Saturday, January 24, 2015

District Court Invalidates Alabama Same-Sex Marriage Bans

In Searcy v. Strange, (SD AL, Jan. 23, 2015), an Alabama federal district court invalidated Alabama statutory and constitutonal provisions that bar same-sex marriage.  The court found that the provisions are unconstitutional under the 14th Amendment's Due Process and Equal Protection clauses.  This makes Alabama the 37th state in which same-sex marriage is legal.  According to the Christian Science Monitor, Alabama's Attorney General has filed a motion asking the court to stay its ruling until the U.S. Supreme Court decides cases it has agreed to review on same-sex marraige.

UPDATE: In an opinion (full text) issued on Jan. 25, the district court denied an indefinite stay of its ruling, but granted a 14-day stay so the 11th Circuit can decide if a further stay is warranted. The court also said that before the expiration of its 14-day stay, it will issue an additional order addressing plaintiffs' request for a clarification of its injunction order.

California Judicial Ethics Code Changed To Bar Judges From Membership In Boy Scouts

As reported by the Los Angeles Times, on Wednesday, the California Supreme Court approved a recommendation of an ethics advisory committee to strengthen the prohibition in California Code of Judicial Ethics, Sec. 2.C. that prohibits judges from holding membership in any organization that discriminates on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. Previous exceptions for membership in military organizations or nonprofit youth organizations (such as the Boy Scouts) were eliminated in the recently approved change. However an exception for membership in discriminatory religious organizations remains in the Code. Here is the full text of the ethics code as amended.

Police Sued For Requiring Muslim Woman To Remove Hijab While Being Booked

The Detroit News reports on a lawsuit filed Thursday in a Michigan federal district court by a Muslim woman who was required by Dearborn Heights (MI) police to remove her hijab while she was being booked on a traffic misdemeanor charge.  Malak Kazan was charged with driving with an expired license.  Her Muslim religion requires her to have her head covered when she is in public and when she is in the presence of men outside her immediate family.  Police officers also denied Kazan's request for assistance from a female police officer.  The suit seeks an injunction and damages.

Friday, January 23, 2015

Judge Pressures Husband To Give Jewish Divorce Document

A New York trial court judge has again raised the issue of how far a civil court may go in pressuring parties in a divorce action to perform a religious act.  Yesterday's New York Post reports that Brooklyn judge  Esther Morgenstern, in divorce proceedings of a Jewish couple, has told the husband that unless he gives his wife a get (Jewish religious divorce document), she will order him to pay alimony for life.  The wife's attorney says this is justified because without a get it will be almost impossible for the wife to remarry and receive financial support.  Adding complexity to the case is the fact that Judge Morgenstern herself some 25 years ago was involved in a divorce where her husband resisted giving her a get.

USCIRF Criticizes Pending Legislation In Burma

The U.S. Commission on International Religious Freedom in a press release yesterday strongly condemned a package of race and religion bills being considered by Burma's Parliament. USCIRF argued that the bills restrict religious freedom and discriminate against non-Buddhists, saying:
The Religious Conversion Bill would force those seeking to convert to give to the newly created Registration Boards an extensive list of personal information, answer intrusive questions, and wait 90 days for approval.
The Interfaith Marriage Bill imposes restrictions on marriages between non-Buddhist men and Buddhist women, including a 14-day waiting period during which time anyone can object to the marriage, and the court reviewing the objections has the power to deny the marriage.  Non-Buddhist men are denied numerous rights in the case of divorce and face criminal penalties if they ask their Buddhist wife to convert.  Under the bill, non-Buddhist men also bear most of the financial and/or criminal penalties, including prison sentences.  

Legal Documents In Eruv Litigation Now Available Online

Beginning in 2011, individuals and groups opposed to Jewish organizations placing eruvs in three Long Island, New York towns have been involved in litigation attempting to prevent their creation.  Now O'Dwyers has created a page with links to all the legal documents and related media coverage of the lawsuits.

