Recent Articles of Interest

From SSRN:

• Marvin Lim, A New Approach to the Ethics of Life: The 'Will to Live' in Lieu of Traditionalists' Notion of Natural/Rational and Progressives' Autonomy/ Consciousness, (April 4, 2014).
• Arjya B. Majumdar, Zakat, Dana and Corporate Social Responsibility, (April 6, 2014).
• Corinna Lain, God, Civic Virtue, and the American Way: Reconstructing Engel, (Stanford Law Review, Vol. 67 (2015 Forthcoming)).
• Hannah Lepow, Speaking Up: The Challenges to Section 501(C)(3)'s Political Activities Prohibition in a Post-Citizens United World, (Columbia Business Law Review, Forthcoming).
• R. Craig Wood & William E. Thro, Originalism and the State Education Clauses: The Louisiana Voucher Case as an Illustration, (Education Law Reporter, 2014, Forthcoming).
• Jay Ulfelder, Using the 'Wisdom of (Expert) Crowds' to Forecast Mass Atrocities, (March 27, 2014).
• Ellen P. Aprill, Nonprofits and Political Activity: Lessons from England and Canada, (142 Tax Notes 1114 (2014); Loyola-LA Legal Studies Paper No. 2014-9).

From SmartCILP:

• Tom Johnson, The Preconstruction of Witness Testimony: Law and Social Discourse in England Before the Reformation, 32 Law & History Review 127-147 (2014).
• Turan Kayaoglu, Giving an Inch Only to Lose A Mile: Muslim States, Liberalism, and Human Rights in the United Nations, 36 Human Rights Quarterly 61-89 (2014).
• John Rhodes, Up In Smoke: The Religious Freedom Restoration Act and Federal Marijuana Prosecutions, [Abstract], 38 Oklahoma City University Law Review 319-365 (2013).
• Stefan K. Stantchev, "Apply to Muslims What Was Said of the Jews:" Popes and Canonists Between a Taxonomy of Otherness and Infidelitas, [Abstract], 32 Law & History Review 65-96 (2014).
• Conference on Religious Legal Theory: RTL IV: Expanding the Conversation. Foreword by Samuel J. Levine; articles by Marie A. Failinger, Ronald R. Garet, Fuat Gursozlu, Randy Lee, G.J. McAleer, Geoffrey P. Miller and Mary Szto. 30 Touro Law Review 1-126 (2014).
• Discrimination Against Muslim Americans in a Post-9/11 World. Articles by Amara S. Chaudhry-Kravitz, Nancy Hollander, Hamid Khan and Asma Uddin. 20 Washington & Lee Journal of Civil Rights & Social Justice 3-81 (2013).
• The Freedom of the Church in the Modern Era. Prologue by Steven D. Smith; articles by Richard C. Schragger, Micah Schwartzman, Richard W. Garnett, Paul Horwitz, Frederick Mark Gedicks, Andrew Koppelman, Patrick McKinley Brennan, Alan Brownstein, Thomas C. Berg, John D. Inazu, Robert K. Vischer, Michael A. Helfand, Robert F. Cohran, Jr. and Kent Greenawalt; responses by Thomas A. Smith and Frederick Mark Gedicks. 21 Journal of Contemporary Legal Issues 1-486 (2013).

Italian Court Orders Recognition of Same-Sex Marriage Performed In New York

In Italy for the first time last Thursday, a court ordered the recognition of a same-sex marriage.  UPI reports that a judge in Grosetto ordered the local registry to record the marriage of two men who were married in a civil ceremony in New York in 2012. The court said that the Italian civil code "contains no reference to sex in relation to the requisites" for marriage. The Italian Bishops' Conference issued a statement saying that the ruling raises serious questions.

Maryland County Will Obey Injunction on Christian Prayer

Last Tuesday, a week after a contempt of court motion was filed against members of the Carroll County, Maryland Board of Commissioners for violating a court order barring them from using specific Christian references in Council invocations, the Board by a vote of 3-2 adopted a resolution to obey the court's order, at least while the case is in litigation.  Christian Post reports that unedr the resolution, only Board President Dave Roush will present the invocation. He may still refer to "God," "Heavenly Father," "God of Abraham," or similar phrases, but will not use the name "Jesus."  One of the two commissioners voting against the motion, Richard Rothschild, complained: "[T]his resolution asked me to refuse to acknowledge the Son of God. In my judgment, this resolution asked me to, in effect, disown him.... Censorship is not freedom."

