Religion Clause

Wednesday, August 12, 2015

Kansas Federal District Court Implements Obergefell Holding

Even though the U.S. Supreme Court decided in the Obergefell case that same-sex marriages must be recognized, lower courts still need to tie up loose to make the ruling effective nationwide. In Marie v. Mosier, (D. KA, Aug. 10, 2015), a Kansas federal district court issued a declaratory judgment that Kansas’ same-sex marriage laws (and related policies) violate the Constitution and thus are void. However in light of claims by Kansas officials that the state is voluntarily complying with the Obergefell holding, the court delayed issuing a permanent injunction to determine whether the issue is moot, saying:

In the Court’s view, the prudent course of action is to let defendants finish updating their policies and practices to conform to Obergefell’s new rule of constitutional law. The Court thus defers, for now, the portion of plaintiffs’ summary judgment motion seeking injunctive relief. Should subsequent events reveal that the Court’s hopefulness about Kansas officials’ pledge to comply with Obergefell is misplaced, plaintiffs may supplement their motion for summary judgment on their claims for injunctive relief...

SCOTUSblog discusses the opinion.

Canadian Court Says Aboriginal Religious Freedom Not Infringed By Approval of Ski Resort

In Ktunaxa Nation Council v. Minister of Forests, Lands and Natural Resource Operations, (BC Ct. App., Aug. 6, 2015), the Court of Appeal for the Canadian province of British Columbia held that the provincial government did not infringe the religious freedom of the aboriginal Ktunaxa Nation when it granted Glacier Resorts, Ltd. the right to build a year-round ski resort in the Jumbo Valley region of southeastern British Columbia’s Purcell Mountains. A number of accommodations in the plans were made to accommodate the Ktunaxa. However, according to the Ktunaxa:

the proposed resort lies at the heart of a sacred area of paramount spiritual importance within their claimed traditional territory, as it is the Grizzly Bear Spirit’s home. They claimed that if the development of the resort was permitted, the Spirit would leave, and they would no longer be able to receive physical or spiritual assistance and guidance from the Spirit, which would have a profound negative impact on their identity and culture.

The court held that Sec. 2(a) of the Canadian Charter of Rights and Freedoms that protects freedom of conscience and religion

does not apply to protect the vitality of religious communities where the vitality of the community is predicated on the assertion by a religious group that, to preserve the communal dimension of its religious beliefs, others are required to act or refrain from acting and behave in a manner consistent with a belief that they do not share.

The Townsman reports on the decision.

Challenge To A.A. Requirerment In Probationary Massage License Survives Motion To Dismiss

In Sundquist v. State of Nebraska, (D NE, Aug. 10, 2015), plaintiff Marvin Sundquist who held a probationary license to practice massage therapy in Nebraska challenged the constitutionality of a requirement that he attend Alcoholics Anonymous meetings in order to keep his probationary license. He claimed religious objections to AA which has substantial religious components in it. His licensing probation compliance monitor refused his proposed secular alternative. A Nebraska federal district court held:

In sum, the Court finds that Sundquist has alleged a plausible claim under the Establishment Clause, and that defendants Vierk and Schuldt are not entitled to qualified immunity. It remains to be seen, of course, whether Sundquist can actually prove his claim and prove that he suffered actual damages—but he should have the opportunity to do so.

Tuesday, August 11, 2015

Indian Court Bars Jain Practice of Santhara As Suicide

In India, the Rajasthan High Court, acting on a public interest petition, held that Santhara, a traditional Jain practice of starving oneself to death to attain salvation (background), is suicide under the Indian Penal Code. Thus Sec. 306 outlawing abeting of suicide and Section 309 outlawing attempted suicide apply. The court said in part:

The respondents failed to establish that Santhara is an essential religious practice without which the following of Jain religion is not permissible.

According to the Calcutta Telegraph, the activist who filed the suit says: "... Santhara is a way devised by the family to get rid of the economic burden of caring for its elderly." Jain organizations say they will appeal the decision.

Ohio Supreme Court Board Issues Advisory Opinion On Judges' Refusal To Perform Same-Sex Marriages

The Ohio Supreme Court's Board of Professional Conduct has issued an advisory opinion on Judicial Performance of Civil Marriages of Same-Sex Couples. In Opinion 2015-1 (Aug. 7, 2015), the Board concluded:

A judge who performs civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages, based upon his or her personal, moral, and religious beliefs, acts contrary to the judicial oath of office and Jud. Cond. R. 1.1, 1.2, 2.2, 2.3, 2.4, 2.11, and Prof. Cond. R. 8.4(g).

A judge who takes the position that he or she will discontinue performing all marriages, in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs, may be interpreted as manifesting an improper bias or prejudice toward a particular class. The judge’s decision also may raise reasonable questions about his or her impartiality in legal proceedings where sexual orientation is at issue and consequently would require disqualification under Jud. Cond. R. 2.11.

