Monday, July 06, 2015

Israel's Cabinet Strengthens Ultra-Orthodox Control of Religious Status Matters

Times of Israel reports that Israel's Cabinet on Sunday took two steps that place personal status matters of Israeli Jews more firmly under control of the ultra-Orthodox rabbinate.  First the Cabinet withdrew a measure that made its way through the Knesset's Law Committee last year that would have expanded from four to thirty the number of religious courts that could conduct conversions to Judaism.  The new courts made up of municipal rabbis would have loosened somewhat the tight restrictions on conversion presently in effect.  The second Cabinet vote placed rabbinical courts under the jurisdiction of the Ministry of Religious Services instead of the Justice Ministry which oversees Christian and Muslim religious courts.  The change places rabbinical courts-- with their authority over marriage and divorce-- under the authority of Religious Affairs Minister David Azoulay who belongs to the ultra-Orthodox Shas Party. These steps resulted from the coalition agreements negotiated between political parties after the most recent Knesset election. (See prior posting.)

Recent Articles and Books of Interest

From SSRN:
From SSRN (Same-sex marriage):
New Books:

Court Dismisses Native American Challenge To San Antonio Revitalization Efforts

In Rocha v. City of San Antonio, (WD TX, July 2, 2015), a Texas federal district court rejected a vast variety of statutory and constitutional challenges to San Antonio's redevelopment efforts at several historical sites including the Hemisfair Historical Park, Alamo Plaza, the Alamo and La Villita.  Plaintiff, who claims to be a direct lineal descendant of the Yanaguana tribes, claims that the city is desecrating historical archaeological sites and Native American burial grounds.  Plaintiff's original complaint, dismissed by the court in this decision, alleged that the city was violating the U.S. Constitution, the Native American Graves Protection and Repatriation Act,  the Archaeological Resources Protection Act, the American Indian Religious Freedom Act, the Texas Parks and Wildlife Code, and San Antonio’s Unified Development Code.  The court also refused to permit plaintiff to amend his complaint to add free exercise claims, claims under eleven sections of the Texas Constitution, and under Title II of the federal Civil Rights Act.

Sunday, July 05, 2015

Recent Prisoner Free Exercise Cases

In Incumaa v. Stirling, (4th Cir., July 1, 2015), the 4th Circuit rejected a claim by an inmate who is a member of Nation of Gods and Earths that his 20 years in solitary confinement following his participation in a 1995 prison riot with other Five Percenters violates his rights under RLUIPA. However the court held that plaintiff may move to trial on his procedural due process challenge to his continuing solitary confinement.

In Beamon v. Dittmann, 2015 U.S. Dist. LEXIS 83982 (ED WI, June 29, 2015), a Wisconsin federal district court refused to allow a Block Muslim inmate to add a RLUIPA claim to his complaint because plaintiff only seeks damages that are unavailable under RLUIPA.

In Gray v. Lewis, 2015 U.S. Dist. LEXIS 84133 (ND CA, June 29, 2015), a California federal district court allowed an inmate to proceed with most of his claims that he was restricted from obtaining a kosher diet and in other ways not provided with the resources to practice his Yahweh religion. The case was referred to the pro-se prisoner mediation program.

In Sessing v. Beard, 2015 U.S. Dist. LEXIS 84194 (ED CA, June 28, 2015), a California federal magistrate judge recommended that an Odinist inmate be allowed to proceed with his equal protection challenge to authorities' denial to him of access to outdoor space and a fire pit for worship since they were permitting Native American inmates access. However plaintiff's RLUIPA and free exercise claims were dismissed.

In Clark v. Anderson, 2015 U.S. Dist. LEXIS 84349 (ND TX, June 29, 2015), a Texas federal district court dismissed an inmate's complaint that one defendant failed to return a spiritual book, requiring him to order another copy from the publisher.

In Sousa v. Wegman, 2015 U.S. Dist. LEXIS 85208 (ED CA, June 29, 2015), a California federal magistrate judge recommended that an inmate be permitted to move ahead with his attempt to obtain recognition of those with Mexican Indian Beliefs as a religious group, and their access to religious services, holiday celebrations and use of a sweat lodge.

In Adler v. Gonzalez, 2015 U.S. Dist. LEXIS 85210 (ED CA, June 30, 2015), in a suit by a Catholic inmate, a California federal magistrate judge recommended a finding that there are still disputed facts that need to go to trial on whether or not Catholic services were available and whether plaintiff made any attempt to participate in them.

In Shabazz v. Johnson, 2015 U.S. Dist. LEXIS 86787 (ED VA, July 2, 2015), a Virginia federal district court rejected a Nation of Islam inmate's claim that requiring him to eat the Common Fare diet rather than a strict Nation of Islam diet violated his rights under RLUIPA.

