Religion Clause: August 2015

Monday, August 31, 2015

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.

Sunday, August 30, 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.

Saturday, August 29, 2015

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.

Friday, August 28, 2015

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.

Thursday, August 27, 2015

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).

Wednesday, August 26, 2015

No Establishment Clause Problem In Indictment of Halal Meat Exporter For False Statements

In United States v. Aossey, (ND IA, Aug. 25, 2015), an Iowa federal district court rejected Establishment Clause and Free Exercise challenges to a 92-count indictment against various affiliated companies and individuals charging them with making false statements on export certificates and on a website regarding Halal-slaughter of meat being exported. The court said in part:

[N]either the court nor the jury will be required to decide what Halal means. The government is not claiming merely that Defendants represented that they were selling Halal products that were not in fact Halal.... Rather, the government is alleging that Defendants made specific, false representations, including: (1) Defendants did not use penetrative captive bolt stunning; (2) all of Defendants’ beef products were hand-slaughtered; (3) a practicing Muslim recited a specific prayer while slaughtering; (4) Defendants did not sell leftover hindquarters from Kosher slaughters as Halal; (5) Defendants’ meat products complied with the laws and requirements of Malaysia, Indonesia, Kuwait and the United Arab Emirates; and (6) the animals slaughtered were vegetarian fed. The government believes that Defendants made these allegedly false representations to convince their customers that their meat products were Halal.

(See prior related posting.)

2nd Circuit Affirms Dismissal of Class Action By Sikh Victims of 1984 Riots In India

In Sikhs for Justice, Inc. v. Gandhi, (2d Cir., Aug. 25, 2015), the U.S. 2nd Circuit Court of Appeals affirmed the district court's dismissal of a putative class action on behalf of victims of 1984 anti-Sikh riots in India brought against Sonia Gandhi, president of India's ruling political party. Claims under the Alien Tort Statute were dismissed because all relevant conduct took place outside the United States. Torture Victim Protection Act claims were dismissed on standing grounds. The court added:

Moreover, plaintiffs failed to plausibly allege that defendant is liable for the anti-Sikh riots. At best, the amended complaint alleges that certain attacks were carried out on defendant’s “orders,” and that defendant was present at one of several meetings at which the riots were planned.

Burma's Parliament Passes Controversial Religious Conversion and Monogamy Laws

According to Human Rights Watch, on Aug. 21 Burma's joint parliament passed two bills that violate human rights and threaten to entrench religious discrimination. The Religious Conversion Bill will require anyone wishing to change religion to be over 18, and then to file an application with a local Religious Conversion Scrutinization and Registration Board. It is feared that many local boards will be dominated by ethnic Buddhists who will be biased against conversion to other faiths. The second bill, the Monogamy Bill, is seen as targeting religious minorities that practice polygamy. These two laws, along with the Population Control Law which became law in May, and the Interfaith Marriage Law, passed in July but not yet signed into law, were promoted by the Association for Protection of Race and Religion ("Ma Ba Tha"), an organization of Buddhist monks with an anti-Muslim and ultra-nationalist agenda. Human Rights Watch urges Burma's President Thein Sein to refuse to sign the two newly-passed bills.

The U.S. Commission on International Religious Freedom also issued a statement this week condemning Burma's Religious Conversion Bill.

EEOC Sues National Federation of the Blind For Refusing To Accommodate Employee's Sabbath Observance

The EEOC announced last week that it has filed suit in a Maryland federal district court against the National Federation of the Blind for religious discrimination. The EEOC summarizes the charges:

Joseph R. Massey II is a practicing Hebrew Pentecostal, a Christian denomination, and abstains from working from sunset Friday to sunset Saturday based on his sincerely-held religious beliefs. The National Federation of the Blind hired Massey for a bookkeeping position at its Baltimore office in November 2013. In January 2014, the Federation told Massey he had to work certain Saturdays. Massey explained he could not work Saturdays due to his religious faith and suggested alternatives such as working on Sundays or working late on week nights other than Fridays. EEOC charged that the Federation refused to provide any reasonable accommodation and instead fired Massey because he could not work Saturdays due to his religious beliefs.

Malaysian Federal Court Upholds Death Sentence of Gardener Who Killed Doctor For Insulting Islam

Yesterday a 5-judge panel of Malaysia's Federal Court upheld the death sentence that had been imposed on a Pakistani Muslim gardener who in 2011 beheaded a doctor for whom he was working. The murder stemmed from a conversation between the two men in which the doctor had insulted the Kaabah, the building at the center of Islam's most sacred mosque. The New Straits Times reports on the decision.

Tuesday, August 25, 2015

Bankruptcy Code's Automatic Stay Applies To Proceedings In Jewish Religious Court

In In re Congregation Birchos Yosef, (SD NY Bkrptcy, Aug. 24, 2015), a New York federal bankruptcy court held that the statutory automatic stay of proceedings against a debtor that is triggered by the filing of a petition in a bankruptcy reorganization applies to invalidate proceedings against a debtor and its principals in a Jewish religious court (beis din). In the case, a religious organization in Monsey, New York that had filed for bankruptcy reorganization, as part of the bankruptcy proceedings, instituted suit against a Jewish school, Bais Chinuch L'Bonois, asserting claims for fraud, breach of fiduciary duty and looting of the Debtor’s assets. In response, Bais Chinuch invoked a beis din which issued a hazmana or summons to individuals controlling Congregation Birchos Yosef inviting them to adjudicate their dispute in the Jewish religious court. The beis din also issued an ekul or injunction against the parties continuing to pursue the dispute through the Bankruptcy Court.

