South Dakota Suit Challenges Ban on Same-Sex Marriage

On Thursday, six couples filed a lawsuit in federal district court in South Dakota challenging the constitutionality of South Dakota's constitutional and statutory ban on same-sex marriage.  The complaint (full text) in Rosenbrahn v.  Daugaard, (D SD, filed 5/22/2014), contends that the ban violates the due process and equal protection clauses of the 14th Amendment, and that the refusal to recognize same-sex marriages performed elsewhere also violates plaintiffs' right to travel. As reported by AP, South Dakota Attorney General Marty Jackley says that he is obligated by law to defend the state's ban.  With the filing of this lawsuit, only North Dakota with a ban on same-sex marriage that has not been challenged in the courts.

More Indictments In Kidnappings To Obtain Jewish Divorces From Recalcitrant Husbands

Yesterday the U.S. Attorney's Office for the District of New Jersey announced a new series of grand jury indictments in the investigation that began in 2011 of kidnappings and assaults to force recalcitrant Orthodox Jewish husbands to give their wives a religious divorce document (get). (See prior posting.) Yesterday's indictments charged four Orthodox Jewish rabbis and one of their sons with kidnapping and conspiracy. They face maximum sentences of life in prison. According to AP, the attorney for Rabbi Jay Goldstein, one of those charged, said  that the case was "overcharged" and that prosecutors failed to take into account the individual circumstances of the women who were aided in obtaining divorces. Attorneys for other defendants called the charges false.

UPDATE: Jewish Voice reports that on May 24, FBI agents made two more arrests on kidnapping charges growing out of a 2009 abduction of a man in order to force him to give his wife a get.  The two were charged in a criminal complaint, taken before a  magistrate and released on $500,000 bail plus home detention and electronic monitoring.  The two who were charged are David Epstein (who was also name in the indictment described in the main posting) and Chaim Rubin.

Russian Court Imposes Sanctions On Library of Congress For Failure To Return 7 Religious Books On Loan

Last year, a D.C. federal district court held the Russian government and three of its agencies in civil contempt for not complying with a 2010 default judgement ordering them to return two expropriated collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States.  The court  imposed civil sanctions of $50,000 per day until defendants comply with the court's order. (See prior posting.) In response, the Russian government filed suit in a Russian court to force the U.S. Library of Congress to return seven books from one of the two collections that were loaned to it. (See prior posting.) Now, according to The Forward, a Moscow arbitration court ruled yesterday that the Library of Congress must pay $50,000 in fines for every day the seven books are not returned. Russia claims that the books were loaned to the Library of Congress in 1991 for 60 days, but have never been sent back to Russia.

10th Circuit OK's Discipline of Police Officer Who Refused Order On Attendance At Mosque's Police Appreciation Event

In Fields v. City of Tulsa, (10th Cir., May 22, 2014), the U.S. 10th Circuit Court of Appeals dismissed a civil rights complaint filed by Tulsa, Oklahoma police captain Paul Fields who refused to comply with an order requiring him to arrange for two officers and a supervisor from his shift to attend a law enforcement appreciation day held at the Islamic Society of Tulsa. Fields objected that the order required him to enter a Mosque.  The department suspended Fields for 10 days without pay and transferred him to a less attractive shift because of his refusal. Fields sued, claiming violations of the free exercise clause, establishment clause, his right to freedom of association and the equal protection clause.  The court rejected all of these claims. The court held there was no free exercise violation because Fields wan not personally required to attend under the order. The event was a thank you from the Islamic community to the police department and did not require anyone to participate in religious activities. Tours of the mosque and discussions of Islam at the event were purely voluntary.

The court also upheld the refusal to allow Fields to amend his complaint to allege retaliation for filing the lawsuit in violation of his free speech rights. It concluded that the police department had a compelling interest that outweighed any restriction on speech. The Tulsa World reports that Fields lawyer says he will seek en banc review of the decision.

