Freedom From Religion Foundation Founder Ann Gaylor Dies At 88

Freedom From Religion Foundation announced yesterday that its principal founder Anne Nicol Gaylor died Sunday night. She was 88. Gaylor served as president of FFRF until 2004. According to FFRF:

A master of “sound bites” with media savvy, Anne quickly took FFRF from a tiny organization to the largest association of freethinkers (atheists and agnostics) in North America.

FFRF, founded in 1976, has in recent years developed a major national presence in litigating church-state cases. Gaylor was also a co-founder of the Wisconsin-based Women’s Medical Fund, the oldest continuously operating abortion rights charity in the U.S.

Muslim Woman Sues Over Required Removal of Hijab During Traffic Offense Booking

WZZM reported yesterday on a federal lawsuit filed last month in Grand Rapids, Michigan by a Muslim woman who was forced by Oceana County Sheriff's officials to remove her hijab (religious head covering) while being processed at the county jail for a minor traffic violation.  On May 17, Fatme Dakroub was falsely arrested for driving with an expired license while vacationing with her family at Lake Michigan sand dunes.  Her request to have a female officer handle her booking was denied, and she was forced to sit for 3 hours bare headed in a holding cell in front of male officers and inmates.

Vatican Drops the Other Shoe In Attacking Mishandling of Sex Abuse Claims

Just days after the Vatican announced a new Tribunal to hear cases of bishops who fail to protect children from sexually abusive priests (see prior posting) and the criminal indictment of the St. Paul-Minneapolis Catholic Archdiocese for inadequate responses to reports of sexual abuse (see prior posting), the Archbishop and Auxiliary Bishop of the St. Paul-Minneapolis Archdiocese have resigned. According to the National Catholic Reporter, on Monday the Vatican announced the resignations of both Archbishop John Nienstedt and Auxiliary Bishop Lee Piché. Nienstedt had been charged with mishandling complaints against convicted former priest Curtis Wehmeyer, and later unproven charges were leveled against Nienstedt himself claiming inappropriate sexual contact with adults and a boy. Piché oversaw the investigation of Nienstedt, and for a while headed the Archdiocese.  Newark, New Jersey Coadjutor Archbishop Bernard Hebda has been appointed Apostolic Administrator for the Archdiocese.

AP has a timeline of key events in the Archdiocese scandal. Wall Street Journal points out that all of this is taking place as the Archdiocese is going through a bankruptcy reorganization.

Meanwhile, the Vatican also announced on Monday that former apostolic nuncio to the Dominican Republic, Jozef Wesolowski, will be criminally tried in the Tribunal of the Vatican City State.  Wesolowski is charged with sexual abuse of minors while in the Dominican Republic, and possession of child pornography while in Rome. (See prior posting.)

Muslim Employee Not Constructively Discharged For Refusing Friday Work

In Shah v. IMI's MN, Inc, (MN App, June 15, 2015), a Minnesota appeals court, in a 2-1 decision, agreed with an unemployment law judge that a Muslim employee of an optical store was not forced to resign because of failure to accommodate her need for religious reasons not to work on Fridays. While she was scheduled two different times to work on Fridays, on both times this was changed when she complained.  The majority concluded that her resignation did not result from requiring her to choose between violating her religious beliefs or losing her job. Thus she was not entitled to unemployment compensation benefits.

Judge Minge dissented, arguing that the case should be remanded for the unemployment law judge to determine whether the employer had made a commitment to accommodate the employee's religious beliefs in the future and whether the difficulties experienced by the employee over accommodation were a material cause of the health problems that led her to resign.

Cert. Granted In Prisoner IFP Litigation Fee Case

The U.S. Supreme Court today granted certiorari in Bruce v. Samuels, (Docket No. 14-844, cert. granted 6/15/2015) (Order List), a case that is important for prisoner litigation over religious accommodations-- cases that are often brought by prisoners in forma pauperis. At issue is the interpretation of a provision in the Prison Litigation Reform Act that caps monthly payments by prisoners proceeding in forma pauperis at 20% (28 USC 1915(b)(2)).  At issue in the case is whether a prisoner who files multiple cases or appeals has his monthly payment capped at 20% of his total income, or whether he must pay 20% of his income each month for each pending case. The Circuits are split on the issue.  In the decision below (full text), the D.C. Circuit chose the per-case approach. The SCOTUS blog case page for the case is here.

