Kentucky County Clerk Files Third-Party Complaint Against Governor In Battle Over Same-Sex Marriage Licenses

As previously reported, in July the Kentucky ACLU filed a federal class-action lawsuit against Rowan County Clerk Kim Davis who is refusing to issue marriage licences to anyone because of her religious objections to issuing them to same-sex couples. On Tuesday, Davis responded by filing a third-party complaint in the suit against Kentucky Governor Steven Beshear as well as the state official responsible for marriage license forms.  Her third-party complaint (full text) in Miller v. Davis, (ED KY, filed 8/4/2015) alleges in part:

The Commonwealth of Kentucky, acting through Governor Beshear, has deprived Davis of her religious conscience rights guaranteed by the United States and Kentucky Constitutions and laws, by insisting that Davis issue marriage licenses to same-sex couples contrary to her conscience, based on her sincerely held religious beliefs. Because of Governor Beshear’s open declaration that Davis has no such rights, Governor Beshear has exposed Davis to the Plaintiffs’ underlying lawsuit, in which the Plaintiffs claim a constitutional right to a Kentucky marriage license issued specifically by Davis. Governor Beshear is not only liable to Davis for Plaintiffs’ claims, but is also obligated to effect Kentucky marriage licensing policies that uphold Davis’s rights of religious conscience.

Liberty Counsel issued a press release announcing the filing of the complaint. AP reports on the filing.

Suit Challenges Prof's Firing For Becoming Pregnant Out of Wedlock

A former Assistant Professor of Exercise Science at Northwest Christian University in Eugene, Oregon filed a discrimination suit this week after she was fired for becoming pregnant out of wedlock.  The complaint (full text) in Richardson v. Northwest Christian University, (OR Cir. Ct., filed 8/4/2015), contends that when plaintiff Coty Richardson became pregnant by her partner with whom she has had a 12 year relationship. the University gave her an ultimatum:

she had to either (1) proclaim the pregnancy a mistake and dissociate with the father of her child or (2) marry him immediately and provide proof of their union. Dr. Lindsay [Vice President for Academic Affairs] told Ms. Richardson that having a child out of wedlock while still continuing a relationship with the father was inconsistent with the University’s core values and mission and set a “bad example” for the students. When Ms. Richardson refused the University’s demands and requested privacy in her personal life, she was locked out of the University and her employment was terminated.

Among other things, the suit claims violations of Oregon's ban on employment discrimination on the basis of  pregnancy, gender and marital status. It also claims discrimination on the basis of religion, i.e. her belief that it is appropriate for her, as a Christian, to wait until she and her partner are financially, practically, and emotionally ready for marriage. Wall Street Journal reports on the lawsuit.

9 Federal Agencies Propose Rules On Grants To Faith-Based Organizations

Yesterday nine federal agencies issued Notices of Proposed Rulemaking (NPRMs) to implement many of the recommendations made in 2010 by President Obama's  Advisory Council for Faith-Based and Neighborhood Partnerships. (See prior posting.) In November 2010 President Obama signed Executive Order 13559 approving a number of the recommendations.  Yesterday's actions constitute the next step in assuring that agencies providing grants to faith-based organizations implement these recommendations.  As described by the White House in a blog post from the Office of Faith-based and Neighborhood Partnerships:

The proposed rules clarify the principle that organizations offering explicitly religious activities may not subsidize those activities with direct federal financial assistance and must separate such activities in time or location from programs supported with direct federal financial assistance.  For example, if a faith-based provider offers a Bible study as well as a federally supported job training program, the Bible study must be privately funded and separated in time or location from the job training program. 

The NPRMs also propose new protections for beneficiaries or prospective beneficiaries of social service programs that are supported by direct federal financial assistance.  In the proposed rules, the agencies set forth a notice to beneficiaries and prospective beneficiaries that informs them of these protections.  These notices would make it clear, for example, that beneficiaries may not be discriminated against on the basis of religion or religious belief or be required to participate in any religious activities and advises beneficiaries that they may request an alternative provider if they object to the religious character of their current provider.

At the same time, the NPRMs assure religious providers of their equal ability to compete for government funds and of continuing protections for their religious identity like the ability of providers to use religious terms in their organizational names and to include religious references in mission statements and in other organizational documents. ...

Links to the proposals from each agency can be found at the end of the White House blog post.  Both Americans United and the ADL issued statements welcoming yesterday's developments, but expressed concern that the proposed rules do not bar faith-based groups from hiring on the basis of religion in federally funded programs.