The Bankruptcy Court held that:

Bais Chinuch and the individuals’ invocation of the beis din proceeding - and the issuance of the beis din's ekul, or injunction - are actually directed at the Debtor through its principals with the intention of wresting control of the Debtor’s adversary proceeding and exerting pressure to have it dismissed.... Because of the principals’ identity of interest here with the Debtor, the automatic stay applies to protect them from the beis din.

The court went on to hold that enforcement of the automatic stay does not violate the Free Exercise or Establishment Clause of the First Amendment. It held that RFRA is not applicable, because it does not apply to the Debtor's motion, a private action between private parties. Even if applicable, application of the automatic stay survives RFRA strict scrutiny. The court added, "The automatic stay’s enforcement here does not substantially burden the objectors’ free exercise of religion, moreover, when they have invoked a rabbinical court to decide (and interfere with) an essentially commercial dispute."

Proposed Hindu Statue At Arkansas Capitol Turned Down Initially

In Arkansas, a request by the Universal Society of Hinduism to place a privately-financed statute of the Hindu god Lord Hanuman on the grounds of the state Capitol has been rejected by the Secretary of State's office. Arkansas News Bureau reported last Friday that Chief Deputy Secretary of State Kelly Boyd told the Hindu group that it is the State Capitol Arts and Grounds Commission that is responsible for approving monuments on the Capitol grounds. The Hindu group's request follows the state legislature's approval in April of a Ten Commandments monument at the Capitol. (See prior posting.) The Secretary of State's office suggested that the Hindu group seek similar legislative approval. The group says it may send its request to the governor. According to Merinews, Christian, Buddhist, Jewish, Baha'i and other faith leaders have backed the Hindu group's request. [Thanks to Scott Mange for the lead.]

Mirror of Justice Blogger Robert Araujo Posts Sad Farewell

On Sunday, Loyola University Chicago Law Professor Robert John Araujo, S.J., posted a sad farewell on Mirror of Justice to which he has contributed for ten years. Mirror of Justice is a wonderful blog dedicated to the development of Catholic legal theory, and Prof. Araujo's posts have been an important part of the blog's contribution to thinking about law and religion. Prof. Araujo writes that he is now in palliative/hospice care while finishing his final scholarly project -- a book on the Declaration on Religious Liberty and its relevance to the law. We all salute Prof Araujo for his scholarly contributions on Papal diplomacy, religious liberty and Catholic social thought. Even more so, we salute him for the courageous example he has set in facing impossibly difficult health care decisions.

Judge Preventing Church Leader From Obtaining Unusual Name Change

According to the Rome News-Tribune, in Rome, Georgia an 81-year old resident whose current name apparently is "Serpentfoot" is petitioning a Floyd County (GA) court to change her name to:

Nofoot Allfoot-69-mouth-tail-solids-liquids-gases-animal-vegetable-mineral-going-over-under-around-and-through-Our-Greater-Self-our-habitat-the-cosmos-of-which-we-are-but-part-and-where-all-life-feeds-upon-other-life-from-the-smallest-bacteria-to-the-great-black-holes-and-dog-eat-dog-and-last-suppers-where-we-are-what-we-eat-or-consume-and-each-lives-on-in-the-other … ∞ Serpentfoot.

Serpentfoot who is the leader of her own church, "Our Greater Self Co-op," says that the name change will further her ministry. The court however apparently turned down the request in on Aug. 6 when Serpentfoot was a few minutes late for her 8:30 am hearing. She has now filed a petition asking the judge to reconsider his ruling or else recuse himself. This is the latest in a series of requests by Serpentfoot to change her name. Her last request was denied in May by the court when she could not remember her proposed name.

Monday, August 24, 2015

Haredi Rabbis Urge Reporting of Child Abuse To Secular Authorities

Countering what has sometimes been a reluctance in the haredi (ultra-Orthodox) Jewish community to report suspected child abuse to civil authorities, over 100 prominent haredi rabbis and educators from across the United States have signed a public pronouncement calling for prompt notification to law enforcement. The statement (full text in report from Arutz Sheva) says in part;

We, the undersigned, affirm that any individual with firsthand knowledge or reasonable basis to suspect child abuse has a religious obligation to promptly notify the secular law enforcement of that information. These individuals have the experience, expertise and training to thoroughly and responsibly investigate the matter. Furthermore, those deemed “mandated reporters” under secular law must obey their State’s reporting requirements.

Many more rabbis are expected to sign the statement in coming weeks. (See prior related posting.)

School District Drops Band's Planned Half-Time Show Fearing It Violates Consent Decree

Having been held in contempt last month for violating a 2013 consent decree in which it was ordered to comply with a newly adopted policy on Religion in Public Schools (see prior posting), the Rankin County, Mississippi School Board last week told the Brandon High School band that it could not perform its planned half-time show at the season's opening football game. According to yesterday's Christian News, the band had planned to perform "How Great Thou Art" during half-time. While the song was selected last February with administrative support, the school district more recently said it would risk heavy fines if it were performed and would be required to terminate the employment of anyone connected with the performance. At last Friday's game, while the band did not perform, dozens of parents and students began singing the song from the stands.

