New York Trial Court Holds State's "Get" Law Unconstitutional In Some Applications

In an important decision handed down last week, a New York state trial court held unconstitutional, at least in some situations, the New York statutory provision allowing a divorce court to pressure a Jewish husband economically to give a Jewish religious bill of divorce ("get") to his wife.  Under New York's DRL §236B(6)(o), when a wife sues for divorce the court may consider her husband's maintenance of a barrier to her remarriage in deciding on distribution of marital property or the award of spousal maintenance.

In Masri v. Masri, (NY Sup Ct Orange Cty, Jan. 13, 2017), the court recognized that a previous state appellate case had upheld the constitutionality of the statutory provision where the husband has withheld a get to extract concessions from the wife in the matrimonial litigation. However the court distinguished the case before it from that precedent. The court said in part:

The withholding of a Get to extort financial concessions from one's spouse constitutes simony, i.e., an exchange of supernatural things for temporal advantage. When the husband himself so unambiguously subordinates his religion to purely secular ends, he may properly be said to have forfeited the protective mantle of the First Amendment, and the court may, quite rightfully and without constitutional hindrance, impose the secular remedies authorized by the Domestic Relations Law.

Here, however, there is not the slightest evidence that the Defendant has withheld a Get from Plaintiff to extract concessions in matrimonial litigation or for other wrongful purposes. According to Plaintiff's own evidence, Defendant has invoked religious grounds for refusing to cooperate in obtaining a Jewish religious divorce, i.e., that Plaintiff by going to secular court has waived her right to rabbinical arbitration concerning the Get....

... [I]n the circumstances presented here, increasing the amount or the duration of Defendant's post-divorce spousal maintenance obligation pursuant to DRL §236B(6)(o) by reason of his refusal to give Plaintiff a Jewish religious divorce or "Get" would violate the First and Fourteenth Amendments.... There is no evidence that the Defendant has withheld a Get to extract concessions ... or for other wrongful purposes. The religious and social consequences of which Plaintiff complains flow not from any impropriety in Defendant's withholding a "Get", but from religious beliefs to which Plaintiff no less than Defendant subscribes. To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment.

New York Law Journal reports on the decision.

In SCOTUS Oral Argument On Trademark Law, Blasphemy Becomes Relevant

The U.S. Supreme Court today heard oral arguments in Lee v. Tam (transcript of full oral argument).  At issue is whether the disparagement provision in the Lanham Act is an unconstitutional restriction on speech. The statute provides that the Patent and Trademark Office may refuse to register a trademark that disparages individuals, institutions, beliefs or national symbols, or brings them into contempt or disrepute.  In the case the PTO refused to register "The Slants" as the name of a rock band on the ground that the name is disparaging to Asians. SCOTUSblog's case page has links to a wealth of primary and secondary material on the case.

In his rebuttal in today's oral argument, Deputy Solicitor General Malcolm Stewart made an interesting reference to trademarks that may constitute illegal insults to religion under the law of a foreign country:

The preparation of the principal register is not just an ancillary consequence of this program. It's the whole point to provide a list of trademarks so other people know what has been approved, what's off limits.

And the consequence of Mr. Connell's position is that the government would have to place on a principal register, communicate to foreign countries the biased racial epithets, insulting caricatures of venerated religious figures. The test for whether the government has to do that can't be coextensive with the test for whether private people can engage in that form of expression.....

... [T]he government, at the very least, has a significant interest in not incorporating into its own communications words and symbols that the public and foreign countries will find offensive.

(See prior related posting.)

City Removes Cross From Park To Settle Lawsuit

A settlement has effectively been reached in Freedom From Religion Foundation v. City of Santa Clara, a suit challenging a cross on city owned property in Santa Clara, California. (See prior posting.) The cross was originally donated in 1953 by the Lion's Club to mark the site of the second Spanish Catholic mission established in the city in 1777. According to a press release yesterday from FFRF, the cross has been removed and donated to the Catholic Santa Clara University. The case remains pending in a California federal district court until motions to dismiss are filed and approved.

