Canadian Appeals Court Invalidates Niqab Ban At Citizenship Ceremonies

In Canada yesterday the Federal Court of Appeal in a rapid ruling from the bench following a half-day hearing held that the government's guideline banning the wearing of the niqab when taking the citizenship oath at naturalization ceremonies is invalid. According to the National Post, the judges moved quickly so that Zunera Ishaq could obtain her citizenship in time to vote in the October 19 federal election. The appeals court affirmed a lower court's ruling (see prior posting) that the policy against face coverings violates the government's own citizenship regulations. At the appeals court hearing, a Justice Department lawyer conceded that the face covering policy is not mandatory because a mandatory policy cannot be imposed through a mere guideline.

Arizona City Adopts Christian-Only Invocation Policy

At its September 14 meeting, the Coolidge, Arizona City Council had before it a resolution (full text) to open each Council meeting with a prayer.  The resolution was drafted to comply with the Supreme Court's Town of Greece guidelines.  However, according to the Coolidge Examiner, in passing the resolution, Council by a 4-2 vote also adopted an amendment offered by Councilman Rob Hudelson to limit invocations to Christian prayers.  The paper reports:

Speaking last was Hudelson, who himself is a preacher. He made clear his views that the United States is a Christian nation.

“I think it’s very important,” Hudelson said. “We just proclaimed Constitution Week. You know what was said at the end of the [Revolutionary] war? A treaty in Paris that said ‘In the name of the most holy and undivided trinity.’ You don’t get that from the Quran. You get it from the Bible. You get it from Christianity. That’s our heritage.”

After this, Hudelson motioned to accept the resolution with the stipulation that this be a Christian item

The City Attorney told Council that this amendment would violate the Establishment Clause, but nevertheless Council passed it.  The Resolution is subject to a 30-day review period, and the City Attorney will now rewrite it to comply with Council's amendment.

Challenge To Kaporos Ritual Fails

According to the New York Post, on Monday a New York state trial court judge ruled against activists challenging the Jewish pre-Yom Kippur ritual of kaporos, which involves use of a live chicken in a ceremony to symbolically atone for the past year's sins.  The chicken is then slaughtered and donated to the needy.  The lawsuit (see prior posting) claimed the practice violates various health and animal cruelty laws.  The court found that challengers had not shown that the ritual was a public nuisance, avoiding the need to rule on defendants' free exercise defenses.

Woman Sues NYPD Over Required Removal of Hijab For Mug Shot

Courthouse News Service and the New York Daily News report on a suit filed Monday in federal court in the Eastern District of New York against the New York Police Department by a Muslim woman forced to remove her hijab (head scarf)  before having her mug shot taken. Mervat Soliman, a 53-year old Egyptian woman,was arrested after a fight with her neighbor over a parking space. Alleging various disrespectful incidents during questioning, when Soliman objected to removing her hijab, police allegedly said: "This is America, we don't care."

Update on Kim Davis and Marriage Licenses In Kentucky

On Monday, Rowan County, Kentucky Clerk Kim Davis, after spending 5 days in jail on contempt charges, returned to work still opposed on religious grounds to issuing marriage licences to same-sex couples.  However, as reported by CNN, she did not prevent her deputy clerks from issuing licences reading that they were issued "pursuant to federal court order." Kentucky Governor Steve Beshear said that the state will recognize these licenses as valid.  Meanwhile, yesterday in Davis v. Beshear, (6th Cir., Sept. 15, 2015), the U.S. 6th Circuit Court of Appeals denied Davis request for a preliminary injunction against the Governor and the Commissioner of the Kentucky Department of Libraries and Archives seeking to prevent them from enforcing the district court order that county clerks issue marriage licenses to same-sex couples and exempting her from issuing licenses pending appeal of the district court's delay in passing on her request for an injunction. (See prior related posting.) The court said in part:

Davis maintains that the issuance of marriage licenses to same-sex couples burdens her sincerely held religious beliefs in violation of the U.S. Constitution, the Kentucky Constitution, and the Kentucky Religious Freedom Restoration Act. Davis has not demonstrated a substantial likelihood of success on her federal constitutional claims. We need not address the merits of her claims under Kentucky law because the Eleventh Amendment of the U.S. Constitution precludes the federal courts from compelling state officials to comply with state law.

