3 Senior Faculty Attack Notre Dame's Granting of Benefits To Same-Sex Couples

Three senior faculty members at the University of Notre Dame earlier this week published an interesting attack on the decision by Notre Dame University and some other Catholic institutions to grant same-sex couples who are legally married the same employee benefits available to married heterosexual couples.  The statement (full text) by law professors Gerard V. Bradley and John Finnis and political science professor Daniel Philpott, published on the blog site Public Discourse, says in part:

[W]hen a university’s administration, knowing that “same-sex marriages” are in a Catholic understanding not truly marriages at all, nonetheless gives without legal coercion many signs and solid tokens of approving such commitments to non-marital sex acts, everyone can readily infer that the university actually does not regard any kind of sex acts between adults as grave matter, provided that these acts are consensual and, perhaps, linked to some notion of commitment. This inference and its logic apply to the vast majority of its students whose inclinations are heterosexual, and whose temptations—enhanced by the perceived indifference of the university—are rather to fornication (and pornography and self-abuse) than to sodomy....

The baneful effects of this structure of sin will be difficult to contain. It will be reinforced, for instance, if and when such a university accepts that an open commitment to an unchristian kind of sexual relationship is little or no impediment to being appointed to holding high office and high academic posts in it....

[B]y extending marriage benefits to same-sex couples, a university would directly cooperate in, encourage, and promote the grave injustices committed by those of its employees who, deeming themselves (and being legally deemed) married, will—usually in circumstances utterly remote from emergency rescue of orphans—adopt children. Even worse, some couples may use third-party reproduction to create children with the intent to bring them up motherless (if the couple is male) or fatherless (if the couple is female) and in a domestic educational context of active approval of intrinsically immoral sex. No Christian institution should ever cooperate with such gratuitous wronging of children....

Finally, institutions that assimilate civil same-sex “marriage” into the category of true marriage will lose their credibility in the fight to defend religious freedom against the federal judiciary, powerful currents of influence, and coercive laws.

[Thanks to Mirror of Justice for the lead.]

South Korea's Constitutional Court Invalidates Criminal Adultery Law

By a vote of 7-2 yesterday, South Korea's Constitutional Court struck down the country's 1953 law criminalizing adultery.  The New York Times reports that an opinion joined by 5 of the Justices said that the law has often been misused to force a divorce or blackmail married women. Under the law, cases could be brought under the law only if a spouse brought a complaint, and prosecutors could not continue the case if a spouse chose to drop it. In four previous challenges to the law between 1990 and 2008, the Court had upheld it. Sungkyunkwan, a Confucianist organization, called yesterday's decision deplorable.

ISIS Destroys Ancient Museum and Library Collections In Iraq To Purge Non-Islamic Content

According to a report yesterday from the Daily Mail, in the northern Iraqi city of Mosul ISIS followers have wreaked widespread destruction at museums and libraries to rid them of all non-Islamic content.  Video recently posted on a Twitter account used by ISIS shows extremists using sledge hammers and power drills to destroy priceless ancient statues at the Nineveh Museum, including a winged-bull Assyrian protective deity from the 9th century BCE. On the video, one of the men involved says these were destroyed because they promote idolatry:

The Prophet ordered us to get rid of statues and relics, and his companions did the same when they conquered countries after him.

Meanwhile, it was also disclosed this week that terrorists have blown up the Mosul Public Library, with its collection of Iraqi newspapers for the past century and maps and books from the Ottoman Empire. This comes a month after terrorists loaded 2000 secular books from the library on trucks to be burned because the books supposedly promote infidelity and call for disobeying Allah. There has also been destruction at the archives of a Sunni Muslim library, the libraries of the Latin Church and Monastery of the Dominican Fathers and the Mosul Museum Library. ISIS has threatened the death penalty for anyone who tries to hide books or manuscrpts to save them from destruction-- a tactic that saved many items in the aftermath of the U.S.-led invasion of Iraq in 2003.

Teacher Forced Out For Facebook Posting On Religious Objections To School Billboard Can Sue

Knox v. Union Township Board of Education, (D NJ, Feb. 23, 2015), is a suit by a former tenured special education teacher at a public high school in New Jersey who was suspended after a posting comments on her personal Facebook page expressing her religious disapproval of a school billboard that promoted alternative homosexual lifestyles.  When the school board brought charges seeking to strip her of tenure, the teacher entered a settlement agreement under which she resigned and paid back the salary that she had received during her suspension.  However she reserved her right to sue for statutory and constitutional violations. In this opinion, the court permitted her to proceed with her state and federal constitutional claims of religious discrimination, infringement of free exercise and free speech rights, establishment clause violations and denial of due process. Her claims of racial discrimination and intentional infliction of emotional distress were dismissed.

