Supreme Court Denies Review In Case of Disciplinary Sanctions On Former Kansas AG For Abortion Clinic Investigations

The Supreme Court today denied certiorari in Kline v. Kansas Disciplinary Administrator, (Docket No. 13-1104, cert. denied 4/28/2014) (Order List). In the case, the Kansas Supreme Court imposed an indefinite suspension of the right to practice law on former state attorney general Phillip Kline for 11 violations of the rules of professional conduct in his investigation of abortion clinics while he served as Attorney General and for his role with a citizen-requested grand jury while he served as Johnson County District Attorney. (See prior posting.)

6th Circuit Stays Tennessee Same-Sex Marriage Ruling

In Tanco v. Haslam, (6th Cir., April 25, 2014), the U.S. 6th Circuit Court of Appeals granted a stay pending appeal of a district court preliminary injunction requiring the state of Tennessee to recognize the same-sex marriages of 3 couples who were legally married in other states. (See prior posting.) The Tennessean reports on the decision. [Thanks to How Appealing for the lead.]

Recent Articles of Interest

From SSRN:

• Asma Mushtaq, Akseer Ahmad Abbasi, Maroona Nazir, & Shagufta Omar, Inheritance, (Inheritance, Women Aid Trust, January 2014).
• Larry Catá Backer, The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States, (Cornell International Law Journal, Vol. 48, 2015).
• Robert W. McGee, Attitudes on the Ethics of Tax Evasion: A Survey of Philosophy Professors, (April 14, 2014).
• Robert W. McGee, Gender and the Ethics of Tax Evasion: An Empirical Study of 82 Countries, (April 14, 2014).
• Robert W. McGee & Geoff A. Goldman, Ethics and Tax Evasion: A Survey of South African Opinion, (April 14, 2014).
• Nelson Tebbe, Associations and the Constitution: Four Questions About Four Freedoms, (North Carolina Law Review, Vol. 92, No. 3, 2014).
• Paul Horwitz, More 'Vitiating Paradoxes': A Reply to Steven D. Smith — And Smith, (Pepperdine Law Review, Forthcoming).
• Teresa Hernandez & Robert W. McGee, The Ethical Perceptions of Bribe Taking in Four Muslim Countries, (Journal of Accounting, Ethics and Public Policy, Vol. 15, No. 1, 2014).

From SmartCILP and elsewhere:

• Sarah Barringer Gordon, The First Disestablishment: Limits On Church Power and Property Before the Civil War, 162 University of Pennsylvania Law Review 307-372 (2014).
• Lynn M. Daggett, "Minor Adjustments" and Other Not-So-Minor Obligations: Section 504, Private Religious K-12 Schools, and Students With Disabilities, 52 University of Louisville Law Review 301-331 (2014).
• Religion and Family Planning Under the U.S. Constitution. Articles by Colleen Connell, Lorie Chaiten, Richard Muniz, Steven H. Resnicoff and Tom Judge. 15 DePaul Journal of Health Care Law 1-44 (2013).
• Dina Porat (ed.), Antisemitism Worldwide 2013, European Jewish Congress, April 27, 2014.

Recent Prisoner Free Exercise Cases

In Native American Council of Tribes v. Weber, (8th Cir., April 25, 2014), the 8th Circuit affirmed a district court’s conclusion that South Dakota correctional officials violated RLUIPA by banning Native American inmates’ use of tobacco for religious purposes. Defendants failed to showthat the tobacco ban is the least restrictive means of furthering their compelling government interest.

In Hoeck v. Timme, 2014 U.S. Dist. LEXIS 55059 (D CO, April 21, 2014), a Colorado federal district court found no merit in an inmate's challenge to his conviction in a habeas proceeding complaining that his court appointed counsel would only meet with him between Friday sunset and Saturday sunset, the Sabbath for petitioner.

In Merrick v. Ryan, 2014 U.S. Dist. LEXIS 55738 ( AZ, April 17, 2014), an Arizona federal district court remanded to state court a suit in which an inmate, under his complaint as amended, claimed that the denial of religious materials violated Arizona's Free Exercise of Religion Act.  In his amended complaint he removed all references to federal law.

