European Court Holds Russia Violated Rights of Jehovah's Witnesses

In Krupko v. Russia, (ECHR, June 26, 2014), the European Court of Human Rights in a Chamber Judgment held that Russia violated the European Convention on Human Rights Art. 5 (right to liberty and security) and Art. 9 (freedom of thought, conscience and religion) when in 2006 police disrupted a Jehovah's Witness religious meeting and arrested some of the participants. The court awarded 36,000 Euros as damages and costs. The court issued a press release on the case. RAPSI reports on the decision.

Christian College Denied Relief Against Contraceptive Coverage Mandate Accommodation

In Wheaton College v. Burwell, (ND IL, June 23, 2014), an Illinois federal district court refused to grant a preliminary injunction to a Christian liberal arts college that objects to complying with the Affordable Care Act contraceptive coverage mandate accommodation for religious non-profits.  It concluded that the 7th Circuit's decision in University of Notre Dame v. Sebelius (see prior posting) is controlling on it:

Because the majority opinion in Notre Dame stands squarely in the path of the principal relief that Plaintiff seeks, Plaintiff cannot demonstrate the requisite likelihood of success on the merits of its claims.

The court added however that if the Supreme Court's upcoming decision in Hobby Lobby calls into question any material aspect of the Notre Dame decision, any party may file a motion for reconsideration.

Supreme Court Strikes Down Massachusetts Abortion-Clinic Buffer Zone Law

The U.S. Supreme Court today in McCullen v. Coakley, (S.Ct., June 26, 2014) struck down the Massachusetts statute that creates a 35-foot buffer zone around abortion clinics. The law prevents anti-abortion sidewalk counselors from entering the buffer zone.  The Court's majority decision written by Chief Justice Roberts struck down the law on narrow free speech grounds. While the state has a legitimate interest in preserving access to clinics, and while this is a neutral statute, it burdens more speech that in necessary to accomplish that purpose.  The Chief Justice explains:

Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a tradi­tional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment. 

Justice Scalia's opinion, joined by Justices Kennedy and Thomas, concurring only in the judgment, criticizes the majority's approach:

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.... The ... Court’s analysis today, invalidat­ing the law at issue because of inadequate “tailoring,” is certainly attractive to those of us who oppose an abortion­ speech edition of the First Amendment. But think again. This is an opinion that ... continues the onward march of abortion-speech-only jurisprudence. 

Justice Alito also wrote a separate opinion concurring only in the judgment. The New York Times reports on the decision.

7th Circuit: Church Lacks Standing To Appeal Injunction Against City On Cross Display

In Cabral v. City of Evansville, Indiana, (7th Cir., June 25, 2014), the U.S. 7th Circuit Court of Appeals dismissed for lack of standing an appeal of an Indiana federal district court's injunction barring Evansville from permitting a church's proposed display of 31 six-foot tall crosses on 4-block Riverfront area. The district court concluded that the display would violate the Establishment Clause. (See prior posting.) The city of Evansville did not appeal; the church involved (West Side Christian) which had been an intervenor in the case below did.  The 7th Circuit concluded that since the injunction ran only against the city, vacating it would not necessarily remedy any injury West Side suffered.  The city could still refuse to permit the display. In addition, any decision the 7th Circuit made on the merits would affect only the city which is not a party to the appeal.  The court concluded that in order to obtain standing, West Side would need to apply for a permit and have it denied by the city because of the district court's injunction.  The 7th Circuit then added:

We caution, however, that West Side’s road ahead might not necessarily get any easier if it ever attains standing to challenge the injunction. We question whether a reasonable observer would be put on notice that the “Cross the River” display is strictly private speech given the sheer magnitude of a display that takes up four blocks and has two signs alerting citizens that it is a private display.

Indiana's Same-Sex Marriage Ban Invalidated; Motion for Stay, Appeal Filed As Some Counties Issue Licenses

In Baskin v. Bogan, (SD IN, June 25, 2014), an Indiana federal district court held that Indian's ban on same-sex marriage, and on recognizing same-sex marriages from other jurisdictions, is unconstitutional. The court found that the ban infringes the fundamental right to marry protected by the due process clause, and discriminates on the basis of sexual orientation in violation of the equal protection clause, adding:

The court has never witnessed a phenomenon throughout the federal court system as is presented with this issue. In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions – laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional. It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love. In time, Americans will look at the marriage of couples, such as Plaintiffs, and refer to it simply as marriage-- not as same-sex marriage.  These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.

