Religion Clause

Wednesday, April 23, 2014

Georgia Lawsuit Is Latest To Challenge Same-Sex Marriage Ban

Lambda Legal announced yesterday that it has filed suit in federal district court in Georgia on behalf of three same-sex couples and a widow challenging Georgia's statutory and state constitutional bans on same-sex marriage. The complaint (full text) in Inniss v. Aderhold, (ND GA, filed 4/22/2014) was filed as a class action and challenges both the ban on same-sex marriage and the non-recognition of same-sex marriages performed in other jurisdictions. According to a Washington Post compilation, with the filing of this lawsuit, only four states-- Alaska, Montana, North Dakota and South Dakota-- have same-sex marriage bans that are not being challenged in court; and a suit is in the offing in South Dakota.

Suit Charges Student Not Admitted To Community College Program Because of His Expression of Religious Beliefs

ACLJ announced yesterday that it has filed a federal lawsuit on behalf of student Brandon Jenkins against The Community College of Baltimore County Maryland for denying Jenkins admission to the school's radiation therapy program in part because of Jenkins' expression of his religious beliefs. The complaint (full text) in Jenkins v. Kurtinitis, (D MD, filed 4/21/2014) alleges that the program director explained Jenkins' rejection in part as follows:

I understand that religion is a major part of your life and that was evident in your recommendation letters, however, this field is not the place for religion. We have many patients who come to us for treatment from many different religions and some who believe in nothing at all. If you interview in the future, you may want to leave your thoughts and beliefs out of the interview process.

Tuesday, April 22, 2014

Brunei Postpones Phase-In of Sharia Criminal Code

The small southeast Asian nation of Burnei has postponed implementation of a new sharia criminal code that had been scheduled to take effect today. According to AFP, no new date has been given for implementing the phase-in of sharia penalties that eventually will include flogging, severing of limbs and death by stoning. AFP says:

Burnei’s Sultan Hassanal Bolkiah — the driving force behind sharia — is visiting Singapore, and the government is believed to be waiting for the all-powerful Islamic monarch to return before introducing the sensitive legal code.

But the delay could feed perceptions of hesitation by the 67-year-old sultan — one of the world’s wealthiest men — who earlier this year faced a backlash from the country’s social-media-savvy citizens.

City Council Settles Suit By ending Invocations, Abolishing Chaplain Position

The Freedom From Religion Foundation announced last week that it has reached a settlement with the city of Pismo Beach, California which it sued last year challenging its practice of opening city council meetings with Christian prayer, usually offered by the city chaplain who is a Pentecostal clergyman. (See prior posting.) In the settlement, which must be approved by the court, the city agreed to end its practice of opening meetings with prayer, abolish the city chaplain position, and pay plaintiffs nominal damages and attorney fees of about $47,500. [Thanks to Andrew Seidel for the lead.]

Suit Challenges Daily School Recitation of Pledge of Allegiance

The American Humanist Association announced yesterday that it has filed suit in a New Jersey state court challenging New Jersey's statutory requirement that schools open each day with the Pledge of Allegiance that includes the phrase "under God." The complaint (full text) in American Humanist Association v. Matawan-Aberdeen Regional School District, (NJ Super Ct., filed 4/19/2014) which raises only state constitutional claims contends that the daily classroom exercise unconstitutionally discriminates on the basis of religion against plaintiffs who hold Humanist or atheist religious views.

2 Suits Say Japan's Prime Minister Violated Religion-State Limits In Visiting Yasukuni Shrine

In Japan yesterday, 273 plaintiffs filed suit asking the Tokyo District Court to rule that the visit last December to the Yasukuni Shrine by Prime Mnister Shinzo Abe violated Japan's constitutional separation of politics and religion. Asahi Shimbun reports that the suit claims the visit aggravated relations with neighboring nations because in addition to memorializing Japan's war dead, the shrine memorializes 14 Class-A war criminals from World War II. A similar lawsuit was filed in the Osaka District Court on April 11. Yesterday's suit seeks an injunction against future visits by the prime minister plus a minimal amount in damages.

