In Split Decision, Montana High Court Rejects Broad Challenge To Unequal Treatment Of Same-Sex Couples

In a 4-3 decision in Donaldson v. Montana, (MT Sup. Ct., Dec. 17, 2012), the Montana Supreme Court rejected a suit by couples in a committed same-sex relationship challenging their inability under Montana law to obtain the same protections and benefits available to heterosexual couples who can marry. The majority said in part:

In  the  present  case ... Plaintiffs  do  not  seek  a declaration that any particular statute is unconstitutional or that its implementation should be enjoined.  Rather, Plaintiffs seek a general declaration of their rights and seek orders enjoining the State to provide them a “legal status and statutory structure” that protects their rights.... Broadly  determining  the  constitutionality  of  a “statutory  scheme”  that  may,  according  to  Plaintiffs,  involve  hundreds  of  separate statutes, is contrary to established jurisprudence.

The majority held that plaintiffs could file an amended complaint more narrowly challenging specific laws.

Justice Nelson filed a strong 108-page dissent, saying in part:

The problem ... is that this Court has chosen to punt.  And in simply kicking  the  can  down  the  road,  the  Court  has  denied  Plaintiffs  the  dignity,  respect, fairness, justice, and equality to which they are entitled—foremost as human beings, and legally under Montana’s Constitution.... Sexual orientation is a big deal to those who demand that their personal religious beliefs, their Bible’s  abhorrence,  and their partisan ideology  concerning homosexuality must apply to everyone else, across the board, no exceptions.  But future generations—indeed, most young people today—will not fear, much less honor, the sexual-orientation taboo.... [T]he taboo will die because the scare tactics, propaganda, and misinformation of those who would hang on to the maledictions and stereotypes have proven to be so patently false, malicious, and absurd.  Most decent people  just hate  being  lied  to.

As part of his dissent, Justice Nelson concluded that Montana's "Marriage Amendment,"-- the provision in the state constitution barring the recognition of same-sex marriage-- is invalid:

Montana’s  Marriage  Amendment  is  an  unconstitutional  attempt  to  enforce  a sectarian belief (held by some) through Montana’s secular law.... Indeed, the Marriage Amendment is undisputedly grounded in religious doctrine.  That much is apparent not only from the federal district court’s findings, but particularly from the fulminations of numerous religious organizations in the present case, led by the Montana  Catholic  Conference,  against  the  prospect  that  gay,  lesbian,  and  bisexual Montanans  might  enjoy  some  measure  of  legal  protection  for  their  relationships.   If homosexuality and same-sex relationships were not a religious issue, it is highly doubtful that any of these amici would be so actively involved in this case.

Justices Cotter and Wheat filed a brief separate opinion concurring with most of Justice Nelson's dissent, but refusing to join the portion of the dissent dealing with the Marriage Amendment because plaintiffs did not challenge that amendment. They also disagreed with certain other language in Justice Nelson's opinion.

The Montana Supreme Court also published a Synopsis of the Case.  AP reports on the decision. [Thanks to Alliance Alert for the lead.]

Pennsylvania Settles Suit By Rabbi Challenging Funeral Director Law

AP reports  that the Pennsylvania Board of Funeral Directors has settled a federal lawsuit filed against it and other state officials by a Pittsburgh rabbi challenging the Board's requirement to use a licensed funeral director even when a funeral is supervised by a religious authority and there is no embalming or fee-for-service. (See prior posting.) Under the settlement agreement filed with the court yesterday, the state will not apply the Funeral Director Law to clergy and others carrying out their religious functions and beliefs, so long as the person does not advertise as a funeral director, engage commercially in the funeral business or perform embalming.

University's Firing Of HR-VP Over Remarks About Gays Is Upheld By 6th Circuit

In Dixon v. University of Toledo, (6th Cir., Dec. 17, 2012), the U.S. 6th Circuit Court of Appeals held that the University of Toledo-- part of the state University system in Ohio-- did not violate the 1st Amendment free expression rights of its Associate Vice President for Human Resources when it terminated her because of an op-ed column she wrote expressing her views about homosexuality.  Responding to an editorial in the Toledo Free Press that implicitly compared the gay rights movement to the civil-rights movement, UT Associate VP Crystal Dixon, expressing her views as a Christian, African-American woman, argued that homosexuality is not an immutable characteristic.  She was fired because the views she expressed contradicted University policies, procedures and the core values of its strategic plan. (See prior posting.) The 6th Circuit held that a policy-making official "who writes publicly against the very policies that her government employer charges her with creating, promoting, and enforcing" is not engaging in speech that is protected by the 1st Amendment.  According to the court, Dixon's op-ed implicitly suggests that LGBT employees and students are not entitled to civil rights protections.  AP reports on the decision. See prior related posting.) [Thanks to Alliance Alert for the lead.]

Volunteer Barred From Working With Diocese Youth Sues For Defamation

The Fort Worth Star-Telegram reports on a defamation lawsuit filed in state court last week against the Roman Catholic Diocese of Fort Worth and various Diocese officials by Joseph Jordan who was barred from serving as a volunteer with children or young people in any Diocese parish or school.  The complaint (full text) in Jordan v. Roman Catholic Diocese of Fort Worth, (TX Dist. Ct., filed 12/10/2012), alleges that Jordan and his wife have worked with youth in Catholic activities for over 20 years.  Jordan was also active with the Knights of Columbus. In July 2012, Jordan was summoned to the office of the Diocese Vicar General and read him a letter accusing him of "boundary violations" involving youth and young adults in the last few weeks. He was summarily barred from further serving as a volunteer, and the accusatory letter and an e-mail memorandum were published and circulated widely throughout the Diocese. The complaint alleges:

The language in these letters and emails individually and in combination created a false  and defamatory meaning or impression, either by omitting material facts or misleadingly juxtaposing events.  They were intended to  distort the  reader's  perception and they created  a substantially false  impression of Plaintiff....  Clearly,  an  ordinary reader would interpret the defamatory  communications ... as accusations of Plaintiff being a child molester and/or pedophile and/or sexual  abuser,  particularly when  considered  along  with  the  circumstance  of the  Fort  Worth Diocese being the subject of numerous lawsuits and enormous publicity arising from allegations of sexual abuse by Catholic priests and cover-ups by the leaders of the Diocese.... 

Moorish Science Adherent Arrested After Claiming Change of Identity

Yesterday's Tampa Bay Times reports on the jailing in late November in Pasco County Florida of Shanita Marie Burden on charges of driving with a counterfeit car tag, driving without a Florida license (her South Carolina license was suspended), and giving a false name to police. Burden insists she is Zuri Akila Betiti Matawala Zurj-Bey, a "grand sheikess" in the Moorish Temple of Science of the World. She insists that black people are not subject to the United States government, but instead are Moorish. In September, she was stopped when she was found driving a car with license tags reading : "Moorish American Republic 070117-004." She claimed that a piece of paper with a fuzzy photo from the Moorish Divine National Movement of the World issued to a Zuri Akila Betiti Matawala Zurj-Bey was her drivers' license. The woman claims she was born of a religious conversion last year and that she declared her former self, Shanita Burden, dead. She then made herself the personal representative for Burden's estate and filed court papers declaring this. At a Nov. 19 arraignment on the traffic charges, Bey, identified herself only as "flesh and blood."  She told Circuit Judge Susan Gardner that she was appearing as the personal representative of Burden, but the court ruled that since she wan not an attorney, she could not do so.  The court then issued a warrant against Burden for failing to appear in court. She was arrested eight days later when she attempted to file papers in the clerk of court's office ordering Judge Susan Gardner not to issue any more unlawful warrants against Burden.

Recent Articles of Interest

From SSRN:

• Mark D. Rosen, The Educational Autonomy of Perfectionist Religious Groups in a Liberal State, (1 Journal of Law, Religion & State 16, 2012).
• Thomas G. Field, Crimes Involving Intangible Property, (December 11, 2012).
• Andrew M. Koppelman, The Story of Welsh v. United States: Elliott Welsh's Two Religious Tests, (Richard Garnett and Andrew Koppelman, eds., First Amendment Stories, Foundation Press, 2011).
• Andrew M. Koppelman, Defending American Religious Neutrality, (Richard Garnett and Andrew Koppelman, eds., First Amendment Stories, Foundation Press, October 2011).
• Chuck Henson, Title VII Works – That's Why We Don't Like It, (2 University of Miami Race & Social Justice Law Review 41, 2012).
• Peter Nicolas and Mike Strong, The Geography of Love: Same-Sex Marriage & Relationship Recognition in America (The Story in Maps) Third Edition, (December 12, 2012).
• Susannah William Pollvogt, Forgetting Romer, (Stanford Law Review Online, 2012).
• Andrew Kim, 'Standing' in the Way of Equality? The Myth of Proponent Standing and the Jurisdictional Error in Perry v. Brown, (American University Law Review, Vol. 61, No. 6, 2012).

