Wednesday, October 15, 2014

Prominent D.C. Rabbi Arrested On Voyeurism Charges

The Forward reports that in Washington, DC yesterday, Rabbi Barry Freundel, head of Kesher Israel, one of the city's pre-eminent Modern Orthodox synagogues, was arrested on charges of electronic voyeurism. Apparently Freundel was caught installing a hidden camera above a shower at the synagogue's mikveh (ritual bath) so he could view women showering there. Kesher Israel's board immediately suspended Freundel without pay.  Prominent members of Kesher Israel have included Treasury Secretary Jack Lew and former U.S. Senator Joseph Lieberman.

UPDATE: Here is the Criminal Complaint filed in the case.

Virginia Governor Says Same-Sex Married Couples Can Now Adopt

Last week, Virginia's Department of Social Services (at the direction of Governor Terry McAuliffe) issued a Bulletin (full text) to its local offices informing them that court decisions legalizing same-sex marriage mean that now married same-sex couples are eligible to adopt children under Va. Code Sec. 63.2-1225. Same-sex couples in civil unions or domestic partnerships (rather than marriages) are not eligible to adopt. Reporting on the Governor's action, Metro Weekly yesterday said that, according to the ACLU, married same-sex couples with children born before same-sex marriage was legalized on Oct. 6, 2014 should be able to get an amended birth certificate listing both spouses as a legal parent.  A same-sex spouse should now also be able to adopt a spouse's child so long as the child does not have another legal parent.

Pastors Seek To Quash Subpoenas For Sermons, Communications On Houston's Equal Rights Ordinance

Opponents of Houston, Texas' Equal Rights Ordinance enacted in May have sued after the city ruled that they had insufficient signatures on their petitions to get a repeal referendum on the ballot. (See prior posting.) As part of discovery in the lawsuit in state court, the city issued broad subpoenas (full text) to a group of five pastors calling for them to produce, among other items:
All communications with members of your congregation regarding HERO [Houston Equal Rights Ordinance] or the Petition....
All speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.
The pastors last week filed a motion to quash the subpoenas (full text) and a Memorandum in Support of the Motion (full text), arguing that the subpoenas are not "reasonably calculated to lead to the discovery of admissible, relevant evidence." In a Statement emphasizing opponents' objections to provisions in the Equal Rights Ordinance relating to transgender access to bathrooms, Alliance Defending Freedom said Monday that the subpoenas are designed to stifle social commentary.  Fox News yesterday reported on developments.

UPDATE: According to KTRH News:
City Attorney David Feldman argues the subpoenas are justified because the churches are where opponents of the ordinance met. "We're certainly entitled to enquire about the communications that took place in the churches regarding the ordinance and the petitions because that's where they chose to do it," Feldman tells KTRH News. "Its relevant to know what representations and instructions were given regarding these petitions," he says. [Thanks to Matthew Crawley for the lead.]

$1.9M Settlement In Suit Over Parole Revocation For Refusal To Attend Religious 12-Step Program

The Redding Record Searchlight reported yesterday that a settlement has been reached in Hazle v. Crowfoot, a suit in which the 9th Circuit held that plaintiff, an atheist whose parole on drug possession charges was revoked after he refused to participate in a faith-based drug treatment program, is entitled to compensatory damages. (See prior posting.) Hazle served over 100 additional days in prison.  Under the settlement agreement, the state of California will pay Hazle $1 million and Westcare California, Inc., the contractor that offered only a faith-based 12-step program for parolees, will pay him $925,000.

"Birther" Sues Obama Claiming Ebola Rules Aid Muslim Terrorism

A rather bizarre lawsuit was filed yesterday in federal district court in the District of Columbia charging President Obama and various federal health officials with acting recklessly in attempting to restrain the Ebola epidemic in order to aid Muslim terrorism and discriminate against Christian and Jewish Caucasian Americans. The suit was brought by Larry Klayman, an activist who has filed hundreds of lawsuits and who has been prominent in the anti-Obama "birther" movement. The complaint (full text) in Klayman v. Obama, (D DC, filed 10/14/2014), alleges seven causes of action ranging from providing material support for terrorists to civil rights claims and conspiracy to commit murder. It alleges that the CDC, at the direction of President Obam, is intentionally lying to the American public about the possibility of airborne transmission of Ebola.  The following excerpt gives a flavor of the allegations in the wide-ranging complaint:
Defendants actions in exposing Plaintiff to the Ebola virus as well as other Americans is the direct result of discrimination against Plaintiff on the basis of his Caucasian race and Jewish-Christian religion and in favor of people of the African-Black race and the Islamic religion.... Defendant Obama ... values an African-Black and Muslim life more than he does the lives of persons from the Caucasion or other races and religions, and this is reflected in his and the other Defendants’ actions with regard to allowing past and continued entry of persons from Ebola stricken Liberia and the rest of West Africa into the United States, despite the likelihood of an epidemic occurring.
Washington Post reports on the lawsuit.

