Arizona Says Judges Cannot Refuse To Perform Same-Sex Marriages If They Perform Others

The Arizona Supreme Court Judicial Ethics Advisory Committee has issued Revised Advisory Opinion 15-01 (March 9, 2015), Judicial Obligation To Perform Same-Sex Marriages. It provides in part that:

a judge who chooses to perform marriages may not discriminate between marriages based on the judge’s opposition to the concept of same-sex marriage.

Rule 2.3(B) of the Arizona Code of Judicial Conduct provides that a judge shall not, "in the performance of judicial duties," manifest bias or prejudice based upon sexual orientation....

Refusing to perform same-sex marriages, while agreeing to perform opposite sex marriages, also violates Rule 2.2 of the Code which provides that "[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially."

...  The JEAC concludes that a judge may choose for various reasons not to conduct any marriages at all because performing marriages is a discretionary, not mandatory, function. A judge may also choose to conduct marriages only for friends and relatives to the exclusion of all others. Such a choice would not run afoul of Rule 2.3(B) because it is not based on sexual orientation. Of course, a judge who performs marriages only for friends and relatives would violate Rule 2.3(B) if the judge refuses to perform marriages for same sex friends and relatives.

AP reports on reactions to the ruling.

Israeli Court Tells Ultra-Orthodox Paper To Publish Ad By Party Running Women Candidates- UPDATE- Order Reversed

In Israel on Friday, a district court in the city of Lod ordered Yated Ne'eman, the largest haredi (ultra-Orthodox)  newspaper to publish at least one election ad by U’bezchutan,  a political party seeking votes of haredi women.  Jerusalem Post reports that a number of haredi media outlets have rejected ads from  U’bezchutan, the only haredi party that has women candidates on its list. Publication of print ads in the haredi community is particularly important because many ultra-Orthodox women do not have access to the Internet. The court rejected the argument of the newspaper that the ad would offend the feelings of the paper's readers. The newspaper however has appealed the ruling, so the issue may not be finally decided before tomorrow's election.

UPDATE: On Sunday night, Israel's Supreme Court reversed the district court's judgment. (Report from Yeshiva World).

NYC's de Blasio Proposes Compromise On Religious Instruction In Pre-K Programs

AP reported yesterday that in New York City, Mayor Bill de Blasio plans to expand the participation of Jewish, Christian and Muslim schools in his free pre-kindergarten program for 4-year olds by permitting schools to offer religious instruction and prayer during mid-day breaks. This proposal is particularly aimed at increasing the participation of Orthodox Jewish schools in the program. The New York Civil Liberties Union says this is an "end-run" around church-state restrictions.  Meanwhile, this arrangement may still be a problem for many Jewish schools who see the required secular 6 hour and 20 minute day as too long to leave time for additional religious instruction.  The city is proposing to allow schools to remain open 6 days per week, and also on federal holidays such as Christmas, so students can get 31 hours and 40 minutes of secular instruction per week. But a spokesman for Jewish schools says this compromise is still unworkable.

Recent Articles and Book of Interest

From SSRN:

• Daniel Hay, Baptizing O’Brien: Towards Intermediate Protection of Religiously Motivated Expressive Conduct, (Vanderbilt Law Review, Vol. 68, No. 1, 2015).
• Alycia Michelle Wilson, Witches and Guns: The Intersection between Wicca and the Second Amendment, (February 4, 2015).
• Michael Schearer, God, Inc.: Hobby Lobby and Religious Freedom, (January 15, 2015).
• Aaron R. Petty, Accommodating 'Religion', (Tennessee Law Review, Forthcoming).
• Mohammad Fadel, Religious Law, Family Law and Arbitration: Shari'a and Halakha in America, (Chicago-Kent Law Review, Vol. 90, No. 1, 2015).
• Marie Ashe, Hosanna-Tabor, the Ministerial Exemption, and Losses of Equality: Constitutional Law and Religious Privilege in the US, (2 Oxford Journal of Law and Religion (2015)).
• Adam Lamparello, Why Chief Justice Roy Moore and the Alabama Supreme Court Just Made the Case for Same-Sex Marriage, (March 13, 2015).
• Andrew Koppelman & Ilya Somin, Amicus Brief in Obergefell v. Hodges, (Northwestern Public Law Research Paper No. 15-12). 