From SmartCILP and elsewhere:

• Elizabeth Sepper, Taking Conscience Seriously, 98 Virginia Law Review 1501-1575 (2012).
• Jacob Turner, Towards A Synthesis Between Islamic and Western Jus in Bello, 21 Journal of Transnational Law & Policy 165-206 (2011-2012).
• Church & State: Blurring the Lines, Wisconsin Lawyer, Dec. 2012.
• Steven H. Sholk, A Guide To Election Year Activities of Section 501(c)(3) Organizations (2012 edition), PLI Course Handbook, Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings, Nov. 2012.

Utah's New Attorney General Outlines His Policies On Polygamy Prosecutions

According to yesterday's Salt Lake Tribune, Utah's newly-elected attorney general, John Swallow says he will continue the policy of his predecessor Mark Shurtleff and will not bring criminal charges against consenting adults in plural marriages if they have not violated any law other than the state's polygamy ban. It is estimated that 38,000 people live in polygamous communities in Utah. Swallow said that he however will "do everything we can to uncover any type of abusive practice going on in any community." He will continue to defend the constitutionality of Utah's bigamy statute in an ongoing challenge to it by members of an openly polygamous family (subjects of the television show Sister Wives).  (See prior posting.) Swallow will also seek an end to the drawn out litigation seeking to reform the United Effort Plan Trust that holds the property of the polygamous FLDS Church. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Schreane v. Seana, (3d Cir., Dec. 13, 2012), the 3rd Circuit upheld the dismissal of a claim by an inmate that his 1st Amendment free exercise rights were violated when his religious oils were lost, misplaced, or
stolen during his confinement in the Special Handling Unit.

In Rentz v. Borem, 2012 U.S. Dist. LEXIS 175729 (SD CA, Dec. 11, 2012), a California federal district court permitted an inmate to proceed with his 1st Amendment free exercise claim that a correctional officer confiscated his prayer oil.

In  Adeyemi v. Murphy, 2012 U.S. Dist. LEXIS 175081 (D CT, Dec. 11, 2012), a Connecticut federal district court held that an inmate's claims that his religious pamphlets and newspapers, along with other specified documents, were confiscated did not allege a violation of his free exercise of RLUIPA rights.

In Mitchell v. New York State Department of Correctional Services, 2012 U.S. Dist. LEXIS 176209 (WD NY, Dec. 12, 2012), a New York federal district court dismissed claims by a Nation of Islam inmate that the Department of Corrections failed to accommodate his religious diet, that he was denied two Eid festival meals, and that inmates are are allowed to attend services of a religion in which they are not registered only three times per year.

In Deaton v. Arkansas Department of Corrections, 2012 U.S. Dist. LEXIS 174598 (ED AR, Dec. 10, 2012), an Arkansas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 174602, Oct. 15, 2012) and dismissed claims by an inmate who refused to cut his hair for religious reasons. Plaintiff contended that the Department of Corrections' grooming policy violates his rights under the free exercise clause and RLUIPA.

In Lomax v. Straughn, 2012 U.S. Dist. LEXIS 175910 (ED AR, Dec. 12, 2012), an Arkansas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 175924, Oct. 16, 2012) and dismissed an inmate's claim that his free exercise rights were violated when, while he was being held for 3 days on behavior control, he had no access to religious items.

Claim Against Archdiocese By Bookkeeper Who Exposed Abusive Priest's Presence Is Dismissed On 1st Amendment Grounds

In Weiter v. Kurtz, (KY App., Dec. 14, 2012), the Court of Appeals of Kentucky dismissed a wrongful discharge claim against the Archdiocese of Louisville and other defendants by Margie Weiter, a former bookkeeper-receptionist who was fired from her position at a Louisville parish after she insisted on complaining to her supervisor and Archdiocese personnel that James Schook, a priest accused of child molestation, was being allowed to live at the parish. She also alerted parents of this fact. Additionally, the court dismissed a claim for outrage filed by Weiter and her husband (who as a child was a victim of clergy sexual abuse).  The court said in part:

Although Margie is a secular employee, her wrongful termination claim necessarily depends on matters of church governance and church administration and is therefore barred by the First Amendment.  The root of Margie’s wrongful termination claim is her disagreement with church policy.  She claims that the Archdiocese eliminated her position in retaliation for speaking out against decisions made by the Archdiocese’s governing body; i.e., where Schook should be allowed to reside pending the outcome of the investigation.  Margie’s complaint cites Archdiocese policies and procedures.  Accordingly, to adjudicate that claim, the court would be forced to decide whether the Church acted in accordance withits policies and whether those policies were appropriate matters that the First Amendment commits solely to the Church.  The trial court properly held Margie’s claims for outrage and wrongful termination were barred by the First Amendment.

The court also rejected on the merits plaintiff's claim for wrongful discharge.  Judge Moore concurred only in the result.  (See prior related posting.)

President Obama Hosts White House Hanukkah Reception

On Thursday evening, President Obama and First Lady Michelle Obama hosted a Hanukkah reception in the Grand Foyer of the White House. Among those present were a number of members of Congress, two Supreme Court justices,  Cabinet members, and the Israeli ambassador to the United States. The West Point Jewish Chapel Cadet Choir sang. Rabbi Larry Bazer, Joint Forces Chaplain for the Massachusetts National Guard, lit a 90-year old menorah that recently survived Hurricane Sandy in a damaged Long Beach, New York synagogue.  In his remarks (full text), the President said in part: "To this day, Jews around the world honor the Maccabees' everlasting hope that light will overcome the darkness, that goodness will overcome evil, and that faith can accomplish miracles."

Preliminary Injunction Denied In Business' Challenge To Contraceptive Coverage Mandate

In Korte v. United States Department of Health and Human Services, (SD IL, Dec. 14, 2012), an Illinois federal district court denied a preliminary injunction sought by a for-profit construction business and its controlling shareholders in a free exercise challenge to the contraceptive coverage mandate under the Affordable Care Act.  The court held that the exercise of religion is a purely personal right; corporations cannot exercise religion even though they may advance a belief system.  However, the court held that because the religious and financial interests of the the individual controlling shareholders and the family-owned S corporation involved in the case are virtually indistinguishable, the shareholders satisfy the third-party standing test and can present the Free Exercise Clause and RFRA claims. Moving to the merits, the court rejected plaintiffs' 1st Amendment claim, finding it likely that the mandate is a neutral law of general applicability that only incidentally burdens free exercise.  Moving to plaintiffs' claim under the Religious Freedom Restoration Act, the court concluded that the mandate does not create a "substantial burden" on plaintiffs' free exercise rights:

While neither dispositive nor determinative, the Court again notes the Plaintiffs’current health insurance plan covers the very preventive health services  they seek to enjoin.  There is a palpable inconsistency in claiming the ACA contraception mandate substantially burdens their religious beliefs while they currently maintain the same coverage in their existing pre-ACA health plan.... 

Any inference of support for contraception stemming from complying with the neutral and generally applicable mandate is a de minimus burden. It appears that Plaintiffs’ objection presupposes that an insured will actually use the contraception coverage.  Even assuming that there is a substantial likelihood that a K&L employee will do so, at that point the connection between the government regulation and the burden upon the Kortes’ religious beliefs is too distant to constitute a substantial burden....

Business Owned By Pizza Mogul Challenges Contraceptive Coverage Mandate

Yesterday yet another lawsuit was filed by a closely-held business raising religious objections to the mandate under the Affordable Care Act that requires most health insurance policies to include contraceptive coverage.  The suit was filed by Domino's Farms Corp. and its sole stockholder, Domino's Pizza founder Thomas Monaghan, alleging that the mandate violates plaintiffs' rights under the 1st and 14th Amendments, RFRA and the Administrative Procedure Act.  The complaint (full text) in Domino's Farms Corp. v. Sebelius, (ED MI, filed 12/14/2012) sets out Monaghan's strong Catholic beliefs and his involvement with Catholic organizations, and alleges that he and  Domino’s Farms "share a common mission of conducting their business operations with integrity and  in compliance with the teachings, mission, and values of the Catholic Church." The complaint elaborates:

Based on the teachings of the Catholic Church, and  their deeply held  religious beliefs, Plaintiffs do not believe that contraception,  sterilization,  or abortion are properly understood  to constitute medicine, health care, or a means of providing for the well being of persons.   Indeed,  Plaintiffs believe these procedures involve gravely immoral practices, specifically the intentional destruction of innocent human life.

