Full 9th Circuit Hears Oral Arguments In Establishment Clause Challenge To San Francisco Resolution

The U.S. 9th Circuit Court of Appeals yesterday en banc heard oral arguments in Catholic League for Religious and Civil and Rights v. City and County of San Francisco. (Audio recording of full arguments.) In June, a 3-judge panel of the 9th Circuit rejected an Establishment Clause challenge to a strongly worded resolution passed by San Francisco's Board of Supervisors. The resolution criticized a directive from Catholic Cardinal William Levada instructing Catholic social service agencies to not place children in need of adoption with same-sex couples. (See prior posting.) The San Francisco Chronicle reports on yesterday's oral arguments which focused on whether the resolution was an unconstitutional governmental attack on Catholicism, or a justifiable resolution of disapproval of a group that opposed the city's policy on equality for gays and lesbians.

New Mexico Court Upholds Human Rights Agency's Finding Against Photographer

In Elane Photography, LLC v. Willock, (NM Dist. Ct., Dec. 11, 2009), a New Mexico trial court held that a limited liability company owned by a husband and wife and operating a photography business violated New Mexico's Human Rights Act when owner-photographer Elaine Huguenin refused to photograph a same-sex commitment ceremony. Upholding finding by the state's Human Rights Commission (see prior posting), the court concluded that the company was a public accommodation that discriminated on the basis of sexual orientation. It held that application of the HRA did not violate Huguenin's freedom of expression because she is merely a conduit for her client's message in the photos. Huguenin had argued that enforcement of the HRA here forced her to convey a message that a marital relationship can exist between two individuals of the same sex.

The court also concluded that enforcement did not infringe Hugenin's free exercise of religion. Huguenin argued that this forced her to attend a religious ceremony that violates her conscience. The court held however that the HRA is a neutral law of general applicability. Finally the court rejected a claim under the New Mexico Religious Freedom Restoration Act. Alliance Defense Fund announced yesterday that it will appeal the decision. [Thanks to Eugene Volokh via Religionlaw for the lead.]

Britain's Supreme Court Holds Jewish School's Application of Halachic Criteria Is Racial Discrimination

In an important decision today, the Supreme Court of the United Kingdom held that the admissions policy of a government-funded Jewish school violates the prohibitions on racial discrimination in Britain's Race Relations Act 1976. In R (on the application of E) v. Governing Body of JFS, (UKSC, Dec. 16, 2009), the Court held 5-4 that applying the traditional Orthodox Jewish (halachic) definition of who is a Jew, requiring descent from a Jewish mother or conversion according to Orthodox Jewish law-- amounts to "direct discrimination" under the relevant statutory provisions. Two other justices concluded that the admissions decision amounts to "indirect discrimination" under the 1976 Act, and that the school had failed to demonstrate that its policy was proportionate. Following the British pattern of separate opinions from each Justice, the case involves nine opinions spanning 92 pages.

The case grew out of competition for admission to JFS, a premier Jewish school. When the school was oversubscribed, preference was given to students who were considered Jewish by the Office of the Chief Rabbi. The suit was filed by parents of a student who was not considered Jewish because his mother was converted to Judaism by a non-Orthodox rabbi-- reflecting an internal disagreement among various branches of Judaism. A press release issued by the Court summarized the opinions in part as follows:

The judgments of the Court should not be read as criticising the admissions policy of JFS on moral grounds or suggesting that any party to the case could be considered 'racist' in the commonly understood, pejorative, sense.....

In determining whether there is direct discrimination on grounds of ethnic origins for the purposes of the 1976 Act, the court must determine, as a question of fact, whether the victim’s ethnic origins are the factual criterion that determined the decision made by the discriminator.... If so, the motive for the discrimination and/or the reason why the discriminator considered the victim’s ethnic origins significant is irrelevant....

To treat an individual less favourably on the ground that he lacks certain prescribed ethnic origins constitutes direct discrimination.... [T]he factual criterion that determined the refusal to admit M to JFS is clear: the fact that he is not descended in the matrilineal line from a woman recognised by the OCR as Jewish.... The crucial question to be determined is whether this requirement is properly characterised as referring to M’s ethnic origins....