Tuesday, October 14, 2014

Supreme Court Temporarily Stays Texas Abortion Clinic Restrictions

The U.S. Supreme Court this evening issued an Order (full text) in Whole Women's Health v. Lakey preventing portions of Texas' new regulation of abortion clinics from taking effect while a challenge to them is pending in the 5th Circuit. The 5th Circuit (full text of decision) had stayed the district court's injunction against enforcement of certain of the law's provision. As reported by SCOTUSblog, under the Supreme Court's ruling:
The state may not now enforce a requirement that all clinics in the state upgrade their facilities to be hospital-like surgical centers, even when they perform abortions only through the use of drugs, not surgery.  And it may not enforce, against the clinics in McAllen and El Paso, a requirement that all doctors performing abortions have privileges to admit patients to a hospital within thirty miles of the clinic.  That requirement can continue to be enforced elsewhere in Texas, the Court indicated.
Those two provisions, together, had reduced the number of clinics still operating in the state to seven, with an eighth soon to open.  At one time recently, Texas had forty-one clinics.  The Supreme Court’s action Tuesday will allow the reopening of thirteen closed clinics on Wednesday, lawyers for the clinics said.
Justices Scalia, Thomas and Alito dissented.

Sukkah At High School Rejected After Other Jewish Students Raise Church-State Complaints

The Milwaukee Journal-Sentinel reported Sunday on a new permutation in the battle over religious symbols in public schools. Last year, Jewish students at Glendale's Nicolet High School put up a temporary sukkah in the school's courtyard to mark the Jewish fall harvest festival of Sukkot.  This year the activity was moved to a private home nearby after other Jewish students, through the Milwaukee Jewish Community Relations Council, complained that the sukkah on school grounds would violate principles of church-state separation.

9th Circuit Says Same-Sex Marriages Can Go Ahead In Idaho

In what could be the final procedural step in the challenge to Idaho's ban on same-sex marriage, the U.S. 9th Circuit Court of Appeals yesterday issued an order dissolving its prior stay of its decision invalidating the Idaho ban.  According to KVPI News, the court's order provides that the lifting of the stay is effective at 10 a.m. tomorrow, at which time same-sex marriages will be legal in the state.

North Carolina Supreme Court Allows Direct Appeal of School Voucher Program

The Winston-Salem Journal reports that on Friday the North Carolina Supreme Court decided to allow a direct appeal of a trial court decision striking down the state's school voucher program. In August, trial court judge Robert Hobgood held that the state's Opportunity Scholarship Program violates various provisions of the state constitution relating to school funding and permits funds to go to private schools that discriminate on the basis of religion. (See prior posting.) Friday's ruling allows the parties to skip the usual appeal to an intermediate appellate court.  The North Carolina court of appeals has already allowed the voucher program to continue to partially operate while appeals are pending. (See prior posting.)

Minnesota Archdiocese Enters Historic Settlement In Clergy Abuse Case

As reported by AP, yesterday a settlement considered as historic by both sides was reached in a clergy sex abuse case, Doe 1 v. Archdiocese of St. Paul and Minneapolis. As part of the settlement, the Archdiocese adopted 17 Child Protection Protocols. The Diocese of Winona adopted similar Protocols. In a Statement announcing the agreement, Archbishop John Nienstedt emphasized:
The agreement embodies a strengthened spirit of collaboration in addressing the issues related to clerical sexual abuse.
In a separate Statement, defense attorney Jeff Anderson, said:
This child protection protocol, invested in by Doe 1, survivors and the Archdiocese, signals a new day and a new way for protection of children, healing of survivors, and full transparency and disclosure in a new way we’ve never seen.

