Judicial Ethics Complaint Filed Over Judge's Gift of Bible To Convicted Murder Defendant

On Oct. 3, the Freedom From Religion Foundation filed a complaint with the Texas State Commission on Judicial Conduct (full text) asking it to investigate the actions of state trial judge Tammy Kemp at the widely covered murder trial of Former Dallas Police Officer Amber Guyger.  The complaint states in part:

We write to raise your awareness of Judge Kemp’s actions at the close of the trial — during which she gifted a Christian bible, instructing the convicted criminal on how to read the bible and which passages to pay attention to, and witnessing to that convicted murderer. These proselytizing actions overstepped judicial authority, were inappropriate and were unconstitutional....

We understand that it was an emotional moment, particularly when the victim’s brother, Brandt Jean, publicly forgave and hugged Guyger. It is perfectly acceptable for private citizens to express their religious beliefs in court, but the rules are different for those acting in a governmental role. We, too, believe our criminal justice system needs more compassion from judges and prosecutors. But here, compassion crossed the line into coercion. And there can be few relationships more coercive than a sentencing judge in a criminal trial and a citizen accused and convicted of a crime.

FFRF issued a press release announcing the filing of the complaint.

Trial Judge's Alleged Anti-Jewish Bias Leads To Stay of Execution

In Ex parte Halprin, (TX Ct. Crim. App., Oct. 4, 2019), the Texas' Court of Criminal Appeals stayed the execution of a Jewish inmate who claims that his trial judge was biased against him. Petitioner claims that the judge regularly used racist language and antisemitic slurs. Plaintiff's Application for a Writ of Habeas Corpus contends:

The ... claim presents newly uncovered evidence that trial judge Vickers Cunningham referred to Mr. Halprin as a “goddamn kike” and “fuckin’ Jew,” and to his Latino co-defendants as “wetbacks,” when the judge bragged about his role in convicting and sentencing to death the Jewish and Latino members of the Texas 7. The evidence of Judge Cunningham’s bias comes primarily from first-hand accounts of disinterested witnesses to his prejudiced statements... and Judge Cunningham’s lifelong association with racist and anti-Semitic role models....

The court remanded the case for determination if petitioner's due process and free exercise rights were violated. Courthouse News Service reports on the decision.

Tampa Conversion Therapy Ban Invalidated On Preemption Grounds

In Vazzo v. City of Tampa, (MD FL, Oct. 4, 2019), a Florida federal district court invalidated a Tampa city ordinance barring licensed psychotherapists and counselors from practicing sexual orientation change efforts on minors. The court avoided the significant constitutional issues posed by the conversion therapy ban, and instead held:

The City Ordinance is preempted by the comprehensive Florida regulatory scheme for healthcare regulation and discipline. Accordingly, the Court strikes the Ordinance under the implied preemption doctrine and grants the Plaintiffs’ motion for summary judgment.

(See prior related posting.) CBS12 reports on the decision.

Court Refuses To Enforce Jewish Marriage Contract Provision

In Tilsen v. Benson, 2019 Conn. Super. LEXIS 2475 (CT Super. Ct., Sept. 11, 2019), a Connecticut trial court opinion that has just become available on LEXIS, the court rejected plaintiff's argument that it could constitutionally apply neutral principles of law to enforce a provision in a ketubah (Jewish marriage contract) as if it were a pre-nuptial agreement. According to the court, the ketubah provided that any divorce would be "according to Torah law."  The husband argued that this means there should be a 50/50 division of property with no obligation for continuing alimony payments. In denying plaintiff's motion to enforce the ketubah, the court said in part:

To educate the court about the parties' chosen law, the plaintiff submitted the affidavit of a rabbi ... describing his understanding of Torah law as it pertains to alimony and property division. The defendant also submitted the affidavit of a rabbi. However, the defendant's rabbinical expert disagrees with the plaintiff's rabbinical expert.

It is clear, then, that enforcement of the "Torah law" provision in the Ketubah would require the court to choose between competing interpretations of Jewish law. But resolving such a dispute is precisely what the neutral principles approach forbids a court to do. The first amendment does not permit courts to resolve disputes over the meaning and interpretation of the Torah-or the Koran, the New Testament or any other religious text....

