Court In India Says State Government Must Enforce Ritual Decision of Temple Managing Committee

In Bhabani PR. Mishra v State, (Orissa High Ct., June 20, 2014), the High Court of the Indian state of Orissa held that the state government must abide by the decision of the Managing Committee of the Jagnnath Temple in maintaining law and order during Rath Yatra (Car Festival).  The Temple Managing Committee made a controversial decision that devotees are not permitted to climb on top of the chariots that carry the deities to the Shri Gundicha Temple. According to the Business Standard, the state government had found itself in the middle of a dispute between priests who wanted the tradition of devotees climbing on the chariots to continue, and the Managing Committee that wanted the tradition ended in conformity with the opinion of HH Shankaracharya, Puri.  The state government had appointed a high level committee to resolve the dispute, but now the state law minister says that the government will merely abide by the decision of the High Court.

UN Committee Concerned Over Child Trafficking For Religious Rituals In Britain

As reported by AFP, the United Nations Committee on the Rights of the Child yesterday released its observations on the report of Great Britain relating to child trafficking. (Full text of UN document),   Among other things, the U.N. committee expressed particular concern about trafficking of children for use in religious rituals:

The Committee is strongly concerned that thousands of children continue to be trafficked every year in the State party, particularly for sexual exploitation and labour, and it expresses its deepest concern about reports that hundreds of children have been abducted from their families in Africa and trafficked to the State party for brutal religious rituals, such as the so-called voodoo and juju rituals. 

Break-Away Presbyterian Congregation Sues To Retain Property Ownership

The Milwaukee Journal-Sentinel reported yesterday that the Sheboygan County, Wisconsin First Church of Oostburg has filed a state court lawsuit against the Presbyterian Church USA in a bid to retain ownership of congregational property in the wake of its vote last week to disaffiliate from the Presbyterian Church USA and join the more conservative Covenant Order of Evangelical Presbyterians. The Church of Oostburg's vote to disaffiliate came just days ahead of the decision at the Presbyterian General Assembly to allow clergy to officiate at same-sex marriage ceremonies and to redefine marriage as a covenant between "two people".  The Presbyterian Church wants the Oostburg congregation to pay $500,000 in order to keep the property.

Pennsylvania Federal Court Denies Intervention To Appeal Same-Sex Marriage Case

As previously reported, in May a Pennsylvania federal district court held Pennsylvania's laws banning same-sex marriage to be unconstitutional, and Pennsylvania Governor Tom Corbett announced that the state will not appeal the decision.  Some two weeks later, Theresa Santai-Gaffney, clerk of courts in Schuylkill County moved to intervene in order to appeal the court's decision to the 3rd Circuit.  In Whitewood v. Wolf, (MD PA, June 18, 2014), the federal district court rejected the motion to intervene.  The court held that Santai-Gafney has not met the criteria for either intervention as of right or permissive intervention.  The court said:

At bottom, we have before us a contrived legal argument by a private citizen who seeks to accomplish what the chief executive of the Commonwealth, in his wisdom, has declined to do.

AP reports on the decision.

Convictions of Anti-Gay Pride Protesters Reversed

In Faust v. State of Texas, (TX Ct. App., June 12, 2014), a Texas state appeals court reversed the convictions of two members of the Kingdom Baptist Church who were charged with interference with public duties.  The convictions grew out of the church members' attempt at a gay pride parade to cross a police line formed to keep a distance between KBC protesters and the parade. The court said in part:

The skirmish line at issue here was not narrowly tailored to serve the government’s interest in public safety. All members of the church were barred from proceeding down the street regardless of whether they had previously assaulted parade-goers or not, whether they were yelling profanity or threatening words or not, or whether they were even protesting at all. Although there was evidence that the police department had received complaints about the church’s “street preaching” many times in the past, the only evidence the church had ever reached beyond the boundaries of protected speech was that one of their members, Chad Sutherland, had assaulted a parade participant at the 2011 parade. There was no evidence that Sutherland was with the church members at the 2012 parade, that any of the members present at the 2012 parade were involved with the 2011 assault, or that any of the members present were threatening any parade-goers with imminent physical injury. ....

The skirmish line prohibited all members of the church from exercising their right of free speech merely because of their association with the church. This is far too broad a limitation.... Although we do not believe that the police were required to wait until violence erupted before they stepped in, we do believe there must have been some indication that the public’s safety was at risk beyond the history of one assault by a member of the organization who may not even have been present at the time the skirmish line was in place..... Because the skirmish line was not narrowly tailored, it was an unconstitutional infringement upon Appellants’ right of free speech.

