AG Says U.S. Government Benefit Programs Will Recognize Same-Sex Spouses In All States

U.S. Attorney General Loretta Lynch announced yesterday that the Supreme Court's marriage equality decision will be applied across the federal government.  She said in part:

[C]ritical programs for veterans and elderly and disabled Americans, which previously could not give effect to the marriages of couples living in states that did not recognize those marriages, will now provide federal recognition for all marriages nationwide....  Just over a year ago, Attorney General Holder announced that agencies across the federal government had implemented the Supreme Court’s Windsor decision by treating married same-sex couples the same as married opposite-sex couples to the greatest extent possible under the law as it then stood.  With the Supreme Court’s new ruling that the Constitution requires marriage equality, we have now taken the further step of ensuring that all federal benefits will be available equally to married couples in all 50 states, the District of Columbia and the US Territorie

Ontario Court Upholds Law Society's Refusal To Accredit Christian Law School

In Trinity Western University v. Law Society of Upper Canada, (ON Super. Ct., July 2, 2015), a 3-judge panel of the Ontario Superior Court of Justice upheld the decision of the Law Society of Upper Canada to deny accreditation to the law school which Trinity Western University (TWU)-- an evangelical Christian school-- plans to open.  The Law Society's denial was based on TWU's Community Covenant that all students are required to sign, and in particular the Covenant's ban on "sexual intimacy that violates the sacredness of marriage between a man and a woman."

According to the court, the Law Society "was essentially asked to approve and accept students from an institution that engaged in discrimination against persons
who did not share the religious beliefs that were held by TWU, and the student body that it prefers to have at its institution." The court went on:

In exercising its mandate to advance the cause of justice, to maintain the rule of law, and to act in the public interest, the [Law Society] was entitled to balance the applicants’ rights to freedom of religion with the equality rights of its future members, who include members from two historically disadvantaged minorities (LGBTQ persons and women). It was entitled to consider the impact on those equality rights of accrediting TWU’s law school, and thereby appear to give recognition and approval to institutional discrimination against those same minorities. Condoning discrimination can be ever much as harmful as the act of discrimination itself.

Mondaq summarizes the decision.

Employee Who Refused Work In Unit Performing Abortions Loses Title VII Suit

In Montgomery v. Cook County, (ND IL, July 1, 2015), an Illinois federal district court dismissed a Title VII religious discrimination and retaliation lawsuit brought by a medical center employee who was fired after she refused an assignment change that would require her to spend half her time in the reproductive health unit of the Planned Parenthood facility at which she was employed.  She objected on religious grounds to work in the unit that performed abortions, and said she understood from the time she was hired that this concern would be respected. The court held that plaintiff had not alleged facts showing that she was fired "because of" her religious beliefs.  The court conceded that "even if an employer does not intentionally discriminate against an employee, an employer may still be liable under Title VII for failure to accommodate the religious needs of its employees." However here, according to the court:

[Plaintiff] failed to allege any facts regarding whether a request to accommodate [her] beliefs was made... and whether Defendants tried to accommodate [them].... Based on these allegations, I cannot reasonably infer that Defendants failed to try to accommodate Plaintiff's religious beliefs to keep her employed.

It thus dismissed the discrimination claim without prejudice.

The court also rejected Plaintiff's retaliation claim, holding: "Plaintiff has neither plead that she engaged in protected activity nor alleged a substantial link between any protected expression and her termination."

Decision Is Step Toward Success For Group Seeking To Erect Eruv In The Hamptons

In Suffolk County, New York, a Jewish group seeking to construct an eruv in parts of three towns in the Hamptons moved a step closer to succeeding when a state trial court judge ruled last week that the Town of Southampton Zoning Board of Appeals improperly invoked the local sign ordinance to prevent the construction.  New York Jewish Week reports:

Acting Suffolk County Supreme Court Justice Joseph Farneti ruled June 30 that the board was wrong when it affirmed a town inspector’s opinion that lechis are signs that fall within the town’s sign ordinance. Lechis are wooden or plastic strips affixed to telephone and utility poles to form the boundaries of an eruv, within which observant Jews may carry items on the Sabbath. The association had sought to put 28 of them on 15 poles.