Battle Over Estate Raises Issues of Religious Marriage and Interfaith Relations

Estate of Chaim Weisberg, (NY Surr. Ct., April 8, 2014), is a suit over competing claims to administer an estate.  Its underlying narrative offers a fascinating glimpse into religious relationships in the United States.  Chaim Weisberg, who came from an Orthodox Jewish family and apparently continued to practice Judaism, died without a will on Aug. 29, 2012.  His mother (through her daughter as her designee) asserts that Weisberg was unmarried, while Jannah Geaney claims to be Weisberg's wife. Each claims to be the sole distributee of Weisberg's estate and filed competing petitions for administration.

In 2008, Weisberg apparently become romantically interested in Geaney and sought out an acquaintance who had been a tenant of his family for help in arranging an Islamic marriage to Geaney. This led to Wesiberg's converting to Islam at New York's second largest mosque (Madina Masjid), and his marriage to Geaney in a religious ceremony performed by Imam Yousuf Abdul Majid on June 21, 2008.  Apparently the parties did not take out a civil marriage license. Weisberg did not inform his family of the marriage ceremony until January 2012 when he told his sister.  By then the couple's relationship had become troubled. In February Weisberg's attorney drafted, but did not file, a divorce petition.  Instead both parties filed in Family Court for orders of protection against each other. By March 2012, though, the couple said they wanted to reconcile and withdrew the petitions. Less than six months later Weisberg was hospitalized and died.

Weisberg's mother (through her daughter) claimed in court that Weisberg's marriage ceremony was invalid as a matter of Isamic law.  The court ruled, however, that this is a matter of religious doctrine that may not be determined by a civil court.  However the court also refused to grant summary judgment to Geaney, saying:

A religious marriage in New York is valid if conducted in accord with the requirements of New York's Domestic Relations Law. In relevant part, this requires that the couple participate in a religious marriage ceremony, before a member of the clergy authorized to perform such a ceremony and at least one other witness, in which they solemnly declare that they take each other as husband and wife (DRL §§ 11, 12) .

Movant's proof is deficient in two respects. First, she produces no evidence as to the qualifications of Imam Majid to officiate at a marriage. The person officiating must be a "clergyman or minister" of a bona fide religion (DRL § 11[1]).... In this case, however, the record is completely silent as to the source of the imam's religious authority.

Second, the record does not contain a description of the ceremony sufficient to establish that the parties solemnized the marriage. DRL § 12 is explicit that while "[n]o particular form or ceremony is required ... the parties must solemnly declare in the presence of a clergyman and the attending witness or witnesses that they take each other as husband and wife."

The case now proceeds with discovery and trial.

Recent Prisoner Free Exercise Cases

In Blaine v. California Health Care Facility, 2014 U.S. Dist. LEXIS 33686 (ED CA, March 12, 2014), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that he has not been allowed to attend church.

In Williams v. Champagne, 2014 U.S. Dist. LEXIS 47753 (ED LA, April 6, 2014), a Louisiana federal district court permitted a Rastafarian inmate who was placed in lock down for refusing to cut his dreadlocks to proceed with his RLUIPA challenge to the prison's hair policy.

In Harris v. Ellis, 2014 U.S. Dist. LEXIS 48604 (ED CA, April 8, 2014), a Muslim inmate challenged a prison's policy to serve him only a symbolic portion of lamb for his Eid-ul-Adah meal. A California federal district court dismissed the claim because the request for injunctive relief is moot and damages are not recoverable under RLUIPA.

In Potts v. Holt, 2014 U.S. Dist. LEXIS 49176 (MD PA, April 8, 2014), a Pennsylvania federal district court dismissed on qualified immunity grounds a Muslim inmate's complaint that the religious diet program was discontinued for 2 weeks during a prison lock down necessitated by the outbreak of food poisoning among inmates who ate in the regular meal program. Plaintiff did not eat the food served him during the lock down for fear he would be removed from the religious diet program for doing so.

In Khadzhimurad v. Sacramento County Sheriff Department, 2014 U.S. Dist. LEXIS 49876 (ED CA, April 9, 2014), a Muslim inmate complained that halal meals had been replaced by vegetarian meals.  A California federal magistrate judge held that while plaintiff may have a 1st Amendment or RLUIPA claim, his pleadings presently do not set out one. The court dismissed the complaint but provided that an amended complaint may be filed.

