Religion Clause

Wednesday, June 11, 2014

Conversion Therapy Victims Can Recover Treble Damages Under New Jersey Consumer Fraud Act

In Ferguson v. JONAH (Jews Offering New Alternatives for Healing), (NJ Super., June 6, 2014), a New Jersey trial court held that plaintiffs who paid defendant for counseling and other methods to purge unwanted same-sex attractions can recover treble damages under the New Jersey Consumer Fraud Act, Sec. 56:8-19 for money spent on therapy to repair the damage done by JONAH's original conversion therapy. The court concluded that those costs constitute the kind of "ascertainable loss" required by the statute before treble damages may be recovered. The Southern Poverty Law Center issued a press release announcing the decision.

Tuesday, June 10, 2014

9th Circuit: Suit To Claim Nazi Confiscated Artwork Can Proceed

In Von Saher v. Norton Simon Museum of Art at Pasadena, (9th Cir., June 6, 2014), the U.S. 9th Circuit Court of Appeals held in a 2-1 decision that the sole living heir of a Jewish family whose art collection was forcibly "purchased" for a fraction of its value by Nazi leader Herman Goring can proceed with a suit to recover two of the paintings presently in a California art museum. The majority held that the suit. brought under California law, is not in conflict with U.S. foreign policy. Judge Wardlaw dissented.

Czech Court Wipes Away 45 Year Old Convictions of 4 Jehovah's Witnesses

In the Czech Republic last Friday, a court in Pizen entered an order of judicial rehabilitation wiping away the 1969 convictions of four Jehovah's Witnesses who were fined for visiting people and speaking with them about the Bible. At that time, the Communist regime in the country combated all churches. According to yesterday's Prague Post, Judge Iveta Zítková said that the rehabilitation gives "a sort of moral satisfaction" to the four who are now in their 60's and retired.

Suit Challenges North Dakota's Same-Sex Marriage Ban

Religion News Service reports that on Friday, a federal lawsuit was filed challenging North Dakota's state constitutional and statutory bans on same-sex marriage. Up to now, North Dakota had been the last state with an unchallenged gay marriage ban. The complaint (full text) in Ramsay v. Dalrymple, (D ND, filed 6/6/2014) challenges both the ban on same-sex marriages in the state and the state's refusal to recognize same-sex marriages performed elsewhere. It contends that the bans violate the equal protection and due process clauses of the 14th Amendment, and that the non-recognition of out-of-state marriages infringes on the fundamental right to travel. According to Freedom To Marry, there are now ongoing court challenges to same-sex marriage bans and/or non-recognition requirements in 31 states and Puerto Rico. Nineteen states and the District of Columbia already have full marriage equality.

Court Rejects Challenge To New York Vaccination Requirements

In Phillips v. City of New York, (ED NY, June 4, 2014), parents who object to vaccinating their children on religious grounds challenged New York's law that allows religious exemptions. Even though most of the children involved received an exemption, plaintiffs complain that the state requires them to detail their religious beliefs in order to qualify. Schools also apparently require unvaccinated children to remain home when any classmate contracts a vaccine-preventable disease. The court dismissed plaintiffs' free exercise, substantive due process and equal protection challenges to the law.

Monday, June 09, 2014

Pope Hosts Prayer Summit With Israeli, Palestinian Presidents

As reported by the New York Times, yesterday Pope Francis hosted a "prayer summit" in the Vatican bringing together Palestinian President Mahmoud Abbas and Israeli President Shimon Peres. Ecumenical Patriarch Bartholomew of Constantinople, head of Orthodox Christians, also attended the ceremony held in a garden behind St. Peter’s Basilica. Vatican Radio has the full text of the remarks of the Pope, President Abbas and President Peres.

Suit Charges Religious Discrimination, Claims Retaliation For Complaining About Training Video Using Nazi Images

Reuters reports on a $40 million federal religious discrimination lawsuit filed Friday in New York by Jean-Marc Orlando, a former managing director at BNP Paribas North America. Orlando, an Orthodox Jew, claims he was fired after 18 years with the bank because he complained about Nazi imagery in a video he and other managers were shown in 2011 at a training session in Amsterdam. The video was a parody on the depiction of the final days of the Hitler regime, and portrayed BNP's competitor Deutsche Bank as Hitler.

Judge's Religious References In Sentencing Did Not Prejudice Defendant

In State of North Carolina v. Earls, (NC App., June 3, 2014), a North Carolina appellate court held that a defendant who was convicted on charges of rape, incest and taking indecent liberties with a child was not prejudiced by the trial judge's references to the Bible and divine judgment in sentencing him to 45 to 55 years in prison. [Thanks to Alliance Alert for the lead.]