Austrian Parliament Passes Controversial Amendments To Law On Islam

Austria's Parliament yesterday adopted controversial amendments to the country's 1912 Law on Islam.  As reported by AFP, the new law bans foreign financing of mosques and requires imams to be able to speak German. Its goal is to create an Islam with European character. However the law as adopted did not include a previously proposed requirement for the development of an official German version of the Qur'an. (See prior posting.) The law gives Muslims the right to consult Islamic chaplains on the staffs of hospitals, retirement homes, prisons and the armed forces. It also assures Muslims the right to Halal meals in those institutions and in schools, and permits Muslims to take off of work for Muslim holidays. The Islamic Religious Authority of Austria approved the bill, but other Islamic organizations criticized it as discriminatory. On the other hand, Austria's far-right Freedom Party denounced the law as insufficient.

In an interview with NPR, the Austrian Minister for Foreign Affairs further clarified the law's restrictions on foreign funding of mosques:

We have nothing against one time donations. And these are still allowed. But what we want to reduce is the control. If we have this kind of support, our communities do not have the opportunity to develop freely.

He also said:

[O]ur goal is to have our own Austrian imams. It is necessary for us to show young people that it's possible to be a believing Muslim and a proud Austrian at the same time.

Annual White House Easter Egg Roll Announced

The White House this week announced that the 137th annual White House Easter Egg Roll will be held on April 6, hosted by the President and Michelle Obama.  It is expected that 35,000 people will gather on the South Lawn of the White House for the event. The lottery for tickets ends today at noon.

Court Dismisses Religious and Speech Objections To Requirement That Witness Stand To Be Sworn In

In Pellegrino v. Meredith, (ED CA, Feb. 23, 2015), a California federal magistrate judge dismissed, with leave to amend, a suit for damages against a traffic court judge and the county by Anthony Pellegrino who, as defendant in a traffic case, was told that he must stand while being sworn in as a witness.  Pelligrino refused, telling the court: "I only rise before my Lord and Savior Jesus Christ."  At that point the bailiff escorted Pellegrino outside the courtroom for an hour. When Pellegrino returned he was escorted to the bench area and sworn in before he had a chance to sit down.

The court rejected Pellegrino's free exercise claim, saying that at most he suffered an "insubstantial inconvenience" for refusing to stand.  The court also rejected Pellegrino's claim that his refusal to stand was protected expressive conduct.

The opinion recounts numerous incidents in which Pellegrino harassed government officials, raising frivolous arguments, asking government officials to show him their oath of office, refusing to pay filing fees, and the like.  In dismissing Pellegrino's claims, the court said:

Given the context of the situation, it is clear from this Court’s reading of the complaint that Defendant Meredith viewed Plaintiff’s refusal to stand while taking the oath as another incident in a long line of immature, disrespectful and frivolous protests by Plaintiff throughout his court proceedings.

Transcript Available For SCOTUS Arguments In Abercrombie & Fitch

The full transcript of this morning's Supreme Court arguments in EEOC v. Abercrombie & Fitch Stores is now available from the Court's website. AP reports on the oral arguments in the Title VII religious accommodation case, saying that the Justices seemed to support prospective employee Samantha Elauf's position. At issue is the kind of notice that is needed to be given to an employer before its obligation to try to accommodate religious exercise is triggered.

SCOTUS Will Hear Oral Arguments Today In Abercrombie & Fitch Religious Accommodation Case

The U.S. Supreme Court this morning will hear oral arguments in EEOC v. Abercrombie & Fitch Stores, Inc. (Docket No. 14-86).  In the case,  the 10th Circuit held that there is a strict notice requirement before an employer is required under Title VII of the 1964 Civil Rights Act 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.)  More than a dozen amicus briefs have been filed in the case. Links to all the briefs, as well as to a preview of the arguments, are available from SCOTUSblog.

European Court Says Bulgaria Violated Religious Rights of Muslims By Inadequate Response To Mosque Demonstration

The European Court of Human Rights in a Chamber Judgment yesterday held that Bulgarian authorites violated Muslim worshipers' right to practice their religion by the inadequate response to a demonstration in front of a mosque in the center of Sofia in 2011.  In the demonstration, leaders, members and supporters of the Bulgarian political party Ataka clashed with Muslim worshippers who had gathered for Friday prayer. In Karaahmed v. Bulgaria, (ECHR, Feb. 24, 2015), the court said:

the outcome of the police’s response that day was that a large number of demonstrators were able to stand within touching distance of Banya Bashi mosque, to shout insults at praying worshippers, to engage in threating and provocative gestures and actions, and ultimately to gain access to the mosque. They enjoyed a virtually unfettered right to protest at the mosque that day, while the applicant and the other worshippers had their prayers entirely disrupted. It is plain, therefore, the police’s actions were confined simply to limiting the violence which broke out that day and that no proper consideration was given to how to strike the appropriate balance in ensuring respect for the effective exercise of the rights of the demonstrators and the applicant and the other worshippers.

