Challenge To Florida Tax Credit Scholarship Program Dismissed

A Florida state trial court judge has dismissed a constitutional challenge to the state's Tax Credit Scholarship Program.  In McCall v. Scott, (FL Cir. Ct., May 18, 2015), the court held that plaintiffs lack taxpayer standing because they are not challenging an appropriation. The court held that they also fail to allege a special injury that would give them standing on other grounds, saying:

whether any diminution of public school resources resulting from the Tax Credit Program will actually take place is speculative, as is any claim that any such diminution would result in reduced per-pupil spending or on any adverse impact on the quality of education.

Miami Herald reports on the decision.

9th Circuit En Banc Reverses Injunction Agaianst "Innocence of Muslims" On YouTube

In an en banc opinion in Garcia v. Google, Inc., (9th Cir., May 18, 2015), an 11-judge panel of the 9th Circuit dissolved a 3-judge panel's preliminary injunction (see prior posting) that had required Google to take down from YouTube all versions of the controversial video Innocence of Muslims that included the performance of misled actress Cindy Lee Garcia.  The injunction was sought by Garcia after she received death threats because her dubbed-over performance appeared to be criticizing the Prophet Muhammad.  Garcia claimed a copyright interest in the performance. The en banc majority held that the law and facts do not clearly favor her claim to a copyright in her acting performance, saying in part:

As Garcia characterizes it, “the main issue in this case involves the vicious frenzy against Ms. Garcia that the Film caused among certain radical elements of the Muslim community.” We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression. Garcia’s theory can be likened to “copyright cherry picking,” which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act

Judge Watford issued a concurring opinion and Judge Kozinski dissented. Electronic Frontier Foundation has further analysis of the decision.

Texas Judge Disciplined For Religious-Cultural Bias

The Texas State Commission on Judicial Conduct last week issued a Public Admonition (full text) against Texas state trial court judge Carter Tinsley Schildknecht, finding in part that she:

manifested a religious and/or cultural bias by describing District Attorney Munk as a “New York Jew” and by criticizing a prosecutor’s beard because it made him look like a “Muslim.”

Other charges involved a court session that lasted until 4:00 AM without breaks and an order refusing to allow the District Attorney to enter the court room. Besides the admonition, the judge was ordered to complete an additional four hours of education with a mentor on open courts and eliminating bias. Texas Lawyer reports on the Commission's action.

Irish Referendum On Same-Sex Marriage Will Be Held Friday

In Ireland on Friday voters will cast ballots in a referendum to approve same-sex marriage. (Referendum Commission Voters Guide). Voters will be asked to approve a Constitutional amendment which reads:

Marriage may be contracted in accordance with law by two persons without distinction as to their sex.

Sunday's Globe and Mail reports that polls show 70% favor the proposal, even though it is strongly opposed by the Catholic Church. 84% of Irish identify ans Catholic, and almost half go to mass every Sunday. According to yesterday's Irish Independent, Irish bishops are warning that passage of the amendment could threaten the Church's ability to teach children about traditional marriage. However Communications Minister Alex White rejected that claim, saying: "There is absolutely no basis whatsoever for any suggestion that the Church ...would be constricted or constrained in any way,... A specific provision in the legislation we're going to bring in if and when the referendum is passed would mean a Catholic priest, for example, will not be required to solemnise for example, the marriage of a same-sex couple."

Meanwhile, each side in the referendum issue is accusing the other of accepting improper campaign donations.  According to Saturday's Guardian, supporters of the referendum accuse opponents of receiving funding from conservative Christian groups in the United States. Ireland’s Standards in Public Office Commission rules bar foreign donations in the campaign.  A website operated by the US-based National Organization for Marriage is campaigning for a "no" vote, but NOM says it has not funneled any money to groups in Ireland.  Some on the "no" side claim that supporters have been funded by Irish-American multimillionaire Chuck Feeney and his Atlantic Philanthropies agency

School Board Sued Over Invocation Policy

The American Humanist Association announced yesterday that it has filed a lawsuit against a Texas school district on behalf of a former student challenging the school board's invocation policy.  The complaint (full text) in American Humanist Association v. Birdville Independent School District, (ND TX, filed 5/18/2015) alleges that the school board and its members violate the Establishment Clause by selecting elementary and middle school students, and occasionally high school students, from District schools to deliver prayers as part of the regular School Board meetings. Often the prayers are Christian and make specific reference to Jesus. The suit seeks an injunction and punitive damages.