The Examiner reports on the filing of the lawsuit.

UPDATE: On Dec. 21, plaintiffs filed a motion for a temporary restraining order and a brief in support of the motion. (Full text.)

Walmart Pharmacist Sues Claiming She Was Fired For Praying With Customers

ABC News reported yesterday that a former pharmacist at a Bakersfield, California Walmart store has filed a religious discrimination suit in state court complaining that she was fired for praying for customers to be healed when they requested her to do so.  59-year old Anhue Doan says that in the particular incident that led to her firing she was merely touching a customer and talking to her.  Walmart says it has not had an opportunity to review the lawsuit, but that it makes reasonable accommodations for religious reasons.

U.N. Human Rights Panel Says France Violated Sikh Student's Religious Freedom Rights In Banning Turban

In a press release yesterday, United Sikhs reported on a decision by the United Nations Human Rights Committee holding that France violated a 17-year old Sikh student's freedom of religion protected under Art. 18 of the Covenant on Civil and Political Rights when it expelled him from school for wearing a keski (small turban).  The lycée took the action based on Art. L.141-5-1 of France's Education Code which enforces the principle of secularism (laïcité) by providing: "In public primary schools, secondary schools and lycées, the wearing of symbols or clothing by which pupils manifest their religious affiliation in a conspicuous manner is forbidden."  The U.N. decision, Communication 1852/2008 was adopted by the Human Rights Committee on Nov. 1, and published on Dec. 4, 2012. It reads in part:

for Sikhs males, wearing a keski or turban is not simply a religious symbol, but an essential component of their identity and a mandatory religious precept.... [T]he prohibition of wearing religious symbols affects only symbols and clothing which conspicuously display religious affiliation, does not extend to discreet religious symbols and the Council of State takes decisions in this regard on a case by case basis.  However, the Committee is of the view that the State party has not furnished compelling evidence that by wearing his  keski  the author would have posed a threat to the rights and freedoms of other pupils or to order at the school.... [T]he State party imposed this harmful sanction on the author, not because his personal conduct created any concrete risk, but solely because of his inclusion in a broad category of persons defined by their religious conduct....  [T]he  State party has not shown how the sacrifice of those persons’ rights is either necessary or proportionate to the benefits achieved.

(See prior related posting.)

IRS Rules Various Tribal Payments To Shamans Are Not Taxable Income

Last week, the Internal Revenue Service released a proposal for a Revenue Procedure to provide guidance on certain payments by tribal governments to tribe members. Application of the General Welfare Exclusion to Indian Tribal Government Programs That Provide Benefits to Tribal Members (Notice 2012-75) spells out certain payments that need not be included in the individual's gross income for federal income tax purposes.  Among excluded items are:

benefits provided under an Indian tribal governmental program that are items of cultural significance (not lavish or extravagant) or nominal cash honoraria provided to medicine men or women, shamans, or similar religious or spiritual officials to recognize their participation in cultural, religious, and social events (for example, pow-wows, rite of passage ceremonies, or funerals, wakes, burials, or other bereavement events).

Also excluded are reimbursements to tribal members for them to attend traditional ceremonies or learn about a Tribe's culture, history and traditions.  Also, payments a tribe makes to an Indian medicine man to use traditional practices to treat a tribal member's disease are not included as income by the tribal member receiving the treatment. AP reports on the IRS release.

Claims of 2 Abuse Victims Dismissed In Milwaukee Archdiocese Bankruptcy

In the ongoing Chapter 11 bankruptcy proceedings of the Catholic Archdiocese of Milwaukee, the court yesterday dismissed fraud claims by two sex abuse victims. Numerous claimants argue that the Archdiocese defrauded them by moving abusive priests to new assignments without warning parents of the danger. The Milwaukee Journal-Sentinel reports that in one of the dismissed claims the court held that the 6-year statute of limitations had run. In the other dismissed claim, the court found no fraud because the accused priest had not previously engaged in abuse. The Archdiocese says it will pay only those claims required by law. Abuse victims say it is at least morally wrong to attempt to dismiss large numbers of claimants. The Archdiocese says it should not have to pay where the statute of limitations has run, where abusing priests were not direct employees of the Archdiocese, and where victims have previously negotiated settlements.

Muslim Cabbie Sues Over Commission Dress Code That Bars Religious Clothing

According to yesterday's St. Louis Post Dispatch, Muslim cab driver Raja Awais Naeem has filed a religious discrimination lawsuit in state court against the city of St. Louis, its Metropolitan Taxicab Commission and Whelan Security, a private security company apparently in charge of security at the St. Louis airport.  Naeem, originally from Pakistan, wears religiously mandated clothing-- a kufi, a kurta (loose-fitting shirt) and shalwar (loose fitting pants).  This violates the Taxicab Commission's dress code that calls for a white shirt, black pants and does not permit a kufi (but does permit a baseball cap). He has been given a ticket by Whelan Security for wearing "foreign country religious dress." At other times his taxi license has been suspended and last week he was arrested and charged with trespassing. The Missouri Human Rights Commission issued Naeem a right-to-sue letter on his complaints.

University Settles Suit Brought By Christian Counseling Student Who Was Expelled

As reported by Baptist Press, earlier this week, Eastern Michigan University agreed to settle a lawsuit by a former student in its graduate counseling program who was expelled after she refused in a practicum course to counsel gay clients on same-sex relationships. The U.S. 6th Circuit last January held that the case should go to trial on the issue of whether the Christian student, Julea Ward, was ejected from the counseling program because of hostility toward her speech and faith. (See prior posting.) The University has agreed to pay Ward $75,000 and remove the expulsion from her record. No changes in the University's policies, programs or curricular requirements, however, were involved in the settlement.

Police Officer's Complaint About Attending Appreciation Day At Mosque Is Dismissed

In Fields v. City of Tulsa, (ND OK, Dec. 13, 2012), an Oklahoma federal district court rejected objections by a Christian police officer to a directive that he either attend or find volunteers to appear at a Law Enforcement Appreciation Day hosted by the Islamic Society of Tulsa. Police Captain Paul Fields, who was disciplined for refusing to comply with the directive, complained that he was being forced to attend an event at which there will be a discussion about the Muslim religion, but at which he is precluded from expressing his Christian faith. The court rejected plaintiff's free exercise claims, finding that the directive given to him was a neutral, generally applicable order. Nor did it infringe his right of expressive association, the Establishment Clause or his Equal Protection rights. The court also found that defendants had qualified immunity. Fox23 reports on the decision.

French Government To Emphasize Secularism, Combat Violent Religious Extremism

Reuters reported yesterday that President Francois Hollande's government in France will re-emphasize the policy of "laicite" (secularism) that they said was weakened under former President Nicolas Sarkozy. Hollande this week announced the creation of a new agency to track how the separation of church and state is implemented. The agency will also study ways to introduce classes on secular morality into the public schools.  At a conference on the official policy on secularism, French Interior Minister Manuel Valls said that the government's goal is "to detect and understand when an opinion turns into a potentially violent and criminal excess. The objective is to identify when it's suitable to intervene to treat what has become a religious pathology."  The government is concerned both about radical Salafi Muslims recruiting disaffected young people, and about the far-right lay Catholic movement, Civitas. The Interior Minister said the government is ready to deport radical foreign-born imams and disband radical faith-based groups that could become violent.

In Philippines, Reproductive Health Bill Passes Important Second Reading

In the Philippines today, the House of Representatives in an historic vote passed a Reproductive Health bill (HB 4244) on its important second reading. The bill which has been opposed for 14 years by  the country's Catholic bishops requires the national government to make reproductive health services, including free contraceptives, available to poor families. Inquirer News and GMA News both report on the lengthy House voting session. With several Catholic bishops in the House gallery, each representative had 3 minutes to explain his or her vote. According to Inquirer News, the country's Catholic bishops still hope to stop the bill, either before its third reading in the House, or in the conference committee with the Senate and the vote on the conference report.

Constitutionality of Washington Anti-Discrimination Exemption For Religious Non-Profits Certified To State Supreme Court

In Ockletree v. Franciscan Health System, 2012 U.S. Dist. LEXIS 175515 (WD WA, Dec. 11, 2012), a Washington federal district court certified to the Washington Supreme Court the question of whether the broad blanket exemption in the Washington Law Against Discrimination for non-profit religious organizations is constitutional under the Washington state constitution.  Under Wash. Rev. Code 49.60.040 the definition of "employer" subject to the state's anti-discrimination law excludes "any religious or sectarian organization not organized for private profit."  Here plaintiff, a security officer at a Catholic Hospital, claims he was discharged from his job on the basis of disability and race. In certifying the question, the court said:

The discrimination Ockletree claims (race and disability) is wholly unrelated to FHS' religious purpose, practice, or activity. It is not clear to this Court that WLAD's broad exemption is constitutional, at least in this context.