Sunday, June 08, 2014

Pro-Marriage Group Entitled To Actual Damages For Erroneous IRS Release of Donor Data

In National Organization for Marriage, Inc. v. United States, (ED VA, June 3, 2014), a non-profit organization whose purpose is "to protect marriage and the faith communities that sustain it" sued the federal government under 26 USC Sec. 7431 for damages growing out of the IRS's unauthorized release in 2011 of Schedule B of the organization's Form 990. Schedule B lists donors of over $5000 to the organization and should have been redacted before releasing the Form 990 in response to a media request. The Schedule B was ultimately published by the Huffington Post along with an article focusing on the fact that it showed a $10,000 donation by a political action committee associated with Mitt Romney. The court held that plaintiff is entitled to actual damages, but not to punitive damages for willful disclosure or gross negligence. The court also dismissed plaintiff's unauthorized inspection claim.

European Court Says Turkey Mistreated Jehovah's Witness Conscientious Objectors

In Buldu and Others v. Turkey, (ECHR Second Section, June 3, 2014) (full text in French), the European Court of Human Rights held that Turkey violated the European Convention on Human Rights Art. 3 (inhuman and degrading treatment) and Art. 9 (freedom of thought conscience and religion) in its prosecution and conviction of four Jehovah's Witnesses who were conscientious objectors to military service. It also held that Turkey violated Art. 6, Sec. 1 (fair trial) as to one of the petitioners who complained that he had had to appear as a civilian before a court made up exclusively of military personnel. The court (in an appealable Chamber Judgment) awarded substantial amounts in damages to each petitioner. More information on the decision is available in the Court's English language press release, and from Law & Religion UK blog.

Supreme Court Review Sought In NY Pregnancy Service Center Case

On Friday, the American Center for Law and Justice filed a petition for certiorari (full text) with the U.S. Supreme Court in Evergreen Association, Inc. v. City of New York. In the case, the 2nd Circuit upheld a portion of a New York City ordinance requiring pregnancy service centers to make certain disclosures to potential clients in waiting rooms, in advertisements and in telephone conversations. The Second Circuit in its Jan. 17, 2014 opinion (full text) upheld (by a 2-1 vote) the requirement to disclose whether or not there is a licensed medical provider on staff. The circuit court unanimously struck down the requirements to disclose whether or not the center provides or refers out for abortion, emergency contraception and prenatal care, and a requirement to disclose that the New York health department encourages women who may be pregnant to consult a licensed medical provider.

Recent Prisoner Free Exercise Cases

In Hailes v. Collier, 2014 U.S. Dist. LEXIS 76127 (SD OH, June 3, 2014), an Ohio federal magistrate judge recommended dismissing a complaint by Seventh Day Adventist inmate that he was retaliated against for not reporting for snow removal duty on his Sabbath.

In Watts v. Allen, 2014 U.S. Dist. LEXIS 76402 (MD GA, June 5, 2014), a Georgia federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 76763, May 14, 2014) and dismissed an inmate's complaint that he is being denied a vegan diet.

In Parkell v. Morgan, 2014 U.S. Dist. LEXIS 76989 (D DE, June 6, 2014), a Delaware federal district court dismissed an inmate's complaint that he was denied a kosher diet.

In Mead v. Palmer, 2014 U.S. Dist. LEXIS 77011 (ND IA, June 6, 2014), an Iowa federal district court dismissed a complaint by plaintiff, an involuntarily committed patient at a civil commitment sexual offender unit, that he was not provided a Pentecostal minister to meet with.

In Williams v. Emmons, 2014 U.S. Dist. LEXIS 76528 (MD GA, June 5, 2014), a Georgia federal district court, rejecting in part a magistrate's recommendation (2014 U.S. Dist. LEXIS 77342, May 8, 2014), refused to permit a Muslim inmate to proceed with his claim for compensatory damages despite his weight loss and headaches stemming from the failure to provide him with vegan meals. The court concluded that plaintiff had not alleged more than de minimis physical injury as required by the Prison Litigation Reform Act. However the court permitted plaintiff to proceed with his claim for nominal damages.

Saturday, June 07, 2014

Mexican Destination Wedding Using Internet-Ordained Clergy Did Not Create Lawful New York Marriage

In Ponorovskaya v. Stecklow, (NY County Sup. Ct., May 29, 2014), a New York state trial court dismissed a divorce action, finding that the parties were never legally married. At issue was what the court described as:

a license-less marriage supposedly solemnized in what can only be described as a "pseudo-Jewish" wedding ceremony conducted at a Mexican beach resort by a New York dentist who became a Universal Life Church minister on the internet solely for the purpose of performing weddings for friends and relatives.