EEOC Sues Over Firing of Jehovah's Witness Employee

The EEOC announced this week that it has filed suit in a New York federal district court against Pedidatrics 2000 for religious discrimination in firing a Jehovah's Witness employee.  When the employee requested not to attend a December holiday party because it would violate her religious practices, she was fired by the health care company's owner who texted her: "[W]e can't tolerate religious privileges from anyone." JD Supra reports on the lawsuit.

Supreme Court Grants Certiorari On Louisiana Abortion Law Restriction

The U.S. Supreme Court today agreed to hear appeals involving the constitutionality of Louisiana's abortion law.  The Louisiana Unsafe Abortion Protection Act requires any abortion provider to have admitting privileges at a hospital within 30 miles of the location where abortions are performed. The cases are June Medical Services LLC v. Gee, (Docket No. 18-1323, cert. granted 10/4/2019), and Gee v. June Medical Services, LLC, (Docket No. 18-1460, cert. granted 10/4/2019). (Order list).  In March 2016, the U.S. Supreme Court summarily upheld a preliminary injunction preventing the Act from going into effect. (See prior posting.) In September 2018, the U.S. 5th Circuit Court of Appeals upheld the statute. (Full text of opinion.) In January 2019, the full 5th Circuit, by a vote of 6-9, denied en banc review. (Full text.) Plaintiff appealed the substantive holding to the Supreme Court. (SCOTUSblog case page). The state cross-appealed the grant of standing to plaintiffs. (SCOTUSblog case page). NPR reports on the grant of certiorari.

Northern Ireland's Abortion Restrictions Violate European Human Rights Convention

Yesterday, the High Court in Northern Ireland held that Northern Ireland's abortion law is incompatible with Article 8 of the European Convention on Human Rights insofar as it bars abortions in cases of fatal fetal abnormality. As explained in a Summary of Judgment issued by the court:

In June 2018, the UK Supreme Court ... dismissed an appeal by the Northern Ireland Human Rights Commission... over the legality of the abortion laws in Northern Ireland. A termination is only permitted if a woman’s life is at risk or if there is a risk of permanent and serious damage to her mental or physical health.... The majority of the UKSC held that the abortion law in Northern Ireland was incompatible with Article 8 ECHR [European Convention on Human Rights] in cases of FFA, rape and incest in that it denied women in these situations a lawful termination of their pregnancies for those who wish for it but dismissed the appeal, however, on the procedural issue that the NIHRC did not have the standing to bring the appeal....

Mrs Justice Keegan said she intended to follow the ruling of the UKSC that the law in Northern Ireland is incompatible with human rights in cases of FFA. She declined to follow a course which involved her effectively reopening the arguments already made and decided in relation to Article 8 incompatibility by the UKSC. The judge commented that the decision on substantive compatibility issues was intended by the UKSC to have persuasive force and that any matters of contention in respect of that decision should be corrected by the UKSC itself or by the European Court of Human Rights (“ECtHR”).

A full text of the decision is not yet posted online. The Guardian reports on the decision.

New Survey On Religious Activity In Public Schools

Pew Research Center has released a new survey titled For a Lot of American Teens, Religion Is a Regular Part of the Public School Day. (Full text; Summary)

The survey finds that about four-in-ten teens who attend public schools say they commonly (either “often” or “sometimes”) see other students praying before sporting events at school. This includes about half of teenage public schoolers who live in the South, where students are more likely than those in other regions to witness and partake in various religious expressions at school.

In addition, roughly half of U.S. teens who attend public school say they commonly see other students in their school wearing religious clothing (such as an Islamic headscarf) or jewelry with religious symbols (such as a necklace with a Christian cross or a Jewish Star of David).

About a quarter of teens who attend public schools say they often or sometimes see students invite other students to religious youth groups or worship services. About one-in-six (16%) often or sometimes see other students praying before lunch in their public school. And 8% report that they commonly see other teenagers reading religious scripture outside of class during the school day.....

... 8% of public school students say they have ever had a teacher lead their class in prayer – an action that the courts have ruled is a violation of the Establishment Clause of the Constitution.1 An identical share (8%) say they have had a teacher read from the Bible as an example of literature, which the courts have said is fine.

