IRS Guidance On Qualified Retirement Plans and Same-Sex Spouses

On April 4, the Internal Revenue Service announced two releases that give guidance on how qualified retirement plans should treat marriages of same-sex couples following the Supreme Court’s decision in United States v. Windsor. Notice 2014-19 gives important guidance as to retroactivity:

Qualified retirement plan operations must reflect the outcome of Windsor as of June 26, 2013. A retirement plan will not be treated as failing to meet the requirements of section 401(a) merely because it did not recognize the same-sex spouse of a participant as a spouse before June 26, 2013.... [A] retirement plan will not be treated as failing to meet the requirements of section 401(a) merely because the plan, prior to September 16, 2013, recognized the same-sex spouse of a participant only if the participant was domiciled in a state that recognized same-sex marriages. 

Further guidance is given in IRS, Answers to Frequently Asked Questions Regarding the Application of the Windsor Decision and Post-Windsor Published Guidance to Qualified Retirement Plans (April 4, 2014). (See prior related posting.)

UAE Appeals Court Says Murder Conviction To Be Decided By Sharia Procedure

The National reported yesterday that in the United Arab Emirates the appeals court has held that a trial court murder conviction of two cousins who allegedly shot an Omani while on a desert hunting trip was supported by strong suspicion but not by a confession or by witnesses to the crime. So the court held that guilt or innocence should be determined by the Sharia procedure of Qasama. According to the report:

During Qasama, the victim’s heirs are asked to swear a religious oath a total of 50 times that they believe the defendant killed the victim. They also have the choice of reverting the Qasama back to the defendant and making them take the oath 50 times that they did not commit it. If they decline from either option then the case is dropped.

Recent Prisoner Free Exercise Cases

In Gutierrez v. Corrections Corporation of America, (5th Cir., April 3, 2014), the U.S. 5th Circuit Court of Appeals dismissed as frivolous a Catholic inmate's complaint that only non-denominational (apparently Protestant-oriented) programming from the Trinity Broadcasting Network is carried in the prison, and the prison does not furnish programming from the Catholic-oriented Eternal Word Broadcasting Network.

In Hughes v. Heimgartner, 2014 U.S. Dist. LEXIS 45867 (D KA, April 3, 2014), a Muslim inmate complained that he was refused halal meals while in segregation. A Kansas federal district court ordered prison officials to investigate the matter, consider whether other similar complaints are related, and file a report with the court on whether action can and should be taken.

In Crews-Bey v. Price, 2014 U.S. Dist. LEXIS 44313 (ND AL, April 1, 2014), an Alabama federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 45394, March 4, 2014) and dismissed for lack of standing an inmate's complaint that prison rules do not allow Moorish Science ordained ministers and Temple heads to perform marriage ceremonies for adherents incarcerated in Alabama prisons.

In Darrough v. Allen, 2014 U.S. Dist. LEXIS 45917 (MD GA, April 3, 2014), a Georgia federal district court refused to allow an inmate to file an amended complaint alleging generally that he is being harassed by the warden because of his religious beliefs.

In Pfeil v. Lampert, 2014 U.S. Dist. LEXIS 46389 (D WY, March 31, 2014), a Wyoming federal district court dismissed a Catholic inmate's complaints that a religious volunteer, on a single occasion, was not permitted entry to provide Catholic services, and that a new policy prohibiting hardbound books in living quarters caused him to lose his religious books.

In Browning v. McDonnell, 2014 U.S. Dist. LEXIS 46578 (WD VA, April 4, 2014), a Virginia federal district court dismissed as frivolous an inmate's claim for $10 million in damages because Art. I, Sec. 16 of the Virginia Constitution that refers to "the duty which we owe to our Creator" and  "Christian forbearance" forces him to worship against his conscience and makes Christianity the official state religion.

The Story Behind The Niqab Wearing British Defendant

Last September, a good deal of attention was given to rulings by a British judge in the case of a Muslim woman charged with witness intimidation who sought to keep her face fully covered by her niqab at her arraignment and subsequently at her trial. (See prior posting). In a lengthy article yesterday, The Independent reports the back story on defendant Rebecca Dawson. The witness intimidation charges grew out of an encounter between Dawson and a volunteer caretaker at a local mosque who was planning to testify against Dawson's husband in his trial on assault charges.  According to the report:

At the root of the case, so it seemed, lay a dispute between two factions at the Finsbury Park Mosque. One believed that it was acceptable for tourists to be shown around the mosque with their heads uncovered and in Western dress; the other did not. Dawson’s husband was firmly in the latter camp, and when he learned that the caretaker had shown around a group of “improperly” dressed Portuguese visitors, he had gone to the mosque and duffed him up.

