French Court Fines Salafist For Disturbing Mosque

AP reported yesterday that a court in France has handed a victory to a small mosque in Lyon that filed a complaint with authorities about a Salafist member of the mosque who has been disruptive.  The mosque invoked a provision in France's 1905 law on secularism that provides legal recourse against a person who interferes with the ability to express freedom of conscience.  It filed a complaint against Faouzi Saidi who in 2014 criticized the imam, held parallel prayer services and preached his ultraconservative Salafi views to Muslim converts. The court fined Saidi 1500 Euros, with 500 Euros suspended.

Suit Challenges Middle School Field Trip To Christian Sports Complex

The American Humanist Association announced yesterday that it had filed a lawsuit against the Joplin, Missouri public school system challenging a middle-school field trip to a Christian sports complex.  The complaint (full text) in Doe v. Huff, (WD MO, filed 5/27/2015), alleges that the middle school's policy of scheduling student field trips to Victory Ministry and Sports Complex violates the Establishment Clause.  The suit seeks an injunction and punitive damages.

Church's Suit Against Chase and JPMorgan Dismissed In Part, With Leave To Replead

In Rector, Wardens, and Vestrymen of Christ Church Cathedral of Indianapolis v. JPMorgan Chase and Company, (SD IN, May 21, 2015), an Indiana federal district court dismissed with leave to replead constructive fraud claims against Chase Bank and its parent JPMorgan brought by Christ Church Cathedral that lost some $13.5 million from trusts that had been set up to benefit it under the will of Eli Lilly.  The church alleged that the trustee bought complex structured notes and proprietary hedge funds that lost money but resulted in increased fees for the trustee. The court held that the church had not stated its claims with sufficient particularity, lumping together various defendants and failing to indicate what decisions the church made in reliance on alleged misrepresentations. The court dismissed the state securities law claim without leave to replead it. It did not dismiss a breach of trust claim against Chase Bank. Indianapolis Star, reporting on the decision, quotes the church's attorney who says that amended pleadings will be filed.

Suit Claims High School Extensively Promotes Evangelical Christianity Through Activities With Church

A Jewish teacher in a southern Colorado school district filed suit yesterday in federal district court alleging that the Florence, Colorado High School extensively promotes evangelical Christian activities through arrangements with a church, The Cowboy Church at Crossroads. The complaint (full text) in Basevitz v. Fremont RE-2 Schol District, (D CO, filed 5/26/2015), alleges in part:

The Cowboy Church at Crossroads is lead by Pastor Randy Pfaff, and meets every Sunday in the cafeteria of the School. The Church is advertised by two large signs that are hung on school property and are clearly visible to motorists.... 

The cornerstone of Pastor Pfaff and the Church’s “mission work” at the School is daily morning prayer in front of the School, at the flagpole.  Either Pastor Pfaff or another member of the Church has been present for this ceremony every day for the last three years. With the School’s support, Pastor Pfaff has led these services, ministering to the School’s students and staff while holding a bible and using a public address system to preach his evangelical Christian messages.... Numerous faculty members, in including Principal Schipper, participate in services.....

... Pastor Pfaff and the Church, with the support of the School’s administration, routinely minister to staff and students through the distribution of flyers promoting their evangelical Christian views...

Through the Fellowship’s front group, Pastor Pfaff and the Church also hold weekly lunches at the School. The students refer to this event as “Jesus Pizza.” This meeting is promoted to the School’s students and staff through the presence of a large sign in the hallway that reads “God loves you and has a plan for your life. Jeremiah 29:11.” ....  During these “Jesus Pizza” sessions, which are led by Pastor Pfaff, he preaches to and prays with Florence students....

Denver Post reports on the lawsuit.

Court Defers To Ecclesiastical Decision In Church Control Lawsuit

Kim v. The True Church Members of the Holy Hill Community Church, (Cal. App., May 21, 2015), involves a dispute between two factions of a Los Angeles congregation that was part of a presbytery of the Korean American Presbytery Church.  The congregation owns valuable property on Los Angeles' Sunset Boulevard.  The dispute involved attempts by one faction to excommunicate members of the other and an attempt to withdraw the congregation from the parent church body.  The California state appeals court affirmed the trial court's decision deferring to the determination by the parent body of the congregation.