The wife who was suing for divorce claimed that even though the ceremony was invalid under Mexican law, the parties were still married because New York Domestic Relations Law §25 provides in part:

Nothing in this article ... shall be construed to render void by reason of a failure to procure a marriage license any marriage solemnized between persons of full age....

However the court held that "DRL § 25 should be construed to apply to weddings that take place outside of New York State only under the most extraordinary of circumstances."

The court went on to discuss, but not decide, whether the marriage was properly solemnized:

These provisions call into question whether a person like Dr. Arbeitman, the dentist/Universal Life Church minister who conducted the ceremony here, is a "clergyman" or "minister" under New York law and thus authorized to officiate at weddings.....

Whether the ULC is a church or not, and whatever its belief system may be, compared to other online "religions" that enable people to pay a small fee, obtain a certificate of ordination and then perform religious wedding ceremonies, it seems practically mainstream. There is, for instance, the Church of the Flying Spaghetti Monster, a religious group comprised of atheists, which, upon the payment of a $20 fee, will make an online applicant a "pastafarian minister." Then there is Dudeism, also referred to the Church of the Latter Day Dude, which portends to be a religious philosophy based on the protagonist in the Coen Brothers' cult classic The Big Lebowski. One can be ordained online for free and be authorized to perform weddings as a Dudeist Priest.

Fortunately, this court need not wade into the treacherous waters of attempting to determine what is a "real" religion and what is not, something that would seem to "necessarily involve an impermissible inquiry into religious doctrine or practice".... Given the finding that ... the parties' purported marriage is invalid because it was "an absolute nullity" under the law of the jurisdiction where it took place, it is not of great moment whether Dr. Arbeitman was legally entitled under New York law to solemnize the marriage.

Egyptian Government Decree Bars Unapproved Imams From Preaching Publicly

Reuters reports that today the Egyptian government issued a decree allowing only state approved clerics to preach in mosques or other public places:

According to the decree, "only designated specialists at the Ministry of Religious Endowments and authorized preachers from al-Azhar shall be permitted to practice public preaching and religious lessons in mosques or similar public places."

Only al-Azhar officials and graduates as well preachers from the ministry or the grand mufti's office will be allowed to wear the trademark "turban" - a red hat with a white cloth band - and robes that designate an al-Azhar cleric, it said.

Unauthorized preachers face fines jail terms up to a year and fines up to 50,000 Egyptian pounds ($7,000). Wearing or denigrating al-Azhar garments in any way will carry similar penalties, it added.

The decree is another step in the government's attempt to prevent mosques from being used as recruiting grounds for Islamist political parties.

Wisconsin's Same-Sex Marriage Ban Struck Down; Marriages Begin Ahead of Motion To Stay Court's Order

Yesterday in Wolf v. Walker, (WD WI, June 6, 2014), a Wisconsin federal district court, in an 88-page opinion, struck down Wisconsin's ban on same-sex marriage. Judge Barbara Crabb wrote in part:

I conclude that the Wisconsin laws prohibiting marriage between same-sex couples interfere with plaintiffs’ right to marry, in violation of the due process clause, and discriminate against plaintiffs on the basis of sexual orientation, in violation of the equal protection clause.... To decide this case in favor of plaintiffs, it is not necessary, as some have suggested, to “cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools,”.... Rather, it is necessary to conclude only that the state may not intrude without adequate justification on certain fundamental decisions made by individuals and that, when the state does impose restrictions on these important matters, it must do so in an even-handed manner.

This case is not about whether marriages between same-sex couples are consistent or inconsistent with the teachings of a particular religion, whether such marriages are moral or immoral or whether they are something that should be encouraged or discouraged.... Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution.

As reported by the Milwaukee Journal-Sentinel, the court's decision does not make clear whether counties may begin to immediately issue marriage licenses. The court declared the state constitutional and statutory provisions barring same-sex marriage unconstitutional and gave the parties until June 16 to submit proposed language for an injunction. The paper reports:

Dane County Clerk Scott McDonell, a Democrat, began issuing marriage licenses at 5 p.m. Friday as gay couples were married there throughout the night. He said state Department of Justice officials advised him not to issue the licenses but McDonell moved forward despite that.

Wisconsin Attorney General J.B. Van Hollen issued a news release announcing that he will file emergency motions in federal courts seeking a stay of the district court's order. Yesterday Van Hollen also issued a statement in a series of nine Tweets saying that his office will continue to defend the constitutionality of "our traditional marriage laws."