In Gunderson v. Pharis, 2014 U.S. Dist. LEXIS 55431 (ND IL, April 22, 2014), an Illinois federal district court dismissed on the basis of Younger abstention claims of plaintiff, a Hindu, that he was denied conjugal visits and was given inadequate time for yoga, all of which burdened his religious practices.  Plaintiff is being held at a mental health facility under an ongoing treatment plan after being found not guilty by reason of insanity. The court also dismissed on the merits plaintiffs complaint that he did not have access to an appropriate Hindu spiritual leader.

In Dodds v. Quintero, 2014 U.S. Dist. LEXIS 56487 (D CO, April 23, 2014), a Colorado federal district court dismissed discrimination and free exercise claims by an African-American inmate who practices Judaism against a sheriff's deputy who allegedly greeted plaintiff with the words "Asalam Walakim" while plaintiff was waiting for his kosher breakfast.

In Pouncil v. Tilton, 2014 U.S. Dist. LEXIS 56786 (ED CA, April 22, 2014), a California federal district court permitted a Muslim inmate to move forward with his claim that his rights under RLUIPA were violated by a rule that barred inmates serving a sentence of life without possibility of parole from having conjugal visits.

In George v. County of Westchester, 2014 U.S. Dist. LEXIS 57185 (SD NY, April 10, 2014), a New York federal district court permitted a Jewish inmate to move ahead with  his complaint of denial of Jewish congregate religious services and inadequate hot water and microwave oven for preparation of his kosher food.

In Payne v. Duncan, 2014 U.S. Dist. LEXIS 57335 (MD PA, April 23, 2014), a Pennsylvania federal district court dismissed a Muslim inmate's complaint that his free exercise rights were infringed when his books were confiscated and discarded, preventing him from studying his religion.

In JCG v. Ercole, 2014 U.S. Dist. LEXIS 57417 (SD NY, April 24, 2014), a New York federal magistrate judge recommended that a Messianic Jewish inmate be permitted to move forward with his complaint that the prison's Jewish chaplain refused to approve kosher meals for him or his attendance at Jewish religious services and Jewish holiday celebrations.

New Law Aims To Increase Availability of Kosher and Halal Food In Emergency Assistance Programs

AP in a report today calls attention to a little-noticed provision in the Agriculture Act of 2014 that was signed into law by the President on Feb. 7.  Sec. 4207 of the Act provides for increased purchase of kosher and halal food for the government's emergency food assistance program.  The Section provides:

As soon as practicable after the date of enactment of this subsection, the Secretary shall finalize and implement a plan— 

(1) to increase the purchase of Kosher and Halal food from food manufacturers with a Kosher or Halal certification to carry out the program established under [the Emergency Food Assistance Act] if the Kosher and Halal food purchased is cost neutral as compared to food that is not from food manufacturers with a Kosher or Halal certification; and 

(2) to modify the labeling of the commodities list used to carry out the program in a manner that enables Kosher and Halal distribution entities to identify which commodities to obtain from local food banks.

Court Issues Preliminary Injunction and Halts Other Rulings in Non-Profit's ACA Challenge Until Supreme Court Decides Hobby Lobby

In Fellowship of Catholic Students v. Sebelius, (D CO, April 23, 2014), a Colorado federal district court issued a preliminary injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate against a non-profit Catholic student organization. The court entered the order after the government failed to respond to the plaintiff's motion for a preliminary injunction. The court also stayed discovery and any ruling on plaintiff's summary judgment motion until after the U.S. Supreme Court issues its decision in the Hobby Lobby case. (Full text of orders.) CNS reports on the decision. (See prior related posting.)

Article Recounts Continued Lack of Religious Freedom In Egypt

Today's New York Times carried a front-page article titled Vow of Freedom of Religion Goes Unkept in Egypt. Here are some excerpts:

The architects of the military takeover in Egypt promised a new era of tolerance and pluralism when they deposed President Mohamed Morsi of the Muslim Brotherhood last summer.