Washington Supreme Court Says Anti-Discrimination Law Requires Reasonable Accommodation of Religious Beliefs

In Kumar v. Gate Gourmet, Inc., (WA Sup. Ct., May 22, 2014), the Washington state Supreme Court, in a 5-4 decision, held that Washington's Law Against Discrimination implies a requirement that employers reasonably accommodate employees' religious practices. It went on to hold that the employees of an airport food service company stated a prima facie claim for failure to reasonably accommodate their religious dietary needs. For security reasons the employees could not bring their own food to work or leave for lunch, so the company furnished meals. However employees allege that the beef-pork meatballs served did not meet their religious requirements, and that when they informed the company it initially deceived them into eating food that violated their religious beliefs and then refused to accept any of the employees' proposed accommodations. The majority found that the employees had also adequately stated claims for disparate impact, battery, and negligent infliction of emotional distress.

Justice Madsen's dissent argued that implying a cause of action for reasonable accommodation improperly encroaches on the legislature's function. Even if it is implied, it should not be applied on these facts because there was no actual or threatened adverse employment action taken against the employees.

Suit Claims High School Teachers Indoctrinated Girls Into Religious Cult

A lawsuit filed last Monday in Connecticut federal district court claims that three Spanish teachers and a guidance counselor at Connecticut's Avon High School engaged in "unlawful and predatory religious indoctrination of students."  The 64-page complaint (full text) in Doe v. Mastoloni, (D CT, filed 5/19/2014), alleges 24 separate causes of action against the teachers, counselor, the Avon school district and Wellesley College. Brought by the parents of 3 daughters who were allegedly indoctrinated, and one of the daughters who broke free of the indoctrination, the complaint alleges:

6. All three girls experienced sudden and severe personality changes. They became flat and distant, reclusive, secretive, and non-communicative. They lost their humor and their empathy. They began speaking in a bizarre new language. They became unable to think critically or independently. They became dependent on the school teachers and guidance counselor who had indoctrinated them, especially Defendant Tanya Mastoloni.

7. On information and belief, the two older Doe sisters were indoctrinated into a religious cult that promotes martyrdom, and celebrates death. This has caused the elder Doe sisters to experience fantasies of suicidal ideation and martyrdom.

8. The youngest Doe daughter, J.D., was targeted to be indoctrinated into the same belief system, but she eventually broke free. J.D. has now joined her parents as a Plaintiff in this case.

9. The other two Doe daughters have, at the urging of Defendants Mastoloni, Kessler, Esposito, and Sullivan, cut off all of their communications with the rest of the Doe family, including extended family. They have also cut off all of their communications with their friends.

10. Defendants Mastoloni, Kessler, Esposito, and Sullivan pose a serious threat to the Avon community and the public at large. They each exert significant influence over the impressionable high school students who have been entrusted to their care. There is an obvious power differential between students and their teachers and guidance counselors.

11. Defendants Mastoloni, Kessler, Esposito, and Sullivan have consistently targeted minors and pursued them until they were of age in order to complete the conversion to martyrdom. Because of that, Defendants Mastoloni, Kessler, Esposito, and Sullivan pose a serious danger to students, students' families, and the public at large.

Courthouse News Service reports on the case.

UPDATE: Responding to the lawsuit, the Avon school superintendent said that the district had not previously been contacted about the allegations and the complaint has been turned over to counsel for review.

UPDATE 2: AP reported on March 5, 2018 that a settlement has been reached in the case.

RLUIPA Suit Challenges City's Refusal To Allow Homeless Ministry To Continue

A suit was filed last week in a California federal district court by the Stanford Law School Religious Liberty Clinic on behalf of a church in San Buenaventura, California that was denied a permit to continue to operate its ministry to the homeless in its current location.  The complaint (full text) in Harbor Missionary Church Corp. v. City of San Buenaventura, (CD CA, filed 5/14/2014), contends that the church's rights under the 1st Amendment and RLUIPA were violated when the city refused to recognize that the current permit to operate as a church was sufficient to allow the church to continue to offer meals, clothing, laundry and shower facilities, Bible study and prayer to the homeless, and then refused to issue the church a conditional use permit to allow the ministry to continue. Here is Plaintiff's Memorandum in Support of Motion for Preliminary Injunction. Courthouse News Service reports on the case. [Thanks to Paul Harold for the lead.]

