenses. The Governor in a statement said (full text):

I recognize that for many North Carolinians, including myself,  opinions on same-sex marriage come from sincerely held religious beliefs that marriage is between a man and a woman. However, we are a nation and a state of laws. Whether it is the president, governor, mayor, a law enforcement officer, or magistrate, no public official who voluntarily swears to support and defend the Constitution and to discharge all duties of their office should be exempt from upholding that oath; therefore, I will veto Senate Bill 2.

According to WITN News, a half hour after issuing the statement, he formally vetoed the bill.  In North Carolina, the Administrative Office of the Courts had previously issued a memo to judges and magistrates stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples, and magistrates have filed suit challenging the absence of a religious liberty exception. (See prior posting.) The Gaston Gazette has reactions from various state legislators to the governor's veto.

Provocative Draw Muhammad Contest and Rally Planned In Phoenix Today

A provocative rally is set for this evening in Phoenix, Arizona outside the Phoenix Islamic Center.  KPHO News and Mashable report on the event organized by former Marine Jon Ritzheimer and billed as "Round 2" after the attacks earlier this month on Pamela Geller's "Muhammad Art Exhibit and Contest" in Garland, Texas. (See prior posting.)  The two gunmen there were from Phoenix and one had studies at the Phoenix Islamic Center. Today's event, to which bikers are invited, will involve a Muhammad Cartoon Contest with the winner being announced at the rally.  The rally will be held at 6:15 pm to coincide with the mosque's Friday prayer services. The Facebook page promoting the rally says in part: "People are also encouraged to utilize there [sic.] second amendment right at this event just incase our first amendment comes under the much anticipated attack."

The KPHO report quotes Ritzheimer who says he knows that the Phoenix Islamic Center has condemned ISIS.  But he insists that is not enough.  He says: "People call them an extremist; to me it's just a Muslim following their book as it's written.... Unfortunately, we have to hold the cartoon contest, as silly as it sounds, to be able to show the true colors of Islam."

Group Challenges University Football Coach Leading Players In Lord's Prayer

The Toledo Blade reported Wednesday on a letter (full text) sent by Freedom From Religion Foundation to the president of the University of Toledo (a public university) complaining about a video posted on the University's YouTube channel showing football coach Matt Campbell leading his players in the Lord's Prayer.  The video of pre-game activity, apparently shot by a mobile video camera attached to one of the player's helmets, shows the coach calling together the team in the locker room so they can offer the prayer to fire the players up as they are about to run onto the field. The video is from a 2012 game against the school's traditional rival, Bowling Green State University. However the Blade article also features a photo of Coach Campbell leading the team in prayer after a 2015 game. A University spokesman said the school is reviewing FFRF's letter.

More Alabama Same-Sex Marriage Developments

Alabama has been "ground zero" for opposition to same-sex marriage.  Two more developments help it keep that title.  According to the Montgomery Advertiser, in Prattville, Alabama last week, a Unitarian minister pleaded guilty to disorderly conduct charges and was sentenced to six months unsupervised probation and a $250 fine. The charges were filed last February when Anne Susan DiPrizio offered to marry a lesbian couple who had just received a marriage license, planning to conduct the ceremony inside the Autauga County Probate Office.  However, the local Probate Judge had stopped all marriages in the office.  After DiPrizio refused to leave, sheriff's deputies were called and disorderly conduct charges were filed.

Meanwhile also last week, the Alabama state Senate passed and sent to the state House of Representatives SB 377 (full text) that would end the issuance of marriage licences in the state.  Instead a couple would enter a "marriage contract" containing specified information and would record that contract in the office of the county probate court.  If and when same-sex marriage becomes legal in Alabama, this procedure eliminates the issue of whether a probate court employee who objects to same-sex marriage must issue a license to a same-sex couple. The bill's sponsor defines the bill's purpose more broadly, saying: "When you invite the state into those matters of personal or religious import, it creates difficulties." (Yellowhammer News, 4/30/15).

French Court Fines Salafist For Disturbing Mosque

AP reported yesterday that a court in France has handed a victory to a small mosque in Lyon that filed a complaint with authorities about a Salafist member of the mosque who has been disruptive.  The mosque invoked a provision in France's 1905 law on secularism that provides legal recourse against a person who interferes with the ability to express freedom of conscience.  It filed a complaint against Faouzi Saidi who in 2014 criticized the imam, held parallel prayer services and preached his ultraconservative Salafi views to Muslim converts. The court fined Saidi 1500 Euros, with 500 Euros suspended.

Suit Challenges Middle School Field Trip To Christian Sports Complex

The American Humanist Association announced yesterday that it had filed a lawsuit against the Joplin, Missouri public school system challenging a middle-school field trip to a Christian sports complex.  The complaint (full text) in Doe v. Huff, (WD MO, filed 5/27/2015), alleges that the middle school's policy of scheduling student field trips to Victory Ministry and Sports Complex violates the Establishment Clause.  The suit seeks an injunction and punitive damages.

