Report Focuses On Expensive Homes of U.S. Catholic Archbishops

CNN yesterday published an investigative report titled "The Lavish Homes of American Archbishops." The investigation found that 10 of the 34 active U.S. Catholic archbishops live in buildings worth more than $1 million.

Documents Reveal Current IRS Procedures On Church Tax Inquiries

In 2012, the Internal Revenue Service temporarily suspended tax audits of churches accused of violating Section 501(c)(3)'s ban on political participation, pending final adoption of IRS rule changes to clarify which high level Treasury official has authority to make a determination under IRC Sec. 7611 that there are reasonable grounds to begin a church tax inquiry. (See prior posting.) The proposed rules have never been adopted in final form, but as was reported last month, in settling a lawsuit challenging the suspension of church tax inquiries, the IRS assured the Freedom From Religion Foundation that it has adopted procedures for reviewing, evaluating and determining whether to initiate church investigations.

As pointed out yesterday by The Blaze, from a letter attached to the FFRF's Memorandum In Support of Motion To Dismiss, a good deal can be learned of the practices which the IRS now uses. A decision to begin a church tax inquiry is "made by the Commissioner, TEGE, either directly or as concurrence to the determination made by the Director, Exempt Organizations." Complaints about violations of the political intervention ban are evaluated by the Review of Operations unit, and then by the Political Activities Referral Committee.  That process has led to the conclusion that 99 churches merit a high priority examination for activities since 2010.

Dispute Over Authority To Fire Minister Dismissed Under Ecclesiastical Abstention Doctrine

In Anderson v. Truelove, (TX App., July 31, 2014), a Texas appellate court invoked the ecclesiastical abstention doctrine to dismiss a lawsuit brought by Jamall Anderson, the minister of a small 16-member church.  At issue was whether two members who claimed to be a majority of the trustees of the church could dismiss Anderson as minister for taking church funds in order to pay expenses for his sick mother. Two meetings of members-- called without the required days advance notice-- had agreed to forgive Anderson and retain him. The court held that it could not apply the neutral principles approach to decide the dispute because the church's bylaws do not contain any provisions regarding removal of the minister.

Recent Articles of Interest

From SSRN:

• Klaus Prettner & Holger Strulik, It's a Sin - Contraceptive Use, Religious Beliefs, and Long-Run Economic Development, (Discussion Papers on Business and Economics, University of Southern Denmark, 11/2014).
• David Nelken, Rules of Forgiveness and the Role of Narratives in Talmudic Law, (in Alison Diduck, Noam Peleg and Helen Reece eds. Law and Michael Freeman, Brill, 2014 (shortened version)).
• Benjamin Boyd, Take Your Guns to Church: The Second Amendment and Church Autonomy, (Liberty University Law Review, Volume 8, Number 3 (Summer 2014). 
• Erin Morrow Hawley, The Jurisdictional Question in Hobby Lobby, (Yale Law Journal Forum (Fall 2014)).
• Peter Jenkins, Absolutist, Pragmatist and Realist Approaches to Research Ethics in the Digital Humanities: The Case of the Schneerson Collection, (Cultural Research in the Context of Digital Humanities, (Saint Petersburg: Asterion Press, 2013)).
• Christopher McCrudden, Faith-Based Non-Governmental Organizations in the Public Square, (June 30, 2014).
• Rayan Haykal, Acceptability of Civil Marriage in a Multidenominational Society: Results of an Empirical Survey in Lebanon, (July 11, 2014).

Recent Prisoner Free Exercise Cases

In Dulaney v. Hollingsworth, 2014 U.S. Dist. LEXIS 102220 (D NJ, July 28, 2014), a New Jersey federal district court held that habeas corpus is not a proper route to challenge a prison's treatment of the Hebrew Israelite religion as being part of plaintiff's Messianic Sabbatarian religion.