Recent Articles and Books of Interest

From SSRN:

• Tom Herrenberg, Denouncing Divinity: Blasphemy, Human Rights, and the Struggle of Political Leaders to Defend Freedom of Speech in the Case of Innocence of Muslims, (Ancilla Iuris,(anci.ch) 2015: 1).
• Lucia Ann Silecchia, A Witness First Lives the Life He Proposes: Evangelization and the Catholic Lawyer, (May 21, 2015).
• Kenneth Einar Himma, The Ethics of Subjecting a Child to the Risk of Eternal Torment: A Reply to Shawn Bawulski, (June 10, 2015).
• David B. Schwartz, The NLRA's Religious Exemption in a Post-Hobby Lobby World: Current Status, Future Difficulties, and a Proposed Solution, (30 A.B.A. J. of Lab. and Emp. Law 227 (Winter 2015)).
• Frederick B. Jonassen, 'So Help Me?': Religious Expression and Artifacts in the Oath of Office and the Courtroom Oath, (Cardozo Public Law, Policy and Ethics Journal, Vol. 12, No. 2, Spring 2014).
• Priscilla J. Smith, Contraceptive Comstockery: Reasoning from Immorality to Illness in the Twenty-First Century, (Connecticut Law Review, Vol. 47, No. 4, 2015).
• Danielle Keats Citron, Hate Crimes in Cyberspace - Introduction, (Hate Crimes in Cyberspace, Harvard University Press (2014)).
• Charles R. Calleros, Advocacy for Marriage Equality: The Power of a Broad Historical Narrative During a Transitional Period in Civil Rights, (Forthcoming in 2015, Mich. St. L. Rev. for Symposium on Persuasion in Civil Rights Advocacy).

From elsewhere:

• Symposium: Polygamous Unions? Charting the Contours of Marriage Law's Frontier, 64 Emory Law Journal, Issue 6 (2015).

New Books:

• Anna Su, Exporting Freedom: Religious Liberty and American Power, (Harvard University Press, Jan. 2016).
• Mary Ziegler, After Roe: The Lost History of the Abortion Debate, (Harvard University Press, June 2015).
• Jeanette S. Jouili, Pious Practice and Secular Constraints: Women in the Islamic Revival in Europe, (Stanford University Press, 2015).

800th Anniversary of the Magna Carta; What Did It Have To Do With Religious Freedom?

Today is widely celebrated as the 800th anniversary of King John's placing his seal on the Magna Carta (full text) at the demand of rebellious barons. (Background  from the National Archives). However it is actually a revised version agreed to 4 days later that laid the foundation for the rule of law and due process for all freemen.  That is the text that has survived. As recounted by the National Archives in an article titled Magna Carta and Its American Legacy:

Of great significance to future generations was a minor wording change, the replacement of the term "any baron" with "any freeman" in stipulating to whom the provisions applied. Over time, it would help justify the application of the Charter's provisions to a greater part of the population....

What is largely forgotten, however, is that the very first of the protections set out in the Magna Carta was for the English Church (which at this pre-Reformation time still acknowledged the authority of the Pope [background]):

Know that we, at the prompting of God and for the health of our soul and the souls of our ancestors and successors, for the glory of holy Church and the improvement of our realm, freely and out of our good will have given and granted to the archbishops, bishops, abbots, priors, earls, barons and all of our realm these liberties written below to hold in our realm of England in perpetuity.

In the first place we grant to God and confirm by this our present charter for ourselves and our heirs in perpetuity that the English Church is to be free and to have all its rights fully and its liberties entirely.

This was far from the final chapter in King John's relationship with the Church.  As recounted in Meeting at Runnymede from the Constitutional Rights Foundation:

King John ... secretly wrote the Pope asking him to cancel Magna Carta on the grounds that he signed it against his will. At the same time he continued to build up his mercenary army. Not trusting John's intentions, the rebel barons held on to London and maintained their own army.