From SSRN (Non-U.S. Law):

• Roberta Rosenthal Kwall, Living Gardens, Living Art, and Living Tradition, (5 IP Theory Journal 73 (2015)).
• Mark Walters, Succession to the Throne and the Architecture of the Constitution of Canada, (Queen's University Legal Research Paper No. 2015-001 (2014)).
• Lorenzo Zucca, A Secular Manifesto for Europe, (March 5, 2015).
• Anuradha Chadha, A Case for Reservation in Favour of Religious Minorities,(March 6, 2015).
• Mariano Croce, Secularization, Legal Pluralism, and the Question of Relationship-Recognition Regimes, (The European Legacy 20(2) (2015): 151–165).
• Marie Ashe & Anissa Helie, Realities of Religio-Legalism: Religious Courts and Women's Rights in Canada, the United Kingdom, and the United States, (20 U.Cal.-Davis J. International Law & Policy 139 (Spring 2014)).
• Muhammad Munir, Mechanisms for Child Protection with Focus on Child Custody: Islamic Law and Case Studies of Pakistan and Jordan, (March 8, 2015).
• Frank S. Ravitch, The Japanese Prime Minister's Visits to the Yasukuni Shrine Analyzed Under Articles 20 and 89 of the Japanese Constitution, (Michigan State University College of Law Journal of International Law, Vol. 22, No. 3, 2014).
• Tomas Berkmanas, Natural Law and Political Ontology: A Historico-Philosophical Outline of a Major Human Transformation, (Baltic Journal of Law & Politics 7:2 (2014): 119-151).

From SmartCILP:

• Moamen Gouda & Dawood I. Ahmed, Measuring Constitutional Islamization: the Islamic Constitutions Index, 38 Hastings International & Comparative Law Review 1-74 (2015).
• Sonja R. West, First Amendment Neighbors, 66 Alabama Law Review 357-374 (2014).

Recent Book:

• Carol Weisbrod, Kites and the Sabbath: Legal Transplants and Pluralism in Hawaii, (Vanderplas Publishing, Oct. 2014).

New Supreme Court Decisions Change Free Exercise Conclusions In Indian Case

In Northern Arapaho Tribe v. Ashe, (D WY, March 12, 2015) a Wyoming federal district court held that the U.S. Supreme Court's recent decisions in Hobby Lobby and Holt v. Hobbs require the district court to depart from an earlier decision in a dispute between two Indian tribes on the taking of bald eagles for religious ceremonial purposes. In a November 2012 decision (see prior posting) the district court rejected a challenge under RFRA by the Northern Arapaho Tribe to a limitation in a Fish and Wildlife Service permit that allowed them to take two bald eagles for religious purposes in Wyoming, but not on the Wind River Reservation that they share with the Eastern Shoshone tribe. The Eastern Shoshones oppose the taking of bald eagles on the reservation because they consider the eagles sacred.

Now, in a decision on a First Amendment challenge to this limitation, the court, finding that the permit decision is not a neutral law of general applicability, applied the compelling interesst- least restrictive alternative test to invalidate the limitation on the Northern Arapaho's rights. The court said in part:

The real dispute in this case is the question of whether Defendants' decision to restrict the Northern Arapaho Tribe from taking up to two bald eagles per year within the Wind River Reservation is justified by a compelling governmental interest in fostering and protecting the Eastern Shoshone Tribe's culture and religion....

Following the Supreme Court's recent guidance in Hobby Lobby and Holt, when determining whether Defendants' decision is justified by a compelling interest, the Court must look beyond the broadly formulated interest and ... ask whether Defendants' decision to restrict the Northern Arapaho Tribe from taking up to two bald eagles per year within the Wind River Reservation is justified by a compelling governmental interest in fostering and protecting the Eastern Shoshone Tribe's culture and religion.

