Trial Court Erred In Allowing Police To Remove Pastor At Request of Dissident Group

As reported by the Colorado Springs Gazette, in St. John’s Baptist Church Governing Body v. Sutton a Colorado state court of appeals on Thursday held that a state trial court judge acted improperly when he issued an order allowing police to remove a pastor from his pulpit.  The order came at the request of a dissident group in St. John's Baptist Church which formed a separate Governing Board in 2011 and ordered the pastor out. The Court of Appeals said in part:

The [trial] court made a decision regarding ecclesiastical internal governance and organization; it determined for the church who represented its interest, a governing decision belonging only to the church.

The Court of Appeals said that ownership of the church's property should be determined by the trial court through an examination of  deeds, articles of incorporation, bylaws and other documents. (Note: because of policies of the Colorado Court of Appeals, the full text of its unpublished opinions may not be posted on any electronic database.)

District Court Invalidates Michigan Ban on Same-Sex Marriage; 6th Circuit Stays Order

In DeBoer v. Snyder, (ED MI, March 21, 2014), a Michigan federal district court held that Michigan's state constitutional ban on same-sex marriage violates the 14th Amendment's equal protection clause.  The case began as a constitutional challenge to Michigan's adoption laws which only allow single persons or married couples to adopt.  Plaintiffs were a same-sex couple who were precluded from marrying under Michigan law.  The court invited plaintiffs to amend their complaint to challenge the Michigan Marriage Amendment which the court saw as the underlying reason plaintiffs could not jointly adopt children. Plaintiffs did so, and the court held a two-week trial, largely devoted to expert testimony about whether children raised by heterosexual parents did better than those raised by same-sex couples. The court's opinion discusses the expert testimony at length, ultimately concluding that the state has no rational basis for preventing same-sex couples from marrying. ACLU of Michigan issued a press release announcing the decision.

Ten minutes after the district court's March 21 opinion was handed down, Michigan state attorney general Bill Schuette filed an emergency motion asking the 6th Circuit to stay the district court's order, pending appeal. (Detroit Free Press.) On March 22, the 6th Circuit issued an order directing plaintiffs to respond by March 25, and a second order temporarily staying the district court's judgment until March 26 "to allow a more reasoned consideration of the motion."

Meanwhile, clerk's offices in four Michigan counties opened Saturday morning to allow same-sex couples to obtain licenses, and, according to AP, over 300 licenses were issued before the 6th Circuit called a halt to their issuance by its stay.  The attorney general's office declined to say whether the state would recognize these marriages, saying "the courts will have to sort it out."

New IRS Exempt Organization Head Speaks On Priorities

BNA Daily Report for Executives (subscription required) reports on the first public comments by Tamera Ripperda, the Internal Revenue Service's new director of Exempt Organizations.  Speaking yesterday at the Washington Non-Profit Legal and Tax Conference, she said that a key focus for IRS this fiscal year is to reduce the backlog of applications for tax exemptions.  Her goal is to close the oldest cases-- mostly applications under Section 501(c)(3)-- by the end of June. Examination of non-profits will focus on protection of charitable assets, activities that jeopardize exempt status, and international issues, and will involve an expanded use of data analytics.

Georgia Legislature Allows Guns In Churches That Want Them; Reduces Penalty For Carrying In Other Churches

As it wound up its legislative session, the Georgia General Assembly yesterday gave last minute final passage to HB 60 as amended which expands the places in which persons holding weapons-carry permits may bring firearms.  The bill, among other things, allows firearms to be carried in houses of worship if "the governing body or authority of the place of worship" permits it. However, the bill provides a minimal punishment for a person who holds a weapons carry licence and brings a weapon into a place of worship that has not opted permit firearms.  The person may not be arrested and may be fined not more than $100. The final version passed the Senate by a vote of 37-18 and the House by a vote of 112-58. The bill now goes to the governor for his signature. Atlanta Journal Constitution reports on the bill's passage.