German Bundestag Passes Law Allowing Religious Circumcision of Boys

According to the New York Times, Germany's Bundestag yesterday passed legislation confirming the legality of religious circumcision.  The issue had been thrown into doubt after a Cologne district court last June held that parents lack the right to decide that their young sons should be circumcised for non-medical reasons. (See prior posting.) The new law, passed in the Bundestag by a vote of 434 to 100, with 46 abstentions, allows circumcisions to be carried out for religious or other reasons "in accordance with medical practice."  Specially trained members of a religious community (such as a Jewish mohel) can perform the procedure for boys 6 months old or younger.  Circumcisions on boys over 6 months old are required to be performed by a physician. In either case, both parents must consent to the procedure.

Kazakhstan Is Closing Unregistered Religious Organizations Through Court Proceedings

Last October, Kazakhstan enacted a new, more restrictive Religion Law. (See prior posting.) Under it, religious organizations had one year to register, or re-register, with the state. Forum 18 reported Tuesday that the Kazakhstan government is enforcing closure through the courts of Christian and Muslim religious institutions that have not met the registration deadline.  Some have consented to their closure in exchange for a promise that they can continue to operate as a branch of another registered community of the same faith. Others, such as the Azerbaijani Fatimai Shia Muslim Mosque in Almaty Region, the Tautan Molla Mosque in Karaganda Region. and the Light of the World Pentecostal Church in South Kazakhstan Region have been closed against their will.

New Decree Implementing Religion Law Takes Effect Jan. 1 In Vietnam

Radio Free Asia reported last month on new Decree 92 issued by the government of Vietnam on November 9. The Decree, replacing one originally issued in 2005, goes into effect January 1 to implement the Ordinance on Beliefs and Religion that covers religious practice in Vietnam. The Decree spells out procedures for registering places of worship, activities of religious organizations and clerics. The government recognizes 31 organizations representing 11 religions. However, non-recognized groups are banned. While some Buddhist groups are registered, the government does not recognize the Unified Buddhist Church of Vietnam, whose parent body in Paris issued a statement strongly criticizing the new Decree.

Mennonite-Owned Small Business Files Challenge To Contraceptive Coverage Mandate

Another small business and its owners have filed a lawsuit challenging the contraceptive coverage mandate issued under the Affordable Care Act.  The complaint (full text) in Conestoga Wood Specialties Corp. v. Sebelius, (ED PA, filed 12/4/2012), contends that applying the  moral teachings of their Mennonite faith, the owners of the cabinet and wood specialties company have concluded "that it would be sinful and immoral for them to intentionally participate in, pay for, facilitate or otherwise support any contraception with an abortifacient effect  through health insurance coverage the offer at Conestoga." The company's current health insurance plan excludes such drugs. In October of this year, the corporation's board of directors adopted a statement setting out the beliefs of the company owners on the sanctity of human life.  The suit claims violations of the 1st and 14th Amendments, RFRA and the Administrative Procedure Act. Independence Law Center issued a press release announcing the filing of the lawsuit.

New Jersey Prisons Now Allow Real Candles In Hanukkah Menorah Lighting Ceremony

In late November, the New Jersey Department of Corrections (NJDOC) issued a press release announcing a pilot program to allow state prison inmates celebrating Hanukkah to use NJDOC-approved candles in religious menorah lighting ceremonies.  Candles can be lit in a designated room by a NJDOC staff member or authorized volunteer religious leader. Inmates will be allowed to view the lighting and the burning down of the candles. Electric or battery-operated menorahs will also be permitted. According to an AP report on the policy change, in the past most prisons have been uncomfortable allowing real candles to be used. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Canadian Court Upholds Required Ethics and Religious Culture Program In Catholic School

LifeSite News reports that in Canada, Quebec's Court of Appeal has upheld the decision of the province's Minister of Education, Recreation and Sports refusing to exempt a Catholic school, Loyola High School, from the requirement that it offer a government-mandated course in Ethics and Religious Culture instead of  the school's own course covering other religions and ethical creeds from a Catholic perspective. A trial court ruled in favor of the school (see prior posting), but the Court of Appeal reversed.  In Le Procureur General  du Quebec v. Loyola High School John Zucchi, (Quebec Ct. App., Dec. 4, 2012) the Court of Appeal held that "exposing students to the global study of religions in a neutral perspective without requiring them to adhere to it, is not an infringement of freedom of religion." In reaching this conclusion, the court cited a  February decision by Canada's Supreme Court upholding the Ethics and Religious Culture Program in a suit by parents who objected to it. (See prior posting.)

Court Finds North Carolina's Pro-Life Plates Unconstitutional

In American Civil Liberties Union of North Carolina v. Conti, (ED NC, Dec. 7, 2012), a North Carolina federal district court held that North Carolina's "offering of a Choose Life license plate in the absence of a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment." The court reached this conclusion after rejecting arguments that the specialty license plate program was government speech. The court pointed out that the North Carolina legislature, with rancorous debate, rejected six proposals for various pro-choice plates. The ACLU issued a press release announcing the decision.  CNN reports on the decision.

New Report Focuses on Global Discrimination Against Humanists and Atheists

To mark Human Rights Day yesterday, Britain's International Humanist and Ethical Union issued (press release) the first report focusing on discrimination around the world against non-religious people. Titled Freedom of Thought 2012: A Global Report on Discrimination Against Humanists, Atheists and the Non-religious, the 72-page report covers laws and cases of discrimination country-by-country. Summarizing its findings, the report says in part:

This report shows that atheists, humanists and other nonreligious people are discriminated against by governments across the world. There are laws that deny atheists’ right to exist, curtail their freedom of belief and expression, revoke their right to citizenship, restrict their right to marry, obstruct their access to public education, prohibit them from holding public office, prevent them from working for the state, criminalize their criticism of religion, and execute them for leaving the religion of their parents.....

A handful of countries criminalize atheism per se.  In addition, there are several forms of legal measures found across many countries that either criminalize the expression of atheist beliefs or result in systematic discrimination against atheists and those who reject religion. These include laws regulating:

• Apostasy and religious conversion
• Blasphemy and religious criticism
• Compulsory religious registration, usually with a list of permissible religions
• Religious tests for citizenship or participation in civic life
• Religious control of family law
• Religious control of public education.

MSN News and Voice of Russia both cover the Report.

National Menorah Lighting Ceremony Held Sunday

As reported by CNN, on Sunday night Chabad Rabbi Levi Shemtov presided over the lighting of the National Menorah on the Ellipse south of the White House. The ceremony featured the U.S. Navy Band. Jeffrey Zients, deputy director of the Office of Management and Budget, helped light the first candle.

Plaintiffs Challenging 10 Commandments May Proceed Using Pseudonyms

As previously reported, in September the Freedom From Religion Foundation along with two students and their parents filed a federal lawsuit challenging the constitutionality of a 6-foot tall Ten Commandments monument that has been displayed for decades in front of New Kensington, Pennsylvania's Valley High School. On Nov. 30, the trial court judge ruled (full text of Order) that the students and the parent of one may proceed in the case identified only as Doe 1, Doe 2 and Doe 3. As reported yesterday by the Valley News Dispatch, plaintiffs' counsel had sought the order because of "the highly personal and sensitive religious matters involved, the age of the student-Plaintiffs, the (ill will) expressed by the public regarding the Plaintiffs and this case, harassing remarks about the Plaintiffs, and the potential for physical harm." Plaintiffs introduced as evidence of the hostility toward them Facebook postings, website comments, emails and letters to the editor.