Pope Innocent III replied favorably to King John's appeal. He condemned Magna Carta and declared it null and void.... The barons charged that King John had defaulted on his agreement with them and they were justified in removing him from the throne. They offered the throne to the son of the French king, if he would aid their rebellion.

A long and bloody civil war loomed across England, when suddenly, King John died....Ten days later John's nine-year-old son, Henry, was crowned as the new king of England. With John out of the way, the conflict gradually ceased. Less than a month after Henry was crowned, his supporters confirmed Magna Carta in his name. This time it received the approval of the Pope.

Recent Prisoner Free Exercise Cases

In Rowell v. Cox, 2015 Nev. App. Unpub. LEXIS 243 (NV App., , May 27, 2015), a Nevada appeals court affirmed dismissal of an inmate's complaint that his free exercise rights under the state and federal constitutions were infringed when prison authorities refused to furnish him a low-sodium, soybean-free, kosher diet so he could meet both his health and religious needs.

In Womack v. Cross, 2015 U.S. Dist. LEXIS 73884 (SD IL, June 8, 2015), an Illinois federal district court permitted a Native American inmate to proceed with his free exercise and equal protection challenge to the prison chaplain's hostile impediments to Native American ceremonies and worship.

In Young v. Biter, 2015 U.S. Dist. LEXIS 73944 (ED CA, June 8, 2015), a California federal magistrate judge dismissed, with leave to amend, a Messianic Jewish inmate's 200-page complaint alleging, among other things, denial of a kosher diet and denial of inmate minister status.

In Anderson v. United States, 2015 U.S. Dist. LEXIS 74249 (ED MO, June 9, 2015), a Missouri federal district court dismissed a suit by a prisoner awaiting trial on possession and distribution of heroin charges seeking a declaration that the government's decision to indict him and hold him for trial violates his free exercise rights.  He claims that he "is a student of Esoteric and Mysticism studies" and that he distributes heroin to "the sick, lost, blind, lame, deaf, and dead members of Gods' Kingdom" to save their souls.

In Ramrattan v. Fischer, 2015 U.S. Dist. LEXIS 74510 (SD NY, June 9, 2015), a New York federal district court dismissed, with leave to amend, a Hindu inmate's complaint regarding failure to hire a Hindu chaplain and failure to provide him with a religious diet.

In Garcia v. Godinez, 2015 U.S. Dist. LEXIS 75125 (SD IL, June 10, 2015), an Illinois federal district court permitted an inmate who had changed his faith from Hebrew Israelite to Orthodox Jewish to move ahead with his complaint that he was being denied use of tefillin because the Department of Corrections contracted rabbi refused to instruct him in their use since he did not consider him Jewish.

In Wright v. Lassiter, 2015 U.S. Dist. LEXIS 75838 (ED NC, June 10, 2015), a North Carolina federal district court dismissed a Rastafarian inmate's complaint that prison authorities refused to recognize certain holidays he sought to observe.

Michigan Governor Signs Bills Protecting Faith-Based Adoption Agencies; ACLU Vows Challenge

On Thursday, Michigan Governor Rick Snyder signed (press release) three companion bills assuring that faith-based agencies providing foster care and adoption services are protected in refusing to place children under circumstances that conflict with the agency's sincerely held religious beliefs contained in a written policy, statement or faith, or other document adhered to by the agency. Under the bills, the state may not refuse funds for services to agencies that refuse such placements.  If an agency refuses to provide services on religious grounds, it must either refer the applicant to another agency or to a website listing other child placement agencies.  In signing HB 4188, 4189 and 4190, the governor said that the bills "do not change current practices in Michigan, but prevent faith-based agencies from having policies forced on them that violate their religious beliefs, which have resulted in agencies closing in Massachusetts, Illinois, California, and Washington, D.C."

Responding to the Governor's action, the ACLU on Thursday issued a statement (full text) reading in part:

We’re deeply disappointed that Governor Snyder signed this dangerous legislation. We are developing a lawsuit with our Muslim, Jewish, Christian and LGBTQ partners. We encourage any family looking to adopt or foster children who believe they will be adversely affected by this law to contact us immediately.

MLive reporting on developments says that together Catholic Charities and Bethany Christian Services together provide 25% to 30% of foster care adoptions in the state.

