North Carolina Legislature Overrides Veto Of Magistrates Recusal Bill

The North Carolina General Assembly yesterday overrode Governor Pat McCrory's veto of Senate Bill 2, Magistrate's Recusal For Civil Ceremonies.  The Senate vote to override, cast June 1, was 32-16. The House vote  yesterday was 69-41. (Vote history).  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. (See prior posting.) Raleigh News & Observer reports on the General Assembly's action.

Settling Factional Dispute Would Involve Civil Court In Religious Matters

In Samuel v. Lakew, (DC Ct. App., June 11, 2015), the District of Columbia Court of Appeals affirmed the Superior Court's dismissal of a lawsuit between two factions of the Kedus Gabriel Parish (located in D.C.) of the Ethiopian Orthodox Tewahedo Church in the Diaspora.  The parent church's Holy Synod had ruled that the president of the local church and the head of the Parish Administrative Council should surrender all keys and property of the Parish to the Archbishop of the Washington Metropolitan area.  They refused to do so, and the Archbishop sued seeking an injunction requiring them to comply with the Holy Synod's ruling.  The DC court held that the true dispute was over whether a clause in Kedus Gabriel's bylaws giving the  Holy Synod responsibility for the congregation's "spiritual and religious matters" gives the Holy Synod authority to remove Kedus Gabriel’s elected officers here.  Deciding whether the Holy Synod's decision here involved spiritual or religious matters would involve the court in an impermissible inquiry into religious doctrine and practice in violation of the First Amendment. The court concluded:

Informed by both parties’ summary judgment papers that the dispute here at bottom is about which clergy have the right to control Kedus Gabriel, Judge Kravitz properly denied relief, on the ground that “the First Amendment does not permit a civil court to determine the religious leader of a religious institution[.]”

International Travel Limits In Custody Order Did Not Violate Rastafarian Parent's Rights

In In re the Paternity of Y.K.S., (WI Ct. App., June 11, 2015), a Wisconsin appeals court upheld a provision in a joint custody order barring Jesse Schwork from traveling internationally with his son to any country that is not a signatory to the Hague Abduction Convention.  Schwork, a practicing Rastafarian, argued that this would prevent him from taking his son to religiously significant sites.  The court rejected his argument, saying in part:

Schworck’s argument that the circuit court should have granted him a hearing and that it was required to apply strict scrutiny in crafting the travel restriction is premised on his assertion that the travel restriction infringes on his right to provide religious instruction to Y.S. We see no such infringement because the travel restriction does not prohibit Schworck from raising Y.S. in the Rastafarian faith....

Assuming, without deciding, that travel to Kenya and Ethiopia would be beneficial to raising Y.S. in the Rastafarian faith, we reject the proposition that the circuit court was required to hold a hearing to determine whether the travel restriction infringed on Schworck’s First Amendment right to the free exercise of his religion. Both the United States Supreme Court and our supreme court ... have recognized that the First Amendment does not protect an individual’s right to act in conformity with his or her religion in all circumstances.

6th Circuit: County's Use of Religiously Sponsored School For Alternative Program Did Not Violate Establishment Clause

In Smith v. Jefferson County Board of School Commissioners, (6th Cir., June 11, 2015), the U.S. 6th Circuit Court of Appeals, reversing the trial court, held that a Tennessee school board did not violate the Establishment Clause when, in the context of a budgetary crisis, it contracted with Kingswood, a private Christian school, to provide a state-mandated alternative program.  District students who had been suspended or expelled from their regular middle- or high-school were enrolled in Kingswood's "day" (as opposed to its more religious "residential") program. In a suit brought by two teachers who lost their jobs when the prior the board-run alternative school closed, the court said in part:

Here, a reasonable observer would not interpret the School Board’s relationship with Kingswood as a governmental endorsement of religion. Parents and students, for example, encountered only de minimis religious references in Kingswood’s day program. The evidence indicates that students in the day program were not exposed to any religious instruction, prayer, or any mentions of religion at all. Their school building was devoid of any religious imagery. Their assemblies in the chapel were as close as the day students came to religious exposure, and yet those assemblies were completely secular activities.

Perhaps the most overt religious references were the Biblical quotes on the report cards, family-feedback forms and—for those who sought them out—the annual report and school improvement plan.   But a reasonable observer would view all of these in the specific context of the arrangement that Kingswood had with Jefferson County. A budgetary crisis forced the Board to close its alternative school and, needing to accommodate the alternative-school students on short notice, the Board selected a high-performing, state-certified alternative school...

An ACLJ press release discusses the decision.