Crane Collapse Kills 107 At Mecca's Grand Mosque As Hajj Approaches

According to CNN, yesterday in Mecca, ten days before the beginning of the Hajj, a powerful storm caused a construction crane to collapse through the roof of the Grand Mosque, killing 107 and injuring 238 others. The Mosque surrounds the Kaaba, the holiest site in Islam.  The Mosque is being expanded to better handle the large number of visitors that make the Hajj pilgrimage each year.

Court Issues Interim $43.7M Judgment Against Russia In Fight Over Return of Jewish Library

In Agadus Chasidei Chabad of United States v. Russian Federation, (D DC,Sept. 10, 2015), the D.C. federal district court entered an interim judgment for accrued sanctions totaling $43.7 million against the Russian Federation, the Russian Ministry of Culture and Mass Communication, and the Russian State Military Archive.  It went on to hold that plaintiffs may petition the clerk every 90 days for an additional judgment until defendants comply with a 2010 order of the court.

The sanctions grow out of a ten-year effort by Chabad to regain possession of two expropriated collections of religious books held by the Russian government. After losing its jurisdictional arguments, the Russian government refused to participate in the litigation and in 2010 a default judgment was entered against it. The court then imposed civil sanctions of $50,000 per day until defendants comply with the court's order. (See prior posting.)  The United States government argued against the court granting the current interim judgment, claiming that this will further damage U.S. foreign policy interests including efforts to reach a settlement with defendants on plaintiffs' behalf. The court disagreed saying generally:

Given the United States' current sanctions against Russia and Russian interests based upon various geopolitical events, the Court is unpersuaded by such a vague concern in this case.

The court also pointed out that this is not an enforcement action. Enforcement issues will arise only when plaintiff identifies property in the United States to attach.

Reporting on the decision, the Legal Times quotes plaintiffs' lawyer who says this decision will permit plaintiffs to register a judgment in other states and look for assets to attach. He said Chabad will not go after Russian art or cultural objects on loan to U.S. museums. Meanwhile, as previously reported, in a split with Chabad in the U.S., the Russian branch of Chabad supports the Russian government's compromise arrangement which involves digitizing one of the collections and moving it to Moscow's new Jewish Museum and Tolerance Center.

Counter-Letter Urges Obama To Retain 2007 Office of Legal Counsel Interpretation of RFRA

As previously reported, last month a coalition of 130 religious, civil rights and advocacy organizations sent a letter to the President urging that the Justice Department's Office of Legal Counsel reconsider a 2007 Memorandum that interpreted RFRA to require exemptions for religiously-affiliated organizations from non-discrimination provisions in federal grant programs. Now a counter-letter dated Sept. 10 and signed by 70 religious leaders and faculty at religiously-affiliated colleges (full text) has been sent to the President urging him to retain "basic principles and provisions of federal law that support religious staffing by religious organizations." The letter reads in part:

We are grateful that you have welcomed “all hands” to contribute to federal social policy by maintaining and refining the federal faith-based initiative and its rules that provide for equal opportunity for faith-based organizations to collaborate with government in serving community needs. Making it more difficult for faith-based organizations to join those partnerships would undermine, rather than burnish, your commitment to effective and flourishing “all hands” partnerships.

Mirror of Justice reports on the letter.

Obama Holds Conference Call With U.S. Rabbis In Advance of Rosh Hashanah

A White House press release reports that yesterday President Obama held a conference call with over 500 U.S. rabbis from the four major Jewish religious denominations to mark Rosh Hashanah, the Jewish New Year, which begins at sundown on Sunday. According to the readout of the President's call:

In addition to wishing the Rabbis and their congregations a happy, healthy new year, the President discussed and answered participants' questions on a range of topics, including the nuclear deal among the P5+1, the EU, and Iran that will verifiably prevent Iran from obtaining a nuclear weapon. 