Suit Threatened Against Catholic Hospital For Refusing Sterilization Procedure

The San Francisco Chronicle reported yesterday that the ACLU is threatening to sue a Catholic hospital in Redding, California because it refuses to perform sterilization procedures. Rachel Miller who is scheduled to have her second child in late September wants a tubal ligation performed at the same time. Her Catholic hospital in Redding, California-- owned by Dignity Health-- refuses to permit the procedure under its Ethical and Religious Directives. Miller would have to travel 160 miles to find a hospital that will take her insurance and perform the procedure. California law permits Catholic hospitals to refuse to perform abortions, but not other pregnancy-related procedures. The ACLU contends that the hospital's refusal amounts to sex discrimination and violates California's ban on the corporate practice of medicine by allowing a corporate entity's religious beliefs to override a doctor's medical decision.

UPDATE: CBS San Francisco reported on Aug. 25 that Mercy Medical Center has now approved the tubal ligation procedure for Rachel Miller.

Sunday, August 23, 2015

Recent Prisoner Free Exercise Cases

In Mitchell v. Daniels, 2015 U.S. Dist. LEXIS 108599 (MD AL, Aug. 18, 2015), an Alabama federal district court adopted a magistrate's recommendation and dismissed an inmate's complaint about inadequate security to prevent desecration of the Native American ceremonial grounds.

In Green v. Fox, 2015 U.S. Dist. LEXIS 109131 (CD CA, Aug. 17, 2015), a California federal district court dismissed without prejudice an inmate's habeas corpus petition seeking release so he could obtain medical treatment from a Christian Science practitioner that he was denied in prison.

In Avery v. Paramo, 2015 U.S. Dist. LEXIS 109127 (SD CA, Aug. 18, 2015), a California federal district court dismissed a Pagan-Wiccan inmate's retaliation claim, but permitted him to proceed with his complaint regarding refusal to accommodate Pagan/ Wiccan/ Asatru practices by providing a fence perimeter, fire pit, water line, and herb cultivation, and by providing him a monthly supply of honey, nuts, dried fruit, trail mix and non-yeast crackers.

In Allah v. Christburg, 2015 U.S. Dist. LEXIS 108590 (MD AL, Aug. 18, 2015), an Alabama federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 109611, July 27, 2015), and dismissed a complaint by an inmate who complained that he was not permitted to observe Ramadan, participate in Muslim prayer services or receive a Qur'an, prayer rug or Islamic literature. The inmate had failed to specify his religious affiliation when he was booked into the facility.

In Hosey-Bey v. Williams, 2015 U.S. Dist. LEXIS 109363 (MD AL, Aug. 19, 2015), an Alabama federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 110146, July 30, 2015) and dismissed an inmate's complaint that defendant ordered the Sunday school service of the Moorish Science Temple of America closed down after only 10 to 13 minutes because of a shortage of officers for security for the chapel.

In Hoeck v. Miklich, 2015 U.S. Dist. LEXIS 110921 (D CO, Aug. 20, 2015), a Colorado federal district court denied injunctive relief to an inmate who complained that he was not permitted to observe the holy days and diet of his Biblical Christian faith.

In Shabazz v. Cruzen, 2015 U.S. Dist. LEXIS 111210 (ND CA, Aug. 21, 2015) and Fadan v. Cruzen, 2015 U.S. Dist. LEXIS 111213 (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.

Church May Continue With Its RLUIPA and State RFRA Claims

In Church of Our Lord and Savior Jesus Christ v. City of Markham, Illinois, (ND IL, Aug. 19, 2015), plaintiff claimed that after it had operated in the same location for ten years without issue, it received a summons telling it to close on safety grounds because it had not received a conditional use permit. An Illinois federal district court allowed plaintiff to proceed with its "substantial burden" claims under RLUIPA and Illinois' RFRA, but dismissed its discrimination claim. It also allowed plaintiff to move ahead with its claim under the state constitution that the city's refusal to amend its zoning ordinance was arbitrary and capricious.

Obergefell Will Be Applied Retroactively To Social Security Claims

42 USC Sec. 416(h)(1)(A)(i) provides that whether a person is the spouse of another for Social Security purposes depends on the law of their state of domicile. Until now this has led the Social Security Administration to deny benefits to same-sex spouses who moved to or lived in a state which did not recognize their marriage. However, in an Aug. 20 press release, Lambda Legal reported:

Today, in a status conference with Lambda Legal in federal court in Chicago, the Department of Justice announced that the Social Security Administration (SSA) will apply the U.S. Supreme Court's recent landmark marriage ruling retroactively and process pending spousal benefits claims for same-sex couples who lived in states that did not previously recognize their marriages. According to the Department of Justice, the new policy will apply to previously filed claims still pending in the administrative process or litigation.

Muslim Leaders Issue Declaration On Global Climate Change

As reported by the Washington Post, last week Muslim leaders and scholars from 20 countries issued an Islamic Declaration on Global Climate Change. Issued in anticipation of the Conference of the Parties to the United Nations Framework Convention on Climate Change and the Meeting of the Parties to the Kyoto Protocol taking place in Paris this December, 2015, it urges well-off nations and oil-producing states to lead the way in phasing out greenhouse gas emissions. It calls on governments and business to commit themselves to 100 % renewable energy and/or a zero emissions strategy as early as possible.