The Court concludes that it is not. The asserted harm to the culture and religion of the Eastern Shoshone Tribe if the Northern Arapaho Tribe were to take up to two bald eagles per year within the Wind River Reservation is miniscule. There is no doubt that the federal government has "general interests in preserving Native American culture and religion in-and-of themselves and in fulfilling trust obligations to Native Americans."... But the argument that taking up to two bald eagles per year within the Wind River Reservation would seriously compromise the federal government's general interest in protecting and fostering the Eastern Shoshone Tribe's culture and religion is unavailing. See Holt, 135 S.Ct. at 863.....

AP reports on the decision.

Recent Prisoner Free Exercise Cases

In Abernathy v. Strada, 2015 U.S. Dist. LEXIS 28041 (ED NY, March 6, 2015), a New York federal district court dismissed, primarily for failure to exhaust administrative remedies, a complaint by a former Native American inmate that he was refused a transfer to a correctional facility in which he could have access to a sweat lodge, tobacco for pipe ceremonies, musical instruments and religious literature.

In Rountree v. Clarke, 2015 U.S. Dist. LEXIS 28511 (WD VA, March 9, 2015), a Virginia federal district court dismissed an inmate's claim that religious books sent to her were improperly confiscated, but allowed her to move ahead with her claim for injunctive relief growing out of her complaint that she has been prohibited from standing on her prayer rug during count procedures as required by her Buddhist faith.

In Smith v. Cruzen, 2015 U.S. Dist. LEXIS 28604 (ND C, Feb. 24, 2015), a California federal district court permitted a Muslim inmate to proceed with his complaint that a correctional officer stopped Muslims from engaging in previously-approved group prayer.  A second pro se plaintiff who had filed jointly was dismissed without prejudice, allowing him if he wishes to file a separate action.

In Harris v. Gipson, 2015 U.S. Dist. LEXIS 28609 (ED CA, March 6, 2015), a California federal magistrate judge dismissed a Muslim inmate's complaint that the prison's Religious Meat Alternative Program offers halal meat for diner, but only a vegetarian diet for breakfast and lunch.

In Williams v. DeJesus, 2015 U.S. Dist. LEXIS 29164 (ED VA, March 9, 2015), a Virginia federal district court upheld a prison's decision to ban an inmate from possessing The Satanic Bible.

In Hailes v. Free, 2015 U.S. Dist. LEXIS 29409 (SD OH, March 10, 2015), an Ohio federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 76127, June 3, 2014) and dismissed a Seventh Day Adventist inmate's complaint that he was ordered to report for snow duty even though he had religious accommodation papers excusing him.  When he refused, he was placed in segregation.

In Hayles v. Taylor, 2015 U.S. Dist. LEXIS 29558 (MD GA, March 11, 2015) a Georgia federal magistrate judge dismissed without prejudice an inmate's conclusory allegation that while in disciplinary segregation he was denied access to religious services.

In Carmichael v. Aguilar, 2015 U.S. Dist. LEXIS 29990 (ED CA, March 11, 2015), a California federal magistrate judge dismissed a Muslim inmate's complaint over delays in implementing a prison halal diet.

Amicus Brief Targets Scalia and Thomas In Linking Same-Sex Marriage and Campaign Finance Equality

Dozens of amicus briefs have been filed in Obergefell v. Hodges and its companion cases-- the same-sex marriage cases that are set for oral argument before the U.S. Supreme Court on April 28. (Links to all briefs from SCOTUS blog). One of the most interesting (full text) is the brief of the Liberty Education Forum (a non-profit organization with ties to the Log Cabin Republicans), filed March 6, which focuses on the special treatment that contributions by married couples receive under state campaign finance laws. For example, each spouse can make campaign contributions up to the individual limit, even though only one of them brings income into the household.  The brief argues:

Respondents’ same-sex marriage prohibitions, when viewed together with their campaign finance laws, result in similarly situated couples having unequal rights to engage in the political process through political contributions. A state’s differential treatment with regard to core First Amendment rights violates the Fourteenth Amendment.

In a press release, Liberty Education Forum says that the brief is

targeted specifically at Justices Antonin Scalia and Clarence Thomas.... No two Justices on the Supreme Court have been more vocal about their opposition to curtailments of the First Amendment that exist because of restrictions on campaign contributions than Justices Scalia and Thomas.

