Thursday, May 07, 2015

Former Town Marshal Outlines FLDS Control of Two Towns

Sunday's Salt Lake Tribune carried an article titled A Polygamous Community’s Cop is Spilling its Secretsreporting on an interview with Helaman Barlow, a former marshal in the twin towns of Colorado City, Arizona and Hildale, Utah. Barlow said that the community has always been a theocracy run by the FLDS church.  Barlow cited examples of his accommodating FLDS leadership:
He knew men who took 16-year-old girls as plural wives. The marriages were sanctioned by the Fundamentalist Church of Jesus Christ of Latter-Day Saints, so Barlow didn't report them.
He looked up license plates for church security so they could track dissenters and their families. He obstructed the FBI when it came to town.

Church Attendance Did Not Violate Sex Offender's Probation Terms

Bangor Daily News reports that a Maine state trial court judge ruled yesterday that convicted sex offender Jason Simpson did not violate the terms of his probation by attending a church service where children were present.  Simpson was convicted in 2007 on 8 counts of gross sexual assault involving a 5-year old boy and 7-year old girl. Conditions of his probation included no contact with children.  Simpson did not speak to any child at the March 22 church service in Augusta that he attended, but a woman whose grandchildren were in church reported Simpson to his probation officer.

Afgahn Court Sentences Men Charged In Mob Killing Of Woman Falsely Accused of Burning Quran

Yesterday Afghanistan's Primary Court in Kabul sentenced four men to death by hanging for the mob killing of a 27-year old woman who was falsely accused of burning the Qur'an.  Eight others were sentenced to 16 years in prison, while charges were dropped against 18 men for lack of evidence.  Nineteen police officers charged in the case with neglect of duty and failure to stop the attacks will be sentenced on Saturday. AP reports:
On March 19, a mob attacked Farkhunda after an amulet peddler accused her of burning a Quran after she challenged him over selling his wares to women desperate to have children. Chilling mobile phone videos recorded the horror of the last moments of Farkhunda's life, as she was punched, kicked, beaten with wooden planks, thrown off a roof, run over by a car and ultimately set afire on the banks of Kabul River.
The two full days of hearings in Farkhunda's trial were broadcast live across the country.

Wednesday, May 06, 2015

Pro Se Plaintiff Asks Court To Declare Homosexuality A Sin

As reported by the Lincoln Journal Star, a 66-year old Nebraska woman last week filed a 7-page handwritten complaint (full text) captioned Sylvia Ann Driskell, Ambassador for Plaintiffs God, and His Son, Jesus Christ vs. Homosexuals, Their Given Name Homosexuals, Their, Alis Gay, (D NE, filed 5/1/2015). The somewhat incoherent complaint, citing Biblical verses, apparently seeks to have the court declare that homosexuality is a sin. [Thanks to Friendly Atheist for the link to the complaint.]

Suit Claims Drug Treatment Center Uses Scientology Rituals

Yesterday's Santa Cruz Sentinel reports on a lawsuit filed last month in a California federal district court against Narconon drug rehabilitation centers (and related entities) alleging that they falsely represent their success rate and are used to recruit people into the Church of Scientology. The class action complaint (full text) in Burgoon v. Narconon of Northern California, (ND CA, filed 3.25/2015), alleges false advertising, deceptive trade practices, negligent misrepresentations and breach of contract.  Among the key allegations in the complaint is:
Defendants represented, through their advertising and other express representations, that the drug rehabilitation services they offered were “secular” and not associated with any religion when, in fact, their treatment program required the Plaintiff and Class Members to study Scientology and engage in Scientology religious rituals as “treatment.”
A similar lawsuit was filed in Michigan in January against a Narconon Center there. (See prior posting.)