10th Circuit Grants Stay In Contraceptive Mandate Case Pending Supreme Court Action On Cert.

As previously reported, in July a petition for certiorari was filed with the Supreme Court in Little Sisters of the Poor Home for the Aged v. Burwelll. In the case, the 10th Circuit upheld the Obama Administration's Affordable Care Act accommodation for religious non-profits that object to furnishing contraceptive coverage. On Friday, the 10th Circuit issued an order (full text) staying issuance of its mandate until the Supreme Court's either denies review or decides the case. Becket Fund issued a press release on the 10th Circuit's action.

Friday, August 21, 2015

6th Circuit Again Upholds ACA Accommodation For Religious Non-Profits

The U.S 6th Circuit Court of Appeals today, deciding a case that had been remanded to it (see prior posting) by the Supreme Court after that Court's Hobby Lobby decision, reaffirmed its earlier decision upholding against a RFRA challenge the Obama administration's Affordable Care Act accommodation for religious non-profits that object to furnishing their employees insurance coverage for contraceptives. In Michigan Catholic Conference v. Burwell, (6th Cir., Aug. 21, 2015), the 6th Circuit said in part:

Despite our attempts to describe how the accommodation actually works, it is perhaps inevitable that some Plaintiffs will still believe that they are morally complicit in sin, by being a part of a system that provides access to contraceptives.... However, it is not our role to determine a party’s moral complicity; we do not question here Plaintiffs’ “desire not to participate in the provision of contraception.” ... Our role is a more limited one: to determine whether, as a legal matter, the regulation represents a substantial burden to Plaintiffs’ rights under RFRA. That requires us to determine how the law works and what it asks of various actors. On this point, as we held before, “[t]he government’s imposition of an independent obligation on a third party does not impose a substantial burden on the appellants’exercise of religion.”

[Thanks to How Appealing for the lead.]

Illinois Becomes 4th State To Ban Gay Conversion Therapy For Minors

As reported by the Huffington Post, yesterday Illinois became the fourth state to ban gay conversion therapy for minors. Governor Bruce Rauner signed HB 217 (full text), the Youth Mental Health Protection Act which prohibits any mental health provider from engaging in sexual orientation change efforts with a person under the age of 18. The new law also broadly prohibits misleading advertising of conversion therapy:

No person or entity may, in the conduct of any trade or commerce, use or employ any deception, fraud, false pretense, false promise, misrepresentation, or the concealment, suppression, or omission of any material fact in advertising or otherwise offering conversion therapy services in a manner that represents homosexuality as a mental disease, disorder, or illness, with intent that others rely upon the concealment, suppression, or omission of such material fact. A violation of this Section constitutes an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act.

The new law, which becomes effective Jan. 1, 2016, includes extensive legislative findings supporting the therapy ban.

Illinois Statute Expands Permissible Student Prayer

Yesterday Illinois Governor Bruce Rauner signed HB 165 (full text) amending the Silent Reflection and Student Prayer Act to permit students during non-instructional time before or after school to engage not only in individually initiated prayer, but also "collectively initiated, non-disruptive prayer or religious-based meetings, including without limitation prayer groups, B I B L E (Basic Instruction Before Leaving Earth) clubs, or "meet at the flagpole for prayer" days," However these may not be "sponsored, promoted or endorsed in any manner by the school or any school employee."

Court Says Sale of Boston Church Was Invalid

In First Bostonview Management, LLC v. Bostonview Corp., (MA App., Aug. 19, 2015), the Massachusetts Appeals Court held the purported sale of the property of Boston's Swedenborgian Church on the Hill invalid. The court said in part:

[T]he sale of substantially all of the Bostonview church property (consisting of a church sanctuary, a parish meeting hall, a large apartment complex, offices, and parking spaces on prime land on Beacon Hill near the Massachusetts State House) was indisputably an "extraordinary transaction," and, if completed to the end would have stripped Bostonview of the very essence of its existence as a charitable corporation.... We conclude that the authority to make such a divesting asset/property sale contract ... was beyond the power of the charitable corporate board to delegate to two of its officers. The contract was void. The "shady" nature of the underlying prenegotiations to sell the church's very valuable (but sole) asset for $30 million -- including combined cash payments of close to $100,000 to two of the executive officers, and the purchase of the $94,000 luxury car for the church secretary -- only serves to demonstrate why restrictions on "extraordinary transactions" must be closely scrutinized by the charity's corporate board.

The court also held that: "subsequent approval or other conduct by the board of directors of a charitable corporation will not substitute for prior specific authorization to commit the charity to an extraordinary transaction."

Boston Business Journal gives additional background:

The case centered on developer Michael Perry’s 2004 agreement to pay $30 million to purchase the property.... Perry struck the agreement with Thomas J. Kennedy and Edward J. MacKenzie Jr., who were then officials at Bostonview Corp., the charitable organization that conducted business on behalf of the Swedenborgian church. MacKenzie, who has claimed he was an enforcer for incarcerated mobster Whitey Bulger, was later sentenced to 12 years in prison for allegedly stealing millions from the church.