Nine months later, though, Egypt’s freethinkers and religious minorities are still waiting for the new leadership to deliver on that promise. Having suppressed Mr. Morsi’s Islamist supporters, the new military-backed government has fallen back into patterns of sectarianism that have prevailed here for decades.

Prosecutors continue to jail Coptic Christians, Shiite Muslims and atheists on charges of contempt of religion..... The military leader behind the takeover, Abdul-Fattah el-Sisi, often appeals to the Muslim majority in a language of shared piety....

... But the complaints about continued sectarianism have not deterred church leaders from firmly supporting Mr. Sisi as their protector against worse treatment by the Muslim majority.

Head of Jewish Free Loan Society Pleads Guilty To Operating An Unchartered Bank In Money Laundering Case

The New Jersey U.S. Attorney's Office announced that on Wednesday criminal defendant Moshe Schwartz pleaded guilty to charges of operating an unchartered bank and aiding in the filing of a false tax return. As reported by the Newark Star-Ledger, the case grows out of the arrest of 46 politicians and Jewish religious leaders in 2009 in an investigation of  money laundering and corruption. (See prior posting.) Schwartz, who was not among those initially arrested, headed a supposed charitable organization, Gemach Shefa Chaim. The organization was created to provide interest-free loans to needy members of the Sanz Hasidic community in Union City, New Jersey.  However it was also used to launder millions of dollars, free from oversight by banking regulators.  By 2009, the Gemach had 350 client accounts. It accepted deposits from the clients and then made wire transfers and wrote Genach checks at the direction account holders to disburse funds. Schwartz, who will be sentenced in July, could face up to 5 years in prison.

Alabama Supreme Court Concurrence Relies On Natural Law Argument To Define Fetus as A "Child"

In a blog post yesterday, Americans United called attention to the concurring opinion of Alabama Supreme Court Chief Justice Roy Moore in Ex parte Hicks, (AL Sup. Ct., April 18, 2014). In the case, in an 8-1 decision, the Court upheld the conviction of Sarah Janie Hicks for ingesting cocaine while pregnant, concluding that "the use of the word 'child' in the chemical-endangerment statute includes all children, born and unborn." Justice Parker's majority opinion focused mainly on legislative intent.  Chief Justice Moore's concurrence, however, made a broader natural law argument, rooted in language from the Declaration of Independence.  He wrote in part:

[A]s stated by James Wilson, one of the first Justices on the United States Supreme Court: "Human law must rest its authority ultimately upon the authority of that law which is divine." ***

 Under the Equal Protection Clause of the Fourteenth Amendment, states have an obligation to provide to unborn children at any stage of their development the same legal protection from injury and death they provide to persons already born. Because a human life with a full genetic endowment comes into existence at the moment of conception, the self-evident truth that "all men are created equal and are endowed by their Creator with certain unalienable rights" encompasses the moment of conception. Legal recognition of the unborn as members of the human family derives ultimately from the laws of nature and of nature's God, Who created human life in His image and protected it with the commandment: "Thou shalt not kill." Therefore, the interpretation of the word "child" in Alabama's chemical-endangerment statute, § 26-15-3.2, Ala. Code 1975, to include all human beings from the moment of conception is fully consistent with these first principles regarding life and law.

Trinity Western Grads Will Not Be Eligible For the Ontario Bar

The controversy over Canada's newest proposed law school-- Christian affiliated Trinity Western-- continues. At the center of the controversy is a provision in the school's "community covenant" that calls for abstention from "sexual intimacy that violates the sacredness of marriage between a man and a woman." The Toronto Star reports that after receiving approval earlier this month from the Law Society of British Columbia-- the school's home province-- yesterday the school suffered a defeat in the province of Ontario.  The Law Society of Upper Canada voted 28-21 against granting the school accreditation. This means that the school's graduates will not be permitted to apply for admission to the bar in Ontario.  A vote is expected today by the Nova Scotia Barristers' Society, and in June by the Law Society of New Brunswick.