County Will Consider Moving Memorial Containing Ichthus

At its meeting today, the Boone County, Missouri Commission will hear the first reading of a proposal to recommend moving of a monument, now on the county courthouse grounds, to the Columbia City Cemetery to alleviate church-sate concerns. (News Release.) As reported by the Columbia Daily Tribune, the monument, erected with private funds in 1992, is a tribute to two Boone County men killed in Operation Desert Storm. At the bottom of the monument is an Ichthus (Christian fish) symbol.  In 2014, after a complaint about the monument from Americans United, the County Commission ordered the Ichthus symbol covered with a plaque reading "Dedicated in 1992."  Now the County Commission has obtained a lengthy opinion of counsel (full text) concluding that continued location and maintenance with public funds of the memorial on the courthouse grounds would likely be found by a court to violate the Establishment Clause and church-state separation requirements of the Missouri Constitution.  Today's resolution will propose moving the monument and removing the plaque covering the Ichthus symbol. It will also consider a policy on future monuments.

Iowa State School Board Will Consider Challenge To Religious Choral Music In High Schools

At its meeting tomorrow, the Iowa Board of Education will consider the recommendation of an administrative law judge rejecting a family's challenge to the religious nature of music performed by the high school choirs in the New Hampton Community School District.  According to yesterday's Des Moines Register, the parents particularly pointed to the choirs' closing with the hymn In This Very Room which they perform holding hands and encircling the audience. The choirs also conduct a "Church Tour," performing in various churches in the community.  The school board says that a large percentage of choral music that has been written is religious, so it would be difficult to limit choirs to secular pieces. It said the church tours allowed students to experience different acoustics and blending of sounds, and that students did not attend religious services while performing.  The state school board's decision can be appealed to the courts.

Milwaukee Archdiocese Settles Remaining Abuse Claims In Bankruptcy Reorganization

The Archdiocese of Milwaukee announced yesterday that it has reached a collective settlement with survivors of clergy sexual abuse that will permit it to complete its four-and-one-half year old Chapter 11 Bankruptcy Reorganization. Key details of the settlement are set out in a summary posted on the Archdiocese's website. Under the settlement, 330 survivors will share $21 million. In addition a $500,000 therapy fund will be set up. 92 additional claimants whose claims were not substantiated will receive $2000 each. The funds for the settlement will come from various sources, including parishes and insurers.  The Cemetery Perpetual Care Trust whose liability has been the subject of extensive litigation will lend the Archdiocese $3 million; reimburse the Archdiocese for $5 million of past cemetery care expenses; and contribute $8 million to settle all claims against its assets.

Attorneys' fees so far have totaled $18.5 million, with additional fees capped at $1.25 million.  Fox 6 News reports that the settlement will be submitted to the bankruptcy court in an Aug. 24 filing, with a hearing scheduled for Nov. 9.  The article also carries the negative reaction to the settlement by advocates for abuse victims, as well as Archbishop Jerome Listecki's favorable reaction to the settlement.

10th Circuit: Oklahoma's License Plate Design Survives Compelled Speech Challenge

In Cressman v. Thompson, (10th Cir., Aug. 4, 2015), the U.S. 10th Circuit Court of Appeals rejected a compelled speech challenge to Oklahoma's standard vehicle license plates that depict a Native American shooting an arrow towards the sky. Plaintiff claims that the depiction is based on a sculpture derived from a Native American legend, and that, in violation of his Christian beliefs, it teaches there are multiple gods and the arrow is an intermediary for prayer.

Judge Holmes' majority opinion held that even though the U.S. Supreme Court's recent Walker decision held that license plates are government speech, that does not settle the question of whether plaintiff has been compelled to appear to endorse the government's message. He went on:

at bottom, Mr. Cressman’s claim fails because he cannot demonstrate that the Native American image is, in fact, speech to which he objects. At least in the context of its mass reproduction on Oklahoma’s standard vehicle license plate, the Native American image is not an exercise of self-expression entitled to pure-speech protection. The image may constitute symbolic speech, but the only conceivable message a reasonable observer would glean from the license plate is one to which Mr. Cressman emphatically does not object—namely, a message that communicates Oklahoma’s Native American culture and heritage.

Judge McHugh concurring objected to the majority's focus on whether the depiction involved pure speech or symbolic expression. She said in part:

[O]nce it is determined the license plate is speech, the restrictions on the Oklahoma government’s right to compel a private individual to carry its message apply equally, irrespective of whether the individual is compelled to speak through words, actions, symbols, or gestures....