When the jury was deadlocked after 10 hours, Dawson agreed to a plea deal.  While awaiting sentence, Dawson went to trial along with her husband on other charges-- disseminating YouTube videos glorifying the terrorist killing of Fusilier Lee Rigby.

Virginia Settles Suit Challenging Limits On Student Preaching On Campus In Wake of New Law Assuring Speech Rights

The Hampton Roads (VA) Pilot reports that a proposed consent decree was filed in Virginia federal district court last Friday in Parks v. Members of the State Board  of the Virginia Community College System. In the suit, a student who wished to preach on campus challenged the rules at Thomas Nelson Community College that allow students to speak in open, outdoor areas of campus only if they are members of student organizations, and then only if they register their activity 4 days in advance. (See prior posting.) Under the consent decree, which still requires court approval, students will be allowed to speak freely on campus without joining a recognized student organization or registering in advance. Also colleges will not unreasonably limit the outdoor areas in which students can speak.

This development comes the same day that Virginia Governor Terry McAuliffe signed HB 258 (full text) which bars public colleges in Virginia from imposing restrictions on student speech in outdoor areas of campus unless they are reasonable, content-neutral and narrowly tailored to serve a significant interest and leave open ample alternative channels for communication.

Appeals Court Reverses Priest's Clergy Sexual Misconduct Conviction

In State of Minnesota v. Wenthe, (MN App., April 7, 2014), a Minnesota state appellate court reversed the conviction of Christopher Thomas Wenthe, a Catholic priest who had been convicted of violating Minn. Stat. § 609.344 which criminalizes sexual penetration by a member of the clergy where the victim is receiving religious or spiritual advice. The criminal complaint against Wenthe charged that sexual conduct occurred during the course of a single meeting in which the victim sought or received spiritual advice. The appellate court concluded that the trial judge had given two erroneous jury instructions.  Since there was evidence of different acts of sexual conduct between the priest and the adult female victim on different days, jurors should have been told that they must unanimously agree on the one of these that constituted the single meeting. The jurors should also have been instructed that the state must prove that Wenthe knew the victim was seeking or received spiritual or religious advice during that meeting. Finally the appellate court held that the trial court erroneously excluded evidence of the adult complainant's sexual history when the prosecution opened the door by eliciting testimony from the victim that she was sexually inexperienced. The Minneapolis Star Tribune reports on the decision. (See prior related posting.)

Supreme Court Denies Review In New Mexico Same-Sex Wedding Photographer Case

The U.S. Supreme Court today denied certiorari in Elane Photography v. Willock,  (Docket No. 13-585, cert. denied 4/7/2014). (Order List.) In the case, the New Mexico Supreme Court held that the New Mexico Human Rights Act requires a commercial photography business to serve same-sex couples on the same basis as opposite-sex couples. It concluded that the 1st Amendment does not require an exception for creative or expressive professions. (See prior posting.)

Pension Plan of Catholic Hospital Does Not Qualify As "Church Plan" Exempt From ERISA

In Kaplan v. St. Peter's Healthcare System, (D NJ, March 31, 2014), a New Jersey federal district court held that in order for a pension plan to qualify as a "church plan" exempt from ERISA, it must be established by a church or an association of churches.  It is not sufficient that it is established by a tax exempt corporation merely controlled by or associated with a church, despite a 2013 IRS private letter ruling that recognized the New Brunswick, New Jersey Catholic hospital's plan as a church plan. This is the second recent case (see prior posting) to require pension plans of religiously affiliated health care organizations and hospital systems to comply with ERISA. Plaintiff contends that St. Peter's pension plan violates a number of ERISA's requirements, including a requirement that results in its being underfunded by $70 million. MyCentralJersey.com reports on the decision.

Christian Couple Sentenced To Death For Blasphemy By Pakistani Court

Christian Today reports that in Pakistan's Punjab province last month, a Christian couple were sentenced to death for sending blasphemous text messages after police allegedly forced a confession from the husband. The trial was held in prison due concerns about the couple's safety.  Shafqat Emmanuel who is confined to a wheel chair and his wife Shugufta Emmanuel who works as a cleaner at a local missionary school were charged with sending the messages to the two complainants, one of whom was a local bar association president.  The Emmanuel's lawyer says that the judge acted under pressure from Islamist lawyers who continually quoted Qur'anic verses calling for death to blasphemers. Shugufta told police that the cell phone had been lost for a month, and police did not produce the phone's SIM card.  Their lawyer also said that the couple could not have possibly sent the messages, written in Roman Urdu, since they cannot read or write Urdu properly. An appeal is planned once a detailed verdict is received.