UPDATE: On April 25, the Nova Scotia Barristers' Society voted 10-9 to only give provisional accreditation to Trinity Western law school. Its graduates will be allowed to enroll in the province's bar admission program only if the school drops its Community Covenant that bars same-sex intimacy.  If the Covenant is not dropped graduates will not be allowed to article in the province, but they can still practice in Nova Scotia according to the Prince George Citizen.

Excluding Churches From Unemployment Compensation Coverage Does Not Violate 1st or 14th Amendment

In Spicer v . Texas Workforce Commission, (TX App., April 22, 2014), a Texas state appellate court upheld the statutory exclusion of persons employed by churches from Texas' unemployment compensation coverage.  Appellant, formerly an organist and pianist for a Methodist church, claimed that denying him unemployment compensation violates his free exercise and equal protection rights. The court disagreed.  Appellant also argued that the exemption of churches from the tax required  by the unemployment compensation system violates the Establishment Clause. Again the court disagreed, saying in part:

a number of types of work are excluded from employment under the TUCA, reflecting the Legislature’s decision that the entities for whom that work is performed should not be subject to the burden of paying the tax required by the unemployment compensation system..... The breadth of the exemptions demonstrates the exemption ... was not “aimed at establishing, sponsoring, or supporting religion."

Sri Lanka Deports British Tourist Because of Buddha Tattoo

BBC News reports that on Monday a British tourist in Sri Lanka was arrested, ordered deported by a magistrate and placed in an immigration detention camp until she is sent back to the UK because she has a tattoo of Buddha on her arm. Sri Lankan police say tourist Naomi Coleman with hurting the religious feelings of others. Coleman was originally cleared through the airport, but two taxi drivers and a plain clothes policeman later took her to a police station when they saw the tattoo.

UPDATE: According to AFP report, on May 21, 2014 Coleman filed suit against Sri Lankan police, immigration and prison officials over the incident. The suit in the Supreme Court in Colombo seeks the equivalent of $78,000 (US) in damages.

Cert. Petition Filed In Challenge To California's Ban On Teen Repairative Therapy

In a press release yesterday, the Pacific Justice Institute announced that it has filed a petition for certiorari with the U.S. Supreme Court in Pickup v. Brown. In the case, the 9th Circuit upheld the constitutionality of California's  ban on state-licensed mental health providers engaging in sexual orientation change efforts with patients under 18. (See prior posting.)

Suit Claims FBI Infringes Muslims' Free Exercise Rights By Using No Fly List To Coerce Them To Become Informants

The Center for Constitutional Rights yesterday announced the filing of a lawsuit against the FBI on behalf of four American Muslim men who were placed on the No-Fly List after they refused to work as FBI informants in their religious communities, or were told they would be removed from the List only if they agreed to work with the FBI.  The complaint (full text) in Tanvir v. Holder, (SD NY, filed 4/22/2014) claims that the FBI's actions violate plaintiffs' procedural due process rights, 1st Amendment free exercise rights and the Religious Freedom Restoration Act. It alleges in part:

65.  Many American Muslims, like many other Americans, and many followers of other religions, have sincerely held religious and other objections against becoming informants in their own communities, particularly when they are asked to inform on the communities as a whole rather than specific individuals reasonably suspected of wrongdoing. Acting as an informant would require them to lie and would interfere with their ability to associate with other members of their communities on their own terms. For these American Muslims, the exercise of Islamic tenets precludes spying on the private lives of others in their communities.

66. The FBI uses the No Fly List to coerce American Muslims into becoming informants and to retaliate against them when they exercise constitutionally protected rights.

Washington Post reports on the lawsuit.

Court Dismisses Episcopal Priest's Suit Against Bishop Who Fired Him

In Warnick v. All Saints Episcopal Church, (PA Com. Pl., April 15, 2014), a Pennsylvania trial court dismissed a suit brought by Episcopal priest Jeremy Warnick against All Saints Episcopal Church (his former parish), the Episcopal Bishop of Pennsylvania and three All Saints congregants.  The suit, alleging contract and defamation claims, challenges Bishop Charles Bennison's revocation of Warnick's license to minister in Pennsylvania, the Bishop's letter to the congregation explaining the decision and statements made by three congregants at a church meeting. The controversy revolved around Warnick's proposal for a radical restructuring of the parish.  It also involved complaints that Warnick was living on week ends with a woman (who he then married in a Methodist ceremony) before his divorce from his wife was finalized, and Warnick had posted answers to a "sexual position quiz" on Facebook.

