Suit Challenges Fayetteville, Arkansas Anti-Discrimination Ordinance

In Fayetteville, Arkansas, a group known as Protect Fayetteville filed suit yesterday challenging the city's Uniform Civil Rights Protection Ordinance 5781 which voters are casting ballots on in a referendum this month.  The Ordinance expands civil rights protections to include bans on discrimination on the basis of sexual orientation and gender identity, and creates a city Civil Rights Commission.  The Ordinance contains an exemption for churches, religious schools and daycare facilities, and religious organizations. Opponents, however, complain that there is no exemption for individual clergy. The Ordinance was enacted after voters repealed an earlier anti-discrimination law last year.  (See prior posting.) According to KFSM News, the lawsuit claims that the Ordinance violates Arkansas' recently enacted Intrastate Commerce Improvement Act that bars counties, municipalities and other political subdivisions from expanding civil rights protections beyond those found in state law. The lawsuit also claims the Ordinance violates freedom of religion and speech.

European Court Upholds Italy's Ban On Donation of IVF Embryos For Scientific Research

In Parrillo v. Italy, (ECHR, Aug. 27, 2015), the European Court of Human Rights in a Grand Chamber judgment held 16-1 that Italy did not violate the European Convention on Human Rights when it banned donating for scientific research unimplanted embryos created in carrying out in vitro fertilization. The Court's accompanying press release summarizes the majority opinion:

For the first time, the Court was called upon to rule on the question whether the “right to respect for private life” could encompass the right to make use of embryos obtained from IVF for the purposes of donating them to scientific research. The “family life” aspect of Article 8 was not in issue here, since Ms Parrillo had chosen not to go ahead with a pregnancy with the embryos in question.

The Court, noting that the embryos obtained through IVF contained the genetic material of the person in question and accordingly represented a constituent part of his or her identity, concluded that Ms Parrillo’s ability to exercise a choice regarding the fate of her embryos concerned an intimate aspect of her personal life and accordingly related to her right to self-determination. The Court also took into account the importance attached by the domestic legal system to the freedom of choice of parents regarding the fate of embryos not destined for implantation. It therefore concluded that Article 8 was applicable in this case.....

The Court concluded that Italy had not overstepped the wide margin of appreciation enjoyed by it in this case and that the ban in question had been “necessary in a democratic society”. In consequence, there had been no violation of Article 8.

Six separate partly or fully concurring and dissenting opinions were also filed. As reported by the Times of Malta, a partly dissenting opinion of 5 judges said in part:

 Unlike the majority, we do not consider that embryos can be reduced to constituent parts of anyone else’s identity—biological or otherwise. Whilst sharing the genetic make-up of its biological ‘parents’, an embryo is, at the same time, a separate and distinct entity albeit at the very earliest stages of human development.

Supreme Court Refuses To Stay Order Requiring Kentucky Clerk To Issue Same-Sex Marriage Licenses

The U.S. Supreme Court yesterday in Davis v. Miller denied an application (full text of order) to stay pending appeal a district court decision requiring a Kentucky count clerk to issue marriage licenses to same-sex couples.  The clerk, Kim Davis, has religious objections to same-sex marriage. The application made to Justice Kagan was referred by her to the full Court which denied the stay. New York Times reports on the Supreme Court's decision.

9th Circuit Rejects Challenge To Big Mountain Jesus Statue

In Freedom From Religion Foundation v. Weber, (9th Cir., Aug. 31, 2015), the U.S. 9th Circuit Court of Appeals in a fragmented decision upheld the district court's rejection of a challenge to the Jesus statue on Montana's Big Mountain.  Judge Owens' opinion concluded that the Forest Service's renewal of the special use permit allowing the statue to remain on federal land did not violate the Establishment Clause.  The decision to renew reflected primarily a secular purpose and did not constitute an endorsement of religion.  Judge Owens said in part:

besides the statue’s likeness, there is nothing in the display or setting to suggest a religious message.... the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures....

Judge Smith, concurring, said in part:

Given the assumption made by both the majority and the dissent—that the Forest Service’s action (the renewal of a special use permit) constituted government action that could violate the Establishment Clause—I agree with the majority..... However, I write separately, because the assumption is incorrect. The Forest Service’s renewal of a special use permit for an existing monument does not constitute government speech.