Trump To Be Sworn In On Family Bible and Lincoln Bible

According to Religion News Service, at his inauguration this Friday, Donald Trump will take the oath of office on two Bibles-- his family Bible given to him by his mother in 1955 when he graduated Sunday school, and the Lincoln Bible borrowed from the Library of Congress. The Lincoln Bible was also used by President Obama during his swearing in ceremonies.

Chanel Sued By Former Employee Alleging Denial of Religious Accommodation

The Fashion Law reported yesterday on a religious discrimination lawsuit filed last November in a California state trial court against the fashion company Chanel.  Mia Komarevic, former manager of a Chanel outlet in San Francisco, alleges that after she reported a Director who had violated company policy by wearing merchandise out of the store for the night and then returning it as new, her fellow managers retaliated in several ways.  Among other things, they attempted to force her to resign by refusing to grant her a religious accommodation, forcing her to work on Sundays in violation of her Serbian Orthodox beliefs. Ultimately she was fired for unspecified "performance reasons." Earlier this month, defendants removed the case to federal district court for the Northern District of California. (Komarevic v. Chanel, Inc., (Case No. 4:17-cv-00008).

Ten More Appointed To U.S. Holocaust Memorial Council

Yesterday the White House announced that President Obama has appointed ten more individuals to the board of the U.S. Holocaust Memorial Council. Perhaps the best-known among this group of appointees is Melissa Rogers who has served in the Obama administration as Executive Director of the White House Office of Faith-Based and Neighborhood Partnerships. Also appointed was Sarah Hurwitz who has served as Michelle Obama's speech writer. Others appointed to the Council are: Daniel Benjamin; Michael Bosworth; Raffi Freedman-Gurspan; Samuel Gordon; Allan Holt; Edward Lazarus; Susan Lowenberg; and Maureen Schulman. Fifty-five members of the Council are appointed by the President for 5 year terms.

UPDATE: On Jan. 17 the President added one more appointee to the Holocaust Memorial Council-- Benjamin Rhodes who has been Obama's Deputy National Security Advisor for Strategic Communications.

Religious Leaders Have Have Variety of Top Agenda Items For President Trump

In advance of Donald Trump's inauguration on Friday, religious leaders have a variety of suggestions for Trump's top agenda items.  Here is a sampling:

Tony Perkins, president of the Family Research council, says:

To start, religious liberty in the military needs to be addressed. Over the past several years we have witnessed chaplains being disciplined for their faith, and religious speech being censored. President-elect Trump can direct that religious liberty in the military be clarified and strengthened, and that appropriate training is conducted to ensure the law is followed.

In addition, our foreign policy, contrary to the law, has not prioritized religious freedom like it should. President-elect Trump must direct that religious freedom be properly integrated into all foreign policy of the United States at every level....

[G]overnment nondiscrimination legislation is needed to protect supporters of marriage between one man and one woman.  People of faith should not be punished by the government for living in accordance with their beliefs.

Rev. Robert Sirico, president of the Acton Institute says:

Abolish the Office of Faith-Based Initiatives.

Even though there is long-standing precedent for government at all levels to contract with various church-affiliated organizations, such as the Lutheran Samaritas or Catholic Charities USA, these organizations end up going to great lengths to separate their services from their religious mission. This alters the genius of faith-based charities, their effectiveness and their very mission.

This well-intentioned subsidy obfuscates the nature of religious charities by incentivizing them to draw a stark line between their faith and their works. What animates believers to care for the poor is precisely their religious belief — not to serve the interests of the state, politicians and their bureaucracies.

Franklin Graham, president of the Billy Graham Evangelistic Association and Samaritan’s Purse, says:

I think maybe God has allowed Donald Trump to win this election to protect this nation for the next few years by giving maybe an opportunity to have some good judges.

Elijah M. Brown, general secretary of North American Baptist Fellowship, says:

President-elect Trump should ... demonstrate his sincere commitment to the many individuals and faith communities around the world living at the edge of extinction by nominating in his first 100 days an ambassador-at-large for international religious freedom.

