District Court Modifies, But Will Not Dissolve, Injunction Barring Sectarian Invocations

In Hudson v. Pittsylvania County, Virginia, (WD VA, May 28, 2015), a Virginia federal district court modified, but refused to dissolve, its prior injunction (issued before the Supreme Court's Town of Greece decision) barring sectarian prayer at Pittsylvania County's Board of Supervisors meetings. The court said in part:

By opening its meetings with prayers led by Board members, the Supervisors of Pittsylvania County determined the content of the prayers offered at Board meetings and did so by consistently referencing the tenets of one denomination. In so doing, the Board involved itself “in religious matters to a far greater degree” than was the case in Town of Greece.... Moreover, by delivering the prayers to the assembled public and asking them to stand for the prayers, the Board members “directed the public to participate in the prayers.”... Finally, because the Board itself determined the content of the Pittsylvania County prayers, persons of other faiths had no opportunity to offer opening prayers in their faith traditions. As such, the Supreme Court’s decision in Town of Greece was decided on very different facts, and its decision does not alter the conclusion that the prayer practice of the Board of Supervisors of Pittsylvania County violated the Establishment Clause of the First Amendment of the United States Constitution.

While the injunction in this case will be modified to eliminate any suggestion that legislative prayer must be nonsectarian, the Board’s exclusive practice of determining the content of and leading the citizens of Pittsylvania County in prayer associated with one faith tradition at the opening of Board meetings will remain enjoined.

Last August the district court had issued an opinion expressing a similar conclusion (see prior posting), but refused to modify the injunction then because it concluded  it did not have jurisdiction to do so until the 4th Circuit to which the case had been appealed granted at least a limited remand. In December, the 4th Circuit dismissed the appeal finding that it was untimely. (See prior posting.)

8th Circuit Upholds Missouri's Blaine Amendments Against 1st and 14th Amendment Attack

In Trinity Lutheran Church of Columbia, Inc.v. Pauley, (8th Cir., May 29, 2015), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, rejected arguments that Missouri's Blaine Amendments violate the free exercise, establishment and equal protection clauses of the federal Constitution. At issue was the refusal by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would allow it to resurface a playground at its day care and preschool facility on church premises. In refusing the grant, the Department pointed to Missouri Constitution, Art. I Sec. 7, that prohibits public funds from being spent "in aid of any church, section or denomination of religion." The majority said in part:

Trinity Church seeks an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church. To prevail, Trinity Church must clear a formidable if not insurmountable hurdle, what appears to be controlling adverse precedent.

Judge Gruender dissented, saying that Trinity Church has sufficiently pleaded a Free Exercise violation.

British Education Officials Launch Investigation of Jewish Schools Over Women's Driving Ban

The Guardian reports today that Britain's Department of Education is launching an investigation into an order issued by the Jewish Hasidic Belz sect that operates two schools in North London. The sect's order bans women from driving their children to school-- saying (as reported in a second Guardian article) that women's driving violates "the traditional rules of modesty in our camp." The decision was made upon the advice of the Belzer spiritual leader in Israel. A letter to school parents said that beginning in August, children driven to school by their mothers would be turned away.  A special committee will consider requests for exceptions for medical and similar reasons. Education Secretary Nicky Morgan (who is also minister for women and equalities) said:

This is completely unacceptable in modern Britain. If schools do not actively promote the principle of respect for other people they are breaching the independent school standards. Where we are made aware of such breaches we will investigate and take any necessary action to address the situation.”

UPDATE: A June 4 report by JTA indicates that the schools have backed off.  The schools' CEO said that the letter had not been seen in advance by the schools' board and that "women have a choice about whether they want to drive or not, and our policy is to accept all children who are members of our community..."

