Alabama Supreme Court Narrowly Avoids Confrontation With SCOTUS On Same-Sex Marriage

The Alabama Supreme Court yesterday in Ex parte State of Alabama ex rel. Alabama Policy Institute, (AL Sup. Ct., March 4, 2016), issued a per curiam order dismissing all pending motions and petitions in a suit that sought to require Alabama probate judges to refuse to issue marriage licenses to same-sex couples.  However the Order also generated six separate opinions from the 9 justices spanning 170 pages. Three of the opinions were particularly defiant of the U.S. Supreme Court's authority to hand down its Obergefell decision.

Chief Justice Roy Moore who has been in the lead in resisting same-sex marriage in Alabama (see prior posting) wrote the longest and most defiant opinion.  He actually submitted two opinions totaling 106 pages-- one an opinion on why he now decided not to recuse himself, even though he had done so at earlier stages of the case, and the second longer opinion attacking the U.S. Supreme Court's same-sex marriage decision. Explaining why he was willing to concur in the dismissal of the suit, Moore said:

Today this Court by order dismisses all pending motions and petitions and issues the certificate of judgment in this case. That action does not disturb the existing March orders in this case or the Court's holding therein that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional.

In perhaps his most radical attack, Moore said (at pp. 87-88):

The general principle of blind adherence to United States Supreme Court opinions as "the law of the land" is a dangerous fallacy that is inconsistent with the United States Constitution. Labeling such opinions as "the rule of law" confuses the law itself -- the Constitution -- with an opinion that purports to interpret that document.

Article VI, by its plain terms, binds "the judges in every state" to obedience to the Constitution itself, not to unconstitutional and illegitimate opinions of the United States Supreme Court. Just as the little boy in Hans Christian Andersen's tale pointed out that the Emperor, contrary to the assertions of his courtiers, was actually stark naked, so also the "judges in every state" are entitled to examine Supreme Court opinions to see if they are clothed in the majesty of the law of the Constitution itself rather than in naked propositions of men with no cognizable covering from that document.

Moore also emphasized religious liberty in his attack on the Obergefell majority, saying in part (at pg. 58):

The Obergefell majority, conspicuously overlooking the "essential and historic significance" of the connection between religious liberty and "supreme allegiance to the will of God," failed to appreciate the seriousness of imposing a new sexual-revolution mandate that requires Alabama public officials to disobey the will of God.

Justices Parker and Murdock also wrote defiant concurring opinions, while Justice Shaw's concurring opinion was highly critical of Chief Justice Moore's approach.

Justice Bolin's somewhat temperate concurrence is of particular interest. He said in part:

Although I have many times not agreed with a decision of the United States Supreme Court, or a decision of the Alabama Supreme Court for that matter, I have never criticized an opinion from any court in the manner in which I regrettably do so today. I am, however, able to count to five--and I know that five votes trump four; and, although that does not make it right, it does make it a majority opinion....

The foregoing being said, I am further compelled to concur specially to express my concern, which remains to be determined in future cases, that the Obergefell decision may have emasculated this State's entire statutory licensing scheme governing "marriage" to the point of rendering it incapable of being enforced prospectively.

Al.com reports at length on the decision.

Church of Cannabis Leader Sues Former Police Chief For Defamation

According to a report yesterday from WKYC News, in Indianapolis, Indiana, the founder of the First Church of Cannabis has filed a defamation against the city's former police chief Rick Hite.  At a police news conference shortly before the church's inaugural service, the police chief warned that anyone smoking marijuana at the church would be prosecuted.  Referring to the Church's leader Bill Levin, the police chief said: "As Jim Jones once did within our state, he led a group of people into a place of no return. We don't want that to happen again in this state."

