Thursday, July 24, 2014

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.

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.

Monday, July 21, 2014

Obama Issues Executive Order Barring LGBT Discrimination By Contractors and Agencies; No Religious Exemption Included

President Obama today issued an Executive Order (full text) adding "sexual orientation" and "gender identity" to the anti-discrimination provisions applicable to employment decisions by federal contractors.  The Order also added "gender identity" to the anti-discrimination provisions applicable executive departments and executive agencies, which are already barred from discriminating on the basis of sexual orientation. Despite urgings by some faith groups (see prior posting) today's Executive Order contains no religious or conscience exemption.

Ban on Sexual Exploitation By Counselor Survives Establishment Clause Challenge

In State of Iowa v. Edouard, (IA Sup. Ct., July 18, 2014), the Iowa Supreme Court upheld a clergyman's constitutional challenge to the state's statute prohibiting sexual exploitation by a counselor or therapist (Iowa Code Sec. 709.15).  The Christian pastor involved, Patrick Edouard, was charged with having sexual relations with four women he had counseled.  The majority held that the statute did not unconstitutionally burden Edouard's right to enter into sexual relationships. It also concluded that the statute does not violate the Establishment Clause:
We do not find section 709.15 violates the Establishment Clause as applied to clergy. As the State points out, the statute ... is essentially neutral. It applies to all persons who provide or purport to provide mental health services.

LA Times Profiles Becket Fund

The Los Angeles Times yesterday profiled The Becket Fund for Religious Liberty, saying in part:
The Supreme Court's controversial Hobby Lobby decision has thrust a once-little-known boutique law firm into the center of a growing conservative movement to make faith-based exemptions as potent a legal tool as free speech has been for liberals....
With just a dozen full-time attorneys, the fund's string of high-court successes is earning it a reputation in legal circles as a powerhouse, though its leaders downplay talk about the firm's growing influence....
The fund insists it represents all denominations, from "A to Z, from Anglicans to Zoroastrians." It once defended a Texas Santeria priest who wanted to sacrifice goats at home. This fall the firm heads back to the Supreme Court to represent a Muslim inmate prevented by prison rules from growing a beard in keeping with his faith....
But critics say in recent years Becket has turned its focus primarily toward representing Christians and the religious right.

Recent Articles and Book of Interest

From SSRN:
From SmartCILP:
Recent Book:

Ruling Requiring Change of Use Permit For Meditation Center Upheld By Court

In  MAUM Meditation House of Truth v. Lake County, Illinois, (ND IL, July 16, 2014), an Illinois federal district court dismissed free exercise, free speech, equal protection and due process challenges to a decision by zoning authorities that a "change of use" permit is necessary to use a residence also as a meditation center. The court held first that plaintiffs must exhaust administrative remedies by seeking court review of a zoning board of appeals decision. In addition, the court concluded that plaintiffs cannot succeed on any of their substantive challenges.

Sunday, July 20, 2014

Recent Prisoner Free Exercise Cases

In Partlow v. CDCR, 2014 U.S. Dist. LEXIS 94066  and Stamps v. CDCR, 2014 U.S. Dist. LEXIS 94069  (ED CA, July 10, 2014), a California federal magistrate judge dismissed with leave to amend a complaint that Asatru/ Odonic inmates were denied access to the chapel and outdoor worship space and denied religious items.

In Stepler v. Warden, Hocking Correctional Facility, 2014 U.S. Dist. LEXIS 94453 (SD OH, July 10, 2014), an Ohio federal magistrate judge recommended dismissing a Jewish inmate's complaint that he was not provided a room for religious services and not provided kosher meals with enough calories.

In Morgan v. City of New York, 2014 U.S. Dist. LEXIS 94693 (ED NY, July 10, 2014), a New York federal district court permitted plaintiff, a Rastafarian, to move ahead with his claim that his free exercise rights were infringed when his turban was removed at a police precinct after he was arrested.

In Martinez v. Vondewigelo, 2014 U.S. Dist. LEXIS 95005 (WD KY, July 14, 2014), a Kentucky federal district court dismissed an inmate's complaint that he has been denied access to religious materials in Spanish.