European Court Chamber Decision Says Hungary's Church Law Violates Human Rights Convention

In Magyar Keresztény Mennonita Egyház and Others v. Hungary, (ECHR, April 8, 2014), the European Court of Human Rights, in a 5-2 chamber judgment, held that Hungary's 2011 Church Act violates the European Convention on Human Rights.  This excerpt from a press release by the Court  summarizes the majority decision:

As a result of the new Church Act, the applicant communities had lost their status as churches eligible for privileges, subsidies and donations. While the Hungarian Government argued that the Constitutional Court’s decision on the Act had remedied their grievances, the applicant communities found that they could not regain their former status unimpaired. In the Court’s view, it was important that the applicant communities had been recognised as churches at the time when Hungary adhered to the European Convention on Human Rights, and they had remained so until 2011. The Court recognised the Hungarian Government’s legitimate concern as to problems related to a large number of churches formerly registered in the country, some of which abused State subsidies without conducting any genuine religious activities. However, the Government had not demonstrated that the problem it perceived could not be tackled with less drastic solutions, such as judicial control or the dissolution of churches proven to be of abusive character.

Concerning the possibility open to the applicant communities of re-registration as fully incorporated churches, the Court noted that the decision whether or not to grant recognition lay with Parliament, an eminently political body. The Court considered that a situation in which religious communities were reduced to courting political parties for their favourable votes was irreconcilable with the State’s duty of neutrality in this field.... 

The withdrawal of benefits following the new Church Act in Hungary had only concerned certain denominations, including the applicant communities, as they did not fulfill certain criteria put in place by the legislator, notably as to the minimum membership and the duration of their existence. Referring to a report by the European Commission for Democracy through Law (“Venice Commission”) on the Church Act, the Court agreed with the report’s finding that it was an excessive requirement for a religious entity to have existed as an association internationally for at least 100 years or in Hungary for at least 20 years.... 

The Court concluded ...  that the measure imposed by the Church Act had not been “necessary in a democratic society”. There had accordingly been a violation of Article 11 [freedom of assembly and association] read in the light of Article 9 [freedom of thought, conscience and religion].

The decision is not final since the parties may still request review by the Grand Chamber of the Court. [Thanks to Alliance Alert for the lead.]

Union University Files Challenge To ACA Contraceptive Coverage Rules

According to ABP News, Southern-Baptist affiliated Union University filed a lawsuit in federal district court in Tennessee last week challenging the application to it of the Affordable Care Act contraceptive coverage mandate and the opt out rule for religious non-profits. The lawsuit says that the University objects to coverage for Plan B, ella and IUD's that may prevent implantation of a fertilized egg. The suit was filed at this time because changes in the University's prior health plan ends its grandfathered status on May 1.

TRO Requires Indiana To Recognize One Couple's Same-Sex Marriage

According to the Huffington Post, yesterday in Baskin v. Bogan, (SD IN, April 10, 2014) an Indiana federal district court issued a temporary restraining order requiring the state of Indiana to immediately recognize the same-sex marriage of Niki Quasney and Amy Sandler.  The TRO was granted because Quasney has stage 4 ovarian cancer, and recognition of the marriage that took place in Massachusetts is needed so Sandler can handle her spouse's affairs after her death and access benefits available for a surviving spouse and children of the marriage (who were born to Sandler through reproductive technology). The order comes as part of a case that more broadly challenges Indiana's ban on same-sex marriage. (Links to pleadings.) (See prior related posting.)

Preliminary Injunction Denied In Land Use Suit Against Texas Synagogue

In Dallas, Texas yesterday, a state trial court judge refused to issue a preliminary injunction to prevent an Orthodox synagogue from continuing to use a home for daily worship services for some 30 families.  In Schneider v. Gothelf, (Collin Co. TX Dist Ct.), plaintiff contended that the use was disruptive and violated deed restrictions imposed by the neighborhood homeowners' association that limit the homes to residential use. (Dallas Morning News.) Congregation Toras Chaim filed a brief in opposition (full text) making numerous procedural and substantive arguments. After the judge's decision, Liberty Institute issued a release saying in part: "We are excited that we were able to successfully defend the religious liberty rights of this congregation on the eve of Passover."