In Stokley v. Dismas Charities, Inc., 2014 U.S. Dist. LEXIS 102234 (WD KY, July 25, 2014), a Kentucky federal district court allowed an inmate to proceed with his claim that the parole board required him to attend a drug and alcohol treatment program at a Catholic-sponsored facility that imposed religion on its residents.

Mitchell v. Indiana Department of Corrections, 2014 U.S. Dist. LEXIS 102418 (SD IN, July 28, 2014), an Indiana federal district court, while dismissing a number of claims, allowed a Rastafarin inmate to proceed with his claim against a corrections officer who allegedly forced him to cut his dreadlocks.

In Bobbitt v. Whitener, 2014 U.S. Dist. LEXIS 102678 (WD NC, July 28, 2014), a North Carolina federal district court dismissed a complaint by an inmate that authorities seized and would not return his Moorish Science Temple of America literature after he refused to sign a Personal Property Inventory Form.

In Mendell v. Kline, 2014 U.S. Dist. LEXIS 103322 (SD IL, July 28, 2014), an Illinois federal magistrate judge permitted a Wiccan inmate to proceed, but only in his action for a declaratory judgment, with his complaint that he was denied the sue of Tarot cards.

In Lyons v. Nevada ex rel. Ortiz, 2014 U.S. Dist. LEXIS 104902 (D NV, July 31, 2014), a Nevada federal district court dismissed a Muslim inmate's claim that inmates were charged $1.25 to participate in the Eid al-Fitr feast and that Muslim inmates were yelled at while picking up their Ramadan meals.

In Oliver v. Harner, 2014 U.S. Dist. LEXIS 105437 (SD IL, Aug. 1, 2014), an Illinois federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 105438, July 10, 2014) and refused to issue a preliminary injunction to a Hebrew Israelite inmate who complained that he received only a vegan, and not a kosher, diet, while Caucasians similarly situated received kosher meals.

Davis v. Abercrombie, 2014 U.S. Dist. LEXIS 105006 (D HI, July 31, 2014), is another in a line of numerous decisions in a suit by Native Hawaiian inmates who complain they were denied daily outdoor group worship and access to various sacred items. In this decision the court granted summary judgment to defendants on various claims, but permitted plaintiffs to proceed with claims for compensatory and nominal damages for free exercise and RLUIPA violations.

In Shabazz v. Robinson, 2014 U.S. Dist. LEXIS 105370 (WD VA, July 31, 2014), a Virginia federal district court dismissed a Muslim inmate's challenge to prison rules that allow inmates to grow beards for religious reasons only in segregated confinement, and not if they want to be housed in the general population.

Parties' Agreement To Dismiss Challenge on IRS Church Audit Rules Trumps Intervenors' Objections

As previously reported, last month the Freedom From Religion Foundation agreed to drop its suit against the Internal Revenue Service after the IRS eliminated its blanket policy of not enforcing Section 501(c)(3) restrictions on political activity against churches. Now the court has granted the parties' joint motion to dismiss the case, over objections of a pastor who had intervened in the case.  In Freedom from Religion Foundation v. Koskinen, (WD WI, Aug. 1, 2014), Holy Cross Anglican Church and Father Patrick Malone had been permitted to intervene to argue that any IRS policy of non-enforcement against churches was required by the Establishment Clause and RFRA. (Background and documents.) In now dismissing the case without prejudice, the court concluded that the dismissal would not prejudice the intervenors. Meanwhile Alliance Defending Freedom has filed a Freedom of Information Act request (full text) seeking copies of any new IRS policies or procedures on church audits.

Uganda's Constitutional Court Invalidates Anti-Gay Law Because of Lack of Parliamentary Quorum

Uganda's Constitutional Court yesterday struck down the controversial anti-homosexuality law passed by the country's Parliament last December and signed into law by Ugandan President Yoweri Museveni in February. The Court avoided the substantive constitutional issue, instead finding procedural defects in the bill's enactment. As reported by AP:

The panel of five judges on the East African country's Constitutional Court said the speaker of parliament acted illegally when she allowed a vote on the measure despite at least three objections - including from the country's prime minister - over a lack of a quorum when the bill was passed on Dec. 20.

