Monday, July 28, 2014

Eid al Fitr Begins Today; White House Issues Greetings

Today is the beginning of Eid al Fitr, marking the end of Ramadan. (Background from Huffington Post). The New York Times reports that today's start of the Eid was confirmed last night by the area's Roohat-e-Hilal Committee, or Moon-Sighting Committee. Yesterday President Obama issued a statement (full text) wishing "Muslims in the United States and around the world a blessed and joyous celebration."

Second Florida Trial Court Invalidates State's Same-Sex Marriage Ban; Stays Order

In Pareto v. Ruvin, (FL Cir. Ct., July 25, 2014), a Florida state trial court in Miami-Dade County held that Florida's ban on same-sex marriage violates the 14th Amendment's due process and equal protection clauses.  While ordering the Miami-Dade County clerk of courts to modify its marriage license forms to encompass same-sex marriages, the court stayed its order pending expected appeals. The court excluded from its order the provision of Florida law barring recognition of same-sex marriages performed in other jurisdictions, presumably because none of the plaintiffs before the court had been married elsewhere. Earlier this month, a Monroe County Florida trial court also struck down Florida's ban on same-sex marriage. (See prior posting.) AP reports on the Miami-Dade County decision.

Church Challenges Town's Zoning Law

Liberty Institute announced the filing last week of a RLUIPA challenge to the zoning ordinance of the town of Bayview, Texas. The complaint (full text) in Cornerstone Church by the Bay v. Town of Bayview, Texas, (SD TX, filed 7/22/2014), alleges that the town's zoning ordinance violates RLUIPA and the Texas Religious Freedom Restoration Act, as well as federal and state constitutional protections, by barring all religious institutions in the town's only residential zone while allowing similarly situated non-religious institutions there. Cornerstone is seeking to operate a church and religious school on land that was donated to it.

Recent Articles of Interest

From SSRN:
From SmartCILP and elsewhere:

Sunday, July 27, 2014

ISIS On Campaign To Destroy Religious Shrines In Iraq Hits Tomb of Jonah

The Wall Street Journal reported Friday on announced plans of the insurgent group Islamic State to destroy religious shrines and graves in Iraq.  Conservative Sunni doctrine prohibits the veneration of shrines or burial sites. Carrying out its goal, on Thursday in Mosul, the group blew up the Tomb of Jonah and the Nabi Younes Mosque in which it was housed. The Journal reports:
Though its population is predominantly Sunni, Mosul was a symbol of religious intermingling and tolerance in Iraq. Nineveh, the wider province, is a Assyrian Christian center dating back thousands of years. That Jonah's shrine was in a mosque was a proud reflection of that coexistence....

Recent Prisoner Free Exercise Cases

In Legate v. Stephens, 2014 U.S. Dist. LEXIS 98442 (SD TX, July 21, 2014), a Texas federal district court adopted a magistrate's recommendation and dismissed a complaint by a Native American inmate that he was not permitted to have long hair or a kouplock, smoke from a sacred pipe, and carry a medicine bag outside his cell.

In Germain v. Shearin, 2014 U.S. Dist. LEXIS 99159 (D MD, July 21, 2014), a Maryland federal district court refused to dismiss because of a genuine issue of material fact a Muslim inmate's complaint that in 2013 inmates observing the Ramadan fast did not receive sufficient calories in their meals.

In Heath v. Lewis, 2014 U.S. Dist. LEXIS 100809 (WD PA, July 24, 2014), a Pennsylvania federal magistrate judge dismissed as moot an inmate's complaint that he was denied Jewish reading material from the chaplaincy library, and also dismissed his claim regard kosher food.

Saturday, July 26, 2014

President Signs Law Authorizing Huna Tlingits To Engage In Traditional Egg Harvests

The White House announced that yesterday President Obama signed H.R. 3110, the Huna Tlingit Traditional Gull Egg Use Act. The law authorizes the Interior Department to permit members of the Hoonah Indian Association to harvest eggs of glaucous-winged gulls twice a year in Alaska's Glacier Bay National Park.

Friday, July 25, 2014

Pope Francis To Visit U.S. In September 2015

Catholic News Service today reports that Pope Francis has accepted an invitation to visit the United States to attend the 2015 World Meeting of Families.  The announcement was made by Philadelphia Archbishop Charles J. Chaput.  The Meeting will be held in Philadelphia from Sept. 22-27, 2015. A Vatican spokesman said that the Pope is considering invitations to visit elsewhere in the U.S. as well as part of his trip, including possibly New York, the United Nations and Washington, DC. Official confirmation from the Vatican is not expected until six months before the planned trip.