The Board refused to address questions regarding assignment or rotation of judges conducting marriages at a court.

Yesterday's Columbus Dispatch reported on the advisory opinion. The issue was highlighted in Ohio last month when Toledo Municipal Court Judge C. Allen McConnell's bailiff told a same-sex couple who had been issued a marriage license that McConnell does not do "these types of marriages." (See prior posting.)

Supreme Court Is Asked To Review New Jersey Reparative Therapy Ban

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Doe v. Governor of New Jersey. In the case, the 3rd Circuit Court of Appeals rejected a constitutional challenge to a New Jersey statute that bans "sexual orientation change efforts" counseling for minors. Liberty Counsel issued a press release announcing the filing of the petition for review.

Judge Orders Marriage and Writing Bible Verses As Conditions of Probation

KLTV News reported last week on the July sentencing hearing in Smith County, Texas of Josten Bundy for assaulting his girlfriend Elizabeth Jayne's former boyfriend. The two got into a fight when the former boyfriend said disrespectful things about Elizabeth. At the sentencing hearing, Judge Randall Rogers said he would grant probation instead of 15 days in jail if Bundy married Jayne within 30 days. The probation terms also included writing Bible verses and getting counseling. Yesterday Americans United released a letter (full text) that it sent to Judge Rogers arguing that the probation terms violate the Establishment Clause and the right to privacy.

UPDATE: The Freedom From Religion Foundation announced that on Aug. 13 it filed a formal complaint against Judge Rogers with the Texas State Commission on Judicial Conduct.

Marijuana Possession Conviction of Rastafarian Does Not Violate Free Exercise Clause

In State of New Jersey v. Forchion, (NJ App., Aug. 7, 2015), the New Jersey Superior Court Appellate Division in an appeal of a conviction for possessing marijuana rejected a claim by a Rastafarian that his First Amendment free exercise rights are infringed by criminalizing the possession of cannabis which is a sacrament used in his faith. The court held that the statute is neutral and generally applicable, and "the fact that marijuana may be medically prescribed for some New Jersey citizens does not create a secular exemption that triggers strict scrutiny analysis."

Monday, August 10, 2015

Article Explores Barriers To Abortion Rights For Jail Inmates

Truthout yesterday published a lengthy investigative article on the barriers sometimes thrown up by jails to prevent women inmates from obtaining abortions. The article begins:

Should sheriffs and other jail staff be allowed to decide whether a woman can obtain an abortion? When a woman is arrested and incarcerated, should her reproductive rights be stripped from her? Based on their actions against a woman in custody this past month, Rick Singleton, the sheriff of Lauderdale County Jail in Florence, Alabama, and district attorney Chris Connolly seem to think so. They may also have set a precedent for any other law enforcement seeking to prevent women from seeking abortions—throw up enough obstacles and she'll decide to carry the pregnancy to term.

Houston Pastors' Group Sues Mayor For Legal Fees and Damages In Fight Over Equal Rights Ordinance

Now that the Texas Supreme Court has ordered the city of Houston to place a referendum on the ballot that seeks to repeal Houston's Equal Rights Ordinance (HERO) (see prior posting), the Houston Area Pastors Council announced last week that it has filed a lawsuit in state court against Houston, Texas mayor Annise Parker to recover legal fees and damages it incurred in the litigation. Much of the opposition to HERO came from pastors who objected to its protection of transgender rights, and the mayor created particular controversy by initially subpoenaing the pastors' sermons and other documents relating to their support of the ordinance. (See prior posting.) Houston Chronicle and the Houston Memorial Examiner report on this latest lawsuit which accuses Mayor Parker with interfering with citizens' right to vote.

RLUIPA Lawsuit Challenges Denial of Permit To Christian School

According to the Livingston (MI) Daily, on Friday Livingston Christian Schools filed a RLUIPA lawsuit in federal district court against Genoa County, Michigan over Genoa Township's denial to it of a special use permit that would have allowed it to relocate to the Brighton Church of the Nazarene facilities. In turn, Light of the World Academy planned to move into the facility in Pickney that Livingston Christian would vacate. The township board voted 4-3 to deny the permit that had been recommended by the planning commission because of traffic concerns.

Sunday, August 09, 2015

IRS Seeks Nominees For Tax Exempt Advisory Committee

The Internal Revenue Service has issued a Notice And Request For Applicants Or Nominations for vacancies on the Advisory Committee on Tax Exempt and Government Entities. (Federal Register, Aug. 10, 2015). Applications or nominations must be received by Sept. 4.