Saturday, July 04, 2015

Final Order Issued In Oregon Same-Sex Wedding Cake Refusal

This week, the Commissioner of the Oregon Bureau of Labor and Industries went beyond the recommendations of the Administrative Law Judge (ALJ) (see prior posting) in finding violations of law by a bakery whose owner refused on religious grounds to provide a wedding cake to a same-sex couple.  In Matter of Melissa Elaine Klein dba Sweetcakes By Melissa, (Bur. Labor & Indus., July 2, 2015), the Commissioner agreed with the ALJ that co-owner Aaron Klein violated ORS 659A.403 that bars discrimination in public accommodations on the basis, among others, of sexual orientation, and that both owners are therefore liable for damages totaling $135,000.  However the Commissioner, rejecting the ALJ's contrary conclusion, held that in addition both co-owners violated ORS 659A.409 that prohibits anyone acting on behalf of a place of public accommodation from issuing any communication that indicates facilities or services will be denied to anyone on account, among others, of sexual orientation.  This finding was based largely on statements in an interview broadcast on radio and television that the bakery would continue to refuse to provide cakes for same-sex weddings, an on a note taped to the bakery door.

Finding the state law provisions constitutional, the Commissioner issued a cease and desist order barring the owners from
publishing, issuing, circulating or displaying ... any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of a place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of sexual orientation.

Friday, July 03, 2015

4th of July-- A Biblical Focus From Israeli Prime Minister

Israeli Prime Minister Benjamin Netanyahu has an interesting U.S. 4th of July narrative, more religious than the Independence Day speeches usually heard in American venues. Speaking (full text) on Tuesday at U.S. Independence Day celebrations at US Ambassador to Israel Daniel Shapiro's residence, Netanyahu said in part:
The Founding Fathers of America were inspired by the Bible, and specifically by the Book of the Exodus, by the dream of building freedom in a new Promised Land. And as you stand in the Chamber of the American Congress, you see right across you the image of one man - Moses, with a quote from the Bible.
And since the establishment of the United States, that's two and a half centuries, the vision of justice and the vision of peace espoused by the Prophets of Israel served as a guiding light for Americans from Thomas Jefferson to Abraham Lincoln to Martin Luther King to many others seeking to form a more perfect union.

Afghan Appeals Court Overturns Death Sentences In Mob Killing of Falsely-Accused Quran Burner

According to CNN, an Afghanistan appellate court in a secret session has overturned the death sentences of four men who were convicted in May in the brutal  mob killing of Farkhunda, a 27-year old woman who was falsely accused of burning the Qur'an.  (See prior posting.) The report which CNN received yesterday from a judge with knowledge of the decision, says that 3 of the men were re-sentenced to 20-year terms and one to 10 years.

ACLU Sues Kentucky Clerk Who Is Refusing To Issue Marriage Licenses

Yesterday the Kentucky ACLU filed a federal class-action lawsuit against Rowan County Clerk Kim Davis who is refusing to issue marriage licences to anyone because of her religious objections to issuing them to same-sex couples. (ACLU press release). The complaint (full text) in Miller v. Davis, (ED KY, filed 7/2/2015) alleges that Davis' refusal "constitutes a substantial, direct and continuous infringement upon Plaintiffs’ fundamental right to marry," as well as amounting to a violation of the Establishment Clause. AP reports on the lawsuit.

ACLU Uses Indiana RFRA In Suit Challenging New Restrictions On Sex Offenders

The ACLU of Indiana filed a lawsuit yesterday challenging the prohibition in a newly enacted state law that keeps certain registered sex offenders from attending religious services. (ACLU press release).  At issue is Indiana Code § 35-42-4-14 (eff. July 1, 2015) that bars certain registered sex offenders from entering school property.  The complaint (full text) in John Doe I v. Allen and Elkhart County Prosecutors, (IN Super. Ct., filed 7/1/2015), alleges in part:
This statute ... [bans serious sex offenders] from going to worship in churches, synagogues, mosques, or other religious buildings that are located on the same as property parochial schools or certain preschool programming. Banning sex offenders from ... church on Sunday, because there are students in a school on the same grounds on Monday, is irrational and violates the due process of law protected by the Fourteenth Amendment.... It also violates Indiana’s newly enacted Religious Freedom Restoration Act, Indiana Code § 34-13-9-0.7, et seq. (eff. July 1, 2015), which prohibits government from imposing a substantial burden on a person’s exercise of religion absent a compelling governmental interest and a showing that the action is the least restrictive means to further that interest.
AP reports on the lawsuit and reactions to it.