Legalization of Same-Sex Marriage Complicates Prior Estate Planning Devices

A New York Times article six years ago reported on the use of adult adoption as an estate planning tool for same-sex couples who were prohibited by law from marrying.  The technique allows a same-sex partner to share as a beneficiary in a family trust to which the person would not be entitled if not a family member. Last week the Doylestown-Buckingham-New Britain Patch reported on how this kind of arrangement has fared as same-sex marriage becomes legal in many states. Bill Novak and Norman MacArthur are a same-sex couple who have been together for more than 50 years and were registered as domestic partners in New York City. When they moved to Pennsylvania, their lawyer advised them to use the adoption strategy for estate planning purposes.  So in 2000, Novak adopted MacArthur.  But now that same-sex marriage is permitted in Pennsylvania, the two would like to marry.  However this required vacating the adoption decree.  In a precedent-setting decision on May 14, the Orphans Court of Bucks County  granted their Petition to Vacate, and the couple applied for and received a marriage license the same day.  They expect to actually marry soon.

Another Decision Invalidating Alabama's Same-Sex Marriage Ban

In Alabama last week, a federal district court took another step toward requiring all counties to issue licenses for same-sex marriages.  A federal district court had already issued an injunction against the attorney general and one state probate judge requiring them to issue marriage licenses to same sex-couples. (See prior posting.) Now in Strawser v. Strange (Doc. 122), (SD AL, May 21, 2015), the same federal district court permitted plaintiffs to turn the case into a class action against "all Alabama county probate judges who are enforcing or in the future may enforce Alabama’s laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages."  It also certified as a plaintiff class "all persons in  Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages."

Then in a second opinion the same day, Strawser v. Strange (Doc. 123), (SD AL, May 21, 2015), the court again held that Alabama's marriage laws that prohibit and refuse to recognize same-sex marriages violated the equal protection and due process clauses of the 14th Amendment. It granted plaintiffs' motion for a preliminary injunction, but stayed it until the U.S. Supreme Court issues its opinion in Obergefell v. Hodges, expected within the next several weeks.  Christian Science Monitor reports on the decision.

Recent Articles of Interest

From SSRN:

• Steven H. Resnicoff, J. David Bleich: An Intellectual Portrait, (in Hava Tirosh-Samuelson and Aaron W. Hughes (eds), J. David Bleich: Where Halakhah and Philsophy Meet (Brill Academic Publishers, Forthcoming).
• Carl H. Esbeck, Third-Party Harms, Congressional Statutes Accommodating Religion, and the Establishment Clause, (University of Missouri School of Law Legal Studies Research Paper No. 2015-10, May 2015).
• Natasha Bakht & Jordan Palmer, Modern Law, Modern Hammers: Canada's Witchcraft Provision as an Image of Persecution, ((2015) 35 Windsor Review of Legal and Social Issues 123).
• Eliav Lieblich, Assimilation Through Law: Hans Kelsen and the Jewish Experience, (The Law of Strangers: Critical Perspectives on Jewish Lawyering and International Legal Thought (James Loeffler & Moria Paz eds., Cambridge University Press, Forthcoming)).
• Michael Heise, Lost Ground: Catholic Schools, the Future of Urban School Reform, and Empirical Legal Scholarship, (Texas Law Review, Vol. 93, 2015).
• Antonios E. Kouroutakis, Islamic Terrorism: The Legal Impact on the US and Europe, (Boston University International Law Journal, Vol. 34, 2016 Forthcoming).
• Elizabeth Sepper, Healthcare Exemptions and the Future of Corporate Religious Liberty, (The Rise of Corporate Religious Liberty (Oxford University Press, Chad Flanders, Zoe Robinson & Micah Schwartzman, eds. 2015, Forthcoming)).
• Elizabeth Deutsch, Expanding Conscience, Shrinking Care: The Crisis in Access to Reproductive Care and the Affordable Care Act's Nondiscrimination Mandate, (Yale Law Journal, Vol. 124, No. 7, 2015).

From SSRN (Rutgers Journal of Law and Religion Symposium, Vol. 16, 2015).

• Roberta Rosenthal Kwall, Introduction - People of the Book: Judaism's Influence on American Legal Scholarship.
• Margo Schlanger, Against Solitary Confinement: Jonah's Redemption and Our Need for Mercy. 
• Susan A. Bandes, Civil Liberties and the 'Imaginative Sustenance' of Jewish Culture.
• Roberta Rosenthal Kwall, Reinvention with Authenticity: A New Journey on a Familiar Road.

From SSRN (Marriage):

• Kevin H. Govern, Fidelity and Fairness in Marital Commitments, Covenants, and Contractual Relationships: Mulieris Dignitatem's Wisdom, (in American Law from a Catholic Perspective: Through a Clearer Lens, Ronald Rychlak Ed., Rowman & Littlefield (April 2015)).
• Mae Kuykendall, Marriage Goals and Government Interests: Handling Complexity, Apportioning Expertise, Using Federalism, (May 20, 2015).
• R. Anthony Reese, Be Careful Where You Live When You Die: Termination of Copyright Transfers and the Road to Marriage Equality, (IP Theory, Forthcoming, 2015).