Second Suit Filed Challenging Nevada's School Voucher Law

This week a second state court lawsuit challenging Nevada's broad school voucher program was filed. The complaint (full text) in Lopez v. Schwartz, (NV Dist. Ct., filed 9/10/2015), claims that the challenged statute violates the Education Article (Art. XI) of the Nevada Constitution. The suit alleges that the new law diverts funds appropriated for uniform public schools to non-uniform private ones,  A press release announcing the filing of the lawsuit said that it complements the one filed last month by the ACLU (see prior posting) by raising a separate and independent basis for invalidating the law.

New York City Repeals Circumcision Informed Consent Rule

As reported by the New York Times, on Wednesday the New York City Board of Health by a vote of 9-1-1 repealed its largely unenforced regulations that required parental consent forms be signed in cases of ritual circumcision using the direct oral suction technique (metzitzah b'peh). The original regulations were adopted in 2012 in order to prevent passage of the herpes simplex virus to infants. (See prior posting.)  In its Notice of Adoption the Board said in part:

In February, 2015, the Mayor announced a new strategy to address this problem. As part of this approach, the Department will work cooperatively with leaders of the Orthodox Jewish community to educate parents about the risks of DOS. These educational efforts will include working with hospitals throughout the City to distribute educational materials about the risks of DOS to the parents of all newborn infant boys, as well as making this information available at other health care settings, such as obstetric and pediatric practices. These materials, which include a Department telephone number for parents who may have questions, have been translated into Yiddish and are being distributed at hospitals and medical offices that service communities where DOS is practiced. The Department’s educational initiative is more likely to succeed if the Department can restore a strong relationship with these communities.

City officials expect Orthodox Jewish leaders to cooperate in banning mohels  who are found to have infected an infant, though formal arrangements with them are not yet complete. (See prior related posting.) [Thanks to Scott Mange for the lead.]

Guilty Pleas In Indictment For Exporting Meat Falsely Labeled As Halal

According to the Des Moines Register, yesterday Midamar Corp. and Islamic Services of America each pleaded guilty in federal court in Iowa to one count of conspiracy to make false statements on export certificates, sell misbranded meat and commit wire fraud in the export to Malaysia and Indonesia of beef products purporting to be Halal. Each company will forfeit $600,000 in profits and may face probation and additional fines at sentencing. The related companies and their principals were indicted last year. (See prior posting.) Midamar’s founder, Bill Aossey Jr., was convicted earlier this summer of falsifying documents, while Aossey’s two sons who are directors of Midamar will enter guilty pleas on Friday. (See prior related posting.)

Oregon Judge Faces Ethics Charges Over Refusing Same-Sex Weddings and Other Matters

The Oregon Commission on Judicial Fitness and Disability announced in a press release issued Tuesday that a hearing is scheduled next month on ethics charges filed against Marion County Judge Vance Day.  (See prior related posting.) Day has religious objections to same-sex marriage, and one of the charges against him is that before he decided to discontinue entirely performing wedding ceremonies, he had his staff screen wedding applicants to assure that he was not presiding over a same-sex marriage.  However Day, who is head of the Veterans Treatment Court, also faces five other unrelated charges including false statements, improperly allowing a veteran with a prior felony conviction to handle firearms and posting a picture of Adolph Hitler in the county courthouse.  According to CBS News, the Hitler portrait was part of a collage included in memorabilia of a local doctor who had served in World War II. The portrait was surrounded and partially obscured by pages from the doctor's diary, medals and photos.

Meanwhile, The Oregonian reported yesterday that another Oregon state trial court judge, Washington County Judge Thomas Kohl, has also stopped performing weddings now that same-sex marriages are legal.  Kohl has written and speaks widely in churches and prisons about the transformative power of faith.