Court Orders Religious Accommodation For Sikh Student Seeking To Enter ROTC Program

In Singh v. McHugh, (D DC, June 12, 2015), the D.C. federal district court ordered the Army to grant a religious accommodation to dress and grooming requirements to allow a Sikh college student to enroll in the ROTC program at Hofstra University.  The court relied heavily on the Supreme Court's decision this term in Holt v. Hobbs in refusing to completely defer to military judgment, saying in part:

The Court finds that defendants have failed to show that the application of the Army’s regulations to this plaintiff and the denial of the particular religious accommodation he seeks further a compelling government interest by the least restrictive means. Therefore ... judgment will be entered in favor of the plaintiff. The Court accords substantial deference to the Army’s judgments concerning the essential role that uniformity plays in military training and effectiveness. But given the tens of thousands of exceptions the Army has already made to its grooming and uniform policies, its successful accommodation of observant Sikhs in the past, and the fact that, at this time, plaintiff is seeking only to enroll in the ROTC program, the Army’s refusal to permit him to do so while adhering to his faith cannot survive the strict scrutiny that RFRA demands. This decision is limited to the narrow issue presently before the Court – plaintiff’s ability to enroll in ROTC with his turban, unshorn hair, and beard – and it does not address plaintiff’s eventual receipt of a contract or an Army commission.

Spain's Parliament Passes Law Allowing Non-Resident Sephardic Jews To Apply For Citizenship

The Wall Street Journal  and AP report that Spain's legislature yesterday gave final approval to a bill that will allow Sephardic Jews-- descendants of those expelled in 1492-- to apply for Spanish citizenship without requiring they live in Spain or give up their current citizenship elsewhere.  This follows a similar step by Portugal earlier this year.  Under Spain's new law, applicants will be required to show basic Spanish language ability, pass the same test on current events and Spanish culture as other citizenship applicants, and prove a current link to Spain such as donating to a Spanish charity or owning Spanish property. Sephardic Jews will have a 3-year window beginning in October to apply for a Spanish passport.  This will give them the right to live and work anywhere in the 28-nation European Union.  While the bill was debated in Parliament, two small leftist parties offered an amendment that would have extended it to Moriscos-- descendants of the Muslim Moors who were forced to convert to Christianity in 1502 under threat of exile or death and who were then expelled from Spain in 1609. (Background.) That amendment was defeated. [Thanks to Tom Rutledge for the lead.]

North Carolina Legislature Overrides Veto Of Magistrates Recusal Bill

The North Carolina General Assembly yesterday overrode Governor Pat McCrory's veto of Senate Bill 2, Magistrate's Recusal For Civil Ceremonies.  The Senate vote to override, cast June 1, was 32-16. The House vote  yesterday was 69-41. (Vote history).  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. (See prior posting.) Raleigh News & Observer reports on the General Assembly's action.

Settling Factional Dispute Would Involve Civil Court In Religious Matters

In Samuel v. Lakew, (DC Ct. App., June 11, 2015), the District of Columbia Court of Appeals affirmed the Superior Court's dismissal of a lawsuit between two factions of the Kedus Gabriel Parish (located in D.C.) of the Ethiopian Orthodox Tewahedo Church in the Diaspora.  The parent church's Holy Synod had ruled that the president of the local church and the head of the Parish Administrative Council should surrender all keys and property of the Parish to the Archbishop of the Washington Metropolitan area.  They refused to do so, and the Archbishop sued seeking an injunction requiring them to comply with the Holy Synod's ruling.  The DC court held that the true dispute was over whether a clause in Kedus Gabriel's bylaws giving the  Holy Synod responsibility for the congregation's "spiritual and religious matters" gives the Holy Synod authority to remove Kedus Gabriel’s elected officers here.  Deciding whether the Holy Synod's decision here involved spiritual or religious matters would involve the court in an impermissible inquiry into religious doctrine and practice in violation of the First Amendment. The court concluded:

Informed by both parties’ summary judgment papers that the dispute here at bottom is about which clergy have the right to control Kedus Gabriel, Judge Kravitz properly denied relief, on the ground that “the First Amendment does not permit a civil court to determine the religious leader of a religious institution[.]”