Proposed Oklahoma Bill Would Eliminate Marriage Licenses

Oklahoma State Representative Todd Russ has introduced a bill into the Oklahoma legislature that would create a unique response to federal decisions requiring the issuance of marriage licenses to same-sex couples.  As reported by KSWO News, his bill would do away with marriage licenses.  Instead, under HB 1125 couples may be married in a religious ceremony, after which the member of the clergy performing the ceremony would file a "certificate of marriage" with the clerk of court.  Individuals who do not want to be married in a religious ceremony could file an "affidavit of common law marriage" with the clerk of court. Under the bill, judges would no longer be able to perform marriage ceremonies. The bill retains current language limiting marriage to opposite-sex couples, even though the 10th Circuit has invalidated that limitation. (See prior posting.)  Rep. Russ sees the bill as restoring marriage "to what it was supposed to be and was originally a holy matrimony and a very solemn and spiritual vow."  Any progress of the bill through the legislature may be followed here.

Suit Seeks To Require Foreign Terrorist Designation For Hindu Nationalist Group

The Hindu reports that Sikhs for Justice filed a declaratory judgment action in a New York federal district court last week seeking to require Secretary of State John Kerry to designate an Indian Hindu nationalist group as a "foreign terrorist organization."  The lawsuit claims that Rashtriya Swayamsevak Sangh (RSS) has targeted Muslim, Sikh and Christian minorities in an attempt to turn India into a homogeneous Hindu nation. Prime Minister Narendra Modi's Bharatiya Janata Party has ties to RSS. Last week a New York federal district court dismissed on immunity grounds a suit brought directly against Modi for his alleged role in Gujarat anti-Muslim rioting in 2002. (See prior posting.)

Thursday, January 22, 2015

Civil Rights Complaint With A Twist-- Baker Refuses To Add Anti-Gay Message To Cake

AP today reports on a complaint filed with the Colorado Civil Rights Division against bakery owner Marjorie Silva by a customer who wanted her to create a cake with an anti-gay marriage message on it.  Silva agreed to bake a Bible-shaped cake for customer Bill Jack, but refused his request to put hateful anti-gay words on the cake along with two men holding hands with an X over them. Silva told Jack that she would give him icing and a pastry bag so he could write the words himself.  This did not satisfy Jack, and he filed a complaint alleging that he was discriminated against based on his creed. The complaint comes as Republicans in the Colorado legislature are looking at legislative changes to protect business owners who refuse to provide services for same-sex weddings. [Thanks to Tom Rutledge for the lead.]

Company Settles EEOC Suit; Rejected Rastafarian Applicant Gets $50K In Damages

The EEOC announced Tuesday that Mims Distributing Co., a Colorado-based beer distributor, has agreed to settle an EEOC suit filed against it on behalf of a Rastafarian applicant for employment.  Mims refused to hire Christopher Alston as a delivery driver unless he would cut his hair.  Under a consent decree, Mims will pay $50,000 in damages, adopt a formal religious accommodation policy and conduct annual anti-discrimination training.

Custody Provisions Did Not Violate Father's Free Exercise Rights

In Roderick v. Lynn, (WA App., Jan 20, 2015), a Washington state appeals court rejected a father's contention that provisions of a parenting plan ordered in a child custody suit violated his free exercise rights. The mother was given sole decision-making authority as to the child's religious upbringing, and the father was prohibited from moving with the child to Israel.  The appeals court said that no free exercise problem arises so long as the father is not prohibited from sharing his faith with the child. It added that the trial court's order limiting the father's contact with the child was not an attempt to abridge the father's religious freedom, but was based on the trial court's finding that he had an untreated mental health condition that endangered the child.

FLDS Members Continue To Resist DOL Subpoenas On Religious Grounds

Since 2013, the U.S. Department of Labor has been investigating whether federal child labor and wage and hour laws were violated in the 2012 harvest at the  Southern Utah Pecan Ranch. According to a Salt Lake Tribune report last September, Paragon Contractors was paid to furnish labor for the harvest, and the Labor Department suspects that FLDS Church members-- schoolchildren and their parents-- were deployed to take part in the harvest without pay.  Instead they merely got to keep half of the pecans they harvested. Paragon is owned by Brian Jessop, an FLDS Church leader, and apparently he turned over amounts the company was paid for the harvest to the Church.  In an opinion last September (see prior posting), a Utah federal district court ruled that under RFRA, church member Vergel Steed did not have to respond to a Department of Labor subpoena seeking information about the internal affairs and organization of the Church. Steed claimed that he believes the identity of Church leaders, the Church's organization and its internal affairs are sacred matters and he has vowed not to discuss them.