Fayetteville Voters Approve Controversial Anti-Discrimination Law

In Fayetteville, Arkansas on Tuesday voters approved the city's controversial Uniform Civil Rights Protection Ordinance.  According to the Arkansas Democrat-Gazette, complete unofficial returns show 7,666 votes for and 6,860 against the Ordinance that bars discrimination in employment, public accommodations, real estate, contracts and voting on the basis of sexual orientation and gender identity. Opponents, many of whom object that the religious exemptions in the ordinance are too narrow, have filed suit challenging the legality of the Ordinance. They claim it violates free exercise and free speech rights as well as Arkansas' recently enacted Intrastate Commerce Improvement Act that prohibits counties, municipalities and other political subdivisions from expanding civil rights protections beyond those found in state law. (See prior posting.)

Suit Challenges Kapparot Ceremonies Under California's Unfair Competition Law

In Los Angeles a group of animal rights activists have filed a state court lawsuit seeking to stop public kapparot ceremonies.  The Jewish Journal reports on the lawsuit, filed August 26,  challenging the pre-Yom Kippur ceremony which uses live chickens that are subsequently slaughtered.  Apparently, at least in previous years, in the Pico-Robertson neighborhood kapparot has been promoted with booths set up in parking lots, large banners and barkers in chicken costumes. Some say that the anti-kapparot protests in the Pico-Robertson area of Los Angeles have now driven the practice underground.

The lawsuit contends that the practice violates California's Unfair Competition Law (Bus. & Prof. Code Sec. 17200- 17210). The law's definition of unfair competition includes "any unlawful ... business act or practice."  A suit for an injunction and damages may be brought by "a person who has suffered injury in fact and has lost money or property as a result of the unfair competition."  The complaint, filed on behalf of seven plaintiffs, claims that in transporting, storing, and slaughtering the chickens, and later disposing of their blood and fecal matter, the six synagogues and five individuals named as defendants violate an average of eleven laws. Plaintiffs claim interesting losses to give them standing: expenses for travel to kapparot protests, time lost from work as a result of attending the protests and the cost of printing leaflets. One plaintiff claimed veterinarian bills for two chickens she rescued from one of the synagogues named as a defendant.

Suit Challenging Teaching of Evolution Dismissed

In Smith v. Jefferson County Board of Education, (D WV, Aug. 25, 2015), a West Virginia federal district court dismissed a suit, filed pro se by a historically litigious plaintiff, seeking to have the court outlaw the teaching of evolution in public schools. The complaint filed by plaintiff, a parent and taxpayer, is described by the court:

The three page complaint alleges that the Defendants have “fostered the propagation of religious faith” in West Virginia public schools, by way of “denying the Plaintiff’s accurate scientific mathematical system of genetic variations that proves evolution is a religion.”

National Center for Science Education reports on the decision.

Clergy-Penitent Privilege Does Not Shield Disclosure of Writer of Defamatory Letter

In Jaime Doe v. Catholic Diocese of Rockford, (IL App., Sept. 4, 2015), plaintiff sued seeking the identity of the writer of an allegedly defamatory letter about her son.  The letter, sent to the pastor of the parish, alleged that plaintiff's son engaged in the sexual touching of another minor child.  The appeals court affirmed the trial court's order that the writer of the letter be disclosed.  In doing so, the court concluded that the letter is not covered by the Clergy-Penitent Privilege, saying in part:

The writer was a volunteer for a religious-education program conducted by the parish and had the responsibility of monitoring the children in the program. In our view, at least on the present record, the statements in issue are simply not of the character of a confession or admission for which the writer was seeking spiritual guidance. Rather, they are outlining a potential source of risk for the parish and the children if J. Doe were to repeat such conduct while participating in the educational program offered by the parish. This is fundamentally not a matter of conscience for the writer; rather it is a matter of risk management for the writer as an agent of the parish and a guardian of children. Accordingly, we hold that the clergy-penitent privilege is simply inapplicable.