In Britain, Theology Student's Unemployment Benefits Ended For Attending Communion Instead of Interview

Church Times today reports on a decision in Britain, upheld on appeal, to cut off the unemployment benefits of a theology student because he skipped a required interview to attend a Church service.  Graham Hodson was granted benefits when his student-related job ended. A month later he was ordered to have an interview with a Jobcentre Plus personal adviser. His request that the interview be moved a half-hour later so he could attend the weekly Book of Common Prayer Service was refused. He attended the Church service anyway and had his benefits terminated for failure to show up at his interview.  Administrative regulations excuse failure to appear at an interview only if it is for good cause, defined to include: "that the established customs and practices of the religion to which the person belongs prevented him attending on that day or at that time."  A First Tier Tribunal held that Hodson's actions did not fit the exception because attending Communion on Thursdays, rather than another day, was a mere preference, not an established practice and custom of the Church of England. An Upper Tier Tribunal upheld the decision on appeal because Hodson had said that he would make other arrangements to attend Communion if he were offered a full-time job.

Court Reaffirms Catholic Hospital's Plan Not Exempt From ERISA As" Church Plan"

In Rollins v. Dignity Health,(ND CA, July 22, 2014), a California federal district court reaffirmed its earlier holding that Dignity Health's retirement plan is not a "church plan" exempt from ERISA because the plan was not established by a church.  Granting a declaratory judgment, the court rejected Dignity's argument that there is a genuine dispute of fact as to whether the plan should be seen as having been established by several religious orders that controlled Dignity at the time the plan was created.  The holding in the class action lawsuit means that the Catholic health care system's pension plan is underfunded by $1.2 billion.  San Francisco Business Times reports on the decision.

$3.5 Million Belongs To Break-Away Episcopal Diocese

In Diocese of Quincy v. The Episcopal Church, (IL App., July 24, 2014), an Illinois state appellate court applied the "neutral principles" approach to hold that over $3.5 million in funds and title to a Diocesan House belong to the break-away Diocese of Quincy and were not held in trust for The Episcopal Church.  The court observed that the Episcopal Church's Dennis Canon applies to parish property, but not to property belonging to a diocese.

Microscope Technician Sues Over Firing For Creationist Research

CBS News reports on a state court lawsuit filed earlier this week by a former electron microscope technician in the Biology Department of California State University Northridge.  The complaint (full text) in Armitage v. Board of Trustees of the California State University, (CA Super. Ct., filed July  22, 2014), alleges that plaintiff Mark Armitage was terminated because of hostility to his research findings supporting the theory of creationism.  In 2012, Armitage participated in a dinosaur dig in Montana and discovered a large triceratops horn.  His microscopic examination of the horn revealed soft tissue, supporting his belief that dinosaurs roamed the planet no earlier than 4000 years ago and that the Earth is young.  Alleging religious discrimination and violation of academic freedom rights, Armitage's complaint asserts:
Plaintiff seeks to have his work published, not only as a means of career advancement, but because his work is a reflection of his religious identity.  He believes that part of the character of God is truth, and that by extension, God is the ultimate author of all truth.  Thus, making and disseminating scientific discoveries is part and parcel of how he exercises his religion.

Editor Fired For Anti-Gay Blog Post Files EEOC Religious Discrimination Claim

Yesterday, a complaint (full text) was filed with the EEOC by Bob Eschliman, former editor of the Newton (IA) Daily News.  As reported by the Des Moines Register, Eschliman was suspended and then fired by his newspaper's publisher after complaints that a posting on Eschliman's personal blog cast doubt on his ability to fairly cover issues involving gays.  The posting criticized a website-- the Queen James Bible-- that advertises a version of the Bible that edits verses relating to homosexuality to eliminate homophobic interpretations.  Eschliman, a member of the Christian Reformed Church, in his post mockingly said that "the LGBTQXYZ crowd and the Gaystapo" are attempting "to make their sinful nature right with God." Eschliman's EEOC complaint says that his post reflected his sincerely held religious beliefs, and contends:
There is no question that I was fired for holding and talking about my sincerely held religious beliefs on my personal blog during my off-duty time.... I would like to have obtained a religious accommodation for my sincerely held religious belief to share my Biblical view with the few family members and friends who read my blog. Shaw Media directly discriminated against me because of my religious beliefs and my identity as an evangelical Christian who believes in Holy Scripture and the Biblical view of marriage. Moreover, Shaw Media announced that... they would not hire or allow anyone to work at Shaw Media who holds religious beliefs similar to mine....