Suit Against Navy By Humanist Chaplain Applicant Can Proceed on Two Grounds

Heap v. Carter, (ED VA, July 1, 2015), is a suit brought by Dr. Jason Heap, a certified Humanist Celebrant, and The Humanist Society, his endorsing agency, challenging the U.S. Navy's denial of Heap's application to become a Navy Chaplain. Plaintiffs alleged that the Navy and Department of Defense have an unconstitutional policy of discrimination against Humanism.  In a 75-page opinion, a Virginia federal district court ultimately allowed Dr. Heap to move ahead with his Establishment Clause and Equal Protection/ Substantive Due Process challenges to the Navy and Department of Defense's actions.  However the court dismissed challenges brought under other parts of the 1st Amendment, the No Religious Test clause, and RFRA, dismissed The Humanist Society as a plaintiff for lack of standing and on ripeness grounds, and dismissed claims against the individual defendants.

Thursday, July 02, 2015

Inspired By Supreme Court Decision, Montanans Apply For License For Polygamous Marriage

AP reported yesterday that in Billings,. Montana, a man and his two wives, citing the Supreme Court's Obergefell decision, have applied for marriage licenses to legitimize their polygamous marriage. The man, Nathan Collier, a former Mormon who was excommunicated for polygamy, said: "It's about marriage equality, You can't have this without polygamy." Officials in the Yellowstone County clerk's office are consulting with the county attorney's office before giving a final answer.  The county's chief civil litigator says that his research so far shows that  "the law simply doesn't provide for that yet." [Thanks to How Appealing for the lead.]

7th Circuit Affirms Denial of Preliminary Injunction In Wheaton College Challenge To Contraceptive Mandate Accommodation

In Wheaton College v. Burwell, (7th Cir., July 1, 2015), the U.S. 7th Circuit Court of Appeals affirmed the denial of a preliminary injunction, upholding the Obama administration's accommodation of religious non-profits' objections to the Affordable Care Act's contraceptive coverage mandate. Wheaton College argued that the government is using its health plan to get around its objections to furnishing contraceptive coverage. Under the regulations, when the government informs the non-profit's insurer of the organization's religious objections, the insurer must offer coverage directly to plan participants.  The court said in part:
We can’t order the U.S. government not to ask particular insurers to insure Wheaton’s students and employees— especially the insurers that are experienced in dealing with the members of the Wheaton community. As for Wheaton’s apparent preference that the government discover through its own research the names of Wheaton’s insurers, we cannot imagine that insistence on this roundabout path to imparting essential information to the government could justify a preliminary injunction, at least in the absence of any explanation by Wheaton of why it thinks the difference between direct and roundabout identification of its insurers pertinent to its religious commitments. 
[Thanks to How Appealing for the lead.]

Courts Move To Finalize Compliance With Obergefell, With Scattered Resistance

In the wake of the Supreme Court's Obergefell decision, the U.S. 5th Circuit Court of Appeals yesterday issued opinions in three same-sex marriage cases pending on appeal, ordering federal district courts in Mississippi (Campaign for Southern Equality v. Bryant), Louisiana (Robichearx v. Caldwell) and Texas (DeLeon v. Abbott) to enter final judgments for plaintiffs challenging same-sex marriage bans by July 17. In the Louisiana case, the court noted that speedy action was particularly necessary because of the declining health of one of the plaintiffs.

In Alabama, a federal district court judge issued an opinion yesterday in Strawser v. Strange, clarifying that the court's preliminary injunction barring enforcement of Alabama laws barring same-sex marriage is now in effect.  Meanwhile, AP reports scattered resistance to the Supreme Court's decision, with a a few judges and clerks in Alabama, Kentucky and Texas deciding to stop issuing any marriage licenses to anyone.

Suit Challenges Library Meeting Room Rules

In a lawsuit filed last Tuesday, a Christian advocacy group has challenged rules regarding the use of meeting rooms at the Lawrence, Massachusetts public library.  The complaint (full text) in Liberty Counsel, Inc. v. City of Lawrence, Massachusetts, (D MA, filed 6/30/2015), challenges the Meeting Room Policy which provides: "Political and religious groups may use the Library’s meeting rooms for administrative purposes but shall not be allowed use for the sake of proselytizing, campaigning, or otherwise influencing people to a particular belief or point of view." The policy also prohibits use of meeting rooms for religious services.  The complaint alleges that the policy violates the 1st and 14th Amendments as well as provisions of the state constitution. A Liberty Counsel press release announced the filing of the lawsuit.