Monday, October 13, 2014

Notre Dame Asks For Supreme Court GVR In Contraceptive Coverage Challenge

On Oct. 3, a petition for certiorari was filed with the U.S. Supreme Court in University of Notre Dame v. Burwell, (Docket No. 14-392). In the case, the U.S. 7th Circuit Court of Appeals denied a preliminary injunction to Notre Dame in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits. (See prior posting.) As reported by MSNBC, the petition does not seek full Supreme Court review, but instead asks the Court to grant certiorari, vacate the 7th Circuit's decision and remand for reconsideration ("GVR") in light of the Supreme Court's Hobby Lobby decision. In the petition, Notre Dame argued:
Just as a Mormon might refuse to hire a caterer that insisted on serving alcohol to his wedding guests, or a Jew might refuse to hire a caterer determined to serve pork at his son’s bar mitzvah, it violates Notre Dame’s religious beliefs to hire or maintain a relationship with any third party that will provide contraceptive coverage to its plan beneficiaries,

Churches File Complaint With HHS Over California Abortion Coverage Requirement

Following up on a similar complaint filed last month on behalf employees of Loyola Marymount University (see prior posting), two advocacy groups filed a complaint (full text) last week with the Department of Health and Human Services on behalf of seven churches and a church-run school objecting to recent California actions requiring all group health plans to cover elective abortions. The complaint contends that the churches' health plans were changed without their consent to comply with the California Department of Managed Health Care's directive interpreting the scope of "basic health care services."  The churches argue that the California requirement violates the federal Hyde-Weldon Conscience Protection Amendment (Sec. 507 of the 2014 Consolidated Appropriations Act) that prohibits states from discriminating against a health care entity because it does not provide abortion coverage. They say that denying approval of their plans that do not cover abortions amounts to illegal discrimination. Alliance Defending Freedom issued a press release announcing the filing of the Oct. 9 complaint.

Recent Articles and Podcast of Interest

From SSRN:
Non-U.S. Law (from SSRN):
From SmartCILP:
  • Sharia Law: From Oman to Oklahoma. Articles by Moorthy S. Muthuswamy, Sameer Ahmed, Mervate Mohammad, David R. Lavoie, Umar F. Moghul and student Emily von Werlhof. 7 Albany Government Law Review 347-507 (2014).
Recent Podcast:

Same-Sex Marriage Developments In Kansas, West Virginia, Alaska

Developments relating to same-sex marriages have been moving rapidly in Kansas.  Last Wednesday, Chief Judge Kevin Moriarty of the state's 10th judicial district (Johnson County) issued Administrative Order No. 14-11 (Oct. 8, 2014), instructing the clerk of the court, as well as all deputy clerks, to issue marriage licenses to same-sex couples. However, on Friday (Oct. 10) Kansas Attorney General Derek Schmidt filed a petition (full text) for issuance of a writ of mandamus to stop the Johnson County order from taking effect, and asking the Kansas Supreme Court to decide the issue. (Press releaseMemorandum in Support of Petition). Before the state Supreme Court could act, one same-sex couple in Johnson County were married. (Kansas Equality Coalition statement.) However a few hours later, in State of Kansas v. Moriarty, (KA Sup. Ct., Oct. 10, 2014), the state Supreme Court issued a stay of Judge Moriary's order "in the interest of establishing statewide consistency." It set oral arguments for Nov. 6, but said that applications for same-sex marriage licenses may continue to be accepted. As pointed out by KCTV 5 News, the November hearing date is two days after the general election.

Meanwhile in West Virginia, on Thursday (Oct. 9) state Attorney General Patrick Morrisey issued a statement (full text) saying in part:
In the upcoming days, we will now seek to bring to a close the pending litigation over West Virginia’s marriage laws, consistent with the Fourth Circuit’s now-binding decision.... [However] only the State Registrar may alter state marriage forms, and the Secretary of State’s Office has authority over marriage celebrants and their ability to solemnize marriages.  While we will take steps to seek to end the litigation, the conclusion of the lawsuit cannot and will not alone effectuate the Fourth Circuit’s mandate.
AP reports that after the Attorney General's statement, State Registrar Gary Thompson sent a letter to clerks in all 55 West Virginia counties setting out new protocols for marriage licenses allowing for same-sex marriages. At least one couple was issued a license on Friday.

And in Alaska yesterday, a federal court declared its ban on same-sex marriages to be in violation of the 14th Amendment's due process and equal protection clauses.  As reported by Think Progress, the decision in Hamby v. Parnell(D AK, Oct. 12, 2014), came just two days after the court heard oral arguments in the case. However, according to KTUU News, Alaska Governor Sean Parnell issued a statement Sunday saying that he would appeal the decision.