Christian News reports on the decision.

Student Religious Liberty Bills Await Governors' Signatures In Missouri, North Carolina

This week the North Carolina General Assembly gave its final approval, and sent to the governor for his signature, Senate Bill 370, protecting students' rights to engage in prayer and religious expression in public schools. It allows students to express religious viewpoints to other students to the same extent that students can express non-religious viewpoints, and to express religious viewpoints in classwork and homework without discrimination. It also requires student religious groups to be treated the same as non-religious groups. However students may not harass or coerce other students. The bill also sets out grievance procedures for students or parents who believe a student's religious expression rights have been infringed.

Similarly, the Missouri General Assembly passed and on May 30 sent to the governor for his signature H.B. 1303 protecting student religious liberty. It requires public schools to treat student expression of religious viewpoints in the same manner that they treat expressions of other viewpoints, and protects expressions of religious viewpoints in school work and on clothing worn to school. It gives student religious groups the same rights as non-religious groups. [Thanks to Blog From the Capital for the leads.]

Court Allows Eruv In Long Island Town

In Verizon New York, Inc. v. Village of Westhampton Beach, (ED NY, June 16, 2014), a New York federal magistrate judge gave at least a partial victory to the East End Eruv Association, a Jewish organization that is attempting to place an eruv in Suffolk County, New York. An eruv is a symbolic boundary, marked off with plastic strips (lechis) on telephone poles. Observant Jews may carry items within the eruv on the Sabbath without violating Jewish religious law.  In this case, Verizon and Long Island Lighting Co. granted the Association the right to use their poles for an eruv, but three municipalities objected.  The utilities sued for a declaration that they had the right to allow use of their poles for this purpose.  This opinion ultimately dealt with only one of the municipalities-- Westhampton Beach.  The court concluded that the utilities' franchise agreements do not limit their authority permit the eruv; the Transportation Corporations Law and the LIPA Act provide authority for the utilities to enter contracts for use of their poles; while Westhampton has authority to regulate utility poles owned by the utilities, it has not passed any regulations that prohibit attaching lechis to the poles.  27East and Jewish Week report  on the decision.

Court Upholds Pennsylvania's Sunday Hunting Ban

In Hunters United For Sunday Hunting v. Pennsylvania Game Commission, (MD PA, June 18, 2014), a Pennsylvania federal district court rejected constitutional challenges by a hunters' group to Pennsylvania's ban on Sunday hunting for fur bearing animals or game.  Plaintiffs had asserted that the ban violates the 2nd Amendment, the 14th Amendment's equal protection clause, and the First Amendment's religion clauses. Rejecting plaintiff's establishment clause claim, the court said in part:

The Court cannot divine Plaintiffs’ injury-in-fact from their allegation that “Defendants [sic] enforcement and prohibition on Sunday hunting no longer has a secular basis but instead a religious basis.”

The court also pointed to Supreme Court precedent upholding Sunday closing laws.  AP reports on the decision. (See prior related posting.)

$108M Damages In Faith-Healing Death Upheld

In Mansfield v. Horner, (MO App., June 17, 2014), a Missouri state appellate court upheld a wrongful death judgment of over $108 million in the faith-healing death of Misty Mansfield growing out of complications after the stillbirth of her child.  The suit was brought by Misty's parents against her husband Caleb Horner and Caleb's brother, John, who was the leader of the faith-healing sect to which Caleb and Misty belonged.  The sect, which Misty joined only when she married Caleb, also required a wife to be submissive to their husband's decisions.  Caleb convinced Misty not to go to the hospital when complications arose during her labor at home, and the breech delivery was botched by Caleb and his religious-based birth team.  Caleb's brother John arrived after the stillbirth and prayed for hours attempting to raise the child from the dead, while Misty was not treated for her vaginal cuts and an emergency team that arrived 9 hours later was denied access to Misty by Caleb. A month after the delivery, Misty died from an ongoing infection.

The appeals court rejected nine objections to the trial court's refusal to override the jury's verdict, including an objection that the suit violates the First Amendment's free exercise clause.  Rejecting that argument, the court said in part:

None of [the jury] instructions required the jury to determine the validity of the Horners' belief in faith healing. The jury never had to determine "the truth or falsity" of faith healing. Instead, the instructions required the jury to determine whether or not the Horners' actions -- particularly with respect to Caleb's actions during the home birth and John and Caleb's actions preventing Misty from seeking medical treatment following the home birth -- constituted negligence. Thus, we do not conclude that the trial court committed plain error in overruling the Horners' motion for JNOV with respect to their claim of a First Amendment violation.