U.S. Supreme Court Grants Review In Dispute Over Passport Listing of Jerusalem As Place of Birth

The U.S. Supreme Court today granted certiorari in Zivotofsky v. Kerry, (Docket No. 13-628, cert. granted 4/22/2014). (Order List.) This is the second time the case will have been heard by the Supreme Court. In 2012 it ruled that the political question doctrine does not prevent federal courts from ruling in a dispute between Congress and the State Department over whether Americans born in Jerusalem are to have "Jerusalem", not "Israel", listed as their place of birth. (See prior posting.) A congressional statute calls for the State Department to change its policy and list "Israel", but the Executive Branch claims that this statute unconstitutionally interferes with the President's constitutional authority to conduct the country's foreign affairs. In a 2013 decision-- the case which the Supreme Court today agreed to review-- the D.C. Circuit agreed with the Executive Branch that the statute impermissibly intrudes on the President’s exclusive power to decide whether and on what terms to recognize foreign nations. (Zivotofsky v. Secretary of State, (DC Cir., July 232, 2013).

Sunday, April 20, 2014

Forfeited Iranian Charity's Building Will Be Sold; Iran Claims Religious Freedom Violation

On Thursday, the U.S. Attorney's Office in the Southern District of New York announced that the federal district court has approved a U.S. government settlement agreement (full text of stipulation) with holders of terrorism-related judgments against the Government of Iran. The agreement among other things provides for the sale of a forfeited building in Manhattan. The building belonged to the Alavi Foundation and Bank Melli, which the court found acted as fronts for the government of Iran. The court last year ordered forfeiture because of violations of the Iranian Transactions Regulations promulgated under the International Emergency Economic Powers Act, and the federal money laundering statutes. In response, yesterday Iran's Ministry of Foreign Affairs issued a statement claiming that "the New York branch of Alavi Fund is an independent charity fund in the United States which has no relation with Iran." It added that the court's verdict violates "the US commitments to respect and safeguard the religious freedom of its own citizens."

Christian School's RLUIPA, Constitutional Challenges To Zoning Denials Are Rejected

In Tree of Life Christian Schools v. City of Upper Arlington, (SD OH, April 18, 2014), an Ohio federal district court dismissed a Christian school's challenge to an Ohio city's refusal to issue a conditional use permit or to rezone for use as a school an existing office building in an area zoned for offices and research facilities. In dismissing the school's claim that the refusal violates RLUIPA's "equal terms" provision, the court held that "the proper comparator for a religious school is a non-religious or secular school." The court also rejected the school's 1st and 14th Amendment challenges to the zoning decision.

Recent Prisoner Free Exercise Cases

In Robledo v. Livingston, (5th Cir., April 14, 2014), the 5th Circuit allowed an inmate to proceed in forma pauperis and vacated the district court’s conclusion that his claims under RLUIPA and the Texas RFRA statute were frivolous. The court held plaintiff's claim that for months he was not allowed to participate in weekly Christian worship services "is not based upon an indisputably meritless legal theory, and his factual contentions are not clearly baseless."

In Layman v. Chacon, 2014 U.S. Dist. LEXIS 50804 (ND TX, April 11, 2014), a Texas federal district court dismissed an inmate's complaint that some of his religious materials were confiscated when they were improperly stored.

In Miles v. Guice, 2014 U.S. Dist. LEXIS 51507 (ED NC, April 10, 2014), a North Carolina federal district court allowed an inmate to move ahead, but denied a temporary restraining order, in plaintiff's suit seeking recognition of Nations of Gods and Earth as a religion and accommodation of his religious diet and other practices.

