Court Refuses To Reduce Sentence of Rabbi Convicted of Voyeurism

According to the Washington Post, a D.C Superior Court judge on Friday denied a motion to reduce the six-and-one-half year prison sentence of Barry Freundel, former rabbi of Washington, D.C.'s Kesher Israel Synagogue who plead guilty in May to 52 counts of voyeurism. Freundel's attorneys argued that he should have been sentenced only for one act of videotaping women preparing to use a mikveh, instead of 45 days for each of the 52 incidents. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Armin Steinbach, Burqas and Bans: The Wearing of Religious Symbols Under the European Convention of Human Rights, (Cambridge Journal of International and Comparative Law, Volume 4, Issue 1, 2015).
• Kenneth Einar Himma, Why Religious Freedom Does Not Warrant Protection by a Special Right, ( Kenneth Einar Himma, Miodrag Jovanović, and Bojan Spaic (eds.), Fundamental Rights: Justification and Interpretation (The Hague: Eleven International Publishing) 2015, Forthcoming).
• Sarah Barringer Gordon, The African Supplement: Religion, Race, and Corporate Law in Early National America, (William & Mary Quarterly, Vol. 72, No. 3, Pg. 385, 2015).
• Howard M. Wasserman, Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace, (Northwestern University Law Review Online, Vol. 110, p. 201, 2015).

From SmartCILP:

• J. Benjamin Hurlbut, Religion and Public Reason in the Politics of Biotechnology, 29 Notre Dame Journal of Law, Ethics & Public Policy 423-452 (2015).
• Symposium. The Scholarship and Teaching of Jack Sammons. Remarks by Timothy W. Floyd, Daisy Hurst Floyd, Harold S. Lewis, Jr. and Jack L. Sammons; articles by Gary J. Simson, Timothy W. Floyd, James Boyd White, Joseph Vining, Eugene Garver, Robert Audi, Richard Dawson, Linda H. Edwards, David T. Ritchie, Linda L. Berger, Mark L. Jones and Patrick Emery Longan. 66 Mercer Law Review 265-555 (2015).

IRS Commissioner Says No Non-Profit Revocations In His Term For Colleges That Oppose Gay Marriage

At a July 29 hearing conducted by the Senate Judiciary Committee's Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts (video and testimony at hearing), Sen. Mike Lee (R-UT) had a lengthy exchange with IRS Commissioner John Koskinen over whether the IRS would revoke the tax-exempt status of Christian colleges and universities that remain opposed to same-sex marriage.  According to the Christian Post, Koskinen pledged:

that he will commit to making sure that the IRS does not punish religious schools for not adopting policies to accommodate gay marriage — such as allowing married same-sex couples to live in married student housing — as long as he is in charge of the IRS..... However, Koskinen did leave the door wide open for tax-exempt statuses to be a problem for Christian schools in the future....

All we do is follow whatever the public policy is that is set by other organizations," Koskinen argued. "At this point other actions would have to take place before the IRS can consider issuing a regulation, which would give people notices to what we think the public policy was and then cases and exams would be conducted under that.

[Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Shaw v. Toole, 2015 U.S. Dist. LEXIS 97667 (SD GA, July 27, 2015), a Georgia federal magistrate judge recommended that a Muslim inmate's complaint that he was denied a vegan diet be dismissed without prejudice for failure to exhaust administrative remedies before filing suit. UPDATE: The magistrate's recommendation was adopted by the court at 2015 U.S. Dist. LEXIS 111856 (Aug. 24, 2015).

In Sokolsky v. California, 2015 U.S. Dist. LEXIS 97738 (ED CA, July 25, 2015), a California federal magistrate judge held that a Jewish civil detainee held as a sexually violent predator can proceed on his complaint against certain defendants regarding the lack of kosher food and religious discrimination if he files an amended complaint or notifies the court that he is willing to proceed on his cognizable claims. UPDATE: The court ordered the case to proceed on the cognizable claims at 2015 U.S. Dist. LEXIS 122292, Sept. 12, 2015.

In Pickering v. California Department of Corrections, 2015 U.S. Dist. LEXIS 99137 (ED CA, July 28, 2015), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that the Astru/Odinic religious group was not treated equally with other religious groups.

In Berry v. Hershberger, 2015 U.S. Dist. LEXIS 99327 (D MD, July 30, 2015), a Maryland federal district court dismissed a Muslim inmate's complaint that he was not permitted to participate in the Ramadan fast, and was denied access to religious articles, based on his status as a pretrial detainee.