District Court Upholds ACA Non-Profit Contraceptive Mandate Rules

In Eternal Word Television Network v. Burwell, (SD AL, June 17, 2014), an Alabama federal district court granted summary judgment to Department of Health and Human Services, rejecting a Catholic media network's challenges to the rules accommodating religious non-profits' objections to the Affordable Care Act contraceptive coverage mandate.  Rejecting EWTN's "substantial burden" argument under the Religious Freedom Restoration Act, the court said in part:

Legally (if not morally) speaking, there is a world of difference between a law that compels EWTN to provide contraceptive coverage directly and one in which the government places that burden on someone else after EWTN opts out. Because EWTN’s only religious objection to the mandate hinges upon the effect it will have on other parties after EWTN signs Form 700 rather than anything inherent to the act of signing and delivering Form 700 itself, the court finds that the mandate does not impose a substantial burden on EWTN’s religious practice within the meaning of RFRA. As a result, EWTN’s RFRA claim fails as a matter of law.

The court also rejected EWTN's free exercise, establishment clause and compelled speech claims.  It concluded that the mandate is a neutral law of general applicability, and that "the accommodation’s certification requirement does not compel EWTN to express any opinions or beliefs that it does not hold."

In a press release reacting to the decision, EWTN said it would file an immediate appeal to the 11th Circuit.

Utah Supreme Court Refuses To Set Aside Default Judgment In FLDS Land Case

In Wisan v. City of Hildale, (UT Sup. Ct., June 17, 2014), the Utah Supreme Court, in the latest decision in the long running litigation over the Fundamentalist Church of Latter Day Saints United Effort Plan Trust, refused on procedural grounds to set aside a default judgment that had been entered against Hildale, Utah and the Twin City Water Authority.  The default judgment came in an attempt by the court-appointed trustee to subdivide the trust land in order to facilitate distribution of separate parcels that did not carry liability for neighbors' tax delinquencies.  The court held that the grounds asserted by defendants are not ones that can be raised in a direct appeal of a trial court's refusal to set aside a default judgment.

Egyptian Appeals Court Imposes Jail Sentence On Teacher For Allegedly Insulting Islam

In Egypt on Sunday, a appellate court sentenced a 23-year old Coptic Christian elementary school teacher to 6 months in jail for insulting Islam.  According to Arutz Sheva, the head of the parents' association at a Luxor school filed a complaint last May against teacher Demiana Emad claiming that she told her students that the late Coptic pope Shenuda III was better than the Prophet Mohammed. However an Egyptian civil rights group says she only presented a lesson in comparative religion. A trial court had imposed a fine equivalent to approximately $14,000 (US) on the teacher.  Both she and the state appealed, and the appellate court imposed the heavier sentence. Apparently an additional appeal can still be filed.

Obama Moves Toward Executive Order To End LGBT Discrimination By Federal Contractors

According to The Hill, a White House official announced yesterday that "the President has directed his staff to prepare for his signature an Executive Order that prohibits federal contractors from discriminating on the basis of sexual orientation or gender identity."  No specific date for signing the executive order was announced, apparently in the hope that the House of Representatives will take up the Senate-passed Employment Non-Discrimination Act (ENDA) which would extended LGBT non-discrimination protection to all workers. However this seems unlikely in the face of opposition by House Speaker John Boehner who says that ENDA would cost jobs by creating frivolous law suits.

Man Charged After He Destroys Statue of Jesus For Religious Reasons

Yesterday's Charleston Post and Courier reports on the arrest last Sunday of 38-year old Charles Jeffrey Short for malicious injury to real property after he hammered off the head of a statue of Jesus that stands near a Charleston, South Carolina Catholic church. Short says he was making a religious statement. He told police he battered the statue with a sledge hammer "because the second or first commandment states to not make an image of a male or female to be on display to the public." Police are investigating whether Short was also involved in a similar incident last Friday in which a head and two hands were broken off another statue depicting Jesus and a child that stands at the same church.