Court Refuses To Dismiss Challenge To Nativity Scene

In Woodring v. Jackson County, Indiana, (SD IN, Sept. 30, 2019), an Indiana federal district court refused to dismiss an Establishment Clause challenge to a nativity scene that is placed on the Jackson County courthouse lawn each December.  The court said in part:

The Court has no doubt that a lone nativity scene of this size on prominent display on government property would be one of those nativity scenes that gives a reasonable viewer the impression of religious endorsement. Here, however, the nativity scene is not on its own. It is accompanied by two other arguably secular symbols of Christmas: Santa Claus and a group of Christmas carolers.

Nevertheless, two facts alleged in Woodring’s Complaint persuade the Court that this nativity scene would give a reasonable observer the impression that the government is endorsing a religion. The first of those facts is the geography of the display. According to the Complaint, Santa and the carolers are placed “to the far side of the display, away from the side of the sidewalk where the crèche is located.” .... 

That brings the Court to the second decisive fact. The history of this display is that, for many years, it was only a nativity scene. But just recently, after a complaint from the Freedom from Religion Foundation, Jackson County added some secular symbols as a palliative.

Seymour Indiana Tribune reports on the decision.

Lawsuit Claims Deputy Coerced Driver To Be Baptized

The Chattanooga Times Free Press reports on an unusual lawsuit filed this week by a woman against two Hamilton County (TN) sheriff's deputies in a Tennessee state trial court.  The lawsuit, asking for $11 million in damages, alleges that Deputy Daniel Wilkey initiated an unjustified traffic stop of plaintiff, and then conducted an intrusive pat down search of her for methamphetamine.  He discovered only a marijuana cigarette butt. Then, according to the paper:

After searching the woman's vehicle, he asked her if she had ever been "saved" and whether she believed in Jesus Christ, the lawsuit states. He told her that God was "talking to him during the vehicle search" and that he "felt the Lord wanted him to baptize [her]."

Wilkey then told her to go inside the home she was visiting and grab two towels for a baptism.... He said if she let him baptize her, he would issue her only a criminal citation for the possession of marijuana.....

When the woman returned outside, Wilkey told her to drive her own vehicle and follow him..... [T]hey eventually arrived at a boat ramp at Soddy Lake.... At that point, another deputy — Jacob Goforth — arrived.... Wilkey told the woman that Goforth was there because, "in order for a baptism to be valid, a witness must 'attest' to the ritual."

Wilkey then "stripped nearly naked".... He then led her into nearly waist-deep water, placed one hand on her back and the other on her breasts and completely submerged her under the water....

Pompeo Speaks At Vatican Symposium On Faith-Based Organizations

Secretary of State Mike Pompeo spoke yesterday (full text and video of remarks) in the Vatican at a symposium titled Pathways to Achieving Human Dignity: Partnering with Faith-Based Organizations. The event was co-sponsored by the Holy See’s Secretariat of State and the U.S. Embassy to the Holy See. (Background on event). In his remarks, Secretary Pompeo particularly highlighted the persecution of Uighurs in China, but called out a number of other nations as well, saying in part:

We must recognize the roots of religious repression.  Authoritarian regimes and autocrats will never accept a power higher than their own.  And that causes all sorts of assaults on human dignity.

We must exercise our moral voice to confront them.

Chabad House's Suit Against Zoning Officials Is Dismissed

In Friends of Lubavitch v. Baltimore County, Maryland, (D MD, Sept. 30, 2019), a Maryland federal district court dismissed a suit in which a Chabad House serving students at Towson University and Goucher College challenged a state court order requiring it to raze the expansion of its building which was constructed in violation of zoning rules and a deed restriction.  Plaintiff claimed that implementation of the county's land use rules infringed its rights under RLUIPA and the 1st and 14th Amendments.

Cert. Filed By Little Sisters of the Poor Over Contraceptive Mandate Exemption

A petition for certiorari (full text) was filed yesterday, captioned Little Sisters of the Poor Saints Peter and Paul Home v. Commonwealth of Pennsylvania, (U.S. Sup. Ct., filed 10/1/2019). The petition seeks review of the 3rd Circuit's decision in Commonwealth of Pennsylvania v. President of the United States of America which affirmed a district court's entry of a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding the scope of the exemptions under the Affordable Care Act for employers having religious or moral objections to contraceptive coverage. (See prior posting.) Little Sisters of the Poor who are seeking Supreme Court review were intervenors in the 3rd Circuit case. (See prior posting.) The petition for review sets out the questions presented:

1. Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court?

2. Whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage?

Becket issued a press release announcing the filing of the cert. petition.

Courts Rule On Virginia and Georgia Abortion Statutes

In Falls Church Medical Center, LLC v. Oliver, (ED VA, Sept. 30, 2019), a Virginia federal district court upheld some parts of Virginia's statute regulating abortions, but invalidated other parts, saying in part:

[E]nforcement of the ... Guidelines with respect to first trimester abortion procedures, and the requirement that non-surgical second trimester abortion procedures-up to the point of viability-be performed in outpatient surgical hospitals, present a substantial obstacle to women seeking an abortion and impose an undue burden on that right, in violation of the Due Process Clause of the Fourteenth Amendment.... On the other hand, evidence of the heightened potential for complications warrant the requirement that surgical abortion procedures during the second trimester should be performed in a hospital setting.

... [B]ased on a seamless line of authority, this Court cannot conclude that the Physician-Only law ... is either unduly burdensome or improvident when weighed against the State's well-recognized responsibility for ensuring safe abortion care.

... Plaintiffs have failed to demonstrate by a preponderance of the evidence that ... requiring a mandatory ultrasound and waiting period, amount to a substantial obstacle preventing a woman's access to abortion care in Virginia. Plaintiffs have further failed to show that the statute's informed consent requirement imposes an undue burden.

Undoubtedly, the requirement that abortion clinics submit to biennial inspection ... is burdensome for clinic personnel. However, it is no more burdensome than inspection requirements for other medical facilities that provide similar services....

AP reports on the decision.

In SisterSong Women of Color Reproductive Justice Collective v. Kemp, (ND GA, Oct. 1, 2019), a Georgia federal district court issued a preliminary injunction against enforcement of Georgia's statute that prohibits abortions after detection of a fetal heartbeat.  The court said in part:

Plaintiffs have therefore met their burden of showing that H.B. 481, in prohibiting abortions after a fetal heartbeat is detectable, would operate as “a substantial obstacle to a woman’s choice to undergo an abortion” in “a large fraction” of relevant cases.....

Furthermore, as discussed above in detail, the Supreme Court has repeatedly and unequivocally held that a State may not ban abortion prior to viability.

Center for Reproductive Rights issued a press release announcing the decision.

Christian Student Group Can Retain Selective Leadership Requirements

In Intervarsity Christian Fellowship USA v. University of Iowa, (SD IA, Sept. 27, 2019), an Iowa federal district court held that the University of Iowa and three of its administrators violated the free speech and free exercise rights of a Christian student organization when it revoked its registered student organization status. The University's action was taken because Intervarsity Christian Fellowship required its leaders to affirm the groups Christian statement of faith. The court said in part:

by granting the exceptions it has to the Human Rights Policy and refusing to make a similar exception for InterVarsity, the University has made a value judgment that its secular reasons for deviating from the Human Rights Policy are more important than InterVarsity’s religious reasons for the deviation it seeks. Because this reflects an impermissible “value judgment in favor of secular motivations,” ... the University’s decision to deregister InterVarsity is subject to strict scrutiny.

Becket issued a press release announcing the decision.

Fired Teacher Sues Saying Requirements On Pronouns For Transgender Students Violated His Rights

A Virginia high school teacher filed suit yesterday in a Virginia state trial court challenging his firing for refusing to use male pronouns to refer to a transgender student in his French class.  The complaint (full text) in Vlaming v. West Point School Board, (VA Cir. Ct., filed 10/1-/2019), claims that the teacher's free speech and free exercise rights, as well as other rights, were violated. Plaintiff contends that the case is

about whether the government may force [plaintiff] to express ideas about human nature, unrelated to the school's curriculum, that he believes are false.

Plaintiff also contends that

[his] views and expression related to gender identity, would require [him] to violate his sincerely held religious beliefs.

Washington Post reports on the lawsuit.