130 Organizations Urge Obama To Rescind 2007 Justice Department Interpretation of RFRA

Yesterday a coalition of 130 religious, civil rights and advocacy organizations sent a letter (full text) to the President urging that the Justice Department's Office of Legal Counsel reconsider a 2007 Memorandum interpreting the interaction of the Religious Freedom Restoration Act with non-discrimination provisions in federal grant programs. The letter reads in part:

[T]he OLC Memo relies on flawed legal analysis and wrongly asserts that RFRA is “reasonably construed to require” a federal agency to categorically exempt a religiously affiliated organization from a grant program’s explicit statutory nondiscrimination provision, thus permitting the grantee to discriminate in hiring with taxpayer funds without regard to the government’s compelling interest in prohibiting such discrimination....

...[S]ome have cited the OLC Memo in arguing that RFRA should broadly exempt religiously affiliated contractors from the nondiscrimination requirements in Executive Order 11246, including those you added just last year that bar government contractors from discriminating against LGBT workers. And, some are trying to extend its reach beyond the context of hiring: Several grantees and contractors have cited the OLC Memo to support their arguments that the government should create a blanket exemption that would allow them to refuse to provide services or referrals required under those funding agreements, specifically in the context of medical care for unaccompanied immigrant children who have suffered sexual abuse.

ADL and Americans United each issued its own press release on the letter.

Thursday, August 20, 2015

Texas Supreme Court Rules On Houston Equal Rights Referendum Ballot Language

In yet another ruling on the referendum calling for the repeal of Houston, Texas' controversial Equal Rights Ordinance, the Texas Supreme Court yesterday in In re Williams and Woodfill, (TX Sup. Ct., Aug. 19, 2015), ruled on proper ballot language. It held that the vote must be on whether or not to approve the Ordinance, not on whether or not to approve its repeal. The Court also held that the city did not abuse its discretion by referring in the ballot language to the "Houston Equal Rights Ordinance." Houston Chronicle reports on the decision. (See prior related posting.)

Report Criticizes Collegiate Football Chaplaincy Programs

On Monday, the Freedom From Religion Foundation released a report titled Pray to Play: Christian Coaches and Chaplains Are Converting Football Fields Into Mission Fields. According to the Report:

Public universities and their employees cannot endorse, promote, or favor religion. Yet, many football coaches at public universities bring in chaplains—often from their own church or even members of their own family—to prey on and pray with students, with no regard for the rights of those students or the Constitution. These coaches are converting playing fields into mission fields and public universities are doing nothing to halt this breach of trust. They are failing their student athletes.

FFRF sent copies of the Report, which includes a Model Policy On Religion In Athletics, to 15 schools that appear to have the most problematic chaplaincies.

Slovakia Will Reject Muslim Migrants In EU Redistribution Plan

Last month, the European Union ministers agreed to a plan to redistribute some 32,000 of the 150,000 migrants from war-torn Syria, Iraq, Eritrea and Somalia that have found their way across the Mediterranean to Greece and Italy. As reported by TRT World, the EU hopes to reach agreement by the end of the year on redistribution of an additional 8,000. Meanwhile, The Telegraph reported yesterday that while Slovakia has agreed to accept 200 of the migrants, it says it will not accept any Muslims. An Interior Ministry spokesman said:

[W]e don't have any mosques in Slovakia so how can Muslims be integrated if they are not going to like it here?

EU sources say that while it would be legal to prioritize Christians because they are at extra risk of persecution, rejecting Muslims would be impermissible discrimination. But the Slovakian government says it plans to ask arriving migrants their religion.

Wednesday, August 19, 2015

7th Circuit: Rule Preventing Former Prison Employee From Marrying Inmate Is Unconstituitonal

In Riker v. Lemmon. (7th Cir., Aug. 14, 2015), the U.S. 7th Circuit Court of Appeals held that prison authorities had failed to adequately justify their refusal to allow Rebecca Riker, a former food services employee at an Indiana prison, a one-time visit in order to marry inmate Paul Vest who is serving a 50-year sentence for robbery. Riker met Vest when she was employed at the prison and Vest worked as a prisoner under her supervision. Riker left her job when it was discovered that she had a romantic relationship with Vest, which included sexual intercourse in a walk-in cooler at the facility. Relying in part on the U.S. Supreme Court's 1987 decision in Turner v. Safley, the 7th Circuit said in part:

The right to marry includes the right to select one’s spouse. See Obergefell, 135 S. Ct. at 2599 (noting “that the right to personal choice regarding marriage is inherent in the concept of individual autonomy” and that there is dignity in individuals’ “autonomy to make such profound choices”). The proper inquiry, therefore, is whether Ms. Riker was prohibited from marrying the spouse of her choosing. Because Ms. Riker has not been left with any alternative means of exercising her right to marry Vest, it is clear that the burden on that right was not minimal. ...

The Department also submits that the prohibition of Ms. Riker’s marriage is necessary to serve as a deterrent to current employees. It submits that “[t]he policy communicates to IDOC employees that if they begin an inappropriate relationship with an offender while working at an IDOC facility, they will not only be held accountable but also will be prevented from seeing the inmate for as long as he or she is incarcerated.” The Department has not provided any evidence, however, to support its contention that prohibiting Ms. Riker’s marriage acts as a deterrent or that such deterrence is necessary.