Church Gets TRO Permitting Use of After-School Space

In Prairie Valley Baptist Church v. Whitney Independent School District, (TX Dist. Ct., May 19, 2014), a Texas trial court granted a temporary restraining order requiring Whitney High School to provide a classroom for one hour a week after school for use by the Christian Worldview Ministry (CWM). According to the complaint (full text) in the case, the school permits several secular outside groups to use school facilities, but the school board denied CWM's request for a variety of reasons, one of which was that the activity was too sectarian.  In granting the TRO, the court said that the school board's action substantially burdened plaintiff's free exercise of religion and deprived it of its fundamental right to freedom of speech, without furthering a compelling governmental interest or using the least restrictive means for doing so. A hearing on plaintiff's request for a temporary injunction is scheduled for May 30. Liberty Institute has links to all of the documents in the case. Christian News Network reports on the decision.

Son's Ashes Are Not Property Subject To Partition Between Parents

In Wilson v. Wilson, (FL App., May 21, 2014), a Florida state appellate court held that the cremated remains of 23-year old Scott Wilson, killed in a 2010 auto accident, are not "property" that is subject to partition between the young man's divorced parents. In the case, the parents could not agree on where the ashes should be buried, so the father asked to court to allow each parent to dispose of half the ashes as they wished. The mother objected on religious grounds.The appellate court, citing authority going back to Blackstone, agreed with the trial court that the ashes are not property. The case now goes back to the trial judge who has indicated that he will appoint a curator or other suitable person to decide how to dispose of the remains if the parents are unable to reach an agreement.  The Broward-Palm Beach (FL) Sun Sentinel reports on the decision.

Court Issues Preliminary Injunction Against ACA Contraceptive Mandate Enforcement Against Two Religious Colleges

In Dordt College v. Sebelius, (ND IA, May 21, 2014), an Iowa federal district court granted a preliminary injunction to two religiously-oriented colleges-- Dordt College (Christian Reformed Church) and Cornerstone University (Baptist)-- to prevent enforcement of the Affordable Care Act contraceptive coverage mandate rules against them. This is another of the many cases in which religious non-profits-- objecting to covering contraceptives that they believe to be abortifacients-- claim that their free exercise rights under RFRA are violated even under the government's compromise in which coverage is provided directly from their insurers or third-party administrators. (See prior related posting.) The court indicated that it was planning to wait for the U.S. Supreme Court's Hobby Lobby decision to issue an opinion, but the mandate takes effect against Dordt College on June 1 and the 8th Circuit (which includes Iowa) has issued injunctions pending appeal in two challenges to the contraceptive coverage mandate by for-profit businesses. ADF issued a press release announcing the decision. Des Moines Register reports on the decision.

Christian Student Challenges University's Speech Code

A lawsuit was filed last week in an Oklahoma federal district court challenging the Expressive Activity Policy and Equal Opportunity Policy of Cameron University, a public university in Lawton, Oklahoma.  The complaint (full text) in Harper v. McArthur, (WD OK, filed 5/14/2014), alleges that Daniel Harper, an evangelical Christian student at the University, was prevented from handing out a flyer criticizing the beliefs of a student organization, the World Mission Society. The university claims that Harper's flyer violates the university's prohibition on "offensive" and "discriminatory" speech.  It allows literature to be handed out on campus only if it is from a student organization and has been approved for distribution by the University. The suit claims that the University speech code violates the 1st and 14th Amendments as well as the Oklahoma Religious Freedom Act. Alliance Defending Freedom announced the filing of the lawsuit.

Montana's Same-Sex Marriage Ban Challenged

According to Lambda Legal, as of last week only 3 states which do not allow same-sex marriage had no litigation challenging the ban pending.  Now that has dropped to two.  The ACLU of Montana announced yesterday the filing of a lawsuit on behalf of four same-sex couples seeking to marry in Montana or to have their out-of-state same-sex marriage recognized in Montana. The complaint (full text) in Rolando v. Fox, (D MT, filed 5/21/2014), asks the court to declare that Montana's constitutional and statutory bans on same-sex marriage violate the due process and equal protection clauses of the 14th Amendment. With the filing of this lawsuit, only North and South Dakota have marriage equality bans with no litigation pending.