President Trump Sends Rosh Hashanah Greetings

The White House today issued a Presidential Statement on Rosh Hashanah (full text). The holiday begins this evening.  The statement says in part:

...[W]e are all reminded of the virtues we can incorporate into our lives to better us as a Nation—kindness, compassion, and love. Together, with devotion to these ideals, we can form more sincere bonds with people of all faiths to help spread peace and prosperity in the United States and abroad.

Melania and I pray that those celebrating Rosh Hashanah build a more meaningful relationship with God throughout the High Holy Days.  May the Almighty bless you all.

Recent Articles of Interest

From SSRN:

• Patrick Parkinson, Is Gender Identity Discrimination a Religious Freedom Issue?, (September 6, 2019).
• Robin Fretwell Wilson, Family Law Isolationism and 'Church, State, and Family', (Forthcoming, Emory Journal of Law and Religion).
• Nicholas Aroney, Religious Discrimination and Religious Freedom: An Evaluation of the Exposure Draft of the Australian Religious Discrimination Bill 2019, (September 17, 2019).
• Steven Douglas Smith, One Step Enough, (San Diego Legal Studies Paper No. 19-414 (2019)).
• Sean T. Murphy, Philippines RH Act: Rx for Controversy Diatribe by Philippines’ President Turns Back the Clock, (September 16, 2019).
• James Rooney, International Human Rights as a Source of Unenumerated Rights: Lessons from the Natural Law, (September 5, 2019).
• Elias Al-Hihi & Asem Khalil, International Law within the Palestinian Legal System: A Call for Granting Human Rights Treaties a Special Constitutional Status, (September 13, 2019).
• Dale Carpenter, Born in Dissent: Free Speech and Gay Rights, (72 SMU Law Review 375 (2019)).
• Maryam Saeed, Challenges of Islamic Insurance (Takaful) Globally, (COMSATS Journal of Islamic Finance, 2019).
• Morr Link & Yoram Haftel, Islamic Legal Tradition and the Choice of Investment Arbitration Forums, (The Review of International Political Economy, Forthcoming).

Court In Indian State Bans Animal Sacrifice

In Bhattacharjee v. State of  Tripura, (Tripura High Ct., Sept. 27, 2019), a 2-judge panel of the High Court in a state in northeast India prohibited the sacrifice of animals or birds in any temples in the state. In its 72-page opinion, the court held that only practices which are an "essential and integral part of religion" are protected by Art. 25(1) of India's Constitution.  The court said in part:

[I]t cannot be said that the practice of animal sacrifice is essential to the core of the tenets rituals, ceremonies, ceremonies, beliefs observances or the practice of religion within the temple of Mata Tripureswari or other temples managed by the State within the State of Tripura....

In the instant case, sacrifice of animal in temples is not done out of necessity but merely on the unsighted conviction and credence that such activity would please the deity, who in return would bestow them with blessings and wellbeing. ...

The ban on sacrifice of animal ... does not infringe the fundamental right as enshrined in Part III under Art 25(1) of the constitution for the reason that such practice is contrary to constitutional morality and health....

The animals have basic rights and we have to recognise and protect them. The animal and bird breath like us. They are also creation of God. They have also a right to live in harmony with human beings and the nature.... 

The Leaflet discusses the decision at length.

DOJ Backs Catholic Archdiocese In Firing of Teacher For Same-Sex Marriage

On Friday, the Department of Justice filed a Statement of Interest (full text) in an Indiana state trial court in Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Super Ct., 9/27/2019).  In the suit, a teacher in a Catholic school in Indianapolis claims that the Archdiocese wrongly interfered with his contractual relationship with the school when the Archdiocese ordered the school to dismiss the teacher because of his public same-sex marriage. (See prior posting.)  DOJ argued that the First Amendment requires the court to dismiss the teacher's complaint:

The First Amendment bars this action for at least two independent reasons. First, Plaintiff’s action seeks to penalize an indisputably expressive association—the Archdiocese—for deciding which schools may identify as Catholic under its associational umbrella.....

Second, Plaintiff seeks to embroil this Court in a dispute over the Archdiocese’s application of Catholic law, in violation of the church-autonomy doctrine.

A Justice Department press release announced its filing with the court.