UPDATE: In the case, Judge Batchelder filed an opinion concurring in part and concurring in the result, but saying: "I cannot agree with the lead opinion’s dismissing as irrelevant last year’s Supreme Court opinion in Town of Greece." She said that while lower courts are required to follow Supreme Court decisions invoking the "endorsement" test until the Court explicitly overrules them, the Supreme Court appears to have rejected that test in favor of the historical "coercion" test.

Pope Approves New Tribunal For Charges Against Bishops In Sex Abuse Cases

Vatican Radio yesterday reported that Pope Francis has approved a recommendation by the Pontifical Commission for the Protection of Minors for creation a new Vatican tribunal to hear cases of bishops who fail to protect children from sexually abusive priests. The tribunal will be set up as a judicial section within the Congregation for the Doctrine of the Faith.

More Messy Procedural Decisions In Arkansas Same-Sex Marriage Litigation

The procedural messiness that has surrounded much of the litigation over same-sex marriage manifested itself again in two recent judicial decisions in Arkansas.  In Henson v. Walther, (AR Cir. Ct., June 9, 2015), an Arkansas trial court judge held that marriages of same-sex couples performed in the state between May 9 and May 16 are valid.  Here is the background:

On May 9, a state trial court held that the state's constitutional ban, and two statutory provisions making same-sex marriages void violate the 14th Amendment's equal protection and due process clauses. However on May 14, the Arkansas Supreme Court pointed out that the trial court had not invalidated a third provision in Arkansas law prohibiting the issuance of marriage licenses to same-sex couples, and had not included language actually enjoining enforcement of the bans on same-sex marriage that it declared unconstitutional.  The trial court responded on May 15 by issuing an order nunc pro tunc granting an injunction and including the omitted third statutory provision. The trial court made it all retroactive to May 9, indicating that this had been the original intent in issuing the May 9 decision. (See prior posting.) On May 16, the Arkansas Supreme Court issued an order staying the trial court's order pending appeal.

The Director of the Arkansas Department of Finance and Administration has refused to recognize the validity of same-sex marriages performed between May 9 and May 16, arguing that the trial court lacked authority to make its May 15 ruling retroactive. He directed same-sex couples married during that period to file separate rather than joint tax returns, and refused to permit same-sex spouses to enroll in the state employee health insurance plan. In Henson the trial court judge disagreed, asserting that the state Finance Director was acting with "shameless disrespect for fundamental fairness and equality." AP reports on the decision.

Meanwhile an appeal of the underlying same-sex marriage challenge has been pending in the Arkansas Supreme Court for over a year-- bogged down in part by an unusual dispute over who are the proper Supreme Court justices to decide the case.  In September 2014, Justice Cliff Hoofman recused himself and the governor appointed Robert W. McCorkindale to serve as special justice in place of Hoofman. The case was briefed and argued before the end of 2014, but the state Supreme Court ended its term without handing down a decision. When the new term began, two new justices had been elected, one of whom was Justice Rhonda Wood who replaced Justice Hoofman.  She insisted she had a right to participate in deciding the appeal.  In Smith v. Wright, (AR Sup. Ct., May 7, 2015), with Jutice Wood and two other justices recusing themselves and replaced by 3 special justices, the Court held that newly-elected Justice Wood, not the holdover special justice, should participate in deciding the appeal.

Cert Filed and Stay Issued In Priests For Life Challenge To Contraceptive Coverage Accommodation

On June 9, a petition for certiorari (full text) was filed with the Supreme Court in Priests For Life v. U.S. Department of Health and Human Services.  In the case, a 3-judge panel of the D.C. Circuit upheld the Obama administration's compromise for religious non-profits that object to furnishing contraceptive coverage under the Affordable Care Act.  The D.C. Circuit denied an en banc rehearing, but with 3 judges writing a dissent from the denial and 3 others responding. (See prior posting.)  Then on June 10, the D.C. Circuit issued an Order (full text) staying its decision pending final disposition of the case by the Supreme Court. In a June 10 press release, Priests For Life announced the stay and added: "no matter what happens, we will not obey the mandate, nor will we pay fines to the government."

First U.S. - Vatican Intergovernmental Agreement Signed-- To Prevent Tax Evasion

Yesterday the United States signed its first formal inter-governmental agreement with the Holy See-- an agreement to prevent tax evasion by U.S. citizens who conduct financial activities in the Vatican City State. Zenit reports that the agreement, also signed by the Holy See acting in the name and on behalf of the Vatican City State, implements requirements of the U.S. Foreign Account Tax Compliance Act (FATCA) [background].