National Law Journal reports on the decision.

Court Decrees Final Injunction Terms For Monitoring Florida Prison Kosher Meal Policy

As previously reported, in April the U.S. Department of Justice won its long-running lawsuit against the state of Florida over its prisons' kosher meal policy. Last week in United States of America v. Secretary, Florida Department of Corrections, (SD FL, Aug. 12, 2015), the court settled on the final language for the injunction it issued by separate order. The parties agreed on the language on accountability and monitoring, but disagreed on the extent the Justice Department would have access to inspect prisons for compliance. The court largely accepted the Justice Department's proposed language, and gave the federal government access to personnel, prisoners and food facilities so it can monitor compliance. NorthEscambia.com reports on the court's order.

8th Circuit: Preacher's Free Speech Rights Not Infringed By State Fair Rules On Where He Can Stand

In Powell v. Noble, (8th Cir., Aug. 14, 2015), the U.S. 8th Circuit Court of Appeals agreed with the federal district court that a Christian preacher's free expression rights were not infringed when he was barred from delivering his religious message just outside the paid admission area at the Iowa State Fair. The court said in part:

The fair’s rule prohibiting impeding the flow of people in and out of the fairgrounds addresses the need to limit congestion and disruption and to facilitate safe and efficient access to the fair.... Powell retains alternative channels of communication on the fairgrounds.... While these alternatives may not be Powell’s first choice, “‘[t]he First Amendment does not demand unrestricted access to a nonpublic forum merely because use of that forum may be the most efficient means of delivering the speaker’s message.’” .... We also conclude the district court did not abuse its discretion in holding Powell is unlikely to succeed in showing the rule against bringing signs attached to poles and sticks to the fair is unreasonable....The state has a valid interest in protecting the safety of fairgoers... Neither are we persuaded by Powell’s argument that the rule is arbitrary because the fair allows mounted poles to support tents and flags and small sticks for the fair’s many food-on-a-stick offerings.

The court however remanded the case to the district court for it to consider whether the State Fair's unwritten rules on access to the fairgrounds are overly vague in violation of the due process clause. The Des Moines Register reports on the decision.

Tuesday, August 18, 2015

Comedian Takes On Televangelists Preaching Prosperity Gospel

Comedian John Oliver, host of the HBO late-night show "Last Week Tonight," has gained widespread attention for his Aug. 16 episode (YouTube video of episode) that took on televangelists who preach the Prosperity Gospel. As reported by the Wall Street Journal, to illustrate the ease of creating a religious organization that can solicit tax-exempt contributions, Oliver filed paperwork to create his own church, Our Lady of Perpetual Exemption. The humorous 20-minute episode argues that some broadcast ministries exploit those who can least afford to donate.

Kentucky Clerk, Continuing Fight Against Issuing Marriage Licenses To Same-Sex Couples, Gets Short Reprieve

Rowan County, Kentucky Clerk Kim Davis is continuing her battle to obtain a religious exemption from the requirement that her office issue marriage licenses to same-sex couples. As previously reported, last week a federal district court issued a preliminary injunction requiring her to end her resistance, at least as to the two same-sex couples suing her. Davis' office has been refusing to issue marriage licences to anyone. Yesterday in Miller v. Davis, (ED KY, Aug. 17, 2015), the district court refused to stay its injunction while an appeal to the 6th Circuit plays out. The court found that Davis is not likely to succeed on the merits in the appeal nor is she likely to suffer irreparable harm without a stay. However the court did grant a shorter stay. The court said "realizing that emotions are running high on both sides of the debate," it would grant a stay while Davis appeals the denial of a longer stay during the appeal.

The Lexington Herald-Leader reports on these developments and reactions to them:

"Here in Morehead, we have a fairness ordinance (protecting the civil rights of gays and lesbians) that our city council passed unanimously in 2013," said Mary Hargis, a retired state worker holding a sign that read "Obey the law."

"So to have a county official on her own turn around and negate all that progress by making us look like backward, inbred hillbillies, she's just reinforcing all the stereotypes people had about us...

[Thanks to Tom Rutledge for the lead.]

UPDATE: On Aug. 19, the district court, saying the Federal Rules of Appellate Procedure require it to set an expiration date, issued an order (full text) providing that the stay it issued two days earlier will expire on Aug. 31 unless the 6th Circuit orders something else.

Monday, August 17, 2015

Today Is 100th Anniversary of Anti-Semitic Leo Frank Lynching

The Forward reminds us that today is the 100th anniversary of the anti-Semitic lynching of Leo Frank:

Frank was the superintendent of the National Pencil Factory in Atlanta in 1913 when Mary Phagan, a 13-year-old white employee, was murdered. Frank, 29, was an interloper in Georgia: a northerner and a Jew. The police quickly seized on him as a suspect. His trial, conducted in an atmosphere of rampant anti-Semitism and anti-Northern sentiment, led to his conviction and sentencing to death in the summer of 1913....

During his confinement, Frank’s advocates cast enough doubt on his conviction that Georgia’s governor commuted his sentence to life in prison, in June 1915.

It was a wildly unpopular decision in Georgia and not enough to save Frank’s life. He was moved to a rural prison 100 miles away in Milledgeville where, within a matter of weeks, an inmate slit Frank’s throat.

