Religion Clause

Friday, May 27, 2016

Survey of State Legislative Action On Religious Freedom and LGBT Rights

An AP article posted yesterday provides a useful state-by-state summary of legislative activity and executive orders this year in 35 states relating to religious freedom, including bills that specifically protect religious views relating to sexual orientation and gender identity. The summary also includes other bills dealing with LGBT rights. In a number of the states surveyed, proposed bills failed to pass.

New Jersey Court Invalidates Capital Grants To 2 Religious Colleges

In American Civil Liberties Union of New Jersey v. Hendricks, (NJ App., May 26. 2016), a New Jersey state appellate court held that grants to two religious colleges for capital improvements violate the provision in the New Jersey Constitution, Art. I, Sec. 3, that bars taxation "for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry...." The Department of Higher Education had awarded two grants totaling over $10 million to a Jewish school, Beth Medrash Govoha, and three grants totaling $645,323 to Princeton Theological Seminary. The court said that a 1978 New Jersey Supreme Court ruling interpreting Art. I, Sec. 8 compelled it to conclude that these grants of public funds were invalid. NJ.com reports on the decision.

Alabama Commission Hires Law Prof To Prosecute Charges Against Chief Justice

As previously reported, earlier this month the Alabama Judicial Inquiry Commission filed ethics charges against Alabama Supreme Court Chief Justice Roy Moore over his administrative order to all probate judges telling them that they had a duty under Alabama law to continue to refuse to issue marriage licenses to same-sex couples despite federal court orders to the contrary. Now, as reported by AL.com, the Judicial Inquiry Commission has hired John Carroll, professor and former dean of the Cumberland School of Law and former interim director of the Alabama Ethics Commission to prosecute the case against Moore. In a strongly worded press release yesterday, Moore's attorneys, Liberty Counsel, objected to Carroll because of his service 32 years ago as Legal Director of the Southern Poverty Law Center. SPLC includes Liberty Counsel on its list of Extremist Groups.

Appeals Court Upholds Saturday Murder Trial Despite Defendant's Religious Objection

In State v. Victor, 2016 La. App. LEXIS 1030 (LA App., May 26, 2016), a Louisiana state appeals court held that defendant's free exercise rights were not violated when the court refused to adjourn his second degree murder trial on Saturday, which defendant claimed was his Sabbath. Defendant was on trial for the murder of his 8-year old stepson who died after a severe beating that was allegedly administered as discipline for stealing ice cream. In upholding on compelling interest grounds the trial court's refusal to adjourn for Saturday, the appeals court said in part:

the record reflects that the trial judge carefully considered defendant's concerns as well as his delay in raising this issue, including his failure to object when the prospective jury was advised numerous times of the possibility that they would be required to work on Saturday, his lack of a specific religious affiliation or particular church membership, the unavailability of the State's key expert witness the following week, and "the justice system as a whole," in denying defendant's request not to hold trial on Saturday.

Ecclesiastical Abstention Doctrine Leads To Dismissal of Consumer Fraud Complaint Against Cemetery

In Mammon v. SCI Funeral Services of Florida, Inc., (FL App., May 25, 2016), a Florida appellate court invoked the ecclesiastical abstention doctrine to dismiss a consumer fraud complaint against a cemetery brought by a widow who claimed that the cemetery gave false assurances that her late husband would be buried in accordance with Jewish burial customs and traditions. A month after her husband was buried, the widow discovered that the cemetery allowed non-Jews to be buried in the same section of the cemetery, a practice which she alleged violated Jewish burial traditions. Defendants however cited theological debates among rabbis on whether there are exceptions to the ban. The court held that:

although the widow’s complaint is framed in counts alleging deceptive and fraudulent misrepresentations regarding “Jewish burial customs and traditions,” the disposition of those counts cannot be accomplished without first determining, as a matter of fact, what constitutes “Jewish burial customs and traditions.” *** That preliminary determination would violate the ecclesiastical abstention doctrine.

Thursday, May 26, 2016

8th Circuit Gives Christian Proselytizer At Irish Fair Limited Victory

In Miller v. City of St. Paul, (8th Cir., May 23, 2016), an evangelical Christian who wanted to proselytize at the 2014 Irish Fair of Minnesota won a partial victory. Police commander Patricia Englund told David Miller that he and his group who planned to carry a banner, hand out literature and preach were not welcome at the fairgrounds. The Court held that Miller has standing to pursue a claim for damages against Commander Englund, but could not pursue official capacity claims or injunctive relief. Courthouse News Service reports on the decision.

Memorial Day Display Triggers Controversy

A Memorial Day display intended to honor the 79 residents of Paulding County, Georgia who died in U.S. wars has become a center of controversy. At issue are 79 white, handmade crosses placed on public land along a state highway. As reported yesterday by Fox News:

[T]he crosses were abruptly taken down last Friday after someone called Hiram City Hall questioning whether the soldiers were all Christian.

The move sparked public outcry -- particularly on social media -- and, after a city council meeting Tuesday night, the crosses were put back in place Wednesday morning.