The Indianapolis Star reports that county clerks in several counties began issuing licenses for same-sex marriages yesterday. As reported by WTHR, Indiana's Attorney General quickly filed an emergency motion for a stay pending appeal (full text) and a notice of appeal to the 7th Circuit (full text). Two county clerks' offices also filed notices of appeal. Meanwhile the Attorney General contacted all counties stating that while only the five county clerks named in the lawsuits are required to comply with the court's order, everyone should "show respect for the judge and the orders that are issued."

10th Circuit Says Utah's Same-Sex Marriage Ban Is Unconstitutional

In Kitchen v. Herbert, (10th Cir., June 25, 2014), the U.S. 10th Circuit Court of Appeals in a 2-1 decision struck down Utah's ban on same-sex marriage, but stayed its mandate pending disposition of any appeal. The majority summarized its 66-page opinion:

We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.

Among the justifications rejected by the court was Utah's argument that allowing same-sex marriage "would create the potential for religious-related strife."  Judge Kelly dissenting in part argued that there is no fundamental right to same-gender marriage.

The Salt Lake Tribune reports on the decision. In a statement released yesterday, the Utah attorney general's office says it will file a petition for certiorari seeking Supreme Court review.

Seattle Archdiocese Reaches $12.1 Million Settlement With Abuse Claimants

Reuters reported yesterday that the Catholic Archdiocese of Seattle has agreed to settle claims brought by 30 men who were sexually abused 30 to 60 years ago in two diocesan high schools staffed by the Christian Brothers of Ireland teaching order. The lawsuits alleged that the Archdiocese failed to shield the victims from known abusers.  According to a press release from the Archdiocese, the $12.1 million settlement was funded by archdiocesan insurance programs. The Christian Brothers previously reached a $16.5 million settlement with 400 victims.

9th Circuit Denies En Banc Review On Strict Scrutiny For Sexual Orientation Classifications

Earlier this week, the U.S. 9th Circuit Court of Appeals refused to grant en banc review to an earlier decision by a 3-judge panel that concluded heightened scrutiny must be applied to equal protection claims based on sexual orientation. In SmithKline Beecham Corp. v. Abbott Laboratories, (9th Cir., June 24, 2014), the court reported that the call for en banc review did not receive a majority vote.  However Judge O'Scannlain, joined by Judges Bybee and Bee, filed a dissent to the refusal to review, saying in part:

This case ... came to our court in the posture of an appeal from a simple juror selection ruling during trial. Sadly, it has morphed into a constitutional essay about equal protection and sexual orientation.... The opinion’s unprecedented application of heightened scrutiny to a peremptory strike of a juror who was perceived to be gay bears significant implications for the same-sex marriage debate and for other laws that may give rise to distinctions based on sexual orientation.

Indeed, today’s opinion is the only appellate decision since United States v. Windsor ... to hold that lower courts are “required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection.” ... Such holding is wrong, egregiously so. Because of the danger that district courts will be misled by the opinion’s sweeping misinterpretation of Windsor, it is most unfortunate that we denied rehearing en banc.

SCOTUS Blog has more on the decision.

White House Hosts Global LGBT Human Rights Forum

The White House yesterday hosted the first Global Lesbian, Gay, Bisexual, and Transgender Human Rights Forum. It brought together religious leaders along with LGBT and HIV activists, human rights advocates and the private sector. A Fact Sheet issued by the White House reviews the international initiatives that the government has taken to protect LGBT rights. National Security Advisor Susan Rice addressed the Forum. (Full text of remarks.) Asserting that "cultural differences do not excuse human rights violations," Rice later asked: "For the faith community, how can we reinforce to religious groups that God loves all the children of his creation equally?"

Zoning Denial For Catholic School Athletic Field Lighting Violates RLUIPA

In Corporation of the Catholic Archbishop of Seattle v. City of Seattle, WD WA, June 20, 2014), a Washington federal district court held that requiring a Catholic High School to obtain a zoning variance in order to install 70-foot tall light poles in its athletic field violates the "equal terms" provision of RLUIPA. The variance, which was denied, is required because of the 30-foot height requirement for structures in residential zones. The city exempts public school athletic fields from the height requirement. [Thanks to Eric Treene for the lead.]

