Friday, December 11, 2015

Suit Against Church Claims Plaintiffs Were Defamed After They Opposed Hiring Openly Gay Pastor

The Fargo Forum in an initial and follow-up article reports on a lawsuit filed this week in Cass County, North Dakota state district court against a Kindred, North Dakota Lutheran church, church leaders and the church's parent bodies.  Plaintiffs Ray and Joan Grabanski who had been church members for 23 years seek damages for defamation and infliction of emotional distress. The Grabanskis opposed the church's hiring of an openly gay pastor. As recounted by the Forum:
The lawsuit says when the Grabanskis made their views known, they were subjected to "public ridicule, scorn, intimidation, isolation" by the church leadership, and were told the congregation was too liberal for them.
Joan Grabanski was asked to stop teaching Sunday school, and the couple was told they could leave or be forced out, with church leaders calling them "a cancer," the lawsuit alleges.
The lawsuit alleges the local synod of the ELCA was aware of the conflict and failed to stop the damaging behavior.
It names the ELCA and the Eastern North Dakota Synod of the ELCA, as well as the church's interim pastor and two other church leaders.
Defendants are seeking dismissal arguing that civil courts lack jurisdiction to adjudicate doctrinal beliefs or interpret a church's constitution. [Thanks to Christopher Dodson for the lead.]

Thursday, December 10, 2015

Obama Hosts Two White House Hanukkah Receptions

President Obama yesterday hosted two Hanukkah receptions at the White House-- one at 4 pm and the other at 7:30 pm.  Press coverage has focused on the first at which, as reported by the Times of Israel, visiting Israeli President President Reuven Rivlin lit the Hanukkah candles.  Last month the White House asked the public to suggest special menorahs that might be used at this year's receptions, and yesterday it posted the stories of the two that were chosen plus several runners up.  A 15-minute video of remarks by Obama and Rivlin, as well as by Rabbi Susan Talve, at the first reception has been posted by the White House on YouTube.

Bill In Israel's Knesset Encouraging Female Muslim Judges Draws Orthodox Jewish Opposition

While it is well known that Israel has a system of Jewish religious courts, it is sometimes overlooked that the country also has a system of religious courts for over a dozen other religious communities.  These religious courts deal with personal status family law matters of Israelis who are members of those religious groups. (Background.) Times of Israel reported yesterday on a bill proposed by three members of the Knesset (Israel's Parliament) that would require those appointing judges to Muslim religious courts to include at least one woman on the list of nominees and encourage in other ways election of women to Muslim courts. The bill has the backing of the important Ministerial Committee of Legislation.  However under the coalition agreement between the parties in Prime Minister Netanyahu's government, the ultra-Orthodox United Torah Judaism party has a veto over legislation on religion-state matters.  A party spokesman said it was planning to exercise the veto here because it fears the bill could set a precedent for Jewish religious judges which, under Orthodox Jewish law, are only male.

Alien Tort Suit Focuses On Sectarian Rivalry In Turkey

A suit seeking damages under the Alien Tort Statute was filed in a Pennsylvania federal district court this week against Muhammed Fethullah Gülen, a Turkish cleric who has lived in the United States since 1998. The complaint (full text) in Ates v. Gulen, (MD PA, filed 12/7/2015) was nominally brought by three individuals who are members of the Sunni Muslim Dogan Movement, an Anatolian offshoot of the rival Nur Movement.  However according to BuzzFeed News, the Turkish government is behind the lawsuit because Gulen is now an archrival of President Recep Tayyip Erdogan.

According to the complaint:
Over the course of the past two decades, Mr. Gülen has implemented a political strategy of encouraging his followers to secure official positions within the official Turkish state apparatus – notably in police, prosecutorial and judicial positions – through whom he is able to exercise a corrupt influence in Turkish society....
Defendant intentionally ordered the coordinated, systematic attack on members of the Doğan Movement because of that group’s religious beliefs and public criticism of Defendant. Defendant ordered his co-conspirators in Turkey to use their high level positions in Turkish law enforcement to identify members of the Doğan Movement, plant evidence, and target them for arrest and incarceration.
 The complaint also alleges:
Mr. Gülen has an international following estimated to approach 10 million people. He has developed a vast network of businesses and non-governmental organizations that supply him with financial support, and he is estimated to control at least $25 billion in assets. In the United States, Mr. Gülen controls dozens of business entities and more than 120 charter schools in various states, many of which are or have been under investigation by state and federal criminal and regulatory authorities.