Court Grants Stay Pending Appeal In Kentucky Same-Sex Marriage Case

In Love v. Beshear, (WD KY, March 19, 2014), a Kentucky federal district court granted a stay pending appeal to the 6th Circuit of its prior decision requiring recognition of same-sex marriages validly performed in other states. Previously the court had stayed its order only until March 20. (See prior posting.)  The state argued that failure to extend the stay would result in "chaos."  In granting the further stay pending appeal, the court found persuasive arguments on both sides, but said that it was strongly influenced by the U.S. Supreme Court's action in granting a stay in the Utah same-sex marriage case.  The district court said in part:

Perhaps it is difficult for Plaintiffs to understand how rights won can be delayed. It is a truth that our judicial system can act with stunning quickness, as this Court has; and then with sometimes maddening slowness. One judge may decide a case, but ultimately others have a final say. It is the entire process, however, which gives our judicial system and our judges such high credibility and acceptance.... It is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well.

Louisville Courier-Journal reports on the decision. [Thanks to Tom Rutledge for the lead.]

Muslim Woman Sues Gym For Refusing To Allow Head Covering

The Albuquerque Journal reported yesterday on a religious and racial discrimination lawsuit filed in New Mexico state court by a Muslim woman (who is also African-American) who was not permitted to enter a Planet Fitness gym because she was wearing a head covering. A Planet Fitness attorney says the gym did not know the head covering was for religious purposes and that it violated the gym's dress code that prohibits jeans, work boots, bandanas, skull caps and revealing apparel. Plaintiff Tarainia McDaniel, who holds a two-year membership in the gym, says she was told that while the dress code was sometimes waived, it could not be in her case because her head covering was red. The lawsuit alleges racial and religious discrimination in violation of the New Mexico Human Rights Act and the New Mexico Unfair Practices Act.

Appeals Court Upholds Religious Restrictions As To Children In Divorce Case

In In re the Marriage of Suzanne Paulsen and Timothy Paulsen, (WA App., March 19, 2914), a Washington state appeals court upheld a trial court's parenting plan that was entered along with a decree dissolving the marriage of the Paulsens. Among other restrictions on the father, the appeals court upheld the trial court's award to the mother, Suzanne Paulsen, of sole decision-making power as to the children's religious upbringing.  It also affirmed the trial court's ban on the father, Timothy Paulsen, engaging in prayer or discussion of religious matters with the children.  The religious restrictions, as well as visitation restrictions, were justified by evidence that Timothy, as a junior high school teacher, had sexually abused students, using religion and prayer as a technique to weaken their defenses to his sexual approaches.

Court Upholds Conviction of Pastor For Conspiracy To Commit Child Abuse

In State of Wisconsin v. Caminiti, (WI App., March 20, 2014), a Wisconsin state court of appeals upheld the conviction of the pastor of a small, close-knit religious community on eight counts of conspiracy to commit child abuse.  Philip Caminiti taught his followers that they should discipline fussy infants starting as young as 2 or 3 months by forcefully striking their bare bottoms with wooden spoons and dowels. He claimed that the Bible gives specific instruction on what tools to use, and he demonstrated to his congregation the correct degree of force.  During church services Caminiti would look at parents whose child was crying to indicate that they should discipline the child. The court rejected Caminiti's free expression, free exercise of religion and parental rights defenses. The court held that the state has a compelling interest in preventing child abuse, and that the state's "reasonable discipline" privilege for parents strikes an appropriate constitutional balance.

Court Refuses To Permit Interlocutory Appeal In Case Challenging Compliance With Church Plan Exemption To ERISA

In Rollins v. Dignity Health, (ND CA, March 17, 2014), a California federal district court refused to permit an interlocutory appeal of a decision holding that the pension plan for employees of  Dignity Health, a 16-state non-profit Catholic healthcare provider, does not qualify for the "church plan" exemption in ERISA. (See prior posting.)  The court concluded that the issue presented does not rise to the level of a "controlling question of law" which must be shown to justify appeal before the case is finally decided.  The court said:

If Dignity’s plan were not exempt, the Court would still have to consider Dignity’s ERISA compliance. And if the Dignity plan was held to be exempt, the Court would then have to consider Rollins’s claim regarding the constitutionality of such an exemption. Given these complicated, possibly divergent, and even potentially convergent paths the litigation could take, the Court agrees with Dignity that an interlocutory appeal could significantly alter the course the litigation would take. Nevertheless, the Court concludes that the issue proposed for appeal would not so materially affect the entire nature of the litigation, or its outcome, to justify interlocutory review.