SCOTUS Review Denied Over Interesting Dissent In Challenge To School Graduations In Churches

The U.S. Supreme Court today denied certiorari in Elmbrook School District v. John Doe 3, (Docket No. 12-755, cert. denied 6/16/2014), but with an unusual opinion dissenting to the denial of review, written by Justice Scalia and joined by Justice Thomas. (Order List, [scroll to end for opinion]). In the case, the 7th Circuit, in a 7-3 en banc decision, held that two Wisconsin high schools violated the Establishment Clause when they regularly held their graduation ceremonies in the sanctuary of a non-denominational evangelical Christian church. (See prior posting.)

Justice Scalia's dissent focuses largely on the Supreme Court's decision earlier this term in Town of Greece, reading that opinion more broadly than many commentators have so far done. Justice Scalia implicitly sees Town of Greece as impacting more than just invocations before legislative bodies, and says almost nothing about the special concern that the Court has shown historically for religious activities in public schools.  He begins his dissent with this summary:

Some there are-- many perhaps-- who are offended by public displays of religion.... I can understand that attitude: It parallels mine toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

My own aversion cannot be imposed by law because of the First Amendment.

Justice Scalia then goes on to argue first that Town of Greece abandons the "endorsement test" under the Establishment Clause, and that, second, it requires coercion amounting to more than mere offense to show an Establishment Clause violation. Lastly he emphasizes that the Establishment Clause should be interpreted according to historical practices and understandings, a consideration absent from the 7th Circuit's majority opinion. [Thanks to Marty Lederman via Rellgionlaw for the lead.]

North Carolina County Seeks Lifting of Injunction After Town of Greece Decision

The Winston-Salem Journal reported last week that Forsyth County, North Carolina is asking a federal district court to lift a 2010 injunction that barred it from continuing a policy of opening County Board of Commissioners meetings with prayers that are repeatedly Christian. The 4th Circuit had affirmed the issuance of the injunction. (See prior posting.) Last week's motion comes in light of the Supreme Court's recent decision in Town of Greece permitting a neutral policy that nevertheless results in primarily Christian invocations opening legislative bodies. Here is Forsyth County's brief in support of its motion to lift the injunction.  ADF issued a press release announcing the filing of the motion.

Recent Articles of Interest

From SSRN:

• Valerie J. Munson, Fraud on the Faithful? The Charitable Intentions of Members of Religious Congregations and the Peculiar Body of Law Governing Religious Property in the United States, (Rutgers Law Journal Vol. 44, No. 3, 2014).
• Bruce Ledewitz, Experimenting with Religious Liberty: The Quasi-Constitutional Status of Religious Exemptions, 6 Elon Law Review (2014).
• Kevin P. Lee, Emanuel Levinas on Hegel's Antigone: Levinas and the Problem of Modernity, (May 30, 2014). 
• Sara L. Ainsworth, Amicus Curiae Brief: Stormans, Inc. v. Selecky, (Hastings Women's Law Journal, Vol. 24, No. 2, pp. 303-37, Summer 2013).
• Tabatha Abu El-Haj, All Assemble: Order and Disorder in Law, Politics, and Culture, (University of Pennsylvania Journal of Constitutional Law, Vol. 16, No. 4, 2014 Forthcoming).
• Seema Mohapatra, Time to Lift the Veil of Inequality in Health Care Coverage: Using Corporate Law to Defend the Affordable Care Act, (May 23, 2014).
• Alice E. Marwick & Ross W. Miller, Online Harassment, Defamation, and Hateful Speech: A Primer of the Legal Landscape, (Fordham Center on Law and Information Policy Report No. 2, June 10, 2014).
• Nancy J. Knauer, Navigating a Post-Windsor World: The Promise and Limits of Marriage Equality, (Georgetown Journal of Gender and the Law, Vol. 16, 2014, Forthcoming).

From SSRN (Islamic law):

• Hussein Elasrag, Corporate Governance in Islamic Financial Institutions, (May 26, 2014).
• Muhammad Munir, Rights of Children in Islamic Law: A Review of Selected Literature, (May 29, 2014).
• Timur Kuran, Institutional Roots of Authoritarian Rule in the Middle East: Civic Legacies of the Islamic Waqf, (Economic Research Initiatives at Duke (ERID) Working Paper No. 171, June 12, 2014).

From SmartCILP:

• Julie Maher, Eweida and Others: A New Era for Article 9?, 63 International & Comparative Law Quarterly 213-233 (2014).