Judge Pregerson dissenting said in part:

First, despite arguments to the contrary, a twelve-foot tall statue of Jesus situated on government-leased land cannot realistically be looked upon as “predominantly secular in nature.”... Second ... I submit that a “reasonable observer would perceive” the statue situated on government land “as projecting a message of religious endorsement.”

The Helena Independent Record reports on the decision.

US and Saudis Furnish Hajj Travel Information To Americans

The Hajj will take place this year approximately from Sept. 21 - 26. The U.S. State Department has posted a Hajj Fact Sheet on its website.  It reviews health, travel and safety considerations for U.S. citizens planning a trip to Saudi Arabia for the event. The Saudi Arabian embassy in Washington, D.C. has also posted a webpage titled Hajj Requirements, focusing on visas, travel and guidelines.

Recent Articles of Interest

From SSRN:

• Frederick Mark Gedicks, Public, Private, Religious? Religious Freedom Restoration Acts in the U.S. States, (Quaderni Costituzionali, No. 3 (Bologna: Il Mulino, 2015 Forthcoming).
• Alagi Yorro Jallow, Freedom of Expression and Human Rights in Islamic Perspective, (August 15, 2015).
• Colin A. Devine, A Critique of the Secular Exceptions Approach to Religious Exemptions, (UCLA Law Review, Vol. 62, No. 1348, 2015).
• Tom Hickey, Judges as God's Philosophers: Re-Thinking 'Principle' in Constitutional Adjudication, (in L. Cahillane, J. Gallen and T. Hickey (eds), Judges, Politics and the Irish Constitution (Manchester University Press, 2016).
• Asifa Quraishi-Landes, The Sharia Problem with Sharia Legislation, (Ohio North University Law Review, Vol. 41, No. 545, 2015).
• Leonore Carpenter & David S. Cohen, A Union Unlike Any Other: Obergefell and the Doctrine of Marital Superiority, (August 28, 2015).
• Dorit Rubinstein Reiss, Vaccines, School Mandates, and California's Right to Education, (August 21, 2015).
• Jack B. Harrison, At Long Last Marriage, (American University Journal of Gender, Social Policy & the Law, Vol. 24, No. 1, 2015).

From SmartCILP:

• Christopher Ogolla, Public Health Implication of Religious Exemptions: A Balance Between Public Safety and Personal Choice, or Religion Gone Too Far?, 25 Health Matrix 257-307 (2015).

Recent Prisoner Free Exercise Cases

In Aziz v. Cruzen, 2015 U.S. Dist. LEXIS 111862 (ND CA, Aug. 21, 2015), a California federal district court permitted inmates to move ahead with their complaint that correctional officers would not allow Muslim inmates to pray in groups larger than four, despite a contrary ruling by the Religious Review Committee.

In Sioleski v. Sullivan, 2015 U.S. Dist. LEXIS 111827 (WD NY, Aug. 24, 2015), a New York federal district court denied an inmate's motion for reconsideration of his previously dismissed complaint that on one occasion officials harassed him about his Native American hairstyle and placed him in keeplock for an hour while they decided whether his hairstyle complied with Department of Corrections rules.

In Peters v. Clarke, 2015 U.S. Dist. LEXIS 113380, Charles v. Clarke, 2015 U.S. Dist. LEXIS 113378, Cascen v. Clarke, 2015 U.S. Dist. LEXIS 113379, and Blyden v. Clarke, 2015 U.S. Dist. LEXIS 113377, (WD VA, Aug. 26, 2015), a Virginia federal district court dismissed complaints by Rastafarian inmates who were housed in the Violators Housing Unit for violating grooming regulations that they was not allowed to participate in Rastafarian group religious services outside the VHU pod.  In Blyden the court dismissed the additional complaint that while Rastafarian services are now available in the VHU, they lack a spiritual leader or reading material.

In Salyers v. Blue, 2015 U.S. Dist. LEXIS 114243 (WD KY, Aug. 27, 2015), a Kentucky federal district court dismissed an Orthodox Christian inmate's complaint that while in isolation for protective custody, he was not allowed to participate in group religious functions with other inmates.