The Labor Department has also subpoenaed other FLDS Church members.  AP and the Salt Lake Tribune report that yesterday the same Utah federal judge handed down a ruling that may be the first step toward excusing two brothers of former FLDS Church leader Warren Jeffs from responding to subpoenas seeking information about working conditions on the farm as well as FLDS Church structure and leadership.  Judge David Sam ruled that Lyle and Nephi Jeffs have sincere religious beliefs that prevent them from answering questions by outsiders about the FLDS Church's labor practices, but they must answer questions about phone calls allegedly telling children to take off from school to work and telling parents to work without pay. The judge however heard arguments later yesterday on whether the government has a compelling interest in obtaining the Jeffs' testimony beyond this.  All of this came only a day after the ruling by the U.S. Supreme Court in Holt v. Hobbs giving a broad reading to religious liberty protections in federal law. (See prior posting.)

Wednesday, January 21, 2015

Supreme Court Hears Arguments In Fair Housing Act Disparate-Impact Case

The U.S. Supreme Court heard oral arguments today in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.  At issue in the case is whether disparate-impact claims are cognizable under the Fair Housing Act, or whether there must be a showing of intentional discrimination.  While this case involves claims of racially discriminatory impact, the Court's decision will apply to cases involving religious discrimination as well.  The transcript of full oral arguments is available from the Supreme Court's website. SCOTUSblog's case page contains links to all the briefs in the case as well as to the 5th Circuit's decision below.  SCOTUSblog also reports on today's arguments.

Cert. Denied In Dispute Over Characterization of Communications With Priest

The U.S. Supreme Court yesterday denied certiorari in Roman Catholic Church of the Diocese of Baton Rouge v. Mayeux, (Docket No. 14-220, cert. denied 1/20/2015) (Order List). In the case, the Louisiana Supreme Court held that a trial court could decide whether a communication between a teenager and a priest over the 14-year old's romantic relationship with a parishioner amounted to a confession regardless of the Church's characterization of the communication. (See prior posting.) The Baton Rouge Advocate reports on the denial of review.