University Settles Suit By Christian Counseling Student

The Springfield News-Leader reports that last month Missouri State University agreed to pay former student Andrew Cash $25,000 to settle a lawsuit brought by him charging that he was suspended from the Masters program in Counseling because of his religious beliefs. (See prior posting.) Cash says he was not allowed to complete his internship at a Christian counseling institute because it refuses to counsel same-sex couples, a position which Cash embraces. Under the settlement, Cash cannot seek readmission to Missouri State University.

Prosperity Gospel Pastor, Bishop Eddie Long, Dies

As reported by CNN and AP, controversial Atlanta area mega-church pastor, Bishop Eddie Long, died Sunday morning of cancer at age 63. At its height, his New Birth Missionary Baptist Church where he preached a "prosperity gospel" had 25,000 members.  CNN summarizes his career:

Long was a national figure and one of the most innovative and polarizing pastors in the contemporary church. He was also a paradox.

He was a preacher who led an infamous march against same-sex marriage and denounced homosexuality, but he also settled a lawsuit by four young men who said he pressured them into sexual relationships....

He was a man who gave away cars and paid the college tuition of needy people, but he also was investigated by Congress after a charity he created had provided him with a million-dollar home and a Bentley luxury car.

"When he spoke, black people all over the country listened to him," said Shayne Lee, a sociologist who studies the black Pentecostal church. "He was part of the repackaging of Christianity for post-civil rights African-Americans."

Egyptian Prosecutors Say Insufficient Evidence In Case Of Attack On Christian Woman

According to AP, in Egypt prosecutors have dropped a case against several members of a Muslim mob allegedly involved last May in stripping a Christian woman of her clothes and parading her naked through the streets in a village in Minya province.  The mob was reacting to a rumor that the woman's son had an affair with a Muslim woman.  Prosecutors cited a lack of evidence, but another case growing out of the same violence, which also targeted Christian homes, continues in court.

Recent Articles of Interest

From SSRN:

• Huma Tahir & Iffat Tahira, Freedom of Religion and Status of Religious Minorities in Pakistan, (International Journal of Management Sciences and Business Research, Vol. 5, Issue 12, Dec. 2016).
• Elizabeth Sepper, The Role of Religion in State Public Accommodations Laws, (60 St. Louis University Law Journal, Forthcoming).
• Valentino Cattelan, Legal Pluralism, Property Rights and the Paradigm of Islamic Economics, (JKAU: Islamic Economics, 30 (1) (2017)).
• John Witte & Joel A. Nichols, 'Come Now Let Us Reason Together’: Restoring Religious Freedom in America and Abroad, (Notre Dame Law Review, 92:1, 2016).
• John Witte, “Foreword,” to Rafael Domingo, God and the Secular Legal System, (Cambridge: Cambridge University Press, 2016), ix-xii).
• Dimitry Gegenava, Recognition of the Religious Marriage in Georgian Legislative Reality, (Journal of Law, #1, 2015).
• Seema Mohapatra, Assisted Reproduction Inequality and Marriage Equality, (Chicago-Kent Law Review, Forthcoming).
• Jessica A. Clarke, Protected Class Gatekeeping, (New York University Law Review, Vol. 92, No. 1, 2017).

Recent Prisoner Free Exercise Cases

In Aguilar v. Lemke, 2017 U.S. Dist. LEXIS 2526 (ND IL, Jan. 5, 2017), an Illinois federal district court allowed an inmate to move ahead with his claim that his placement in segregation in violation of his due process rights resulted in restrictions on his ability to practice his Roman Catholic religion.

In Garrett v. Stephens, (5th Cir., Jan 12, 2017), the 5th Circuit upheld dismissal of an inmate's claim that confiscation of his property forced him to modify his daily religious practices.

In Sareini v. Burnett, 2017 U.S. Dist. LEXIS 3083 (ED MI, Jan. 10, 2017), a Michigan federal district court held that the Supreme Court's 2015 decision in Holt v. Hobbs is not a basis for reopening a court's 2011 dismissal of an inmate's religious items and holiday claims.

In Santos v. Holland, 2017 U.S. Dist. LEXIS 3682 (ED CA, Jan. 10, 2016), a California federal magistrate judge, ruling on an inmate's habeas corpus petition, recommended concluding that a state court was reasonable when it held that an inmate's free exercise rights were not violated by using his religious necklace with the Eternal Warrior Shield as evidence of affiliation with the Mexican Mafia.