Congress Passes World War II Memorial Prayer Act

Congress this week gave final approval and sent to the President for his signature S. 1044, the World War II Memorial Prayer Act. The Act calls for an addition to the World War II Memorial in Washington, D.C.  A plaque or inscription containing the words of the prayer that President Franklin Roosevelt delivered on D-Day is to be  installed-- using only private contributions to pay for it. According to the Columbus Dispatch last week, the ACLU calls the law needlessly divisive.

Court Decides Dispute Over Proceeds From Sale of Church Property

In Pacific Southwest District of the Church of the Brethren v. Church of the Brethren, Inc., (CA App., June 23, 2014), a California appeals court dealt with a dispute over sharing of the proceeds from the sale of church property.  The court summarized its holding:

Pacific Southwest District of the Church of the Brethren (PSWD) ... appeal from a judgment in favor of respondents Central Korean Evangelical Church (CKEC) and its pastor Jang Kyun Park. The judgment gave CKEC an 86-percent share and gave PSWD a 14-percent share in the proceeds from any sale of CKEC’s real property, which consists of three lots in the Koreatown neighborhood of Los Angeles. Appellants argue CKEC holds the property in trust for the Church of the Brethren. We conclude that PSWD is estopped from asserting a trust over the entire property because CKEC joined the denomination on assurances by church representatives that a trust would not apply to property it owned at the time of affiliation, and at that time it already owned two of the three lots. We also conclude that PSWD may assert a trust over the after-acquired third lot. We affirm the judgment to the extent it ordered partition of the property by sale, but reverse and remand for a redetermination of each party’s share in the proceeds from any sale.

Jury Service Does Not Violate Free Exercise Rights

In Bey v. City of Philadelphia, (ED PA, June 17, 2014), plaintiff sued unsuccessfully for $2 million in damages after the city's Jury Selection Commission denied him an exemption from jury duty which he sought because of his religious beliefs and political views. The court concluded that his free exercise claim is legally frivolous because the state's jury service laws are neutral and generally applicable, and are clearly related to the legitimate objective of maintaining a jury system.

Recent Prisoner Free Exercise Cases

In Powers v. Coleman, 2014 U.S. App. LEXIS 11667 (7th Cir., June 20, 2014), the 7th Circuit refused to overturn a jury's verdict that a Messianic Jewish inmate did not have a sincere religious belief that he needed a kosher diet.

In Sharrieff v. Moore, 2014 U.S. Dist. LEXIS 82460 (MD PA, June 16, 2014), a Pennsylvania federal district court dismissed for failure to exhaust administrative remedies a complaint seeking separate religious services and a separate fast during December for Nation of Islam inmates.

In Oliver v. Adams, 2014 U.S. Dist. LEXIS 80519 (ED CA, June 10, 2014), a California federal magistrate judge dismissed, with leave to amend, a complaint by an inmate who is an adherent of Shetaut Neter who claims he is being denied a prayer rug, a religious diet, worship services, and religious programming on in-house television while he is in the special housing unit.

In Davis v. Abercrombie, 2014 U.S. Dist. LEXIS 81780 (D HI, June 13, 2014), a Hawaii federal district court in a very long opinion dealt with claims by Native Hawaiian inmates housed at private prisons in Arizona that their free exercise, RLUIPA and equal protection rights are being infringed as to their daily worship practices, the observance of Makahiki, and access to sacred items, sacred space and a spiritual advisor. The court held that there are genuine issues of fact remaining as to various of the claims.

In Adkins v. Shinn, 2014 U.S. Dist. LEXIS 81953 (D HI, June 16, 2014), a Hawaii federal district court dismissed a Muslim inmate's complaints about lack of visits from an Imam an difficulty in obtaining a Qur'an, other books and a kufi. However the court permitted him to proceed on his complaint that a kosher diet was substituted for his halal diet.