After Warnick unsuccessfully pursued a canonical complaint against Bennison, he filed this civil lawsuit. The court held that both the First Amendment requirement of deference to ecclesiastical courts and the ministerial exception doctrine require dismissal of the complaint. The court added that even if all the claims were not barred by the First Amendment, "Father Warnick’s claims fail as a matter
of law because the undisputed evidence shows that necessary elements have
not been shown for defamation, contract and civil conspiracy claims."

Georgia Lawsuit Is Latest To Challenge Same-Sex Marriage Ban

Lambda Legal announced yesterday that it has filed suit in federal district court in Georgia on behalf of three same-sex couples and a widow challenging Georgia's statutory and state constitutional bans on same-sex marriage. The complaint (full text) in Inniss v. Aderhold, (ND GA, filed 4/22/2014) was filed as a class action and challenges both the ban on same-sex marriage and the non-recognition of same-sex marriages performed in other jurisdictions. According to a Washington Post compilation, with the filing of this lawsuit, only four states-- Alaska, Montana, North Dakota and South Dakota-- have same-sex marriage bans that are not being challenged in court; and a suit is in the offing in South Dakota.

Suit Charges Student Not Admitted To Community College Program Because of His Expression of Religious Beliefs

ACLJ announced yesterday that it has filed a federal lawsuit on behalf of student Brandon Jenkins against The Community College of Baltimore County Maryland for denying Jenkins admission to the school's radiation therapy program in part because of Jenkins' expression of his religious beliefs. The complaint (full text) in Jenkins v. Kurtinitis, (D MD, filed 4/21/2014) alleges that the program director explained Jenkins' rejection in part as follows:

I understand that religion is a major part of your life and that was evident in your recommendation letters, however, this field is not the place for religion. We have many patients who come to us for treatment from many different religions and some who believe in nothing at all. If you interview in the future, you may want to leave your thoughts and beliefs out of the interview process.

Brunei Postpones Phase-In of Sharia Criminal Code

The small southeast Asian nation of Burnei has postponed implementation of a new sharia criminal code that had been scheduled to take effect today. According to AFP, no new date has been given for implementing the phase-in of sharia penalties that eventually will include flogging, severing of limbs and death by stoning. AFP says:

Burnei’s Sultan Hassanal Bolkiah — the driving force behind sharia — is visiting Singapore, and the government is believed to be waiting for the all-powerful Islamic monarch to return before introducing the sensitive legal code.

But the delay could feed perceptions of hesitation by the 67-year-old sultan — one of the world’s wealthiest men — who earlier this year faced a backlash from the country’s social-media-savvy citizens.

City Council Settles Suit By ending Invocations, Abolishing Chaplain Position

The Freedom From Religion Foundation announced last week that it has reached a settlement with the city of Pismo Beach, California which it sued last year challenging its practice of opening city council meetings with Christian prayer, usually offered by the city chaplain who is a Pentecostal clergyman. (See prior posting.) In the settlement, which must be approved by the court, the city agreed to end its practice of opening meetings with prayer, abolish the city chaplain position, and pay plaintiffs nominal damages and attorney fees of about $47,500. [Thanks to Andrew Seidel for the lead.]

Suit Challenges Daily School Recitation of Pledge of Allegiance

The American Humanist Association announced yesterday that it has filed suit in a New Jersey state court challenging New Jersey's statutory requirement that schools open each day with the Pledge of Allegiance that includes the phrase "under God."  The complaint (full text) in American Humanist Association v. Matawan-Aberdeen Regional School District, (NJ Super Ct., filed 4/19/2014) which raises only state constitutional claims contends that the daily classroom exercise unconstitutionally discriminates on the basis of religion against plaintiffs who hold Humanist or atheist religious views.