Church's Suit Against Chase and JPMorgan Dismissed In Part, With Leave To Replead

In Rector, Wardens, and Vestrymen of Christ Church Cathedral of Indianapolis v. JPMorgan Chase and Company, (SD IN, May 21, 2015), an Indiana federal district court dismissed with leave to replead constructive fraud claims against Chase Bank and its parent JPMorgan brought by Christ Church Cathedral that lost some $13.5 million from trusts that had been set up to benefit it under the will of Eli Lilly.  The church alleged that the trustee bought complex structured notes and proprietary hedge funds that lost money but resulted in increased fees for the trustee. The court held that the church had not stated its claims with sufficient particularity, lumping together various defendants and failing to indicate what decisions the church made in reliance on alleged misrepresentations. The court dismissed the state securities law claim without leave to replead it. It did not dismiss a breach of trust claim against Chase Bank. Indianapolis Star, reporting on the decision, quotes the church's attorney who says that amended pleadings will be filed.

Suit Claims High School Extensively Promotes Evangelical Christianity Through Activities With Church

A Jewish teacher in a southern Colorado school district filed suit yesterday in federal district court alleging that the Florence, Colorado High School extensively promotes evangelical Christian activities through arrangements with a church, The Cowboy Church at Crossroads. The complaint (full text) in Basevitz v. Fremont RE-2 Schol District, (D CO, filed 5/26/2015), alleges in part:

The Cowboy Church at Crossroads is lead by Pastor Randy Pfaff, and meets every Sunday in the cafeteria of the School. The Church is advertised by two large signs that are hung on school property and are clearly visible to motorists.... 

The cornerstone of Pastor Pfaff and the Church’s “mission work” at the School is daily morning prayer in front of the School, at the flagpole.  Either Pastor Pfaff or another member of the Church has been present for this ceremony every day for the last three years. With the School’s support, Pastor Pfaff has led these services, ministering to the School’s students and staff while holding a bible and using a public address system to preach his evangelical Christian messages.... Numerous faculty members, in including Principal Schipper, participate in services.....

... Pastor Pfaff and the Church, with the support of the School’s administration, routinely minister to staff and students through the distribution of flyers promoting their evangelical Christian views...

Through the Fellowship’s front group, Pastor Pfaff and the Church also hold weekly lunches at the School. The students refer to this event as “Jesus Pizza.” This meeting is promoted to the School’s students and staff through the presence of a large sign in the hallway that reads “God loves you and has a plan for your life. Jeremiah 29:11.” ....  During these “Jesus Pizza” sessions, which are led by Pastor Pfaff, he preaches to and prays with Florence students....

Denver Post reports on the lawsuit.

Court Defers To Ecclesiastical Decision In Church Control Lawsuit

Kim v. The True Church Members of the Holy Hill Community Church, (Cal. App., May 21, 2015), involves a dispute between two factions of a Los Angeles congregation that was part of a presbytery of the Korean American Presbytery Church.  The congregation owns valuable property on Los Angeles' Sunset Boulevard.  The dispute involved attempts by one faction to excommunicate members of the other and an attempt to withdraw the congregation from the parent church body.  The California state appeals court affirmed the trial court's decision deferring to the determination by the parent body of the congregation.

Legalization of Same-Sex Marriage Complicates Prior Estate Planning Devices

A New York Times article six years ago reported on the use of adult adoption as an estate planning tool for same-sex couples who were prohibited by law from marrying.  The technique allows a same-sex partner to share as a beneficiary in a family trust to which the person would not be entitled if not a family member. Last week the Doylestown-Buckingham-New Britain Patch reported on how this kind of arrangement has fared as same-sex marriage becomes legal in many states. Bill Novak and Norman MacArthur are a same-sex couple who have been together for more than 50 years and were registered as domestic partners in New York City. When they moved to Pennsylvania, their lawyer advised them to use the adoption strategy for estate planning purposes.  So in 2000, Novak adopted MacArthur.  But now that same-sex marriage is permitted in Pennsylvania, the two would like to marry.  However this required vacating the adoption decree.  In a precedent-setting decision on May 14, the Orphans Court of Bucks County  granted their Petition to Vacate, and the couple applied for and received a marriage license the same day.  They expect to actually marry soon.

Another Decision Invalidating Alabama's Same-Sex Marriage Ban

In Alabama last week, a federal district court took another step toward requiring all counties to issue licenses for same-sex marriages.  A federal district court had already issued an injunction against the attorney general and one state probate judge requiring them to issue marriage licenses to same sex-couples. (See prior posting.) Now in Strawser v. Strange (Doc. 122), (SD AL, May 21, 2015), the same federal district court permitted plaintiffs to turn the case into a class action against "all Alabama county probate judges who are enforcing or in the future may enforce Alabama’s laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages."  It also certified as a plaintiff class "all persons in  Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages."

Then in a second opinion the same day, Strawser v. Strange (Doc. 123), (SD AL, May 21, 2015), the court again held that Alabama's marriage laws that prohibit and refuse to recognize same-sex marriages violated the equal protection and due process clauses of the 14th Amendment. It granted plaintiffs' motion for a preliminary injunction, but stayed it until the U.S. Supreme Court issues its opinion in Obergefell v. Hodges, expected within the next several weeks.  Christian Science Monitor reports on the decision.