In Greybuffalo v. Wall, 2015 U.S. Dist. LEXIS 114381 (WD WI, Aug. 28, 2015), a Wisconsin federal district court dismissed without prejudice for failure to exhaust administrative remedies a Native American inmate's request to have religious feasts at the conclusion religious ceremonies.

In Bargo v. Kelley, 2015 U.S. Dist. LEXIS 114610 (ED AR, Aug. 28, 2015), an Arkansas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 114614, Aug. 5, 2015) and permitted an inmate who is a practitioner of the Hindu Kriya/Raja Yoga to move ahead with his claim for injunctive relief. He is seeking use of the barracks day room and chapel, and a Yoga mat, to practice Yoga.

Court Rejects Second Amended Complaint In RLUIPA Land Use Case

In Salman v. City of Phoenix, (D AZ, Aug. 27, 2015), an Arizona federal district court denied plaintiffs' motion for leave to file a Second Amended Complaint after dismissing plaintiffs' RLUIPA and state Free Exercise of Religion Act claims. At issue is the city's application of its building code to plaintiffs' use of their home for weekly Bible studies for 35 people. (See prior posting.) The court however gave plaintiffs two weeks to file another amended complaint curing prior pleading defects.

Tax Court Upholds Penalties Against Promoters of Evasionary "Corporation Sole" Tax Scheme

In Gardner v. Commissioner of Internal Revenue, (USTC, Aug. 26, 2015), the U.S. Tax Court upheld $47,000 in penalties assessed by the Internal Revenue Service against a husband and wife who marketed to more than 300 people a tax evasion scheme involving the creation of a purported religious entity -- a "corporation sole."  Defendants claimed that taxpayers could turn otherwise taxable income into tax free income by assigning it to the corporation sole they create and control. BNA Daily Report for Executives [subscription required] reports on the decision.

Securities Fraud Defendant Gets Bail Because of Religious Affiliations

A major defendant in a massive securities fraud and money laundering case has been granted bail by a Brooklyn federal judge in large part because of the defendant's religious ties and credentials. The Wall Street Journal and Bloomberg News report details.  Vitaly Korchevsky is both a former Morgan Stanley Vice President and for decades has been a Baptist pastor.  He is charged with making more than $17 million in profits in an elaborate international scheme in which hackers broke into the computers of financial news disseminators and stole some 150,000 press releases.  They then passed information from the still confidential press releases to traders in the United States and Ukraine who realized $100 million profit in total from them. Korchevsky was born in Kazakhstan, and lived while young in the former Soviet Union, where he was beaten for keeping Bibles.  He is a prominent figure in the Slavic Baptist Church in the U.S. and elsewhere and serves as chairman of an association of 28 churches. 80 to 90 of his supporters showed up at his bail hearing.  In granting release on $2 million bond, Judge Raymond Dearie cited  "the faith that hundreds of people have put in [Korchevsky]."

Illinois Milk Law Change Was Pushed By Orthodox Jewish Group

Earlier this month (Aug. 6), Illinois Governor Bruce Rauner signed into law (effective next January) Illinois S.B. 1228 (full text) amending the state's Grade A Pasteurized Milk and Milk Products Act.  The new law requires milk in the state to be labeled in accordance with the federal Model Grade "A" Pasteurized Milk Ordinance.  The major change this makes stems from the provision in the federal model ordinance stating: "The common name of the hooved mammal producing the milk shall precede the name of the milk or milk product when the product is or is made from other than cattle's milk."  It turns out, according to a JTA report this week, that the primary proponent of this change was the Chicago Rabbinical Council, an Orthodox rabbinical and kosher certification organization.  Under Illinois' prior law, products sold as milk could have contained non-kosher milk from pigs or camels without the consumer being aware of that fact.

Kentucky Clerk Seeks Supreme Court Stay of Order Requiring Her To Issue Same-Sex Marriage Licenses

Today, Kim Davis, the Rowan County, Kentucky court clerk who has been refusing to allow her office to issue marriage licenses because of her religious objections to same-sex marriage, filed with the U.S. Supreme Court an Emergency Application (full text) to stay the district court's order against her while she appeals to the 6th Circuit.  The application, filed with Justice Kagan who is Circuit Justice for the 6th Circuit, includes a 40-page memorandum of law supporting the request for a stay.  The 6th Circuit has already refused a stay pending appeal. (See prior posting.)  A Liberty Counsel press release reported on the filing.