In King v. Bosenko, 2014 U.S. Dist. LEXIS 95649 (ED CA, July 11, 2014), a California federal magistrate judge permitted an inmate to move ahead with his claim that his Buddhist beliefs require a vegetarian diet which he was wrongfully denied.

In Dotson v. Shelby County, 2014 U.S. Dist. LEXIS 95953 (WD TN, July 15, 2014), a Tennessee federal district court permitted an inmate to move ahead with his complaint that he did not receive a halal diet.  The court found that his claim fell within the "imminent danger" exception to the disqualification of three-strike prisoner suits filed in forma pauperis. The court dismissed plaintiff's claim that disposable razors had been replaced by electric clippers.

In Sangraal v. Godinez, 2014 U.S. Dist. LEXIS 96056 (SD IL, July 14, 2014), an Illinois federal district court permitted a Pagan inmate to proceed with his complaint that the pentacle as a religious symbol was banned; use of tarot cards to practice divination was restricted; religious literature was selectively screened and he was subjected to overtly Christian messages.

In Bell v. Kennedy, 2014 U.S. Dist. LEXIS 96115 (ED AR, July 15, 2014), an Arkansas federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 96110, June 18, 2014) and denied a preliminary injunction against enforcing grooming regulations against a Rastafarian who adheres to the Nazarite Vow.

Federal Agencies Provide Disclosure Guidance For Companies Relying On Hobby Lobby Decision

The Department of Labor on Thursday posted an addition to Frequently Asked Questions to provide post-Hobby Lobby ERISA guidance from relevant federal agencies. For closely-held companies that terminate contraceptive coverage mid-plan year in reliance on the Hobby Lobby decision:
if an ERISA plan excludes all or a subset of contraceptive services from coverage under its group health plan, the plan's SPD [Summary Plan Description] must describe the extent of the limitation or exclusion of coverage. For plans that reduce or eliminate coverage of contraceptive services after having provided such coverage, expedited disclosure requirements for material reductions in covered services or benefits apply... which generally require disclosure not later than 60 days after the date of adoption of a modification or change.... Other disclosure requirements may apply, for example, under State insurance law applicable to health insurance issuers.

Remaining Christians Flee Iraqi City of Mosul After Decree By ISIS

BBC NewsAP and the New York Times reported Friday that almost all Christians have left the Iraqi city of Mosul after a statement from the radical group Islamic State in Iraq and the Levant was read at the city's mosques. The statement gave Christians the choice of conversion, paying a traditional fee for protection (jizya) or death, with a deadline of noon Saturday.  The statement said in part:
We offer them three choices: Islam; the dhimma contract - involving payment of jizya; if they refuse this they will have nothing but the sword,

Saturday, July 19, 2014

FFRF and IRS Settle Suit On Non-Enforcement of 501(c)(3) Against Churches

The Freedom From Religion Foundation announced Thursday that it has reached a settlement agreement with the Internal Revenue Service in Freedom From Religion Foundation v. Koskinen, a suit (links to pleadings) challenging the IRS's alleged non-enforcement against churches and religious organizations of the Section 501(c)(3) ban on political activity by non-profits. (See prior related posting.)  According to FFRF:
A prior lawsuit in 2009 required the IRS to designate an appropriate high-ranking official to initiate church tax examinations, but it had apparently failed to do so. 
The IRS has now resolved the signature authority issue necessary to initiate church examinations. The IRS also has adopted procedures for reviewing, evaluating and determining whether to initiate church investigations. While the IRS retains “prosecutorial” discretion with regard to any individual case, the IRS no longer has a blanket policy or practice of non-enforcement of political activity restrictions as to churches.
Church audits will not begin immediately because the IRS now has a broader moratorium in place on investigation of any tax-exempt organizations because of the Congressional investigation of its alleged targeting of conservative groups for adverse treatment.

