Texas AG Says City's Ban On Officials Demonstrating Bias By Word or Deed is Unconstitutional

On Thursday, the San Antonio, Texas city council adopted, by a vote of 8-3 an ordinance (full text) expanding its non-discrimination bans to include discrimination on the basis of sexual orientation, gender identity and veteran status. It provides, however, that nothing in the ordinance "shall be construed as requiring any person or organization to support or advocate any particular lifestyle or religious view, or advance any particular message or idea." One of the most controversial portions of the new law is the provision that:

No appointed official or member of a board or commission shall engage in discrimination or demonstrate a bias, by word or deed, against any person, group of persons, or organization on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, veteran status, age or disability, while acting in their official capacity while in such public position.

The Texas Tribune reported Friday that state attorney general Greg Abbott takes the position that this ban violates the free speech and free exercise provisions of the Texas and U.S. constitutions and opens the city to possible lawsuits. He says that the provision could expose officials to removal from office for speaking in favor of Texas' constitutional ban on same-sex marriage.

Recent Prisoner Free Exercise Cases

In Washington v. Afify, 2013 U.S. Dist. LEXIS 125523 (WD NY, Sept. 3, 2013), a New York federal district court dismissed claims by a Muslim inmate that his free exercise rights were infringed by assignment of a cell mate who exposed him to pornographic images and sexually explicit TV and music; that he was denied "religious" meals during Ramadan unless he agreed to work in the mess hall; and that he was not allowed to attend religious services because of misbehavior reports.

In McCallon v. Lasalle Management Co., 2013 U.S. Dist. LEXIS 125768 (WD LA, Sept. 3, 2013), a Louisiana federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 125765, Aug. 5, 2013) and dismissed a Muslim inmate's complaints regarding the method of appointing an imam, limitations on participation in Jum'ah services, an improper Ramadan diet and no Eid feast.

In Price v. White, 2013 U.S. Dist. LEXIS 125946 (WD KY, Sept. 3, 2013), a Kentucky federal district court allowed a Jewish inmate to proceed with his claim that his free exercise and RLUIPA rights were violated when he was forced to shave his head while in segregation, in violation of his religious beliefs.

In Watts v. Byars, 2013 U.S. Dist. LEXIS 126148 (D SC, Sept. 3, 2013), a South Carolina federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 125997, June 10, 2013) and rejected a Muslim inmate's complaint that he was served a vegetarian rather than a Halal menu.

In Martz v. Sci-Coal Township Therapeutic Community, 2013 U.S. Dist. LEXIS 125884 (MD PA, Sept. 4, 2013), a Pennsylvania federal district court allowed an inmate to proceed on his claim that he was denied parole on his earliest release date for failure to attend a drug and alcohol program whose secular option to the religious/spiritual segment existed only on paper and not in reality.

In Patel v. Brewton, 2013 U.S. Dist. LEXIS 126242 (SD GA, Sept. 4, 2013), a Georgia federal magistrate judge recommended that an inmate be permitted to proceed on his complaint that defendant improperly ended his religious meals.

In Taylor v. Hubbard, 2013 U.S. Dist. LEXIS 126311 (ED CA, Sept. 4, 2013), a California federal magistrate judge recommended allowing an inmate who practiced Thelema to proceed with claims that some of his religious items were confiscated. Other claims were dismissed for failure to exhaust administrative remedies.

In Tatum v. Clarke, 2013 U.S. Dist. LEXIS 126821 (ED WI, Sept. 5, 2013), a Wisconsin federal district court rejected an inmate's claim that while in jail he was subjected to a year-long retaliatory conspiracy based on his religion. However he was permitted to proceed with certain other religion claims.

In Allen v. Mikarimi, 2013 U.S. Dist. LEXIS 126996 (ND CA, Sept. 5, 2013), a California federal district court dismissed certain defendants and permitted a Muslim inmate to proceed against others on his complaint that Muslims were denied group worship services, while other religious groups were allowed them.