FBI Releases 2011 Hate Crimes Data; 19.8% Are Motivated By Anti-Religious Bias

The FBI today released its 2011 Hate Crime Statistics. The report shows that there were 6,216 single-bias motivated incidents reported, of which 1,233 (19.8%) involved religious bias.  For comparison, for 2010 the FBI reported 6,624 single-bias incidents, with 1,322 (20%) motivated by religious bias-- though the reporting jurisdictions were not identical in the two years. (See prior posting.) The 2011 data show that of the 1,233 incidents motivated by religious bias, 771 of those were anti-Jewish; 157 were anti-Islamic; 67 were anti-Catholic; 44 were anti-Protestant; and 4 were anti-Atheist or Agnostic.  Fully 130, however, involved bias against other religions. As previously reported, efforts are underway to add anti-Sikh and anti-Hindu subcategories in order to refine the "Other Religion" number. In 2011, crimes motivated by religious bias were the third most frequent category of hate crimes.  Racial bias ranked first (2,917 incidents), and bias based on sexual orientation ranked second (1,293 incidents). The ADL issued a press release welcoming the 6% decrease in hate crimes since last year, but saying this is still far too many. [Thanks to Michael Lieberman for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Robert L. Tsai, The Politics of Hate, (Journal of Hate Studies, Vol. 10, No. 1, 2012).
• Sahar F. Aziz, Federal Civil Rights Engagement with Arab and Muslim American Communities Post 9/11, (November 9, 2012).
• Solomon A. M. Ekwenze, The Moral and Legal Frontiers of Homosexuality, Lesbianism and Gayism: A Paradox for the Third Millennium, (November 11, 2012).
• Linda Ross Meyer, Law's Suffering, (December 5, 2012).
• Haider Ala Hamoudi, Book Review: Islamic Law in Action, Authority, Discretion and Everyday Experiences in Mamluk Egypt, by Kristen Stilt, (Journal of Law and Religion, Vol. 28, No. 2, 2013).
• Max D. Siegel, The Future of Family, (George Mason University Civil Rights Law Journal (CRLJ), Vol. 23, No. 2, 2013).
• Norman P. Ho, Confucian Jurisprudence in Practice: Pre-Tang Dynasty Panwen (Written Legal Judgments), (Pacific Rim Law & Policy Journal, Forthcoming).

From elsewhere:

• Stuart G. White, Religious Exemptions: An Egalitarian Demand?, [Abstract], The Law & Ethics of Human Rights, Vol. 6, Issue 1, pp. 97-118 (Dec. 2012).
• Maimon Schwarzschild, How Much Autonomy Do You Want?, Conversations, The Journal of the Institute for Jewish Ideas and Ideals, Issue 14, Dec. 7, 2012.

Recent Books:

• Richard A. Hughes, Religion, Law and the Present Water Crisis, (Peter Lang Publishing, 2012), [Press Release].
• Wael B. Hallaq, The Impossible State: Islam, Politics, and Modernity's Moral Predicament, (Columbia Univ. Press, Nov. 2012).
• Kimberley Brownlee, Conscience and Conviction: The Case for Civil Disobedience, (Oxford Univ. Press, Dec. 2012).

In Canada, Scams Are Reviving Use Of Ban On Fraudulent Use Of Sorcery

Last Saturday's National Post reports that new scams are leading Canadian authorities to revive prosecutions under an an old statute (Canada Criminal Code Sec. 365) that prohibits fraudulently pretending "to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration."  Last month, charges under the section were filed against Gustavo Gomez who, using Spanish-language radio and print ads in Quebec and Ontario convinced people they were under a curse. He then offered to lift the curse for $10,000 to $15,000. In Toronto, a similar curse-lifting scam is being carried out in the city's Chinese community. Cantonese-speaking residents are warned of a curse and are convinced to fill a bag with valuables for a special ritual to lift it. Then the fraudster runs off with the bag.  Vancouver police are reporting similar scams.

Recent Prisoner Free Exercise Cases

In Kramer v. Pollard, (7th Cir., Dec. 5, 2012), the 7th Circuit rejected an Odinist inmate's claim for damages on qualified immunity grounds. At issue were claimed free exercise and equal protection violations growing out of the refusal to allow group worship for Odinists separate from other Pagan groups. However the court reversed the dismissal of plaintiff's religious diet claim.

In Riddick v. Herlock, 2012 U.S. Dist. LEXIS 171855 (ED VA, Nov. 30, 2012), a Virginia federal district court deferred ruling on dismissal of an inmate's claim that his copy of the Qur'an was confiscated so plaintiff could amend his complaint.

In People ex rel. Day v New York State Dept. of Corrections and Community Supervision, (NY Supr. Ct., Nov. 30, 2012), a New York trial court held that an inmate was denied due process when his parole violation hearing was held in abstentia, but the reason for his absence was his Muslim Friday religious observance.

In Johnson v. Director VDOC, 2012 U.S. Dist. LEXIS 173203 (WD VA, Dec. 6, 2012), a Virginia federal district court dismissed an inmate's complaint that the Department of Corrections banned his "Nuwaupian Moorish" religion and therefore he cannot have religious DVDs or CDs in DOC facilities.

In Benton v. Yon, 2012 U.S. Dist. LEXIS 173197 (ND FL, Dec. 6, 2012), a Florida federal district court, rejecting a magistrate's recommendation (2012 U.S. Dist. LEXIS 173196, Oct. 22, 2012) that plaintiff be permitted to proceed on most of his claims, dismissed on qualified immunity grounds an inmate's complaint that his free exercise and equal protection rights were infringed when a correctional officer tore and crumbled pages in plaintiff's Qur'an and drenched his prayer rug with water, apparently out of bias toward Muslims.  According to the court: "no authoritative court has decided—as a broad principle—that a correctional officer's disrespectful treatment of an inmate's religious property ... was unconstitutional under the First and Fourteenth Amendments even when, as in this case, there is no allegation that such treatment burdened the inmate's ability to practice his religion."

In Forter v. Geer, 2012 U.S. Dist. LEXIS 54400 (D OR, April 17, 2012), an Oregon federal district court dismissed an inmate's free exercise and RLUIPA complaint regarding withholding from him of certain Christian Identity material sent to him. The court also dismissed without prejudice other claims for failure to exhaust administrative remedies. [This case while several months old was not previously covered by Religion Clause.]

Court Rejects Quaker's Challenge To Tax Procedures Invoked After Anti-War Withholding Of Amounts Due

In Boardman v. Commissioner of Internal Revenue, (ED CA, Dec. 6, 2012), a California federal district court dismissed free exercise claims by a Quaker peace activist who challenged provisions of the Tax Relief and Health Care Act of 2006 (26 USC Sec. 6330(g)) that curtail the administrative appeals process for "frivolous" taxpayer claims. The provision was invoked when plaintiff withheld half of her tax payments due because of her objections to government spending on war. She said she would pay the remaining amounts only if they were redirected to peaceful purposes. Relying on the 1st Amendment and RFRA, plaintiff argued that the government intentionally frustrated her religious beliefs by depriving her of rights and procedures that would have been available had she not asserted a religious motive for withholding a portion of her taxes. The court held that the Anti-Injunction Act (26 U.S.C. § 7421) requires dismissal of the lawsuit, since a ruling in favor of plaintiff would negatively impact the government's tax assessment methods. Alternatively, the court dismissed on the merits, holding that under past precedent plaintiff may not assert a religious objection to the country's tax system, even if she does not dispute her overall tax liability.

DNA Testing For Immigration Purposes Is Neutral Rule of General Applicability In Free Exercise Claim

In S. T. v. Napolitano, 2012 U.S. Dist. LEXIS 172658 (SD TX, Dec. 5, 2012), a Texas federal district court held that there is no 1st Amendment free exercise problem with denial of plaintiff's certificate of citizenship, passport and related documents.  S.T.'s parents-- both American citizens-- practice the Swaminarayan religion. They believe they are required to follow their swami's religious instruction to never subject S.T., as a gift from a divine source, to medical testing. U.S. officials refuse to certify S.T. as a child of American citizens born abroad without DNA testing to establish a blood relationship. The court rejected the claim that requiring DNA testing violates the 1st Amendment free exercise rights of S.T. and his parents, finding that the testing requirement is a neutral rule of general applicability. However the court and defendants agreed that plaintiff may assert his claim under the Religious Freedom Restoration Act

Bankruptcy Judge Shields Parish Assets In Archdiocese Bankruptcy

In the bankruptcy reorganization proceedings of the Archdiocese of Milwaukee (WI), a federal bankruptcy judge has refused to include at least most of the assets of separately incorporated parishes as part of the assets which creditors of the Archdiocese can claim. In In re Archdiocese of Milwaukee, (ED WI Bankr., Dec. 7, 2012), the court refused to apply the "alter ego" doctrine to ignore the separate corporate status of the parishes:

The Committee has failed to state a plausible claim that the Debtor and Parishes failed to observe corporate formalities, that funds were siphoned, that officers or directors of the Parishes were nonfunctional, or that there was an absence of corporate records.  Absolutely no facts were alleged to make plausible a claim that the Debtor and the Parishes “egregiously ignored” corporate formalities or that control was so "pervasively exercised" to apply the alter ego doctrine in this case.