From SmartCILP and elsewhere:

• Jeremy A. Rovinsky, The Cutting Edge: The Debate Over Regulation of Ritual Slaughter in the Western World, [Abstract], 45 California Western International Law Journal 79-107 (2014).
• Politics of Religious Freedom. Introduction by Peter Danchin, Winnifred Fallers Sullivan, Saba Mahmood and Elizabeth Shakman Hurd; articles by Ratna Kapur, Heather Miller Rubens, Peter Danchin, Louis Blond, Tamir Moustafa, Waheeda Amien and Annie Leatt (Dhammamegha). 29 Maryland Journal of International Law 293-547 (2014).
• Philip C. Aka, Shaping Their Better Character: Religion In African American Politics In the Age of Obama, 16 Rutgers Journal of Law & Religion 1-70 (2014).
• Mairaj Syed, Compulsion in Islamic Law, Entry in Oxford Encyclopedia of Islamic Law, Academia.edu 2015.

Appeals Court Affirms Decision On Ownership of Buddhist Pagoda

As reported by the Salt Lake Tribune, in Dao Trang Phap Hoa v. Vietnamese Unified Buddhist Association of Utah, (UT App., May 21, 2015), a Utah state appeals court upheld a trial court's decision that a Salt Lake City Buddhist temple-- the Pho Quang Pagoda-- is owned by a local affiliate of the California-based Vietnamese-American Unified Buddhist Congress.  Some members of the temple claimed that the Congress held the Pagoda in trust for the local Vietnamese Buddhist Alliance Society of Utah.  The appeals court held that even if there were questions of fact on that issue, the plaintiff in this case, the  Vietnamese Unified Buddhist Association of Utah, lacked standing to assert the claim on behalf of the Society because the two groups are separate corporations, even though they have overlapping membership.

Texas Passes Bill To Protect Clergy and Religious Groups That Object To Same-Sex Marriage

Anticipating the U.S. Supreme Court's upcoming decision on marriage equality, the Texas legislature last week gave final passage and sent to the governor for his signature S.B. No. 2065 (full text) to protect clergy and religious groups who object to same-sex marriage.  The bill provides:

A religious organization, an organization supervised or controlled by or in connection with a religious organization, an individual employed by a religious organization while acting in the scope of that employment, or a clergy or minister may not be required to solemnize any marriage or provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, or celebration of any marriage if the action would cause the organization or individual to violate a sincerely held religious belief.

It goes on to provide that this shields the organization and individuals against civil or criminal claims or governmental denial of benefits. Last Friday's Dallas Morning News, reporting on the legislature's action, also reported that a separate bill designed to impede issuance of same-sex marriage licenses by county clerks will not move ahead this session.

UPDATE: Gov. Greg Abbott signed SB 2065 on June 11. (Austin Standard-Times).

Pro Se Plaintiff Challenges Teaching of Evolution In West Virginia Schools

A pro se lawsuit was filed in a West Virginia federal district court earlier this month challenging the teaching of evolution in West Virginia's public schools.  The complaint (full text) in Smith v. Jefferson County Board of Education, (ND WV, filed 5/12/2015) contends that school officials and various federal officials are propagating a religious faith by fostering the teaching evolution in the state's schools. Reporting on the lawsuit, the National Center for Science Education says that plaintiff is the author of a book titled The True Origin of Man.

Court Orders Another Election For Small Church's Board

In Rock Church, Inc. v. Venigalla, (NY York Co. Sup. Ct., May 14, 2015), a New York state trial court rejected a challenge to its jurisdiction over a disputed election in a small church whose some 30 members were split over whether to fire its pastor after his decision to reduce the number of Sunday services from two to one. The court had previously ordered that a meeting be held to elect a full Board.  This suit challenges the validity of that election in which the faction opposing the pastor was voted into office after a third vote at which the pastor's supporters claim numerous non-members voted. The court said in part:

If this matter required the a weighing of an individual's fitness for membership in the Church, and a decision as to whether or not that individual met the criteria for membership, including investigation into the depth of his or her religious convictions, it would be clear that the matter would be beyond this court's subject matter jurisdiction. But, the matter actually turns on a matter of contract. In the present matter, through its by-laws, the Church's contract as to how the Church will conduct its business, the Church has already decided how members are to be determined. Under the Church's by-laws, it is up to the pastor, and only the pastor, to determine who is to be a member of the Church....