City Will Sue Church Over Ownership of Land On Which Religious Welcome Sign Stands

In Hawkins, Texas, on a 50' x 45' parcel of land between two roads, visitors are greeted with a sign reading "Jesus welcomes you to Hawkins".  In June, the Freedom From Religion Foundation wrote the city objecting to the sign (see prior posting), and in September city council voted to remove it. Tuesday's Tyler Morning Telegraph recounts what happened next. Almost immediately after the vote, members of the Jesus Christ Open Altar Church cordoned off the site on which the welcome sign stands, and had members guarding the site at all hours of the day and night. The Church then purported to buy the land and sign from two funeral homes.  But the city attorney says that the funeral homes did not own the land, so that their deeds to the church conveyed nothing.  On Tuesday, City Council voted to sue the Church and the funeral homes to establish the city's ownership of the property, even though Hawkins' mayor disagrees with City Council's decision.

Suit Challenges North Carolina Law Allowing Officials To Opt Out of Same-Sex Marriage Duties

As previously reported, last June the North Carolina General Assembly overrode the governor's veto to pass to pass Senate Bill 2 that gives individual magistrates have the right to recuse themselves from performing marriages based on any sincerely held religious belief and gives individual register of deeds personnel the right to opt out of issuing marriage licenses on similar grounds. (See prior related posting.) Yesterday three couples filed suit in federal district court challenging the constitutionality of the new law.  One of the couples is already in a same-sex marriage; a second same-sex couple acting as plaintiffs are engaged to be married; and the third are a blind, heterosexual interracial couple who in 1976 had to sue in order to marry because two North Carolina magistrates refused to perform the ceremony on religious grounds.

The complaint (full text) in Ansley v. State of North Carolina, (WD NC, filed 12/9/2015) contends that Senate Bill 2 violates the Establishment Clause, the Equal Protection Clause, and the Due Process Clause.  WNCN News reports on the filing of the lawsuit.  Rev. Mark Creech of the Christian Action League called the lawsuit "an effort by gay activism to run people of faith completely out of the public sector."  On the other side, Rev. Jamine Beach-Ferrara of the Campaign for Southern Equality argued that the bill "distorts the true meaning of religious freedom."

Wednesday, December 09, 2015

Federal Court In Habeas Action Finds California Prosecutor's Use of Biblical References Prejudicial

In Roybal v. Davis, (SD CA, Dec. 2, 2015), a California federal district court granted penalty phase habeas corpus relief in a petition brought by a defendant who had been sentenced to death by a California state jury in the robbery and stabbing murder of a 65-year old woman.  The district court found that the California Supreme Court was "objectively unreasonable" in concluding that improper argument by the prosecutor during the penalty phase of the murder trial was harmless error and not prejudicial to the defendant. (People v. Roybal,  (1998)). At issue were Biblical references made by the prosecutor.  The district court, in a very lengthy opinion dealing with numerous other objections as well, said in part:
It is without question that the prosecutor improperly urged the jurors to impose a death sentence on Petitioner based on biblical law.... [T]he prosecutor did not stop with simply drawing parallels between state law and biblical law which, in itself, would have been misconduct. He went on to quote directly from the Bible, asserting that biblical text demanded a specific punishment for murder.... Such argument could only have been meant to urge the jurors to find justification for a death sentence in biblical text, authority well outside the penal code, and to subvert or frustrate their consideration of the proper sentencing factors under state law....
Here, the prosecutor's unambiguous, repeated, and carefully timed improper exhortations to the jury to apply biblical law diminished the jurors' sense of personal decision-making for the imposition of the death penalty. In so many words, the jury was informed that the Bible requires a murderer who kills with iron (i.e. knife) to himself be put to death. The prosecutor's improper argument presented an intolerable danger that the jury minimized its role as factfinder and encouraged jurors to vote for death because it was God's will, and not that the imposition of the death penalty complied with California and federal law.....
As discussed above, the California Supreme Court correctly found that the prosecutor's religious argument was misconduct and fell outside the bounds of both state and federal law, but unreasonably found that the comments were not prejudicial.
San Diego Union Tribune reports on the decision.

