Minnesota Becomes 12th State To Legalize Same-Sex Marriage.

The Minnesota state Senate today, by a vote of 37-30, gave final passage to HF 1054, a bill authorizing same-sex civil marriage in the state.  The House of Representatives passed the bill last week by a vote of 75-59. (Legislative history.)  According to the New York Times, Governor Mark Dayton promised he will sign the bill tomorrow (Tuesday) afternoon.  This will make Minnesota the 12th state to legalize same-sex marriage.

The new law includes a number of protections for clergy and religious organizations that object to same-sex marriage. It provides that non-profit religious organizations and educational facilities they operate or supervise can take action on the basis of sexual orientation with respect to education, employment, housing and real property, or use of facilities, except as to secular business activities unrelated to the organization's religious or educational purposes. Also these religious and educational institutions may refuse to furnish goods, services, facilities, or accommodations directly related to the solemnization or celebration of a civil marriage that is in violation of the organization's religious beliefs. They may not be subject to any fine, liability or loss of tax exempt status for such refusal. No member of the clergy or other person authorized to solemnize marriages may be subject to liability or any penalty for refusing to solemnize a marriage for any reason.

The bill also changes all references in Minnesota statues from "marriage" to "civil marriage", and assures same-sex couples married in Minnesota that Minnesota courts will be available for any future dissolution of the marriage if the couple has moved to a state that refuses to recognize same-sex marriage and divorce.

Recent Articles and Books of Interest

From SSRN:

• Seval Yildirim, Global Tangles: Law, Headcoverings and Religious Identity, (Santa Clara Journal of International Law, Forthcoming).
• Faisal Bhabha, From Saumur to L. (S.): Tracing the Theory and Concept of Religious Freedom under Canadian Law, (58 Supreme Court Law Review (2d), 2012).
• Faisal Bhabha, R v. NS: What's Fair in a Trial? The Supreme Court of Canada's Divided Opinion on the Niqab in the Courtroom, (Alberta Law Review, Forthcoming).
• Carl H. Esbeck, Unwanted Exposure to Religious Expression by Government: Standing and the Establishment Clause, (7 Charleston L. Rev. no. 1 ___ (forthcoming 2013)).
• Bruce Ledewitz, The Vietnam Draft Cases and the Pro-Religion Equality Project, (Duquesne University School of Law Research Paper (May 6, 2013)).
• Bryan Dearinger, The Future of Taxpayer Standing in Establishment Clause Tax Credit Cases, (Oregon Law Review, Forthcoming).
• Lapo Filistrucchi and Jens Prufer, Nonprofits are Not Alike: The Role of Catholic and Protestant Affiliation, (TILEC Discussion Paper No. 2013-013 (April 26, 2013)).

From SmartCILP:

• Radwa S. Elsaman and Mohamed A. 'Arafa, The Rights of the Elderly in the Arab Middle East: Islamic Theory versus Arabic Practice, 14 Marquette Elder's Advisor 1-53 (2012).
• Eric D. Yordy, Caught in the Clause: An Analysis of Same-Sex Marriage Through the Lens of the Establishment Clause, 22 Tulane Journal of Law & Sexuality 55-89 (2013).
• Invisible Constitutions: Culture, Religion, and Memory. Articles by Abdullahi Ahmed An-Na'im, Kathryn E. Fort, Jeffrey A. Redding, Jelte Olthof, Monica Eppinger, Semahagn G. Abebe and Michal Jan Rozbicki. 57 St. Louis University Law Journal 287-455 (2013).

Recent and Forthcoming Books of Interest:

• Michael D'Antonio, Mortal Sins: Sex, Crime, and the Era of Catholic Scandal, (Thomas Dunne Books, April 2013).
• Carolyn Renée Dupont, Mississippi Praying: Southern White Evangelicals and the Civil Rights Movement, 1945-1970, (New York Univ. Press, Aug. 2013).
• John Ragosta, Religious Freedom: Jefferson’s Legacy, America's Creed, (Univ. of Virginia Press, April 2013).

2012 Report On Catholic Diocese Child Protection Compliance and Complaints Issued

Last week, the U.S. Conference of Catholic Bishops released the 2012 annual audit (full text) on diocesan compliance with the Charter for the Protection of Children and Young People. A May 9 Release from the U.S. Conference of Catholic Bishops summarizes the findings of the annual report. The audit showed full Charter compliance by all but four dioceses.  The accompanying survey of abuse allegations lodged in 2012 showed 363 new allegations relating to abuse taking place in past years and 34 allegations of abuse of minors occurring in 2012.  Of the 34 allegations of recent abuse, six were found to be credible and 15 are still under investigation. The allegations of past and current abuse were from 390 people against 313 priests or deacons. 84% of the victims were male. About half were between 10 and 14 when the abuse began.17% were between 15 and 17.  19% were under the age of 10 when the abuse started. As it has done in the past, the Diocese of Lincoln, Nebraska refused to be audited for Charter compliance or to respond to the survey. 3 Eastern rite eparchies also refused to be audited.