As the majority has explained in detail, Mr. Cressman does not disagree with the message Oklahoma intended to convey with its standard license plate.... And he has directed us to no evidence supporting his assertion that third parties would interpret the graphic as a message promoting pantheism, the message with which he disagrees.

AP reports on the decision.

Federal Disabilities Education Act Does Not Require Plan Tailored To Student's Religious Needs

In M.L. ex rel Leiman v. Starr, (D MD, Aug. 3, 2015), a Maryland federal district court held that the Individuals with Disabilities Education Improvement Act (IDEA) does not require a public school system to take account of a student's religious and cultural needs in designing an individualized education program (IEP) for him. Under 20 USC 1412, federal assistance is available to states that make free appropriate public education available to all children with disabilities.  However, IDEA

does not require a local educational agency to pay for the cost of education ... of a child with a disability at a private school ... if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school....

In this case, the court rejected the claim by an Orthodox rabbi and his wife that a public school system did not make a free appropriate public education available to their Down syndrome son when his IEP was not geared to his religious and cultural identity as an Orthodox Jew.  According to the court, a student's program is to be individualized considering the student's cognitive and developmental capabilities and needs.  It does not need to be "specifically tailored to the religious and cultural enclave in which the student lives."

Egypt Will Close Down Restaurants That Prohibit Women From Wearing Hijabs

According to Egyptian Streets yesterday, Egypt’s Minister of Tourism Khaled Abbas Rami says he will close down any restaurants or tourism facilities that refuse service to women wearing hijabs (Muslim headscarves). Apparently a number of restaurants, bars and high-end resorts have barred veiled women.  Women have increasingly taken to social media to complain about the discrimination.

Sportscaster Sues Fox Sports Claiming Religious Discrimination

Yesterday former NFL player and sportscaster Craig James filed suit in a Texas state court against Fox Sports and various of its affiliates claiming religious discrimination in violation of the Texas Commission on Human Rights Act and breach of contract.  The complaint (redacted full text) in James v. Fox Sports, Inc., (TX Dist. Ct., filed 8/3/2015), claims that James' firing in September 2013, just days after he was hired by Fox, was "due to a short Christianity-focused statement" opposing same-sex marriage on Biblical grounds that he made during a political debate when he ran unsuccessfully for United States Senate some 18 months earlier. Liberty Institute has more information on the case along with links to depositions, the demand letter and media coverage.  According to The Wrap yesterday, Fox Sports issued a statement saying in part:

... Craig James is a polarizing figure in the college sports community and the decision not to use him in our college football coverage was based on the perception that he abused a previous on-air position to further a personal agenda.  The decision had nothing to do with Mr. James’ religious beliefs and we did not discriminate against Mr. James in any way.

James, in 2009 while at ESPN, was involved in a controversy stemming from his comments about the Texas Tech coach Mike Leach's treatment of James' son. (Background.) James resigned from ESPN in Dec. 2011 to run for the U.S. Senate. [This paragraph has been corrected. An earlier more cryptic version gave an incorrect impression.]

Orthodox Jewish Tenants Sue Over Electronic Keys In Building Renovations

The New York Daily News reports on a class action religious discrimination lawsuit filed in federal district court in New York last month by Orthodox Jewish tenants in LeFrak City, a 20-building housing complex in Queens.  The case is Ibragimov v. Lefrak Organization, Inc., (ED NY, filed 7/23/2015).  The Fair Housing Act suit claims that an electronic key system that has been installed in the renovations of the buildings creates Sabbath observance problems. The change means that  Orthodox Jews who will not create or break an electrical circuit on the Sabbath have to wait outside until someone else is entering the building. The lawsuit seeks to require installation of one door in each building that opens with a conventional key and also the installation of a chip that allows an elevator in each building to operate as a Sabbath elevator-- stopping automatically at every floor without riders needing to press buttons.