9th Circuit Hears Arguments In Suit Over FBI Infiltration of Mosques

Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in Fazaga v. FBI.  The class action lawsuit against the FBI and FBI agents alleges that the government wrongfully spied on mainstream mosques in Southern California and targeted Muslims for surveillance because of their religion. (ACLU case page.)  In the case, a California federal district court dismissed claims against the FBI because of the state secrets privilege, agreeing that national security would be endangered by disclosing targets in counter-terrorism investigations. The court, however, permitted claims under the Foreign Intelligence Surveillance Act against individual FBI agents and supervisors to proceed. (See prior posting.) Politico reports on yesterday's oral arguments, in which all the questions to counsel were asked by Judge Berzon.

Another County Clerk's Religious Response To Issuing Same-Sex Marriage Licenses

The latest kerfuffle over marriage equality has surfaced in Kiowa, Colorado where the Ebert County Clerk-- responsible for marriage licenses-- has hung a controversial poster above the desks where marriage licenses are issued. According to Denver7 News, the poster, made specifically in response to the legalization of same-sex marriage, shows a bride and groom along with a Biblical quotation (I Corinthians 7:2) reading "...each man should have his own wife and each woman her own husband."  County Clerk Dallas Schroeder explained in an e-mail to other county clerks:
My thought process is that they [same-sex couples] have to see the poster, and if they choose to violate God’s written Word, then that is on their head.

Muslim Student Sues Missouri Prof Over Alleged Bigoted Comments

Yesterday's Missourian reports on a lawsuit filed Nov. 30 against University of Missouri biology professor Michael Garcia by Fatma El-Walid, an observant Muslim student who was in one of Garcia's classes.  The suit, seeking $25,000 in damages, claims that the professor directed offensive and bigoted comments at the student during office hours, resulting in trauma that impacted her grades and the loss of a scholarship. According to the report:
The lawsuit alleges that ... Garcia asked El-Walid if her parents had waterboarded her "as a child in preparation for the future," wanted to know if her faith made her hate gay people and Jews, suggested she should pose as a suicide bomber and made sexually suggestive remarks, among other comments.
Garcia's lawyer says his client denies the charges.

Tuesday, December 08, 2015

Britain's Commission on Religion In Public Life Issues Final Report

The Commission on Religion and Belief in British Public Life-- created by the Woolf Institute in 2013-- released its final report yesterday. The Commission was chaired by a distinguished retired British judge, Baroness Elizabeth Butler-Sloss. The 104-page report titled Living With Difference-- Community, Diversity and the Common Good makes wide-ranging recommendations.  It identifies important religious changes in Britain over the past 50 years: an increase in the number of non-religious individuals; a general decline in Christian affiliation, belief and practice; and increased diversity of religious beliefs among those who profess a religion. The report sets out a broad vision:
The commission’s vision is of a society at ease with itself in which all individuals, groups and communities feel at home, and in whose flrishing all wish to take part. In such a society all:
• feel a positive part of an ongoing national story – what it means to be British is not fixed and final, for people in the past understood the concept differently from the way it is seen today and all must be able to participate in shaping its meaning for the future
• are treated with equal respect and concern by the law, the state and public authorities
• know that their culture, religion and beliefs are embraced as part of a continuing process of mutual enrichment, and that their contributions to the texture of the nation’s common life are valued
• are free to express and practise their beliefs, religious or otherwise, providing they do not constrict the rights and freedoms of others
• are confdent in helping to shape public policy
• feel challenged to respond to the many manifest ills in wider society.
The Guardian reports on some of the Commission's recommendations, focusing particularly on those affecting schools.