In Washington v. Ohio Department of Rehabilitation & Corrections, 2015 Ohio Misc. LEXIS 79 (OH Ct. Cl., July 14, 2015), the Ohio Court of Claims held that it does not have jurisdiction over an inmate's complaint that he was denied halal/ kosher food.

In Williams v. Delaware, 2015 U.S. Dist. LEXIS 99927 (D DE, July 30, 2015), a Delaware federal district court dismissed plaintiff's complaint that while held for four days before posting bond-- a period during Ramadan-- he was not permitted to fast.

Russian Culture Ministry Takes Over Crimean Historic Religious Site

AP reports that Russia's President Vladimir Putin today placed an important archaeological site in the Crimea under control of the Russian Culture Ministry.  The site, the ancient city of Chersonesus, is near Sevastopol, the main port city in the Crimea which Russia annexed from Ukraine last year. Chersonesus is important as the place where the Kievan Rus ruler, Prince Vladimir, was baptized in 988 before bringing Christianity to the region.  Putin's move comes after the Governor of Sevastopol was widely criticized for his decision last month to appoint a Russian Orthodox priest as director of the Chersonesus museum.  The priest was seen as lacking the education and experience for the position, and Sevastopol's governor was mocked on Russian social media for his explanation that "religion has always dealt with science."

Report on Tax Implications of Same-Sex Marriage

On July 30, the Congressional Research Service issued a report titled The Federal Tax Treatment of Married Same-Sex Couples. The report details the various tax code provisions that will lead to tax differences between filing as two single taxpayers and filing as a married couple.  The report concluded that while for some same-sex couples, federal recognition of their marriage will lead to lower taxes, for other it will lead to taxes higher than if filing as two single individuals. Several studies have reached different estimates on the overall impact on tax revenues.

Sixth Cert. Petition On Contraceptive Coverage Accommodation For Religious Non-Profits Filed

Last week yet another petition for certiorari was filed with the U.S. Supreme Court in a case challenging the government's accommodation for religious non-profits who object to the Affordable Care Act's required contraceptive coverage.  This is the sixth certiorari petition raising the issue that has been filed. (Becket Fund's tabulation of cases.)  This petition (full text) was in Southern Nazarene University v. Burwell.  In the case, the 10th Circuit (in an opinion covering appeals in three cases) upheld the accommodation, finding that it does not substantially burden the non-profits' religious exercise. (See prior posting.) [Thanks to Marty Lederman via Religionlaw for the lead.]

Sympathetic Court Nevertheless Rejects Claim That Chimpanzees Are "Persons" Entitled To Habeas Relief

A New York state trial court judge yesterday in a 33-page opinion sympathetic to plaintiffs' claims nevertheless rejected attempts by animal rights activists to obtain a writ of habeas corpus on behalf of two chimpanzees used in scientific studies at State University of New York at Stony Brook.  In Nonhuman Rights Project, Inc. v. Stanley, (NY Cty. Sup. Ct., July 30, 2015), after dealing with a number of procedural and jurisdictional issues, the court moved to the central question in the case: "whether a chimpanzee is a legal person entitled to bring  writ of habeas corpus." The court pointed out that "'legal personhood' is not necessarily synonymous with being human..."  Courts use the legal fiction of personhood to treat corporations as persons. However the court decided it was bound by appellate precedent to reject the claim of personhood here. The opinion concluded:

The similarities between chimpanzees and humans inspire the empathy felt for a beloved pet.  Efforts to extend legal rights to chimpanzees are thus understandable; some day they may even succeed.  Courts, however, are slow to embrace change, and occasionally seem reluctant to engage in broader, more inclusive interpretations of law, if only to the modest extent of affording them greater consideration.  As Justice Kennedy aptly observed in Lawrence v. Texas, albeit in a different context, "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress."... The pace may now be accelerating. (See Obergefell v. Hodges....)

In a press release on the decision, the Nonhuman Rights Project said it will promptly appeal the decision to the Appellate Division.  New York Times reports on the decision.

Judge Acquits Hasidic Rabbi Accused of Sexually Molesting A Boy

In Rockland County, New York yesterday, a state trial court judge, after a bench trial, found Hasidic Rabbi Moshe Taubenfeld not guilty on charges of sexually abusing a minor from 2001 to 2006.  The Lower Hudson Journal News reports that the young man accusing Taubenfeld said that the abuse began when he was 8 years old and contnued until he moved out of the village of New Square at age 13,  The judge said there was reasonable doubt after hearing the evidence in the multi-week trial. But supporters of the boy charge that Judge Rolf Thorsen's decision was political because he owes his recent election to the judiciary to the New Square Hasidic community.  The defendant, father of 20, is well respected tutor and marriage counselor in the New Square community; his wife and a young daughter were killed in a terrorist attack on a bus in Israel.

