9th Circuit: Ban On Soliciting At LAX Upheld Over Hare Krishna Challenge

In a case that slipped under my radar last month, the U.S. 9th Circuit Court of Appeals upheld a Los Angeles ordinance banning continuous or repetitive solicitation for the immediate receipt of funds at Los Angeles International Airport, rejecting a challenge to the ban by the Hare Krishna movement.  In International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles, (9th Cir., Aug. 20, 2014), a 3-judge panel of the 9th Circuit held that major international airports have a legitimate interest in controlling pedestrian congestion and reducing the risk of fraud and duress attendant to repetitive, in-person solicitation.

Legal Loopholes Allow Israeli Farmers To Avoid Sabbatical Year Strictures

JTA this week carries a report on the legal technicalities surrounding observance of the Biblical Sabbatical year for farmers in Israel.  With the coming of Rosh Hashanah (Jewish New Year) in late September, the Sabbatical year begins.  Various legal loopholes-- such as the fictional sale of farms to non-Jewish owners for a nominal amount for the year-- have been developed through the Chief Rabbinate and Religious Courts to allow Jewish farmers to avoid the complete shut-down of their farms that would flow from strict observance of the Biblical mandate.

California Univerisites De-Recognize InterVarsity Christian Fellowship

RNS reported this week that the California State University System is withdrawing official recognition  of the InterVarsity Christian Fellowship at its 23 campuses because the organization limits leadership roles to those who affirm belief in its traditional Christian Doctrinal Basis (full text). While membership in the group is open to any student, its limit on who may be leaders conflicts with the University System's non-discrimination policy. De-recognition means the group will lose it discount on use of meeting rooms, and will lose access to other official events such as student fairs. Christian Post reports that the group will  will now use other techniques, including social media, for recruitment.

New "Candy-Cane" Religious Message Case Filed

In what may be a reprise of nearly a decade of litigation out of Texas, a new "candy-cane" case has hit the courts, this time in California. The San Bernadino County Sun reported yesterday that Alex and Myrna Martinez, parents of a first grader (Isaiah), have filed a lawsuit against the West Covina Unified School district alleging that a Merced Elementary School teacher refused to allow their son to distribute Christmas candy canes with a story about Jesus attached. Allegedly the teacher tore the messages off the candy before allowing the student to distribute them, saying that Jesus is not allowed in school. The complaint claims that other students were allowed to distribute Christmas gifts. The school board says that the candy canes were being distributed during instructional time, which is prohibited by school rules. Advocates for Faith and Freedom, which sent a demand letter (full text) to school officials on behalf of the student, has posted more about the case. School board president Steve Cox says he is concerned that the district is being "set up" as a test case.

Philadephpia Schools Settle Religious Accommodation Suit With Justice Department

The Justice Department announced Monday that it has reached a settlement with the School District of Philadelphia in a Title VII religious accommodation lawsuit that it filed in March. (See prior posting.)  At issue is the school district's October 2010 policy change which barred a Muslim school police officer from wearing a beard longer than one-quarter inch. Under the settlement, the school district will adopt a revised appearance and attire policy for police officers that will allow them to apply for a religious accommodations. The school district will also pay damages to two employees, expunge disciplinary items from their files, and will train supervisors on religious accommodation issues.

Amish Will Comply Under Protest With Court's Order, But Will Not Take Next Steps

The Eau Claire Leader-Telegram reported Monday that a Wisconsin trial court judge ordered three Amish defendants to sign applications for building and sanitary permits and pay the required fees, or otherwise to be evicted from their homes.  Defendants' lawyer says that they will sign "under protest" in order to stay in their homes, but that they have no intention of installing the required smoke and carbon monoxide detectors.  He says that the signing is an affirmation that the laws exist, not an agreement to comply with them. Electric or battry operated detectors violate Old Order Amish religious beliefs. Defendants are considering whether to appeal the court's ruling.

Plaintiffs Lose Suit Against Cisco For Developing System Used To Track Falun Gong In China

In Doe I v. Cisco Systems, Inc., (ND CA, Sept. 5, 2014), a California federal district court dismissed a lawsuit by Falun Gong practitioners that claimed Cisco aided and abetted and conspired with the Chinese Communist Party and Public Security officers in committing human rights abuses against Falun Gong. Cisco created the Golden Shield security system that was used to intercept and track communications of Falun Gong, leading to their apprehension, arrest and torture. The court dismissed plaintiffs claims under the Alien Tort Statute (ATS), holding that the actions were not suffciently related to the territory of the United States to overcome the presumptions against extraterritorial application of the ATS. It dismissed aiding and abetting claims, finding that it was not shown that Cisco had knowledge that its product would be used for torture and forced conversions.  Courthouse News Service reports on the decision.

7th Circuit Hears Oral Arguments In Parsonage Allowance Challenge

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Freedom From Religion Foundation v. Lew. In the case, a Wisconsin federal district court held that the tax code provision that excludes a minister's parsonage allowance from gross income violates the Establishment Clause. Courthouse News Service reports on the oral arguments which focused both on standing and Establishment Clause issues.

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.