Such a finding is “irrational and unreasonable in that it does not comport with the sign ordinance’s intent,” the judge wrote. “The Court finds that the boundaries are invisible as the lechis are not discernable. … Neither drivers nor casual observers would be able to differentiate the poles which have lechis attached from the other poles.”

Farneti added: “It is well-settled that, while religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for a religious use and every effort to accommodate the religious use must be made.”

The East End Eruv Association has been litigating in state and federal courts since 2011 in an attempt to get approval. (See prior posting.)

Negligent Supervision Claim Against Diocese By Sex-Abuse Victim Can Proceed

In John Doe 200 v. Diocese of Raleigh, (NC App., July 7, 2015), a North Carolina appellate court held that the ecclesiastical abstention doctrine does not require dismissal of a sex-abuse victim's negligent supervision claims against the Catholic Diocese of Raleigh. The court held:

Were we to adopt the Diocese Defendants’ argument ..., then the First Amendment would, as a practical matter, serve as a complete shield to tort liability for religious organizations in the sexual abuse context except in those cases in which the plaintiff specifically alleged prior sexual assaults by the cleric at issue. We do not believe the First Amendment requires such a result.... Neutral principles of law allow a civil court to adjudicate Plaintiff’s claim that the Diocese Defendants knew or should have known of the danger posed by Sepulveda [a priest] to Plaintiff because of his sexual attraction to minors.

The court however reached a different conclusion on plaintiff's claim that the Diocese should have required the offending priest to undergo STD testing and should have provided the results to plaintiff:

This claim seeks to impose liability based on the Diocese Defendants’ alleged failure to exercise their authority over a priest stemming from an oath of obedience taken by him pursuant to the church’s canon law. As such, this claim directly “challenges church actions involving religious doctrine and practice” and cannot be adjudicated without entangling a secular court in ecclesiastical matters. 

St. Paul-Minneapolis Archdiocese Victims Want Bankruptcy Court To Order Distribution of Video Urging Claimants To File

In the bankruptcy reorganization proceedings of the Catholic Archdiocese of St. Paul and Minneapolis, August 3 is the deadline for sex abuse victims to file claims.  Yesterday's Wall Street Journal reports that in a motion filed June 29 (full text), the Official Committee of Unsecured Creditors (representing victim claimants) presented the bankruptcy court with a seven-minute video urging victims to come forward before the deadline. The motion asks the court to order the Archdiocese to deliver written notice to each parish asking it to play the video after each Mass on the July 11-12 weekend, requesting each parish to post the video (or a link to it) on its website, and ordering the Archdiocese to post the video on its own website. The Archdiocese in its response to the motion (full text) says there has already been adequate notice and the video has already received extensive distribution by the media. The response (full text) of the committee representing individual parishes adds that "Parishes could view the
order and request as implicating First Amendment rights under the U.S. Constitution, " The bankruptcy court will hold a hearing on the motion today.

Cert. Filed In Religious Non-Profit Contraceptive Coverage Compromise

A petition for certiorari to the U.S. Supreme Court (full text) was filed yesterday in Houston Baptist University v. Burwell.  In the case, brought by three religiously affiliated colleges, the U.S. 5th Circuit Court of Appeals upheld the Obama administration's rules that allow religious non-profits to opt out of the Affordable Care Act's contraceptive coverage mandate by certifying their religious opposition and either notifying their insurer or plan administrator of their opposition, or furnishing the government with the name and contact information for their insurer or administrator. (See prior posting.) A Becket Fund press release announcing the filing of the petition says that three other petitions challenging the non-profit accommodation have already been filed with the Court.

Cannabis Church Sues Under Indiana's New RFRA

In a move foreshadowed two months ago (see prior posting), in Indiana the First Church of Cannabis has filed suit invoking the state's recently-enacted RFRA in an attempt to shield the Church, its founder and two of its members from prosecution for possession of marijuana.  The complaint (full text) in First Church of Cannabis, Inc. v. State of Indiana, (IN Cir. Ct., filed 7/8/2015), alleges that cannabis is the sacrament of the Church, and laws punishing possession of marijuana and visiting a place where marijuana is used substantially burden plaintiffs' exercise of religion. The Indianapolis Star reports that more than 100 people attended the Church's second service yesterday evening, but because of prosecution threats it is not using cannabis at its services until it is successful in its lawsuit. According to WTHR News, Marion County Prosecutor Terry Curry complained:

Our office and police agencies have serious public safety issues we have to address every single day. I am beyond frustrated that we are having to devote valuable time and resources to this matter solely because of an ill-advised and unnecessary law enacted by our legislature, The act serves no purpose, no purpose whatsoever, other than political posturing.