Dioceses, eparchies and religious orders spent $148.3 million in 2012 for settlements, attorneys fees, therapy for victims and support for offenders.  Another $26.5 million was spent on child protection programs.

Campus Police File Indecent Exposure Charges In Art Student's Naked Portrayal of the Pope

According to KDKA News, in Pittsburgh (PA) last week campus police at Carnegie Mellon University filed misdemeanor indecent exposure charges against two students growing out of their conduct at the College of Fine Arts' Anti-Gravity Downhill Derby. The event was part of the University's April 18-20 Spring Carnival. One of the two students charged was 19-year old Katherine O’Connor who appeared in the art school's parade dressed as the pope, naked from the waist down with her pubic hair shaved in the shape of a cross, and passing out condoms.  Prior to the announcement of the filing of charges, the Pittsburgh Catholic Diocese had issued a statement saying that it was glad the university was taking seriously complaints about the matter, and said that the student involved "truly offended Catholics and the faith we hold sacred." In a May 10 message (full text) announcing filing of the misdemeanor charges, Carnegie Mellon president Jared Cohon said in part:

The students took part in a campus art event and, in the case of the student who portrayed herself as the Pope, made an artistic statement which proved to be controversial. While I recognize that many found the students’ activities deeply offensive, the university upholds their right to create works of art and express their ideas. But, public nudity is a violation of the law and subject to appropriate action.

Recent Prisoner Free Exercise Cases

In Widi v. United States Department of Justice, 2013 U.S. Dist. LEXIS 62269 (D ME, May 1, 2013), a Maine federal district court dismissed as "fanciful" an inmate's claims, including free exercise claims, objecting to a tuberculosis test.

In Cox v. Glebe, 2013 U.S. Dist. LEXIS 66497 (WD WA, May 9, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 66563, March 29, 2013) and rejected a Protestant inmate's claim that prison authorities violated the establishment clause by serving all inmates meatless meals on Wednesdays and Fridays during Lent.

In Irvin v. Yates, 2013 U.S. Dist. LEXIS 66564 (ED CA, May 9, 2013), a California federal magistrate judge allowed plaintiff to move ahead with his complaint that Muslim inmates were denied access to the chapel and forced to attend religious services in the yard, and that they were denied religious dietary accommodations. Claims as to temporary suspension of inmate purchases of religious oils, and as to failure to hire a new Muslim chaplain were dismissed with leave to amend.

In Spivey v. Chapman, 2013 U.S. Dist. LEXIS 66828 (SD IL. May 10, 2013), an Illinois federal district court adopted part of a magistrate's recommendation (2013 U.S. Dist. LEXIS 67778, March 21, 2013) and permitted a Reform Jewish inmate to proceed with his claim that authorities refused for discriminatory reasons to modify his work schedule so he could take off for his Sabbath. However it concluded that his RLUIPA claim for injunctive relief is moot because he has been moved to a different prison. [Updated].

In Hicks v. Ryan, 2013 U.S. Dist. LEXIS 66930 (D MA, May 9, 2013), a Massachusetts federal district court permitted an inmate to move ahead with his claim that prison authorities barred wheelchair bound inmates from attending church services and instead limited them to short bedside visits from nuns.

In Perkins v. Chandler, 2013 U.S. Dist. LEXIS 66715 (WD KY, May 9, 2013), a Kentucky federal district court dismissed an inmate's claim that denial of his parole was based on false charges of homosexual conduct in retaliation for his practice of the Islamic religion, and that the charges were a defamation of his religion.

School Board Cancels Official 6th Grade Graduation After Complaints About Prayer; Privately Sponsored Ceremony Planned

In Lake City, Arkansas, the Riverside School District has voted "to no longer sponsor the 6th grade graduation" after the Freedom From Religion Foundation, on behalf of a parent, wrote to object to prayer being part of the graduation ceremony. Yesterday's Christian Post reports that instead several mothers are organizing a graduation ceremony at a local church.  Parent Kelly Adams, who objected to the Board's cancellation of the ceremony, argued: "We serve a God. And we should have the right to serve that God anywhere."