Since Pastor Impaglia ... attests that the third vote taken on October 5, 2014, was taken largely among nonmembers, who cannot vote for trustees, it follows that the final vote taken on October 5, 2014, which put respondents in power, was illegal under the Church's By-Laws, and is void. As said, the matter is one of pure contract interpretation, and therefore involves only the application by this court of a "neutral principle of law."

The court held that another vote held the same day purporting to elect the pastor's supporters was also void, and ordered the church to hold another special meeting.

Official Results and Reactions To Ireland's Marriage Equality Referendum

The official results of Ireland's referendum last Friday (see prior posting) that approved same-sex marriage was 62.07% yes and 37.93% no. (60.52% of the voters turned out for the election,) In a speech on Saturday (full text) welcoming the result, Ireland's Prime Minister Enda Kenny said in part:

So – the people went to the polls. It passed. The answer is YES. Yes to their future. Yes to their love. Yes to their equal marriage. That yes is heard loudly across the living world as a sound of pioneering leadership of our people and hopefully across the generations of gay men and women born as we say, before their time.

In an inteview on Saturday (full text) ith Vatican Insider, Archbishop of Dublin, Diarmuid Martin said in part:

The Church needs to ask itself when this cultural revolution began  and why some of its members refused to see this change. There also needs to be a review of youth pastoral care: the referendum was won with young people’s votes and 90% of young people who voted “yes” to the motion, attended Catholic schools....

An individualistic idea of the family prevails. The concept of marriage as a fundamental element of social cohesion has been lost. A reasoning based on respect for the rights of the individual is more successful than one based on social ethics.

Obama Addresses Synagogue For Jewish American Heritage Month [corrected]

President Obama this morning delivered a 30-minute address (full text) at Adas Israel Congregation in Washington, D.C. to mark Jewish Heritage Month. Here is an excerpt from his wide-ranging speech:

Now, I wanted to come here to celebrate Jewish American Heritage Month because this congregation, like so many around the country, helps us to tell the American story.  And back in 1876, when President Grant helped dedicate Adas Israel, he became the first sitting President in history to attend a synagogue service.  And at the time, it was an extraordinarily symbolic gesture -- not just for America, but for the world. 

And think about the landscape of Jewish history.  Tomorrow night, the holiday of Shavuot marks the moment that Moses received the Torah at Mount Sinai, the first link in a chain of tradition that stretches back thousands of years, and a foundation stone for our civilization.  Yet for most of those years, Jews were persecuted -- not embraced -- by those in power.  Many of your ancestors came here fleeing that persecution. 

The United States could have been merely another destination in that ongoing diaspora.  But those who came here found that America was more than just a country.  America was an idea.  America stood for something.  As George Washington wrote to the Jews of Newport, Rhode Island:  The United States “gives to bigotry no sanction, to persecution no assistance.” 

[Correction: Obama spoke to "mark" the event.  The typo in an earlier version of the post regrettably suggested something else.]

New Orleans Mayor Issues Executive Order In Opposition To Jindahl's

Two days after Louisiana Governor Bobby Jindahl issued an executive order designed to prevent governmental entities from denying benefits to persons who act in accordance with their religious beliefs in opposition to same-sex marriage (see prior posting), New Orleans Mayor Mitch Landrieu yesterday issued a counter-Executive Order (full text).  Landrieu's order was designed to address the backlash to Jindahl's action that threatened tourist, convention and special event business in the state.  The heart of Landrieu's order is the purpose clause in Sec. 1:

The purpose of this Executive Order is to confirm for the residents of the City of New Orleans, its businesses and visitors that religious beliefs are protected from unjustified governmental burden, but that there is no tolerance in the City of New Orleans for discrimination on the basis of race, creed, national origin or ancestry, color, religion, gender or sex, sexual orientation, gender identification, marital or domestic partner status, age, physical condition or disability.

The Advocate reports on Landrieu's action and points out that New Orleans "has a history of embracing gays, lesbians, bisexuals and transgender individuals, not only culturally, through Carnival krewes and the annual Southern Decadence festival, but through its laws."

Zogby Reappoined To USCIRF

Last week, President Obama announced his intention to reappoint Dr. James J. Zogby to another term on the U.S. Commission on International Religious Freedom. Earlier this week, USCIRF issued a press release in which USCIRF Chair Dr. Katrina Lantos Swett welcomed the reappointment.