BNA Daily Report for Executives (subscription required) reports on the brief.

Role of Rabbis In Israel Army Ceremonies Is In Dispute

Times of Israel reported yesterday on a controversy within the Israeli army over the role of rabbis at the swearing-in ceremony for new recruits.  Currently the ceremony, held at the Western Wall, features the unit commanders, the military rabbi and the rabbi of the unit.  However, the IDF's chief education officer Avner Paz-Tzuk has written the Manpower Directorate saying that a number of soldiers-- presumably secular ones-- have expressed “resentment” over “the centrality of military rabbis” in the ceremony.  Paz-Tzuk recommended that a commander, rather than a rabbi, read portions of the Bible at the swearing-in ceremony.  Defense Minister Moshe Ya’alon disagrees with the recommendation that reflects long-standing tensions between the Education Corps and the IDF rabbinate over educational roles in the military.

Germany's Constitutional Court Invalidates Blanket Ban On Teachers' Wearing Hijabs

Germany's Federal Constitutional Court today invalidated a blanket ban on Muslim teachers wearing the hijab (head scarf) while teaching.  Here is Deutsche Welle's summary of the decision in a suit brought by two teachers:

State authorities had decided that the teachers were violating the law, which in North Rhine-Westphalia forbids any religious symbols or actions that are considered a threat to harmonious co-existence at schools. One of the teachers had been dismissed from her job, while the other received a written warning.

The high court ... has now decided that any such symbol or action must pose a "concrete danger" to be forbidden under the law, saying that the ban was an intrusion on the teachers' self-identity.  The ruling means, however, that headscarves could theoretically still be banned in certain individual cases where such a "concrete" danger is considered to exist. This could occur, for example, if a Muslim teacher wearing a headscarf were to cause frequent altercations among pupils...

The ruling on Friday also overturned another clause in North Rhine-Westphalian law that excepted manifestations "of Christian and Western educational and cultural values or traditions" at schools from the otherwise complete ban on blatant demonstrations of religious affiliation.

The court decided that this exception constituted a privileging of Christian symbols over those of other religions, which would go against the ban on discrimination on religious grounds that is enshrined in the German constitution.

[Thanks to Tom Rutledge and Claudia Haupt for the lead.]

Navy May Remove Christian Chaplain For Inapproriate Counseling On Sexuality

Military Times reported Wednesday on the Navy's threat to remove Pentecostal chaplain Lt. Cmdr. Wesley Modder from the service because of inappropriate counseling he offered to sailors on issues of sexuality. After a number of sailors filed equal opportunity complaints against Modder, on Feb. 17 he was issued a "detachment for cause" letter.  His commanders charge that Modder is intolerant and unable to function in a diverse and pluralistic environment. Assigned to the Nuclear Power Training Command in South Carolina, Modder had criticized female sailors for pre-marital sex and told students that homosexuality is wrong. When told of complaints against him, Modder responded that he will not follow Navy policy that conflicts with his religious beliefs. Modder has been temporarily reassigned, while it is determined whether a board of inquiry to officially separate him from the Navy will be convened.  He has less than a year to serve in order to qualify for 20-year retirement benefits.

Philadelphia Transit System Must Accept Anti-Muslim Ad

In American Freedom Defense Initiative ("AFDI") v. Southeastern Pennsylvania Transportation Authority, (ED PA, March 11, 2015), a Pennsylvania federal district court granted a preliminary injunction requiring Philadelphia's transit system to accept a controversial anti-Muslim ad on its buses.  AFDI sought to purchase space for an ad that reads in part: "Islamic Jew-Hatred: It’s in the Quran." The ad pictures Adolph Hitler meeting with an Arab leader.  SEPTA had rejected the ad under its policy to prohibit: "Advertising that tends to disparage or ridicule any person or group of persons on the basis of race, religious belief, age, sex, alienage, national origin, sickness or disability." The court held, however, that this is an unconstitutional content-based restriction on speech in a designated public forum. It added:

[I]t is clear that the anti-disparagement standard promulgated by SEPTA was a principled attempt to limit hurtful, disparaging advertisements. While certainly laudable, such aspirations do not, unfortunately, cure First Amendment violations.