Local Board Loses Suit Against NY Education Department Over Placement of Jewish Special Needs Students

As reported by yesterday's Lower Hudson Journal News, the East Ramapo, New York school board's battle with  the state Education Department continues as the local school board loses a lawsuit challenging state interference in its placement of special education students.  Last year a state-appointed monitor filed report critical of the East Ramapo board whose Orthodox Jewish majority has been charged with aiding yeshivas at the expense of public schools. (See prior posting). The latest round involves intervention by the state challenging the East Ramapo board's practice of paying for special needs students from ultra-Orthodox families to go to private Yiddish-speaking schools when placements were available in public schools. (Background.) The district had argued that the cost of placing students in private schools that accommodate their cultural and language preferences is no more than placement in public schools, and fighting parental requests would have cost the district tens of thousands of dollars.  In Matter of East Ramapo School District v. King, (App. Div., June 4, 2015), a New York appellate court held that the federal Individuals With Disabilities Education Act does not grant the local school board a right of action to challenge the state's enforcement of federal law assuring students with disabilities a free appropriate public education.

Suit Challenging Prayer During School Free Time Dismissed By Parties

As reported today by the Colorado Springs Gazette, a Colorado federal district court on June 3, upon motion by plaintiffs (full text), dismissed a lawsuit (see prior posting) against Colorado Spring's Academy School District #20.  At issue was students' rights to gather together for prayer and religious discussion during free periods. The parties disagree however over how to characterize the events leading up to the dismissal.  Alliance Defending Freedom in a press release says the school backed off its policy of barring prayer and religious discussion during lunch periods, allowing it only before and after school.  The school says that the issue was never lunchtime, but instead whether students could gather during so-called Seminar period, an open period during the day when students could engage in other activities. For the last three years, student Chase Windebank who recently graduated has been leading an informal religious gathering during Seminar time and attendance had increased to over 90 students. The school district has now cancelled the Seminar period entirely for the upcoming school year, essentially eliminating the issue of whether religious activities are permitted during that time.

New Manual Suggests Strategies For Churches To Fend Off LGBT Lawsuits

Baptist Press reported yesterday:

The Ethics & Religious Liberty Commission (ERLC) and Alliance Defending Freedom (ADF) have published "Protecting Your Ministry," a legal manual for Southern Baptist churches, schools and ministries. The 44-page booklet is designed to equip SBC and other evangelical churches and institutions with legal protection against sexual orientation and gender identity lawsuits.

The manual includes checklists to guide Christian institutions on maximizing their religious liberty protections under the law and maintaining their freedom to proclaim the Gospel of Jesus. It also provides sample documents -- such as a membership agreement, facility use policy and article for a statement of faith -- to assist churches and other ministries.

The manual is available as an e-book free of charge from the ERLC website.

Plaintiffs May Proceed On Some Claims Charging Anti-Hasidic Motivation In Obstructing Construction

In Bloomingburg Jewish Educational Center v. Village of Bloomingburg, New York, (SD NY, June 9, 2015), a New York federal district court allowed plaintiffs to move ahead with some of their claims that local governments and public officials of the Village of Bloomingburg and the Town of Mamakating took various actions to prevent Hasidic Jews from moving into the area.  The court held that two of the plaintiffs

have stated plausible claims for relief under 42 U.S.C. § 1983 and 42 U.S.C. § 1985 against [various] defendants ... based on these defendants’ alleged roles in stymying the conversion of a property in Bloomingburg into a mikvah, a bath used by Hasidic Jews for ritual immersion and purification.  Plaintiff Sullivan Farms II, Inc. has stated plausible claims for relief under § 1983, § 1985, and the FHA ...  against [certain] defendants based on these defendants’ alleged roles in obstructing the completion of a housing development project known as Chestnut Ridge.

A number of other of plaintiffs' claims were dismissed.  AP reports on the decision.

Challenge To City's Removal of Cross Dismissed Because of Improper Plaintiffs

In Citizens of Grand Haven v. City of Grand Haven, (MI Cir. Ct., June 9, 2015), a Michigan trial court dismissed a suit that was seeking to require city council to reverse its earlier decision to limit access to Dewey Hill and convert the 48-foot cross on it into a Coast Guard anchor. (See prior posting.) Without getting to the merits of plaintiffs' free speech and religious discrimination claims, the court found that none of the plaintiffs, as named, were proper.  It held that plaintiff "Citizens of Grand Haven" did not qualify as an unincorporated voluntary association since it had no organizational form or decision-making process.  It was merely the group of people who had signed a petition.  The court went on to hold that the individual "John Doe" plaintiffs were not entitled to proceed anonymously.  The court applied a 5-factor test that had previously been developed by the courts for determining when proceeding under a pseudonym is appropriate. MLive reports on the decision.