6th Circuit Rejects Free Exercise Claim By Christian Militia Member Over Seizure of Bibles

In Meeks v. Larsen, (6th Cir., May 5, 2015), the U.S. 6th Circuit Court of Appeals dismissed the civil rights complaints brought by a Michigan militia group against federal law enforcement officials.  Plaintiffs claimed that search warrants and the resulting searches violated their 1st, 2nd, 4th and 5th Amendment rights. As reported by WLS-TV News:
The Hutaree Militia formed in 2006, preparing for the apocalyptic end of time with commando exercises and live ammunition training....
For years the Hutaree Christian Warriors enjoyed playing war games in the woods of Northwest Indiana and Southern Michigan. But in 2010, federal authorities said the Hutaree Games had given way to a violent plot aimed at killing police and overthrowing the government.
Nine militia members were arrested, but the charges ended up being dismissed, and some members sued federal authorities for violating their rights.
Among the claims unsuccessfully asserted by the Hutaree was that the free exercise rights of one of their members were infringed by the seizure of copies of the Bible during the search.  The 6th Circuit held that it is questionable whether a cause of action for damages for violation of the Free Exercise Clause exists, but even if it does, plaintiff had not plead violation of a clearly-established right sufficient to overcome defendants' qualified immunity, nor had plaintiff plead that the seizure placed a substantial burden on his practice of religion.

A Bit of Humor On A Serious Topic...

For those who have been promising themselves that they will listen to the full Supreme Court oral arguments in Obergefell v. Hodges, the same-sex marriage cases argued last week, but have not gotten around to it, the task has now perhaps become more inviting with the posting on YouTube of the arguments synchronized with John Oliver dog clips:



Tuesday, May 05, 2015

Madison, Wisconsin Bars Discrimination Against Atheists, Agnostics, and Nonbelievers

As reported recently by AP, last month the city of Madison, Wisconsin enacted amendments (full text) to its Equal Opportunities Ordinance adding "nonreligion"  to the protected classes covered by its employment, housing and public accommodation anti-discrimination law (final action 3/31, enactment date 4/9). The ordinance defines "nonreligion" as "atheism, agnosticism, or other disbelief or lack of belief in the existence of God or gods."  Under the ordinance, non-profit religious organizations can still give preference to members of their own, or similar, denominations in hiring for instructional or policy-making positions, including hiring chaplains or counselors. According to a Freedom From Religion Foundation attorney, one of the reasons for enactment of the amendments is the recent increase in Madison of religiously-owned housing.

Cert Denied In Challenge To New Jersey's Reparative Therapy Ban

Yesterday the U.S. Supreme Court denied review in King v. Christie, (Docket No. 14-672, cert. denied 5/4/2015) (Order List).  In the case, the 3rd Circuit upheld against 1st Amendment challenges New Jersey's statute barring professional counselors from engaging in sexual orientation change therapy with minors. (See prior posting.)  The Hill reports on the Supreme Court's denial of certiorari.

District Court Invalidates Invocations Delivered By County Commissioners Instead of Invited Clergy

In Lund v. Rowan County, North Carolina, (MD NC May 4, 2015), a North Carolina federal district court held that a county Board of Commissioners invocation policy is not constitutionally permissible under the Supreme Court's Town of Greece decision when sectarian invocations are delivered by the county commissioners themselves rather than invited clergy and other prayer-givers.  The court said in part:
Under the Board’s practice, the government is delivering prayers that were exclusively prepared and controlled by the government, constituting a much greater and more intimate government involvement in the prayer practice than that at issue in Town of Greece or Marsh....
Additionally, because of the prayer practice’s exclusive nature, that is, being delivered solely by the Commissioners, the prayer practice cannot be said to be nondiscriminatory....  [T]he present case presents a closed-universe of prayer-givers, that being the Commissioners themselves, who favored religious beliefs believed to be common to the majority of voters in Rowan County. While an all-comers policy is not necessarily required, a nondiscriminatory one is. When all faiths but those of the five elected Commissioners are excluded, the policy inherently discriminates and disfavors religious minorities. That some day a believer in a minority faith could be elected does not remedy that until then, minority faiths have no means of being recognized.
The court also held that the county's prayer practice is unconstitutionally coercive in violation of the Establishment Clause. Charlotte Observer reports on the decision.

Monday, May 04, 2015

Recent Articles and Books of Interest

From SSRN:
From SSRN (non-US law):
From SSRN (Marriage):
From SSRN (Charity law):
New Books:

Muhammad Drawing Exhibit In Texas Ends As 2 Gunmen Attempt Attack and Are Killed

In Garland, Texas Sunday night, a controversial Muhammad Art Exhibit and Contest sponsored by Pamela Geller's American Freedom Defense Initiative ended in violence as two gunmen opened fire outside the event venue, wounded a security guard, and were killed in return fire by police.  According to the Dallas Morning News, the guard who was shot was released from the hospital after being treated for a leg wound. The identities of the two gunmen had not yet been made public late Sunday. According to an earlier report by the Dallas Morning News, the Exhibit was booked at Garland's Curtis Cultural Center after the Center hosted Sound Vision Foundation’s Stand With the Prophet in Honor and Respect event.  The contest offered a top prize of $10,000 for the best drawing, and received around 350 entries. (Depicting Muhammad is seen as offensive by some schools of Muslim thought.) The winner of AFDI's contest was cartoonist Basch Fawstin who has posted his winning cartoon on his website. The keynote speaker at the event was right-wing Dutch politician  Geert Wilders who told the audience: "We are here in defiance of Islam to stand for our rights and freedom of speech."

Sunday, May 03, 2015

Recent Prisoner Free Exercise Cases

In Herbert v. Balducci, 2015 U.S. Dist. LEXIS 54866 (WD WA, April 27, 2015), a Washington federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 54945, Jan. 8, 2015) and dismissed an inmate's claim that his free exercise rights were infringed by prison policy that limits reading material to a Bible while serving disciplinary confinement  Plaintiff argued this means he is forced to read a Bible and cannot read his Alcoholics Anonymous Big Book.

In Truidalle v. Godinez, 2015 U.S. Dist. LEXIS 55061 (CD IL, April 28, 2015), an Illinois federal district court dismissed with leave to amend a complaint by a Rastafarian inmate that he was receiving a vegan rather than a kosher diet, and that his religion was wrongly changed on his identification card to "other."

In Walker v. Fasulo, 2015 U.S. Dist. LEXIS 56209 (D NV, April 29, 2015), a Nevada federal magistrate judge permitted a Muslim inmate to move ahead with his complaints that  jail officials prevented him from praying (and threatened to send him to disciplinary housing if he prayed without permission), prevented him from attending Jumua services, and from obtaining Kosher-Halal meals.

In Simmons v. Williams, 2015 U.S. Dist. LEXIS 56134 (SD GA, April 29, 2015), a Georgia federal magistrate judge recommended permitting an inmate to move ahead with his claims that a search resulting in his being undressed in front of other men and having to shave his beard imposed a substantial burden on the exercise of his religion.

In Wilson-El v. Mutayoba, 2015 U.S. Dist. LEXIS 56163 (SD IL, April 29, 2015), an Illinois federal district court held that requiring an inmate who had successfully recovered $10,100 in punitive damages against prison officials who had denied his request for a vegan diet should not be required to pay more than a nominal amount of his $15,000 attorneys fees, with the remainder paid by defendants.

In Kindred v. Allenby, 2015 U.S. Dist. LEXIS 56318 (ED CA, April 29, 2015), a California federal magistrate judge dismissed with leave to amend a complaint by a Native American civil detainee that Native Americans were denied the right to hold Sunrise Prayer Ceremonies, were retaliated against for displaying sacred or spiritual items, and that his spiritual rug was confiscated and his medicine bag desecrated.

Justice Department Wins Its Suit Against Florida To Require a Kosher Meal Program In Prisons

The U.S. Department of Justice has won it long-running lawsuit against the state of Florida over its prisons' kosher meal policy.  In United States v. Secretary, Florida Department of Corrections, (SD FL, April 30, 2015), a Florida federal district court held that the blanket denial of kosher meals violates RLUIPA, and issued a permanent injunction requiring the state to provide kosher meals to those prisoners with a sincere religious belief requiring kosher meals.  The state initially suspended its kosher meal program for budgetary reasons, but reinstituted a program in 2013.  However the state rejects the claim that it is by law required to provide kosher meals. In granting the injunction, the court said in part:
Because neither side disputes that a blanket denial of kosher meals imposes a substantial burden on prisoners' religious exercise for those prisoners that have a sincere religious belief requiring them to eat kosher, the burden is on Defendants to demonstrate that denying such prisoners kosher meals (a) is in furtherance of a compelling state interest and (b) is the least restrictive means of achieving that interest. Throughout this litigation, Defendants have asserted that they have a compelling state interest in cost containment and that not providing a kosher diet is the least restrictive means of achieving cost containment.  Defendants have not met their burden....
As the United States contends, it is hard to understand how Defendants can have a compelling state interest in not spending money that they are already voluntarily spending on the exact thing they claim to have an interest in not providing.
The court also enjoined two other aspects of the religious diet program: the zero tolerance policy on infractions and the rule requiring removal from the program of an inmate who has missed 10% of his meals. However the court refused to enjoin the potential use as one part of its testing of an inmate's religious sincerity a question asking the inmate to identify the religious rules that require him to eat a religious diet. The Justice Department issued a press release announcing the decision. Orlando Sentinel yesterday reported on the decision.