8th Circuit: Westboro Church Challenge To Picketing Law Should Be Dismissed As Moot

In 2014, a Missouri federal district court rejected a vagueness challenge mounted by the Westboro Baptist Church to Missouri statutes that banned protest activities within three hundred feet of a funeral. (See prior posting.)  However, while a motion to amend the judgment was still pending, the Missouri legislature repealed the statutes at issue.  In Phelps-Roper v. Koster, (8th Cir., March 4, 2016), the 8th Circuit Court of Appeals held that when the statutes were repealed, the district court should have vacated its judgment and dismissed the case as moot. It also held that the district court had improperly computed the amount of attorneys' fees that should be awarded to plaintiff.

Supreme Court Preserves Abortion Status Quo In Louisiana While It Considers Similar Case

Th U.S. Supreme Court today issued an order preserving the status quo in Louisiana while the Court considers Whole Woman's Health, the abortion case from Texas that was argued this week. (See prior posting.) The 5th Circuit had stayed a district court's preliminary injunction against enforcement of a Louisiana law requiring abortion providers to have admitting privileges at a local hospital. The 5th Circuit's stay had the effect of allowing Louisiana's contested law to go into effect. Today in June Medical Services LLC v. Gee the U.S. Supreme Court issued the following order:

Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole, No. 14A1288 (June 29, 2015), the application to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on February 24, 2016, presented to Justice Thomas and by him referred to the Court, is granted and the Fifth Circuit’s stay of the district court’s injunction is vacated.

Justice Thomas would deny the application.

This order was in response to June Medical's Emergency Application to Vacate Stay of Preliminary Injunction Pending Appeal (full text).

Georgia's Republican Governor Opposes "Religious Freedom" Bill on Biblical Grounds

As a number of state legislatures consider enacting religious freedom bills to protect opponents of same-sex marriage, one of the most contentious of the bills has been Georgia's HB 757 which among other things would bar government from taking any adverse action against any person or faith-based organization based wholly or in part on the person or organization believing, speaking or acting in accordance with their belief that marriage should be between a man and a woman and sexual relations should be reserved to such a union.  The Atlanta Journal Constitution reported yesterday that Georgia's Republican Governor Nathan Deal took a surprisingly strong stand against the legislation:

Amid a growing outcry from powerful corporations over Georgia’s “religious liberty” proposal, Gov. Nathan Deal issued his strongest warning yet to lawmakers who are debating controversial legislation seen as a conservative answer to the Supreme Court’s same-sex marriage ruling.

In stark terms, the Republican said he would reject any measure that “allows discrimination in our state in order to protect people of faith,” and urged religious conservatives not to feel threatened by the ruling....

Standing in the lobby of a government building after a ribbon-cutting ceremony, he laid out a lengthy condemnation of the measure from a biblical perspective, first noting that he is a Southern Baptist who took religion courses at Mercer University.

“What the New Testament teaches us is that Jesus reached out to those who were considered the outcasts, the ones that did not conform to the religious societies’ view of the world … We do not have a belief in my way of looking at religion that says we have to discriminate against anybody. If you were to apply those standards to the teaching of Jesus, I don’t think they fit.”

India Effectively Denies Visas To USCIRF Delegation

The U.S. Commission on International Religious Freedom said in a press release yesterday that the government of India has effectively denied visas to a USCIRF delegation that was to visit India to assess religious freedom conditions in that country. India failed to issue requested visas in time for the delegation's scheduled departure today.

Australian Report On Laws That Encroach On Traditional Freedoms

On Wednesday, the Australian Law Reform Commission released  its report titled Traditional Rights and Freedoms—Encroachments by Commonwealth Laws. Chapter 5 of the report deals with Australian laws that may be seen as interfering with freedom of religion, including anti-discrimination laws. Law and Religion Australia blog has more on the report.

2nd Circuit: MTA Rule Change Makes Challenge To Rejection of Anti-Muslim Ad Moot

In American Freedom Defense Initiative v. Metropolitan Transit Authority, (2d Cir., March 3, 2016), the U.S. 2nd Circuit Court of Appeals upheld the dismissal on mootness grounds of a suit against the New York Metropolitan Transit Authority challenging the MTA's refusal to accept an anti-Islamic ad that a pro-Israel group wished to run on the back of MTA buses.  The ad which portrayed a menacing‐looking man with his face mostly covered by a head scarf included the quote:  "Killing Jews is Worship that draws us close to Allah." Then beneath the quote, the ad stated:  "That’s His Jihad.  What’s yours?"  While the case was pending, the MTA changed its property from a designated public forum
to a limited public forum and barred any ad that is "political in nature." (See prior related posting.) New York Post reports on the decision.