Recent Prisoner Free Exercise Cases

In Williams v. Trueblood, 2015 U.S. Dist. LEXIS 100636 (WD AR, July 31, 2015), an Arkansas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 30546, Feb. 9, 2015) and dismissed the complaint of an inmate whose faith was black magic Voodoo that when Christian preachers from the community periodically visited the jail, they would conduct worship services and play recordings of Christian music in the prisoner pod, and his complaint that the chaplain refused to put books about death on the book cart.

In Hulbert v. Robinson, 2015 U.S. Dist. LEXIS 100700 (WD VA, July 31, 2015), a Virginia federal magistrate judge recommended dismissing a Wiccan inmate's complaint that the prison's single-vendor policy and ban on direct in-kind donations denied him access to items he needed for Wiccan rituals.

In Evans v. Muniz, 2015 U.S. Dist. LEXIS 101207 (ND CA, July 31, 2015), a California federal district court allowed a Muslim inmate to move ahead with his complaint that he was not provided with Halal food for a period of 16 months.

In Abdullah v. Cruzen, 2015 U.S. Dist. LEXIS 101191 and in Alim v. Cruzen, 2015 U.S. Dist. LEXIS 101205 (ND CA, July 31, 2015), a California federal district court allowed a Muslim inmate to move ahead with his claim that correctional officers had created an "underground rule" prohibiting SQSP Muslim prisoners from congregating in groups of more than four for daily prayers, and retaliated against him for filing a complaint about it.

In Al-Azim v. Everett, 2015 U.S. Dist. LEXIS 101292 (ED VA, Aug. 3, 2015), a Virginia federal district court permitted various of the inmate plaintiffs to move ahead with complaints regarding refusal to provide a diet consistent with Nation of Islam teachings, refusing sufficient time of NOI prayer and classes and refusal to allow plaintiffs to purchase CDs of weekly sermons by Louis Farrakhan.

In Lilly v. Texas Department of Criminal Justice, 2015 Tex. App. LEXIS 8142 (TX App., Aug. 4, 2015), a Texas state appeals court in a 2-1 decision affirmed the dismissal on statute of limitations grounds of a suit by an inmate who is a member of the House of Yahweh who was refused kosher meals.

In Quinn v. Management & Training Corp., 2015 U.S. Dist. LEXIS 101924 (SD MS, Aug. 4, 2015) a Mississippi federal district court reinstated an inmate's complaint that officers would not allow him to claim Voodoo as his religion on prison paperwork.

In Larios v. United States Gov't & His Religion, 2015 U.S. Dist. LEXIS 103205 (ED NY, Aug. 5, 2015), a New York federal district court dismissed with leave to amend an inmate's complaint that that his placement among the general prison population violated his rights under RFRA.

Oklahoma Supreme Court Denies Rehearing In 10 Commandments Case, With Lengthy Opinions

In an Order dated July 27, 2015, the Oklahoma Supreme Court by a 7-2 vote denied a rehearing in Prescott v. Oklahoma Capitol Preservation Commission, in which the court in June held that a Ten Commandments monument must be removed from the statehouse grounds. (See prior posting.) The Order denying a rehearing was accompanied by 4 separate concurring opinions and one dissenting opinion (full text), which are much lengthier than the original opinion.

Saturday, August 08, 2015

2nd Circuit Withdraws Earlier License Plate Opinion In Light of Supreme Court's Walker Decision

In May in Children First Foundation, Inc. v. Fiala (full text), the U.S. 2nd Circuit Court of Appeals upheld a decision by the New York Department of Motor Vehicles to refuse to issue custom license plates carrying the slogan "Choose Life." In reaching its conclusion the court held that custom license plates constitute private speech. Subsequently the U.S. Supreme Court in the Walker case held that specialty license plates are government speech. (See prior posting.) Now in Children First Foundation, Inc. v. Fiala, (2d Cir., Aug. 5, 2015), the 2nd Circuit granted a petition for rehearing, withdrew portions of its earlier opinion, vacated the district court's opinion and remanded the case to the district court for further proceedings n light of the Walker decision. New York Law Journal reports on the court's latest action.

2nd Circuit Upholds ACA Contraceptive Mandate Accommodation For Religious Non-Profits

Yesterday the U.S. 2nd Circuit Court of Appeals joined six other Circuits in upholding the Obama Administration’s accommodation for religious non-profits that object to the requirement under the Affordable Care Act to furnish their employees health insurance that includes contraceptive coverage. In Catholic Health Care System v. Burwell, (2d Cir., Aug. 7, 2015), the court rejected plaintiffs’ RFRA challenges, holding that it must apply an objective test in deciding whether a “substantial burden” has been place on plaintiffs’ religious exercise. It is not enough that plaintiffs sincerely believe that a substantial burden has been imposed. It is up to the court to determine the magnitude of the burden. The court said in part:

Plaintiffs ... argue that the objectively insubstantial burden of filing either the opt-out form or the letter to HHS is substantial because it renders them complicit in bringing about consequences forbidden by their religion, namely the provision of contraceptive coverage by the government and third parties. Although third parties ultimately bear the burden of providing contraceptive coverage, Plaintiffs contend that their participation is essential to this coverage…..