As reported by BNA Daily Report for Executives (subscription required), the case is one of five class actions around the country filed last year challenging pension plan sponsors' reliance on the church plan exemption to justify non-compliance with ERISA. A sixth class action raising the same kind of challenge was filed earlier this week.

British Court Dismisses Fraud Charges Against President of Mormon Church

In Phillips v. Monson, (Westminster Magistrate's Court, March 20, 2014), a British magistrate's court set aside two summonses for fraud that were issued by the court last month ordering the president of the Church of Jesus Christ of Latter-day Saints to appear to answer to charges that seven specified teachings of the Mormon church violated Britain's Fraud Act 2006. The summons were issued on the complaint of a private citizen-- a former member of the Mormon church who runs a website critical of the church. (See prior posting.) In yesterday's decision, the court concluded that the essential elements of a fraud violation were not set forth in the information presented. The magistrate judge went on to find:

It is obvious that this proposed prosecution attacks the doctrine and beliefs of the Mormon Church, and is aimed at those beliefs rather than any wrong-doing of Mr. Monson personally.  The purpose is to use criminal proceedings to expose the false (it is said) facts on which the church is based.

.... To convict, a jury would need to be sure that the religious teachings of the Mormon Church are untrue or misleading.... No judge in a secular court in England and Wales would allow that issue to be put to a jury.  It is non-justiciable.

I am satisfied that the process of the court is being manipulated to provide a high-profile forum to attack the religious beliefs of others.  It is an abuse of the process of the court.

BBC News and Deseret News report on the decision. [Thanks to Austin Smith for the lead.]

Fred Phelps, Founder of Anti-Gay Westboro Baptist Church, Dies

As reported by CNN, Fred Phelps, Sr., founder of the Topeka, Kansas- based Westboro Baptist Church, died today at age 84.  Members of the church became known for their picketing of funerals of U.S. service members, as well as other events, with signs decrying homosexuality.  Perhaps their most famous sign read "God Hates Fags."  The church claims to have picketed over 53,000 events. It has extended its rhetoric to oppose to many other celebrities and religious groups as well.  Westboro's activity led to anti-funeral picketing laws being enacted at both the federal and state levels, and extensive litigation over some of those laws. It was reported earlier this week that elders in the Westboro Baptist Church had excommunicated Phelps. Wikipedia has more on Phelps' life.

IRS Says 2 Religious Organizations Do Not Qualify As Non-Profits

Last week, the Internal Revenue Service made public (with identifying information redacted) two Written Determinations handed down in December finding that two different religious organizations do not qualify for Section 501(c)(3) non profit status.

In Release No. 201411037, the IRS concluded that a church's earnings inure to the benefit of its president from whom the church leases an unusable warehouse building.  Over 80% of the church's revenues are used to pay rent, insurance and utilities on the building.

In Release No. 201411038, the IRS concluded that an organization formed to help small struggling synagogues throughout the United States develop strategic management plans is not operated exclusively for charitable, educational or religious purposes. A substantial part of the organization's operations involves offering in a commercial manner consulting and Jewish heritage travel tours. The revenues from these benefit the two founders of the organization.

Missing Malaysian Flight Generates Unusual Interfaith Cooperation In Malaysia

AP reports that the disappearance of Malaysia Airlines Flight 370 has led to interfaith cooperation in Malaysia that is unusual in light of the intense controversies between the country's Muslim majority and religious minorities (particularly Christians and Hindus). On Tuesday, an interfaith prayer service was held in a Kuala Lumpur shopping mall-- with participation by Muslims, Christians, Buddhists, Hindus and Taoists. Interfaith prayer services in the past have never had Muslim participation.

Establishment Clause Violation Via Twitter?