Santeria Priest Extradited To Massachusetts To Face Trial For Stealing Human Remains

According to CBS Connecticut, Amador Medina-- a 32 year old man who says he is a Santeria priest-- waived extradition back to Massachusetts in a Connecticut court hearing today.  Medina is accused of stealing five sets of human remains from a mausoleum in a cemetery in Worcester, Massachusetts, in order to use them in healing rituals.  As reported by the Canon Place Mercury, the skeletal remains date from the early 1900's.  Medina cooperated with police and showed them where the remains were in his Hartford apartment.  The Connecticut judge set Medina's bond at $300,000 and ordered mental health treatment for him.  Medina is unemployed and will not be able to post the bond.

Catholic Diocese of Duluth Files For Bankruptcy Reorganization

The Catholic Diocese of Duluth announced yesterday that it has filed on an emergency basis for bankruptcy protection in order to reorganize under Chapter 11.  The move comes after a jury last month found the Diocese liable for  $4.9 million in a clergy abuse case dating back to 1978. (See prior posting.) As reported by AP, the diocese faces five other sex abuse lawsuits that have already been filed, and has received notices of claims in 12 more.  Minnesota's 2013 Child Victims Act opened a statute of limitations window that closes next May for suit to be filed on old abuse claims. Plaintiff's attorney says that the bankruptcy stay delays attempts to force release of church documents on clergy sex abuse. A hearing on a motion to force release had been scheduled for December 17.  The Diocese's vicar general said that the filing safeguards the Diocese's limited assets, allows it to continue its day-to-day work, and ensures that all victims share justly in the resources available. This is the 15th U.S. diocese or religious order to file for bankruptcy reorganization.

Judge Rejects Challenge To Florida's School Voucher Program

According to AP, yesterday a Florida state trial court judge refused to grant a preliminary injunction against operation of the state's two main school voucher programs. State Circuit Judge George Reynolds held that plaintiffs lacked standing to challenge the program that provides private school tuition for children with disabilities.  He concluded that the other program that provides tuition assistance to low income families did not run afoul of state constitutional provisions, even though they allowed vouchers for attendance at religiously affiliated schools.  Another suit broadly challenging the adequacy of state funding for education however is still moving forward.

Virginia Jury Awards Muslim Cabbie $350,000 in Religiously Motivated Assault Case

Washington Post reports that a Fairfax County, Virginia civil jury yesterday awarded $100,000 in compensatory damages and $250,000 in punitive damages to a Muslim cab driver who was suffered a broken jaw in an assault by a passenger after the passenger engaged in a diatribe against the Muslim religion. The assault by Ed Dahlberg, a Fairfax County businessman, on cab driver Mohamed Salim was captured in part on video.  The jury found that Dahlberg's actions were motivated by animosity toward Salim's religion.

Monday, December 07, 2015

Donald Trump Calls For Ban on Muslims Entering United States

Acting in contradiction to the policy approach urged yesterday by President Obama (see prior posting), Republican front-runner Donald Trump this afternoon issued a statement (full text) calling for a complete ban on Muslims entering the United States.  The statement reads:
Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing "25% of those polled agreed that violence against Americans here in the United States is justified as a part of the global jihad" and 51% of those polled, "agreed that Muslims in America should have the choice of being governed according to Shariah." Shariah authorizes such atrocities as murder against non-believers who won't convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.
Mr. Trump stated, "Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to Make America Great Again."

European Court Upholds Hungary's Refusal To Award Damages To Dismissed Pastor

Last week in a Chamber Judgment, the European Court of Human Rights held by a 4-3 vote that there had not been a violation of the European Convention on Human Rights, Sec. 6(1), when Hungary refused to adjudicate a dispute between a pastor and his Hungarian Calvinist Church.  At issue were claims by a pastor who had been terminated by the Church for stating in a local newspaper that State subsidies had been paid unlawfully to a Calvinist boarding school.  In Nagy v. Hungary, (ECHR, Dec. 1, 2015), a majority of the court, with fragmented reasoning spanning two opinions, concluded that there had not been a denial of the right to a hearing in the civil courts, particularly when a claim could have been brought in ecclesiastical courts.  Three judges dissented, saying in part:
[I]t is more than doubtful that it would be possible at all to show that (and how) the settlement, by a State court, of the pecuniary dispute between the applicant and the Calvinist Church could pose a “real” and “substantial” risk to that church’s autonomy.
The Chamber Judgment may be appealed to the Grand Chamber. ADF issued a press release on the decision.