In Rossi v. Fischer, 2014 U.S. Dist. LEXIS 52068 (SD NY, April 15, 2014), a New York federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 52146, March 31, 2014) and refused to grant a Rastafarian inmate a preliminary injunction to allow a group Rastafarian celebration on April 21 after prison authorities agreed to excuse plaintiff from work that day and serve him a vegetarian meal.

In Johnson v. Hicks, 2014 U.S. Dist. LEXIS 54239 (ED CA, April 17, 2014), a California federal magistrate judge held that an inmate's complaint that his religious materials were confiscated should be dismissed, with leave to amend, since he had not alleged any facts indicating that this substantially burdened his religious exercise.

In Villalobos v. Bosenko, 2014 U.S. Dist. LEXIS 54280 (ED CA, April 16, 2014), a California federal magistrate judge dismissed, but with leave to file an amended complaint, a Buddhist inmate's claim that he was denied a vegetarian diet.

Article Traces Evolution of Obama's Position On Same-Sex Marriage

Today's New York Times Magazine carries a lengthy article titled How the President Got to ‘I Do’ on Same-Sex Marriage. It traces the evolution of President Obama's public position on the issue.

President Obama Sends Easter and Passover Greetings

President Obama used his White House address yesterday (full text) (video) to convey Easter and Passover greetings, saying in part:

These holy days have their roots in miracles that took place long ago. And yet, they still inspire us, guide us, and strengthen us today. They remind us of our responsibilities to God and, as God’s children, our responsibilities to one another.

For me, and for countless other Christians, Holy Week and Easter are times for reflection and renewal. We remember the grace of an awesome God, who loves us so deeply that He gave us his only Son, so that we might live through Him....

The common thread of humanity that connects us all – not just Christians and Jews, but Muslims and Hindus and Sikhs – is our shared commitment to love our neighbors as we love ourselves. To remember, I am my brother’s keeper. I am my sister’s keeper. Whatever your faith, believer or nonbeliever, there’s no better time to rededicate ourselves to that universal mission.

Saturday, April 19, 2014

Anti--SLAPP Motion Granted To Dismiss Suit Growing Out of Ground-Zero Mosque Controversy

Forras v. Rauf, (D DC, April 18, 2014), is a remnant from the widely publicized battle over attempts in 2010 to construct a mosque and community center two blocks from Ground Zero in lower Manhattan. New York City first responder Vincent Forras sued to prevent building of the mosque, claiming that it would be a nuisance, would inflict emotional distress and amounted to an assault. In response to the complaint in that suit, Imam Feisal Rauf and the other defendants moved to dismiss, filing a memorandum of law that, among other things, said that Forras equates Islam with terrorism and has become "America's Spokesman of Bigotry." The suit was ultimately dismissed.

Meanwhile, however, Forras filed this lawsuit against Rauf and the other defendants alleging defamation, false light, assault, and intentional infliction of emotional distress from the statements they made in their memorandum of law seeking dismissal of the original lawsuit. Forras moves to dismiss under the D.C. Anti-SLAPP Act which provides for rapid dismissal of a lawsuit that is filed to chill speech about public issues. The court granted the motion, finding that Forras had not shown a likelihood of succeeding on the merits of his claims. The judicial proceedings privilege would defeat the defamation and false light claims. Plaintiffs also failed to show that they are likely to succeed on their other claims, including their claim that the statements in the original court proceedings "put a de facto Fatwah on Plaintiffs."

Kentucky Supreme Court Fleshes Out The Ministerial Exception Doctrine

In two cases decided earlier this week, the Kentucky Supreme Court clarified the ministerial exception doctrine. In Kirby v. Lexington Theological Seminary, (KY Sup. Ct., April 17, 2014), Jimmy Kirby, a tenured professor teaching Christian social ethics at Lexington Theological Seminary had his employment terminated as part of the seminary's response to a financial crisis it was facing. Kirby sued claiming race discrimination and breach of contract. The court held that the race discrimination claim was barred by the ministerial exception doctrine, saying:

we explicitly adopt the ministerial exception as applicable to employment claims—especially discrimination claims—asserted against a religious institutional employer by an employee who is directly involved in promulgating and espousing the tenets of the employer's faith.....