On Monday, the Freedom From Religion Foundation (press release) wrote a letter (full text) to Wisconsin Governor Scott Walker claiming that a "tweet" he posted to his official Twitter and Facebook accounts violated the Establishment Clause.  The tweet read "Philippians 4:13"  The Biblical verse referred to reads: "I can do all things through Christ, who strengthens me."  In requesting the governor to delete the message, FFRF said the quote seems more like "the utterance of a theocratic dictator, than of a duly elected civil servant." It went on:

As governor, you took an oath of office to uphold the entirely godless and secular U.S. Constitution.  You have misused your secular authority ... to promote ... one religion over another....

The posts have not been removed. [This is a correction. An earlier version of this posting incorrectly stated that they had been removed. [Thanks to Bill Dunn for the correction.]]

Muslim Couple Claims Discrimination When Forced Off Empire State Building Deck For Praying

Huffington Post and OnIslam report yesterday on a lawsuit filed in federal district court in New York by a Muslim couple who claim that they and their two children were forcibly escorted off the observation deck of the Empire State Building, down the elevator and out of the building, for engaging in Muslim prayer.  They say they chose an area on the observation deck where there was little foot traffic to observe their 11 p.m. prayers last July.  A guard poked the husband and told him that  he was not allowed to pray while at the Observatory. The suit alleges they were targeted because they were Muslim, wearing traditional Muslim attire and engaged in Muslim prayer. It goes on to allege that owners of the building and their security personnel "have an unlawful policy, custom, practice, procedure and/or rule, whether express or implied, of barring patrons from exercising their religious beliefs in the Empire State Building and/or the Observatory."

Recent Prisoner Free Exercise Cases

In Kyles v. Chartier, 2014 U.S. Dist. LEXIS 32623 (D SC, March 13, 2014), a South Carolina federal district court upheld prison authorities' decision to permit an inmate to keep only 5 of his 19 books which he claimed he needed for a religious correspondence course.

In Gadsden v. Carpenter, 2014 U.S. Dist. LEXIS 32660 (D NV, March 13, 2014), a Nevada federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 32662, Jan. 29, 2014) and dismissed plaintiffs' claim that the flattening of religious grounds used by pagan inmates violated their free exercise rights. The court also rejected claims that officials retaliated against plaintiffs for filing grievances regarding the destruction of the pagan grounds.

In Pagan v. Westchester County, 2014 U.S. Dist. LEXIS 33408 (SD NY, March 12, 2014), a New York federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 33066, Feb. 3, 2014), and, while dismissing a number of claims, permitted inmates to move forward on (1) a complaint by Catholic inmates that they were no longer allowed to attend mass after they switched their religious designations in order to get kosher food merely because other food was undercooked and insufficient in amount; and (2) complaints by Muslim inmates that halal meals were undercooked and served on moldy trays, and the only alternative offered was a bologna sandwich that is in violation of religious dietary rules.

In Pino v. Ladd, 2014 U.S. Dist. LEXIS 33858 (ED CA, March 14, 2014), a California federal magistrate judge dismissed, with leave to amend, a Native American inmate's complaint that during a search of the Native American sweat lodge, authorities destroyed the fire pit, sacred mound, prayer ties and "nests of baby migratory birds."

In Cooper v. New Hampshire State Prison, 2014 U.S. Dist. LEXIS 33875 (D NH, March 13, 2014), a New Hampshire federal district court dismissed a Muslim inmate's complaint that on two occasions he was served meals that contained pork.

Court Rejects Vagueness Attack On Missouri Funeral Picketing Law

In Phelps-Roper v. Koster, (WD MO, March 10, 2014), a Missouri federal district court rejected a vagueness challenge to a Missouri statute that bans:

picketing or other protest activities within three hundred feet of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral.

Plaintiff Shirley Phelps-Roper, a member of the Westboro Baptist Church which often pickets funerals with signs opposing homosexuality, argued that the "one hour prior to the commencement of any funeral" provision is unconstitutionally vague because  published funeral times are frequently changed, and the person conducting a funeral may start it early. The court disagreed, saying that hypothetical situations not before the court will not be used to invalidate a statute that is valid in the vast majority of its applications. The court also rejected a vagueness challenge to the statutory provision that triggered the current ban's taking effect.  AP last week reported on the decision.