Oklahoma Governor Opposes 10 Commandments Holding

As previously reported, last week the Oklahoma Supreme Court held that a controversial Ten Commandments monument on the statehouse grounds violates the state constitution.  Yesterday, in response, Oklahoma Gov. Mary Fallin issued a statement (full text) resisting the holding. She said:

The Ten Commandments monument was built to recognize and honor the historical significance of the Commandments in our state’s and nation’s systems of laws. The monument was built and maintained with private dollars. It is virtually identical to a monument on the grounds of the Texas State Capitol which the United States Supreme Court ruled to be permissible.  It is a privately funded tribute to historical events, not a taxpayer funded endorsement of any religion, as some have alleged.

Nevertheless, last week the Oklahoma Supreme Court ruled Oklahoma’s Ten Commandments monument was impermissible. Their decision was deeply disturbing to many in our Legislature, many in the general public, and to me.

Oklahoma is a state where we respect the rule of law, and we will not ignore the state courts or their decisions. However, we are also a state with three co-equal branches of government. At this time, Attorney General Scott Pruitt, with my support, has filed a petition requesting a rehearing of the Ten Commandments case. Additionally, our Legislature has signaled its support for pursuing changes to our state Constitution that will make it clear the Ten Commandments monument is legally permissible. If legislative efforts are successful, the people of Oklahoma will get to vote on the issue. 

During this process, which will involve both legal appeals and potential legislative and constitutional changes, the Ten Commandments monument will remain on the Capitol grounds.

Kansas Governor Shields Clergy and Religious Social Service Groups That Object To Same-Sex Marriage

Yesterday Kansas Governor Sam Brownback issued Executive Order 15-05 (full text) protecting clergy, religious leaders and religious organizations that have moral objections to same-sex marriage from adverse action by the state. It prohibits the state government from taking any discriminatory action against any individual clergy or religious leader who declines on religious or moral grounds to perform, solemnize, or facilitate a same-sex marriage.  It similarly bars discriminatory action against any religious organization that refuses to provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration or recognition of any same-sex marriage.

Finally the Executive Order provides that the state may not take discriminatory action against a religious organization that provides social services or charitable services because the organization acts upon sincerely held religious belief or moral conviction that marriage is between one man and one woman. Discriminatory action includes denial of tax exemptions or benefits, denial of state grants or contracts, and denial of licensing or accreditation.

The governor issued a press release announcing the Executive Order. Washington Post reports on the governor's action. [Thanks to Scott Mange for the lead.]

NY Lawsuit Seeks To End Pre-Yom Kippur Practice of Kaparot

Monday's New York Daily News reported on a state court lawsuit filed by a group of Brooklyn residents against four rabbis, a number of Hasidic congregations and the city of New York seeking to stop the annual pre-Yom Kippur practice of Kaparot.  The ritual practice that involves the slaughter of chickens has become common in recent years in Hasidic neighborhoods in Crown Heights and Boro Park. A group called Alliance to End Chickens as Kaporos says the practice involves both animal cruelty and substantial public health risks.  Plaintiffs charge that New York authorities are not only not enforcing health and animal cruelty laws, but are abetting violations by blocking off streets and sidewalks so the ritual can take place. An affidavit filed by lawyers in the case says in part:

Ten years ago, Kaporos only occurred in several small alleys and a handful of synagogue parking lots. However, every year it has increased in size and scope. Today, Kaporos has become an overwhelming event that has spiraled out of control. .. (into) a carnival like atmosphere of bloody violence. Clearly this event is now motivated by money and profits, and not by religious redemption.

According to Courthouse News Service:

The complaint alleges that kaporos violates six sections of New York City health codes, four sections of New York state agricultural statutes, and various other laws and regulations. The 19-count complaint names New York City, the NYPD, and nearly 20 other religious leaders and congregations as defendants.

 Brooklyn Assemblyman Dov Hikind says that plaintiffs' depictions of the ritual are inaccurate.