The bill provided for punishment up to life in prison for engaging in homosexual relationships, and also called for prison terms for promoting homosexuality. The World Bank and some European countries have withheld aid because of the law.

According to BuzzFeed, the courtroom yesterday became something of a circus as anti-LGBT pastor Martin Ssempa prayed loudly and argued with petitioners in the case as those in the courtroom sat through a 3-hour recess that preceded the Court's handing down its decision.

It is not clear what the practical effect of the ruling will be. There have been no actual arrests under the law, but there has been a 20-fold increase in incidents of anti-LGBT harassment. Also a colonial-era law criminalizing sex acts "against the order of nature" was unaffected by yesterday's ruling.

Can State-Sponsored Terror Victims Satisfy Judgments By Attaching Internet Country Code TLDs?

BNA Electronic Commerce & Law Report [subscription required] this week reported on a fascinating legal issue facing the D.C. federal district court in connection with suits by five victims of state-sponsored terrorism brought against Iran, Syria and North Korea. The victims have all obtained default judgments against the defendant countries, and are now seeking to attach assets in the United States to satisfy the judgments. Among the assets they have identified are the Internet top-level domains assigned to each of the countries.  So the parties issued writs of attachment against the Internet Corporation for Assigned Names and Numbers ("ICANN") purporting to attach the .IR, .SY and KP country code TLDs. Earlier this week, ICANN filed a Motions to Quash (full text) arguing, among other things, that the ccTLDs are not property subject to attachment and are not owned by the countries to which they are assigned.  They also argue that forced redelegation of the ccTLDs would destroy their value.

Restaurant's "Praying In Public" Discount Raises Questions

Inquisitr and HLN reported yesterday on a Winston-Salem, North Carolina restaurant that offers a 15% "Praying in Public" discount.  Apparently Mary's Gourmet Diner awards the discount to diners when a member of the wait staff sees them pray over their food. The story has gone viral, and some raise the question of whether the practice violates the religious discrimination provisions of the 1964 Civil Rights Act.

UPDATE: CBS Charlotte reported on Aug. 7 that the diner has stopped its discount program after the Freedom From Religion Foundation threatened to sue.

Court Upholds New Jersey's Reparative Therapy Ban For Second Time

 In Doe v. Christie, (D NJ, July 31, 2014), a New Jersey federal district court for the second time (see prior posting) rejected constitutional challenges to New Jersey's law barring mental health professionals from treating minors using Sexual Orientation Change Efforts. This challenge was brought by parents seeking reparative therapy for their 15-year old son.  The court said in part:

A3371 does not implicate Plaintiffs’ free speech rights  because the statute (i) does not regulate speech, directly or indirectly, but rather only regulates a mental health procedure performed by licensed counselors or therapists, and (ii) does not prevent the receipt of information regarding SOCE outside  the counseling or therapy setting. Accordingly, Plaintiffs’ claim that the statute violates their right to receive information is  without merit.....

The court also rejected free exercise and parental rights challenges to the law. NBC10 reports on the decision.

Meanwhile, as reported by BuzzFeed yesterday, 9 former leaders of the ex-gay movement signed a letter stating that conversion therapy is both ineffective and harmful.

Congress Passes Two Bills On International Religious Freedom

On Tuesday, Congress sent S.653, the Near East and South Central Asia Religious Freedom Act of 2014, to the President for his signature.  The bill provides that  the President may appoint a Special Envoy to Promote Religious Freedom of Religious Minorities in the Near East and South Central Asia. (Legislative history.)