Novinite reports on the decision.

Settlement Agreed To In NYC Circumcision Regulation Challenge

The New York Observer reported yesterday that New York Mayor Bill DeBlasio's administration has reached a settlement agreement with the ultra-Orthodox Jewish community in a lawsuit (see prior posting) challenging the New York City Health Department's regulations requiring mohels to obtain written consent from parents before using the oral suction method (metzitzah b’peh) of performing a ritual circumcision. Under the settlement agreement reached after long negotiations with rabbinic authorities, the city will use local health care providers to educate the community about the risks of herpes infection in infants. Jewish leaders will help the city identify the mohel who performed the circumcision on any infant who becomes infected with HSV1.  If genetic testing shows the mohel was the source of the infection, the Jewish community will permanently remove him as a mohel, and he will be subject to financial penalties if he continues to perform circumcisions.  However the list of those removed will not be made public.  This arrangement will lead to a settlement of the pending litigation and repeal of the informed consent requirements.

Report Finds Increased Hostility To Religion In America

Earlier this month, Liberty Institute released the 2014 Edition of its publication Undeniable: The Survey of Hostility to Religion in America. It concludes that there has been a 133% increase in religious hostility attacks in the U.S.in the past three years.  The 393-page report surveys legal challenges in four areas: attacks on religious liberty in the public arena; attacks on religious liberty in the schoolhouse; attacks on religious liberty of churches and ministries; and attacks on religious liberty in the military.

Arkansas Law Barring Cities From Expanding LGBT Protections Becomes Law Without Governor's Signature

AP reports that yesterday, Arkansas Governor Asa Hutchinson allowed SB 202 to become law without his signature. The legislation bars local governments from adopting or enforcing anti-discrimination laws that protect classes not covered by the state civil rights law.  The bill is aimed at preventing cities from expanding their anti-discrimination laws to cover discrimination on the basis of sexual orientation.  The bill's sponsor, Sen. Bart Hester, said: "To think we could have different civil rights laws in every city is not realistic and not conducive to a good business environment."  The bill does not bar local governments from expanding non-discrimination policies applicable only to their own employees.

Settlement Requires Michigan City To Allow "Reason Station" Near "Prayer Sation" In City Hall

Yesterday, a federal district court approved a settlement in a suit brought by an atheist who was refused space for a table in the atrium of Warren, Michigan's city hall for a "reason station,"  even though the city had permitted a local pastor to operate a "prayer station" in the atrium since 2009. (See prior posting.) The court's order (full text) in Marshall v. City of Warren, (ED MI, Feb. 23, 2015) requires the city to allow the Reason Station to operate on terms no less favorable than those granted to the Prayer Station. The city must also pay attorneys' fees of $100,000 to the ACLU of Michigan. The ACLU issued a press release calling the settlement "a complete win for our side and for the First Amendment." The Detroit Free Press had additional background.

Suit Against Gym Alleges Religious Discrimination Against Muslim Athlete

A suit alleging religious discrimination in a place of public accommodation was brought in an Ohio federal district court yesterday against an LA Fitness facility in Cincinnati.  The complaint (full text) in Fall v. LA Fitness, (SD OH, filed 2/23/2015), filed by Mohamed Fall, a 28-year old former college basketball star and a practicing Muslim who regularly works out at LA Fitness, alleges that for over a year, after exercising, Fall "customarily retreats to an empty, obscure corner of the men's locker room, next to an empty coat rack, faces the wall and conducts Salat, or prayer, quietly to himself for approximately 5 to 10 minutes." On January 29, while in the middle of prayer, Fall, an immigrant from Senegal, was surrounded by three LA Fitness employees and told management had decided that he could no longer pray anywhere at the gym.  Fall claims he was singled out because he is a Muslim, saying that he has seen non-Muslims at the gym engage in religious prayer and related activities such as making the sign of the cross. WCPO News reports on the lawsuit.

Australian Court Says Polyamory Is Not "Sexual Orientation" Under Sex Discrimination Act

In Bunning v Centacare, (FCCA, Feb. 11, 2015), an Australian Federal Circuit Court judge dismissed a sexual orientation discrimination complaint filed against a Catholic social service agency by former employee Susan Bunning.  Bunning had worked most recently as the agency's Coordinator of Family Support, but was dismissed after it became known that she led a polyamorous lifestyle. She sued under the Sex Discrimination Act 1984.  The court held that plaintiff has no cause of action because polyamory-- the practice of engaging in multiple sexual relationships with the consent of all the people involved-- is sexual behavior, not sexual orientation. Financial Review reports on the decision.