Medical Examiner Need Not Wait To See If Religious Objection To Autopsy Is Made

In Rugova v. City of New York, (NY App. Div., Sept. 8, 2015), a New York intermediate appellate court held that the trier of fact should determine whether the Medical Examiner's 36-hour delay in informing next of kin that an accident victim's body was available amounted to interference with a family's burial rights (right of sepulcher). However the court held that the Medical Examiner was not liable for conducting an autopsy after the accident even though that was inconsistent with the family's Muslim religious beliefs. The court said in part:

As a matter of statute, the Medical Examiner has extensive authority to perform autopsies within the exercise of professional discretion ... including where, as here, circumstances indicate that the death was accidental....  

Pursuant to statute, compelling public necessity is only required where the Medical Examiner has received an objection on religious grounds from a surviving friend or relative or has reason to believe that an autopsy is contrary to the decedent's religious beliefs.... While plaintiffs obviously could not make such objection, since they had not been informed of decedent's death, it is submitted that the Medical Examiner's office was not obligated to wait and see if an objection would be made before performing the autopsy....

District Judge Lifts Contempt Sanction and Orders Kentucky Clerk Released From Jail

Today as Republican Presidential candidates Mike Huckabee and Ted Cruz prepared to visit Rowan County (KY) Clerk Kim Davis (CNN), federal district judge David Bunning ordered her released from jail.  His order (full text) read in part:

On September 8, 2015, Plaintiffs filed a Status Report at the Court’s behest.  According to the Report, Plaintiffs have obtained marriage licenses from the Rowan CountyClerk’s Office. The Court is therefore satisfied that the Rowan County Clerk’s Office is fulfilling its obligation to issue marriage licenses to all legally eligible couples, consistent with the U.S. Supreme Court’s holding in Obergefell  and this Court’s August 12, 2015 Order. For these reasons, the Court’s prior contempt sanction against Defendant Davis is hereby lifted. 

Accordingly, IT IS ORDERED as follows:

1.Defendant Davis shall be  released  from the custody of the U.S. Marshal forthwith. Defendant Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples. If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this Order and appropriate sanctions will be considered....

In a footnote to his order, Judge Bunning said:

While the Status Report reflects that Plaintiffs’ marriage licenses have been altered so that “Rowan County” rather than “Kim Davis” appears on the line reserved for the name of the county clerk, Plaintiffs have not alleged that the alterations affect the validity of the licenses. Nor do the alterations impact the Court’s finding that the deputy clerks have complied with the Court’s Order.

Washington Post reports on the court's action.

UPDATE: As Kim Davis was released from jail on Tuesday afternoon, Republican presidential hopeful Mike Huckabee, standing beside her, told the media: "If somebody needs to go to jail, I am willing to go in her place, and I mean that,"(The Hill).

Satanic Temple Asks To Place Baphomet On Arkansas Capitol Grounds

In a press release today, The Satanic Temple announced that it has formally asked the Arkansas’ Capitol Arts and Grounds Commission for permission to place its "Baphomet" monument on the Capitol grounds next to an already-authorized Ten Commandments monument.  The Satanic Temple contends that when Arkansas earlier this year enacted SB 939 authorizing the Ten Commandments monument, it effectively opened the Capitol grounds to private donations and may not engage in viewpoint discrimination in accepting them.It says it will place an inscription on the Baphomet monument reading:

Be it known to all that this statue commemorates the history of law in the United States of America. From the deplorable Satanic Witch Hunts, the cherished doctrines of due process, presumption of innocence and the protection of minorities from the tyranny of mob rule became part of the established foundation of American jurisprudence.

Baphomet was unveiled in a ceremony in Detroit earlier this summer. (See prior posting.) A Hindu group also wants to place a monument on the Arkansas Capitol grounds. (See prior posting.)