Frank survived the attack. But on the night of August 16, a lynch mob. organized by the leaders of Cobb County where Phagan’s family lived, stormed the prison. They bundled Frank into a car and drove him 150 miles to their county seat of Marietta, where they lynched him at dawn.

For anyone interested in an excellent and exhaustive history of the case, I recommend Steve Oney, And the Dead Shall Rise, (Vintage Books, 2003).

Sunday, August 16, 2015

Recent Prisoner Free Exercise Cases

In Ahmorae v. Davidson County Sheriff's Office, 2015 U.S. Dist. LEXIS 105329 (MD TN, Aug. 11, 2015), a Tennessee federal district court dismissed a Muslim inmate's complaint that on one occasion during Ramadan he was not served dinner.

In Sousa v. Wegman, 2015 U.S. Dist. LEXIS 105420 (ED CA, Aug. 11, 2015), a California federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 85208, June 29, 2015) and allowed an inmate to move ahead with his complaint that he was repeatedly denied attendance at religious services, holiday celebrations, use of the sweat lodge, and formal recognition for his Mexican Indian faith. UPDATE: The court issued a corrected order on Aug. 13 (2015 U.S. Dist. Lexis 107582).

In Pelayo v. Hernandez, 2015 U.S. Dist. LEXIS 105521 (ED CA, Aug. 11, 2015), a California federal district court dismissed a Christian inmate's complaint that he was not allowed to bring his pocket Bible with him into the dining hall.

In Jaquez v. Birch, 2015 U.S. Dist. LEXIS 105818 (ND OK, Aug. 12, 2015), an Oklahoma federal district court dismissed an inmate's complaint that he had not been able to see or talk with the jail chaplain.

In Frazier v. Cooper, 2015 U.S. Dist. LEXIS 106707 (WD PA, Aug. 13, 2015), a Pennsylvania federal magistrate judge dismissed for failure to exhaust administrative remedies a complaint by an inmate who is a member of the Moorish Science Temple of America that his religious practice was being limited.

In Saif'Ullah v. Cruzen, 2015 U.S. Dist. LEXIS 107490 and in Mohammad-Bey v. Cruzen, 2015 U.S. Dist. LEXIS 107510 (ND CA, Aug. 13, 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.

Investigative Team Appointed To Study East Ramapo NY Schools

According to the New York Times, last Thursday the New York State Education Department appointed a team of three experts led by former New York City School Chancellor Dennis Walcott to study the operations of the struggling East Ramapo school system and offer recommendations. The Times reports:

Last fall, a former federal prosecutor appointed by the state to investigate the district found that the school board, which is dominated by Orthodox Jews, had diverted money from public schools to children who attend local yeshivas, leaving the district in dire financial trouble. The former prosecutor, Henry M. Greenberg, recommended that the state appoint a fiscal monitor with the power to override decisions by the school board. The State Assembly passed a bill in June that would have created such a position, but amid complaints from the East Ramapo school board that it would usurp local control of schools, the bill died in the State Senate.

Mr. Walcott and his team will not have the power to override decisions by the school board. But the state education commissioner, MaryEllen Elia, said in an interview that the department had been in discussions with the school board, and that she hoped the board would be amenable to the experts’ recommendations.

(See prior related posting.)

Saturday, August 15, 2015

DC Circuit: Allocation of Royalties To Religious Broadcasters Was Arbitrary and Capricious

Settling Devotional Claimants v. Copyright Royalty Board, (DC Cir., Aug. 14, 2015), is a suit involving a dispute among television ministries on how to divide among themselves the royalties paid by cable operators for re-transmission of the ministries’ television broadcasts for the years 2000-2003. Under federal law, cable operators can retransmit programs initially aired on a broadcast station without further permission, but must deposit a royalty amount set by statute. Each year the Copyright Royalty Judges determine how the royalties should be distributed. In an earlier phase of the proceedings the Judges determined the the total amount that should be allocated to devotional-religious programs. This phase of the proceedings involved the distribution of that amount among two competing groups-- a group of 23 ministries whose copyright broadcasts were distributed (the Settling Devotional Claimants) and a second group (Independent Producers Group) that claimed to represent 7 other ministries, but was held by the Royalty Judges to properly represent only four others. The Royalty Judges rejected the methodologies urged by both parties and instead used its own approach to allocate the royalties between the two groups. The Court of Appeals held that the Royalty Judges' allocations were arbitrary and capricious, saying in part:

[The Devotional Claimants] argue that, after the Royalty Judges ... simply split the difference between the two parties, and that decision was arbitrary and capricious and unsupported by substantial evidence. We agree with the Devotional Claimants..... King Solomon was not subject to the Administrative Procedure Act; the Royalty Judges are.