Focus On the U.S. Muslim Community In the Wake of the San Bernardino Shootings

Last night, just days after the San Bernardino killings, President Obama addressed the nation on issues of terrorism and keeping the country safe. (Full text of Oval Office speech). A portion of his remarks addressed the relationship of all Americans with the American Muslim community:
We cannot turn against one another by letting this fight be defined as a war between America and Islam. That, too, is what groups like ISIL want. ISIL does not speak for Islam. They are thugs and killers, part of a cult of death, and they account for a tiny fraction of more than a billion Muslims around the world — including millions of patriotic Muslim Americans who reject their hateful ideology. Moreover, the vast majority of terrorist victims around the world are Muslim. If we’re to succeed in defeating terrorism we must enlist Muslim communities as some of our strongest allies, rather than push them away through suspicion and hate.
That does not mean denying the fact that an extremist ideology has spread within some Muslim communities. This is a real problem that Muslims must confront, without excuse. Muslim leaders here and around the globe have to continue working with us to decisively and unequivocally reject the hateful ideology that groups like ISIL and al Qaeda promote; to speak out against not just acts of violence, but also those interpretations of Islam that are incompatible with the values of religious tolerance, mutual respect, and human dignity.
But just as it is the responsibility of Muslims around the world to root out misguided ideas that lead to radicalization, it is the responsibility of all Americans — of every faith — to reject discrimination. It is our responsibility to reject religious tests on who we admit into this country. It’s our responsibility to reject proposals that Muslim Americans should somehow be treated differently. Because when we travel down that road, we lose. That kind of divisiveness, that betrayal of our values plays into the hands of groups like ISIL. Muslim Americans are our friends and our neighbors, our co-workers, our sports heroes — and, yes, they are our men and women in uniform who are willing to die in defense of our country. We have to remember that.
The Muslim community is rethinking its responses to violence committed by Islamic radicals.  An AP article yesterday reports:
[S]ome in the Muslim community say a new game plan is needed. A younger generation is especially impatient with the condemnations of Islamic extremism from Muslim groups after every attack. They argue that the statements merely reinforce false notions that Muslims are collectively responsible for the violence
And a group of American Muslims last week launched the Muslim Reform Movement with a Declaration (full text) that rejects interpretations of Islam that call for violence, social injustice or politicized Islam.

Meanwhile, a Reuters poll released yesterday finds that 51% of Americans view Muslims living in the United States the same as any other community, while 14.6% are generally fearful of Muslims living in the U.S. However 34.7% say they are fearful of "a few groups and individuals" in the Muslim community.  Some 69% of Republicans surveyed and 48% of Democrats favor closing mosques suspected of having extremist ties.

Recent Articles of Interest and New Bibliography

From SSRN:
From SmartCILP:
Bibliography:
  • The 2015 Law and Religion Bibliography, a 35-page bibliography of books, articles and blogs published in 2015, has been distributed as part of the AALS Section on Law and Religion Dec. 2015 Newsletter.

Sunday, December 06, 2015

Hawaii Supreme Court Requires New Hearing For Proposed Telescope On Sacred Land

In Mauna Kea Anaina Hou v. Board of Land and Natural Resources, (HI Sup. Ct., Dec. 2, 2015), the Hawaii Supreme Court vacated on due process grounds a decision by the state's Board of Land and Natural Resources that allowed the University of Hawaii to construct a 30 meter telescope on land sacred to Native Hawaiians.  At issue was a "next generation" large telescope to be built on Mauna Kea, a dormant volcano on the island of Hawaii.  The court held that the Board acted improperly in approving the permit for the telescope, with construction merely delayed until a contested hearing on objections was held.  The majority held that the due process clause of the Hawaii constitution was violated when a contested hearing was not held prior to a decision on granting the permit. A concurring opinion by Justice Pollack, joined by Justice Wilson and joined in part by Justice McKenna, held that the Board's action violated other provisions of the state's constitution as well, including Ar. XII, Sec. 7 that protects cultural and religious rights of descendants of Native Hawaiians.  Christian Science Monitor reports on the decision.