Bankruptcy Court Rejects RFRA Defense To Fraudulent Conveyance Recovery

In In re Khan, 2014 Bankr. LEXIS 4205 (Bkrptcy. ED NY, Sept. 30, 2014), a New York federal bankruptcy court rejected a defendant's Religious Freedom Restoration Act defense against an attempt by the bankruptcy trustee to recover some $35,500, the proceeds of certain real estate transactions, as fraudulent conveyances. Defendant, son of Shahara Khan who filed a Chap. 7 bankruptcy petition argued that:

the Trustee's claims amount to a violation of the RFRA because they would undo the transactions entered into between the Debtor and her son in furtherance of their personal religious, cultural, and familial obligations. In particular ... "[i]t is the religious belief and practice of the family that [the] family is one unit and transfer of an asset from [one family member] to the other does not transfer real ownership." ... [and that] "[i]t is against the religious practice of the family to place mother or son as creditor and debtor of each other."....

The court rejected defendant's claim, stating in part:

Here, the record shows that the Defendant sincerely believes, as a matter of his religion and culture, that there can be no "business between mother and son.".... The Defendant and his sister "had a religious call to respect our mother and to show our respect we put our mother['s] name on our first house we ever bought here at the United States."...  

This Court respects and acknowledges the sincerity of the Defendant's religious beliefs. But that does not mean that those beliefs, and the Defendant's free exercise of his religion, is burdened by the relief sought by the Trustee. The Defendant has not shown that the avoidance of the Mortgage Proceeds Transfer and the Sale Proceeds Transfer ... substantially burdens the Defendant's right to practice his religion. He has not shown that he will be required to refrain from engaging in a practice important to his religion, or compelled to choose between following the precepts of his religion or accepting a benefit  under law. Nor has he demonstrated that he is under "substantial pressure . . . to modify his behavior" or "to violate his beliefs."

Enforcement of Israeli Child-Support Order Does Not Violate Establishment Clause

In Jenkins v. Jenkins, (OH App., Oct. 3, 2014), an Ohio Court of Appeals rejected a father's claim that enforcement of an Israeli child-support order would violate his rights because its terms were based on his Jewish religion and his gender. The court noted that the order was issued by an Israeli civil family court, not a religious court.  It went on to conclude that while the family court in Israel cited the Jewish-law tradition that the father is responsible for his daughter’s essential support, the Israeli court went on to consider other factors as well.

Pastor's Claim of Wrongful Termination Is Dismissed

In Simons v. Lewis, (NJ App., Oct. 2, 2014), a New Jersey appellate court affirmed the trial court's dismssal of a lawsuit by a church's senior pastor who was ousted from his position. The appellate court said in part:

Where, as here, a church's governing body determines that the church's pastor is spiritually disqualified from continuing to serve the congregation, the courts cannot interfere without trenching on the church's right of self-governance and its First Amendment right to choose its clergy.

The court also held that the "clean hands" doctrine prevents the pastor from arguing that the board members who removed him lacked authority to do so. His claim was that he lacked authority to appoint the board members that he did.

Ireland Will Have Vote On Removing Blasphemy From Constitution

Last year, Ireland's Convention on the Constitution recommended that a referendum be held on whether to replace the current constitutional provision on blasphemy with a general provision banning incitement to religious hatred. (See prior posting.)  Yesterday, according to The Journal, the government announced that it accepted the recommendation that the people vote on whether to remove the offense of blasphemy from the Constitution. A government spokesman said that it is still an open question whether the proposed constitutional amendment will also call for replacing the ban on blasphemy with a prohibition on incitement to religious hatred. A date has not been set for the referendum.  It will apparently require a law be enacted by the Oireachtas.

October 5 Is 7th Annual Pulpit Freedom Sunday

This Sunday is Alliance Defending Freedom's 7th Annual Pulpit Freedom Sunday (Press release.). Pastors are encouraged to preach sermons that day "presenting biblical perspectives on the positions of electoral candidates" as a protest against federal tax code limitations on non-profits becoming involved in partisan political campaigns. ADF says that nearly 1500 pastors will participate this year.