In Skandha v. Spencer, 2017 Mass. App. Unpub. LEXIS 45 (MA App., Jan. 12, 2017), a Massachusetts state appeals court rejected an inmate's claim that his religious rights were violated by the requirement that he sign a diet sheet in advance of receiving a vegan meal.

In Faulker v. Phillips, 2016 U.S. Dist. LEXIS 181805 (SD CA, Dec. 2, 2016), a California federal magistrate judge recommended that an inmate's complaint that he was denied a kosher diet be dismissed on various grounds, with one narrow exception.

In Blair v. Thompson, 2017 U.S. Dist. LEXIS 5164 (WD KY, Jan. 13, 2017), a Kentucky federal district court dismissed an inmate's claim of a conspiracy to interfere with the practice of his religion by stealing, moving, and destroying his religious materials.

In Venkataram v. Bureau of Prisons, 2017 U.S. Dist. LEXIS 5418 (SD FL, Jan. 12, 2017), a Florida federal magistrate judge recommended that a Hindu inmate be permitted to proceed with his claim seeking declaratory relief that his 1st Amendment and RLUIPA rights were infringed by the failure to provide him a vegetarian diet prepared and served in accordance with his religious beliefs.

In Gonzalez v. Rivera, 2017 U.S. Dist. LEXIS 4612 (ED AR, Jan. 12, 2017), an Arkansas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 181873, Dec. 16, 2016) and permitted an inmate to proceed with his complaint that he was not given meatless meals on Good Friday and that Catholic Easter services were not available even though they were proved to Protestant prisoners.

In Stein v. Mohr, 2016 U.S. Dist. LEXIS 181896 (SD OH, Dec. 13, 2016), an Ohio federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 181898, Dec. 6, 2016) and dismissed an inmate's complaint that he was not placed on the list to attend the Asatru religious feast of Yule, that he was not allowed to make a copy of a religious poster, and that the chapel library had only 3 Asatru religious books and they were subsequently stolen.

Indiana RFRA Not Defense To Tax Evasion

In Tyms-Bey v. State of Indiana, (IN App., Jan. 13, 2017), an Indiana appeals court, in a 2-1 decision, held that a state RFRA defense cannot be raised in a tax evasion prosecution.  According to the majority opinion:

as a matter of law ..., in the context of Indiana’s RFRA, there is a compelling governmental interest in collecting income tax revenue. Moreover, we hold as a matter of law that the least restrictive means of furthering that compelling interest is uniform and mandatory participation in the income tax system. There are no facts that [defendant] could proffer with respect to his exercise of religion that would not be overcome by the State’s compelling interest and the means used by the State in furthering that interest. 

Judge Najam dissenting said in part:

Tyms-Bey’s alleged RFRA defense may ultimately not succeed, but he is entitled to his day in court. The majority’s holding that, in effect, Tyms-Bey has not stated a claim under RFRA and that he is not even entitled to present evidence in support of his alleged defense is too quick to dispose of Tyms-Bey’s claim and denies him the particularized adjudication that is expressly afforded to him by Indiana’s RFRA.

NJ Court Upholds Historic Preservation Funds To Churches In State Constitutional Challenge

In Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders, (NJ Super., Jan 9, 2017), a New Jersey trial court upheld a county's allowing churches to be among those receiving grants from the county's Historic Preservation Trust Fund.  Even though Art. 1, Par. 3 of the New Jersey Constitution prohibits the use of tax funds to build or repair any church or place of worship, the court said that the constitutional provision "is not meant to be read literally" but must be read "in conjunction with the State's longstanding tradition of neutrality in church-state relations...." The Daily Record reports on the decision.