Friday, August 14, 2015

DC Circuit Rejects Establishment Clause Challenge To ACA Religious Conscience Exemption

In Cutler v. U.S. Department of Health and Human Services, DC Cir., Aug. 14, 2015), the Court of Appeals for the D.C. Circuit rejected an Establishment Clause challenge to the religious conscience exemption in the Affordable Care Act. The ACA exempts from the individual mandate members of traditional religious groups such as the Amish and Mennonites who are conscientiously opposed to acceptance of health benefits and whose sect makes provision for their dependent members. Plaintiff Jeffrey Cutler objected for personal, not religious, reasons to purchasing insurance that complies with ACA requirements. The court said in part:

The religious exemption in the Affordable Care Act, like its counterpart in the Social Security Act, accommodates religion by exempting all believers whose faith system provides an established, alternative support network that ensures individuals will not later seek to avail themselves of the federal benefits for which they did not contribute. Cutler is correct that the Affordable Care Act withholds a similar exemption for non-believers. But the Supreme Court has repeatedly held that “the government may accommodate religious practices without violating the Establishment Clause....

Suit Says Florida Will Not Issue Correct Birth Certificates To Married Lesbian Couples

A lawsuit was filed in federal district court in Florida yesterday challenging the birth certificate policy of Florida's Bureau of Vital Statistics. The complaint (full text) in Chin v. Armstrong, (ND FL, Aug. 13, 2015), alleges:

When a child is born to a woman who is married to another woman ... the Bureau ... will not issue accurate birth certificates listing both parents.... Instead, the Bureau will issue only a certificate that falsely indicates that the child has only one parent and that omits the mother’s spouse as the child’s second parent.

The suit contends that this infringes plaintiffs' fundamental right to marry as well as denying them equal protection of the laws. Equality Florida Action issued a press release on the filing of the lawsuit.

Kentucky Clerk Continues To Refuse To Issue Marriage Licenses, Despite Injunction

Continuing to maintain her religious objections to issuing marriage licenses to same-sex couples, Rowan County, Kentucky Clerk Kim Davis yesterday filed with the federal district court a motion (full text) to stay the court's Aug. 12 preliminary injunction pending appeal. (See prior posting.) Meanwhile, as reported by AP, Davis' office continued to refuse to issue marriage licenses. Staff said Davis was on vacation, and others in the office also authorized to issue licenses refused to do so. The staff handed one couple a Post-it note with the phone number of Davis' lawyers, Liberty Counsel. Attorneys for plaintiffs in the case are considering asking the court to hold Davis in contempt.

Court Upholds Order Against Bakery that Refused Wedding Cake For Same-Sex Couple

In Craig v. Masterpiece Cakeshop, Inc., (CO App., Aug. 13, 2015). a Colorado appellate court, in a 64-page opinion, affirmed the decision of the Colorado Civil Rights Commission (see prior posting) that a bakery's refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law, and that the Commission's cease and desist order does not infringe the bakery owner's free exercise or free speech rights. The court rejected the bakery's claim that its refusal to create the cake was "because of" its opposition to same-sex marriage, not because of its opposition to plaintiffs' sexual orientation. It held that because same-sex marriage is entered into only (or predominately) by gays, lesbians and bisexuals, the conduct cannot be divorced from status.

The court rejected defendants' argument that requiring them to create the wedding cake would amount to unconstitutionally compelled speech:

such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.

Finally the court concluded that the cease and desist order did not violate the Christian owner's free exercise rights under the state and federal constitutions because the Colorado Law Against Discrimination is a neutral law of general applicability. Colorado Springs Gazette reports on the decision.

Thursday, August 13, 2015

In Israel, Knesset Committee Rejects Agriculture Ministry Rules On Kapparot Ritual

Jerusalem Post reports today that in Israel, the Knesset's Economic Affairs Committee has rejected rules issued by the Agriculture Ministry to strictly regulate the controversial pre-Yom Kippur ceremony of kapparot. The ceremony involves the slaughter of a chicken after it is first lifted oven one's head as a way of symbolically shedding one's sins. The Agriculture Ministry rules required strict limits and inspections to insure that the birds do not suffer. However the Knesset Committee's chairman said the rules were overly stringent and would have effectively prevented the practice. During committee hearings on the rules yesterday, a Knesset member from the United Torah Judaism Party threatened that his party would topple the coalition government if the regulations were upheld.

Guam Legislature Passes Marriage Equality and LGBT Employment Discrimination Laws

Pacific Daily News reports that the Guam legislature yesterday passed the Guam Marriage Equality Act (full text), aligning the U.S. Territory's laws with the a district court's decision in June specifically striking down Guam's same-sex marriage ban. (See prior posting.)

The legislature this week also passed the Guam Employment Nondiscrimination Act of 2015 (full text), adding bans on employment discrimination based on gender identity or expression; sexual orientation; and veteran or military status. The law includes an exemption for religious and educational institutions that are exempt from the religious discrimination provisions of Title VII of the 1964 federal Civil Rights Act. HRC Blog has more on the new law.

Court Says Kentucky Clerk Cannot Refuse To Issue Marriage Licences

In Miller v. Davis, (ED KY, Aug. 12, 2015), a Kentucky federal district court granted a preliminary injunction barring Rowan County, Kentucky Clerk Kim Davis from continuing her policy of refusing to issue all marriage licenses because of her religious objections to issuing licences to same-sex couples. The injunction enjoins Davis from applying the policy to future marriage license requests submitted by plaintiffs in the case.

Rejecting free exercise, free speech, religious test and Kentucky Religious Freedom Act arguments, the court held:

Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.

The Kentucky ACLU issued a press release announcing the decision. AP reports on the decisionl Davis immediately filed a Notice of Appeal (full text). [Thanks to Tom Rutledge for the lead.]

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.)