From a broad perspective, the ministerial exception does not strip a court of its jurisdiction but, instead, simply disallows the forward progress of the particular suit. The ministerial exception's very name inherently suggests it does not operate as a jurisdictional bar. It is an exception, not an exemption. Most likely, a great deal of the current disagreement over the ministerial exception's proper operation stems from the conflation of the ministerial exception with the broader principle of ecclesiastical abstention. Secular courts do not have jurisdiction to hear disputes over church doctrine. But courts do have jurisdiction to hear and resolve employment disputes, contract claims, tort claims, or similar. And that authority is not lost as a result of the ministerial exception.

However the court permitted Kirby to proceed with his claim that his dismissal violated his contractual rights as a tenured professor:

Although state contract law does involve the governmental enforcement of restrictions on a religious institution's right or ability to select its ministers, those restrictions are not governmental restrictions. Simply put, the restrictions do not arise out of government involvement but, rather, from the parties to the contract, namely, the religious institution and its employee.

Contractual transactions, and the resulting obligations, are assumed voluntarily. Underneath everything, churches are organizations. And, like any other organization, a "church is always free to burden its activities voluntarily through contracts, and such contracts are fully enforceable in civil court." Surely, a "church can contract with its own pastors just as it can with outside parties." "Enforcement of a promise, willingly made and supported by consideration, in no way constitutes a state-imposed limit upon a church's free exercise rights."

In a companion case, Kant v. Lexington Theological Seminary, (KY Sup. Ct., April 17, 2014), Laurence Kant, another tenured professor who was terminated at the same time, also sued for breach of contract. The Court held that Kant, a Professor of History of Religion who was Jewish, was not a "minister" for purposes of the ministerial exception doctrine:

we find it important to emphasize the connection between the religious institution's employee and the doctrine or tenets of the religious institution. A minister, in the commonly understood sense, has a very close relationship with doctrine of the religious institution the minister represents. The members of the congregation or faith community view a minister as one who is, among other things, the face of the religious institution, permitted to speak for the religious institution, the embodiment of the religious institution's tenets, and leader of the religious institution's ritual. Kant did none of these things....

[T]he simple fact that an employee professes a different religious belief system than his religious institutional employer does not eliminate the employee as a ministerial employee under the law. The primary focus under the law is on the nature of the particular employee's work for the religious institution. Here, Kant's work was chiefly secular.

Dobson's Family Talk Wins Preliminary Injunction Against ACA Contraceptive Coverage Rules

In Dobson v. Sebelius, (D CO, April 17, 2014), a Colorado federal district court issued a preliminary injunction preventing the government from enforcing the Affordable Care Act contraceptive coverage mandate against James Dobson's religious non-profit Family Talk. The court concluded that the ACA regulations which allow religious non-profits to opt out, and call for contraceptive coverage to then be furnished directly by insurers or third party administrators, do not eliminate the free exercise burden:

Here, any myopic focus on the brevity of the Exemption Form and its ease of completion misses the mark. It is the de facto forced facilitation of the objectionable coverage that is religiously repugnant to the plaintiffs. The resultant moral abhorrence is not effectively extenuated by a transfer of responsibility via an Exemption Form from the plaintiffs to the TPA. For the plaintiffs, such legal legerdemain does not expiate the morally unacceptable means or end. The transformation of moral culpability from plaintiffs as principals to aiders and abettors does not absolve the plaintiffs from their immutable moral responsibility. Such a compelled concession – even by an ostensibly innocuous legal prophylactic – does not ameliorate the moral ignominy and obliquity created by the pressured participation in the process.

Further, it is of no moment that ultimately the decision by an employee to elect the objectionable coverage is optional. To the plaintiffs, it is the offer per se that is morally offensive regardless of the extent of its acceptance.