"It was never about religion -- it was just to honor them," [said] Hiram Mayor Teresa Philyaw...

Settlement of Lawsuit Clears Way For Construction of Tallest Cross In the U.S.

Christian Today reports that in Corpus Christie, Texas, construction will move ahead on a 210-foot high cross, to be built along a major highway on property owned by Abundant Life Fellowship Church. Apparently the cross will be the largest in the English-speaking world. Construction was at a standstill after atheist Patrick Greene had filed suit challenging the cross as a violation of Texas Constitution, Art I, Sec 6 that provides:

No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship.

In response to the lawsuit, the Church's pastor filed a motion for sanctions under Texas' anti-SLAPP law. In a court order approving a settlement agreement (full text) in Greene v. Milby, (TX Dist. Ct., May 23, 2016), the court found that Greene's lawsuit was vexatious and meritless. In the agreement both parties dropped all their claims, and Greene promised to not file additional vexatious litigation.

CAIR Launches Satirical Ad To Combat Islamophobia

The Council on American Islamic Relations yesterday announced the launch of a satirical social-media public relations campaign to combat Islamophobia. CAIR is distributing ISLAMOPHOBIN®, a mock-medicine (actually sugar-free gum) designed to "cure" Islamophobia. The colorful package says that the product cures such things as "blind intolerance." Among the package label warnings is this:

Those who already believe in religious diversity, tolerance and mutual understanding should not use this product. For those who hold bigoted stereotypes of Muslims and subscribe to Islamophobic conspiracy theories, use of this product may result in feelings of remorse and/or guilt.

11 States Sue Feds Over Transgender Rights

Nine states and officials from two others filed suit yesterday against the federal government, challenging various interpretations of the anti-discrimination provisions of Title VII and Title IX by the Obama Administration. Various guidance documents, the most recent or which was issued earlier this month (see prior posting), take the position that the ban on "sex" discrimination found in existing laws encompass a ban on discrimination against transgender individuals. The complaint (full text) in State of Texas v. Untied States, (ND TX, filed 5/25/2016), citing the Administrative Procedure Act and other constitutional and statutory provisions, alleges:

Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights. Defendants’ rewriting of Title VII and Title IX is wholly incompatible with Congressional text. Absent action in Congress, the States, or local communities, Defendants cannot foist these radical changes on the nation.

New York Times reports on the lawsuit.

Wednesday, May 25, 2016

Students Re-Insert Prayer At Graduation Ceremony

Christian Post reported yesterday that graduating high school students in East Liverpool, Ohio took matters into their own hands after the school board ended the 70-year old tradition of the choir singing the Lord's Prayer at commencement ceremonies. The class valedictorian Jonathan Montgomery invited all the graduates to stand and recite the prayer. They did so to a roar of applause from the audience in attendance. The school board's decision came after a complaint about prayer at graduation from the Freedom From Religion Foundation. School Board president Larry Walton said that the "decision [was] made because we don't have a lot of money and we'd rather hire teachers than pay lawyers." He added:

When I was first on this board I expressed a concern about us singing. The comment made was that "we know we are breaking the law, we will do it until we get caught." Well, ladies and gentlemen we got caught. … I'm sorry this happened, but it's a war we can't win.

College Tennis Player Sues For Religious Discrimination

The Washington Times reports on a religious discrimination lawsuit filed last week in Idaho federal district court by a former player on the Idaho State University tennis team. The suit also alleges negligence, infliction of emotional distress and other causes of action growing out of harassment of plaintiff Orin Duffin by his teammates and his coaches. The complaint (full text) in Duffin v. Idaho State University, (D ID, filed 5/20/2016) alleges that when the team learned that Duffin was a Mormon, his coaches began to harass him, in part through inappropriate questions about sexual practices and his religious beliefs. The harassment peaked after he told the team that he would be on his mission call in Taiwan the following school year. While the team was staying in Las Vegas, one of the coaches arranged a trip to a strip club, provided the team with alcoholic beverages, and sent two prostitutes to Duffin's room to tempt him. Duffin became the butt of jokes and comments after the Las Vegas trip.

Dispute Over Selection of New Pastor Dismissed Under Ecclesiastical Abstention Doctrine

In Mouton v. Christian Faith Missionary Baptist Church, (TX App., May 24, 2016), a Texas state appeals court dismissed on ecclesiastical abstention grounds a dispute between two groups in a church over who should be its new pastor. The court said in part:

Appellants contend that their claims arise solely from the church’s failure to abide by non-ecclesiastical terms of the church’s bylaws and, therefore, the trial court had jurisdiction to adjudicate the case under neutral principles of law. According to appellants, the questions they raise—including whether appellees complied with church bylaws in electing Wilson as pastor and whether appellees properly expelled appellants from church membership—are non-ecclesiastical because they are governed by non-ecclesiastical provisions in the church’s corporate documents. We conclude that the trial court correctly granted the plea to the jurisdiction because appellants’ claims are inextricably intertwined with inherently ecclesiastical issues

Tuesday, May 24, 2016

In Vietnam, Obama Calls For Increased Freedom of Religion Among Other Human Rights

President Obama today during his trip to Vietnam delivered an address to the people of Vietnam from the National Convention Center in Hanoi. His remarks (full text) included a call for improvement in the human rights situation in Vietnam, including freedom of religion. He said in part:

When there is freedom of expression and freedom of speech, and when people can share ideas and access the Internet and social media without restriction, that fuels the innovation economies need to thrive....

