9th Circuit Hears Oral Arguments In 3 Same-Sex Marriage Cases

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in cases from Idaho, Nevada and Hawaii challenging same-sex marriage bans. Audio recordings of the full arguments in each of the cases is available: Latta v. Otter (Idaho); Sevcik v. Sandoval (Nevada); Jackson  v. Abercrombie  (Hawaii). Subsequent to the district court opinion being appealed, Hawaii legalized same-sex marriage. (See prior posting.)  MSNBC, reporting on the oral arguments, called it "a rough day for marriage equality opponents."

Civil Penalties, Injunction Issued Against FLDS Towns

Following on a $5.3 million jury verdict against the FLDS-controlled towns of Colorado City, Ariz., and Hildale, Utah for denying utility service to a couple because they are not FLDS members (see prior posting), a federal court has now imposed a civil damage award and an injunction on the request of the state of Arizona as intervenor.  In Cooke v. Town of Colorado City, (D AZ, Sept. 4, 2014), the court impopsed a $50,000 civil penalty under the Arizona Fair Housing Act against each town and their utility companies.  It also permanently enjoined defendants from discriminating on the basis of religion in performing their official duties, and retained jurisdiction for 10 years in case of violations. The court rejected the state's request that it disband the present law-enforcement offices in the two towns and appointment of a monitor because the requested relief "would burden both Defendants and the State with a layer of bureaucracy extending into potential perpetuity." Finally the court awarded attorneys' fees to the state. Courthouse News Service reports on the decision.

Suit Alleges Anti-Hasidic Conspiracy By Two Municipalities

Invoking RLUIPA, the Fair Housing Act, the 1st and 14th Amendments as well as New York statutory and constitutional provisions, in a 66-page federal court complaint a Jewish school, developers and Orthodox Jewish residents sued the Village of Bloomingburg, NY and the adjoining Town of Mamakating alleging an anti-Semitic conspiracy to prevent more Hasidic Jews from moving into the area. The complaint (full text) in The Bloomingburg Jewish Education Center v. Village of Bloomingburg, New York, (SD NY, filed 9/8/2014), alleges in part:

The Village of Bloomingburg ... and the adjoining Town of Mamakating ,,,, acting on behalf of an aggressive and hateful group of residents, are engaged in a conspiracy to prevent Hasidic Jews from buying houses, establishing a private religious school, and operating businesses in their community. After members of the Hasidic community began to move into the area, Bloomingburg and Mamakating instituted a number of roadblocks designed to stop the community from growing. These municipalities are engaged in a series of patently illegal actions to block lawful, approved and long planned developments....

The Village and Town are seeking to use their political power, economic pressure, zoning laws and sheer intimidation to prevent a certain type of people from joining their community. This type of intolerance might sound like a story from the Civil Rights Era in the South. But it is unfolding right now in a municipality just 75 miles from New York City.

As reported by JP Updates:

The lawsuit is directed at Bill Herrmann, the Supervisor of the Town of Mamakating, who has said that “the people elected him to stop the Jewish infiltration,” and Frank Gerardi, the new Mayor of Bloomingburg, who’s claim to fame is that he was elected to prevent more of “those people” – Hasidic Jews – from moving into Bloomingburg.

8th Circuit Hears Oral Arguments In Individuals' Religious Challenge To Contraceptive Coverage Mandate

The U.S. 8th Circuit Court of Appeals yesterday heard oral arguments (recording of full arguments) in Wieland v. Department of Health and Human Services. In the case, a Missouri federal district court denied a temporary restraining order to a Missouri state employee and his wife who claim that the Affordable Care Act contraceptive coverage mandate forces them to violate their religious opposition to contraception, sterilization, and abortifacients by requiring their group health insurance policy to make these services available to their daughters who are covered by the policy.  The trial court held that plaintiffs lack standing to sue. (See prior posting.) The Kansas City Star reports on yesterday's arguments in which appellants rely on the Supreme Court's Hobby Lobby decision. Appellants argued that the mandate is equivalent to requiring Mormon parents, whose religion forbids alcohol use, to stock unlocked liquor cabinets for their children’s use when parents are not home.