Recent Prisoner Free Exercise Cases

In Dunn v. Catoe, 2016 U.S. Dist. LEXIS 22252 (ED TX, Feb. 23, 2016), a Texas federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 23148, Jan. 15, 2016) and dismissed a Muslim inmate's complaints about policies requiring an outside volunteer at religious services, gang members infiltrating Muslim religious meetings, insufficient food when lock downs occur during Ramadan, and denial of the right to wear a beard.

In Vincent v. Stewart, 2016 U.S. Dist. LEXIS 23304 (WD WA, Feb. 25, 2016), a Washington federal magistrate judge held that unless a proper amendment is filed, she would dismiss a complaint by a Hare Krshna inmate that he has been unable to obtain fresh milk as part of his diet as required by his religious beliefs.

In Todd v. California Department of Corrections, 2016 U.S. Dist. LEXIS 23338 (ED CA, Feb. 24, 2016), a California federal magistrate judge recommended that an inmate be permitted to proceed with free exercise, Establishment Clause and equal protection claims stemming from refusal to recognize Creativity as a religion, denial of a religious diet and banning of the Holy Books of Creativity.

In Fernandez-Torres v. Watts, 2016 U.S. Dist. LEXIS 23964 (SD GA, Feb. 26. 2016), a Georgia federal magistrate judge recommended dismissing an inmate's complaint that he was not allowed to have Santeria Bead Necklaces sent to him by his "spiritual family," and could only obtain them from an approved vendor.

In Thody v. Ives, 2016 U.S. Dist. LEXIS 24092 (CD CA, Feb. 25, 2016), a California federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 24095, Jan. 5, 2016) and dismissed as not congnizable in a habeas corpus action an inmate's complaint that members of their non-Judaist, Messianic, Sabbitarian, Zionist belief group have been denied the right to assemble, teach and practice their religion.

In Schlemm v. Wall, 2016 U.S. Dist. LEXIS 24332 (WD WI, Feb. 29, 2016), a Wisconsin federal district court held that because of disputed issues of material fact, the case should proceed to trial on claims that an inmate's RLUIPA rights were infringed when he not permitted to serve venison during the annual Native American Ghost Feast; and was prevented from wearing a multicolored bandana while praying or meditating in his cell and during group religious ceremonies.

In Monroe v. Walker, 2016 U.S. Dist. LEXIS 24475 (D NV, Feb. 26, 2016), a Nevada federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 24474, Jan. 11, 2016) and allowed a Muslim inmate to proceed against one of the defendants on his complaint that he was admonished for wearing his religiously approved Kufi and was treated differently than similarly situated Jewish inmates.

Minnesota Federal Judge Creating Innovative Deradicalization Program Aimed At ISIL Recruits

The Minneapolis Star Tribune and MPR News reported yesterday that Minnesota federal district judge Michael J. Davis is setting up an innovative Terrorism Disengagement and Deradicalization Program aimed at deradicalizing defendants convicted of plotting to join ISIS.  Davis has presided over most of the terrorism trials of young Somali-Americans in Minnesota. In court papers filed in the case of four men who pleaded guilty to conspiracy to provide material support and resources to ISIL, the court says it plans to have the U.S. Probation Office work with a consultant from the German Institute on Radicalization and Deradicalization Studies to recommend an individualized intervention program tailored to each defendant's circumstances and underlying radicalization factors.  The U.S. Attorney's Office is fully supportive of the new initiative.  Defense attorneys have not yet decided whether to accept the plan.