Supreme Court Interprets Indigent Prisoner Litigation Statute

The U.S. Supreme Court today in Coleman v. Tollefson, (Sup. Ct., May 18, 2015), gave a literal interpretation to the "three strikes" provision of 28 USC Sec. 1915(g) that restricts the ability of inmates to bring multiple challenges to prison conditions without paying the required filing fees.  The section, which qualifies the right of indigent inmates to file federal lawsuits in forma pauperis, provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

In an opinion by Justice Breyer, the Court held unanimously that a dismissal which is under appeal still counts as one of the "three strikes" to prevent an additional lawsuit from being filed.  The Court left open the question of whether this interpretation also would preclude an appeal of a trial court decision that was itself the third strike. Today's decision upholds the view of the 6th Circuit below, and rejects a contrary interpretation by a number of other Circuits.  The decision will particularly impact inmates seeking religious accommodations from prison systems, since these cases rarely if ever will fall within the "imminent danger of serious physical injury" exception.

New Zealand Think Tank Suggests Limiting Charitable Status of Some Religious Institutions

The New Zealand Initiative, a public policy think tank supported by chief executives of major New Zealand businesses, yesterday issued a new report titled Giving Charities A Helping Hand. Among the Report's recommendations was a review of the Charities Act's definition of charitable purpose, and thus of which organizations qualify for tax exemptions.  The Report went on:

In addition, the review might usefully examine whether religious and cultural institutions should continue to qualify for charitable status simply because they pursue the goal of promoting religion and culture. This is not to say that such institutions should not be considered, but the assessment criteria should be the same for all organisations seeking the status of registered charities.

Minnesota Legislature Passes Bill Providing For Religious Objection To Autopsy

The Minnesota legislature last Saturday gave final passage to SF 1694 (full text) providing a right to object on religious grounds a medical examiner or coroner conducting an autopsy.  The bill provides:

If the representative of the decedent objects to the autopsy on religious grounds, an autopsy must not be performed unless the coroner or medical examiner determines that there is a compelling state interest to perform the autopsy.

However the bill lists 13 specific situations which will be considered to be compelling, and even if one of those is not present the state may counter a religious objection by showing a court in a summary proceeding that the autopsy is necessary and that need outweighs the state's interest in observing the decedent's religious beliefs. If an autopsy is carried out after a religious objection has been made, it must be performed by the least intrusive procedure consistent with the state's compelling interest. As reported by Bring Me The News, the bill now goes to Gov. Mark Dayton for his signature.

Recent Articles of Interest

From SSRN:

• Steven H. Resnicoff, Jewish Identity's Impact in a Nutshell, (Rutgers Journal of Law and Religion, Forthcoming).
• Mohamed Abdelaal, Leadership Accountability in Islam: Islamic Standards for Holding the Executive Accountable for Official Misconduct, (Global Journal of Comparative Law, Forthcoming).
• Frederick Mark Gedicks & Rebecca G. Van Tassell, Of Burdens and Baselines: Hobby Lobby's Puzzling Footnote 37, (in The Rise of Corporate Religious Liberty, Oxford University Press, Chad Flanders, Zoe Robinson & Micah Schwartzman, eds. 2015, Forthcoming).
• Nahshon Perez, Lautsi vs. Italy: Questioning the Majoritarian Premise, (May 14, 2015).
• Yuval Jobani & Nahshon Perez, Women of the Wall: A Normative Analysis of the Place of Religion in the Public Sphere, (Forthcoming: Oxford Journal of Law and Religion).
• Paul T. Babie, Religion and Constitutionalism: Oscillations Along a Continuum, (Journal of Religious History Vol. 39, No. 1, March 2015).
• Linda C. McClain, The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether 'Stateways' Can Change 'Folkways', (95 Boston University Law Review 891 (2015)).
• Ahmad T. Alharbi, Islamic Law and Banking: An Overview, (May 5, 2015).

From SmartCILP:

• Kenneth K. Ching, Would Jesus Kill Hitler?: Bonhoeffer, Church, and State, 11 Georgetown Journal of Law & Public Policy 529-576 (2013).
• Matthew A. Melone, Corporations and Religious Freedom: Hobby Lobby Stores--A Missed Opportunity to Reconcile a Flawed Law with a Flawed Health Care System. 48 Indiana Law Review 461-508 (2015).
• Jonathan S. Sussman, Prayer for Relief: Considering the Limits of Religious Practices in the Military, 20 Roger Williams University Law Review 75-118 (2015).