Thursday, July 24, 2014

Charges of Fraudulent Fundraising for Jewish Religious and Charitable Organizations Settled In Civil Judgment

As reported by Courthouse News Service, New York's attorney general yesterday anounced the entry of a civil judgment settling charges in a charity fraud case against Yaakov Weingarten and his wife Rivka who raised funds for some 19 Jewish religious organizations and Israeli medical charities.  Eight of the charities existed in name only.  Weingarten siphoned off large amounts of the funds raised and used them for personal purposes.  In May, Weingarten pleaded guilty to tax fraud and paid $90,685 in restitution to New York state tax authorities. He was also sentenced to 5 years probation during which he is barred from any fundraising activity. In yesterday's civil judgment,  Weingarten and his wife were ordered to pay over $522,000. Of that, $360,000 will go to two legitimate Israeli charities that carry out the kind of medical services that Weingarten  purported to be raising funds to support. The order also permanently shuts down Weingarten's charitable operations.

US Congress, European Parliament Focus On Case of Meriam Ibrahim

Yesterday, a subcommittee of the House Foreign Affairs Committee held a hearing titled "The Troubling Case of Meriam Ibrahim." The hearing focused on the plight of a Sudanese Christian woman, married to a U.S. citizen, who was initially convicted of apostasy and sentenced to death by a Sudanese court, her subsequent release, and efforts of her family to come to the U.S.  (See prior posting.) A video of the hearing and the prepared statements of the four witnesses at the hearing are available from the Committee's website.

Meanwhile, last week the European Parliament passed a resolution (full text) condemning Ibrahim's detention and calling for legal reform.

UPDATE: On July 24, Ibrahim, on her way to the United States, stopped off at Rome where Pope Francis met privately with her, her husband and her two small children.  The Pope blessed Ibrahim as she held her baby in her arms. (HNGN).

Colorado Same-Sex Marriage Laws Invalidated With Only Limited Stay

A Colorado federal district court yesterday issued a preliminary injunction enjoining enforcement of Colorado's state constitutional and statutory provisions that deny same-sex couples the right to marry in Colorado and deny recognition of same-sex marriages performed elsewhere.  In Burns v. Hickenlooper, (D CO, July 23, 2014), the defendants (the governor, the attorney general and a county clerk) did not oppose entry of the injunction since the 10th Circuit in a case from Utah had already held same-sex marriage bans unconstitutional. (See prior posting,) Subsequently the 10th Circuit also invalidated Oklahoma's ban on same-sex marriages. (See prior posting.) Much of yesterday's opinion focused on the question of whether the court should stay its order while the Utah case moves forward on appeal.  The court refused, but instead merely granted a one-month stay in order for defendants to seek relief from the 10th Circuit.  In refusing a broader stay, the court the rejected the argument that U.S Supreme Court action summarily granting stays in other same-sex marriage litigation requires a similar stay here:
Based on the most recent stay, it appears to the Court that it may well be that a message is being sent by the Supreme Court. But this Court is not some modern day haruspex skilled in the art of divination. This Court cannot – and, more importantly, it will not – tell the people of Colorado that the access to this or any other fundamental right will be delayed because it “thinks” or “perceives” the subtle – or not so subtle – content of a message not directed to this case. The rule of law demands more.
Scotus Blog and AP report on the decision.  According to the Denver Post, Colorado attorney general John Suthers filed an appeal with the 10th Circuit an hour after the district court decision was handed down.

Church Split Can Be Adjudicated Using Neutral Principles of Law

In Rector, Wardens and Vestrymen of St. Mary of the Angels' Parish v. Anglican Church in America, (CA App., July 23, 2014), a California appellate court held that a dispute over who controls an Anglican parish, a majority of whose members favor reunification with the Catholic Church, can be resolved by applying neutral principles of law and without deciding ecclesiastical matters. According to the court:
At one point during the dispute, the ACA took disciplinary action against the Rector, Father Christopher P. Kelley, inhibiting him from performing any ecclesiastical duties, and ordering him to vacate the premises owned by St. Mary’s. The ACA appointed a new Rector, who then removed several members of the elected Vestry and appointed new members.
When Father Kelley refused to vacate the premises, the ACA ... filed a lawsuit against him.... Eventually, three more lawsuits were filed.... All of the lawsuits required resolution of one dispositive question: Who controls St. Mary’s?
....We conclude that the determination of who controls St. Mary’s depends upon the validity of an August 2012 vote by members of the Parish to disaffiliate from the ACA, and that the validity of that amendment can be determined by applying neutral principles of law. 