North Carolina Governor Vetoes Bill Allowing Magistrates To Refuse To Perform Same-Sex Marriages

As reported by The Advocate, yesterday North Carolina Governor Pat McCrory, a Republican, announced he would veto Senate Bill 2 (full text), which was sent to him earlier in the day by the state legislature. The bill provides that individual magistrates have the right to recuse themselves from performing all lawful marriages based on any sincerely held religious beliefs and that individual register of deeds personnel similarly may opt out of issuing marriage licenses. The Governor in a statement said (full text):

I recognize that for many North Carolinians, including myself,  opinions on same-sex marriage come from sincerely held religious beliefs that marriage is between a man and a woman. However, we are a nation and a state of laws. Whether it is the president, governor, mayor, a law enforcement officer, or magistrate, no public official who voluntarily swears to support and defend the Constitution and to discharge all duties of their office should be exempt from upholding that oath; therefore, I will veto Senate Bill 2.

According to WITN News, a half hour after issuing the statement, he formally vetoed the bill.  In North Carolina, the Administrative Office of the Courts had previously issued a memo to judges and magistrates stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples, and magistrates have filed suit challenging the absence of a religious liberty exception. (See prior posting.) The Gaston Gazette has reactions from various state legislators to the governor's veto.

Provocative Draw Muhammad Contest and Rally Planned In Phoenix Today

A provocative rally is set for this evening in Phoenix, Arizona outside the Phoenix Islamic Center.  KPHO News and Mashable report on the event organized by former Marine Jon Ritzheimer and billed as "Round 2" after the attacks earlier this month on Pamela Geller's "Muhammad Art Exhibit and Contest" in Garland, Texas. (See prior posting.)  The two gunmen there were from Phoenix and one had studies at the Phoenix Islamic Center. Today's event, to which bikers are invited, will involve a Muhammad Cartoon Contest with the winner being announced at the rally.  The rally will be held at 6:15 pm to coincide with the mosque's Friday prayer services. The Facebook page promoting the rally says in part: "People are also encouraged to utilize there [sic.] second amendment right at this event just incase our first amendment comes under the much anticipated attack."

The KPHO report quotes Ritzheimer who says he knows that the Phoenix Islamic Center has condemned ISIS.  But he insists that is not enough.  He says: "People call them an extremist; to me it's just a Muslim following their book as it's written.... Unfortunately, we have to hold the cartoon contest, as silly as it sounds, to be able to show the true colors of Islam."

Group Challenges University Football Coach Leading Players In Lord's Prayer

The Toledo Blade reported Wednesday on a letter (full text) sent by Freedom From Religion Foundation to the president of the University of Toledo (a public university) complaining about a video posted on the University's YouTube channel showing football coach Matt Campbell leading his players in the Lord's Prayer.  The video of pre-game activity, apparently shot by a mobile video camera attached to one of the player's helmets, shows the coach calling together the team in the locker room so they can offer the prayer to fire the players up as they are about to run onto the field. The video is from a 2012 game against the school's traditional rival, Bowling Green State University. However the Blade article also features a photo of Coach Campbell leading the team in prayer after a 2015 game. A University spokesman said the school is reviewing FFRF's letter.

More Alabama Same-Sex Marriage Developments

Alabama has been "ground zero" for opposition to same-sex marriage.  Two more developments help it keep that title.  According to the Montgomery Advertiser, in Prattville, Alabama last week, a Unitarian minister pleaded guilty to disorderly conduct charges and was sentenced to six months unsupervised probation and a $250 fine. The charges were filed last February when Anne Susan DiPrizio offered to marry a lesbian couple who had just received a marriage license, planning to conduct the ceremony inside the Autauga County Probate Office.  However, the local Probate Judge had stopped all marriages in the office.  After DiPrizio refused to leave, sheriff's deputies were called and disorderly conduct charges were filed.

Meanwhile also last week, the Alabama state Senate passed and sent to the state House of Representatives SB 377 (full text) that would end the issuance of marriage licences in the state.  Instead a couple would enter a "marriage contract" containing specified information and would record that contract in the office of the county probate court.  If and when same-sex marriage becomes legal in Alabama, this procedure eliminates the issue of whether a probate court employee who objects to same-sex marriage must issue a license to a same-sex couple. The bill's sponsor defines the bill's purpose more broadly, saying: "When you invite the state into those matters of personal or religious import, it creates difficulties." (Yellowhammer News, 4/30/15).

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.