Friday, June 06, 2014

Another Temporary Stay For Same-Sex Couples Married In Utah During Gap Period

As previously reported, on May 19 in Evans v. Utah a Utah federal district court granted a preliminary injunction requiring the state to recognize same-sex marriages solemnized under Utah marriage licenses on the 17 days between a federal district court decision striking down Utah's ban on same-sex marriages, and the U.S. Supreme Court's stay of that order. However the district court postponed the effectiveness of its order for 21 days to give the state time to decide how to proceed. The 21-day period would expire on Monday. Yesterday the Utah Attorney General's office announced that it has filed a notice of appeal and a request for a stay with the 10th Circuit in Evans. In response, within hours, the 10th Circuit issued a temporary stay and ordered plaintiffs to respond by June 12 to the motion for a stay pending appeal. (AG office announcement.)

House-Passed Version of Defense Authorization Bill Impacts Chaplains, Religious Expression

The text of HR 4435, the "Howard P. ‘Buck’ McKeon National Defense Authorization Act for Fiscal Year 2015" as it passed the House of Representatives on May 22 is finally available online. The bill contains three provisions impacting military chaplains and religious expression by service members:

Section 507 allows the Secretary of Defense to defer the retirement of a chaplain beyond age 68 if necessary for the needs of the military.
Section 525 authorizes chaplains "called upon to lead a prayer outside of a religious service ... to close the prayer according to the traditions, expressions, and religious exercises of the endorsing faith group."
Section 528 requires the Department of Defense to revise Instruction 1300.17 (DOD's January 2014 policy on accommodation of religious practices-- see prior posting) "to ensure that verbal and written expressions of an individual’s religious beliefs are protected by the Department of Defense as an essential part of a the free exercise of religion by a member of the Armed Forces." Section 528 also requires a similar revision in Air Force Instruction 1-1 (the Air Force's Aug. 2012 policy on free exercise and government neutrality-- see prior posting).

Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

In Valent v. Board of Review, Department of Labor, (NJ App., June 5, 2014), the New Jersey Superior Court Appellate Division held that a nurse employed by a hospital was entitled to unemployment compensation after she was fired for refusing to obtain a flu vaccination as required by the hospital's policy. The hospital policy allowed exemptions for religious or medical reasons, however here the nurse's objections were based on secular non-medical concerns. The court wrote in part:

By exempting employees who can produce religion-based documentation, the employer's flu vaccination policy is clearly not exclusively driven by health-related concerns. The Board cannot therefore accept the policy as a proper basis to find appellant committed an act of insubordination of sufficient magnitude to render her disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(b)....

The religion exemption merely discriminates against an employee's right to refuse to be vaccinated based only on purely secular reasons. Our Supreme Court has clearly cautioned that "[g]overnment may not, under the First Amendment, prefer one religion over another or religion over non-religion but must remain neutral on both scores.".... Under these circumstances, by denying appellant's application to receive unemployment benefits based only on her unwillingness to submit to the employer's religion-based policy, the Board violated appellant's rights under the First Amendment.

AP reports on the decision.

Court Grants Preliminary Injunction To For-Profits and Non-Profits Challenging Required Contraceptive Coverage

In Catholic Benefits Association LCA v. Sebelius, (WD OK, June 4, 2014), an Oklahoma federal district court granted a preliminary injunction to prevent enforcement of the contraceptive coverage mandate against both non-profit and for-profit members of the Catholic Benefits Association, a third-party administrator of health insurance plans for Catholic employers. As to for-profit employers, the court was bound by the 10th Circuit's decision in Hobby Lobby. Finding that the non-profit employers also suffered a substantial burden on their religious exercise by completing the opt-out form that results in contraceptive coverage directly from the third-party administrator, the court said in part:

the Court’s inquiry is focused upon how the plaintiffs themselves measure their degree of complicity in an immoral act, not whether a reasonable observer would consider the plaintiffs complicit in such an act.... Here, Plaintiffs sincerely believe that in executing the form and providing it to their issuers or TPAs, they play a central role in the provision of contraceptive services to their employees—something Plaintiffs find morally repugnant. This is where the Court’s inquiry ends, as it is not the Court’s role to say Plaintiffs’ religious beliefs are mistaken.

The court concluded, however, that as to the Archdioceses of Oklahoma City and of Baltimore, no substantial burden on religious exercise existed because they are totally exempt from the contraceptive coverage mandate. AP reports on the decision. (See prior related posting.)