Recent Articles of Interest

From SSRN:

• John D. Haskell, The Traditions of Modernity within International Law and Governance: Christianity, Liberalism and Marxism, (Howard University School of Law, Human Rights and Globalization Law Review (Fall 2014, Forthcoming)).
• Muhammad Munir, Islamisation or De-Islamisation?: De-Islamisation of the Law of Evidence under the Disguise of Islamisation by General Ziaulhaq in Pakistan, (March 23, 2014). 

From SmartCILP:

• Evelyn M. Aswad, Rashad Hussain & M. Arsalan Suleman, Why the United States Cannot Agree To Disagree on Blasphemy Laws, 32 Boston University International Law Journal 119-146 (2014).
• Ann Neumann, The Limits of Autonomy: Force-Feedings in Catholic Hospitals and In Prisons, 58 New York Law School Law Review 305-318 (2013/2014).
• Ilias Trispiotis, The Duty To Respect Religious Feelings: Insights From European Human Rights Law, [Abstract], 19 Columbia Journal of European Law 499-551 (2013).

British Government Proposes Shariah-Compliant Student Loan Program Alternative

Last week, the British government's Department for Business, Innovation and Skills announced a proposal to make available Shariah-compliant student loans to Muslim students.  (Full text of Consultation On a Shariah-Compliant Alternative Finance Product).  The Executive Summary explains the proposal in part as follows:

In September 2012 changes to higher education funding mean that students are able take out student loans for tuition of up to £9000 for each year of study. These post-2012 loans carry a different rate of interest, above inflation, to student loans issued before September 2012. 

Some students, whose religious beliefs may forbid the taking out of a loan that bears interest, may be unable to take advantage of student loans because of this change. This could make it more difficult for them to benefit from higher education. 

The Government have been exploring the possibility of making an alternative student finance product available. This finance product would be Sharia-compliant and overseen by a Sharia advisory committee. Any such alternative finance product would not result in a student being in any way disadvantaged or advantaged over a student who took out a traditional student loan. Both the size of the finance and the repayment amounts would be equivalent between the two systems. The model of the proposed product could be applied for in the same way as a traditional loan: through the Student Loans Company (SLC).

The Telegraph reports on the proposal. [Thanks to Alliance Alert for the lead.]

Appeals Court Finds Mormon Branch President Did Not Misuse His Police Department Credentials

In Fierro v. Park City Municipal Corporation, (UT Ct. App., March 27, 2014), the Utah Court of Appeals rejected the findings of the city's employee discharge appeal board that had upheld the firing of a member of the police department for misusing his police credentials.  Michael Fierro was president of a small local Mormon congregation (branch) as well as a member of the police department. When a member of his branch was arrested as a suspect in a child sex abuse case, Fierro visited him in jail in his Branch President role.  Fierro was dismissed for misusing his credentials to obtain the visit.  The appeals court found however that the evidence showed Fierro had fully disclosed his ecclesiastical role in visiting the jail. Courthouse News Service reports on the decision.

Suit Against NYC Transit Authority Over Headwear Rules Survives Motion To Dismiss

In Lewis v. New York City Transit Authority, (ED NY, March 31, 2014), a New York federal district court denied the New York City Transit Authority's motion to dismiss a discrimination suit filed against it by Stephanie Lewis, a Muslim woman who was employed as a bus driver, but was transferred to a bus depot for refusing to remove, cover with a cap, or affix a logo to her khimar.  Ultimately her employment was terminated.  In a 55-page opinion, the court permitted the suit (now being pursued by the administrator of Lewis' estate) to proceed with claims under Title VII, the 1st and 14th Amendments, the New York state constitution, and state and city human rights laws.

Recent Prisoner Free Exercise Cases

In Smith v. Governor for the State of Alabama, (11th Cir., April 2, 2014), the U.S. 11th Circuit Court of Appeals dismissed a number of claims by an Odinist inmate, including his complaint that he was denied religious items (rune container, leather folder for study materials, quartz crystal and outdoor fire pit); claims of retaliation; security threat group designation; destruction of his artwork; and his challenge to the prison's faith-based honor dorm.