A Ruling And Another Suit On Catholic Hospital Pension Plans As "Church Plans"

As reported by BNA Daily Report for Executives [subscription required], another decision has been handed down in a series of cases filed over the last 18 months challenging the assertion by a number of Catholic health care companies that their pension plans qualify as "church plans," and are thus exempt from the funding and other requirements of ERISA.  In Medina v. Catholic Health Initiatives, (D CO, July 9, 2014), a Colorado federal magistrate judge recommended entering a declaratory judgment finding that the plan is not a church plan. Refusing to defer to the position taken by the IRS in a 2002 Private Letter Ruling, the magistrate judge followed the lead of two out of three other courts that have ruled on the issue and held that to qualify as a church plan, the plan must be established by a church or association of churches, and not merely by a church-affiliated organization. (See prior related posting.)

Meanwhile one more similar challenge has been filed, bringing the total number of cases pending or decided to 8.   The complaint (full text) in Lann v. Trinity Health Corp., (D MD, filed 7/11/2014), not only claims that the health care organization's plan does not qualify as a church plan, but argues that if it does, the exemption in ERISA for church plans violates the Establishment Clause.

Friday, July 18, 2014

Kyrgyzstan Refuses To License Bishop of Russian Orthodox Church

Forum 18 reports that earlier this week Kyrgyzstan's State Commission for Religious Affairs refused registration as missionary to Bishop Feodosy, the head of the Russian Orthodox Church in Kyrgyzstan.  This prevents the Bishop from working as a religious worker in the country. According to the U.S. State Department's latest International Religious Freedom Report, the Kyrgyz Republic is 83% Sunni Muslim; 15% is Christian (half of which identifies as Russian Orthodox).

State Trial Court Voids Florida's Ban On Same-Sex Marriages; Appeal Stays Decision

In Huntsman v. Heavlin,(FL Cir. Ct., July 17, 2014), a Florida state trial court judge enjoined the clerk of Monroe County, Florida from enforcing the state's ban on same-sex marriages. Finding that the ban violate's the 14th Amendment's due process and equal protection clauses, the court ordered the county clerk to issue marriage licenses to plaintiffs and other similarly-situated same-sex couples. According to the Washington Blade, the judge's order is automatically stayed because the Florida Attorney General quickly filed a notice of appeal.

Scientology Official Need Not Give Deposition In Harassment Suit

In In re David Miscavige, (TX App., July 17, 2014), a Texas appellate court ordered a trial court to withdraw its order compelling David Miscavige, head of the Church of Scientology's Religious Technology Center, to give his deposition in a suit filed by the wife of a former Scientology member.  Plaintiff Monique Rathbun claimed that she and her husband Mark were subjected to three years of harassment after Mark spoke to national media about Miscavige's alleged misconduct. In ruling for Miscavige, the court applied the so-called "apex deposition" doctrine that is designed to protect high-ranking corporate officials from burdensome, expensive, and harassing discovery. San Antonio Express-News reports on the decision.

Court In India Says Enforcing Wildlife Protection Against Cobra Worship Is Constitutional

According to Pune Mirror, in India yesterday a 2-judge panel of the Bombay High Court rejected claims by residents of a village in Sangli that their constitutional right to freely practice their religion is being violated by enforcing the Wildlife Protection Act, 1972 against them.  The villagers are known for observing Nag Panchami by capturing wild King Cobras in the forest, worshiping them and then releasing them back into the wild.  A public interest lawsuit filed last year has been attempting to stop the practice. A 2-judge bench of the Bombay High Court rejected villagers free exercise assertions, saying:
The capture and worship of live snakes for worship is not an essential part of the Hindu religion. Capturing live snakes and later releasing them back into the wild could cause them harm, which is against the law. Under the Constitution, citizens are duty-bound to protect these creatures.

Suit Against Catholic Diocese By Fired Lesbian Food Bank Manager Alleges Fraud

Kansas City Star reported yesterday on a lawsuit filed by a Kansas City (MO) woman who says she was fired from her position as a pastoral associate managing a food bank for St. Francis Xavier Catholic parish after her same-sex marital relationship was mentioned in a newspaper article.  Plaintiff Colleen Simon says that priests at the parish knew of her marriage to Rev. Donna Simon, a Lutheran minister, and had no problem with it. However it is alleged that when the relationship was publicly mentioned in an article about an area of Kansas City, Bishop Robert Finn ordered her fired.  The state court lawsuit against the Diocese and Finn claims that the diocese fraudulently encouraged her to take the food bank position knowing that it had no intention of keeping its commitments to her.