The test applied by JFS focuses upon the ethnicity of the women from whom M is descended.... There can be no doubt that the Jewish people are an ethnic group
within the meaning of the 1976 Act. While JFS and the OCR would have overlooked this fact if M's mother had herself undergone an approved course of Orthodox conversion, this could not alter the fundamental nature of the test being applied. If M’s mother herself was of the requisite ethnic origins in her matrilineal line no conversion requirement would be imposed.....

[T]reating an individual less favourably because of his ancestry ignores his unique characteristics and attributes and fails to respect his autonomy and individuality.... It might be said that the policy adopted by JFS and the OCR was based on both ethnic grounds and grounds of religion, in that the reason for the application of a test based upon ethnic origins was the conviction that such a criterion was dictated by Jewish religious law. The fact that the rule adopted was of a religious character cannot obscure or alter the fact that the content of the rule itself applies a test of ethnicity....

It is not clear that the practice-based test adopted by JFS following the Court of Appeal's judgment will result in JFS being required to admit children who are not regarded by Jewish by one or more of the established Jewish movements.... It may be arguable that an explicit exemption should be provided from the provisions of the
1976 Act in order to allow Jewish faith schools to grant priority in admissions on the basis of matrilineal descent; if so, formulating such an exemption is unquestionably a matter for Parliament.

The New York Times reports on the decision, saying that it will affect both publicly funded and private Jewish schools in Britain, and may affect Sikh and Muslim schools as well. (See prior related posting.) [Thanks to Rabbi Michael Simon and Steve Sheinberg for leads on this case.]

Quebec Issues New Policy Against Homophobia

In Canada last Friday, Quebec's Minister of Justice released the first-ever Quebec Policy Against Homophobia. The new 40-page policy document follows up on a report issued in 2007 (background). Key principles set out in the new policy include elimination of discrimination and respect for the dignity and differences of sexual minority members. It calls for government to be a leader in this regard, and also points to "the responsibility and commitment of all institutional and social players, and of the general public, to combat homophobia." Xtra.ca says that the Justice Minister is expected to appoint a committee to implement the policy next month. LifeSite News, reporting on the new policy, quotes Georges Buscemi, president of Campaign Quebec-Vie, who is concerned about the potential impact of the new policy on religious freedom. He predicted:

They're going to try for the longest possible to just use social pressure and increasingly isolate the recalcitrant entities and institutions.... It's going to lead to ostracizing different churches that have doctrinal oppositions to homosexual behaviour.... [W]e won't see overt sanctions, overt punitive measures, for a while. But those will come eventually.

UK Court of Appeal: No Discrimination In Requring Official To Register Civil Partnerships

In Ladele v. London Borough of Islington, (EWCA, Dec. 15, 2009), the Court of Appeals of England and Wales agreed with Britain's Employment Appeals Tribunal (see prior posting) that a Christian marriage registrar was not subjected to illegal discrimination when she was disciplined and threatened with dismissal for refusing to register same-sex civil partnerships. Lillian Ladelle argued that requiring her to "facilitate the formation of a union which [she] sincerely believe[d] was contrary to God's law" violated her rights under the Employment Equality (Religion or Belief) Regulations 2003. The Court of Appeal, however, concluded unanimously that:

Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele's refusal to perform that task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington's Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington's employees, and as between Islington (and its employees) and those in the community they served; Ms Ladele's refusal was causing offence to at least two of her gay colleagues; Ms Ladele's objection was based on her view of marriage, which was not a core part of her religion; and Islington's requirement in no way prevented her from worshipping as she wished....

Ms Ladele's proper and genuine desire to have her religious views relating to marriage respected should not be permitted to override Islington's concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community

Today's London Mail reports on the decision.