College Applicant Sues Claiming Rejection Because of Religious Beliefs

An applicant to Community College of Baltimore filed suit in a Maryland federal district court yesterday claiming that he was rejected from the radiation therapy program because he discussed his religious belief during his admissions interview.  The complaint (full text) in Buxton v. Kurtinitis, (D MD, filed 9/8/2014) contends that the situation is similar to that which led to a lawsuit lastt year by a different applicant who was similarly rejected. An ACLJ press release discusses yesterday's lawsuit.

Egypt Arrests 7 Who Appeared In Video Of Same-Sex Wedding

AlJazeera yesterday  reported that Egypt has arrested seven men on charges of inciting debauchery and publishing indecent images after a video of them taking part in the country's first same-sex wedding went viral on social media.  The wedding took place last April, but went viral in August. Authorities identified 9 of the 16 people in the video, and arrested 7 of them. Those arrested were remanded in custody for up to four days, and "medical tests" of the men were ordered.

Recent Articles of Interest

From SSRN:

• Nimer Sultany, Religion and Constitutionalism: Lessons from American and Islamic Constitutionalism, (Emory International Law Review, Vol. 28, 2014).
• Nasty M. Vladoiu, Fundamental Freedoms Versus Religious Commandments? ,(August 3, 2014).
• Waverly Crenshaw & Brian A. Pierce, Tennessee's Unique Religious Protections in Employment: Do They Mean What They Say?, (1 Belmont Law Review 1 (2014) ).
• Hugues Fulchiron, The Family Court Judge Taking Religious Convictions into Account: A French and European Perspective, (International Journal of the Jurisprudence of the Family, Forthcoming).
• John D. Inazu, Institutions in Context, (Tulsa Law Review, 2015, Forthcoming).
• Elizabeth Papp Kamali, Felonia Felonice Facta: Felony and Intentionality in Medieval England, (Criminal Law and Philosophy (2014 Forthcoming)).
• Elizabeth Papp Kamali, The Devil's Daughter of Hell Fire: The Role of Anger in Medieval English Felony Adjudication, (August 6, 2014).
• David B. Cruz, Baker v. Nelson: Flotsam in the Tidal Wave of Windsor's Wake, (3 Ind. J. L. & Soc. Equality, 2014, Forthcoming).
• Cyra Akila Choudhury, Ideology, Identity, and Law in the Production of Islamophobia, (38 Dialectical Anthropology __ (2014 Forthcoming)).
• C. Christine Fair, Rebecca Littman & Elizabeth Nugent, Pakistani Conceptualization of Shari'a and Support for Militancy and Democratic Values: A New Empirical Approach, (August 12, 2014).
• Atif Jilani, Atif & Valeed Ahmad Ansari, Game Theory and Auctions from Islamic Viewpoint, (August 16, 2014).

From SmartCILP:

• Pamela Foohey, Bankrupting the Faith, 78 Missouri Law Review 719-776 (2013).

11th Circuit Denies Habeas Even Though Murder Victim's Pastor Opened Voir Dire With Prayer

Bates v. Secretary, Florida Department of Corrections, (11 Cir., Sept. 5, 2014), is a habeas corpus action brought by a death row inmate who was convicted of murder, kidnapping, sexual battery and armed robbery.  At issue in this proceeding was a challenge to the trial judge's action at the beginning of the jury selection process in which he asked a Baptist minister-- pastor of the church at which the victim's funeral took place-- to open the proceedings with a prayer. Petitioner claims ineffective assistance of counsel at trial because of his lawyer's failre to object to the prayer. The court unanimously rejected his claim, but with a shaarp split on the reason for the result:

In a 2-1 decision, the majority held that:

Bates’s lawyer could not be ineffective for failing to raise an Establishment Clause claim, because an Establishment Clause claim, by itself, would not help his client anyway....

More generally on the lawyer's failure to object, the majority said:

Good lawyers, knowing that judges and juries have limited time and limited patience, serve their clients best when they are judicious in making objections. In any trial, a lawyer will leave some objections on the table. Some of those objections might even be meritorious, but the competent lawyer nonetheless leaves them unmade because he considers them distractive or incompatible with his trial strategy.