Recent Articles of Interest

From SSRN:

• Pamela Foohey, When Faith Falls Short: Bankruptcy Decisions of Churches,(February 13, 2015).
• Laura Marie Winocur, Competing Visions of the Modern Secular State in Law and Policy, (February 12, 2015).
• Robert T. Miller, Experience Explained: Review of David Skeel's "True Paradox", (U Iowa Legal Studies Research Paper No. 15-02, Jan. 2015).
• Mattheew P. Cavedon, Mere Ultramontanism, (December 14, 2013).
• Mark Cammack, Adriaan Bedner & Stijn Van Huis, Democracy, Human Rights, and Islamic Family Law in Post-Soeharto Indonesia, (New Middle Eastern Studies, Forthcoming).
• Ronald Turner, Title VII and the Roberts Court's Worldview Supremacy, (65 Labor Law Journal 149 (Fall 2014)).
• Hamed Ghoddusi & Sajjad Khoshroo, Islamic Finance and the Energy Sector,(February 16, 2015).
• Ari Z. Bryen, Martyrdom, Rhetoric, and the Politics of Procedure, (Classical Antiquity, Vol. 33, Issue 2, pp. 243–280 (2014)).

From SmartCILP:

• Zachary R. Calo, Carhart Lecture Series. Christianity, Islam, and Secular Law, 39 Ohio Northern University Law Review 879-900 (2013).
• Michelle A. McKinley, Standing On Shaky Ground: Criminal Jurisdiction and Ecclesiastical Immunity In Seventeenth-Century Lima, 1600-1700, 4 UC Irvine Law Review 141-174 (2014).
• Lena Salaymeh, Every Law Tells A Story: Orthodox Divorce In Jewish and Islamic Legal Histories, 4 UC Irvine Law Review 19-63 (2014).
• Christopher Tomlins, Demonic Ambiguities: Enchantment and Disenchantment in Nat Turner's Virginia, 4 UC Irvine Law Review 175-202 (2014).

Will A Supreme Court Decision Legalizing Same-Sex Marriage Apply To Tribal Governments?

Today's New York Times carries an article titled Among the Navajos, a Renewed Debate About Gay Marriage.  The two largest Indian tribes-- the Navajo Nation and the Cherokee Nation-- ban same sex marriage, though at least ten smaller tribes have legalized same-sex unions.  The national debate on the issue is causing some Navajos to consider repealing a 2005 tribal law--  the Dine Marriage Act-- which prohibits same-sex unions on the Navajo reservation. The Times article quotes an expert as saying that even if the Supreme Court decides that bans on same-sex marriage are unconstitutional, this will not affect tribal bans. That conclusion is based on the principle that tribes were not signatories to the Constitution and are not bound by it. The Times article, however, fails to mention the Indian Civil Rights Act which does bind tribal governments.  25 USC Sec. 1302 provides in part:

No Indian tribe in exercising powers of self-government shall... deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law....

Thus the invalidation of same-sex marriage bans on either 14th Amendment equal protection of due process grounds would appear to demand a similar result under Section 1302.

Recent Prisoner Free Exercise Cases

In Bausman v. California Department of Corrections and Rehabilitation, 2015 U.S. Dist. LEXIS 20213 (ED CA, Feb. 18, 2015), a California federal magistrate judge allowed a Native American inmate to move ahead with his complaint under RLUIPA that a change in regulations prohibiting possession of certain religious artifacts integral to participation in daily Native American cultural, traditional, ceremonial, and spiritual life substantially burdened his religious exercise.

In Blair v. CDCR, 2015 U.S. Dist. LEXIS 20751 (ED CA, Feb. 20, 2015), a California federal magistrate judge dismissed a complaint of a Jewish inmate that his temporary placement with a cellmate who was Muslim violated his free exercise and RLUIPA rights.

Judge Reprimanded For Questioning Defendant Over Religious Head Covering

In In re Ladenburg, (WA Commn. on Judicial Conduct, Feb. 20, 2015), the Washington Commission on Judicial Conduct in a consent order reprimanded municipal court judge David Ladenburg for challenging a criminal defendant wearing a fedora in the courtroom for religious reasons. The facts, as stipulated by the parties, showed that the judge told the defendant who said the hat was worn as part of his Jewish belief that he must bring evidence supporting his decision to wear that particular kind of head covering.  The judge threatened otherwise to have it removed.  In defense of his actions, the judge said he was unfamiliar with wearing of a fedora instead of a yarmulke. In 2006, the same judge had been issued an admonishment by the Commission for requiring a Muslim woman wearing a headscarf for religious reasons to remove it or leave his court room. (See prior posting.) The Tacoma News Tribune reports on yesterday's Commission action.