The court similarly refused to apply the equitable doctrine of substantive consolidation to make parish assets available to creditors.  Reporting on the decision, the Milwaukee Journal-Sentinel says that the parishes, however, could still face claims that creditors should have access to $35 million in funds that the Archdiocese moved off its books in 2005.

L.A. Church Sues Former Pastor, His Wife and Others For Fiduciary Breaches and Fraud

The Los Angeles Times reports that last Tuesday a suit was filed in a California state court by the oldest Black church in Los Angeles against its former pastor John Hunter, his wife and a group of other church officials and directors of affiliated corporations in a battle for control of the church. According to the paper:

Hunter has had a rocky tenure at the church. Since taking over First AME in 2004, Hunter has been sued for sexual harassment, a civil claim that was settled for an undisclosed amount. The Times reported in 2008 that an internal audit found he charged $122,000 in jewelry, family vacations and clothing to the church's credit card. He later agreed to a nine-year repayment plan.

He earned a generous salary during his tenure, lived in a $2-million home and drove a Mercedes-Benz paid for by the church. His wife earned $147,000 a year running nonprofit organizations connected to the 19,000-member congregation.

But over the last few years, the hilltop church in the West Adams district has fallen into debt. The church owes nearly $500,000 to creditors and some vendors say they have not been paid in more than a year.

The complaint (full text) in First African Methodist Episcopal Church of Los Angeles v. Hunter, (CA Super. Ct., filed 12/4/2012), alleges that when John Hunter was transferred to a new church, his wife Denise continued to control affiliated corporations that provide social services rather than allowing FAME's new pastor to do so. It alleges breach of fiduciary duty, fraud and conversion. It asks for injunctive and declaratory relief and for damages of over $1 million.

New York Hasidic Sex Abuse Trial Uncovers Extortion From "Modesty Committees"

According to Thursday's New York Jewish Week, testimony in the Brooklyn sex abuse trial of Nechemya Weberman --  an unlicensed "therapist" to whom schools of the Hasidic Satmar sect referred "wayward" girls for "help" -- has disclosed important information about the insular Satmar community:

the alleged victim ... has been subjected to intense pressure to withdraw her claim, including intimidation, harassment, social ostracism of her family and even a reported $500,000 bribe.... The case is also significant for the amount of public support the alleged victim has received ... from her family, close friends and advocates, many of whom have used social media to spread the word about the trial and appeared in court....

However, many people with ties to the chasidic community believe there is something even more important about the Weberman case — namely, what it exposes about the larger communal role played by chasidic "modesty committees" in communities like Williamsburg, Borough Park and Kiryas Joel. These groups — to which, sources say, Weberman was connected — originated years ago to guard the "purity" of the community by enforcing strict dress and behavior codes that characterize the insular chasidic lifestyle. But, insiders say, the tactics of these self-appointed, freelance modesty patrols have evolved from public shaming to extortion and threats....

President Issues Hanukkah Greetings

Yesterday, the White House released a statement (full text) sending warmest wishes from the President and Michelle Obama to all those around the world celebrating Hanukkah. The statement said in part:

Hanukkah is a time to celebrate the faith and customs of the Jewish people, but it is also an opportunity for people of all faiths to recognize the common aspirations we share.... [L]et us reaffirm our commitment to building a better, more complete world for all.

The 8-day festival of Hanukkah begins this evening.

More On Yesterday's Same-Sex Marriage Cases Cert. Grant-- Standing

In granting certiorari yesterday in two same-sex marriage cases (see prior posting), the U.S. Supreme Court (order list) instructed the parties to brief and argue specified standing issues, in addition to the questions presented in the petitions for certiorari.  In Dennis v. Perry, the California Proposition 8 case, the Court ordered the parties to brief and argue: "Whether  petitioners have standing under Article III, §2 of the Constitution in this case."  In United States v. Windsor, the Defense of Marriage Act case, the Court ordered the parties to brief and argue: "Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case."

Supreme Court Will Review 2 Same-Sex Marriage Cases

The U.S. Supreme Court today granted certiorari in two same-sex marriage cases. (Order List.) The first of the cases is Hollingsworth v. Perry, (Docket No. 12-144, cert. granted 12/7/2012).  In the case, decided by the 9th Circuit under the caption Perry v. Brown, the appeals court in a 2-1 decision struck down California's Proposition 8 that eliminated the right-- previously created by the California Supreme Court's interpretation of the state constitution-- for same-sex couples to marry. Judge Reinhardt, in an opinion joined by Judge Hawkins, held that even though California may not have had the obligation to grant same-sex couples the right to marry, once it did, it could not take that right away without some legitimate reason for doing so. Here there was no legitimate reason. (See prior posting.) En banc review was denied, but in a decision generating dissenting and responding opinions. (See prior posting.) The certiorari petition (full text), however frames the issue more broadly:

Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

Scotus blog has links to the 9th Circuit opinion and all the filings with the Supreme Court in the case.

The second case in which the Supreme Court granted review is United States v. Windsor, (Docket No. 12-307, cert. granted 12.7/2012).  In the case, the 2nd Circuit in a 2-1 decision held that Section 3 of the Defense of Marriage Act is unconstitutional under the equal protection component of the 5th Amendment. In a suit by the surviving spouse of a lesbian couple who was denied the spousal deduction under the federal estate tax law, the majority held that it must apply heightened (intermediate level) scrutiny because homosexuals are a quasi-suspect classification. (See prior posting.) The petition for certiorari (full text)-- which was filed before the 2nd Circuit came down with its decision-- defines the question presented as:

Does Section 3 of the Defense of Marriage Act,  1 U.S.C. § 7, which defines the term “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,”  deprive same-sex couples  who are lawfully married under the laws of their states (such as New York) of the equal protection of the laws, as guaranteed by the Fifth Amendment to the Constitution of the United States?

Scotus blog has links to the 2nd Circuit opinion and all the filings with the Supreme Court in the case.

Press coverage of the Supreme Court's action today included the New York Times, Yahoo! News, and Wall Street Journal.

UPDATE: See follow-up post- "More On Yesterday's Same-Sex Marriage Cases Cert. Grant- Standing".

Santa Monica Park Rules Change Impacts Hanukkah As Well As Christmas Displays

A good deal of attention has been given by the media to the change in rules adopted in Santa Monica, California, ending the traditional Christmas story dioramas in Palisades Park during the holiday season.  The new city ordinance, upheld by the courts, excludes unattended displays and has led a coalition of Christian groups plans to hold a Live Nativity Display instead. (See prior posting.) Less noticed has been the impact of the rule change on other displays.  Yesterday's Los Angeles Jewish Journal reports that it also impacts the two 12-foot-tall, propane-fueled menorahs normally set up in the park by the Chabad of Santa Monica during Hanukkah.  This year instead the menorahs will lit, and then moved away each night on pick-up trucks. The change also impacts the separate menorah lighting that has been held for the past 5 years on the Promenade sponsored by Downtown Santa Monica, Inc. They will now move their 10-foot tall menorah onto the Promenade on dollies each time it is to be lit, and then take it away.

New Trial Motion By Defendants Convicted In Amish Beard-Cutting Case Is Denied

In United States v. Mullet, (ND OH, Dec. 6, 2012), an Ohio federal district court denied a motion for a new trial by Bergholz Amish leader Samuel Mullet, Sr. and his co-defendants who were convicted in September of conspiring to violated the federal Hate Crimes Prevention Act in connection with beard- and hair-cutting attacks against a rival Amish group. (See prior posting.) The court rejected Mullet's argument that there was insufficient evidence to link him to the attacks, saying:

While it is true Defendant did not physically participate in any of the attacks, there was extensive evidence showing he was a member of the conspiracy the object of which was to commit them.... Defendant, as Bishop of Bergholz, ran his community with an iron fist—nothing of significance happened without his knowledge and approval.  Even if the Government proved nothing more than that Samuel Mullet, Sr., was told about the attacks in advance by his followers and then said or did nothing to stop or prevent them, or even voice his disapproval, a jury could conclude that he had joined the conspiracy.... 

The court also rejected Mullet's argument regarding newly discovered evidence and his objections to evidence presented at trial of an AP article, and of his sexual relationship with one of his daughters-in-law.  AP reports on the decision.

First Family Lights National Christmas Tree

USA Today reports that last night, President Obama, along with First Lady Michelle Obama and their daughters, lit the White House National Christmas Tree on the Ellipse. In his comments at the ceremony, Obama focused on families in the Northeast who were displaced by Hurricane Sandy. After pushing the button to light the tree, the First Family left the stage and sat in the audience to watch entertainment by Jason Mraz, Ledisi, James Taylor, Kenny "Babyface" Edmonds, Colbie Caillat and American Idol winner Phillip Phillips.