Hearing Discloses Developments In Reformation of FLDS Land Trust

On Friday, a Utah state trial court held a one-and-a-half hour hearing in the state's 9-year long effort to reform the United Effort Plan Trust.  The Trust holds property of the polygamous FLDS Church in the sect's twin towns of Hilldale, Utah and Colorado City, Ariz.  AP and Fox13 report that a number of developments were revealed at the hearing. Judge Denise Lindberg urged the court-appointed trustee to begin evicting residents who have been ignoring the $100-per month housing fee for as long as 7 years. Collectively over $4.18 million in back fees is owed. During the hearing, Utah Attorney General Sean Reyes urged the court to appoint a board to take over redistribution of the 750 homes owned by the Trust.  Judge Lindberg said that she has chosen seven people for the board, but will not set it up until fees are being paid so the trust will have a stable source of revenue, and until liability insurance can be obtained for board members. It was also announced that former-FLDS member Willie Jessop has agreed with the court-appointed trustee to cooperate with investigations and litigation in exchange for receiving land.  In yet another development, the Arizona Attorney General's office told the court that it plans to file papers today to dismantle the Hildale/ Colorado City Town Marshal’s Office.

Court Rejects Claims Against Diocese By Victim of Clergy Sexual Abuse

In John Doe v. Corporation of the Catholic Bishop of Yakima, (ED WA, June 12, 2014), a Washington federal district court  dismissed negligent supervision and negligent infliction of emotional distress claims against the Diocese of Yakima brought by the victim of an incident of sexual abuse perpetrated by a deacon that occurred when the victim was 17 years old. While finding that the suit was not barred by the statute of limitations, the court held that no special relationship existed between the diocese and plaintiff, and the diocese had no reason to believe that the deacon posed a risk of inappropriate sexual conduct. National Catholic Reporter reports on the decision.

Recent Prisoner Free Exercise Cases

In Jones v. Conrad, (8th Cir., June 2, 2014), the 8th Circuit upheld the dismissal of an inmate's complaint that he was denied permission to receive two religious publications sent to him through the mail. He failed to show that the denial substantially burdened his ability to practice his religion.

In Davis v. Abercrombie, 2014 U.S. Dist. LEXIS 74934 (D HI, June 2, 2014), a Hawaii federal district court refused to reconsider its prior denial of summary judgment to defendants on Native Hawaiian inmates' complaints that they were denied daily outdoor group worship; and were denied daily access to amulets and bamboo nose flutes. However reconsideration was granted as to inmates' lack of access to certain other sacred items. The court also dismissed certain claims for prospective equitable relief as moot.

In Porter v. Biter, 2014 U.S. Dist. LEXIS 77476 (ED CA, June 4, 2014), a California federal magistrate judge dismissed, with leave to amend, a Muslim inmate's attempt to obtain an order allowing him to change his legal name to a religious name and to use the religious name during normal prison activities such as sending and receiving mail.

In Cole v. Danberg, 2014 U.S. Dist. LEXIS 77773 (D DE, June 6, 2014), a Delaware federal district court permitted a Muslim inmate to proceed with many of his claims for injunctive relief growing out of alleged religious discrimination, denial of right to observe Islamic holidays and have congregational prayer, and refusal to allow the Islamic community to raise funds.

In Schlemm v. Frank, 2014 U.S. Dist. LEXIS 78601 (WD WI, June 10, 2014), a Wisconsin federal district court dismissed, partly on exhaustion and partly on substantive grounds, a complaint by a Native American inmate seeking sweat lodge ceremonies on a weekly basis, a Ghost Feast meal that includes wild game, and the right to wear multicolor headbands. a ribbon shirt, bear-claw jewelry and a personal pipe.

In Lindsey v. Bradley, 2014 U.S. Dist. LEXIS 78856 (SD IL, June 9, 2014), an Illinois federal district court permitted a Rastafarian inmate to proceed with his complaint that his dreadlocks were forcibly cut.

In Davis v. Hubler, 2014 U.S. Dist. LEXIS 78835 (ED NC, June 10, 2014), a North Carolina federal district court dismissed a complaint by a Nation of Islam inmate that he was not permitted to receive the weekly publication Final Call.

In Glenn v. Wilson, 2014 U.S. Dist. LEXIS 79303 (ND IN, June 10, 2014), an Indiana federal district court dismissed a complaint by an Eastern Orthodox inmate that he was unable to attend Eastern Orthodox religious services first when he was placed in administrative segregation and then when he was transferred to a prison without Orthodox services.