6th Circuit Hears Oral Arguments In Same-Sex Marriage Cases

The U.S. 6th Circuit Court of Appeals yesterday heard oral arguments in same-sex marriage cases from 4 states.  Here are links to the audio of the argument in each case:

• Michigan: DeBoer v. Snyder (Oral argument)
• Ohio: Obergefell v. Himes; Henry v. Himes (Oral argument).
• Kentucky: Bourke v. Beshar; Love v. Beshar (Oral argument).
• Tennessee: Tanco v. Haslem (Oral argument).

Detroit Free Press and MLive reported on the oral arguments.

Opponents of Houston's Equal Rights Ordinance Sue After Referendum Petitions Rejected

In May, Houston, Texas City Council passed an Equal Rights Ordinance that attracted significant opposition because of its ban on discrimination on the basis of sexual orientation or gender identity. (See prior posting.) Opponents have been circulating petitions to get a repeal referendum on the ballot. On Monday, the city ruled that there were insufficient valid signatures on the petitions.  As reported by the Houston Chronicle, strict city rules disqualify entire pages of signatures when those collecting them are not registered voters or did not themselves sign the petition.  On Tuesday, opponents of the ordinance filed suit in state court challenging the procedure used to disqualify signatures-- city attorneys eliminated numerous names after the City Secretary had initially determined that there were sufficient signatures. The lawsuit sought an immediate injunction against enforcement of the Equal Rights Ordinance. In response, the city has removed the lawsuit to federal court on the ground that one paragraph of the complaint raises a federal claim of interference with the right to petition the government for a redress of grievances. Houston Chronicle says that opponents of the Ordinance see this as a delaying tactic to prevent a state court injunction from being issued.

Rules Limiting Area Around State Fair Where Preacher Can Speak Upheld

In Powell v. Noble, (SD IA, Aug. 5, 2014), an Iowa federal district court in a 40-page opinion refused to issue a preliminary injunction in a Christian preacher's challenge to rules barring his proselytizing in areas around the Iowa State Fair where he might impede traffic flow. The court held preliminarily that the entire Fairgrounds are a limited public forum, at least  during the days the Fair is held.  Restrictions on activities that could impede traffic flow are reasonable. However the court did enjoin defendants from arresting plaintiff (or threatening arrest) solely for protected speech in locations where Defendants conceded there was not interference with traffic flow. Des Moines Register reports on the decision.

Utah Files First Cert Petition In Same-Sex Marriage Challenges

The state of Utah-- acting 6 weeks before its deadline-- yesterday became the first to file a petition for certiorari with the U.S. Supreme Court in the growing number of decisions striking down state bans on same sex-marriage. The petition (full text) in Herbert v. Kitchen urges Supreme Court review of the 10th Circuit's 2-1 decision (see prior posting), saying in part:

This case presents an immensely important question: whether the United States Constitution compels states to adopt a single marriage policy that every individual is allowed “to marry the person of their choice.”... The Tenth Circuit said yes and struck down Utah’s definition—statutorily enacted and adopted into the Utah Constitution by two-thirds of voters in a statewide referendum—that marriage is only between a man and a woman. That ruling deprives Utah citizens of the “fundamental right” to “act through a lawful electoral process,” ... and ignores that the Constitution says nothing about how states must define marriage.

Salt Lake Tribune reports on the filing, and SCOTUS Blog has more background.

NYC Pre-Kindergarten Funding Requires Religious Schools To Draw Fine Church-State Lines

The New York Times reported Monday on the fine church-state lines being drawn by religious schools hosting Mayor de Blasio's government-funded pre-kindergarten programs. Brief guidelines issued to the schools allow the teaching of culture, but not religion. Religious texts may be presented objectively as part of a secular program of instruction.  The Times describes the accommodation reached by some schools:

The biblical story of Noah’s Ark will be taught, without mention of who told Noah to build it. Challah, the Jewish bread eaten on the Sabbath, will be baked, but no blessings said over it. Some crucifixes will be removed, but others left hanging.

(See prior related posting.) [Thanks to Scott Mange for the lead.]

District Court Says Town of Greece Decision Does Not Cover Invocations Offered Directly By County Board Members

After the U.S. Supreme Court decided the Town of Greece case last May, a number of local governments that had been enjoined by lower courts from opening council meetings with sectarian prayers petitioned lower courts to dissolve or modify the injunctions.  One of these was Pittsylvania County, Virginia. However, in Hudson v. Pittsylvania County, Virginia, (WD VA, Aug. 4, 2014), the federal district court held that while it was willing to modify its prior injunction, it would not dissolve it:

... unlike in Town of Greece, where invited clergy and laypersons offered the invocations, the Board members themselves led the prayers in Pittsylvania County. Thus, in contrast to Town of Greece, where the town government had no role in determining the content of the opening invocations at its board meetings, the government of Pittsylvania County itself, embodied in its elected Board members, dictated the content of the prayers opening official Board meetings. Established as it was by the Pittsylvania County government, that content was consistently grounded in the tenets of one faith. Further, because the Pittsylvania County Board members themselves served as exclusive prayer providers, persons of other faith traditions had no opportunity to offer invocations.

While the court was willing to modify the injunction to make it consistent with Town of Greece, it concluded it did not have jurisdiction to do so until the 4th Circuit to which the case had been appealed granted at least a limited remand. AP reports on the decision.

Trial Court Invalidates Florida's Ban On Recognizing Same-Sex Civil Unions

Tampa Bay Times reports that in a ruling on Monday, a Broward County, Florida trial court judge invalidated the 2008 amendment to the Florida Constitution that prohibits recognition of any "legal union that is treated as marriage or the substantial equivalent thereof." The ruling comes in a case in which plaintiff  Heather Brassner asked the Florida court to dissolve her same-sex Vermont civil union. The court concluded that it could not do so without first ruling on the constitutionality of Florida's same-sex marriage ban. After ruling, the court immediately stayed the order, pending appeal. This is the third Florida trial court ruling since July invalidating Florida's same-sex marriage ban. (See prior posting.) Yesterday's opinion in Brassner v. Lade does not appear to be available online yet, but here is the full text of plaintiff's motion for a declaratory judgment and injunctive relief.

Judge Refuses To Recuse Himself On Charges That Jewish Charitable Activities Bias Him In Immigration Trial

The Chicago Sun-Times reports on a decision last week by Michigan federal district court judge Paul Borman in which he angrily refused to recuse himself in the trial of a Palestinian woman charged with hiding her terrorism-related past in coming to the U.S. and applying for U.S. citizenship. Defendant Rasmieh Odeh failed to disclose the fact that she had spent 10 years in prison in Israel after being convicted of taking part in two terrorist bombings in Jerusalem. Her lawyers claim that Judge Borman's long history of support and fund-raising for the Detroit Jewish Federation and his organizing trips to Israel bias him and likely gave him extra-judicial information relevant to defendant's claim that she was beaten and raped while in Israeli custody.  In United States v. Odeh, (ED MI, July 31, 2014), Judge Borman wrote:

My relationship to my faith and my heritage through my activity on behalf of the Detroit Jewish Federation, reads nothing like the innuendo and rank speculation that infects Defendant’s motion.

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.