In Ricks v. Albitre, 2013 U.S. Dist. LEXIS 127662 (ED CA, Sep. 5, 2013), a California federal magistrate judge held that an inmate could proceed against certain of the defendants on the claim that they substantially burdened the practice of his religion by failing to provide Wiccan services and failing to purchase Wiccan materials and artifacts.

Appeals Court Upholds Rejection of Noncomplying Articles of Incorporation For Corporation Sole

In Roman Catholic Bishop of San Jose v. Bowen, (CA App., Sept. 5, 2013), a California state appellate court upheld a decision by the Secretary of State to refuse to file the articles of incorporation for "Pastor of Santee Catholic Mission, a corporation sole," because the dissolution provision in the articles does not comply with the requirement of California law that in case of dissolution any remaining assets be distributed to the religious organization governed by the corporation sole. (Corp. Code Sec. 10015).  The articles submitted called for assets on dissolution to go to the Roman Catholic Bishop of San Jose instead of to the Santee Catholic Mission Parish. The Church had argued that the dissolution provisions in the articles were designed to assure that assets remain with the Catholic community if the parish is suppressed.

Westboro Baptist Church Claims Discriminatory Enforcement of Nebraska Funeral Picketing Law

ABP reports that Shirley Phelps-Roper, a member of Westboro Baptist Church, last week filed an amended complaint in her "as applied" challenge to Nebraska's funeral picketing law.  The complaint alleges discriminatory enforcement of the law against Westboro, known particularly for its anti-gay picketing of military funerals.  It cites at least 16 instances of strict enforcement against Westboro picketers, keeping them blocks away, and says that counter-protesters such as motorcycle riders and other citizens are permitted to gather closer to funeral services. It also claims that local officials have taken legal action against Westboro picketers because of disagreement with their viewpoint. The case was remanded to the district court last April in an 8th Circuit decision in Phelps-Roper v. Troutman, following the 8th Circuit's en banc decision upholding Missouri's funeral picketing law.

Georgia State AG Says Public Utilities Commission Cannot Direct Fine Money To Care Net Pregnancy Centers

The Atlanta Journal Constitution reported Thursday that the Georgia's Attorney General, Sam Olens, has advised the Georgia Public Utilities Commission that it lacks authority to approve a proposal by two GPUC members that would have diverted a $10,000 fine imposed on a telephone company to Care Net, a religious pregnancy counseling charity with ties to the two commissioners who back the plan.  While the Public Utilities Commission can enter settlement with companies under which they agree to alternatives to a fine, it is required that there be a connection between the proposed use of funds and the violation.  So customer refunds, or training to prevent natural gas accidents would be permissible. But here the connection is not clear.  Commissioner H. Doug Everett who proposed the plan (and whose wife works as an unpaid Care Net volunteer) says there is a connection. One of the violations for which Peerless Network of Georgia was cited was a failure to ensure the confidentiality of family violence shelters. Commissioner Tim Echols, a Care Net advisory board volunteer who received consulting fees from the parent organization in 2006, supports Everett's plan, with the condition that if it does not pass, the settlement would direct the $10,000 to charitable medical clinics for expanded broadband access.

Suit By Jewish Nursing Student Seeking Excused Absences On Holidays Is Settled

On Wednesday, just before that start of the Jewish holiday of Rosh Hashanah, Dallas County (TX) Community College District announced a settlement in a case that had been filed the day before by an Orthodox Jewish student in the school's nursing program who sought accommodation of his religious beliefs.  As reported by the Dallas Observer, the school threatened to drop student Hillel Rodin from the program because he would be missing a mandatory orientation on Thursday (Rosh Hashanah) as well as four additional days of clinical observation scheduled for other Jewish holidays.  In settling the case, the parties agreed that Rodin would make up his clinical requirements on appropriate dates in January 2014.  Originally the school insisted that Rodin seek a dispensation from his rabbi allowing him to attend class on the holidays and make clinical rounds on those days, merely postponing writing his observations and diagnoses until after the holiday ended.