Saudi Court Sentences 2 To Jail, Lashings For Aiding Woman's Conversion To Christianity

Naharnet today reports that a court in the Saudi Arabian city of Khobar has sentenced two men for helping a young woman, identified only as "the girl of Khobar", convert to Christianity and flee to Sweden. All 3 were co-workers at an insurance company in Khobar. A Lebanese man was sentenced to 6 years in prison and 300 lashes for encouraging the conversion. A Saudi man was sentenced to 2 years in prison and 200 lashes for helping the woman flee the country. The defendants say they will appeal. Still pending are possible charges of corruption and forging official document that allowed the woman to leave Saudi Arabia without her family's consent.

Turkey's Constitution Drafters Agree On Freedom of Religion Clause That Will Permit Headscarves In Public Service

The Turkish Parliament in 2011 created a Constitutional Reconciliation Commission made up of representatives of each of the country's four political parties to draft a new constitution. (Background.) World Bulletin reported yesterday that the Commission, which has missed several deadlines for completing its work, has now agreed on a compromise provision on freedom of religion that will allow Muslim women to wear headscarves while serving in government positions. The compromise came after the Republican People's Party (CHP) backed off of its former objections.  The Commission has agreed on the following language:

No one can be forced to participate in religious practices or ceremonies or express their religious beliefs or thoughts. No one can be prohibited from or denounced for fulfilling the requirements of their religious beliefs.

The Commission also agreed on other language to guarantee the equality of all citizens.

Psychiatrist's License Suspended After His Diagnosis of 16-Year Old As Suffering From Evil Spiritual Entities

As reported by the Boston Globe, on May 8 the Massachusetts Board of Registration in Medicine suspended the medical license of psychiatrist Raymond W. Kam, saying that his conduct in treating a 16-year old patient last year called into question his competence to practice medicine.  Kam last year had already signed a voluntary agreement not to practice medicine. Kam, a Boston Children's Hospital psychiatrist, became convinced that the patient was being hurt by "evil spiritual entities."  Kam gave the girl a cross to wear in exchange for a different religious symbol she had on. After the girl was discharged from the hospital, Kam, who had withdrawn from the girl's treatment team, obtained permission from the girl's father to act as her spiritual mentor, taking her to his church and exchanging text messages with her. When the girl was kicked out of her house, Kam offered to let her stay at his house on several occasions. He failed to report to authorities an incident in which the girl's mother pushed her down a flight of stairs and tried to asphyxiate her.

The state Board also reprimanded a second psychiatrist who had failed to report the girl's abuse to authorities.  Kam could regain his license next year if he completes a psychiatric evaluation and enters a 5-year probation agreement.

Court Dismisses Land Use Complaint By Ranch Owner Seeking To Build Chapel

In Anselmo v. County of Shasta, California, (ED CA, May 9, 2013), a California federal district court dismissed on ripeness grounds a RLUIPA claim by the Catholic owner of a ranch and winery challenging the County of Shasta's assertion that he was violating zoning rules by building a private chapel on his land. The court said:

Plaintiffs never completed the application process for either a rezoning permit or a building permit, and the Notice of Non-Compliance and Warning Notices only indicate that the property is currently violating land use regulations.

The court also rejected plaintiffs' free exercise and due process claims. (See prior related posting.) KHSL TV reports on the decision.

In Israel "Women of the Wall" Pray With Police Protection After Winning Court Ruling

In Israel today, Women of the Wall held their first prayer session since a court decision (see prior posting) vindicating their right to pray at Jerusalem's Western Wall wearing prayer shawls (traditionally worn only by men). The women's group, pressing for women's religious rights, worships at the Western Wall each month on Rosh Chodesh (the beginning of the new month). The Jerusalem Post reports that several thousand male yeshiva students and haredi (ultra-Orthodox) school girls gathered at the Wall to protest. The school girl protest was apparently devised by Knesset members from the United Torah Judaism party.  A large number of police were at the Wall and attempted to create a protective barrier between the men's and women's sections.  Protesters shouted threw water bottles and other objects at the women, and spit at them.  Three haredi men were arrested for disturbing the peace.

In an interview with the Jerusalem Post, the Orthodox rabbi in charge of the Western Wall site expressing distress over the events and asked the Women of the Wall to stop their activities, He said they are a small group trying to sow discord and force their opinions on others. Meanwhile, Huffington Post reports on a statement issued by Women of the Wall praising the police for the protection they provided, and "call[ing] on ultra-Orthodox leadership to denounce all forms of violence against women."

Indian Court Sentences 3 To Life In Prison for 1984 Anti-Sikh Killings

The Business Standard reports that a court in India yesterday sentenced 3 defendants to life in prison for killing 5 people in 1984 in anti-Sikh riots that followed the assassination of prime minister Indira Gandhi.  The prosecution had sought the death penalty. Two others involved (a former councilor and former legislator) were sentenced to 3 years for rioting. All 5 also received fines.  The 5 were convicted in a trial last month.  In that trial, Indian National Congress Party leader Sajjan Kumar was acquitted.