Wednesday, July 23, 2014

Suit Challenges City's Denial of Equal Public Space To Atheist

The ACLU today announced the filing of a lawsuit against the city of Warren, Michigan on behalf of an atheist who was refused space for a table in the atrium of city hall for a "reason station,"  even though the city has permitted a local pastor to operate a "prayer station" in the atrium since 2009.  The complaint (full text) in Marshall v. City of Warren, (ED MI, filed 7/23/2014), sets out free speech and establishment clause challenges based largely on the letter sent by the city's mayor denying plaintiff's request. The letter reads in part:
It is my understanding that you are affiliated with Freedom from Religion, a group that has objected to the Nativity Scene, the Prayer Station in the atrium and the Annual Day of Prayer in front of city hall.
All of these events are allowed because of the right to freedom of religion constitutional amendment. We cannot and will not restrict this right for any religion to use the atrium, as long as the activity is open to all religions. Freedom from Religion is not a religion. It has no tenets, no place of worship and no congregation. To my way of thinking, your group is strictly an anti-religion group intending to deprive all organized religions of their constitutional freedoms or at least discourage the practice of religion. The City of Warren cannot allow this. 
Also, I believe it is your group’s intention to disrupt those who participate in the Prayer Station which would also be a violation of the freedom of religion amendment.

Recent Prisoner Free Exercise Cases

In Chavis v. United States, 2014 U.S. Dist. LEXIS 96940 (D NJ, July 17, 2014), a New Jersey federal district court dismissed without prejudice a claim by an inmate that his free exercise rights were infringed when a correctional officer conducted a pat-down search of him in a "homosexual manner."

In Sharp v. Gay, 2014 U.S. Dist. LEXIS 97825 (D AZ, July 18, 2014), an Arizona federal district court, after a 3-day bench trial, held that a prison's policy allowing Native American inmates to obtain wood for sweat ceremonies only by in-kind donations from family or friends outside the prison violates RLUIPA. The court ordered prison officials to set up a group religious account to allow for inmate and outside financial contributions for the purchase and delivery of firewood. The court however rejected plaintiff's equal protection claim seeking an additional religious meeting time each week for Native Americans.

In Randolph v. Griffin, 2014 U.S. Dist. LEXIS 97369 (WD NY, July 16, 2014), a New York federal district court permitted a Jewish inmate to proceed with his claim that his free exercise rights were infringed when a correctional officer ordered him to remove his yarmulke indoors (including in his cell) and then permanently confiscated it.

AFP reports that in France on July 22, a court ruled that a prison need not furnish Muslim prisoners halal food, since they can obtain meals without pork or vegetarian meals, can purchase halal meat and recieve special meals during the main holidays.

Suit Seeks Return of Valuable Hebrew Bible Manuscript

On Monday, a suit was filed in federal district court in New York by the heirs of  David C. Arakie to obtain the return of a "priceless, ancient, handwritten set of the Five Books of Moses."  The complaint (full text) in Samuels v. Greenberg,  (ED NY, filed 7/21/2014), alleges that the Hebrew manuscript at issue-- an important resource for Biblical scholars-- was loaned by David Arakie to Zalmen Gurewicz for the purpose of academic study.  Some years later, both Arakie and Gurewicz died with the manuscript never having been returned to Arakie.  The manuscript is presently in the possession of defendants, Gurewicz's daughter and son-in-law, who say they found it in Gurewicz's suitcase. New York Daily News reports on the filing of the lawsuit.

Tuesday, July 22, 2014

Condolences On Death of Dan Markel, Legal Blog Innovator

All of us involved in the legal blogosphere send sincere condolences to the family of Dan Markel, founder of the groundbreaking PrawfsBlog. Prof. Markel, a Professor at Florida State University Law School, died Saturday from gunshot wounds, apparently the victim of a murder. (Tallahassee Democrat). TaxProf Blog has links to more information. Dan Markel's memory will without doubt remain as an inspiration to all who knew him.