Meanwhile, the Topeka Capital-Journal this week reported on power shifts within the Westboro Baptist Church. Church founder Fred Phelps Sr., who is seriously ill and has been admitted to a hospice, was excommunicated on recommendation of a board of male elders, apparently because he advocated kinder treatment of fellow church members. Former spokesperson and church attorney Shirley Phelps-Roper has lost influence in the church; its spokesman is now apparently Steve Drain.

Salvation Army Settles Suit Challenging Its Religious Mandates To Government Funded Social Service Workers

The New York Civil Liberties Union announced the approval yesterday of a settlement in Lowe v. The Salvation Army, a 10-year old lawsuit on behalf of 19 Salvation Army employees, including two who claim they were fired in retaliation for protesting the imposition of religious requirements on employees paid with government grant money.  A 2003 national reorganization plan by the Salvation Army led to blurring the separation between the organization's government-funded social service programs that employ some 300 people in New York, and its religious mission.  It began to require employees paid with government funds to give information on their religious affiliation and frequency of church attendance, and to commit themselves to providing social services in a manner consistent with the Christian religious principles of the Salvation Army.

In 2010 the NYCLU settled claims against government agencies that had also been sued.  They agreed to monitor the Salvation Army to make sure it does not impose religion on recipients of government-funded social services. In yesterday's settlement, the Salvation Army agreed to provide employees in government-funded positions with a document indicating that it abides by equal employment opportunity provisions as to creed and sexual orientation, will not inquire into employees' religious beliefs, and requires its employees to furnish social services using sound practices without regard to whether they conflict with Salvation Army religious principles. However employees may not undermine the Salvation Army's religious mission. In the settlement, the Salvation Army will also pay $450,000 for damages and attorneys' fees. Newsmax reports on the settlement.

Court Dismisses Pastor's Contract Claim On 1st Amendment Grounds

In Reese v. General Assembly of Faith Cumberland Presbyterian Church in America, (TX App., March 14, 2014), a Texas appellate court dismissed on 1st Amendment grounds a lawsuit brought by a pastor who was fired less than two years into his 5-year employment contract with a Presbyterian congregation.  Pastor Charles Reese sued the church for damages alleging breach of contract and intentional infliction of emotional distress. The court said in part:

To determine the efficacy of his claims, the courts would have to decide whether the termination of his employment was wrongful or premature. The free exercise clause of the Constitution prohibits the courts from reviewing employment decisions regarding ministers....

Here, if the Court were to second guess the Church’s decision to terminate Reese it would deprive the Church of its right “to shape its own faith and mission” by “imposing an unwanted minister.” Further, Reese is seeking damages nearly identical to those sought by the respondent in Hosanna-Tabor. As such, any monetary award by the Court would “operate as a penalty on the Church for terminating an unwanted minister.” Clearly, failure to extend the crux of Hosanna-Tabor to the instant case would result in the untenable consequence of the Court establishing religion and preventing the free exercise thereof in violation of the First Amendment.

Israeli Trial Court Dismisses Negligence Charges Against Mohels -- No Law Broken

Haaretz reports that an Israeli Magistrate's Court in the city of Ashkelon last week acquitted two individuals who had been charged with criminal negligence in connection with the Jewish ritual  circumcision of a baby boy. One of those charged was a well known mohel with many years of experience, and the other was a student from overseas learning from him.  They jointly performed a circumcision in which a baby boy suffered excessive bleeding, but no lasting harm.  Criminal charges were filed when it was learned that the experienced mohel's certification from Israel's Chief Rabbinate had expired, and the student had not yet been certified.

During the trial, though, it became clear that no law had been broken.  In the past, legislation has been introduced into Israel's Knesset to set standards for who may perform ritual circumcisions.  Proposals have not passed because technically Jewish law imposes the obligation on the father to circumcise his son.  Usually fathers delegate the task to a professional mohel.  But if a father who did not meet legislative criteria chose to perform the circumcision himself, the law would be imposing criminal penalties on the performance of a religious obligation.  This could create freedom of religion concerns. Magistrate Judge Haim Nachmias however in dismissing the charges wrote:

The legislators would be wise to regulate the profession of performing circumcisions, and the supervision of those performing this religious commandment, through legislation.  And it would be better had this been done already.