Court Denies Freedom of Information Request Relating To NYPD Surveillance of Muslims

In Asian American Legal Defense & Education Fund v. New York City Police Department, (NY Sup. Ct., May 6, 2013), a New York trial court upheld the NYPD's rejection of a Freedom of Information Law request by two groups seeking to learn more about the city's domestic surveillance program that targeted Muslims.  The groups sought information regarding record keeping and retention, policy guidelines and statistics related to the surveillance. The court said that the city properly relied on the statutory exemption for information "compiled for law enforcement purposes and which, if disclosed, would: (i) interfere with law enforcement investigations or judicial proceedings; [or] (iii) identify a confidential source or disclose confidential information relating to a criminal investigation; or (iv) reveal criminal investigative techniques or procedures ." The court also identified several other exceptions that would justify denial of parts of the FOIL request. The New York Daily News reports on the decision.

Land Agreement Under Reformed FLDS United Effort Plan Trust Upheld

In Town of Colorado City v. United Effort Plan Trust, (D AZ, May 8. 2013), an Arizona federal district court gave a victory to the state of Utah in its efforts to reform the United Effort Plan Trust which holds property occupied by members of the polygamous Fundamentalist Church of Latter Day Saints (FLDS). In this lawsuit, the twin towns of Colorado City, Arizona and Hildale, Utah (along with their water and electric companies) sought a declaratory judgment as to (1) whether transfers of property by the court-appointed special fiduciary are constitutional, and (2) whether the Cookes who occupy a parcel of land under a 2008 agreement with the special fiduciary or Robert Black who previously occupied it through a 1999 oral agreement under the unreformed trust have a legal right to it.

As to the constitutional issue, the court held that while the claim was not barred by res judicata or collateral estoppel (see prior posting), the towns are barred by the doctrine of laches from asserting their claims:

Plaintiffs waited years to assert that claim, during which hundreds of property transactions were completed in reliance on the validity of the reformed trust and Mr. Wisan’s actions

On the question of right to occupancy, the court ruled in favor of the Cookes.  It focused on language in the trust at the time Black obtained his occupancy rights: "use of property owned by the United Effort Plan Trust is not and does not
become a right or claim of anyone who may benefit in any way from the Trust." It also concluded that the statute of frauds precludes Black from asserting a claim of property rights and that Black has abandoned any rights he had in the property.

Puerto Rico Federal Court Issues Opinion Explaining Its Prior Order On Proselytizers' Access To Gated Communities

In a long-running free-exercise/ free-speech case, in March a the federal district court in Puerto Rico, on remand from the 1st Circuit, ordered neighborhood homeowners' associations (urbanizations) that allow entry into the neighborhood only through an unmanned locked gate operated by a key, access code or beeper to provide Jehovah's Witnesses who wish to proselytize in the neighborhood access equal to that of residents. (See prior posting.) Apparently the negative response to the ruling impelled the court to issue an opinion further explaining its order. Watchtower Bible Tract Society of New York, Inc. v. Municipality of Santa Isabel, (D PR, May 6, 2013), is an opinion captioned: "Order Summarizing the Law and Court Orders Regarding the Right of Jehovah's Witnesses To Access Public Streets In Gated Communities In Puerto Rico." In it, the court said in part:

The Court is aware this case has sparked extreme public debate...  The Court is not deaf to the concerns of the general public that resides in gated communities. To be sure, as much as this case is about civil liberties, it is also about the frightening amount of crime currently suffocating the island. The general public, as evidenced by the hordes of motions recently filed by the Municipal Defendants, appears not to grasp the notion that this Court is only enforcing an order of a higher court. In doing so, this Court must strike a balance between a legitimate form of protection against crime and protecting the civil liberties of the citizenry in Puerto Rico....

The Court has not granted unfettered access to violent criminals, nor should any knowledgeable or reputable person spread such fear. The gates were erected as a means to reduce crime on the island. Since the enactment of the Control Access Law, crime has not substantially abated on the island. The Court is not aware of a single instance in which any Jehovah’s Witness has been charged or convicted of a crime while expressing his or her religious beliefs. The Jehovah’s Witnesses enjoy the same First Amendment rights as all residents of Puerto Rico. If access to public streets can be denied to them, then access can be denied to anyone. For example, an aspiring politician will be barred from going door-to-door seeking endorsements. Likewise, the press could also be prevented from entering a gated community to cover the reactions of residents to a court ruling, as that in this case. More so, during Easter, Catholics could similarly be barred from participating in a Via Crucis on public streets....