International Travel Limits In Custody Order Did Not Violate Rastafarian Parent's Rights

In In re the Paternity of Y.K.S., (WI Ct. App., June 11, 2015), a Wisconsin appeals court upheld a provision in a joint custody order barring Jesse Schwork from traveling internationally with his son to any country that is not a signatory to the Hague Abduction Convention.  Schwork, a practicing Rastafarian, argued that this would prevent him from taking his son to religiously significant sites.  The court rejected his argument, saying in part:

Schworck’s argument that the circuit court should have granted him a hearing and that it was required to apply strict scrutiny in crafting the travel restriction is premised on his assertion that the travel restriction infringes on his right to provide religious instruction to Y.S. We see no such infringement because the travel restriction does not prohibit Schworck from raising Y.S. in the Rastafarian faith....

Assuming, without deciding, that travel to Kenya and Ethiopia would be beneficial to raising Y.S. in the Rastafarian faith, we reject the proposition that the circuit court was required to hold a hearing to determine whether the travel restriction infringed on Schworck’s First Amendment right to the free exercise of his religion. Both the United States Supreme Court and our supreme court ... have recognized that the First Amendment does not protect an individual’s right to act in conformity with his or her religion in all circumstances.

6th Circuit: County's Use of Religiously Sponsored School For Alternative Program Did Not Violate Establishment Clause

In Smith v. Jefferson County Board of School Commissioners, (6th Cir., June 11, 2015), the U.S. 6th Circuit Court of Appeals, reversing the trial court, held that a Tennessee school board did not violate the Establishment Clause when, in the context of a budgetary crisis, it contracted with Kingswood, a private Christian school, to provide a state-mandated alternative program.  District students who had been suspended or expelled from their regular middle- or high-school were enrolled in Kingswood's "day" (as opposed to its more religious "residential") program. In a suit brought by two teachers who lost their jobs when the prior the board-run alternative school closed, the court said in part:

Here, a reasonable observer would not interpret the School Board’s relationship with Kingswood as a governmental endorsement of religion. Parents and students, for example, encountered only de minimis religious references in Kingswood’s day program. The evidence indicates that students in the day program were not exposed to any religious instruction, prayer, or any mentions of religion at all. Their school building was devoid of any religious imagery. Their assemblies in the chapel were as close as the day students came to religious exposure, and yet those assemblies were completely secular activities.

Perhaps the most overt religious references were the Biblical quotes on the report cards, family-feedback forms and—for those who sought them out—the annual report and school improvement plan.   But a reasonable observer would view all of these in the specific context of the arrangement that Kingswood had with Jefferson County. A budgetary crisis forced the Board to close its alternative school and, needing to accommodate the alternative-school students on short notice, the Board selected a high-performing, state-certified alternative school...

An ACLJ press release discusses the decision.

UPDATE: In the case, Judge Batchelder filed an opinion concurring in part and concurring in the result, but saying: "I cannot agree with the lead opinion’s dismissing as irrelevant last year’s Supreme Court opinion in Town of Greece." She said that while lower courts are required to follow Supreme Court decisions invoking the "endorsement" test until the Court explicitly overrules them, the Supreme Court appears to have rejected that test in favor of the historical "coercion" test.

Pope Approves New Tribunal For Charges Against Bishops In Sex Abuse Cases

Vatican Radio yesterday reported that Pope Francis has approved a recommendation by the Pontifical Commission for the Protection of Minors for creation a new Vatican tribunal to hear cases of bishops who fail to protect children from sexually abusive priests. The tribunal will be set up as a judicial section within the Congregation for the Doctrine of the Faith.

More Messy Procedural Decisions In Arkansas Same-Sex Marriage Litigation

The procedural messiness that has surrounded much of the litigation over same-sex marriage manifested itself again in two recent judicial decisions in Arkansas.  In Henson v. Walther, (AR Cir. Ct., June 9, 2015), an Arkansas trial court judge held that marriages of same-sex couples performed in the state between May 9 and May 16 are valid.  Here is the background:

On May 9, a state trial court held that the state's constitutional ban, and two statutory provisions making same-sex marriages void violate the 14th Amendment's equal protection and due process clauses. However on May 14, the Arkansas Supreme Court pointed out that the trial court had not invalidated a third provision in Arkansas law prohibiting the issuance of marriage licenses to same-sex couples, and had not included language actually enjoining enforcement of the bans on same-sex marriage that it declared unconstitutional.  The trial court responded on May 15 by issuing an order nunc pro tunc granting an injunction and including the omitted third statutory provision. The trial court made it all retroactive to May 9, indicating that this had been the original intent in issuing the May 9 decision. (See prior posting.) On May 16, the Arkansas Supreme Court issued an order staying the trial court's order pending appeal.