Tuesday, January 20, 2015

Some Thoughts On Today's Supreme Court Decision In Holt v. Hobbs

Today's Supreme Court decision in Holt v. Hobbs (see prior posting) is likely to lead to a dramatic increase in resources that federal district courts must devote to the dozens-- if not hundreds-- of prisoner RLUIPA cases that are filed each year.  Federal courts, under 28 USC Sec. 1915A, are required to conduct an early preliminary screening of prisoner lawsuits in order to dismiss those that have no chance of success.  It has been common for district courts to dismiss cases at this preliminary stage on the ground that the inmate has failed to show a "substantial burden" on his or her religious exercise.  Often courts have reached that conclusion on the basis that, while an inmate was denied the ability to carry out some particular religious ritual or requirement, the inmate had a number of other ways to practice his or her faith.  Today the Supreme Court rejected that approach, saying:
[T]he District Court erred by concluding that the grooming policy did not substantially burden petitioner’s religious exercise because “he had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays.”... In taking this approach, the District Court improperly imported a strand of reasoning from cases involving prisoners’ First Amendment rights. See, e.g., O’Lone v. Estate of Shabazz, 482 U. S. 342, 351–352 (1987); see also Turner v. Safley, 482 U. S. 78, 90 (1987). Under those cases, the availability of alternative means of practicing religion is a relevant consideration, but RLUIPA provides greater protection. RLUIPA’s “substantial burden” inquiry asks whether the government has substantially burdened religious exercise (here, the growing of a 1⁄2-inch beard), not whether the RLUIPA claimant is able to engage in other forms of religious exercise.
So courts will now need to concentrate on the "compelling interest" and "least restrictive means" prongs of RLUIPA in initial screening of complaints.  More cases are likely to survive initial screening when those elements are the focus.  In prison contexts, generally one of two sorts of compelling interests are asserted-- (1) prison security or (2) budgetary concerns in accommodating prisoner religious practices.  In Holt, security and safety were asserted, and the Court conceded that those are compelling interests. However it suggested that budgetary concerns (such as those asserted when inmates seek religious diets) pose a more difficult question, saying:
Congress stated that RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” §2000cc–3(c). See Hobby Lobby.... 
When it comes to evaluating whether the government has shown that its restriction on religious exercise is the least restrictive means of furthering a compelling governmental interest, the Court emphasized that the inquiry must be narrowly focused:
The Department argues that its grooming policy represents the least restrictive means of furthering a “‘broadly formulated interes[t],’” ... namely, the Department’s compelling interest in prison safety and security. But RLUIPA, like RFRA, contemplates a “‘more focused’” inquiry and “‘requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”––the particular claimant whose sincere exercise of religion is being substantially burdened.’”... RLUIPA requires us to “‘scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants’” and “to look to the marginal interest in enforcing” the challenged government action in that particular context....
How far must this individualization go?  Must authorities consider how likely it is that the particular claimant will create a security risk?  Should the evaluation of alternatives depend, for example, on whether the particular inmate seeking to grow a beard has a history of attempting to smuggle contraband? The more individualized the determination must be, the fewer cases that will be able to be disposed of at the preliminary screening stage.

Finally one additional portion of the Court's opinion adds complexity to the question of when a religious exemption from a prison rule must be granted. The Court said:
[T]he District Court went astray when it relied on petitioner’s testimony that not all Muslims believe that men must grow beards. Petitioner’s belief is by no means idiosyncratic....  But even if it were, the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is “not limited to beliefs which are shared by all of the members of a religious sect.”
Those who follow Religion Clause's weekly summary of prisoner free exercise cases know that inmates professing a wide variety of religious beliefs seek religious accommodations relating to grooming, clothing, possession of religious items, worship space, congregate religious services, religious dietary restrictions, and more.  The Supreme Court has now reaffirmed the conclusion of most courts that an inmate may invoke RLUIPA to require accommodation of a totally idiosyncratic belief-- so long as it is sincerely held. Religious visions shared by no one else apparently still qualify.

Supreme Court Unanimously Upholds Muslim Inmate's Right To Grow Half-Inch Beard

Today in Holt v. Hobbs, (Sup. Ct., Jan 20, 2015), the U.S. Supreme Court unanimously held that the Arkansas Department of Corrections policy that prevents a Muslim inmate from growing a one-half inch beard for religious reasons violates the Religious Land Use and Institutionalized Persons Act.  In an opinion by Justice Alito the court held that it is irrelevant for purposes of RLUIPA that an inmate has other means of practicing his religion. While cases invovling prisoners' First Amendment rights invoke that reasoning, RLUIPA provides greater protection.  The court went on to reject the state's contention that its no-beard policy is the least restictive means of furthering a compelling state interest. It found unpersuasive the state's arguments regarding contraband and identification of inmates. The Court added that prison officials still have ample ways to maintain security, saying that "in applying RLUIPA’s statutory standard, courts should not blind themselves to the fact that the analysis is conducted in the prison setting."

Justice Ginsburg filed a short concurring opinion, joined by Justice Sotomayor, emphasizing that here, unlike in the Hobby Lobby case, accommodating petitioner's religious beliefs would not detrimentally affect third parties who do not share his beliefs. Justice Sotomayor filed a separate concurring opinion saying: "I do not understand the Court’s opinion to preclude deferring to prison officials’ reasoning when that deference is due—that is, when prison officials offer a plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them."