Helena Diocese Posts List of Alleged Abusers As Part of Settlement

As reported by the Ravalli Republic, last Wednesday, as part of the non-monetary terms of the settlement with 362 sex-abuse victims, the Catholic Diocese of Helena, Montana posted on its webiste the names of 80 individuals (priests, sisters and lay persons) who were identified by the victims as sexual abusers betwen the 1930's and the 1970's.  A number of the alleged abusers are identified only by first or last name. Most of those on the list have died.  Under the settlement, the names are to remain posted for at least ten years. The diocese exited bankruptcy in March. (Full text of reorganization plan and confirmation order.)

Friday, May 01, 2015

6th Circuit Hears Oral Arguments In RLUIPA Zoning Case

On Wednesday, the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Tree of Life Christian Schools v City of Upper Arlington, (Docket No. 14-3469, argued 4/29/2015). In the case, an Ohio federal district court dismissed a Christian school's RLUIPA and constitutional challenge to Upper Arlington's refusal to issue a conditional use permit or to rezone for use as a school an existing office building. (See prior posting.)  Upper Arlington News, reporting on the oral arguments, quoted the reaction to the arguments from Erik Stanley who argued the case for Tree of Life:
A few of the judges seemed to key in on the idea the city argued all along that the city needs this property for revenue, but the judges seemed alarmed that some of the uses the city has allowed in the ORD don’t generate a lot of revenue. The city cannot have this zoning district that claims only to allow revenue-generating uses when they’ve allowed uses that don’t generate revenue to the extent Tree of Life would, such as day care centers, charitable hospitals and nonprofit offices.

Pennsylvania Supreme Court Reinstates Priest's Child Endangerment Conviction; Trial Court Orders Him Back To Prison

On Monday in Commonwealth of Pennsylvania v. Lynn, (PA Sup. Ct., April 27, 2015), the Pennsylvania Supreme Court, in a 4-1 decision, reinstated the conviction of Msgr. William J. Lynn who had been sentenced to prison for 3 to 6 years on charges of endangering the welfare of children. Lynn is the first U.S. priest criminally convicted of covering up sexual molestation of minors by another priest. An appeals court reversed the conviction, holding that the statute under which Lynn was convicted only applies to a person who is directly in charge of a child, not to someone supervising the person in charge. (See prior posting.) Now the Pennsylvania Supreme Court has reversed the appellate court, holding "the statute is plain and unambiguous that it is not the child that Appellee must have been supervising, but the child’s welfare." The court explained:
[T]he requirement of supervision is not limited to only certain forms of supervision, such as direct or actual, as the Superior Court held. By its plain terms it encompasses all forms of supervision of a child’s welfare.... Further, as the Commonwealth correctly argues, supervision is routinely accomplished through subordinates, and is no less supervisory if it does not involve personal encounters with the children. Like Appellee, school principals and managers of day care centers supervise the welfare of the children under their care through their management of others. Depending upon the facts, they could be criminally liable for endangering the welfare of the children under their supervision if they knowingly place sexually abusive employees in such proximity to them as to allow for the abuse of these youth.
Chief Justice Saylor filed a dissenting opinion.

As reported by the Philadelphia Daily News, in January 2014 after the state appeals court (Superior Court) reversed Lynn's conviction, Lynn was released from prison on bail, but ordered to remain under house arrest pending the appeal to the state Supreme Court.  Yesterday a common pleas court judge ordered Lynn back to prison. Lynn's attorney said he will file an emergency petition with the Superior Court seeking Lynn's release on bail again while additional issues are resolved on appeal.