5th Circuit Rejects Religion-Related Income Tax Gimmick

In Gunkle v. Commissioner, (5th Cir., May 20, 2014), the U.S. 5th Circuit Court of Appeals affirmed a Tax Court decision that rejected husband and wife taxpayers' attempted use of a "religion-related tax gimmick" to avoid income taxes. Initially the Gunkle's had created a 501(c)(3) non-profit, City of Refuge Christian Fellowship, Inc. They however heard a speaker at a church conference who claimed they could instead create a non-501(c)(3) "corporation sole," assign their income to it, deduct this as a charitable contribution without qualifying as a non-profit, and thus make their income non-taxable. They did this, and then signed a vow of poverty, assigned their residence to the corporation sole, and had the corporation sole agree to provide “all their needs as Apostles and as pastors of this church ministry." The 5th Circuit agreed with the Tax Court that payments of living expenses of the Gunkle's from the corporation sole's Pastoral Account were taxable income to the Gunckle's, and their assignment of income to the corporation sole did not qualify for a charitable deduction.

Court Rejects Atheists' Attack On Church Favoritism In Tax Code

In American Atheists, Inc. v. Shulman, (ED KY, May 19, 2014), a Kentucky federal district court dismissed claims by several atheist organizations that under the Internal Revenue Code and Regulations, churches and religious organizations are treated more favorably that other non-profits. The court identified five advantages enjoyed by churches, including fewer filings and tax advantages for clergy compensation. The court held that plaintiffs lack standing because they never applied for an exemption as a church or religious organization, pointing out that:

A review of case law establishes that the words “church,” “religious organization,” and “minister,” do not necessarily require a theistic or deity-centered meaning.... 

Thus, the Atheists’ assertion that they are subjected to unconstitutional discrimination and coercion due to their alleged inability to gain classification as religious organizations or churches under I.R.C. §501(c)(3) is mere speculation. At this point, the Atheists have no idea whether they could gain classification as a church or religious organization under I.R.C. §501(c)(3) because they have never sought such classification. Accordingly, the Atheists have not suffered a particularized injury which is fairly traceable to the actions of the Commissioner.

The court also held that plaintiffs had failed to state an equal protection claim.  In addition, the court rejected a novel argument by plaintiffs that IRS action violates the No Religious Test Clause of Art. VI, cl. 3 of the Constitution.  Plaintiffs had contended that modern-day 501(c)(3) organizations amount to "public trusts" as that term is used in Art. CI, cl. 3. (See prior related posting.) [Thanks to Steven H. Sholk for the lead.]

Court Strikes Down Pennsylvania Ban On Same-Sex Marriage

In Whitewood v. Wolf, (MD PA, May 20, 2014), a Pennsylvania federal district court held that the Pennsylvania's prohibition of same-sex marriage and its refusal to recognize same-sex marriages validly entered elsewhere violate the 14th Amendment's due process and equal protection clauses. The court concluded that "the fundamental right to marry is a personal right to be exercised by the individual" and rejected "Defendants’ contention that concepts of history and tradition dictate that same-sex marriage is excluded from the fundamental right to marry."  In its lengthy equal protection analysis, the court concluded that classifications based on sexual orientation are quasi-suspect and applied intermediate scrutiny to find that Pennsylvania had not shown that the ban on same-sex marriage is substantially related to an important governmental interest.

The Washington Post reports that immediately after the court's ruling, same-sex couples hurried to obtain marriage licenses, fearing that Gov. Tom Corbett would appeal the ruling. County offices remained open late in Philadelphia to issue licenses, and the Pittsburgh office is taking marriage license applications online.  Pennsylvania has a 3-day waiting period after issuance of a license before a person can marry, unless a court waives the waiting period. The Governor's office said it was studying the court's ruling. The Governor defended the state's ban in court after the state's attorney general refused to do so.

UPDATE: On May 21, Gov. Tom Corbett announced that the state will not appeal the court's decision.