Supreme Court Grants Review In Abercrombie & Fitch Religious Accommodation Case

The U.S. Supreme Court today granted certiorari in EEOC v. Abercrombie & Fitch Stores, Inc., (Docket No. 14-86). (Order List). In the case, the 10th Circuit held that there is a strict notice requirement before an employer is required to accommodate religious beliefs. Merely wearing  hijab to an employment interview did not give notice that a job applicant wore it for religious purposes or needed religious accommodation because of its conflict with Abercrombie's clothing policy. (See prior posting.) The cert. petition and related briefs are available here from SCOTUSblog. News 9 reports on the Supreme Court's grant of review.

South African Appeals Court Says Minister Must Arbitrate Dispute With Church

In De Lange v. Presiding Bishop of the Methodist Church of Southern Africa, (S, Afr. Sup. Ct, App., Sept. 29, 2014), the South African Supreme Court of Appeal refused to set aside an arbitration agreement under which a minister was required to arbitrate her dispute with the church that suspended her as a minister after she announced she would enter a same-sex civil union.  The court said in part:

As the main dispute in the instant matter concerns the internal rules adopted by the Church, such a dispute, as far as is possible, should be left to the Church to be determined domestically and without interference from a court. A court should only become involved in a dispute of this kind where it is strictly necessary for it to do so. Even then it should refrain from determining doctrinal issues in order to avoid entanglement. It would thus seem that a proper respect for freedom of religion precludes our courts from pronouncing on matters of religious doctrine, which fall within the exclusive realm of the Church.

The court also issued a press release describing its decision.  IOL News reports on the decision.

Court Rejects 1st Amendment Objections To Required AA Attendance

In State v. Miller, (OH App., Sept. 30, 2014), an Ohio appellate court rejected free exercise and establishment clause claims raised by Johnny Miller, a convicted robber, who as a condition of his community control sentence was required to attend Alcoholics Anonymous. The claim comes in the context of Miller's appeal of his conviction for forging his AA attendance documents. In rejecting the claim, the court noted that Miller only raised the religious claims belatedly.  The court added that, more importantly:

the record is devoid of any evidence showing that appellant ever attended an AA meeting whose primary purpose was to advance religious beliefs rather than to promote sobriety and recovery from addiction and substance abuse. 

Church Evicts AA Out of Fear It Would Lead To Required Hosting of Gay Weddings

KSLA reported last week that in a Sept. 17 letter, the pastors of a Keithville, Louisiana Baptist church told an AA group that had been meeting at the church for five years that it could no longer accommodate them out of fear that a court would hold that the church would also need to make its building available for same-sex wedding ceremonies and receptions.

Suit Challenges MTA's Rejection of Anti-Hamas Ad

Reuters reported yesterday on a lawsuit filed by the American Freedom Defense Initiative claiming that its civil rights were violated when the New York City Metropolitan Transit Authority rejected its city bus ad that included the line: "Killing Jews is worship that draws us close to Allah - Hamas MTV". The MTA says they rejected the ad because it may incite violence.

Los Angeles Archdiocese Sued Over Cemetery Lease Termination

AP reported  yesterday that S.E. Funeral Homes of California Inc. has filed a $250 million breach of contract lawsuit in state court in California against the Catholic Archdiocese of Los Angeles.  The suit claims that the Archdiocese in 1997 agreed to a 40 year lease of land on or near six cemeteries for S.E. Funeral Homes to operate its funeral services business. The company spent $37 million to build funeral homes, mausoleums and other facilities and pre-sold $190 million worth of services. However in early September the Archdiocese notified the company that it would terminate the leases in a month, claiming that the company was in breach of lease because of a reverse merger with a subsidiary of Service Corp. International. At issue is a clause in the lease that bars "transfer or entrustment of operations" without the consent of the Archdiocese. S.E. Funeral says the Archdiocese is acting in bad faith to seize its lucrative business.