UPDATE: The full text of the President's remarks at the National Christmas Tree Lighting are now available from the White House.

Judge Charged With Improper Sale of Religious Material In Courthouse

The Florida Judicial Qualifications Commission on Wednesday filed a Notice of Formal Charges (full text) against Leon County Judge Judith Hawkins for using her judicial position to sell religious books and materials through her for-profit business, Gaza Road Ministries. Photos on her business' website show her in her judicial robes. The formal charges in part also allege:

you have sold or attempted to sell your books, study guides, and other publications in the Leon County courthouse, in the parking garage of the courthouse, in your Chambers, and even in the Courtroom in which you preside. The purchasers of your books and other publications include attorneys who regularly appear before you and court staff.  There is a disparity in authority between your position and those to whom you have sold within the courthouse.

You use your Leon County email account, your Judicial Assistant, and your office spaces and equipment within the Leon County Courthouse to create, edit and promote the products you have for sale through Gaza Road Ministries....

Your involvement with Gaza Road Ministries has caused you to devote less than your full time and full attention to your judicial duties....

AP reports on filing of the charges.

Additional Hate Crime Reporting Categories May Be Added To FBI Form

Sikh News Network reported Wednesday on efforts being made to add three additional sub-categories to the FBI's "Hate Crime Incident Report" data collection form to track anti-Sikh, anti-Hindu and anti-Arab/ anti-Middle Eastern hate crimes. Sikh advocacy groups have particularly been pressing for the changes as attacks on Sikhs have multiplied. On Oct. 18, civil rights and community relations agencies presented a recommendation to the Uniform Crime Reporting Subcommittee of the FBI Advisory Policy Board that these changes be made. The recommendation (with additional input from interested parties) will be considered by the full Advisory Policy Board at its meeting in Spring 2013 and will likely be approved by the FBI director in June 2013. The FBI will then need to revise the form, obtain approval of the revisions from the Office of Management and Budget, and modify systems to enable the data collection. If all of this goes as planned, it is likely that data collection using the revised categories would begin in 2015.

Street Preachers Keep Access To Holiday Festival For 2012

In December 2011, a Minnesota federal district court granted a preliminary injunction to prevent Duluth police officers from interfering with activities of two street preachers at the Bentleyville Tour of Lights.  The Tour is a holiday festival held each year on city property, Bayfront Festival Park, and is sponsored by a private non-profit group. (See prior posting.)  This year the city of Duluth negotiated a new contract with the sponsor of the Tour, under which the sponsor is granted exclusive use of the Park for the event. The city argued that this moots the 2011 preliminary injunction and permits the sponsor to exclude the street preachers.  In Jankowski v. City of Duluth, (D MN, Dec. 5, 2012), the court disagreed, refusing to vacate the original preliminary injunction saying:

... the City cannot change a traditional public forum by its own ipse dixit.... Because the Park is a traditional public forum, and because this year’s BTL event is free and open to the public despite the fact that the 2012 Agreement grants BTLI “exclusive use” of the Park, the Court finds that the Park has retained its public character during the 2012 BTL event.... [G]ranting exclusive use of the Park to BTLI has no impact on Plaintiffs’ First Amendment rights.

However, the court refused to hold defendants in contempt because of ambiguity in the language of the original preliminary injunction, instead issuing a new modified injunction to cover future Festivals. Alliance Defending Freedom issued a press release announcing the court's decision. Duluth News Tribune reports on the decision.

Ousted Deacons and Their Supporters, Seeking To Attend Church, Sue Pastor

Saginaw News yesterday reported on a lawsuit filed in state court in Saginaw County, Michigan by 5 former deacons and two other members of the Zion Missionary Baptist Church who support them.  Plaintiffs complain that the church's pastor, Rodrick Smith, invoking state trespass laws, falsely told police he had fear that they would disrupt services.  Smith got police to threaten plaintiffs with arrest if they continued to attend church services. In the case of one member, police did arrest him for trespass, but never filed formal charges. Plaintiffs include a former Saginaw mayor and two Saginaw County commissioners. They have not attended services since, but have carried protest signs in front of the church on Sunday mornings.  The recently-filed complaint (full text) in Robinson v. Smith, (MI Cir. Ct., filed 11/29/2012), recounts Smith's attempt to remove 5 of the plaintiffs as deacons, and asks for a declaratory judgment that plaintiffs may attend church so long as they do not disrupt services.  It alleges that "Smith injected the secular police powers of the state into the internal affairs" of the church by means of wrongful use of the criminal trespass law, in violation of their 1st Amendment rights. The complaint also seeks damages for malicious prosecution. A suit against the church itself was dismissed by the court in October. That suit, similarly complaining about actions against plaintiffs, had sought return of nearly $130,000 in tithes the plaintiffs had given the church over the past 6 years.

Supreme Court Asked To Bypass 9th Circuit To Review Nevada Same-Sex Marriage Case

On Wednesday, the Coalition for the Protection of Marriage filed a petition for certiorari with the United States Supreme Court asking it to take the unusual step of reviewing the district court decision in Sevcik v. Sandoval before the case is briefed, argued or decided by the 9th Circuit. (Full text of certiorari petition.)  In the case, a Nevada federal district court upheld Nevada's ban on same-sex marriages, rejecting an Equal Protection Clause challenge to the law. (See prior posting.) The certiorari petition essentially argues that this is a better case for the Supreme Court to use in deciding basic constitutional issues on same-sex marriage than are the other cases which the Court is currently considering for possible review. Dale Carpenter at Volokh Conspiracy discusses the Cert. petition and predicts the court will not grant review in the case.

Report On Enhancing Accountability of Religious Organizations Released

The Commission on Accountability and Policy for Religious Organizations this week issued its first report to Sen. Charles Grassley. The Commission was set up by the Evangelical Council for Financial Responsibility after the Senate Finance Committee in 2011 released a staff review of the activities of media-based ministries. (See prior posting.)  This week's 94-page report titled Enhancing Accountability for the Religious and Broader Nonprofit Sector, sets out numerous recommendations on compensation, accountability and IRS practices. The Chronicle of Philanthropy yesterday summarized some of the recommendations, saying that the report rejects federal efforts to impose new laws or regulations on religious organizations.

West Point Cadet Resigns Over School's Promotion of Religion

In a Huffington Post essay on Monday, West Point cadet Blake Page announced that he is resigning from West Point 5 months short of graduation in protest of the school's promotion of religion. He wrote in part:

... [C]ountless officers here and throughout the military are guilty of blatantly violating the oaths they swore to defend the Constitution. These men and women are criminals, complicit in light of day defiance of the Uniform Code of Military Justice through unconstitutional proselytism, discrimination against the non-religious and establishing formal policies to reward, encourage and even at times require sectarian religious participation. These transgressions are nearly always committed in the name of fundamentalist evangelical Christianity. The sparse leaders who object to these egregious violations are relegated to the position of silent bystanders, because they understand all too well the potential ramifications of publically expressing their loyalty to the laws of our country.

AP reported yesterday that  despite Page's concerns to the contrary, he has now received an honorary discharge and will not have to reimburse the military for the cost of his education. A spokesperson for West Point disputed Page's claims, saying that prayer is voluntary where invocations are offered, and that Page served as president of the school's Secular Student Alliance. Page had recently been disqualified on medical grounds from receiving a Second Lieutenant commission after graduation. He suffers from clinical depression and anxiety which have gotten worse since his father committed suicide last year.

EEOC Sues UPS Over Failure To Accommodate Jehovah's Witness New Hire

The EEOC announced that last week it filed a religious discrimination lawsuit against United Parcel Service, Inc. for its failure to accommodate a newly-hired Jehovah's Witness employee. The employee wanted either to start a  different day, start later than his scheduled time on his start date, or be given an hour's leave during his shift on his first day so he could attend the Memorial of Christ's Death, an  annual Jehovah's Witness religious service. UPS rejected his request and fired him when he attended the service instead of reporting for work.