UPDATE: On June 12, the lawsuit was refiled with named plaintiffs. (MLive 6/15).

FFRF Objects To Town Sign Reading "Jesus Welcomes You"

KETK News reports today that Freedom From Religion Foundation has written the Hawkins, Texas City Council objecting to a large sign apparently put up by the city on city land reading "Jesus Welcomes You To Hawkins." FFRF says the sign violates the Establishment Clause, and that even if the city leases out  the land on which the sign sits, this will not cure the violation. Hawkins, located in east Texas, has a population of 1,278.

Muslim Leaders In India Object To Required Yoga Sun Salutation In Schools

The Wall Street Journal reports today that Muslim leaders in India are complaining that schools in the states of Rajasthan and Madhya Pradesh are requiring students to learn yoga, including "surya namaskar"-- the sun salutation. Students are also required to chant "Om" or other Sanskrit verses that the All India Muslim Personal Law Board says are connected to the Hindu religion. Islamic law prohibits Muslims from bending before anyone other than Allah or God. The controversy comes as India prepares to celebrate the world's first International Day of Yoga next week. The All India Imam Organization says that yoga connected to  health rather than religion is fine so long as the sun salutation is not required.

Supreme Court GVR's Title VII Nursing Home Case After Abercrombie

Yesterday the U.S. Supreme Court remanded for reconsideration an employment discrimination case whose result may be impacted by the court's recent decision in EEOC v. Abercrombie & Fitch Stores.  In Norbach v. Woodland Village Nursing Center, Inc., (Sup. Ct. June 8, 2015), (order list). the Supreme Court granted certiorari, summarily vacated the 5th Circuit's judgment and remanded.  In the case, the 5th Circuit had dismissed a Title VII religious discrimination suit brought by a nursing home activities aide who was fired by the nursing home after she refused to pray the Rosary with a patient.  The court held that no evidence had been presented to the jury showing that the employer knew or reasonably should have known that her refusal was based on the aide's Jehovah's Witness religious beliefs. (See prior posting.)

Supreme Court Says Congress Overstepped Its Power In Enacting Jerusalem Passport Designation Law

Today the U.S. Supreme Court in Zivtofsky v. Kerry, (Sup. Ct., June 8, 2015), held 6-3 that Congress infringed on the President's power to recognize foreign countries when it enacted a law giving U.S. citizens born in Jerusalem the right to have "Israel" rather than Jerusalem listed in their passports as their place of birth. The majority, in an opinion by Justice Kennedy, held that the statute infringes the President's exclusive power to recognize foreign governments, saying in part:

Although the statement required by §214(d) would not itself constitute a formal act of recognition, it is a mandate that the Executive contradict his prior recognition determination in an official document issued by the Secretary of State.... As a result, it is unconstitutional. This is all the more clear in light of the longstanding treatment of a passport’s place-of-birth section as an official executive statement implicating recognition.

Justice Breyer filed a concurring opinion in which he said that he also believed that this posed a political question inappropriate for judicial resolution. Justice Thomas concurred in part and dissented in part, arguing that the statute "can be constitutionally applied to consular reports of birth abroad, but not passports."

Chief Justice Roberts, joined by Justice Alito, dissented arguing that the statute does not implicate the President's power to recognize foreign governments.  Chief Justice Roberts and Justice Alito also joined a dissent filed by Justice Scalia which argues that: "Under the Constitution ... Congress may require Zivotofsky’s passport and birth report to record his birthplace as Israel, even if that requirement clashes with the President’s preference for neutrality about the status of Jerusalem."

JTA points out that the three Jewish justices joined Kennedy's majority opinion. Times of Israel carries the reaction of various Israeli officials to the decision.