On Tuesday the Senate gave final passage to H.R. 4028. (Legislative history). The bill amends Sec. 2(a)(4) of the International Religious Freedom Act to add desecration of cemeteries to the list of violations of religious freedom that Congress finds of concern.

Faith Leaders Arrested In Anti-Deportation Demonstration At White House

Huffington Post reports that yesterday over 100 faith leaders and immigration activists were arrested and charged with blocking passage after they refused to disperse from the sidewalk in front of the White House where they were protesting the daily deportations of undocumented immigrants. The protest began a series of anti-deportation events in Washington, DC, culminating in a march and rally on Saturday.

Vatican Orders Removal of Abusive Priest Who Had Continued Career In Paraguay

In a move against the practice of sending priests accused of abuse to other countries, on July 14 the Vatican ordered the diocese of Ciudad del Este in Paraguay to remove Carlos Urrutigoity from his position as vicar general of the diocese.  According to an RNS report yesterday, in 2002, Urrutigoity and another priest were suspended by the Bishop of the Diocese of Scranton, Pennsylvania after being accused of sexually molesting students at a Catholic school there.  The diocese settled a lawsuit in the case for over $400,000. Urrutigoity however was transferred to Canada and then to Paraguay. Earlier this year, Scranton Bishop Joseph C. Bambera publicly complained about Urrutigoity’s career advancement in the Church in Paraguay. The Vatican sent a cardinal and archbishop to Paraguay from July 21-26 to investigate further. They ordered Paraguayan Bishop Rogelio Ricardo Livieres Plano to stop ordaining priests.

North Carolina Can Distribute School Voucher Funds Ahead of Hearing Challenging the Program

A state trial court judge in North Carolina has refused to issue an injunction to prevent the State Educational Assistance Authority from distributing $10 million under a state school voucher plan while a challenge to it is pending. The 2400 students who will receive funds from the oversubscribed program were chosen by a lottery. According to the Raleigh News & Observer, the state moved up by a month the date for distributing funds under the Opportunity Scholarship program to beat any ruling by the court.  The distribution is scheduled for Aug. 15, while a hearing on the challenge to the voucher law is set for Aug. 19.  In February, the trial court had issued a temporary injunction to prevent the voucher program from taking effect while the challenge was being litigated. The state Supreme Court in May stayed the trial court's temporary injunction to permit the lottery to move ahead.  At that time, however, the trial court hearing on the challenge was scheduled to take place before the actual distribution date for funds. (See prior posting.)

Even Congratulating The Pope Has Fallen Victim To Politics

The Hill reported yesterday that the seemingly routine H. Res. 440, a House Resolution that would congratulate Pope Francis on his election last March and recognize his inspirational statements and actions, has fallen victim to politics. The Resolution has not emerged from the House Foreign Affairs Committee, and only 19 of its 221 co-sponsors are Republicans. Apparently at least some Republicans see the Pope as too liberal.  The Resolution was intended to reinforce House Speaker John Boehner's invitation to the Pope to address a joint session of Congress. (See prior posting.) The Pope plans to visit the United States in September 2015. (See prior posting.)

California Appeals Court Upholds Dismissal of Police Officer's Religious Discrimination Claim

In Longmire v. City of Oakland, (CA App., July 28, 2014), a California appellate court upheld a trial court's dismissal of a religious discrimination suit filed by a police sergeant who claimed that an 8-day suspension imposed on him was based on his superior's perception that he was a Black Muslim. Plaintiff, Derwin Longmire, had been the center of a controversy over his handling of the investigation of the murder of a prominent African-American journalist who was allegedly killed because he was writing an unfavorable story about a Black Muslim bakery. Longmire was not disciplined for that investigation, but was for his handling of ten other cases. The appeals court held that Longmire failed to show that he was perceived to be a Black Muslim or that the reasons given for his suspension were pretextual. San Jose Mercury News reports on the decision.