Lawsuit Seeks To Stop Use of Chickens In Pre-Yom Kippur Ceremony

BNC reported yesterday that a lawsuit has been filed in a New York state trial court seeking to enjoin to enjoin Brooklyn Jewish residents from organizing, conducting or participating in the pre-Yom Kippur ritual of kaporos using live chickens. The chickens are slaughtered after use in a ceremony seeking to atonemnet for one's sins.  The suit, filed by an organization known as Alliance to End Chickens As Kaporos, was prompted by concern that thousands of chickens are shipped into Brooklyn for the ceremony each year and many are left starving for days and found dead.  Many Jews use coins that are contributed to the poor in the ritual instead of chickens.

Successful DOMA Challengers Denied Attorneys' Fees Award

In McLaughlin v. Hagel, (1st Cir., Sept. 23, 2014), the U.S. 1st Circuit Court of Appeals held that plaintiffs who successfully challenged the constituitonality of Sec. 3 of the Defense of Marriage Act are not entitled to an award of attorneys' fees against the government under the Equal Access to Justice Act. According to the court:

This extraordinary case presents the unusual situation in which the government's pre-litigation and during-litigation position was to enforce a challenged statute, but in which the government's litigation position was to argue that the challenged statute is unconstitutional....

Though novel, the government's litigate-to-lose position is not barred by the case law. And because it was constitutionally appropriate, fees were correctly denied as a matter of law.

 National Law Journal reported on the decision.

Russian Constitutional Court Upholds Ban on Promoting Homosexuality To Minors, Interpreting It Narrowly

Interfax reported last week that Russia's Constitutional Court has upheld the constitutionality of Article 6.21 of the Russian Code of Administrative Violations that bans promoting homosexuality among minors, but said it must be interpreted narrowly.  The Sept. 23 decision (full text in Russian), which was issued without a public hearing, came in a suit filed by gay rights activists who had been fined under the law. According to Interfax:

the Constitutional Court decided that the legislator's purpose was to establish a balance between personal autonomy and the public interest with regard for the traditional ideas of marriage, family and motherhood in Russian society, in which many religious people are represented.

Constitutional Court Judge Nikolay Bondar commented on the decision, saying:

The Russian Constitutional Court has found that the contested provision does not contradict the Constitution. It also gave a constitutional law interpretation, which shows all law enforcers that a broad interpretation of the ban is unacceptable and it is compulsory for everyone, including courts.... 

Secondly, the court ruled that this provision is not aimed at banning or officially condemning non-traditional sexual relations. Thirdly, this article does not prevent impartial public debate of the legal status of sexual minorities, including by holding public events according to the procedures established by law. However, minors should not be involved in the relevant events, no matter whether it's rallies or debates, and the disseminated information should not be targeted at them.

(See prior related posting.)

Arkansas Firing Range Says It is A "Muslim Free Zone"

An indoor firing range in Hot Springs, Arkansas has declared itself a "Muslim Free Zone." Jan Morgan, owner of The Gun Cave Indoor Firing Range and conservative online journalist sets out ten reasons for her decision, ranging from strange behavior recently by two Muslim patrons at her firing range to concern about ISIS and honor killings.  She says she has chosen to "err on the side of caution" since she has "no way of discerning which muslims will or will not kill in the name of their religion and the commands in their koran." Addressing the issue of religious discrimination, Morgan says: "I view Islam as a theocracy, not a religion." KRMG News says that comments are flooding the firing range's Facebook page in support of it decision.

North Carolina Distributes First Voucher Funds While Challenge Is On Appeal

AP reports that last week the North Carolina State Educational Assistance Authority distributed $1.1 million under its Opportunity Scholarship Program to 109 private and religious schools for 568 qualifying students.  The largest amount of money-- $90,300 for 43 students went to the Greensboro Islamic Academy. $54,600 went to Word of God Christian Academy. The voucher program had been enjoined by a state trial court, but on Sept. 19 the state court of appeals ruled that, pending an appeal, students who had already been granted Opportunity Scholarships could receive the funds.