Conscience Rights of Clerks and Judges Become An Issue After Supreme Court's Marriage Equality Ruling

In the wake of the U.S. Supreme Court's ruling on same-sex marriage, issues continue to arise regarding the right of state and county officials to refuse on personal religious grounds to issue licenses or perform weddings.

The Christian Science Monitor reports that in Hood County, Texas, County Clerk Katie Lang last week initially refused to issue a marriage license to Joe Stapleton and Jim Cato. On Monday the couple filed a federal lawsuit and less than two hours later Lang's office agreed to issue the couple a marriage license.  However the couple's lawyer says the lawsuit will proceed unless Lang agrees to issue licenses in the future to all couples, gay and straight.

According to the Toledo Blade, in Toledo, Ohio on Monday a same-sex couple who were issued a marriage license ran into delays when they went to the office of the judge on duty to perform marriages for that day.  Municipal Court Judge C. Allen McConnell's bailiff told them that McConnell does not do "these types of marriages." However, after a 45-minute wait, another judge, William M. Connelly, Jr., performed the ceremony for them.

In Kentucky, court clerk Casey Davis who objects on religious grounds to issuing marriage licenses to same-sex couples has come up with a creative suggestion. Davis wants state law amended so couples can obtain marriage licenses online.  AP reports that Davis has asked Gov. Steve Beshear to call a special session of the legislature to amend the law to allow the online procedure.  According to the Lexington Herald-Leader, Beshear for cost reasons has rejected the idea of a special legislative session on marriage issues, even though House Speaker Greg Stumbo favors it.

Milwaukee Archdiocese Seeks Supreme Court Review In Bankruptcy Decision

According to the Milwaukee Journal-Sentinel, yesterday a petition for certiorari was filed with the U.S. Supreme Court in Listecki v. Official Committee of Unsecured Creditors.  In the case, the U.S. 7th Circuit Court of Appeals ruled that $55 million held by the Archdiocese of Milwaukee in a perpetual care trust fund for maintaining Catholic cemeteries is potentially available in the Archdiocese's bankruptcy to satisfy claims of clergy sex abuse victims. (See prior posting.)

9th Circuit Hears Oral Arguments In Challenge To Big Mountain Jesus Statue

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments (video of full arguments) in Freedom From Religion Foundation v. Weber. In the case, a Montana federal district court rejected an Establishment Clause challenge to the U.S. Forest Service's renewal of  of a Special Use Permit issued to the Knights of Columbus to allow the organization to continue to maintain a statue of Jesus near a ski slope on Montana's Big Mountain. The trial court found that the statue has lost its religious connotation. (See prior posting.) AP reports on yesterday's arguments.

Suit Challenges County's Refusal To Allow Invocations By Theists or Humanists

The ACLU, Americans United and the Freedom From Religion Foundation filed suit in federal district court yesterday challenging Brevard County, Florida's policy of rejecting or ignoring requests by atheists and Humanists to deliver invocations at meetings of the Brevard County Board of Commissioners during the regular pre-meeting invocation period. Nontheists were allowed to make presentations only during the public comment period of the meeting. The complaint (full text) in Williamson v. Brevard County, (MD FL, filed 7/7/2015), contends that this policy violates the 1st and 14th Amendments as well as provisions of the Florida Constitution. It emphasizes that the County's policy is not the nondiscriminatory access envisioned by the Supreme Court in its Town of Greece decision permitting sectarian invocations. An ACLU press release announced the filing of the lawsuit, and  Florida Today reports on it.

James Dunn, Religious Liberty Advocate, Dies At 83

The Baptist Joint Committee for Religious Liberty announced that religious liberty advocate James M. Dunn, who led the organization for nearly 20 years, died on July 4 at age 83.  Religion News Service describes Dunn as "a religious liberty advocate who worked the corridors of Washington power for two decades to defend the separation of church and state."

In India, Rapper, Singer and YouTube Sued For Insulting Zoroastrianism

According to yesterday's Los Angeles Times, in India a Parsi civic organization has filed a public interest lawsuit against rapper Snoop Dogg, Iranian pop singer Amitis Moghaddam, YouTube and other defendants for insulting their Zoroastrian religion.  The suit, filed in a court in the city of Kolkata, seeks to have a musical video featuring the celebrities banned because of its use of a giant gold Faravahar, the winged disc that is a respected symbol of Zoroastrianism.  The three-and-a-half minute video for the song King shows Snoop Dog on a throne under the Farvahar smoking weed, and shows Moghaddam dressed as a Persian queen lying under the Farvahar being fanned by  two scantily clothed men.