In McKinley v. Maddox, 2014 U.S. Dist. LEXIS 40889 (WD OK, March 27, 2014), an Oklahoma federal district court adopted in modified form a magistrate's recommendations (2014 U.S. Dist. LEXIS 42243, March 4, 2014), and dismissed without prejudice a former inmate's suit complaining that he was not permitted to attend off-site religious services. The dismissal was a sanction for plaintiff's failure to appear at a scheduled deposition.

In Debardelaben v. McKeon, 2014 U.S. Dist. LEXIS 40526 (WD MI, March 27, 2014), a Michigan federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 41916, March 6, 2014) and dismissed on qualified immunity grounds an inmate's complaint that he was wrongly removed from the kosher diet program for having purchased non-kosher food from the prison store. Plaintiff was permitted to proceed with a retaliation claim.

In Shapiro v. Community First Services, Inc., 2014 U.S. Dist. LEXIS 42459 (ED NY, March 27, 2014), a New York federal district court dismissed an inmate's 1st Amendment Bivens action against a privately-owned halfway house to which he was sentenced for violating probation. Plaintiff claimed he was not given sufficient time to travel to attend Quaker services on Sundays.

In Riehl v. Martin, 2014 U.S. Dist. LEXIS 42870 (ND NY, March 31, 2014), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 186610, Dec. 19, 2013) and permitted a Jewish inmate to proceed with his 1st Amendment (but not his RLUIPA) damage claim alleging that some of the food served to him during Passover 2012 was not kosher for Passover.

In Heard v. Finco, 2014 U.S. Dist. LEXIS 43048 (WD MI, March 31, 2014), a Michigan federal district court permitted Muslim inmates to proceed with their claims alleging that they received inadequate amounts of food in their Ramadan meals in violation of the 1st Amendment and RLUIPA. Their 8th Amendment claims were dismissed. The magistrate's recommendations in the case are at 2014 U.S. Dist. LEXIS 45458, Feb. 25, 2014.

In Hampton v. Wetzel, 2014 U.S. Dist. LEXIS 43207 (MD PA, March 31, 2014), a Pennsylvania federal district court permitted a Muslim inmate to proceed against certain defendants on his complaint that authorities refused to provide him with a medically prescribed therapeutic diet tray at times to permit observance of the Ramadan fast.

In Ind v. Colorado Department of Corrections, 2014 U.S. Dist. LEXIS 43461 (D CO, March 31, 2014), a Colorado federal district court held that the free exercise rights under RLUIPA of an inmate of the Christian Separatist faith were violated by limiting him to possessing two books while in administrative segregation.

In Davis v. Abercrombie, 2014 U.S. Dist. LEXIS 43966 (D HI, March 31, 2014), an Hawaiian federal district court, in an opinion that extensively discusses Native Hawaiian religious rituals, permitted Hawaiian inmates housed in private prison facilities in Arizona to move ahead with their complaints regarding denial of daily outdoor group worship and possession of certain sacred items. Claims regarding a number of other infringements of religious practices were dismissed.

In Seymore v. City of New York, 2014 U.S. Dist. LEXIS 44951 (SD NY, March 26, 2014), a New York federal district court adopted a magistrate's recommendation and dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint that during Ramadan 2012 religious services were cancelled or curtailed.

Autopsy Did Not Violate 1st Amendment Rights of Accident Victim

Keller v. Finks, (CD IL, March 31, 2014), is a lawsuit growing out of the death of Melissa Keller who was a passenger in a vehicle that struck a tree driving 70 miles per hour in a 10 mile per hour zone. The driver of the auto was Katie McKenna, whose probation had been revoked but who had not been taken into custody.  This suit by the administrator of Keller's estate alleges several claims against county law enforcement officials, including a claim against the county coroner for violating Keller's free exercise rights by performing an autopsy on her that violated the religious beliefs of her and her family. An Illinois federal district court dismissed the claim holding first that once Keller was deceased she was no longer a "person" who had constitutional rights.  In addition, the coroner was acting under a neutral law of general application and so did not violate the 1st Amendment's free exercise clause.

Religious Groups Say Military's New Religious Accommodation Policy Falls Short

As previously reported, in January the Department of Defense adopted a revised policy on religious accommodation in the military, including on matters of appearance and grooming.  However, as explained by the ADL in a blog posting yesterday, many still feel that the new policy does not go far enough. In an April 2 letter to the Pentagon (full text) 21 major religious and civil rights organizations summarized their objections, stating in part:

As currently drafted, ... [the policy] would require religiously observant service members ... to remove their head coverings, cut their hair, or shave their beards ... while their request to accommodate these same religious practices is pending.... We urge you to reconsider this provision, which has the effect of forcing some religiously observant service members to make an impossible choice between their faith and their chosen profession.