AP reports on the decision.

9th Circuit: Anti-Injunction Act Bars Suit Seeking New IRS Procedures For Religious Objectors

In Boardman v. Commissioner of Internal Revenue, (9th Cir., March 12, 2015), the U.S. 9th Circuit Court of Appeals held that the Anti-Injunction Act requires dismissal of a suit seeking to prevent the Intenal Revenue Service from using expedited procedures to resolve frivolous assertions of religious objections to paying income taxes.  Plaintiff had asked for an injunction ordering the IRS to adopt "procedures for processing disputes, claims, collections and litigation adverse to taxpayers who refuse to pay taxes because of conscience or religion that are respectful, efficient, transparent and minimally burdensome and that lead to Tax Court determinations upon taxpayer request."

Britain's Equality Commission Reports On Religion In the Workplace and Service Delivery

Yesterday Britain's Equality and Human Rights Commission released a report on its Consultation launched last year seeking evidence on religious discrimination and accommodation in Britain. The 218-page report, titled Religion or Belief in the Workplace and Service Delivery, reports on information received from nearly 2500 individuals and organizations. Here is an excerpt from the Commission's summary of key findings:

Some employees or service users stated that they had experienced no or few negative issues in their workplace or in receiving a service which they attributed to the view of employers or service providers that religion or belief was a private matter and should not be discussed in the workplace or the service.

Some employees and students stated that they had encountered hostile and unwelcoming environments.... The issues raised concerned the recruitment process, working conditions, including the wearing of religious clothing or symbols, promotion and progression, and time off work for religious holidays and holy days. Some reported that particular beliefs were mocked or dismissed in the workplace or classroom, or criticised unwelcome 'preaching' or proselytising, or the expression of hurtful or derogatory remarks aimed at particular groups....

Many participants were concerned about the right balance between the freedom to express religious views and the right of others to be free from discrimination or harassment. Specific issues raised included conscientious objection in relation to marriage of same sex couples and how to protect employees from harassment and discrimination by staff, customers or service users with a religion. There was a marked divergence of opinion about when it was desirable and appropriate to discuss religious beliefs with service users during the delivery of a service.

The Commission's press release on the report emphasized some of the concerns expressed by respondents. The report is discussed further at Law & Religion UK blog.

NLRB Asserts Jurisdiction Over Faculty Election At Jesuit College

In Seattle University v. Service Employees International Union, (NLRB Reg. Dir., March 3, 2015), an NLRB Regional Director Supplemental Decision, the Regional Director applied the NLRB's new standard  for religious colleges to hold that the NLRB has jurisdiction over a faculty union election at Seattle University. The Director held that while the University holds itself out as a Jesuit Catholic institution, it does not hold faculty members out as performing a religious function.

First Lady Hosts Nowruz Reception

Yesterday, First Lady Michelle Obama hosted a reception in the East Room of the White House to mark Nowruz.  The holiday, with roots in Zoroastrianism, celebrates the start of the new year in the Persian calendar. In her remarks (full text), Mrs. Obama said in part:

I think it’s so fitting that we’re holding this celebration here today because one of my favorite things about the White House is how it is truly the People’s House –- a house that reflects the diversity of culture and traditions that make us who we are as a country.  And Nowruz is one of those traditions.

For more than 3,000 years, families and communities in the Middle East, Asia, and all around the world, including here in the United States, have celebrated this holiday to mark the renewal of the earth in springtime....

The GW Hatchet reports in more detail on the reception.

Alabama Supreme Court Subjects Remaining Probate Judge To Its Order Banning Issuance of Same-Sex Marriage Licenses

On Tuesday the Alabama Supreme Court followed up its March 3 decision that ordered all Probate Court judges around the state to discontinue the issuance of marriage licenses to same-sex couples. (See prior posting.)  In that earlier decision, Mobile County Probate Judge Don Davis asked to be excluded as a respondent on the ground that he was subject to a conflicting federal court order in Strawser v. Strange. (See prior posting.)  In Ex parte State of Alabama ex. rel. Alabama Policy Institute, (AL Sup. Ct., March 10, 2015), in a 6-1 decision, the Alabama Supreme Court concluded that Davis is not subject to a conflicting order because the federal court had only granted injunctive relief requiring him to issue marriage licenses to the four couples who were plaintiffs in the Strawser case. Those license have now already been issued. The Supreme Court thus added Davis as a respondent who is bound by its March 3 order. AL.com reports on the decision.