Atheist Activist Will Use RFRA To Challenge "In God We Trust" On Money

Atheist activist Michael Newdow is looking for individuals who will act as plaintiffs in a new set of challenges to "In God We Trust" on U.S. coins and currency.  For the first time, the suits will rely primarily on the Religious Freedom Restoration Act.  In a post last Friday on Friendly Atheist, Newdow says suits are being prepared in states in the seven federal circuits that have not already upheld the constitutionality of the national motto on coins and currency. The cases will argue that being forced to carry a message that violates one's religious ideals is substantially burdensome, and that the government has no compelling interest in having the motto on coins and currency. As pointed out by Inquisitr,  this is the latest recent attempt to turn state and federal RFRA's-- which have been strongly supported by conservative Christian groups-- into tools to oppose the conservative Christian agenda.

Russia Increases Fines For Organizations Disseminating "Extremist" Materials

Forum 18 reported Friday that amendments to Russia's Code of Administrative Offenses, Sec. 20.29, that became effective May 6 have sharply increased the fines imposed on "juridical persons" for mass dissemination of extremist materials on the Federal List.  Juridical persons include commercial, publishing, media and registered religious organisations. Fines for legal entities under the section previously were 50,000 to 100,000 roubles. The amendments increase the fines to 100,000 to 1 million roubles. Sanctions for individuals and other sanctions applicable to organizations did not change. This section of the Administrative Code has often been used in connection with materials confiscated from Muslims and Jehovah's Witnesses. According to Forum 18: "The Federal List now runs to over 2,500 items, often does not include full bibliographical details, and is irregularly updated, making it difficult for anyone to keep abreast of recent bans..."

D.C. Rabbi Sentenced To Over 6 Years On Voyeurism Charges

A Washington, D.C. Superior Court judge on Friday sentenced Rabbi Barry Freundel to nearly six and one-half years in prison after Freundel plead guilty to 52 counts of voyeurism (see prior posting).  Freundel secretly videotaped 150 women in the changing room of the mikveh (ritual bath) at Washington's Kesher Israel Synagogue.  AP reports that after a 3-hour sentencing hearing at which 16 of his victims testified, Freundel was sentenced to 45 days in prison on each of the 52 counts (a total of 2,340 days). (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Quezada v. Long, 2015 U.S. Dist. LEXIS 61753 (CD CA, May 11, 2015), a California federal magistrate judge dismissed, with leave to amend, a complaint by an Orthodox Jewish inmate that he was not allowed to take his religious meals out of the dining hall to his cell, so that he could perform ritual washing of hands and recitation of prayers before eating.

In Strickland v. Godinez, 2015 U.S. Dist. LEXIS 62179 (SD IL, May 12, 2015), an Illinois federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 62176, April 20, 2015) and denied a preliminary injunction to an inmate who practices Asatruar who sought protection from retaliation, participation in worship, ownership of various ritual items and setting aside of sacred land where rituals could be performed.

In Porter v. Wegman, 2015 U.S. Dist. LEXIS 63573 (ED CA, May 15, 2015), a California federal magistrate judge recommended dismissing a House of Yahweh inmate's complaint over lack of accommodation of his Passover observance and denial of participation in the Jewish kosher diet program.

Suit Charges Mall With Rejecting Christian Bookstore

In Missoula, Montana this week business owner Michael Burks filed suit against a local mall because it refused to allow him to open a Christian bookstore in retail space he was leasing. The complaint (full text) in Missoula Maulers, Inc. v. Southgate Mall Associates, (MT Dist. Ct., filed 5/11/2015), alleges that Burks became concerned about the profitability of a retail hockey store he was operating in the mall, and proposed replacing it with another of his businesses, a Christian bookstore. The mall refused.  The complaint alleges that the refusal was based on the store's status as a Christian bookstore, or "for some other malicious reason."  Helena Independent Record reports on the lawsuit.

Head of Jewish Public Policy Organization Is Stepping Down

The Forward reports today that Rabbi Steve Gutow is stepping down as head of the Jewish Council for Public Affairs where he has served for ten years.  Gutow and JCPA have been a leading voice for the American Jewish community on domestic and international public policy issues, including church-state concerns.  JCPA is the umbrella organization for 125 local Jewish Community Relations Councils and 14 national Jewish organizations. Gutow's resignation takes effect Dec. 31.  He will continue to be active on interfaith, environmental and anti-poverty issues, but will give up direction of the organization's day-to-day operations sooner.

Cannabis Advocate Will Be First To Test Indiana's RFRA

Indiana's controversial Religious Freedom Restoration Act goes into effect on July 1.  Bill Levin, a life-long advocate of legalizing marijuana, says he will be the first to test the law by holding the initial service of his newly created First Church of Cannabis that day.  WTHR News reported yesterday that Levin is looking for space to rent for holding the service, which he expects will attract 1000 people. Levin says: "We'll say a short prayer and go 'poof',"

Court Orders Parishioners To End 10+ Year Vigil Protesting Church Closure

A Massachusetts trial court yesterday granted the Boston Catholic Archdiocese an injunction to end the ten and one-half year vigil that parishioners of the now-closed St. Frances X. Cabrini Church in Scituate (MA) have been maintaining inside the church.  On the website of the Friends organization supporting the vigil, parishioners say:

The members of St. Frances believe that we have been unjustly shuttered via the flawed process of reconfiguration introduced by the Archdiocese of Boston and that this misguided decision was based solely on the value of our parish property - 30.3 acres of prime coastal real estate.