State Department Updates List of "Countries of Particular Concern" Under International Religious Freedom Act

As previously reported, yesterday the State Department issued its 2013 International Religious Freedom Report. Somewhat buried in the announcement and Secretary Kerry's remarks was the revelation that the State Department at the same time updated its list of "Countries of Particular Concern" (CPC).  The countries on the revised list are Burma, China, Eritrea, Iran, North Korea, Sudan, Saudi Arabia, Turkmenistan, and Uzbekistan.  All of these except for Turkmenistan had been on last year's list.

The 1968 International Religious Freedom Act, Sec. 402(b), calls for the President to make CPC designations annually for countries that have "engaged in or tolerated particularly severe violations of religious freedom." The Act also calls for the President to take various actions against such countries.  Secretary Kerry yesterday, in announcing the list, said:

I want to emphasize: This effort isn’t about naming countries to lists in order to make us feel somehow that we’ve spoken the truth. I want our CPC designations to be grounded in plans, action that help to change the reality on the ground and actually help people. That’s why we are committed to working with governments as partners to help them ensure full respect for the human rights of all of their citizens.

In a press release today, the U.S. Commission on International Religious Freedom commended the State Department for making its CPC designations at the same time that it released its International Religious Freedom Report-- something that the Department has not always done. USCIRF also welcomed the addition of Turkmenistan to the list, noting that it had recommended the designation since 2004. The press release did not mention that USCIRF this year also recommended seven other countries-- Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan and Vietnam-- should receive a similar designation. (See prior posting.)

2nd Circuit: Cross At Ground Zero Can Stay In Museum

In American Atheists, Inc. v. Port Authority of New York and New Jersey, (2d Cir., July 28, 2014), the U.S. 2nd Circuit Court of Appeals rejected a challenge by American Atheists to the display in the National September 11 Museum of the 17-foot high "Cross at Ground Zero"-- steel beams in the shape of a cross retrieved from the World Trade Center debris after 9-11. The court summarized its holding as follows:

1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:

a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;

b.   an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled “Finding Meaning at Ground Zero”; the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context; and

c.   there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.

2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.

CNN reported on the decision.

Satanic Temple Says Its Followers Can Claim Exemption From Informed Consent Abortion Laws Under Hobby Lobby Principles

The Satanic Temple announced yesterday that it was launching a campaign against "informed consent" laws that require abortion providers to furnish women certain informational material when they seek an abortion.  Citing the Supreme Court's recent Hobby Lobby decision, the group argues that women can claim an religiously-based exemption from the informational requirements. It makes available through its website a letter that women may download and present to their physician asking for an exemption. The Temple says that it believes the body is subject to one's will alone, and that the informational statutes require biased and false information to be presented to discourage abortions. It explains:

the Supreme Court has decided that religious beliefs are so sacrosanct that they can even trump scientific fact. This was made clear when they allowed Hobby Lobby to claim certain contraceptives were abortifacients, when in fact they are not. Because of the respect the Court has given to religious beliefs, and the fact that our our beliefs are based on best available knowledge, we expect that our belief in the illegitimacy of state ­mandated ‘informational’ material is enough to exempt us, and those who hold our beliefs, from having to receive them.

Huffington Post has more details.

4th Circuit Invalidates Virginia's Same-Sex Marriage Ban

Continuing an unbroken string of victories for marriage equality proponents, the U.S. 4th Circuit Court of Appeals yesterday, in a 2-1 decision, struck down Virginia's ban on same-sex marriage. This is the second federal appeals court to rule on same-sex marriage bans.  In Bostic v. Schaefer, (4th Cir., July 28, 2014), the majority held:

the Virginia Marriage Laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages. 

The court added:

We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.

As reported by the New York Times, the appeal to the 4th Circuit was carried forward by two court clerks after Virginia's attorney general refused to appeal the district court's decision striking down Virginia's bans. They are expected to seek a stay of the court's decision pending an en banc appeal or a petition for certiorari to the Supreme Court.