Judge Wilson concurred, only because there was a "dearth of clearly established law" on the issue, so that the previous Florida Supreme Court ruling on the issue was not an unreasonable application of clearly established federal law (the requiement for habeas relief). However, he argued that if he were deciding the case de novo, he would have found a substanital problem:

Bates’s murder trial began with a prayer in the presence of the jury, and the victim’s husband subsequently gave testimony informing the jury that the prayer was delivered by none other than the victim’s own minister. This testimony had no probative value, but it had great potential to prejudice the jury against Bates. The prayer inserted God into Bates’s trial, and the husband’s testimony made clear whose side God was on. 

Last Weekend Was National Days of Prayer and Remembrance

In a Presidential Proclamation (full text) issued last Thursday, President Obama declared this past weekend (Sept 5-7) as National Days of Prayer and Remembrance for the victims of 9-11. The Proclamation reads in part:

On this solemn anniversary, let us reaffirm the fundamental American values of freedom and tolerance -- values that stand in stark contrast to the nihilism of those who attacked us.  Let us give thanks for all the men and women in uniform who defend these values from new threats, and let us remember those who laid down their lives for our country.  May our faith reveal that even the darkest night gives way to a brighter dawn.....

I ask that  the people of the United States honor and remember the victims of September 11, 2001, and their loved ones through prayer, contemplation, memorial services, the visiting of memorials, the ringing of bells, evening candlelight remembrance vigils, and other appropriate ceremonies and activities.  I invite people around the world to participate in this commemoration.

Recent Prisoner Free Exercise Cases

In Jenkins v. Meyers, (9th Cir., Sept. 4, 2014), the 9th Circuit upheld a prison's action in returning a package containing religious prayer oil sent by an unapproved religious vendor.

In Woodward v. Perez, 2014 U.S. Dist. LEXIS 121329 (SD NY, Aug. 29, 2014), a New York federal district court dismissed on qualified immunity and mootness grounds a Muslim inmate's complaint that his religious rights were infringed when he was requied to shower in the presence of a female officer and a "known homosexual" fellow-inmate.

In Lindsey v. Butler, 2014 U.S. Dist. LEXIS 121364 (SD NY, Aug. 29, 2014), a New York federal district court permitted a Black Sunni Muslim plaintiff to proceed with his claim that his free exercise and 4th Amendment rights were infringed when police forcibly shave his facial hair for purposes of a police lineup.

In Green v. Director/Secretary California Department of Corrections & Rehabilitation, 2014 U.S. Dist. LEXIS 121485 (SD CA, Aug. 29, 2014), a California federal district court permitted a Native American inmate to proceed with his complaint that he was denied access to a sweat lodge, was harassed and intimidated, and had his religious items confiscated.

In Rowe v. Indiana Department of Corrections, 2014 U.S. Dist. LEXIS 123884 (SD IN, Sept. 5, 2014), an Indiana federal district court rejected claims by a White Supremacist inmate who was a leader of the Church of Jesus Christ Christian (the religious arm of Aryan Nations) that policies of the Indiana Department of Corrections interfered with his abillity to practice his religion. The challenged policies involved security threat groups, offender visitation, property limits, offender correspondence and a policy that prevents him from wearing a swastika necklace.

8th Circuit: Small Employer Lacks Standing To Challenge Contraceptive Coverage Mandate

Annex Medical, Inc. v. Burwell, (8th Cir., Sept. 5, 2014) presents a new twist on the contraceptive coverage mandate issue decided by the Supreme Court in Hobby Lobby.  In the case, the district court had denied a preliminary injunction, but the 8th Circuit Court of Appeals then granted a preliminary injunction pending appeal. Now in a 2-1 decision, the  8th Circuit vacates the district court's order, holding that an employer of under 50 employees lacks standing to challenge the contraceptive coverage mandate on religious grounds.

Important to the majority's decision is its reading of a provision of the Internal Revenue Code which many have seen as imposing a $100 per day excise tax on a small employer that chooses voluntarily to provide its employees health insurance, but insurance that not cover contraceptive services.  The court concludes that 26 USC Sec. 4980D(d) precludes penalizing the company if it offers insurance from a health insurer which is inconsistent with the contraceptive mandate.

The company complains however that no insurance company will write a policy that excludes contraceptive coverage because federal law prohibits the insurance company from doing so. The majority writes:

The standing problem is the pleadings and record contain no indication any Minnesota health insurer is willing, but for the mandate, to sell a plan allowing a small employer such as Annex to prohibit coverage for a handful of healthcare products and services....