Court Refuses To Reduce Sentence of Rabbi Convicted of Voyeurism

According to the Washington Post, a D.C Superior Court judge on Friday denied a motion to reduce the six-and-one-half year prison sentence of Barry Freundel, former rabbi of Washington, D.C.'s Kesher Israel Synagogue who plead guilty in May to 52 counts of voyeurism. Freundel's attorneys argued that he should have been sentenced only for one act of videotaping women preparing to use a mikveh, instead of 45 days for each of the 52 incidents. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Armin Steinbach, Burqas and Bans: The Wearing of Religious Symbols Under the European Convention of Human Rights, (Cambridge Journal of International and Comparative Law, Volume 4, Issue 1, 2015).
• Kenneth Einar Himma, Why Religious Freedom Does Not Warrant Protection by a Special Right, ( Kenneth Einar Himma, Miodrag Jovanović, and Bojan Spaic (eds.), Fundamental Rights: Justification and Interpretation (The Hague: Eleven International Publishing) 2015, Forthcoming).
• Sarah Barringer Gordon, The African Supplement: Religion, Race, and Corporate Law in Early National America, (William & Mary Quarterly, Vol. 72, No. 3, Pg. 385, 2015).
• Howard M. Wasserman, Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace, (Northwestern University Law Review Online, Vol. 110, p. 201, 2015).

From SmartCILP:

• J. Benjamin Hurlbut, Religion and Public Reason in the Politics of Biotechnology, 29 Notre Dame Journal of Law, Ethics & Public Policy 423-452 (2015).
• Symposium. The Scholarship and Teaching of Jack Sammons. Remarks by Timothy W. Floyd, Daisy Hurst Floyd, Harold S. Lewis, Jr. and Jack L. Sammons; articles by Gary J. Simson, Timothy W. Floyd, James Boyd White, Joseph Vining, Eugene Garver, Robert Audi, Richard Dawson, Linda H. Edwards, David T. Ritchie, Linda L. Berger, Mark L. Jones and Patrick Emery Longan. 66 Mercer Law Review 265-555 (2015).

IRS Commissioner Says No Non-Profit Revocations In His Term For Colleges That Oppose Gay Marriage

At a July 29 hearing conducted by the Senate Judiciary Committee's Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts (video and testimony at hearing), Sen. Mike Lee (R-UT) had a lengthy exchange with IRS Commissioner John Koskinen over whether the IRS would revoke the tax-exempt status of Christian colleges and universities that remain opposed to same-sex marriage.  According to the Christian Post, Koskinen pledged:

that he will commit to making sure that the IRS does not punish religious schools for not adopting policies to accommodate gay marriage — such as allowing married same-sex couples to live in married student housing — as long as he is in charge of the IRS..... However, Koskinen did leave the door wide open for tax-exempt statuses to be a problem for Christian schools in the future....

All we do is follow whatever the public policy is that is set by other organizations," Koskinen argued. "At this point other actions would have to take place before the IRS can consider issuing a regulation, which would give people notices to what we think the public policy was and then cases and exams would be conducted under that.

[Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Shaw v. Toole, 2015 U.S. Dist. LEXIS 97667 (SD GA, July 27, 2015), a Georgia federal magistrate judge recommended that a Muslim inmate's complaint that he was denied a vegan diet be dismissed without prejudice for failure to exhaust administrative remedies before filing suit. UPDATE: The magistrate's recommendation was adopted by the court at 2015 U.S. Dist. LEXIS 111856 (Aug. 24, 2015).

In Sokolsky v. California, 2015 U.S. Dist. LEXIS 97738 (ED CA, July 25, 2015), a California federal magistrate judge held that a Jewish civil detainee held as a sexually violent predator can proceed on his complaint against certain defendants regarding the lack of kosher food and religious discrimination if he files an amended complaint or notifies the court that he is willing to proceed on his cognizable claims. UPDATE: The court ordered the case to proceed on the cognizable claims at 2015 U.S. Dist. LEXIS 122292, Sept. 12, 2015.

In Pickering v. California Department of Corrections, 2015 U.S. Dist. LEXIS 99137 (ED CA, July 28, 2015), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that the Astru/Odinic religious group was not treated equally with other religious groups.

In Berry v. Hershberger, 2015 U.S. Dist. LEXIS 99327 (D MD, July 30, 2015), a Maryland federal district court dismissed a Muslim inmate's complaint that he was not permitted to participate in the Ramadan fast, and was denied access to religious articles, based on his status as a pretrial detainee.

In Washington v. Ohio Department of Rehabilitation & Corrections, 2015 Ohio Misc. LEXIS 79 (OH Ct. Cl., July 14, 2015), the Ohio Court of Claims held that it does not have jurisdiction over an inmate's complaint that he was denied halal/ kosher food.