Cert. Filed In Ban On Church Use of New York City Schools

A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Bronx Household of Faith v. Board of Education of the City of New York, (cert. filed 9/24/2014).  In the case the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision held that the Board of Education of the City of New York did not violate the free exercise clause when in 2007 it changed its rules to bar the use of school facilities by churches for religious worship services. ADF announced the filing of the cert. petition. [Thanks to Jeff Pasek for the lead.]

EEOC Files Two Religious Discrimintion Cases

In recent days, the EEOC has filed two separate religious discrimination cases. On Sept. 25, the agency announced that it has filed suit against a Michigan-based automobile dealership-- Feldman Automotive, Inc. The suit alleges that the company refused to hire Brandan Allen as a car salesman after learning that he was a religious member of a non-denominational church.

On Sept. 29, the EEOC announced that it has sued U.S. Steel Tubular Products, Inc., a subsidiary of U.S. Steel Corporation for failing to accommodate the religious beliefs of an applicant for a utility technician position who was a member of the Nazirite sect of the Hebrew Israelite faith. The company insisted that the applicant Stephen Fayusi take a hair follicle drug test that required cutting his hair at the scalp, and refused alternatives such as hair from other parts of his body.

Continuing Resolution Extends USCIRF Until Dec. 11

The Continuing Appropriations Resolution 2015, (Sec. 144), signed by the President on Sept. 19, among other things amends 22 USC 6436 to extend the life of the U.S. Commission on International Religious Freedom from Sept. 30, 2014 to Dec. 11, 2014.

Recent Articles of Interest

From SSRN:

• Ioana Cismas, Introductory Note to Committee on the Rights of the Child Concluding Observations on the Second Periodic Report of the Holy See, (International Legal Materials, Vol. 53, No. 3 (2014), pp. 580-59).
• Jeremy Waldron, What Do Philosophers Have Against Dignity?, (September 17, 2014).
• Judith Areen, Uncovering the Reformation Roots of American Marriage and Divorce Law, (Yale Journal of Law & Feminism, Vol. 26, pp. 29-85, 2014).
• Frederick Mark Gedicks, One Cheer for Hobby Lobby: Improbable Alternatives, Third-Party Burdens, and the Specter of RFRA Strict Scrutiny, (Harvard Journal of Law and Gender, Vol. 38, 2015 Forthcoming).
• Spencer Churchill, Reasoning from Principles of Religious Liberty to a Test of Sincerity for Corporate RFRA Claims, (August 28, 2014).
• Faisal Kutty, 'Islamic Law' in U.S. Courts: Judicial Jihad or Constitutional Imperative?, (Pepperdine Law Review, Forthcoming).
• Faisal Kutty, The Kutty 'Islamic Law' Flowchart, (September 24, 2014).
• Corey Ciocchetti, Religious Freedom & Closely Held Corporations: The Hobby Lobby Case & Its Ethical Implications, (Oregon Law Review, Forthcoming).
• Christopher R. Leslie, Embracing Loving: Trait-Specific Marriage Laws and Heightened Scrutiny, (Cornell Law Review, Vol. 99, No. 5, 2014, pp.1077-1130).

From SmartCILP:

• Hanna Lerner, Critical Junctures, Religion, and Personal Status Regulations in Israel and India, [Abstract], 39 Law & Social Inquiry 387-415 (2014).
• Joshua C. Wilson &Amanda Hollis-Brusky, Lawyers for God and Neighbor: The Emergence of "Law As a Calling" As a Mobilizing Frame for Christian Lawyers, [Abstract], 39 Law & Social Inquiry 416-448 (2014).
• Rafael Domingo, A Right to Religious and Moral Freedom? [Abstract]; Reply by Michael J. Perry [Abstract], 12 I.Con: International Journal of Constitutional Law 226-255 (2014).