Fired Employee Claims HIs Religious Objections To Direct Pay Deposit Should Have Been Accommodated

According to Northwest Ohio Media Group, an employment discrimination lawsuit was filed last week in an Ohio federal district court by a man who has a history of filing religious discrimination lawsuits against large companies.  Plaintiff Lee Yeager says that his Christian fundamentalist beliefs prohibit him from having a bank account because he believes banks engage in Biblically prohibited usury. Yeager was terminated from the internship program at FirstEnergy Generation Corp. after he refused to agree to have his pay directly deposited into a bank account.  The complaint (full text) in Yeager v. FirstEnergy Generation Corp., (ND OH, filed 3/3/2015) contends that the company could have reasonably accommodated plaintiff's religious beliefs without undue hardship. In January the Ohio Civil Rights Commission ruled in Yeager's favor on the direct deposit claim, but the company is appealing the ruling.

Suit Charges Religious Discirmination In Cancellation of Hasidic Jews' Voter Registration

A class action lawsuit was filed yesterday in a New York federal district court by a group of Hasidic Jews against the Sullivan County Board of Elections that oversees voting in the small Village of Bloomingburg, New York.  According to Newsweek, in January the Board of Elections sent notices to 184 of the Village's 285 registered voters to show cause why the Board should not cancel their voter registrations. More than 160 of the voters receiving the notices are Hasidim.  Last month the Board announced that it would move ahead to cancel registrations of 156 of these voters-- comprising virtually every Hasidic Jewish resident of the Village.  The suit alleges that the voters were singled out only because of their religion.  A lawsuit filed last year charges the Village more generally with acting together with a neighboring town to keep more Hasidic Jews from moving into the area. (See prior posting.)

Failed Messiah blog says that the Village has good cause to cancel the voter registrations:

The suit is backed by Shalom Lamm, the Modern Orthodox developer [of a Bloomingburg housing project] who ... deceived (and, some say, bribed) his way past naive locals to get the original go-aheads for the project, which was always meant to be a 396-unit high density Satmar hasidic village but camouflaged as a low density 125-home golf course vacation and retirement community....

The hasidim who were disqualified from voting almost all claimed one of Lamm's private homes in the village as their residence, with more than a dozen adults showing the same single family home as their "official" residence. The property, however, showed no sign of regular habitation....

Challenge To Oklahoma 10 Commandments Monument Dismissed On Standing Grounds

An Oklahoma federal district court yesterday dismissed an Establishment Clause challenge to the Ten Commandments Monument located on the grounds of the Oklahoma State Capitol.  In American Atheists, Inc. v. Thompson, (WD OK, March 10, 2015), the court held that the individual plaintiff in the case lacks standing because she saw the Monument only once before filing suit, and then only because she went looking for it -- apparently in order to create standing to sue. The standing of American Atheists, Inc. depends on the standing of the individual plaintiff who was a member. Reacting to the decision, Oklahoma state Attorney General Scott Pruitt said: "The historical relevance of the Ten Commandments and the role it played in the founding of our nation cannot be disputed. I commend Judge Cauthron’s decision to rule in the state’s favor." AP reports on the decision.

Sheriff Tells Registered Sex Offenders To Attend Church At County Jail

In Graham County, North Carolina, the sheriff last month sent a letter (full text) to the 20 registered sex offenders in his county telling them that a North Carolina law barring offenders from being within 300 feet of premises where minors are supervised means that they may not attend church. The letter continues:

This is an effort to protect the citizens and children of the community.... That is why I am letting you know that if you want to go to a church service you are welcome to come to the Graham Co. Jail on Sunday's to attend church services.

Reporting yesterday, WCNC News  says that Sheriff Danny Millsaps now concedes that his wording may not have been totally correct, but he stands by his interpretation of the law.