In Williams v. Delaware, 2015 U.S. Dist. LEXIS 99927 (D DE, July 30, 2015), a Delaware federal district court dismissed plaintiff's complaint that while held for four days before posting bond-- a period during Ramadan-- he was not permitted to fast.

Russian Culture Ministry Takes Over Crimean Historic Religious Site

AP reports that Russia's President Vladimir Putin today placed an important archaeological site in the Crimea under control of the Russian Culture Ministry.  The site, the ancient city of Chersonesus, is near Sevastopol, the main port city in the Crimea which Russia annexed from Ukraine last year. Chersonesus is important as the place where the Kievan Rus ruler, Prince Vladimir, was baptized in 988 before bringing Christianity to the region.  Putin's move comes after the Governor of Sevastopol was widely criticized for his decision last month to appoint a Russian Orthodox priest as director of the Chersonesus museum.  The priest was seen as lacking the education and experience for the position, and Sevastopol's governor was mocked on Russian social media for his explanation that "religion has always dealt with science."

Report on Tax Implications of Same-Sex Marriage

On July 30, the Congressional Research Service issued a report titled The Federal Tax Treatment of Married Same-Sex Couples. The report details the various tax code provisions that will lead to tax differences between filing as two single taxpayers and filing as a married couple.  The report concluded that while for some same-sex couples, federal recognition of their marriage will lead to lower taxes, for other it will lead to taxes higher than if filing as two single individuals. Several studies have reached different estimates on the overall impact on tax revenues.

Sixth Cert. Petition On Contraceptive Coverage Accommodation For Religious Non-Profits Filed

Last week yet another petition for certiorari was filed with the U.S. Supreme Court in a case challenging the government's accommodation for religious non-profits who object to the Affordable Care Act's required contraceptive coverage.  This is the sixth certiorari petition raising the issue that has been filed. (Becket Fund's tabulation of cases.)  This petition (full text) was in Southern Nazarene University v. Burwell.  In the case, the 10th Circuit (in an opinion covering appeals in three cases) upheld the accommodation, finding that it does not substantially burden the non-profits' religious exercise. (See prior posting.) [Thanks to Marty Lederman via Religionlaw for the lead.]

Sympathetic Court Nevertheless Rejects Claim That Chimpanzees Are "Persons" Entitled To Habeas Relief

A New York state trial court judge yesterday in a 33-page opinion sympathetic to plaintiffs' claims nevertheless rejected attempts by animal rights activists to obtain a writ of habeas corpus on behalf of two chimpanzees used in scientific studies at State University of New York at Stony Brook.  In Nonhuman Rights Project, Inc. v. Stanley, (NY Cty. Sup. Ct., July 30, 2015), after dealing with a number of procedural and jurisdictional issues, the court moved to the central question in the case: "whether a chimpanzee is a legal person entitled to bring  writ of habeas corpus." The court pointed out that "'legal personhood' is not necessarily synonymous with being human..."  Courts use the legal fiction of personhood to treat corporations as persons. However the court decided it was bound by appellate precedent to reject the claim of personhood here. The opinion concluded:

The similarities between chimpanzees and humans inspire the empathy felt for a beloved pet.  Efforts to extend legal rights to chimpanzees are thus understandable; some day they may even succeed.  Courts, however, are slow to embrace change, and occasionally seem reluctant to engage in broader, more inclusive interpretations of law, if only to the modest extent of affording them greater consideration.  As Justice Kennedy aptly observed in Lawrence v. Texas, albeit in a different context, "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress."... The pace may now be accelerating. (See Obergefell v. Hodges....)

In a press release on the decision, the Nonhuman Rights Project said it will promptly appeal the decision to the Appellate Division.  New York Times reports on the decision.

Judge Acquits Hasidic Rabbi Accused of Sexually Molesting A Boy

In Rockland County, New York yesterday, a state trial court judge, after a bench trial, found Hasidic Rabbi Moshe Taubenfeld not guilty on charges of sexually abusing a minor from 2001 to 2006.  The Lower Hudson Journal News reports that the young man accusing Taubenfeld said that the abuse began when he was 8 years old and contnued until he moved out of the village of New Square at age 13,  The judge said there was reasonable doubt after hearing the evidence in the multi-week trial. But supporters of the boy charge that Judge Rolf Thorsen's decision was political because he owes his recent election to the judiciary to the New Square Hasidic community.  The defendant, father of 20, is well respected tutor and marriage counselor in the New Square community; his wife and a young daughter were killed in a terrorist attack on a bus in Israel.