Indiana County Fights Creche Suit By Enacting Open Forum Law

The Batesville (IN) Herald-Tribune reports that last week the Franklin County, Indiana Commissioners passed Ordinance 2015-02 to create a public forum on the county courthouse grounds permitting displays, demonstrations, exhibits, rallies and other expressive activities without regard to viewpoint under a neutral permit process.  The action was taken in response to a lawsuit filed against the county last month challenging the constitutionality of a life size Nativity Scene displayed on the courthouse lawn. (See prior posting.)

UPDATE: According to WLWT, on Feb. 10 plaintiffs dropped the lawsuit.

St. Paul-Minneapolis Archdiocese Files For Bankruptcy Reorganization

On Friday, the Catholic Archdiocese of Saint Paul and Minneapolis filed for Chapter 11 Bankruptcy Reorganization. In a letter (full text) announcing the decision, Archbishop John Nienstedt said it "will allow the finite resources of the Archdiocese to be distributed equitably among all victims/ survivors [of clergy sexual abuse].  It will also permit the Archdiocese to provide essential services required to continue its mission within this 12-county district." The Archdiocese has posted the full text of the Voluntary Petition and other legal and financial documents in the case. Reporting on the filing, MPR News points out that it will stop civil trials that were set to begin on Jan. 26.

More Preliminary Details of Pope's September U.S. Visit Emerge

Preliminary details of Pope Francis' itinerary during his September visit to the United States are becoming known.  From a report by CBS/AP on the Pope's news conference yesterday and a report by the Washington Times on details disclosed by Archbishop Bernardito Auza, the Pontiff's likely schedule so far looks like this:

Washington D.C. Sept. 22-24:
  • Arrival- evening of  Sept. 22
  • Welcoming ceremony at White House- morning of Sept. 23
  • Mass at Basilica of the National Shrine of the Immaculate Conception (for bishops, consecrated and religious men and women, seminarians and representatives from humanitarian and Catholic charitable organizations).  At the Mass, the Pope will canonize 17th-century founder of the first Missions in California, Junipero Serra- later on Sept. 23
  • Address to Joint Session of Congress- Sept. 23 or 24
  • Leave for New York-afternoon of Sept. 24

New York- Sept. 24-26
  • Address to United Nations General Assembly (including opening of Post-2015 Sustainable Development Summit, with many heads of state attending)- morning of Sept. 25
  • Mass in Madison Square Garden
  • Visit to Ground Zero Memorial
  • Visit to St. Patrick's Cathedral
  • Inter-ethnic meeting
  • Leave for Philadelphia- early morning of Sept. 26

Philadelphia (World Meeting of Families)- Sept. 26-27
  • Prayer Vigil- Sept. 26
  • Visit to a children's hospital or juvenile prison
  • Mass- Sept. 27
  • Depart for Rome- evening of Sept. 27
Even with this ambitious schedule, there were things that had to be omitted.  The Pope said he would have liked to enter the U.S. through the Mexican border "as a sign of brotehrhood and help to the immigrants." But, he joked: ..."going to Mexico without going to visit the Madonna (of Guadalupe) would be a drama. A war could break out!"

Monday, January 19, 2015

Employee Who Objected To Biometric Scanning As Mark of the Beast Wins $150,000 Verdict

The Clarksburg Exponent Telegram reports that a jury in a West Virginia federal district court last Thursday awarded $150,000 in compensatory damages to a former employee of Consol Energy (the mining operation of Consolidation Coal Co.) in a Title VII suit charging failure to accommodate his Evangelical Christian religious beliefs. Beverly R. Butcher Jr., a laborer at the mine, objected to biometric hand scanning to track time and attendance, believing that it involves the Mark of the Beast forbidden in the Book of Revelation. The company however relied on a letter from the manufacturer of the hand scanner assuring that it does not assign the Mark of the Beast, and suggesting that objecting employees scan their left, instead of their right, hand.  The company refused other accommodations suggested by Butcher, and the EEOC sued on his behalf. (See prior posting.) In addition to the jury's damage award, the judge will still determine back and forward pay. Defendants plan an appeal.

UPDATE: The 4th Circuit affirmed the district court's award of damages in U.S. Equal employment Opportunity Commission v. Consol Energy, Inc., (4th Cir., June 12, 2017).