Suit Challenges Cross Decals On Sheriff's Office Patrol Cars

The Freedom From Religion Foundation filed suit yesterday against a Texas sheriff who placed 8-inch tall Latin cross decals on six county law enforcement vehicles.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Brewster County, Texas, (WD TX, filed 3/2/2016), says that Sheriff Ronny Dodson placed the decals on patrol vehicles because he "wanted God’s protection over his deputies."  The suit contends that this violates the First Amendment's Establishment Clause as well as Art. I, Sec. 6 of the Texas Constitution.  FFRF issued a press release announcing the filing of the lawsuit.

IRS Releases Financial Data On Charities From 2012 Returns

The Internal Revenue Service in its recently-released Statistics of Income (Winter 2016) discloses extensive financial data regarding Nonprofit Charitable Organizations and Donor-Advised Funds. The data was compiled from Forms 990 and 990-EZ filed for tax year 2012. Non-profit charitable organizations had assets of $3.3 trillion. They received over $1.7 trillion in total revenue (nearly 75% of which came from program services). Charities holding $10 million or more in assets filed only 8% of the tax returns, but accounted for 92% of overall charitable assets.

Church Wins In RLUIPA "Equal Terms" Challenge To Redevelopment Zone Limits

In Summit Church v. Randolph County Development Authority, (ND WV, March 2, 2016), a West Virginia federal district court held that the Randolph County (WV) Development Authority violated the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act when it refused to sell property in a redevelopment project to a church.  The property was part of a former rail yard being redeveloped for mixed commercial use, reflecting the "the history and culture of the site." The court said in part:

The defendants wholly fail to attempt to define what they believe the “history and culture of the site” even is. It was a railyard.... Therefore, an operating train, a railroad museum or railroad-themed restaurant – which do exist in the current Elkins Railyard – theoretically make sense under the RCDA’s vision. The other existing establishments are nothing more than “medical tenants.... The northern portion of the Railyard... is morphing into something more akin to a medical park. The defendants have not shown, however, how a church would harm the Covenants’ objectives any more than the other permitted uses.

SCOTUS Hears Oral Arguments In Texas Abortion Regulation Case

The U.S. Supreme Court today heard oral arguments in one of the most important abortion cases to reach it in some time, Whole Women's Health v. Hellerstedt.  The full transcript of  today's oral arguments is now available. The case page from SCOTUSblog provides links to the cert. petition, all the briefs, the lower court decision and commentary on the case. Lyle Denniston at SCOTUSblog also has an analysis of this morning's argument. At issue in the case are provisions in a 2013 Texas law requiring physicians who perform abortions to have admitting privileges at a nearby hospital, and requiring abortion clinics to meet standards for ambulatory surgical centers.

Pennsylvania Grand Jury Exposes Extensive Sex Abuse By Catholic Diocese Clergy

Yesterday Pennsylvania Attorney General Kathleen Kane released a 147-page Grand Jury report (full text) on sexual abuse of children by Pennsylvania Catholic clergy.  As summarized in the Attorney General's press release:

A statewide investigating grand jury has determined that hundreds of children were sexually abused over a period of at least 40 years by priests or religious leaders assigned to the Roman Catholic Diocese of Altoona-Johnstown, Pennsylvania....

The widespread abuse involved at least 50 priests or religious leaders. Evidence and testimony reviewed by the grand jury also revealed a troubling history of superiors within the Diocese taking action to conceal the child abuse as part of an effort to protect the institution's image.

The Grand Jury concluded its report with 3 recommendations: (1) abolish the statute of limitations for sexual offenses against minors; (2) open a window to allow child sexual abuse victims to have their civil actions heard; and (3) possible criminal conduct should be directly reported to law enforcement authorities. Washington Post has more on the grand jury report.