Massachusetts High Court Hears State Constitutional Challenge To Pledge

On Sept. 4, the Massachusetts Supreme Judicial court heard oral arguments (video of full arguments) in Doe v. Acton-Boxborough Regional School District. The suit was brought by an atheist-humanist family challenging the constitutionality of the daily recitation of the Pledge of Allegiance in Massachusetts schools. (No student who objects is required to recite the pledge.) The trial court rejected a challenge under the Massachusetts state constitution to the practice, holding that insertion of the phrase "under God" was merely a reference to historical and religious traditions. (See prior posting.)  RNS describes the 35 minute oral argument.

Another Small Business Challenge To Contraceptive Coverage Mandate Filed

This week a suit was filed by another for-profit family-owned business, along with its two controlling officers, challenging the Affordable Care Act contraceptive coverage mandate under the 1st Amendment, the Religious Freedom Restoration Act and the Administrative Procedure Act. The complaint (full text) in Barron Industries, Inc. v. Sebelius, (D DC, filed 9/4/2013) involves a Michigan-based metal products company with 56 full-time employees.  The complaint alleges in part:

  Plaintiffs operate by their business practices, pursuant to their guiding principle— which is their faith in God—and receive grace and guidance from God in all their business practices, including Plaintiffs’ selection of health insurance....

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. Therefore, Plaintiffs seek to exclude this objectionable coverage from their health insurance plan.

The Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Nidal Hasan's Beard Finally Shaved Forcibly By Army

AP reports today that Major Nidal Hasan who was convicted and sentenced to death for killing 13 and wounding 30 in a 2009 shooting rampage at Fort Hood has had his beard forcibly shaved in the military detention barracks at Fort Leavenworth where he is on death row.  After extensive litigation, Hasan, a Muslim, was allowed to keep the beard he had grown for religious reasons during his trial. (See prior posting.)  Fort Leavenworth officials previously said that Hasan would be subject to military grooming regulations there. [Thanks to Scott Mange for the lead.]

Obama In Stockholm Honors Raoul Wallenberg; Sends Rosh Hashanah Greetings

President Obama, who is in Sweden today, visited the Great Synagogue in Stockholm to honor Swedish diplomat Raoul Wallenberg who shielded thousands of Jews from the death camps in World War II.  In his remarks (full text), Obama said in part:

This evening is the first night of the Jewish High Holidays -- Rosh Hashanah.  For our Jewish friends, it’s a time of joy and celebration, to give thanks for our blessings, and to look ahead to the coming year.  So to all our Jewish friends here in Sweden, in the United States, and around the world, especially in Israel -- I want to wish you and your families a sweet and happy new year.  Shanah Tova. 

Vermont Federal Court Has General Jurisdiction Over New York Diocese In Abuse Case

In Shovah v. Mercure, (D VT, Sept. 3, 2013), a Vermont federal district court held that the Diocese of Albany, New York has sufficient contacts with Vermont, primarily through priests who have conducted worship services there, to create general jurisdiction over the diocese in Vermont.  The holding comes in a suit in which plaintiff, a victim of priest sexual abuse, alleges that the Diocese breached its fiduciary duty to by permitting the alleged abuser, former priest Gary Mercure, to hold himself out as a Catholic Priest and that it negligently supervised Mercure.

PETA Becomes Advocate For Buddhist Prisoner Seeing Vegetarian Diet

As those who follow Religion Clause's weekly summary of prisoner free exercise cases know, law suits over religious dietary accommodation arise in federal courts virtually every week. AP reported yesterday on a new organizational advocate that has dipped its toe into the fray.  Buddhist inmate Howard Cosby has been attempting to get a vegetarian diet for religious reasons at his Connecticut prison.  Prison officials insist on including fish three times per week in his meals.  So Cosby has enlisted the held of the animal rights group, People for the Ethical Treatment of Animals (PETA).  As PETA explains in its release on the situation:

This week, PETA wrote to the prison in Cosby's behalf, pointing out that a) fish are not vegetables, as most of us learned in high school biology class, and that b) there is ample legal precedent for granting prisoners the right to vegan and vegetarian meals under the Religious Land Use and Institutionalized Persons Act.... 