Inspector General Issues Report On Protection of Conscience Rights In the Military

Last week (July 22), the U.S. Department of Defense Inspector General issued a report on Rights of Conscience Protections for Armed Forces Service Members and Their Chaplains.  The 2014 Defense Authorization Act called for the report, which was to focus on the extent to which the Armed Forces are complying with regulations designed to protect the conscience, moral principles and religious beliefs of members of the military and military chaplains.  In a posting earlier this week, God and Country Blog is critical of the report for looking too narrowly at issues regarding negative consequences short of formal reprimands flowing from religious expression.

Religious Order Sued By Two Victims For Sex Abuse From 35 Years Ago

As reported in a press release on Tuesday from Jeff Anderson & Associates, two new clergy abuse lawsuits were filed this week in state court in Minnesota:

Civil lawsuits were filed today by two men who were sexually abused as minors by clergy at Crosier Seminary in Onamia, Minn. Doe 51 and Doe 56 were molested by multiple priests and brothers of the Canons Regular of the Order of the Holy Cross (“Crosier”) religious order. Several of the clergy named in the complaints also interacted with and sexually abused children throughout Minnesota, including at parishes and schools in the Archdiocese of St. Paul and Minneapolis, and the Diocese of St. Cloud.

Doe 51 was sexually abused from approximately 1979-81 by Father Gerald Funcheon, Brother Gabriel Guerrero and Brother Roman Fleischhacker, when Doe 51 was approximately 15-17 years old. Doe 56 was sexually abused in approximately 1979-80 by Funcheon, Brother Wendell Mohs and Father Roger Vaughn, when Doe 56 was approximately 14-15 years old. The perpetrators were assigned to Crosier Seminary at the time they abused Doe 51 and Doe 56, who attended the seminary.

The complaint (full text) in Doe 56 v. Canons Regular of the Order of the Holy Cross and (full text) in Doe 51 v. Canons Regular of the Order of the Holy Cross, (MN Dist. Ct., filed 7/28/2015) charge defendant religious order with negligence, negligent supervision and negligent retention of the offending clergy. The Minnesota Child Victim Act enacted in 2013 extended the statute of limitations in child sex abuse cases, including creating a retroactive 3-year window for victims whose claims were previously barred.

Pennsylvania Court Retroactively Validates Same-Sex Marriage After Death of One Spouse

In what is apparently the first case of its kind, on Wednesday a Bucks County, Pennsylvania trial court retroactively validated a same-sex common law marriage.  As reported by the Doylestown Intelligencer, the decision allows the widowed Dr. Sabrina Maurer to recover spousal survivor benefits under two separate insurance policies, and allows her an inheritance tax refund.  Maurer and Dr. Kimberly Underwood were married in a 2001 Episcopal religious ceremony, even though same-sex marriages were not then recognized in Pennsylvania.  However common law marriages were recognized if they took place before 2005. Underwood died in 2013.  Same-sex marriages became legal in Pennsylvania in 2014.

Consent Decree Bars Religious Activities By Colorado School District

Denver 7 News reports that a consent decree (full text) was filed this week in Basevitz v. Fremont RE-2 School District, (D CO, July 28, 2015).  The lawsuit, filed in May by a high school teacher in the district, claimed that Florence, Colorado High School extensively promotes evangelical Christian activities through arrangements with a church, The Cowboy Church at Crossroads. (See prior posting.)  Under the settlement, school district employees may not in their official capacities engage in religious activities with students; and the district will ban all school-sponsored prayers or other religious expression before school-related captive audiences. Also the school district will ban school sponsorship of religious groups and religious activities, distribution of religious literature by district employees, and school-sponsored prayer request boxes.

CAIR Files Suit Against Gun Store That Declared Itself a "Muslim-Free Zone"

CAIR Florida announced yesterday that it has filed suit in federal district court against a Florida gun store that earlier this month declared itself a "Muslim-free zone." The complaint (full text) in CAIR Florida, Inc. v. Teotwawki Investments, LLC (SD FL, filed 7/29/2015), alleges that the store, Florida Gun Supply, is a place of entertainment and of exhibition and is thus covered by the public accommodation provisions of the 1964 Civil Rights Act.  42 U.S.C. § 2000a bars discrimination on the basis of race, color, religion or national origin in places of public accommodation. According to USA Today, the gun store's attorney says that no Muslim is being discriminated against because of religion, and if anyone is being turned away it is because of public safety.