Priest Sues Claiming Discrimination After Molestation Charges Are Dropped

As reported by the St. Louis Post-Dispatch, Catholic priest Xiu Hui "Joseph" Jiang, who had been charged with abusing a boy, but then had charges dropped, filed a federal lawsuit last week charging the boy's parents and others with religious and ethnic discrimination.  Jiang separately had been charged with having improper contact with a teenage girl and paying hush money to her family. Those charges have also been dropped.  The complaint (full text) in Jiang v. Porter, (ED MO, filed 6/25/2015), alleges in part:
This is a case of false accusations that have destroyed the life of a promising young man and priest. Father Xiu Hui “Joseph” Jiang (“Fr. Joseph”) fled religious persecution in his native land of China, only to face religious persecution in America in the form of unconstitutional discrimination by state officials. Defendants A.M. and N.M. falsely and maliciously accused Fr. Joseph of sexually abusing their minor son for the crass motive of monetary gain. Acting in conjunction with A.M. and N.M., officers Tonya Porter and Jaimie Pitterle engaged in invidious religious discrimination against Fr. Joseph under color of law, targeting him for differential treatment and selective prosecution because he is a Catholic priest. Defendants SNAP, David Clohessy, and Barbara Dorris have led a shameless smear campaign in the St. Louis community against Fr. Joseph, relentlessly accusing him of molesting the same minor child, with malice and reckless disregard for the actual facts of the case. All defendants fomented and participated in a tragic rush to judgment against Fr. Joseph, and all conspired to deprive Fr. Joseph of his constitutional rights,

Wednesday, July 01, 2015

Another Suit Against Local Michigan Police For Forcing Removal of Hijab During Booking

MLive reports that a federal lawsuit was filed yesterday against the Dearborn, Michigan police department for requiring a Muslim woman arrested on traffic charges to remove her headscarf (hijab) during the booking process.  The complaint (full text) in Aldhalimi v. City of Dearborn, (ED MI, filed 6/30/2015), contends that when police booked plaintiff for an unpaid parking violation, they required her to remove her hijab to be photographed despite her religious objections.  This is the third similar suit against local Michigan law enforcement officials this year.

Oklahoma Supreme Court Says 10 Commandments Monument Is Unconstitutional

In Prescott v. Oklahoma Capitol Preservation Commission, (OK Sup. Ct., June 30, 2015), the Oklahoma Supreme Court in a 7-2 decision held that a Ten Commandments Monument placed on the statehouse grounds must be removed. The Court held that even though no state funds were used to acquire the monument, it still operates for the use, benefit or support of a sect or system of religion in violation of Oklahoma Constitution Art. 2, Sec. 5. Rejecting the legislature's claim that the monument serves a non-religious historical purpose, the Court said: "the Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths." (See prior related posting.)

ACLU Sues Louisiana Governor Over Order On Protection of Anti-Gay Marriage Beliefs

The ACLU of Louisiana announced yesterday that it has filed suit in Louisiana state court challenging Governor Bobby Jindal's May 19 Marriage and Conscience Order. The challenged executive order prohibits government departments, commissions, boards, agencies and local governments from denying various benefits because a person acts in accordance with his religious belief that marriage should be only between one man and one woman. (See prior posting.)  The complaint (full text) in ACLU Foundation of Louisiana v. Jindal, (LA Dist. Ct., filed 6/30/2015), contends that Jindal's Order "is an unauthorized usurpation of the powers vested in the legislature." As reported by the Bayou Buzz, Gov. Jindal issued a statement in response to the lawsuit, saying in part: "The ACLU used to defend civil liberties, now it appears they attack them."  Meanwhile on Monday the Governor's Office posted on its website a legal memorandum (full text) on religious liberty in light of the Supreme Court's marriage equality ruling.

Ecclesiastical Abstention Doctrine Prevents Suit Over Catholic Health Care Directive

In Means v. United States Conference of Catholic Bishops, (WD MI, June 30, 2015), plaintiff sued for negligence claiming that policies promulgated by the U.S. Conference of Catholic Bishops and adopted by Catholic Health Ministries, the sponsor of a health care system, resulted in her receiving improper information and treatment for a condition that led to a miscarriage.  She was not informed of the serious risk to her health if she continued her pregnancy after a membrane rupture and was not informed of the option of terminating her pregnancy.  A Michigan federal district court held that it lacked jurisdiction under Michigan's long-arm statute over USCCB. It held that the ecclesiastical abstention doctrine precludes it from adjudicating the claims against the other defendants:
Plaintiff has not sufficiently demonstrated that Michigan law recognizes a duty to a patient by a sponsor of a hospital network....  Even if Plaintiff could articulate a cognizable legal duty, the Court could not adjudicate the elements of breach and proximate cause because it necessarily implicates the ecclesiastical abstention doctrine... which prevents the Court from interpreting religious doctrinal texts. Plaintiff has not presented a way for this Court or a jury to analyze CHM’s duty, breach, or causation without reference to the text of the [Ethical and Religious Directives for Catholic Health Care Services], which are an expression of Catholic doctrine.