Based on the pleadings and sparse record before us, we can only speculate whether Annex’s difficulties obtaining contraceptive-free insurance are (1) caused by the government defendants as opposed to the independent decisions of third-party insurers, and (2) redressable by the remedy available to Annex: a permanent version of the preliminary injunction Annex already received and which failed to redress Annex’s alleged injury.

Judge Colloton, concurring, argues that Annex has standing:

it should be evident that a market to serve Annex Medical is likely to develop if the requested relief is granted. It is unsurprising that insurers were not prepared to write policies for Annex Medical and submit them to state regulators for approval based on a temporary injunction pending appeal of indefinite duration while the law was unsettled. But the complaint seeks permanent injunctive and declaratory relief that the government cannot forbid the issuance of the group plan that Annex Medical wants to purchase.

[Thanks to Stephen Blakeman for the lead.] 

State Antidiscrimination Law Applies To Selection of Members of Catholic High School Basketball Team

In Cardinal Ritter High School, Inc. v. Bullock, (IN App., Sept. 5, 2014), an Indiana Court of Appeals held that the Indiana Civil Rights Law applies to alleged racial discrimination by a Catholic high school in selecting members of its basketball team. The Act, by its terms, applies to discriminatory practices relating to education. The court held that this does not offend the school's free exercise rights. However the court vacated and remanded the case because the administrative law judge who heard the testimony retired, and the findings of fact were written by a different ALJ who never heard the testimony or saw the witnesses in person.

Internet Was Scrubbed of Sotloff's Jewish Connections In Try To Protect Him

JTA reported yesterday on the extensive efforts that were made after ISIS captured American journalist Steven Sotloff to scrub the Internet of any mention that he was Jewish or held dual Israeli citizenship. Sone 150 of his friends searched out any online mention of these facts to eliminate them. They also convinced journalists wrting about Sotloff to remove any mention of these facts as a way to lessen his danger.  The efforts were successful in keeping the information from ISIS, but not successful in preventing Sotloff's beheading earlier this week.

32 States Ask Supreme Court To Grant Cert In Same-Sex Marriage Cases

As reported yesterday by AP, in two separate amicus briefs a total of 32 states have asked the U.S. Supreme Court to grant certiorari to decide on the constitutionality of state bans on same-sex marriage. Led by Massachusetts, 15 states that allow same-sex marriage joined a brief in Herbert v. Kitchen, the 10th Circuit case invalidating Utah's ban. (Full text of brief.) (Mass. AG press release.)  17 other states led by Colorado filed a brief in Rainey v. Bostic, the 4th Circuit Virginia case and Smith v. Bishop, the 10th Circuit Oklahoma case.

7th Circuit Invalidates Same-Sex Marriage Bans In Indiana and Wisconsin

Yesterday the U.S. 7th Circuit Court of Appeals in Baskin v. Bogan, (7th Cir., Sept. 4, 2014), affirmed district court decisions striking down same-sex marriage bans in Indiana and Wisconsin. The unanimous opinion, written by Judge Posner in his unquely cogent style, takes on and counters each argument in favor of same-sex marriage bans put forward by each state. He particularly emphasizes the protection-of-children argument on which Indiana relied exclusively:

The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage  because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

He derides Indiana's arguments, summarizing them as follows:

Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.

Moving to Wisconsin's ban, Judge Posner, quoting (among others) Justice Holmes and John Stuart Mill, counters each of four additional justifications the state puts forward for banning same-sex marriage-- tradition, the need to move cautiously, respect for the democratic process and damage to traditional marriage. Posner describes the last of these as an argument that "allowing [homosexuals] to marry degrades the institution of marriage (as might happen if people were allowed to marry their pets or their sports cars)...."  He summarizes:

the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.

As reported by the New York Times, yesterday's decision was handed donw only nine days after the court heard oral arguments in the case.