Sunday, October 12, 2014

Withdrawal of Land From Uranium Mining Survives Establishment Clause Challenge

In Yount v. Salazar, (D AZ, Sept. 30, 2014), an Arizona federal district court held that the Secretary of Interior's withdrawal of more than 1 million acres of federal land surrounding Grand Canyon National Park from uuanium mining did not violate the Establishment Clause. While one of the government's purposes was "to protect against the impact of uranium mining on cultural and tribal resources," this was a proper secular purpose.

1999 E-Mail Urged Clinton To Invoke Talmudic Law As Lewinsky Defense

The New York Post  reported yesterday that among the final 10,000 documents released by the Clinton presidential library on Friday was a 1999 e-mail-- that eventually found its way to White House adviser Sidney Blumenthal-- urging Clinton to rely on the Jewish law definition of adultery in defending against charges growing out of his relationship with Monica Lewinsky. The e-mail that originated with a Long Island woman, who sent on an analysis of Talmudic law developed by Dartmouth Jewish Studies professor Susannah Heschel, read in part:
According to classical Jewish law, President Clinton did not commit adultery; adultery is defined as a married man having intercourse with a married woman, and Monica Lewinsky is single,

Recent Prisoner Free Exercise Cases

In Elizondo v. Livingston, 2014 U.S. Dist. LEXIS 141413 (ND T, Oct. 3, 2014), a Texas federal district court dismissed an inmate's complaint that for safety purposes he needed to be single celled or celled with someone of his same Jewish faith.

In Storm v. Reinke, 2014 U.S. Dist. LEXIS 141472 (D ID, Sept. 29, 2014). an Idaho federal district court dismissed an inmate's claim in a habeas corpus proceeding that, while on parole, his free exercise rights were curtailed when he was placed on sex offender caseload. The court concluded that the claim does not bear on petitioner's custody.

In Strickland v. Godinez, 2014 U.S. Dist. LEXIS 141863 (SD IL, Oct. 6, 2014), an Illinois federal district court permitted an inmate to proceed with his free exercise and RLUIPA claims that he is being denied Asatru group worship as well as individual Asatru ritual practices.

Enforcement of Israeli Child Support Order Does Not Violate Establishment Clause

In Jenkins v. Jenkins, (OH App., Oct. 3, 2014), an Ohio Court of Appeals rejected Establishment Clause and equal protection challenges to enforcement of a child support order issued by an Israeli court. While the Israeli civil family court cited Jewish law tradition that makes the father responsible for his daughter's essential support, it went beyond that and applied other considerations as well is setting support.

Collateral Estoppel Bars Title VII Religious Accommodation, But Not Retaliation, Claim

In Mathis v. Christian Heating & Air Conditioning, Inc., (ED PA, Oct. 7, 2014), plaintiff Paul Mathis, an atheist, was fired from his position as a sheet metal installer when he insisted on covering with tape his employer company's mission statement printed on the back of his identification badge. The statement read in part: "This company is not only a business, it is a ministry. It is set on standards that are higher than man’s own. Our goal is to run this company in a way most pleasing to the lord...." Mathis claimed that the mission statement was an attempt by the company to force its religious ideology on its employees.

In this Title VII action, a Pennsylvania federal district court held that Mathis was barred by collateral estoppel from proceeding with his Title VII claim of failure to accommodate his religious beliefs. In a prior state court worker's compensaton proceeding, the court held that Mathis had not shown any actual conflict between a sincere religious belief and the employer's requirement, nor had he requested an accommodation. Thefederal district court went on to hold, however, that Mathis was not barred by collateral estoppel from moving ahead with his claim under Title VII for unlawful retaliation against him for opposing what he saw to be religious discrimination.

Saturday, October 11, 2014

Muslim Waiter Alleges Religious Harassment

The New York Daily News reported Thursday on a lawsuit filed in a New York federal district court against the famous Peter Luger Steak House in Great Neck, Long Island by a Muslim waiter asserting a variety of grievances, including one of religious harassment.  The Bangladeshi-born employee, Altaf Chowdhury, alleged, among other things, that two managers tricked him into eating a pork hot dog, telling him it was chicken. Chowdhury says that after he discovered the true facts, he vomited ten times. The steak house says the claims lack merit.