EEOC Files 2 Suits Alleging Title VII Already Covers Sexual Orientation Discrimination

The EEOC announced yesterday that it has filed its first two suits in federal court testing its theory that existing laws barring discrimination on the basis of sex cover discrimination on the basis of sexual orientation. In an administrative decision under Title VII handed down in July, the EEOC held that "Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms." (See prior posting.) Yesterday's suits build on that.  In EEOC v. Scott Medical Health Center, P.C., (WD PA, filed 3/1/2016), the complaint (full text) alleges that a gay male employee's manager repeatedly directed anti-gay epithets at him, as well as other highly offensive comments about his sexuality and sex life. In the other suit, EEOC v. Pallet Companies, (D MD, filed 3/1/2016), the complaint (full text) alleges that a lesbian employee was harassed by her supervisor with comments about her sexual orientation and appearance, and was fired in retaliation for complaining. BuzzFeed reports on the lawsuits.

South Dakota Governor Vetoes Bill Restricting Transgender Students' Choice of Bathrooms

South Dakota Governor Dennis Daugaard yesterday vetoed a bill that would have prohibited public schools from allowing transgender students to use rest rooms and locker rooms consistent with their gender identity. Instead it would have required students to use facilities consistent with their anatomy and chromosomes at birth. (See prior posting.)  In his veto message (full text) Daugaard said in part:

If and when these rare situations arise, I believe local school officials are best positioned to address them.  Instead of encouraging local solutions, this bill broadly regulates in a manner that invites conflict and litigation, diverting energy and resources from the education of the children of this state.

Washington Post reports on the governor's veto.

RICO Lawsuit Filed Against Pastor and Elder of Defunct Megachurch

A civil RICO lawsuit was filed last week against Mark Driscoll, pastor of the now-closed Seattle, Washington, Mars Hill Church.  At its height, the Mars Hill had expanded to 5 states and drew 13,000 attendees on an average Sunday. Also named in the suit filed by 4 former church members was the church's chief elder, John Sutton Turner.  The complaint (full text) in Jacobsen v. Driscoll, (WD WA, filed 2/29/2016), alleges that defendants solicited contributions from thousands of members for specific charitable purposes and then diverted the funds to other purposes, including fraudulent promotion of Driscoll's book, Real Marriage, and for church expansion. Daily Beast reports on the lawsuit and its background:

Mars Hill closed its doors in 2014, following a number of scandals involving allegations of Driscoll’s bullying and spiritual abuse of members and church leaders, misogyny, and homophobia espoused on a church message board, plagiarism, and misuse of church funds—which this lawsuit seeks to redress. Since its closure, the details of the organization’s dissolution have been opaque, with little public accounting, and a group of remaining leaders who have refused to comment on who gets what from the failed enterprise 

Church of Cyprus and Government Reach Salary Subsidy- Land Swap Deal

After 45 years of negotiations, the Church of Cyprus and the Cyprus government have finally reached an agreement on governmental payments of priest salaries in exchange for transfer of land from the Church to the government.  In-Cyprus reported yesterday that the Church will transfer 15,000 acres of land to the government. In exchange the government will fund half the salaries of 700 priests for the next ten years. For each of the 700 priests, the government will pay the church the equivalent of $733 per month.  The land being transferred is valued at the equivalent of $304 million.

Court May Decide Church Affiliation Dispute

In Ohio District Council, Inc. of the Assemblies of God v. Speelman, (OH App., Feb. 29, 2016), an Ohio state appeals court held that the ecclesiastical abstention doctrine does not prevent civil courts from adjudicating the validity of action by a local church, known as Christian Assembly, disaffiliating itself from Assemblies of God and instead merging with (and transferring its property to) Fellowship of Praise Church of God.  After Christian Assembly took this action, Assemblies of God adopted a resolution declaring that it still had jurisdiction over the church and purporting to remove its pastor Dennis Speelman.  In holding that the trial court can decide the dispute, the appeals court said in part:

A judicial determination with respect to the significance of Christian Assembly’s affiliation involves no ecclesiastical issues. Here, the parties have presented evidence of constitutions, by-laws, applications for affiliation, as well as ample testimony regarding the structure of the presbytery. The resolution of that matter does not involve the weighing of any controversies concerning religious doctrines, tenets, or practices....

The trial court was not called upon to determine whether Speelman should be pastor or to determine matters of religious concern. Rather, the trial court was called upon to determine which body was authorized to make those determinations and to defer to the determination of the authorized body.