When third parties step in and provide contraceptive coverage after Plaintiffs opt out, they do so not because Plaintiffs have opted out, but rather because federal law requires or incentivizes them to provide such coverage. The accommodation functions not as a “trigger,” but rather as a means of identifying and exempting those employers with religious objections. Once Plaintiffs indicate their desire to have no involvement in the provision of contraceptive coverage, the government steps in and acts to ensure contraceptive coverage without any participation by Plaintiffs. Thus, Plaintiffs’ decision to opt out is not the cause of the ultimate 3 contraceptive coverage; rather this coverage happens in spite of them....

Plaintiffs may certainly object to this subsequent action by the government and third parties based on their sincere religious beliefs, and we reiterate that we do not doubt the sincerity or rationality of Plaintiffs’ beliefs. But just because Plaintiffs feel complicit in these third party actions does not mean that the regulations impose a “burden” on their religious practice, much less a burden that is “substantial” under RFRA. While a plaintiff’s “religious views may not accept [the] distinction between individual and governmental conduct,” the law does.

New York Times reports on the decision.

Friday, August 07, 2015

Do State RFRAs Apply To Eminent Domain Proceedings?

The Daily Signal this week reports on a lawsuit in Houston, Texas making innovative use of the state's Religious Freedom Restoration Act to challenge an eminent domain proceeding. The Houston Housing Authority is seeking to take two empty parcels of land belonging to the Latter Day Deliverance Revival Center as part of an urban renewal project. The church says it acquired the parcels as part of a future expansion plan for the church, and that it uses the land for ministry activities. The church filed suit arguing that the Housing Authority must meet the compelling interest/ least restrictive means tests of RFRA before it may take the property which the church refuses to sell. Applying RFRA standards would make its acquisition extremely difficult.

11th Circuit Upholds Alabama's Prison Grooming Rules Despite Supreme Court's Remand After Holt v. Hobbs Decision

After the U.S. Supreme Court earlier this year decided Holt v. Hobbs, concluding that RLUIPA invalidated the Arkansas prison system's grooming requirements as applied to a Muslim inmate seeking to grow a one-half inch beard, it remanded for further consideration an Alabama case in which Native American inmates challenged grooming requirements banning their long hair. (See prior posting.) Deciding the case on remand, in Knight v. Thompson, (11th Cir., Aug. 5, 2015), the U.S. 11th Circuit Court of Appeals held that despite Holt, the Alabama grooming requirements are valid. The 11th Circuit distinguished Holt:

While Holt sought to grow a ½-inch beard, such that the Department had to show how denying him a ½-inch beard actually furthered its compelling interests, the Plaintiffs here request a complete exemption of long, unshorn hair from the ADOC’s short-hair policy....

[T]he “detailed record developed” below distinguishes this case from Holt, where the lower courts gave “unquestioning deference” to prison officials’ conclusory and speculative assertions. As we stated in our previous opinion, the ADOC has “shown that Plaintiffs’ requested exemption poses actual security, discipline, hygiene, and safety risks” and neither we nor Plaintiffs can “point to a less restrictive alternative that accomplishes the ADOC’s compelling goals.”

The 11th Circuit reinstated its prior opinion in the case, with modifications in Section 3(b)(ii) of the opinion. (Full text of modified opinion.) AP reports on the decision.

Suit In Israeli Court Charges Administration of Temple Mount Violates Religious Discrimination Ban

Arutz Sheva and JNS reported yesterday on an interesting lawsuit filed this week in Israel in Jerusalem's District Court. Jewish activist and attorney Baruch Ben-Yosef has sued the Palestinian Authority, Jordan and the Islamic Movement group in Israel, essentially claiming that they are violating Israel's equivalent of a public accommodation law by limiting Jewish access to the Temple Mount.

The suit alleges violation of an Israeli law enacted in 2000 that prohibits operators of public sites from barring admission on the basis of religion, race, nationality, gender or political affiliation. The suit charges defendants with discriminatory practices against Jews on the Temple Mount. Jewish access is limited to certain times, and Jewish prayer on the Mount is banned. The suit charges that inciting of violence on the Temple Mount is aimed at decreasing Jewish visitors. The suit also challenges Jordan's claim of sovereignty over the Temple Mount in light of Israel's control over the site taken in the 1967 Six Day War. The Temple Mount is currently administered by the Islamic Waqf that is controlled by Jordan. However security is handled by Israeli police.