Presidential Proclamation Recognizing Religious Freedom Day

President Obama yesterday issued a Proclamation designating January 16, 2017 as Religious Freedom Day.  The date is the 231st anniversary of the passage of the Virginia Statute for Establishing Religious Freedom in 1786. The President's Proclamation reads in part:

Religious freedom safeguards religion, allowing us to flourish as one of the most religious countries on Earth, but it also strengthens our Nation as a whole. Brave men and women of faith have challenged our conscience and brought us closer to our founding ideals, from the abolition of slavery to the expansion of civil rights and workers' rights. And throughout our history, faith communities have helped uphold these values by joining in efforts to help those in need -- rallying in the face of tragedy and providing care or shelter in times of disaster.

Obama Appoints Two Members To Holocaust Memorial Council

With only days left in office, President Obama continues to make appointments to various federal councils and advisory committees.  Among the appointments announced yesterday were two to the Holocaust Memorial Council-- Grant Harris and Andrew Weinstein.

Morocco Implementing Burqa Ban

According to UPI, in Morocco this week the government began to give notices to businesses that they must stop making and selling burqas. Government officials say the ban stems from instances in which criminals have used burqas to disguise themselves during robberies. Others however suggest that the ban of the head-to-toe garment is aimed at conservative Muslims in the country. [Thanks to Scott Mange for the lead.]

3rd Circuit: Church Welcome Sign Does Not Violate Establishment Clause

In Tearpock-Martini v. Shickshinny Borough, (3d Cir, Jan. 4, 2017), the U.S. 3rd Circuit Court of Appeals rejected an Establishment Clause challenge to a church sign put up by a Pennsylvania town on a right-of-way near plaintiff's home.  The sign depicts a cross and a Bible and reads "Bible Baptist Church Welcomes You!", and has an arrow pointing toward the church.  The court concluded that plaintiff failed to show that the Borough treated the Church more favorably than others.

Suit By FLDS Members Against Warren Jeffs' Former Lawyers Is Dismissed

In Bistline v. Jeffs, (D UT, Jan. 11, 2017), a Utah federal district court dismissed a suit that had been brought by former members of the FLDS Church against the law firm of  Snow Christensen & Martineau and one of its attorneys.  The suit claimed that the attorneys through amending and reinstating the United Effort Plan Trust gave Warren Jeffs the ability to impose his control over assets and property and oppress FLDS members.   The court dismissed malpractice, breach of fiduciary duty, fraud, negligent misrepresentation, civil conspiracy and civil RICO claims on statute of limitations grounds, except as to one plaintiff whose claims were dismissed as inadequately pleaded. Finally the court dismissed claims under the Trafficking Victims Protection Reauthorization Act, holding in part:

Plaintiffs suggest that Defendants are nonetheless liable because Defendants drafted the Trust documents that made Jeffs’ revelations guiding tenets in how the Trust was managed. Plaintiffs’ theory would make attorneys vicariously liable for the acts of a client in the mismanagement of a trust simply because the attorneys prepared documents giving the client discretion in how the trust was managed. This theory is not sufficient to state a claim under 18 U.S.C. § 1589(a)....

Plaintiffs theorize that because one of the reinstated Trust’s purposes was to further FLDS doctrines, and because some FLDS doctrines are illegal, the drafters of the Trust furthered illegal acts. This theory is not sufficient to support Plaintiffs’ claim that Defendants abused a legal process under 18 U.S.C. §1589(a)(3). The Trust’s provisions and the authority it gives are centered on the distribution of property in a way that would meet the just wants and needs of the FLDS community. Plaintiffs cite no authority for the proposition that allowing a client to distribute trust property on the basis of religious principles is an abuse of a legal process.

KETV News reports on the decision.

Priest Sues Diocese Claiming Retaliation For Cooperating With Law Enforcement

AP reported yesterday that a Catholic priest in Palm Beach County, Florida has sued his former diocese alleging that he was driven out of his position in retaliation for his contacting law enforcement authorities to report another priest who had shown sexually explicit photos of young boys to a 14-year old boy. Plaintiff Rev. John Gallagher, who had become head priest of Holy Name of Jesus parish, says that after he wrote Church officials accusing Palm Beach Diocese officials of trying to cover up the case, Bishop Gerald Barbarito drove him out by turning the Spanish-speaking portion of the parish against him. Barbarito also had diocese priests read a statement at all Masses saying that Gallagher was spreading falsehoods.