In Roman Catholic Archbishop of Boston v. Rogers, (MA Super. Ct., May 14, 2015), the court held that the former parishioners "are unlawfully and intentionally committing a trespass by the continuation of the protest vigil on the premises of the church."  The court rejected defendants' arguments that it lacks jurisdiction over the suit because the claims require the interpretation of ecclesiastical principles. saying:

defendants' argument conflates the issues of whether the parish may be closed (an eccleisastical question) with whether an owner in control of property may determine when individuals may be on property (a civil law question).  Because the latter may be decided by neutral principles of property law, this court may proceed to hear the facts and decide whether defendants' vigil is a trespass and whether an injunction should issue.

The court also rejected parishioners' defense of laches, and their $37,000 counterclaim for amount spent on upkeep and maintenance during the vigil. AP reports on the decision.  The Quincy Patriot Ledger reports that defendants plan an appeal and plan to ask the trial court to suspend the injunction pending appeal.  Otherwise it will take effect on May 29.

Bilateral Commission of Holy See and State of Palestine Draft Comprehensive Agreement

In 2000, the Vatican reached a preliminary agreement (full text) with the Palestinian Liberation Organization on freedom of religion and the status of Christian holy places.  Yesterday the Bilateral Commission of the Holy See and the State of Palestine issued a joint statement (full text) saying that the text of a Comprehensive Agreement has now been concluded and it will be submitted to the respective authorities for approval before a date for signing in the near future is set.  While the general news media are emphasizing that the agreement's references to the "state of Palestine" are seen as lending weight to Palestinian efforts for recognition as a sovereign nation (New York Times),  different emphasis was displayed in coverage by Catholic News Agency which says that the Vatican has been referring to the "State of Palestine" at least since January 2013.  CNA sets out more detailed information on the substance of the Comprehensive Agreement:

The Vatican-Palestinian agreement recognizes freedom of religion in Palestine, and outlines the rights and obligations of the Church, its agencies, and its personnel in the territory....

The treaty, Msgr. Camilleri [leader of the Vatican delegation to the bilateral commission] said, “backs a resolution of the Palestinian issue and of the conflict between Israelis and Palestinians within the Two-State Solution and the resolution of the international community.”

But the bulk of the agreement regards freedom of religion and conscience, as well as the Church's freedom of action, its staff and jurisdiction, legal status, places of worship, social and charitable activity, and use of communications media.

Msgr. Camilleri added that a final chapter of the agreement regards issues of a fiscal and proprietary nature.

Atheists Can Now Perform Marriages In Minnesota County; Challenge Is Moot

In Atheists for Human Rights v. County of Washington, Minnesota, (D MN, May 13, 2015), a Minnesota federal district court dismissed as moot a constitutional challenge to Washington County's refusal to accept marriage celebrant credentials issued by Atheists for Human Rights to Rodney Michael Rogers because AFHR did not profess to be a religion. The court said in part:

Washington County has clearly and unequivocally changed its allegedly wrongful practice. The County has not gone through a formal amending process because there was no formal written policy in place. Rather, Washington County’s prior practice was based on the advice of Washington County’s legal counsel. The County’s legal counsel has clearly and definitely changed that advice.

According to a report on the decision by the Minneapolis Star Tribune:

The county’s change in policy came four days after the Star Tribune published an article about the suit and reported that Hennepin, Ramsey and Anoka counties certified atheists to conduct weddings. Meanwhile, the county had registered people belonging to groups with tongue-in-cheek names, including, “The Church of the Latter Day Dude” and the “Church of the Flying Spaghetti Monster.”

FLDS Church and Others Fined $1.96 Million In Wage and Hour Case

The Salt Lake Tribune reported yesterday that the U.S. Department of Labor's Wage and Hour Division has fined the Fundamentalist Church of Jesus Christ of Latter-Day Saints, its operating head Lyle Jeffs, the affiliated Paragon Contractors Corp. and its officers Brian Jessop and Dale Barlow for violating the wage and hour laws in using FLDS school children and their parents to work a pecan ranch harvest. The church received the amounts paid to Paragon.  (See prior related posting.) The Department of Labor imposed a $1.96 million in civil penalties jointly against the respondents.