Further, under ... [the policy] even if an original accommodation request is approved, religiously observant service members would be required to submit a new request for the same accommodation every time they receive a new assignment, “transfer of duty station, or other significant change in circumstances.” The uncertainty associated with this requirement to repeatedly request an accommodation for the very same religious practices is stifling, and may needlessly limit career opportunities – or, in some cases, end careers.

[Thanks to Michael Lieberman for the lead.]

11 French Towns Will Ban Schools From Serving Alternatives When Pork Is On The Menu

In local elections in France last week, the right-wing Front National party, led by  Marine Le Pen, won control of eleven local town councils.  According to RFI  and The Local, Le Pen told RTL Radio yesterday that those eleven towns will now ban their school cafeterias from providing Muslim and Jewish students menu alternatives when the school serves pork meals. She said: "We will not accept any religious requirements on school menus.  There is no reason for religion to enter into the public sphere, that's the law."

Federal Judge Announces He Will Strike Down Ohio's Refusal To Recognize Same-Sex Marriages From Elsewhere

The Cleveland Plain Dealer reports that at a Friday hearing in a Cincinnati, Ohio federal district court in Henry v. Wymyslo, Judge Timothy Black announced:

I intend to issue a written decision and order by April 14 striking down as unconstitutional under all circumstances Ohio’s bans on recognizing legal same-sex marriages from other states.

The advance announcement gives the state time to prepare an appeal that can be filed immediately after the ruling.  A spokesman for Ohio Attorney General Mike DeWine says that an appeal is planned. The lawsuit was filed by four same-sex married couples and originally sought narrower relief-- an order requiring the  names both same-sex spouses to be entered on the birth certificates of their children. (full text of complaint in Henry v. Wymyslo, (SD OH, filed 2/10/2014).

UN Rapporteur On Religious Freedom Issues Preliminary Findings On Kazakhstan

Yesterday, Heiner Bielefeld, United Nations Special Rapporteur on Freedom of Religion or Belief issued his Preliminary Findings as he ended his eleven day visit to the Republic of Kazakhstan. (Press release).  His report emphasized the religious pluralism in Kazakhstan, and recommended an end to mandatory registration of religious communities.  He said in part:

Non-registered communities must be able to operate free from discrimination and free from fear of intimidation. Thresholds for registration at different levels (local, regional and national) should be defined in such a way that minorities can fully operate throughout the country. The requirement of registering missionary activities as well as the practice of licensing the import and distribution of religious literature should also be generally overhauled.

8th Circuit Sends Suit Against Hebrew National Back To State Court

In Wallace v. ConAgra Foods, Inc., (8th Cir., April 4, 2014), the U.S. 8th Circuit Court of Appeals took an unexpected route in deciding the appeal in a lawsuit against the manufacturer of Hebrew National hot dogs.  A Minnesota federal district court had dismissed the suit by consumers who claimed that ConAgra misrepresented that Hebrew National products are made of "100% kosher beef" because ConAgra's standards for kosher slaughter were inadequate. The district court held that this posed a religious question that could not be decided by the civil courts. (See prior posting.)

The 8th Circuit, however, examined more closely the nature of plaintiffs' objections to ConAgra's kosher standards.  One part of the kosher certification process is the examination of the slaughtered cow's lungs. Certain defects in the lungs would render the entire carcass non-kosher. The allegations in the ConAgra lawsuit were that production pressures led to some carcasses that should have been rejected instead being marked as kosher.  The 8th Circuit concluded that even if this were true, no consumer would be able to identify whether the particular hot dogs he or she purchased were improperly certified. It went on:

Without any particularized reason to think the consumers’ own packages of Hebrew National beef actually exhibited the alleged non-kosher defect, the consumers lack Article III standing to sue ConAgra. Accepting the consumers’ various allegations, it remains entirely possible, maybe probable, that the packages of beef they personally purchased and consumed met the “strict” standards advertised by ConAgra..... [I]t is pure speculation to say the particular packages sold to the consumers were tainted by non-kosher beef, while it is quite plausible ConAgra sold the consumers exactly what was promised: a higher quality, kosher meat product. Time and again the Supreme Court has reminded lower courts that speculation and conjecture are not injuries cognizable under Article III.

However, instead of dismissing the case for lack of standing, the 8th Circuit ordered that the district court return it to the Minnesota state court where it originated before it was removed to federal court under the Class Action Fairness Act. Chicago Tribune reports on the decision.