9th Cirucit Upholds Ban on Christmas Display In Palisades Park

In Santa Monica Nativity Scenes Committee v. City of Santa Monica, (9th Cir., April 30, 2015), the U.S. 9th Circuit Court of Appeals rejected free speech and Establishment Clause challenges to Santa Monica's repeal of a policy that, as an exception to a general ban on unattended displays, allowed  unattended Winter Displays in the city's Palisades Park. Since 1955, during December local residents  (and later the Nativity Scenes Committee) have erected dioramas in the Park depicting the Biblical story of Christmas. A policy enacted in 2003 allocated space on a first-come-first-served basis. However beginning in 2011, atheists who opposed Christmas displays in the Park, flooded the city with requests for their own displays and the city moved to a lottery system for allocating space. Rather than continuing to deal with this, in 2012 the city repealed the exception that allowed Winter Displays, and the Nativity Scenes Committee sued. The court held that the Ordinance repealing the Winter Display exception was a narrowly tailored neutral time, place and manner regulation that serves a substantial governmental interest and leaves open ample alternative channels of communication. The court refused to extend the "heckler's veto" doctrine to this situation. Finally the court rejected challengers' claim that the repeal violated the Establishment Clause by conveying hostility toward Christianity. Thompson/ Reuters reports on the decision.

Satanic Temple Member Claims State RFRA Exemption To Missouri's Abortion Waiting Period

Friendly Atheist reports this week on plans by a member of the Satanic Temple to challenge Missouri's requirement for a 72-hour waiting period for abortions by asserting a religious freedom claim.  Missouri has a Religious Freedom Restoration Act (MO Rev. Stat Section 1.302.1).

Missouri law (MO Rev. Stat. Section 188.027.1)  requires that: "The physician who is to perform or induce the abortion or a qualified professional shall provide the woman with the opportunity to view at least seventy-two hours prior to the abortion an active ultrasound of the unborn child and hear the heartbeat of the unborn child if the heartbeat is audible." Using an exemption form developed by the Satanic Temple, the Missouri native identified as "Mary" claims that her sincerely held Satanic Temple beliefs are that her body is inviolable and subject to her will alone, and that inviolable body includes any fetal tissue so long as it is unable to survive outside her body as an independent human being.

Planned Parenthood of St. Louis is the only abortion provider in Missouri, and Mary lives hundreds of miles away from it, making a 72 hour wait after her initial appointment difficult. The head of the Satanic Temple says it will pursue litigation if Mary's exemption claim is not honored. Last year, using similar arguments, the Satanic Temple launched a campaign against "informed consent" laws that require abortion providers to furnish women certain informational material when they seek an abortion. (See prior posting.)

USCIRF Issues 2015 Annual Report

The U.S. Commission on International Religious Freedom yesterday released its 2015 Annual Report (full text) (press release). The Report, mandated by the International Religious Freedom Act, this year documents religious freedom violations in 33 countries and recommends that 17 countries be designated by the State Department as "countries of particular concern" (CPC) in which particularly severe violations of religious freedom are perpetrated or tolerated. This year, USCIRF expands its criteria for designating CPC:
The 2015 Annual Report recognizes that non-state actors, such as transnational or local organizations, are some of the most egregious violators of religious freedom. For example, in the Central African Republic and areas of Iraq and Syria, the governments are either non-existent or incapable of addressing violations committed by non-state actors. USCIRF has concluded that the CPC classification should be expanded to allow for the designation of countries such as these, where particularly severe violations of religious freedom are occurring but a government does not exist or does not control its territory. Accordingly, USCIRF’s CPC recommendations reflect that approach.
The Report recommends that the State Department redesignate 9 countries as CPC: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, Turkmenistan, and Uzbekistan.  It also recommends adding 8 other countries to the list: Central African Republic, Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan, and Viet Nam.

USCIRF placed 10 countries on its Tier 2 list, countries that engage in or tolerate violations, but which do not reach CPC levels: Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos, Malaysia, Russia and Turkey.

The Introduction to this year's report highlights massacres by ISIL and Boko Haram, as well as violence in the Central African Republic and Burma, saying:
A horrified world has watched the results of what some have aptly called violence masquerading as religious devotion.
The Report also recommends changes within the State Department to give more authority to the Ambassador-at-large for International Religious Freedom as well as a number of other funding enhancements, programmatic changes and changes in the processing of asylum seekers. Vice-Chair James Zogby issued a dissenting statement saying:
I voted against some of the recommendations in this chapter because I cannot support USCIRF calling on Congress to micro-manage the way the State Department and the White House National Security Council organize their staff and set their priorities.
Again this year, the Report includes lists of those imprisoned in several countries as activists, conscientious objectors or those sentenced for blasphemy.