Court Refuses To Allow High School Senior To Wear Eagle Feather On Cap At Graduation

In Griffith v. Caney Valley Public Schools, (ND OK, May 20, 2015), an Oklahoma federal district court adopted a magistrate's recommendaiton (full text) and refused to grant a preliminary injunction to high school student Hayden Griffith who wanted to wear an eagle feather on her mortar board tassel at her high school graduation last night.  The court rejected Griffith's claim that the school district's ban on cap decorations violates her free speech and free exercise rights and her rights under the Oklahoma Religious Freedom Act (ORFA). Discussing the ORFA claim, the court concluded that Griffith had not shown that the policy substantially burdens her free exercise of religion, saying:

[Griffith] testified that wearing the feather shows her respect for God and for the tribal elder who gave the feather to her, but that failing to attach the feather to her cap would not result in any religious detriment to her. Thus, attaching the feather to her graduation cap would be a personal expression of religious significance to Griffith, but it is not a religiously motivated “practice” ... or an activity that is “fundamental” to her religion.... Nor does the policy prohibiting decorations on graduation caps during the ceremony “meaningfully curtail” her ability to express adherence to her faith..... The policy does not prevent Griffith from attaching the feather to her cap at any time other than the graduation ceremony. She may attach it to her cap it up until she enters the graduation ceremony, and she may affix the feather to her cap immediately after the ceremony. The school superintendent also offered to re-pose for the professional photographer with Griffith wearing her feather on her cap after the ceremony. In sum, Griffith may display the feather as she wishes throughout her celebration of her graduation, other than during the graduation ceremony with her fellow classmates.

Tulsa World reported on the decision.

North Carolina Magistrates Sue Over Requirement They Perform Same-Sex Marriages

Yesterday in North Carolina, a magistrate and a former magistrate (who had not been reappointed after 10 years of service) filed suit challenging a memorandum issued by the Administrative Office of the Courts in October requiring all magistrates to conduct same-sex marriage ceremonies in the same manner as any other marriage ceremony.  The memorandum was issued to implement federal court rulings striking down the state's same-sex marriage ban.  The complaint (full text) in Smoak v. Smith, (NC Super. Ct., filed 5/21/2015) contends that the failure to make exceptions for magistrates with sincerely held religious beliefs opposed to same-sex marriage violates their conscience, religious liberty, free speech, due process and equal protection rights under the North Carolina Constitution. Liberty Counsel issued a press release on the lawsuit.

DC Circuit Denies En Banc Review of Priests For Life ACA Contraceptive Mandate Challenge

Yesterday in Priests for Life v. U.S. Department of Health and Human Services, (DC Cir., May 20, 2015), the D.C. Circuit Court of Appeals denied a petition for rehearing en banc. In the case, a 3-judge panel upheld the Obama administration's compromise for religious non-profits that object to furnishing contraceptive coverage under the Affordable Care Act. (See prior posting.) While the petition for rehearing failed to garner votes of a majority of the Circuit's judges, three separate opinions on behalf of six different judges were filed along with the per curiam denial.

Judge Brown, dissenting from the denial, joined by Judge Henderson argued

The panel conceded Plaintiffs sincerely “believe that the regulatory framework makes them complicit in the provision of contraception,” ... That acknowledgement should end our inquiry into the substance of their beliefs.

Judge Kavanaugh also dissented from the denial of a rehearing, arguing that the government has a still less restrictive alternative available-- a less restrictive notice of an opt out by the non-profit.

Judge Pillard, joined by Judges Rogers and Wilkins defended their 3-judge panel decision:

the dissenters perceive in Hobby Lobby a potentially sweeping, new RFRA prerogative for religious adherents to make substantial-burden claims based on sincere but erroneous assertions about how federal law works....

RFRA protects religious exercise. In no respect do we, nor could we, question Plaintiffs’ sincere beliefs about what their faith permits and forbids of them. But we can and must decide which party is right about how the law works. We concluded that the regulation challenged in this case does not, as a matter of law or fact, give Plaintiffs’ conduct the contraception-facilitating effect of which they complain.

Washington Times reports on the decision.

Some Recent Congressional Actions of Interest

On April 15, the U.S. House of Representatives passed H.R. 1314, a bill that would amend the Internal Revenue Code to assure the right to an administrative appeal for non-profit organizations that are denied tax-exempt status by the IRS.  When the bill went to the Senate, it became the vehicle for the high profile trade promotion authority.  The May 12 substitute amendment (full text) that added the trade authority provisions, however, eliminated the text of the House language regarding non-profits.

A large number of amendments have been offered on the Senate floor to the trade authority bill. One of those amendments (No. 1237), approved in the Seante  on May 18 by a 92-0 vote, adds to the numerous trade negotiating objectives in Sec. 102, the following:

to take into account conditions relating to religious freedom of any party to negotiations for a trade agreement with the United States.