Meanwhile, as reported by ABC News, on Tuesday an honorably discharged Desert Storm veteran who later became a Muslim traveled from California to Florida to test the gun store's policy by signing up for one of its gun training classes. However he was told by ATF agents that the gun store was closed for the day.

ABA Opens Nominations In This Year's Blawg 100 Competition

The ABA Journal yesterday opened nominations for this year's Blawg 100-- its annual listing of the best legal blogs.  Last year Religion Clause was added by the ABA to the Blawg 100 Hall of Fame and so is not eligible for nomination.  However there are many great legal blogs out there-- so take a minute and go to the ABA's Blawg 100 Amici page to make the case for your favorite.  The winners will appreciate this recognition of the time and energy they devote to keeping you informed.

NY May Require Charities To File Information on Major Donors

In Citizens United v. Schneiderman, (SD NY, July 27, 2015), a New York federal district court held that the New York Attorney General can constitutionally require registered charities to file a copy of their federal Form 990, Schedule B disclosing the names, addresses, and contributions of their major donors in order to solicit funds in the state. According to the court:

On this record, the Court is satisfied that the Schedule B policy bears a substantial relation to the important governmental interests of enforcing charitable solicitation laws and protecting New York residents from illegitimate charities.... In light of the important governmental interests that the Schedule B policy serves, the Court cannot find on this record that it places unjustified burdens on charities' rights of speech and association.

The court also rejected prior restraint and due process arguments. Reuters reports on the decision.  In May, the 9th Circuit reached a similar result. (See prior posting.)

Ten Commandments Challenge Dismissed On Standing Grounds

In Freedom From Religion Foundation, Inc. v. New Kensington-Arnold School District, (WD PA, July 27, 2015), a Pennsylvania federal district court dismissed a challenge to a 6-foot tall Ten Commandments monument on the lawn of a Pennsylvania high school, finding that plaintiffs lacked standing because they have not been injured by the presence of the monument.  They had only a few contacts with it, and there is no evidence that in the future they will be required to visit the high school as part of their ordinary routines. TribLive reports on the decision.  Freedom From Religion Foundation in its press release on the case points out that a companion challenge to a similar monument in Pennsylvania's Connellsville Area School District is still ongoing.

Wheaton College Ends Student Health Insurance In Response To Contraceptive Coverage Rules

Chicago Tribune reported yesterday that Wheaton College has made a last-minute decision to stop offering its students health insurance policies in order to protect its position in ongoing litigation. The College is in the midst of a high-profile challenge to the Obama Administration's rules accommodating non-profits that object to providing insurance coverage for contraceptive services.  Earlier this month, the 7th Circuit denied the college a preliminary injunction (see prior posting). Central to Wheaton's challenge is its argument that the accommodation which allows it to opt out of furnishing coverage directly still requires it to furnish information that triggers the objectionable coverage then being furnished by the insurer to its plan beneficiaries.  Wheaton has now posted a page on its website linking to a nearly hour-long video giving students who had expected to enroll in the student plan information on obtaining health insurance from other sources and announcing financial assistance for students who find their insurance costs increased.

British Judge Says Coroner Must Try To Accommodate Religious Objection To Invasive Autopsy

In Britain yesterday, a High Court judge ruled that a coroner acted improperly in rejecting a request by a Jewish family that a non-invasive alternative to an autopsy (such as a CT scan) be used in determining the cause of death of an 86-year old woman who died in a London hospital shortly after she was admitted.  According to the Jewish Chronicle:

[Justice Mitting] said a non-invasive procedure should be considered when the family requested it on religious grounds if there were a “reasonable possibility” that it could establish the cause of death; if there were “no good reason” to order an invasive autopsy; and if it would not impair the findings of an invasive autopsy should that subsequently prove necessary.

The non-invasive procedure should also be done “without imposing an additional cost burden on the coroner,” the judge said.

The ruling will impact both Jewish and Muslim families.

In India, Sikh Group Plans Suit Against Educational Board Over Dress Code For Test

In India, a Sikh organization (the Shiromani Gurdwara Parbandhak Committee) is planning to file suit against the Central Board of Secondary Education challenging the strict dress code it imposed on those taking the All India Pre-Medical Entrance Test.  As reported yesterday by Sikh24, the dress code was drawn up after India's Supreme Court ordered the test re-administered because some students allegedly used electronic devices to cheat on the original exam. In some test centers, Sikh students were required to remove certain of the five sacred symbols ( Panj Kakaars ) that Sikhs are required to wear. Apparently authorities were concerned that items such as the krirpan  or the kara could conceal electronic devices.