Thus, I conclude ultimately that there is a substantial likelihood that the plaintiffs can show that the pressure to execute the Exemption Form imposed on them by the ACA and the concomitant regulations constitutes impermissible pressure to act in violation of their religious beliefs.

Christian Post reports on the decision. (See prior related posting.)

Friday, April 18, 2014

University's Diversity Officer, Demoted For Anti-Gay Marriage Views, Loses Discrimination Lawsuit

In McCaskill v. Galludet University, (D DC, April 14, 2014), the District of Columbia federal district court dismissed a lawsuit brought by Angela McCaskill, Gallaudet University's former Chief Diversity Officer. The University placed McCaskill on administrative leave and eventually demoted her after it become known that at her church she had signed a petition to get a proposed state constitutional amendment to ban same-sex marriage on the Maryland ballot. The University justified its action on the ground that McCaskill's ability to advocate for her constituents, particularly the university's gay community, had been compromised. McCaskill brought the suit alleging discrimination on the basis of race, religion, sexual orientation, marital status, and political affiliation in violation of D.C.'s Human Rights Act; infliction of emotional distress; and defamation. In rejecting McCaskill's religious discrimination claim, the court said in part:

Even if Gallaudet knew of her religious convictions or was aware that those convictions motivated her to sign the petition – a fact that remains hazy on the face of the Complaint – there is no factual allegation that her religion somehow prompted her suspension or demotion. ... [A]lthough it may be true that McCaskill signed the petition because she is a Christian ... the university cannot be guilty of discrimination on that basis.

Washington Business Journal reports on the decision.

Seventh Day Adventist Sues Over Hostility To His Not Working On Saturdays

The New York Post reports on an employment discrimination lawsuit filed in a New York federal district court last Monday by a Seventh Day Adventist who formerly was employed by CVS pharmacy. Plaintiff Nowran Busgith, who worked as a loss-prevention specialist, claims that he had no problems getting Saturdays off work until his supervisor Abdul Salui, a Muslim, learned that the reason for the request was Busgith's observance of his Sabbath. From then on Salui became hostile toward him, repeatedly asked him why he was in a "white boy religion," and refused his requests not to work on Saturdays. The suit seeks an unspecified amount of damages against CVS and Salui.

Australian Court Says Christian Camp Illegally Discriminated On Basis of Sexual Orientation

In Christian Youth Camps Ltd. v. Cobaw Community Health Service Ltd., (Vict. App., April 16, 2014), the Court of Appeal of the Australian state of Victoria, in a 2-1 decision, held that a Christian youth camp unlawfully discriminated on the basis of sexual orientation when it refused to rent out its camp for a weekend to an organization whose goals were to prevent suicide among "same-sex attracted young people." The majority held that neither of the two religious freedom exemptions in the Equal Opportunity Act 1995 apply. The exemption in Sec. 75(2) does not apply because the camp is not "a body established for religious purposes." The exemption in Section 77 (prior to its amendment in 2010) for conduct "necessary ... to comply with the person's genuine religious beliefs or principles" should be read as covering only individuals, and not corporations.

Justice Redlich dissented, arguing that the exemption in Section 77 is available to corporations, and that in addition corporations may claim the exemption when it is validly claimed by an agent of the corporation who acted for it. Christian Today reports on the decision.

10th Circuit Hears Oral Arguments In Oklahoma Same-Sex Marriage Case

As reported by the Los Angeles Times, the U.S. 10th Circuit Court of Appeals yesterday heard oral arguments in Bishop v. Smith. An audio recording of the full oral arguments is available from the court's website. In the case, an Oklahoma federal district court held that the provision in the Oklahoma constitution barring same-sex marriage in the state violates the equal protection clause of the 14th Amendment. The same 10th Circuit panel heard arguments last week in a case challenging Utah's same-sex marriage ban. (See prior posting.)