Rifqa Bary's Parents Want Ohio Social Services To Screen Daughter's Christmas Cards

The Jawa Report last week reprinted a motion filed at the beginning of December by attorneys for Rifqa Bary, the 17-year old convert to Christianity who fled her Ohio family and went to Florida, saying she was afraid her father would kill her because of her conversion. She is now back in foster care in Ohio. (See prior posting.) The motion, by Rifqa Bary's parents, asks the Franklin County Common Pleas Court to enjoin their daughter's attorneys "from passing messages of third parties directly to the minor child without the approval and supervision of Franklin County Children Services." It also seeks to have any cards now in the possession of Rifqa or her attorney turned over to social workers. The Memorandum in support of the motion cites to "hate filled" websites, that are encouraging messages to be sent to Rifqa, through her attorney, under the guise of sending her Christmas cards. It refers in particular to this posting by Atlas Shrugs asking its readers to "Show Rifqa she is not alone. Send her a Christmas card. Tell her you are praying for her." A hearing on the motion is scheduled for Dec. 22.

DC Circuit Hears Oral Arguments In Challege To Inaugural Oath and Prayers

Yesterday, the D.C. Circuit Court of Appeals heard oral arguments in Newdow v. Roberts. The case challenges the addition of "So help me God" in the oath administered to President Obama, as well as prayers offered by clergy as part of the inaugural ceremony. The district court dismissed the case for lack of standing. (See prior posting.) In yesterday's argument, according to Blog of the Legal Times, Michael Newdow argued that, as an atheist, he suffered stigmatic injury from the religious elements of the ceremony. He also argued that the claims are not moot since future inaugurals are also likely to use the "so help me God" phrase in the oath of office. The government argued that plaintiffs' claims are too generalized to grant standing. They largely watched the ceremony on television. Justice Department attorney Lowell Sturgill Jr. also argued that it is speculative as to whether future presidents-elect will want to use the "so help me God" phrase. Counsel for the Presidential Inaugural Committee, also a defendant, argued that the PIC, a non-governmental group, did not assist the clergy in the ceremony.

At the hearing, the DC Circuit opened with its usual cry: "God save the United States and this honorable court." Plaintiffs' emergency motion asking the court to eliminate the cry before arguments in this case was denied last week. (See prior posting.) In response, apparently Michael Newdow (and Bob Ritter of the American Humanists) absented themselves from the courtroom during the cry. (Comment by Bob Ritter.)

Florida Court Says No-Aid Claim Against Faith-Based Treatment Program Can Proceed

In Council for Secular Humanism, Inc. v. McNeil, (FL Ct. App., Dec. 15, 2009), a Florida state appellate court held that plaintiffs stated a valid claim under the "no-aid" provision of Florida's Constitution (Art. I, Sec. 3) when they challenged per diem payments by the state to two Christian ministries for prisoners placed in their faith-based substance abuse transitional housing programs. At issue were contracts with Lamb of God Ministries and Prisoners of Christ. However the court held that plaintiffs' lacked taxpayer standing to assert a related claim focusing on the performance and oversight of contracts with the ministries. The court also dismissed plaintiffs' challenge to the authority given prison chaplains in the process of placing inmates in substance abuse transitional program. Yesterday's Tampa (FL) Tribune reported on the decision.

Vietnam President Visits Pope; Church Order Seeks Return of Land

Last week, Vietnamese President Nguyen Minh Triet met in the Vatican with Pope Benedict XVI in talks that moved toward normalizing relations between Vietnam and the Holy See. (AFP). According to a separate AFP story yesterday, a few days before the meeting, a Catholic religious order in southern Vietnam asked communist authorities to stop construction on a city park that they say is on property that belongs to the Church. Sisters of Saint-Paul de Chartres asked the chairman of the Vinh Long provincial People's Committee to return land which allegedly had been developed in 1871 as a nunnery and orphanage. This is one of a number of land disputes (see prior posting) growing out of seizure of Catholic Church lands after the end of French colonial rule in 1954 and in the years after reunification of the North and South in 1975. The nuns of Saint-Paul de Chartes were arrested in 1977 and their church building were destroyed in 2003, according to their letter posted on the website of the Vietnam Episcopal Council.