Conservative Christian Groups Criticize New Executive Order

Some conservative Christian groups are speaking out against the Executive Order issued yesterday by President Obama (see prior posting) which bans employment discrimination on the basis of sexual orientation or gender identity by federal contractors, as well as by executive agencies. The Family Research Council in a press release yesterday said in part:
President Obama has ordered employers to put aside their principles, and practices in the name of political correctness. This level of coercion is nothing less than viewpoint blackmail that bullies into silence every contractor and subcontractor who has moral objections to homosexual behavior. This order gives activists a license to challenge their employers and, expose those employers to threats of costly legal proceedings and the potential of jeopardizing future contracts.
Religious faith is not simply a matter of intellectual affirmation but of active practice. A religious organization which is denied the power to require its employees to conduct their lives in a way consistent with the teachings of their faith is an organization which is being denied the right to exercise its religion, period. People with deeply held convictions regarding the morality of certain types of sexual behavior should not be bound by the dictates of President Obama's agenda.
Daily Caller has more on the reactions of religious groups.

Puerto Rico Supreme Court Upholds Subpoenas Against Church In Part

In Bishop of the Catholic Diocese of Puerto Rico-Arecibo v. Attorney General of the Commonwealth of Puerto Rico, 2014 PR Sup. LEXIS 87 (PR Sup. Ct., July 14, 2014), the Supreme Court of Puerto Rico decided a challenge by the Catholic Church to subpoenas issued to obtain information given to the diocese by victims of clergy sexual abuse.  The opinion and dissents, in Spanish, are summarized by AP in a July 15 article:
The Supreme Court of Puerto Rico has found that a Roman Catholic diocese does not need to share information about alleged sexual abuse by its priests if the victims are adults who wish to maintain their privacy.
The Diocese of Arecibo in northern Puerto Rico had sought to protect the identities of parishioners who made allegations against its priests. The diocese has defrocked six priests over such claims.
The court also states that information that came from private confessions may remain confidential.
In its ruling Monday the court also said the diocese must share information with prosecutors in cases where the alleged victims are younger than 18. In cases involving adults, the diocese must allow the alleged victims to decide whether to share information about the case with prosecutors.

10th Circuit Wades Through Procedural Morass In Invalidating Part of Oklahoma's Same-Sex Marriage Provisions

The 10th Circuit last week, in a case generating 84 pages of opinions that focus extensively on procedural issues, struck down Oklahoma's ban on same-sex marriage, but dismissed for lack of standing the state's refusal to recognize same-sex marriages performed elsewhere.  The unusual posture of the case stemmed from the fact that the 10th Circuit had already struck down as violative of the 14th Amendment Utah's bans on same-sex sex marriage and Utah's ban on recognizing such marriages performed in other jurisdictions (see prior posting). So in Bishop v. Smith, (10th Cir., July 18, 2014), the question was whether anything distinguished the challenge to Oklahoma's laws from the already decided challenge to Utah's.

In a portion of the opinion that all 3 judges agreed to, the court held that the couple challenging Oklahoma's non-recognition provisions lacked standing because the only defendant in the case, the Clerk of Court for Tulsa County, has nothing to do with recognizing or not recognizing a marriage performed elsewhere. The majority, however, held that Oklahoma's ban on granting licences for same-sex marriages performed in the state is unconstitutional, as was Utah's similar ban. The majority's conclusion was not undermined by the fact that plaintiffs had challenged only Oklahoma's constitutional ban on same-sex marriage, and not the parallel statutory ban as well. The majority stayed their mandate pending disposition of any petition for certiorari that is filed with the Supreme Court.

Judge Holmes wrote a 27 page concurring opinion explaining why the district court had been correct in not relying on the "animus" theory in striking down Oklahoma's ban on marriage equality. Judge Kelley dissented in part, arguing that the couple challenging the ban on in-state same-sex marriages also lacked standing because they challenged only the state constitutional ban and not the parallel statutory prohibition.  Judge Kelley also disagreed on the merits, contending that "Same-gender marriage is a public policy choice for the states, and should not be
driven by a uniform, judge-made fundamental rights analysis." Scotus Blog reports on the decision.

Meanwhile, the U.S. Supreme Court last week issued an order (full text) in Herbert v. Evans, staying pending appeal to the 10th Circuit the district court's preliminary injunction requiring Utah to recognize same-sex marriages performed during the gap period before a district court's order was stayed. (See prior posting.) Here is the petition to Justice Sotomayor requesting the stay.