State Trooper Sued Over Proselytizing After Traffic Stop

Huffington Post reported yesterday on a federal lawsuit filed last month against an Indiana State Police Trooper for proselytizing a driver after stopping her for a traffic violation. The complaint (full text) in Bogan v. Hamilton, (SD IN, filed 9/23/2014), alleges that after stopping driver Ellen Bogan and issuing her a warning ticket for speeding, Trooper Brian Hamilton asked Bogan whether she had a home church and had accepted Jesus as her savior. He then gave her a pamphlet from a Cambridge City, Indiana Baptist church. The suit asks for damages alleging that the trooper's coercive questioning and proselytizing violated the First Amendment.

More Certiorari Denials From SCOTUS Yesterday

Yesterday the U.S. Supreme Court issued it usual long beginning-of-term list of cases in which it is denying review. (Order List). In addition to the already widely reported denial of certiorari in same-sex marriage cases from five states (see prior posting), the Court also denied certiorari in the following cases of interest:

• Mehanna v. United States, (Docket No. 13-1125). At issue was whether a citizen's political or religious speech may constitute provision of material support or resources to a Foreign Terrorist Organization. (1st Circuit's opinion in the case.)
• Freshwater v. Mount Vernon School District, (Docket No. 13-1311). In the case, the Ohio Supreme Court upheld the firing of a middle school science teacher for insubordination in failing to comply with orders to remove religious materials from his classroom. (See prior posting.)
• Pittman-Bey v. Celum, (Docket No. 13-10031). In the case, the 5th Circuit held that defendants had qualified immunity in a suit by a Muslim inmate who was not allowed to participate in Ramadan activities without first having participated in Jumu'ah services. (See prior posting.)

Supreme Court Denies Review In Same-Sex Marriage Cases From 5 States

The U.S. Supreme Court today denied certiorari in seven same-sex marriage cases from 5 states that had been decided by various circuit courts. (Order List). All of the Circuit Court decision had invalidated bans on same-sex marriage and/or recognition of same-sex marriages performed elsewhere. The cases are:

Herbert v. Kitchen (Docket No. 14-124) (Utah)
Smith v. Bishop (Docket No. 14-136) (Oklahoma)
Rainey v. Bostic (Docket No. 14-153) (Virginia)
Schaefer v. Bostic (Docket No. 14-225) (Virginia)
McQuigg v. Bostic (Docket No. 14-251) (Virginia)
Bogan v. Baskin (Docket No. 14-277) (Indiana)
Walker v. Wolf (14-278) (Wisconsin)

AP reports on the Court's action.

Red Mass and Modernized Website Herald Opening of Supreme Court's 2014 Term

The Supreme Court's new term opens today.  To mark the occasion, the annual Catholic Red Mass was held yesterday in Washington's Cathedral of St. Matthew the Apostle.  According to the Legal Times, four of the Court's six Catholic Justices (Roberts, Scalia, Kennedy, Thomas) and two of its three Jewish Justices (Breyer and Kagan) attended. So did a number of D.C. lower court judges.

Tomorrow the Court will hear oral arguments in a religious accommodation case-- Holt v. Hobbs.  At issue is whether the Religious Land Use and Institutionalized Persons Act permits Arkansas to bar a Muslim prison inmate from growing a one-half inch beard. (See prior related posting.) All the briefs filed in the case are available from SCOTUSblog.

The Court usually issues a long list of certiorari denials on its first day of the term, and might grant review in additional cases as well.  Among the most closely watched are a number of petitions for review in same-sex marriage cases.

The Court also begins the Term displaying a revamped website with a modernized look and improved navigation features. (Court press release.)

Recent Articles and Books of Interest

From SSRN:

• Kara Loewentheil, Satanists, Scott Walker, & Contraception: A Partial Account of Hobby Lobby's Implications for State Law, (Harvard Law & Policy Review, Vol. 9, No. 1, 2015, Forthcoming).
• Robert J. Delahunty, The Conscience of a King: Law, Religion, and War in Shakespeare's King Henry V, (Journal of Catholic Legal Studies (2014), Forthcoming).
• Tamir Moustafa, The Politics of Religious Freedom in Malaysia, (Maryland Journal of International Law, Vol. 29 (2014) 468-491).
• Richard Moon, Preface to Freedom of Conscience and Religion, (February 9, 2014).
• Hannibal Travis, The United Nations and Genocide Prevention: The Problem of Racial and Religious Bias, (Genocide Studies International, 8(2) (2014), pp. 122-152).
• Spencer Churchill, Whose Religion Matters in Corporate RFRA Claims after Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751 (2014)?, (Harvard Journal of Law and Public Policy, Vol. 38, No. 1, 2014).
• Jason Juliano, Do Corporations Have Religious Beliefs?, (Indiana Law Journal, Vol. 90, 2014).
• Laura Underkuffler, Religious Exceptionalism and Human Rights, (Religion and the Discourse of Human Rights: The Israel Democracy Institute; Editors: Hanoch Dagan, Shahar Lifshitz, Yedidia Z. Stern, 2014)

From SmartCILP:

• Dora W. Klein, The Dignity of the Human Person: Catholic Social Teaching and the Practice of Criminal Punishment, [Abstract], 60 Loyola Law Review 1-31 (2014).