D.C. Council Votes Final Passage of Gay Marriage Bill

Washington, D.C.'s City Council yesterday, by a vote of 11-2, gave final approval to the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. The bill, which permits same-sex marriages to be performed in D.C., now goes to Mayor Adrian A. Fenty, who, according to the Washington Post, is expected to sign the bill before Christmas. Congress then has 30 days to review the legislation and can block it only by a resolution passed by both houses of Congress and signed by the President. It appears unlikely that the law will be rejected through this route. The bill contains protections to assure that clergy can refuse to perform same-sex marriages and that religious organizations can refuse to provide goods, services, accommodations and facilities for same-sex marriages that violate their religious beliefs, except when those facilities are offered to the general public. A number of Christian clergy say they will continue to oppose the legislation. As previously reported, they have filed suit to force an initiative vote on a proposal to define marriages as only between a man and a woman. (See prior related posting.)

Lawsuits Challenge Brooklyn Diocese Over Election Calls

In a press release issued yesterday, New York City Atheists says it is suing the Roman Catholic Diocese of Brooklyn and Bishop Nicholas DiMarzio charging that the Church made Robo-calls during the last election urging voters to cast their ballot for New York State Assemblyman Vito Lopez. The suit, which will be filed tomorrow, claims that the calls violated the Diocese's tax status as a non-profit organization. The complaint asks the court to order the Diocese to surrender its tax exempt status and retroactively pay back taxes. At the same time, a second lawsuit will be filed by a priest and a consortium of clergy sex-abuse survivors claiming that Diocese support for Lopez was a payback for Lopez's key opposition to legislation that would have provided a one-year window for bringing clergy sexual abuse cases as to which the statute of limitations had already expired. (See prior posting.) That suit also names Lopez as a defendant.

Evangelist Oral Roberts Dies

Evangelist Oral Roberts, died today at age 91. The New York Times called him "one of the most recognizable and controversial religious leaders of the 20th century." The Washington Post says "he helped create television evangelism and 'prosperity theology'." The New York Daily News described him as "an Oklahoma faith healer who built an enduring Pentecostal empire and became the first superstar televangelist." He founded Oral Roberts University in 1963.

Arkansas Court Allows Freethinkers Display Next To Capitol's Creche

Yesterday, an Arkansas federal district judge issued a preliminary injunction permitting the Arkansas Society of Freethinkers to place a secular display celebrating the winter solstice and "freethinkers" such as Albert Einstein, Bill Gates and Elanor Roosevelt on the grounds of the Arkansas Capitol near the Christian nativity scene that has been displayed there for more than 50 years. (See prior posting.) The order in Arkansas Society of Freethinkers v. Daniels, (ED AR, Dec. 14, 2009) (full text), indicates that a written opinion will follow. AP reports (via Law.com) that the 8-foot high display will contain an explanation of the solstice and photos of famous freethinkers.

Federal Executive Branch Employees Get Half Day Off On Christmas Eve

Last Friday, President Barack Obama signed an Executive Order (full text) giving employees of all Executive Branch departments and agencies a half day off on the afternoon of Christmas eve. Christmas Day is a legal public holiday under 5 USC Sec. 6103.

Senate Committee Approves Feldblum For EEOC

Last Thursday, the Senate Health, Education, Labor and Pensions Committee approved and sent to the full Senate the nomination of Chai R. Feldblum to be a commissioner on the Equal Employment Opportunity Commission. (Committee press release.) A coalition of conservative Christian groups are attempting to block Feldblum's nomination, concerned about her record as a gay rights activist and her pro-abortion record. (LifeNews, 12/13). A letter opposing the nomination, drafted by the Traditional Values Coalition, has attracted over 100 signers. (Charisma News 12/9). Here is Feldblum's statement at her confirmation hearings last month.

Dutch Court Says Public Transport Company Can Ban Employees From Wearing Religious Necklace

A district court in the Netherlands has ruled that Amsterdam's public transport company, GVB, can prohibit staff from wearing necklaces over their uniforms during working hours, even when a cross, as a religious symbol, is hanging on the necklace. NIS reports today that the suit, brought by an Egyptian Christian male tram conductor, claimed that the ban was discriminatory, especially since Muslim women conductors are allowed to wear headscarves. However the court said that there are other ways to wear a cross, such as on an armband or ring. Also the headscarves that employees are permitted to wear include the GVB logo, so can be seen as part of the uniform instead of a religious symbol.