California's Governor Signs New Law Ending Religious and Personal Belief Exemptions To Immunization Requirements

California Governor Jerry Brown yesterday signed SB 277 (full text), a law requiring school students (other than those being home-schooled) to be immunized against ten specific diseases, and removing California's prior personal belief and religious belief exemptions.  Under the new law, only medical exemptions, certified by a licensed physician, are permitted. The personal belief exemption, however, is preserved for any additional diseases that the Department of Health by regulation adds to the ten listed in the statute. In his signing statement (full text), Gov. Brown said in part:
The science is clear that vaccines dramatically protect children against a number of infectious and dangerous diseases.
 Los Angeles Times reports on the governor's action.

Tuesday, June 30, 2015

Supreme Court Orders Stay of Sorts In Non-Profit Contraceptive Mandate Case

In Zubik v. Buwell, the U.S. 3rd Circuit Court of Appeals upheld the Obama Administration's rules accommodating the Affordable Care Act contraceptive coverage mandate to religious non-profits. (See prior posting.)  Plaintiffs sought a stay from the Supreme Court, and in April Justice Alito issued an order temporarily staying the mandate as to the Catholic Diocese of Erie and the Catholic Diocese of Pittsburgh along with affiliated charities and schools in the two dioceses (See prior posting.) He then referred the plaintiffs' motion to the full Court, and yesterday the Court issued the following Order :
The application for an order recalling and staying the issuance of the mandate of the Court of Appeals pending the filing and disposition of a petition for a writ of certiorari, having been submitted to Justice Alito and by him referred to the Court, the application as presented is denied. The Court furthermore orders: If the applicants ensure that the Secretary of Health and Human Services is in possession of all information necessary to verify applicants’ eligibility under 26 CFR §54.9815-2713A(a) or 29 CFR §2590.715-2713A(a) or 45 CFR §147.131(b) (as applicable), the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of their petition for certiorari.
Nothing in this interim order affects the ability of the applicants’ or their organizations’ employees to obtain, without cost, the full range of FDA approved contraceptives. Nor does this order preclude the Government from relying on the information provided by the applicants, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act. See Wheaton College v. Burwell, 573 U. S. ___ (2014).
This order should not be construed as an expression of the Court’s views on the merits. Ibid.
Justice Sotomayor would deny the application. 

School District Settles Anti-Semitic Harassment Claims For $4.48M

The New York Times reported yesterday that upstate New York's Pine Bush School District has agreed to a $4.48 million settlement in a suit against it by five current and former Jewish students who claimed pervasive anti-Semitism. The suit claimed that school officials showed deliberate indifference to anti-Semitic harassment from fellow-students in 3 of the district's schools.  The settlement also calls for teacher and staff training on recognizing and reporting anti-Semitism, revision of policies on bullying and discrimination, and curricular reform. (See prior related posting.)

Colorado Supreme Court Invalidates Choice Scholarship Pilot Program

In a fragmented decision in Taxpayers for Public Education v. Douglas County School District, (CO Sup. Ct., June 29, 2015), the Colorado Supreme Court struck down Douglas County's elaborate Choice Scholarship Pilot Program. The Program creates a public Choice Scholarship Charter School to which  public funds are paid.  Then through scholarship awards 75% of those funds are shared with the Charter School student's Private School Partner (often a religiously sponsored institution) which is the student's actual school.

Chief Justice Rice wrote the Court's plurality opinion for 3 justices, concluding that the scholarship program is unconstitutional under Art. IX, Sec. 7 of the Colorado Constitution that prohibits the state from using public money to fund sectarian schools. The plurality dismissed the other challenge to the Program-- that it violates the state's Public School Finance Act of 1994-- concluding that the legislature did not intend to imply a private right of action under that law and so petitioners lack standing.

Justice Marquez concurred in the result, filing an opinion concluding that the Scholarship Program violates the School Finance Act and that petitioners have taxpayer standing to challenge the program.

Justice Eid, in an opinion joined by two other Justices, argued that the scholarship program was permissible under Art. IX, Sec. 7. In addition he argued that the court should have examined whether Art. IX, Sec. 7 of the state Constitution is unconstitutional under the federal Constitution because of the provision's anti-Catholic bias.

Fox31 reports on the decision.