Contraceptive Coverage Challenge By NY Archdiocese Survives Standing and Ripeness Challenge

In Roman Catholic Archdiocese of New York v. Sebelius, (ED NY, Dec. 5, 2012), a New York federal district court permitted the Archdiocese of New York, the Catholic Health Care System (ArchCare) and Catholic Health Services of Long Island to proceed with their 1st Amendment, RFRA and Administrative Procedure Act challenges to the contraceptive coverage mandate imposed under the Affordable Care Act.  The court rejected standing and ripeness challenges to their lawsuits.  It held that the temporary enforcement safe harbor for non-profits with religious objections does not prevent plaintiffs from establishing imminent injuries. The announced review that may lead to changes in the coverage mandate for organizations with religious objections does not assure that changes will be made, and in any event costs are already being incurred in planning for possible compliance with the mandate or payment of fines for noncompliance.  The court however dismissed claims by the Diocese of Rockville Centre and Rockville Centre Catholic Charities because it appears that their health care plans are grandfathered and thus not covered by the challenged mandate. Reuters reported on the decision.

Couple Convicted For Mistreatment of Lamb Purchased For Religious Sacrifice

The Colorado Springs Gazette reports that on Tuesday, an El Paso County, Colorado state court jury convicted Periz Jackson and Elijah Black on animal cruelty charges for the confined and unsanitary conditions under which they kept a lamb they had purchased to sacrifice on Passover. Prosecutors charged defendants, who face a sentence of up to 18 months in jail and a $5000 fine, failed to feed and water the lamb. The couple, who are members of the largely African-American Hebrew-Israelite sect, planned to slaughter and roast the lamb in accordance with the ritual description in the Biblical book of Exodus. The lamb, discovered by the couple's landlord, was seized by the Humane Society of the Pikes Peak Region.  Defendants say they intend to sue for federal civil rights violations because the government's actions prevented them from carrying out their religious obligations on their first Passover together as man and wife.

ACLU Files Complaint Against Judge Who Sentenced Teen To Church As Part of Probation

The Oklahoma ACLU has filed  a complaint with the state's Council on Judicial Complaints against Muskogee County District Judge Mike Norman over the judge's inclusion in a probation arrangement for a 17-year old of a requirement that he attend church for ten years. The sentence came after Tyler Alred plead guilty to manslaughter in the death of his friend who was riding with him in an alcohol-related auto crash. Apparently the defendant has no objections to the probation conditions. (See prior posting.) In a press release announcing the filing of the complaint, the Oklahoma ACLU's legal director said: "Acts of worship should come from a freely-made choice to adopt a faith, not from the government giving its citizens an ultimatum to sit either in a pew or a prison cell." The Tulsa World today reports on the ACLU's action.

3rd Circuit Upholds School Board's Refusal To Submit Religious Content Issues To Voters

The U.S. 3rd Circuit Court of Appeals has upheld the Camden (NJ) Board of Education's refusal to include three proposed non-binding referendum questions on a special election ballot. In Torres v. Davis, (3d Cir., Dec. 4, 2012), the court rejected free speech, free exercise and equal protection challenges to the refusal by the Board of plaintiff's requests made over a ten-year period to place items on the ballot.  Two of plaintiff's proposals dealt with adding religious content to the public schools' curriculum. In various years, he also urged allowing prisoners to vote in school board elections and a proposal regarding prayer.

Indiana Legislator Wants To Require Science Teachers To Prove Truth of Their Teachings

In Indiana, state senator Dennis Kruse, chairman of the Senate Education and Career Development Committee, says he will try a new approach now that he failed last session to get legislation to allow the teaching of creationism along with evolution in the public schools. According to the Indianapolis Star yesterday, Kruse will introduce what he calls a "truth in education" bill.  As the senator describes the proposal: "If a student thinks something isn't true, then they can question the teacher and the teacher would have to come up with some kind of research to support that what they are teaching is true or not true."

Miami-Dade Commission Re-institutes Opening Prayer

In Florida yesterday, the Miami-Dade County Commission voted 8-3 to re-institute prayer before the opening of the Commission's formal meetings.  The Miami Herald reports that the vote comes after an intensive 18-month lobbying effort by the Christian Family Coalition to bring back prayers instead of the moment of silence that replaced the invocation in 2004. Commissioners will rotate in choosing someone to lead the prayer, or lead it themselves. The invocation must be non-denominational, and will be offered before the roll call of commissioners. During debate on the bill, the commissioners agreed to the rotation format, instead of having the county clerk compile a database of local religious leaders to choose from which would have cost $26,000 to implement. The ACLU said that if the prayers turn out to be sectarian, it will file suit.  However, Anthony Verdugo, executive director of the Christian Family Coalition, said the vote ended "8½ years of discrimination."

Judges Disagree About Constitutionality of California Sexual Orientation Change Efforts Ban

This week, two federal district court judges in the Eastern District of California, in two separate cases, reached opposite conclusions about the constitutionality of  California's new law (effective Jan. 1, 2013) totally banning mental health care providers from engaging in efforts to change the sexual orientation of anyone under under 18 years of age.  In Welch v. Brown, (ED CA, Dec. 3, 2012), Judge William Shubb entered a preliminary injunction barring enforcement of the Sexual Orientation Change Efforts legislation against the three plaintiffs who were challenging it in that case. He concluded that the law is a content-based regulation of speech subject to strict scrutiny:

Especially with plaintiffs in this case, it is ... difficult to conclude that just because SOCE utilizing speech is a type of treatment, that the treatment can be separated from a mental health provider’s viewpoint or message....  Duk is a Catholic and, with patients that share his faith, he discusses tenants of the Catholic faith, including that “homosexuality is not a natural variant of human sexuality, it is changeable, and it is not predominantly determined by genetics.”  ... Similarly, Welch has explained that he shares the views of his church that homosexual behavior is a sin and that SB 1172 will “disallow [his] clients from choosing to execute biblical truths as a foundation for their beliefs about their sexual orientation.”

However, in Pickup v. Brown, (ED CA, Dec. 4, 2012), Judge Kimberly J. Mueller refused to grant a preliminary injunction to prevent the law from taking effect.  She wrote in part:

Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct.... As SOCE therapy is subject to the state’s legitimate control over the professions,SB 1172's restrictions on therapy do not implicate fundamental rights and are not properly evaluated under strict scrutiny review, but rather under the rational basis test.

Liberty Counsel announced that it will file an appeal in the case.

Church-State Concerns Keeping Sandy-Damages Houses of Worship From Receiving FEMA Aid

The Forward reported this week that church-state concerns mean that synagogues in New York which were damaged by Hurricane Sandy are at this time seen as ineligible for FEMA assistance.  Other non-profits, including homeless shelters and soup kitchens sponsored by religious institutions, are eligible if they apply by Dec. 30. However the government is encouraging synagogues and other houses of worship to apply to FEMA and the Small Business Administration by Dec. 30 so they will have applications on file if ultimately it is decided that houses or worship do qualify for assistance.

Interview With Convicted Amish Beard-Cutting Attacker Published

The Daily yesterday published a long interview with Bergholz Amish sect leader Sam Mullet who was convicted in September on hate crime charges stemming from beard-cutting attacks on a rival Amish group. (See prior posting.) Mullet is in prison awaiting a January sentencing hearing. The interview, conducted at the Northern Ohio Correctional Center, is wide ranging. Summarizing the interview, The Daily said:

Over the course of several hours, [Mullet] described the challenges of adjusting to prison, his perspective on the beard-cutting attacks and life inside the breakaway Amish sect where he was accused of sexually preying on women and tormenting men with harsh punishments.

On the matter of the beard cuttings, Mullet told The Daily that he was wrongly convicted — that a group of his followers, including several of his children, hatched the scheme on their own.

Israeli Civil Court Asserts Jurisdiction Over Same-Sex Couple's Divorce

Jerusalem Post reported yesterday that a Tel Aviv Family Court has broken new legal ground by granting a divorce to a same-sex couple who had married in Canada but lived in Israel. In an earlier case, Israel's Supreme Court had ordered registration of these same-sex marriages. Normally under Israeli law, only religious courts have jurisdiction over divorces. However the rabbinical courts, which do not recognize same-sex marriage, had, at least so far, failed to rule in the case. The Tel Aviv court said that it would violate the couple's fundamental rights and liberties to prevent them from dissolving a marriage that the state had recognized.  The civil court held that it could exercise jurisdiction over divorces when the rabbinical courts failed to do so.

Turkey Fines TV Station For Insulting Religious Beliefs Through Broadcast of Simpsons Episode

In Turkey, the Supreme Board of Radio and Television (RTUK), the national broadcasting regulator, has fined Turkish broadcaster CNBC-E the equivalent of $30,000 (US) for broadcasting an episode of The Simpsons found to be insulting to religious beliefs. Today's London Telegraph reports that the offending episode is the Halloween special "Treehouse of Horrors XXII." Among other things, the episode shows the Devil serving coffee to God; God and the Devil appearing in human bodies; and the burning of the Bible.