Final Decision Denies Attorney Fees and Court Costs To High School Teacher

Yesterday's Orange County Register reports that a California federal district judge yesterday issued an opinion affirming an earlier tentative ruling, holding that high school student Chad Farnan is not liable for attorneys' fees incurred by his high school teacher in Farnan's suit against him. Farnan sued high school history teacher James Corbett, the school district and the teachers' union over anti-Christian remarks made by Corbett. While the court found that one statement by Corbett amounted to a violation of the Establishment Clause, it held that Corbett was not liable for damages because he was entitled to qualified immunity. In the current decision, the court concluded that Farnan's suit was not frivolous, baseless or vexatious, a prerequisite for defendant to obtain an award of attorneys fees under 42 USC Sec. 1988. (See prior posting.) The court also reversed an October ruling by the court clerk's office that awarded Corbett court costs. (See prior posting.) Both sides have already appealed the case to the 9th Circuit.

Egyptian Court Reverses Al-Ahzar Ban On Niqab

ANSAmed yesterday reported that in Egypt, the Administrative Tribunal in Cairo has ruled unconstitutional a ban on women students wearing the niqab. The controversy began when in October, Egypt's top cleric, Mohammed Sayyed Tantawi, announced plans to ban women wearing the full face veil from entering any of the schools of Sunni Islam's premier institute of learning, al-Azhar. (See prior posting.) Then Education Minister Yustri El Gamal banned the niqab in public schools. The court ruled that the ban violates personal and religious freedom guaranteed by Egypt's constitution. In 2006, Egypt's Council of State held that American University in Cairo could not ban women from wearing the niqab. (See prior posting.) A committee of the Supreme Administrative Court issued a similar ruling in 2007. (See prior posting.)

Unenforceable North Carolina Provision Barring Atheists From Office Is Focus of Attention [Corrected]

Yesterday's Asheville Citizen-Times reports on a story about a newly-elected Asheville, North Carolina councilman that has inexplicably been carried repeatedly by online media. Cecil Bothwell who took his oath as city councilman last week affirming, rather than swearing, to uphold the law, and not placing his hand on any sacred text, says he is an atheist, or at least a post-theist. All of this is rather unremarkable as is the fact that North Carolina's state constitution (Art. VI, Sec. 8) still has in it now clearly unenforceable language providing that any person "who shall deny the being of Almight God" is disqualified from holding public office. Ever since the U.S. Supreme Court's 1961 decision in Torcaso v. Watkins, it is clear that even though the state never got around to removing the provision from its constitution, it cannot be applied consistent with the U.S. Constitution.

Nevertheless, former Asheville NAACP President H.K. Edgerton, who is a Southern Heritage activist, has suggested that he might sue Bothwell. This news account and others (such as AP) then suggest that such a suit might tie Bothwell up in litigation for years:

But the federal protections don't necessarily spare atheist public officials from spending years defending themselves in court. Avowed atheist Herb Silverman won an eight-year court battle in 1997, when South Carolina's highest court granted him the right to be appointed as a notary despite the state's law.

Overlooked in this suggestion is the fact that Bothwell is in office, while the 1997 case, Silverman v. Campbell, involved a plaintiff who had been denied appointment to office and had to sue to obtain the appointment. The Silverman case specifically held that Art. VI, Sec. 2 of the South Carolina Constitution, a comparable provision requiring a belief in God to hold office, violates the U.S. Constitution.

NOTE: The original version of this posting inaccurately conflated North Carolina and South Carolina.

Rahm Emmanuel Lights National Menorah On Sunday

Yesterday, White House chief of Staff Rahm Emanuel lit the National Menorah on the Ellipse in front of the White House. The event was sponsored by Chabad. According to AP, Emanuel stood in a cherry picker that lifted him up to light the menorah in front of about 1000 onlookers. This is the 30th anniversary of the first National Menorah lighting, attended in 1979 by then-President Jimmy Carter. (Arutz Sheva). According to Chabad, the ceremony featured the U.S. Air Force Band and "The Three Cantors."