10th Circuit Hears Oral Arguments In Challenge To Utah's Ban On Same-Sex Marriage

Yesterday, the U.S. 10th Circuit Court of Appeals heard oral arguments in the Utah same-sex marriage case, Kitchen v. Herbert. Audio of the full oral arguments is available online. Equality on Trial has a written summary of the oral arguments. In the case, a Utah federal district court declared Utah's state constitutional and statutory bans on same-sex marriage invalid under the due process and equal protection clauses of the federal constitution. (See prior posting.)

Dating Website Sues Mormon Church Over Intellectual Property Rights

Courthouse News Service reported yesterday on a lawsuit filed in federal district court in Texas by Jonathan Eller founder of "Mormon Match" against an affiliate of the Mormon Church. Mormon Match is planned as an LDS singles dating website. Before beginning operation of the dating service, Eller filed an application to trademark the name "Mormon Match."  Intellectual Reserve, Inc.-- the holder of the LDS Church's intellectual property rights-- began an an opposition proceeding before the Trademark Trial and Appeal Board claiming that the LDS Church has total ownership of the word "Mormon."  In response to that proceeding, Eller filed the current suit seeking a declaration that the LDS Church does not have exclusive rights to the word "Mormon" and seeking a temporary injunction to prevent Intellectual Reserve from "taking further action to interfere with Mormon Match's operation of the dating website, pending a decision on the merits of this action."

TSA Issues Passover Alert To Screeners

The Jewish holiday of Passover begins Monday evening. Last week, the Transportation Security Administration issued a statement (full text) alerting its screeners and other personnel to the upcoming holiday and to "the unique items" and "religious practices" they may encounter among passengers:

This may include reading of religious text or participating in prayer rituals. Observant travelers may be wearing a head covering, prayer shawl, and phylacteries -- in Hebrew, kippah, tallit, and tefillin. Some travelers will be carrying boxes of matzoh, which are consumed as part of the Passover ritual. Matzoh can be machine or handmade and are typically very thin and fragile, and break easily. Passengers traveling with religious items, including handmade matzoh, may request a hand inspection by the TSO of the items at the security checkpoint.

Missouri Court Denies TRO To Prevent Same-Sex Couples' Joint Tax Filings

In Messer v. Nixon, (MO Cir. Ct., April 4, 2014), a Missouri state court judge refused to issue a temporary restraining order to prevent state tax officials from accepting joint returns from same-sex couples. The court concluded that plaintiffs had not shown the irreparable injury necessary for issuance of a TRO.  The court said: "should the ultimate outcome of this litigation establish that such an income tax filing was improper resulting in state income taxes being illegally avoided or refunded, the State has, as it always has had, the right to challenge that filing and seek recovery." Links to all the pleadings in Messer v. Nixon at on Marriage Equality Wikia. Missouri Gov. Jay Nixon's office issued a statement after the April 4 decision, defending the Executive Order that permits same-sex joint filing as being consistent with Missouri law which requires state tax conformity to federal tax definitions.

Draft of Justice Department's New Racial Profiling Rules Adds Limits On Religious Profiling

The New York Times reports today on the draft revisions to the Justice Department's racial profiling rules.  Under the proposal, limits will be placed on the use of religion, national origin, gender and sexual orientation, as well as race, in profiling for law enforcement purposes. They will also increase the threshold for using these criteria and eliminate the broad national security exception now in place. However the new rules will not change the current practice of mapping neighborhoods by nationality or the use of nationality to recruit informants or track foreign spies.

Quick Ruling on Same-Sex Marriage Sought In North Carolina

The North Carolina ACLU yesterday announced several legal steps it has taken to get a quick ruling on recognition of same-sex marriages in the state. In a case that was initially filed in 2012 and expanded in 2013, plaintiffs this week filed a motion for a preliminary injunction so that a same-sex North Carolina couple married in Massachusetts can get their child who suffers from cerebral palsy on the private health insurance policy of one of the parents (instead of remaining on Medicaid).  Separately, the organization filed a new lawsuit on behalf of three same-sex couples married elsewhere seeking recognition in North Carolina of their marriages. The suit asks for a prompt ruling because one member of each couple has a serious medical condition. AP has more on the legal moves.