A copy of this order shall be provided by each Municipality to the administrator of every gated community.

Catholic Army Sergeant Claims Harassment Because Fellow-Soldiers Thought She Was Muslim

AP reported at length yesterday on the problems faced in the U.S. Army by Sgt. 1st Class Naida Hosan who is Catholic, but whose fellow-soldiers thought she was Muslim.  She was taunted so much by other soldiers that before deploying to Afghanistan last year, she changed her name to Naida Christian Nova. However this did not stop the anti-Muslim slurs and jokes directed at her. Nova is a multicultural Farsi linguist. She says that when she filed a formal complaint about her treatment in 2007, her commander removed her from her job and ordered her to take a mental health evaluation. Ultimately she was sent back from Afghanistan to Ft. Bragg and threatened with an involuntary termination of her military career for  "ineffective leadership." After a federal lawsuit was filed, the Army dropped all its disciplinary charges and Nova has re-enlisted.

Another Contraceptive Coverage Challenge Filed By A For-Profit Small Business

Suits challenging the Affordable Care Act contraceptive coverage mandate continue to be filed. Thomas More Law Center announced the filing of a suit yesterday on behalf of a family-owned company that is a leading supplier of custom injection molding products, and on behalf of the four brothers who own and control the business. Three of the brothers are Catholic and one is Baptist. The complaint (full text) in M&N Plastics, Inc. v. Sebelius, (ED MI, filed 5/8/2013), asserts that plaintiffs in particular object to the requirement that the health insurance policies they provide cover Plan B and ella "since they believe those drugs could prevent a human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of a person." The complaint alleges that the mandate violates the 1st Amendment, RFRA and the Administrative Procedure Act.

Texas Trial Court Says Cheerleaders Can Use Run-Throughs With Religious Messages

A Texas trial court yesterday decided a widely-followed Establishment Clause case.  In Matthews v. Kountze Independent School District, (TX Dist. Ct., May 8, 2013), the court rejected an Establishment Clause challenge to high school cheerleaders displaying their own banners and "run-throughs" containing religious messages at football games and other sporting events. The court had previously issued a temporary injunction after concluding that the cheerleaders were engaging in private religious expression. (See prior posting.) In yesterday's brief decision, the court said in part:

The evidence in this case confirms that religious messages expressed on run-through banners have not created, and will not create, an establishment of religion in the Kountze community.

After the decision, Texas attorney-general Greg Abbot issued a statement (full text) saying in part:

This is a victory for religious liberties and for high school cheerleaders who stood up to powerful forces that tried to silence their voices. The Freedom From Religion Foundation was wrong in trying to bully Kountze ISD into prohibiting the cheerleaders from displaying banners with religious messages. Our Constitution has never demanded that students check their religious beliefs at the schoolhouse door.

Texas Governor Rick Perry also issued a statement (full text), praising the cheerleaders of showing "great resolve and maturity beyond their years." Liberty Institute issued a press release announcing the decision, and ABC News reports on the decision in the widely-followed case. The Freedom From Religion Foundation issued a press release calling the decision "misguided."

Statement Clarifies Charges That Military Has Been Hostile To Evangelical Christians

In recent weeks, the blogosphere has been filled with various charges that the U.S. military has taken actions seen as hostile to evangelical Christians.  On Monday, the Southern Baptist Convention's North American Mission Board and Ethics and Religious Liberty Commission issued a statement (full text) finally bringing some clarity to what actually happened.  As it turns out, the military has admitted that some of its actions were erroneous and corrected them. Other actions were mischaracterized in the media. The military does take the position that "proselytizing", defined as unwelcome coercion of religious beliefs, would be considered a Uniform Code of Military Justice offense.  Unwelcome advances are seen as violating good order and discipline by forcing faith beliefs on others.

City Officials Tell Store Owner To Remove Madonna Statue From Traffic Island

West Springfield, Massachusetts has created a beautification initiative under which businesses and individuals on the West Side agree to landscape and maintain specific parcels of public property. According to today's The Republican, officials in West Springfield have told local pizza store owner Antonio Liquori that he has gone too far in his beautification activities. After receiving several complaints, officials have ordered Liquori to remove a statute of the Virgin Mary that he put up nearly a year ago on a traffic island he has adopted. At least one local resident, Joan Palermo, is mounting a petition drive to get the statute returned. According to 22 News, Palermo complained: "Everyone I know was very upset…The Virgin Mary wasn't doing anything, she was beautiful." City officials say that in the future, beautification efforts will be limited to plantings.