Pregnancy Service Center Signage Requirement Held Void-For-Vagueness

In Austin LifeCare, Inc. v. City of Austin, (WD TX, June 23, 2014), a Texas federal district court struck down as void for vagueness an Austin, Texas ordinance that requires unlicensed pregnancy service centers that do not have full-time licensed health care providers on site to post signs to indicate whether the center provides medical services and if the services are provided under supervision of a licensed health care provider. The ordinance covers centers that offer pregnancy testing or perform sonograms and then offer options counseling. The court concluded that neither "full time" nor "medical services" is adequately defined in the ordinance. Austin American-Statesman reports on the decision.

Sudanese Appeals Court Overturns Apostasy Death Sentence of Christian Woman

In a case that has attracted widespread international attention, an appeals court in Sudan has ordered the release of Meriam Ibrahim who had been sentenced to death for apostasy. Mail Online reports that a Khartoun appeals court overturned the death sentence of the 27-year old woman who was charged with converting from Islam to Christianity.  Ibrahim's father was Muslim, but her mother was Christian and she was raised as a Christian. It is unclear whether Ibrahim's sentence of 100 lashes for adultery-- because of her marriage to her Christian husband-- also was reversed.  (See prior posting.) Ibrahim's lawyers will meet with U.S. Embassy officials today to discuss possible asylum for her in the United States. Her Christian husband is an American citizen.

3rd Circuit: No Statute of Limitations For Establishment Clause Challenge To Still-Existing Display

In Tearpock-Martini v. Borough of Shickshinny, (3d Cir., June 23, 2014), the U.S. 3rd Circuit Court of Appeals held that Establishment Clause claims challenging still-existing religious displays are not subject to a statute of limitations defense. At issue was a directional sign on municipal property in a Pennsylvania town pointing the way to a local Baptist church. The sign included a depiction of a cross and a Bible. The court concluded that while the "continuing violation" doctrine does not apply to the display, nevertheless "strict application of the statutory limitations period both serves no salutary purpose and threatens to immunize indefinitely the presence of an allegedly unconstitutional display."

Inter-School Athletic Eligibility Rules Do Not Violate Free Exercise Rights of Home-School Family

In Chapman v. Pennsylvania Interscholastic Athletic Association, (MD PA, June 18, 2014), a Pennsylvania federal district court rejected a claim by the parent of a home-schooled student that rules on eligibility to participate in inter-school athletics violate her free exercise rights, as well as her equal protection rights and the right to direct the education of her son.  At issue is a rule that allows home-schooled students to participate only on teams of their local public school, and not on a parochial school team.  Plaintiff claimed that the rule prevented "the home-schooler who is committed to play in a God-centered environment" from doing so. The court found that the rule is neutral and generally applicable so that it need only satisfy the "rational basis" test, and that any burden on religious exercise is minimal.

Another Diocese's Charities Get Preliminary Injunction Against Contraceptive Mandate Compromise

In Brandt v. Burwell, (WD PA, June 20, 2014), a Pennsylvania federal district court granted a preliminary injunction against applying the Affordable Care Act contraceptive coverage accommodation to charitable and educational affiliates of the Greensburg, Pennsylvania diocese.  The court found that the accommodation imposes a substantial burden on free exercise in violation of the Religious Freedom Restoration Act.  In doing so, the court relied on its earlier decisions on the same issue in Persico v. Sebelius (see prior posting) and Zubik v. Sebelius (see prior posting). The Legal Intelligencer reports on the decision.

SCOTUS Securities Law Decision Involves Charitable Fund That Supports Milwaukee Archdiocese

Today the U.S. Supreme Court decided Halliburton Co. v. Erica P. John Fund, Inc., (S. Ct., June 23, 2014) largely rejecting attempts by a corporate defendant to make securities fraud class actions by investors more difficult to pursue. The corporation was unsuccessful in urging the court to overturn the so-called "fraud on the market" theory that creates a rebuttable presumption that investors relied on public misstatements. The 6-3 decision did give a small concession to defendants, allowing them to present certain rebuttal evidence as the class certification stage. The victory for plaintiffs has implications for the Catholic Archdiocese of Milwaukee. Lead plaintiff in the case is a charitable fund that has been an important source of funds-- some $600,000 per year-- for the Archdiocese.  Prior to 2009, the Fund was known as the Archdiocese of Milwaukee Supporting Fund. (See prior posting.) The Milwaukee Archdiocese is in the midst of a bankruptcy reorganization. (See prior posting.)