When there is freedom of religion, it not only allows people to fully express the love and compassion that are at the heart of all great religions, but it allows faith groups to serve their communities through schools and hospitals, and care for the poor and the vulnerable. And when there is freedom of assembly -- when citizens are free to organize in civil society -- then countries can better address challenges that government sometimes cannot solve by itself. So it is my view that upholding these rights is not a threat to stability, but actually reinforces stability and is the foundation of progress.

After all, it was a yearning for these rights that inspired people around the world, including Vietnam, to throw off colonialism. And I believe that upholding these rights is the fullest expression of the independence that so many cherish, including here, in a nation that proclaims itself to be “of the People, by the People and for the People.”

Court Issues TRO Against Ohio's Cutoff of Funding For Planned Parenthood

In Planned Parenthood of Greater Ohio v. Hodges, (SD OH, May 23, 2016), an Ohio federal district court issued a two-week temporary restraining order barring the Ohio Department of Health and the Hamilton County Public Health Commission from enforcing Ohio Rev. Code § 3701.034. That section requires the state department of health to ensure that funds it receives under six specific federal programs are not used to contract or affiliate with an entity that performs or promotes non-therapeutic abortions. The effect of the law is to cut off funding for Planned Parenthood to use for various women's health programs that do not involve abortion services in order to pressure Planned Parenthood to end performing or promoting abortions using other funding. The court concluded that it is likely plaintiffs will succeed in their claim that the statute imposes unconstitutional conditions on the receipt of federal funds:

Section 3701.034 allows ODH to leverage its control over government funds to prevent recipients of government funds from engaging in constitutionally protected speech and association, even if that speech is undertaken with private funds.

The court also found a likelihood of success on plaintiffs' claims that the law imposes an undue burden on a woman's right to have an abortion and denies equal protection. Cleveland Plain Dealer reports on the decision.

Bill Would Prohibit Excluding Aliens' Admission To U.S. On Religious Grounds

Apparently in reaction to presumptive Republican presidential nominee Donald Trump's proposals on Muslim immigration, on May 12 Rep. Donald Beyer introduced into Congress H.R. 5207, the Freedom of Religion Act of 2016 (full text). The bill, which now has 103 co-sponsors (all Democrats), would amend the Immigration and Nationality Act by adding a section that provides:

Notwithstanding any other provision of the immigration laws, an alien may not be denied admission to the United States because of the alien’s religion or lack of religious beliefs.

Monday, May 23, 2016

Supreme Court Denies Review In Two Cases of Interest

The U.S. Supreme Court today denied certiorari in two cases of interest (Order List):

Chabad-Lubavitch of Michigan v. Schuchman, (Docket No. 15-1005, cert. denied 5/23/2016). In the case, the Michigan Supreme Court found that the statute of limitations had run in a dispute between Chabad-Lubavitch of Michigan and a local Chabad organization over ownership of a Chabad center. (See prior posting.)

Sunrise Children's Services v. Glisson, (Docket No. 15-1021, cert. denied 5/23/2016). In the case decided below under the name Pedreira v. Sunrise Children's Services, Inc., the 6th Circuit essentially reopened a long-running Establishment Clause dispute over Kentucky state funding of treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization. (See prior posting.) The cert. petition (full text) focuses on standing questions.

Supreme Court Sends 2 More Contraceptive Mandate Cases Back To Circuit Courts

The U.S. Supreme Court today sent back to Courts of Appeal two more of the cases involving challenges by religious non-profits to the contraceptive coverage mandate accommodation. (5/23/16 Order List). The cases today in which the Court granted certiorari, vacated the judgement below and remanded in light of Zubik v. Burwell are Catholic Health Care System v. Burwell, (Docket No. 15-1100) remanded to the 2nd Circuit (see prior posting), and Michigan Catholic Conference v. Burwell, (Docket No. 15-1131) remanded to the 6th Circuit (see prior posting).

Tajikistan Voters Ban Religious Political Parties

Deutsche Welle reports that voters in Tajikistan yesterday overwhelmingly (94.5% in favor) approved a series of constitutional amendments. One of them bans all political parties based on religion. Last year the government labeled the opposition Islamic Renaissance Party of Tajikistan (IRPT) a terrorist group and a court shut it down. According to The Guardian, before then the IRPT had been viewed as moderate and was President Emomali Rakhmon's chief opposition. In another amendment approved by voters yesterday, 63-year-old President Rakhmon is now allowed to run for an unlimited number of terms. The lifting of the term limit ban applies only to him.