Gallup, NM Catholic Diocese To File Chapter 11 Bankruptcy

The St. Louis Post-Dispatch reports that the Catholic Diocese of Gallup, New Mexico plans to file in federal bankruptcy court for Chapter 11 reorganization.  In an August 29 announcement, the Diocese said that the decision was impelled by the increasing number of claims by clergy sex-abuse victims. Bishop James S. Wall explained:

It is very important to me that everyone understands that I have not taken this step to avoid responsibility for what happened or to hide anything. On the contrary, I firmly believe that Chapter 11 is the most merciful and equitable way for the Diocese to address its responsibility, to continue to meet its commitment to institute programs and prevent abuse, and to continue its mission to all those who depend on the outreach of the Church....

The Gallup diocese will be the ninth U.S. Catholic diocese or archdiocese to seek Chapter 11 protection.

President Will Appoint James Zogby To USCIRF

Last week, President Obama announced his intent to appoint Dr. James J. Zogby, President of the Arab American Institute, as a member of the U.S. Commission on International Religious Freedom. Yesterday USCIRF issued a press release welcoming Zogby to the Commission.

Christian Group Wins Challenge To Dearborn's Special Event Permit Ordinance

In Stand Up America Now v. City of Dearborn, (ED MI, Aug. 30, 2013), a Michigan federal district court held unconstitutional Dearborn ordinances requiring applicants for a special event permit to sign an indemnification agreement, with terms established in the unfettered discretion of the the city's legal department.  The case was brought by Stand Up America Now, an organization founded by Florida pastors Terry Jones and Wayne Sapp. The organization's purpose is "to proclaim the Holy Bible to Muslims and to educate people about the threat of Sharia law to our Nation’s fundamental principles of freedom by traveling around the country speaking about Christianity at Muslim events and mosques." The Thomas More Law Center issued a press release announcing the decision. (See prior related posting.)

Canadian Court Dismisses Religious Discrimination Challenge To Royal Succession Rules

Earlier this year, Canada's Parliament passed the Succession to the Throne Act, 2013, which gives assent to the amendments now passed by the British Parliament that eliminate preferences for male heirs in succession to the throne, and eliminates the ban on a monarch being married to a Catholic.  However the British initiative retains the ban on a Catholic actually becoming king or queen of England. In Tesky v. Canada (Attorney General), (Ont. Super. Ct., Aug. 9, 2013), an Ontario trial court dismissed a suit brought by a Catholic recent law graduate contending that Canada's Charter of Rights and Freedoms precludes Canada from consenting to legislation that discriminates on the basis of religion. The court held that the rules of succession cannot be challenged under the Charter of Rights and Freedoms because the succession rules themselves are in effect part of the Constitution.  It also concluded that plaintiff lacks standing to challenge the rules:

[Plaintiff] ... is a member of the Catholic faith but that appears to be his only interest in the issues raised in this application. He has no connection to the Royal Family. He raises a purely hypothetical issue which may never occur, namely a Roman Catholic Canadian in line for succession to the throne being passed over because of his or her religion. Should this ever occur a proper factual matrix would be available to the court to deal with a matter of this importance.

Yesterday's Law Times reported on the decision.

Suit Challenges South Carolina's Refusal To Recognize Same-Sex Marriages

Last week, a suit was filed in a South Carolina federal district court challenging the state's refusal to allow same-sex marriages and its refusal to recognize same-sex marriages legally performed in other states.  The complaint (full text) in Bradacs v. Haley, (D SC, filed 8/28/2013), contends that South Carolina's statutory law (SC Code 20-1-15) and its constitutional provision barring recognition of plaintiffs' marriage (Art. XVII, Sec. 15) violate the due process, equal protection and full faith and credit clauses of the Constitution.  The State reports on the lawsuit that was filed by Highway Patrol Trooper Katherine Bradacs and her spouse, Tracie Goodwin, who were married in the District of Columbia last year.