Israel's Cabinet Strengthens Ultra-Orthodox Control of Religious Status Matters

Times of Israel reports that Israel's Cabinet on Sunday took two steps that place personal status matters of Israeli Jews more firmly under control of the ultra-Orthodox rabbinate.  First the Cabinet withdrew a measure that made its way through the Knesset's Law Committee last year that would have expanded from four to thirty the number of religious courts that could conduct conversions to Judaism.  The new courts made up of municipal rabbis would have loosened somewhat the tight restrictions on conversion presently in effect.  The second Cabinet vote placed rabbinical courts under the jurisdiction of the Ministry of Religious Services instead of the Justice Ministry which oversees Christian and Muslim religious courts.  The change places rabbinical courts-- with their authority over marriage and divorce-- under the authority of Religious Affairs Minister David Azoulay who belongs to the ultra-Orthodox Shas Party. These steps resulted from the coalition agreements negotiated between political parties after the most recent Knesset election. (See prior posting.)

Recent Articles and Books of Interest

From SSRN:

• Randall Lesaffer, The Nature and Sources of Europe's Classical Law of Nations,(June 25, 2015).
• Asim Jusic, Actionable Pluralism and Toleration in Religiously Diverse Societies: For Whom and for What?, (CEDAR Occasional Paper No.7, 2014).
• Matthew S. Erie, Muslim Mandarins in Chinese Courts: Dispute Resolution, Islamic Law, and the Secular State in Northwest China, (Law and Social Inquiry, Forthcoming).
• Dr. Harunrashid Kadri, Rights of Muslim Woman with Special Reference to Matrimonial Causes - A Human Rights Perspective, (Fiat Justicia, Volume No.: 3, April, 2015).
• Jennifer Carr, Complicity and Collection: Religious Freedom and Tax, (University of St. Thomas Law Journal, Vol. 11, No. 2, p. 183, Spring 2014).
• Robert D. Goldstein, The Structural Wall of Separation and the Erroneous Claim of Anti-Catholic Discrimination, (13 Cardozo Public Law, Policy & Ethics Journal 173 (2014)).
• Ronnie Lippens, Escape from Evil? Notes on Capacity, Tragedy, Coding and Non-Destructive Immortality Projects, (Oñati Socio-Legal Series, Vol. 5, No. 3, 2015).

From SSRN (Same-sex marriage):

• Michael J. Perry, Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment, (Emory Legal Studies Research Paper No. 15-356 (June 27, 2015)).
• Adam Lamparello, Justice Kennedy's Decision in Obergefell: A Sad Day for the Judiciary, (July 2, 2015).
• Susannah William Pollvogt,  Obergefell v. Hodges: Framing Fundamental Rights, (June 29, 2015).

New Books:

• Kevin Vallier, Liberal Politics and Public Faith--Beyond Separation,  (Routledge, June 2014), (podcast with author).
• Anthony M. Petro, After the Wrath of God-- AIDS, Sexuality, and American Religion, (Oxford Univ. Press, July 2015).
• Jean L. Cohen and Cécile Laborde (eds.), Religion, Secularism, and Constitutional Democracy, (Columbia University Press, Jam. 2016).

Court Dismisses Native American Challenge To San Antonio Revitalization Efforts

In Rocha v. City of San Antonio, (WD TX, July 2, 2015), a Texas federal district court rejected a vast variety of statutory and constitutional challenges to San Antonio's redevelopment efforts at several historical sites including the Hemisfair Historical Park, Alamo Plaza, the Alamo and La Villita.  Plaintiff, who claims to be a direct lineal descendant of the Yanaguana tribes, claims that the city is desecrating historical archaeological sites and Native American burial grounds.  Plaintiff's original complaint, dismissed by the court in this decision, alleged that the city was violating the U.S. Constitution, the Native American Graves Protection and Repatriation Act,  the Archaeological Resources Protection Act, the American Indian Religious Freedom Act, the Texas Parks and Wildlife Code, and San Antonio’s Unified Development Code.  The court also refused to permit plaintiff to amend his complaint to add free exercise claims, claims under eleven sections of the Texas Constitution, and under Title II of the federal Civil Rights Act.