Catholic School Teacher Can Pursue Title VII Claim After Firing For In Vitro Fertilization

In Herx v. Diocese of Fort Wayne-South Bend, (ND IN, Sept. 3, 2014), Emily Herx, a former teacher at a Catholic school, sued under Title VII and the Americans With Disabiliteis Act after the diocese refused to renew her teaching contract because she became pregnant through in vitro fertilization. The Catholic Church considers in vitro fertilization immoral.  The court granted the Diocese's motion to dismiss the ADA claim becuase no jury could reasonably find that she lost her job because of her infertility (her claimed disability).  Instead it was because of her treatment for her disability. The court however refused to dismiss Herx's Title VII sex discrimination claim.  First it concluded that the ministerial exception doctrine did not apply because Herx was not a "minister."  It then went on to hold:

while a jury could find that a gender-neutral rule against in vitro fertilization prompted her nonrenewal, a jury also could find that a male teacher’s contract would have been renewed under the same circumstances.

The Fort Wayne Gazette reports on the decision.

Protestant Navy Chaplains Denied Class Action Certification

Yesterday the D.C. federal district court issued yet another opinion in In re Navy Chaplaincy, (D DC, Sept. 4, 2014)-- a long running case that has already generated over twenty district court and Court of Appeals opinions. As summarized by the court:

Plaintiffs, 65 current and former nonliturgical Protestant chaplains in the United States Navy, their endorsing agencies, and a fellowship of non-denominational Christian evangelical churches... , bring this consolidated action against the Department of the Navy and several of its officials.... Plaintiffs allege that Defendants discriminated against non-liturgical Protestant chaplains on the basis of religion, maintained a culture of denominational favoritism in the Navy, and infringed on their free exercise and free speech rights.

In this most recent decision the court first held that it lacks jurisdiction over plaintiffs' challenge to an alleged denominational quota system for chaplains because the Navy many years ago eliminated the policy rendering the challenge to it moot. It then went on to deny class certification as to the remainder of the claims, concluding that plaintiffs "have not presented 'significant proof' of any specific unconstitutional policy or practice that applied to them across the board as a class and produced a common legal injury."

Settlement Reached In Synagogue's Suit Challenging Historic Site Designiation

The AP reports that a Florida, federal district court last week approved a settlement agreement in Temple B'nai Zion, Inc. v. City of Sunny Isles Beach, Florida, a case on remand from the 11th Circuit (see prior posting). In the case the synagogue claims that its designation as an historic site-- thereby preventing demolition and construction of a new building on the site-- violated its relgious freedom rights. The Temple was declared a landmark because of a 2004 meeting of Holocaust survivors there. Three of the city commission members involved in the decision were former members of the synagogue before it moved from embracing Conservative Judaism to becoming an Orthodox synagogue. The hearing on the synagogue's objections to the designation was filled with comments from individuals unhappy about actions of the synagogue's rabbi. Under the settlement, the historic landmark designation remains, but the Temple will be permitted to make certain structural changes. The city will also give the Temple a transferable development right elsewhere in the city.

Tax Court Rejects Minister's Attempt To Shield Income From Taxes

In Cortes v. Commissioner, (T.C., Sept. 3, 2014), the United States Tax Court rejected a claim by a minister of the Seventh Day Sabbath Church that an arrangement invovling setting up a ministry, creation of a corporation sole and taking a vow of poverty excused him from paying income tax on amounts paid to his ministry but used for his family's personal expenses. The minister's tax avoidance scheme, promoted by Frederic and Elizabeth Gardner, has been the subject of litigation in prior cases. [Thanks to Steven H. Sholk for the lead.]

District Court Upholds Louisiana's Same-Sex Marriage Ban

A Louisiana federal district court yesterday became only the second court (see prior posting) after the U.S. Supreme Court's Windsor decision to uphold a state law banning same-sex marriage.  In Robicheaux v. Caldwell,  (ED LA, Sept. 3, 2014), the court rejected the argument that heightened scrutiny should apply, and concluded that Louisiana had a rational basis for addressing the meaning of marriage through the democratic process. It held:

This Court is persuaded that Louisiana has a legitimate interest...whether obsolete in the opinion of some, or not, in the opinion of others...in linking children to an intact family formed by their two biological parents.... 

This Court has arduously studied the volley of nationally orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue on same-sex marriage. The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos.  Courts that, in the words of Justice Scalia in a different context ... appear to have assumed the mantle of a legislative body. 

SCOTUSblog reports on the decision.