Obama Appoints Rabbi To Vacancy On Commission For Preservation of America's Heritage Abroad

Last Friday, President Obama announced his intention to appoint Rabbi Abba Cohen to the 21-member U.S. Commission for the Preservation of America’s Heritage Abroad.  One of the more obscure federal agencies, the Commission, which began operations in 1990, is tasked by the legislation creating it to identify and encourage the preservation of "those cemeteries, monuments,  and historic buildings located abroad which are associated with the  foreign heritage of United States citizens from eastern and central Europe, particularly those cemeteries, monuments, and buildings  which are in danger of deterioration or destruction..."  Rabbi Cohen is the Washington Director and Counsel for Agudath Israel of America,

British Employment Tribunal Vindicates Christian Woman Fired For Comments About Homosexuality

In Mbuyi v. Newpark Childcare (Shepherds Bush) Ltd., (Empl. Trib., June 4, 2015), a British Employment Tribunal in Watford held that Sarah Mbuyi, a 31-year old nursery assistant who was a Belgian national and and evangelical Christian, was the victim of religious discrimination when she was fired because of a conversation she had with a lesbian co-worker who was in a civil partnership. In the course of the conversation, Mbuyi told her co-worker that she believes homosexuality is a sin.  The conversation upset the co-worker sufficiently that she asked to be transferred to a different room where she would not be working with Mbuyi. The Tribunal concluded that under the circumstances the firing of Mbuyi was a disproportionate response.  The Tribunal said in part:

The respondent was not anti-Christian.... The issues in this case arose out of the claimant's belief that homosexuality is a sin.... It is a belief worthy of respect in a democratic society, is not incompatible with human dignity and is not in conflict with the fundamental rights of others.  Whilst some may dispute those propositions, we are considering here the belief itself.  When, whether and how such belief maybe manifested, however, is one of the issues in this case, given the inherent interplay with the right not to be discriminated against because of sexual orientation.

The decision has been widely reported in the British media. (The Guardian, Mirror, Christian Concern, Christianity Today, National Secular Society).

Recent Articles of Interest

From SSRN:

• Danielle Weatherby, The Arkansas 'Mini-RFRA' is Bad Policy, (May 21, 2015).
• Tipu Salman Makhdoom, Politics of Religion: Ahmadis of Pakistan, (May 23, 2015).
• Jennifer Taub, Is Hobby Lobby a Tool for Limiting Corporate Constitutional Rights?, (Constitutional Commentary, Forthcoming).
• Masua Sagiv, Cultural Bias in Judicial Decision Making, (35(2) Boston College Journal of Law & Social Justice 229 (2015)).
• Eric Alan Isaacson, Free Exercise for Whom? -- Could the Religious-Liberty Principle that Catholics Established in Perez v. Sharp Also Protect Same-Sex Couples' Right to Marry?, (University of Detroit Mercy Law Review, Vol. 92, No. 1, 2015).
• Surabhi Chopra & Prita Jha, Front Matter for: On Their Watch: Mass Violence and State Apathy in India, (S. Chopra & P. Jha, eds, Three Essays Collective, 2014).
• Sherry F. Colb, Decoding 'Never Again', (Rutgers Journal of Law and Religion, Vol. 16, Spring 2015).
• Susannah William Pollvogt, Cleburne Not Romer: Objective versus Subjective Theories of Animus, (June 5, 2015).
• Joseph William Singer, We Don't Serve Your Kind Here: Public Accommodations and the Mark of Sodom, (Boston University Law Review, Vol. 95, p. 929, 2015).

From SSRN (Religious Law):

• Daniel Pascoe, Is Diya a Form of Clemency?, (Boston University International Law Journal, 2016).
• Levi Cooper, Jewish Law, Hasidic Lore, and Hollywood Legend: The Cantor, the Mystic, and the Jurist, (Critical Analysis of Law 2, no. 2 (Fall 2015)).
• Hershey H. Friedman, ‘Let Justice Pierce the Mountain’: Morality, Ethics, and Law in the Talmud, (June 2, 2015).

From SmartCILP and elsewhere:

• Richard Chused, Dream Vignettes, 59 New York Law School Law Review 111-142 (2014/15).
• David A. Grenardo, Improving the Law School Classroom and Experience Through Prayer: An Empirical Study, 13 Ave Maria Law Review 71-120 (2015).
• Lee B. Burgunder, Can the PTO Find Its Way with Jesus?, 19 Marquette Intellectual Property Law Review 63-97 (2015).
• Rosalie Berger Levinson, Gender Equality vs. Religious Autonomy: Suing Religious Employers for Sexual Harassment After Hosanna-Tabor, 11 Stanford Journal of Civil Rights and Civil Liberties 89-119 (2015).
• Symposium. Religious Accommodation in the Age of Civil Rights. Introduction by Nomi Maya Stolzenberg and Douglas NeJaime; articles by Mark Tushnet, Ira C. Lupu, Thomas C. Berg, Frederick Mark Gedicks, Louise Melling and Elizabeth Sepper. 38 Harvard Journal of Law & Gender 1-233 (2015).
• Marta Kolankiewicz, Anti-Muslim Violence and the Possibility of Justice, (2015), (Dissertation from academia.edu)