Quebec Election Results Scuttle Controversial Parts of Proposed Charter of Quebec Values

In elections in the Canadian province of Quebec on Monday, Liberals won 70 of the 125 seats in the National Assembly. Party Quebecois (PQ) won only 30. As reported by CTV News, this loss for PQ derails much of its push for a Charter of Quebec Values that, among other things, would have barred public employees from wearing overtly religious symbols in the workplace. (See prior posting.) During the election,  Liberal Leader Philippe Couillard said that he opposed the ban on public sector workers wearing religious symbols. Speaking to reporters yesterday, Couillard said he would quickly address the issues raised by the proposed Charter, and hoped to find elements such as government neutrality and protection of religious rights on which there is general agreement.

President Signs Bill Granting Pension Funding Flexibility To Charities

On Monday, the President signed into law HR 4275,  the Cooperative and Small Employer Charity Pension Flexibility Act. Rep. Susan Brooks, sponsor of the bill, described it as follows after the House passed the legislation:

The legislation ensures that charitable and cooperative associations are not swept into the Pension Protection Act of 2006 (PPA) funding rules, which require them to fund their pension plans at levels commonly associated with high risk plans. These groups received a temporary exemption from the rules in 2006 which is set to expire in 2017. H.R. 4275 makes the exemption permanent.

Suit Challenges School's Ban On Student's Religious Valentine's Cards

Alliance Defending Freedom announced yesterday that it has filed a lawsuit on behalf of a Nazareth, Pennsylvania elementary school student and his parents complaining that under school rules the school principal unconstitutionally censored the student's religious Valentine's cards.  The complaint (full text) in J.A. v. Nazareth Area School District, (ED PA, filed 4/7/2014) alleges in part:

5. NASD permitted students in J.A.'s class to distribute a variety of Valentine's cards bearing secular messages, including cards with human skulls, guns, and weapons, as part of the 2014 class celebration of Valentine's Day.

6. But NASD Policy 220, entitled "Student Expression," prohibits students from engaging in any expression, whether oral or written, that "[s]eek[s] to establish the supremacy of a particular religious denomination, sect, or point of view."

7. Pursuant to NASD's Policy 220 and its practice, NASD singled out J.A.'s religious Valentine's cards for prohibition and censure even though there was no evidence that J.A.'s cards would create a material and substantial disruption at school.

Humanists Seek Recognition By Federal Prison On Same Terms As Theistic Religions

The American Humanist Association announced yesterday that it has filed a lawsuit against the Federal Bureau of Prisons seeking require an Oregon federal prison to recognize Humanism as an official religious assignment option. The complaint (full text) in American Humanist Association v. United States, (D OR, filed 4/8/2014), claiming Establishment Clause and equal protection violations, seeks, among other relief, a declaratory judgment and injunction so that humanists and atheists may form study groups to meet to discuss their common beliefs on the same terms as theistic religious groups.

Philippine Supreme Court Upholds Most of Country's Controversial Reproductive Health Act

As reported by the Wall Street Journal, the Philippine Supreme Court yesterday upheld the constitutionality of most of the Philippines' Responsible Parenthood and Reproductive Health Act of 2012 and the implementing rules under it.  (Full text of the Act and the Court's press briefing are available at the Philippine Official Gazette website, as is the full text of the Implementing Regulations.) The Act was challenged by the Catholic Church and faith-based groups in 14 lawsuits that were consolidated for Supreme Court review. Under the Act, the government guarantees universal access to reproductive health care services  and relevant patient information. The Court however struck down eight provisions of the Act and Rules. These provisions that were held unconstitutional:

• require private and religious hospitals to refer patients in non-emergency situations to another convenient health facility and allow minors who have suffered a miscarriage access to family planning methods without written parental consent;
• punish health care providers who do not disseminate information on reproductive health services, regardless of the provider's religious beliefs;
• allow a married person in non-emergency situations to undergo reproductive health procedures without consent of the person's spouse;
• punish providers who fail or refuse to refer a patient in a non-emergency situation to another conveniently located provider, even if the referral violates the provider's religious beliefs;
• punish public officers, regardless of their religious beliefs, who refuse to support reproductive health programs or who hinder implementation of programs;
• require (even for conscientious objectors) rendering of pro bono reproductive health service to secure PhilHealth accreditation;
• define abortifacients as drugs or devices that "primarily" have certain effects;
• penalize a health service provider who requires parental consent from a minor in non-emergency situations.

Parties have 15 days to seek rarely-granted reconsideration by the Supreme Court. After the decision was handed down, the Catholic Bishops' Conference of the Philippines issued a generally conciliatory statement (full text).