Court Accepts Fair Use Defense In Copyright Claim By Prominent Christian Speaker

In Caner v. Autry, (WD VA, May 14, 2014), a Virginia federal district court dismissed copyright infringement claims brought by Ergum Caner, the former dean of Liberty Theological Seminary and former vice president of academic affairs at Arlington Baptist College. Caner was raised in Ohio. His father was a devout Muslim. During high school he became a born-again Christian.  Caner spoke widely to military and church groups on how Muslims in the Middle East would view U.S. Marines from the perspective of jihad.  He sued Jonathan Autry, formerly a student at Liberty University, over blog posts that linked to YouTube videos featuring Caner. The posts attempted to expose as untrue Caner's claims that he was raised as as Muslim in Turkey-- a claim he made in numerous speeches before church and military groups.  The court accepted defendant's fair use defense, saying:

Plaintiff has filed this suit to suppress legitimate criticism of alleged contradictions in the narrative that supported his rise to prominence. The purpose and character of Defendant’s use weigh strongly in favor of finding fair use.

Correction [thanks to Commenter]: Caner is now  President of Brewton-Parker College in Mt. Vernon, Georgia. The post has also been corrected to spell Caner's name correctly.

Two USCIRF Appointments Announced By White House

Last week, the White House announced two Presidential appointments to the U.S. Commission on International Religious Freedom. President Obama appointed Rev. Thomas J. Reese, S.J. and reappointed Dean Eric P. Schwartz. Reese is senior analyst for the National Catholic Reporter. God and Country blog has more on Reese.

Oklahoma Must Pay $304,000 In Plaintiffs' Attorneys Fees In Anti-Sharia Law Case

An Oklahoma federal district court last week (May 14) ordered members of the Oklahoma State Election Board to pay $304,000 in attorneys' fees and costs to plaintiffs in Awad v. Ziriax. (Full text of order.) In the case, plaintiffs successfully prevented the Election Board from certifying voter approval of an anti-Sharia state constitutional amendment. (See prior posting.)  The Oklahoman reports on the order.

Utah Must Recognize Same-Sex Marriages Performed During 17-Days Before Stay; But This Order Temporarily Stayed Also

In Evans v. State of Utah, (D UT, May 19, 2014), a Utah federal district court granted a preliminary injunction requiring the state of Utah to recognize same-sex marriages solemnized under Utah marriage licenses between Dec. 20, 2013 when a federal district court struck down Utah's ban  on same-sex marriages, and Jan. 6, 2014 when the U.S. Supreme Court granted a stay of that order, pending appeals. The court concluded:

Even though the Supreme Court’s Stay Order put Utah’s marriage bans back in place, to retroactively apply the bans to existing marriages, the State must demonstrate some state interest in divesting Plaintiffs of their already vested marriage rights. The State has failed to do so.

However the court granted a 21-day stay to allow the state to file an emergency motion with the 10th Circuit for review. Fox News reports that Utah's attorney general had not made an immediate determination of whether or not to pursue an appeal. The court's decision affects some 1200 marriages performed during the 17 days involved here.

Family of Muslim Man Killed By L.A. Police Wins In 9th Circuit, But Not On Free Exercise Claim

Yesterday, the U.S. 9th Circuit Court of Appeals issued two opinions-- one published and the other unpublished-- in the case of an autistic 21-year old Muslim man-- Mohammad Usman Chaudhry-- who was shot and killed by Los Angeles police.  The coroner took custody of Chaudhry's body but did not notify his family of his death for 21 days. This prevented the family from burying Chaudhry in accordance with their religious beliefs.  In the published opinion in Chaudhry v. City of Los Angeles (I), (9th Cir., May 19, 2014), the 9th Circuit gave a substantial victory to the family, reversing a number of the district court's rulings. Among other things, it reversed the dismissal of claims under state and federal civil rights laws, allowing the family to proceed  on 4th Amendment grounds, and on substantive due process grounds for loss of companionship. It also held that California's bar to pre-death pain and suffering claims does not apply to suits based on 42 USC Sec. 1983, reinstating the jury's $1 million award. It alsoFr held that plaintiffs introduced enough evidence to raise a jury question on whether the coroner's office was negligent in it attempts to locate Chaudhry's family.  In the unpublished opinion in Chaudhry v. City of Los Angeles (II), (9th Cir., May 19, 2014), the 9th Circuit rejected the family's free exercise of religion claim, holding that "the Los Angeles Coroner Department’s policies for locating decedents’ families are generally applied and neutral with respect to religion." It also rejected plaintiffs' equal protection claim, finding no evidence of intent to discriminate on the basis of religion or race.