Ten Commandments Monument At School Unconstitutional, But Claim For Injunction Is Moot

In Freedom From Religion Foundation, Inc. v. Connellsville Area School District, (WD PA, Aut. 28. 2015), a Pennsylvania federal district court held that a granite Ten Commandments monument that has stood outside a Pennsylvania junior high school since 1957 violates the Establishment Clause even though the monument, donated by the Fraternal Order of Eagles, is nearly identical to the one upheld by the U.S. Supreme Court in the Van Orden case.  However, the court said:

there are at least two factors that distinguish this case from Van Orden, such that it does not control the outcome. First, the monument in Van Orden was displayed “in a large park containing 17 monuments and 21 historical markers.”... Conversely, the monument in this case stands alone, prominently displayed outside one of the entrances to the school with a sidewalk just 14 feet away... There has been no effort on the part of the School District to impart “a broader moral and historical message” by displaying the monument alongside or nearby other secular monuments or displays.... Not only does the monument stand alone, but it stands alone “on the grounds of a public school, where,” as Justice Breyer explained, “given the impressionability of the young, government must exercise particular care in separating church and state.”... 

Nevertheless, the relief granted by the court was rather narrow.  Since the plaintiff no longer attends the Junior High School, her claims for injunctive and declaratory relief were denied as moot. Instead the court only granted nominal damages of $1, thus placing the school under no immediate direct order to remove the monument. Pittsburgh Post Gazette reports on the decision.

Suit Challenges Montana's Ban on Polygamy

According to MTN News, a federal court lawsuit was filed yesterday challenging Montana's  ban on polygamous marriages.  Nathan and Vicki Collier were legally married in 2000.  Nathan is now seeking a marriage license to legally marry Christine Parkinson who has also been living as his wife in a polygamous relationship.  The family has a total of eight children.  In July, the Yellowstone County clerk's office denied Nathan a marriage license and asked the county attorney's office for legal advice.  In a letter, the Deputy County Attorney said that the U.S. Supreme Court's same-sex marriage decision does not extend to protect polygamous marriages.  Nathan, Vicki and Christine all filed the lawsuit, representing themselves, arguing that their consensual plural family association is protected by the equal protection, free exercise,  and establishment  clause as well as by the 1st Amendment's protection of speech and association. Montana's bigamy statute imposes a fine of $500 and imprisonment up to 6 months on those convicted.

Suit Challenges Nevada's School Voucher Program

The ACLU yesterday filed suit in state court in Nevada challenging the state's broad school voucher program.  Under the program, parents of a child who has attended public school for 100 consecutive days may move the child to a private school (including a religious school) and have the state pay into an educational savings account for the student an amount equal to at least 90% of the statewide average basic support per pupil. (See prior posting.) The complaint (full text) in Duncan v. State of Nevada, (NV Dist. Ct., filed 8/27/2015), contends that private religious schools constitute the majority of private schools eligible to participate in the educational savings account program. It alleges that the program violates Art. XI, Sec. 10 of the Nevada constitution that prohibits public funds from being used for sectarian purposes, as well as Art. XI Sec. 2 that requires a uniform system of common schools in which no instruction of a sectarian character takes place. AP reports on the lawsuit.

Brief In Polygamy Appeal Garners Attention

In 2013 in Brown v. Buhman, a Utah federal district court  struck down much of Utah's statute which criminalizes polygamy.  The decision limits the statute's applicability to cases in which an individual has multiple marriage licences, concluding that the statute's broader ban on cohabiting while married to another person is unconstitutional. (See prior posting.) The state of Utah filed an appeal with the 10th Circuit in September 2014.  Yesterday, appellees filed their brief with the 10th Circuit. It is gaining particular attention (as in this Fox 13 piece) because of (1) the celebrity status of appellees -- the polygamous family that is the subject of the popular reality television series "The Sister Wives; (2) the high profile counsel who filed the brief-- law professor and frequent legal commentator Jonathan Turley; and (3) the Supreme Court's same-sex marriage decision which was handed down subsequent to the district court's ruling on the anti-polygamy statute.  Some opponents of same-sex marriage argued that its legalization would create a "slippery slope" toward other marital arrangements.  The Supreme Court's Obergefell decision is cited extensively in the brief, but appellees emphasize: "This case is about the criminalization, not recognition, of plural relationships."  The full brief may be read here.