Times Focuses On Justice Kennedy's Role In Gay Rights Legal Victories

Today's New York Times carries a front-page story titled Surprising Friend of Gay Rights in a High Place, tracing Justice Anthony Kennedy's important role in legal victories for the gay rights movement. It says in part:

Justice Kennedy has emerged as the most important judicial champion of gay rights in the nation’s history, having written three landmark opinions on the subject, including this summer’s Windsor decision, which overturned a ban on federal benefits for married same-sex couples. Those rulings collectively represent a new chapter in the nation’s civil rights law, and they have cemented his legacy as a hero to the gay rights movement.

Recent Articles of Interest

From SSRN:

• Daniel Tagliarina, Power, Privilege, and Rights: How the Powerful and Powerless Create a Vernacular of Rights, (APSA 2013 Annual Meeting Paper).
• Daniel O. Conkle, Evolving Values, Animus, and Same-Sex Marriage, (Indiana Law Journal, Volume 89 (January 2014, Forthcoming)).
• James G. Dwyer, The Parental Choice Fallacy in Education Reform Debates, (Notre Dame Law Review, Vol. 87, No. 5, 2012).
• Dan E. Stigall, The Civil Codes of Libya and Syria: Hybridity, Durability, and Post-Revolution Viability in the Aftermath of the Arab Spring, (Emory International Law Review, Vol. 28, No. 1, 2014).
• Carolyn M. Evans & Anna Hood, Religious Autonomy and Labour Law: A Comparison of Jurisprudence of the United States and the European Court of Human Rights, (Oxford Journal of Law and Religion, Volume 1, Issue 1, 2012).
• Michael J. Perry, Interrogational Torture as a Human Rights Issue: A Brief Further Reflection on the Morality of Human Rights, (August 29, 2013).
• Zvi H. Triger, The Self-Defeating Nature of 'Modesty'-Based Gender Segregation, (Israel Studies, Vol. 18, No. 3, pp. 19-28 (2013)).

From SmartCILP:

• Jennifer L. Bursch & Cassie Cox (student), Qualified Immunity and the Application of Pearson: C.F. ex rel. Farnan v. Capistrano Unified School District, 5 Regent Journal of Law & Public Policy 85-109 (2013).
• James A. Davids, The Establishment Clause and Public Funding of Religious Colleges, 5 Regent Journal of Law & Public Policy 11-83 (2013).
• Patrick T. Gillen, A Winn for Originalism Puts Establishment Clause Reform Within Reach, 21 William & Mary Bill of Rights Journal 1107-1151 (2013).

Court Dismisses Suit By Hutterite Faction Against Opposing Attorneys

In Hutterville Hutterian Brethren v. Sveen, (D SD, Aug. 30, 2013), a South Dakota federal district court dismissed the latest in a long series of lawsuits and appeals surrounding a schism in the Hutterite colonies in the Dakotas and Minnesota. This suit for damages against the attorneys who represented the large majority of colonies that followed Rev. Joseph Wipf, as well as against the court-appointed receiver, alleged fraud, deceit, breach of fiduciary duty and RICO violations. It was filed by the small group of 5 colonies that remained loyal to Rev. Jacob Kleinsasser (who was accused of improper financial dealings). The court concluded:

... [A]s previous litigation has made clear, since voting memberships, directorships and officerships of Hutterville are inseparable from religious principles, these matters are shielded from judicial scrutiny under the First Amendment. ...[C]orporate governance cannot be decided without 'extensive inquiry into religious doctrine and beliefs' of the Hutterian faith."...

As individuals, the Waldner Plaintiffs as claimed members of Hutterville, the communal corporation, have no individual claims for money damages against the Wipf faction lawyers and court-appointed receiver. Having no individual claims is different from having no standing to bring separate claims for the same damages on behalf of Hutterville. The latter claims get dismissed for lack of standing. The former individual claims get dismissed for lack of any property right to make these types of property damages claims due to their individual renunciation of individual property.

(See prior related posting.)