The Director of the Arkansas Department of Finance and Administration has refused to recognize the validity of same-sex marriages performed between May 9 and May 16, arguing that the trial court lacked authority to make its May 15 ruling retroactive. He directed same-sex couples married during that period to file separate rather than joint tax returns, and refused to permit same-sex spouses to enroll in the state employee health insurance plan. In Henson the trial court judge disagreed, asserting that the state Finance Director was acting with "shameless disrespect for fundamental fairness and equality." AP reports on the decision.

Meanwhile an appeal of the underlying same-sex marriage challenge has been pending in the Arkansas Supreme Court for over a year-- bogged down in part by an unusual dispute over who are the proper Supreme Court justices to decide the case.  In September 2014, Justice Cliff Hoofman recused himself and the governor appointed Robert W. McCorkindale to serve as special justice in place of Hoofman. The case was briefed and argued before the end of 2014, but the state Supreme Court ended its term without handing down a decision. When the new term began, two new justices had been elected, one of whom was Justice Rhonda Wood who replaced Justice Hoofman.  She insisted she had a right to participate in deciding the appeal.  In Smith v. Wright, (AR Sup. Ct., May 7, 2015), with Jutice Wood and two other justices recusing themselves and replaced by 3 special justices, the Court held that newly-elected Justice Wood, not the holdover special justice, should participate in deciding the appeal.

Cert Filed and Stay Issued In Priests For Life Challenge To Contraceptive Coverage Accommodation

On June 9, a petition for certiorari (full text) was filed with the Supreme Court in Priests For Life v. U.S. Department of Health and Human Services.  In the case, a 3-judge panel of the D.C. Circuit upheld the Obama administration's compromise for religious non-profits that object to furnishing contraceptive coverage under the Affordable Care Act.  The D.C. Circuit denied an en banc rehearing, but with 3 judges writing a dissent from the denial and 3 others responding. (See prior posting.)  Then on June 10, the D.C. Circuit issued an Order (full text) staying its decision pending final disposition of the case by the Supreme Court. In a June 10 press release, Priests For Life announced the stay and added: "no matter what happens, we will not obey the mandate, nor will we pay fines to the government."

First U.S. - Vatican Intergovernmental Agreement Signed-- To Prevent Tax Evasion

Yesterday the United States signed its first formal inter-governmental agreement with the Holy See-- an agreement to prevent tax evasion by U.S. citizens who conduct financial activities in the Vatican City State. Zenit reports that the agreement, also signed by the Holy See acting in the name and on behalf of the Vatican City State, implements requirements of the U.S. Foreign Account Tax Compliance Act (FATCA) [background].

Local Board Loses Suit Against NY Education Department Over Placement of Jewish Special Needs Students

As reported by yesterday's Lower Hudson Journal News, the East Ramapo, New York school board's battle with  the state Education Department continues as the local school board loses a lawsuit challenging state interference in its placement of special education students.  Last year a state-appointed monitor filed report critical of the East Ramapo board whose Orthodox Jewish majority has been charged with aiding yeshivas at the expense of public schools. (See prior posting). The latest round involves intervention by the state challenging the East Ramapo board's practice of paying for special needs students from ultra-Orthodox families to go to private Yiddish-speaking schools when placements were available in public schools. (Background.) The district had argued that the cost of placing students in private schools that accommodate their cultural and language preferences is no more than placement in public schools, and fighting parental requests would have cost the district tens of thousands of dollars.  In Matter of East Ramapo School District v. King, (App. Div., June 4, 2015), a New York appellate court held that the federal Individuals With Disabilities Education Act does not grant the local school board a right of action to challenge the state's enforcement of federal law assuring students with disabilities a free appropriate public education.