Recent Books:

• Ellen L. Idler (ed.), Religion as a Social Determinant of Public Health, (Oxford Univ. Press, Sept. 2014).
•  Linford D. Fisher, J. Stanley Lemons and Lucas Mason-Brown, Decoding Roger Williams: The Lost Essay of Rhode Island’s Founding Father, (Baylor Univ. Press, Aug. 2014).

Appeals Court Upholds Finding That Peyote Was Not Held For Religious Use

In People v. Marbain, 2014 Cal. App. Unpub. LEXIS 7012 (CA App., Sept. 29, 2014), a California appellate court affirmed a trial court's denial of a motion by an officer of a local chapter of the Native American Church seeking return of peyote seized at multiple residences.  The appeals court held that the trial court was justified in concluding that the peyote was not intended for religious use because of substantial quantities of marijuana also found at defendant's residences.

White House Sends Muslims Best Wishes on Eid and Hajj

On Friday, the White House issued a statement (full text) from the President extending best wishes to Muslims celebrating Eid al-Adha, and congratulating those performing the Hajj this year.

Recent Prisoner Free Exercise Cases

In Allen v. Lizarraga, 2014 U.S. Dist. LEXIS 136439 (ND CA, Sept. 26, 2014), a California federal district court rejected an inmate's claim in a habeas corpus proceeding that his free exercise rights were infringed by a state court's conclusion that the clergy-penitent privilege did not apply to his confession.

In Peele v. Klemm, 2014 U.S. Dist. LEXIS 136935 (WD PA, Sept. 29, 2014), a Pennsylvania federal magistrate judge allowed a Muslim inmate to proceed under RLUIPA with a challenge to a Department of Corrections policy that restricts participation in the Eid-al-Fitr and Eid-al-Adha feasts to inmates who have participated in Ramadan services, who pay the cost of the feast and who are not in disciplinary custody.

In Williams v. Pollard, 2014 U.S. Dist. LEXIS 137297 (ED WI, Sept. 27, 2014), a Wisconsin federal district court allowed an inmate to challenge the confiscation of his two folders of religious material and more broadly an unofficial policy that disfavors Nation of Islam as a religion, as well as retaliation against him for his earlier role in getting NOI recognized as a religion.

In Covington v Annucci, 2014 N.Y. Misc. LEXIS 4214 (Seneca Co. NY Sup. Ct., Sept. 25, 2014), a New York state trial court rejected a complaint by a Muslim inmate that he is sometimes treated by a female medical worker.

In Pittman v. Jesson, 2014 U.S. Dist. LEXIS 137803 (D MN, Sept. 30, 2014), a Minnesota federal district court permitted a civilly committed sex offender to proceed against certain defendants with his complaint that rules barred him from wearing his Kufi outside his cell except during Jumah services and that he was prohibited from bringing his Koran into the yard, wearing his prayer beads at all times, doing his daily prayers in the yard, and keeping his prayer oils in his room.

In yet another decision in Davis v. Abercrombie, 2014 U.S. Dist. LEXIS 139028 (D HI, Sept. 30, 2014), an Hawaii federal district court has now certified classes and subclasses in the class action on behalf of Native Hawaiian inmates who claim their religious rights were infringed.

In Harbin v. South Carolina Department of Corrections, 2014 U.S. Dist. LEXIS 138215 ( D SC, Sept 30, 2014), a South Carolina federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 139617, June 12, 2014) and dismissed an inmate's complaint that Nation of Islam inmates are not provided separate study group classes and services from other Muslims.

In Salam v. Delaney, 2014 U.S. Dist. LEXIS 138479 (WD AR, Sept. 30, 2014), an Arkansas federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 138480, Sept. 8, 2014) and among other things dismissed a Muslim inmate's claim that he was denied a pork-free diet.

In Morceli v. Meyers, 2014 U.S. Dist. LEXIS 141037 (ED CA, Oct. 1, 2014), a California federal magistrate judge recommended dismissing an inmate's complaint because there was no evidence that the named defendant was responsible for the alleged policy of refusing to allow Muslim inmates to wear kufis in the dining hall, or to purchase and wear black kufis anywhere.

Muslims In Europe Concerned About Names Used To Refer To ISIS/ ISIL

The New York Times reported last week that Muslims in France and Britain have been urging their governments to find a name other than "Islamic State" to refer to ISIL. French Muslims say that using "Islamic State" stigmatizes the country's Muslims and gives unwarranted legitimacy to ISIL. French Foreign Minister Laurent Fabius announced last month that his government would refer to the terrorist group as "Daesh", an acronym for the group's Arabic name "Al-Dawla al-Islamiya fi al-Iraq wa al-Sham." Some experts warn, however, that Daesh creates negative reactions because it sounds like the Arabic word "daes" that means to trample or crush. American Muslim groups generally agree that any name that does not actually use the workd "Islamic" is acceptable, so that they generally do not object to "ISIS".

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.