Canadian Court Says Charter Does Not Protect Proselytizing In Primary School During School Hours

In Bonitto v. Halifax Regional School Board, (NS Ct. App., Aug. 26, 2015), the Nova Scotia (Canada) Court of Appeal rejected the claim by Sean Bonitto, a fundamentalist Christian parent of school children, that Secs. 2(a) and (b) of the Canadian Charter of Rights and Freedoms protect his right to hand out religious literature during school hours to elementary school students.  He sought to distribute his literature in a school in which 25% of the students were Muslim.  The court said in part:

Mr. Bonitto’s model envisages a theological midway with rivals beckoning nine year olds walking to their classrooms. The Minister, Board and school would have no control over the messages. That would contradict a basic premise of public schooling under the Education Act – i.e. on school premises during school hours, the inculcated message must pertain to the approved scholastic program.

Mr. Bonitto’s message is that non-Christians will burn in a sea of flames for eternity. The Board’s witnesses held the view that elementary students, especially non-Christians, hearing this on the steps would entertain an unsettling distraction from their classwork. The message would undermine the “orderly and safe learning environment” and the “positive and inclusive school climate” proclaimed by the preamble to the Education Act. That view makes good sense to me.

CBC News reports on the decision.

Hamptons Town Board Drops Opposition To Eruv

Since 2011, a Suffolk County, New York, Jewish organization known as the East End Eruv Association (EEEA) has been attempting to obtain approval to erect an eruv (a symbolic boundary) in three towns in the Hamptons. It has been opposed by a citizens group known as Jewish People Opposed to the Eruv. The clash between groups has spawned extensive state and federal litigation.  According to 27 East, on Tuesday EEEA moved significantly closer to success. The Southampton Town Board voted not to pursue an appeal of an adverse state trial court decision.  That decision held that the town's sign ordinance does not bar construction of the eruv. The town also will drop its federal lawsuit challenging the eruv on Establishment Clause grounds. The Town Board's decision will permit expansion of an eruv currently in  Westhampton Beach Village to also include the hamlets of Quiogue and Westhampton.

Court Upholds City's Decision To End Display of Christian Cross

On Tuesday, an Ottawa County, Michigan trial court judge dismissed a lawsuit seeking to force the city of Grand Haven to resume displaying a 48-foot Christian cross on Dewey Hill, a city-owned sand dune. Plaintiffs object to City Council's decision to turn the cross into a Coast Guard anchor. (See prior posting.) As reported by MLive, a group of seven residents sued the city alleging that the city's decision amounted to unconstitutional regulation of  speech in a traditional public forum and discriminated on the basis of religion. However the court held that the display is governmental speech and "the City has the right to determine what messages it sends through the use of its own governmental property." (See prior related posting.)

6th Circuit Refuses To Stay Injunction Against Recalcitrant Kentucky County Clerk

In Miller v. Davis, (6th Cir., Aug. 26, 2015), the U.S. 6th Circuit Court of Appeals refused to grant a stay pending appeal of a preliminary injunction (see prior posting) issued against a Rowan County, Kentucky, Clerk who has religious objections to issuing marriage licenses to same-sex couples.  The 6th Circuit explains:

As the County Clerk ..., Davis’s official duties include the issuance of marriage licenses. In response to the Supreme Court’s holding in Obergefell v. Hodges ..., Davis unilaterally decided that her office would no longer issue any marriage licenses. According to Davis, the issuance of licenses to same-sex marriage couples infringes on her rights under the United States and Kentucky Constitutions as well as the Kentucky Freedom Restoration Act.... The Rowan County Clerk’s office has since refused to issue marriage licenses to the plaintiffs, and this action ensued.

The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity. The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.....

USA Today reports on the decision. [Thanks to Tom Rutledge for the lead.]

UPDATE: On Thursday, Davis' office continued to refuse to issue a marriage license to a same-sex couple, arguing that the district court's stay remains in effect until Aug. 31.  The district court stayed its preliminary injunction until Aug. 31 or the 6th Circuit issued a ruling. On Thursday afternoon, the clerk's office was temporarily closed for "computer upgrades." Davis is considering filing an appeal with the U.S. Supreme Court. (CBS News).