Monday, February 23, 2015

Australian Court Says Polyamory Is Not "Sexual Orientation" Under Sex Discrimination Act

In Bunning v Centacare, (FCCA, Feb. 11, 2015), an Australian Federal Circuit Court judge dismissed a sexual orientation discrimination complaint filed against a Catholic social service agency by former employee Susan Bunning.  Bunning had worked most recently as the agency's Coordinator of Family Support, but was dismissed after it became known that she led a polyamorous lifestyle. She sued under the Sex Discrimination Act 1984.  The court held that plaintiff has no cause of action because polyamory-- the practice of engaging in multiple sexual relationships with the consent of all the people involved-- is sexual behavior, not sexual orientation. Financial Review reports on the decision.

Recent Articles of Interest

From SSRN:
From SmartCILP:

Sunday, February 22, 2015

Will A Supreme Court Decision Legalizing Same-Sex Marriage Apply To Tribal Governments?

Today's New York Times carries an article titled Among the Navajos, a Renewed Debate About Gay Marriage.  The two largest Indian tribes-- the Navajo Nation and the Cherokee Nation-- ban same sex marriage, though at least ten smaller tribes have legalized same-sex unions.  The national debate on the issue is causing some Navajos to consider repealing a 2005 tribal law--  the Dine Marriage Act-- which prohibits same-sex unions on the Navajo reservation. The Times article quotes an expert as saying that even if the Supreme Court decides that bans on same-sex marriage are unconstitutional, this will not affect tribal bans. That conclusion is based on the principle that tribes were not signatories to the Constitution and are not bound by it. The Times article, however, fails to mention the Indian Civil Rights Act which does bind tribal governments.  25 USC Sec. 1302 provides in part:
No Indian tribe in exercising powers of self-government shall... deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law....
Thus the invalidation of same-sex marriage bans on either 14th Amendment equal protection of due process grounds would appear to demand a similar result under Section 1302.

Recent Prisoner Free Exercise Cases

In Bausman v. California Department of Corrections and Rehabilitation, 2015 U.S. Dist. LEXIS 20213 (ED CA, Feb. 18, 2015), a California federal magistrate judge allowed a Native American inmate to move ahead with his complaint under RLUIPA that a change in regulations prohibiting possession of certain religious artifacts integral to participation in daily Native American cultural, traditional, ceremonial, and spiritual life substantially burdened his religious exercise.

In Blair v. CDCR, 2015 U.S. Dist. LEXIS 20751 (ED CA, Feb. 20, 2015), a California federal magistrate judge dismissed a complaint of a Jewish inmate that his temporary placement with a cellmate who was Muslim violated his free exercise and RLUIPA rights.

Judge Reprimanded For Questioning Defendant Over Religious Head Covering

In In re Ladenburg, (WA Commn. on Judicial Conduct, Feb. 20, 2015), the Washington Commission on Judicial Conduct in a consent order reprimanded municipal court judge David Ladenburg for challenging a criminal defendant wearing a fedora in the courtroom for religious reasons. The facts, as stipulated by the parties, showed that the judge told the defendant who said the hat was worn as part of his Jewish belief that he must bring evidence supporting his decision to wear that particular kind of head covering.  The judge threatened otherwise to have it removed.  In defense of his actions, the judge said he was unfamiliar with wearing of a fedora instead of a yarmulke. In 2006, the same judge had been issued an admonishment by the Commission for requiring a Muslim woman wearing a headscarf for religious reasons to remove it or leave his court room. (See prior posting.) The Tacoma News Tribune reports on yesterday's Commission action.

Saturday, February 21, 2015

Saudi Artist Sues Watch Company For Appropriating His Hajj Etching

Luxembourg's i24 News reports today that Saudi artist Ahmed Mater has filed suit in France's Grand Instance Court seeking $1.5 million in damages against the watch company, Omega.  Mater says that Omega used his photogravure "Magnetism (Photograuve) III" without his consent in an ad for the company's new Seamaster Aqua Terra watch.  Mater's etching-- intended to suggest pilgrims on Hajj moving around the Kaaba-- shows a black cubic magnet surrounded by neat steel filings.  Omega says its intent was to advertise the watch's anti-magnetic properties.  Mater's lawyers say Omega has led the public to believe that Mater is mocking religion.

Friday, February 20, 2015

In Second Speech On Terrorism, Obama Again Rejects Idea of War With Islam

For the second time this week (see prior posting), President Obama delivered a major speech (full text) on combating terrorism, with significant attention to the relationship of violent extremism and Islam.  Yesterday, addressing an international Summit on Countering Violent Extremism held at the State Department, the President said in part:
[W]e have to confront the warped ideologies espoused by terrorists like al Qaeda and ISIL, especially their attempt to use Islam to justify their violence.  I discussed this at length yesterday.  These terrorists are desperate for legitimacy.  And all of us have a responsibility to refute the notion that groups like ISIL somehow represent Islam, because that is a falsehood that embraces the terrorist narrative. 
At the same time, we must acknowledge that groups like al Qaeda and ISIL are deliberately targeting their propaganda to Muslim communities, particularly Muslim youth.  And Muslim communities, including scholars and clerics, therefore have a responsibility to push back, not just on twisted interpretations of Islam, but also on the lie that we are somehow engaged in a clash of civilizations; that America and the West are somehow at war with Islam or seek to suppress Muslims; or that we are the cause of every ill in the Middle East....
And finally, we have to ensure that our diverse societies truly welcome and respect people of all faiths and backgrounds, and leaders set the tone on this issue.
Groups like al Qaeda and ISIL peddle the lie that some of our countries are hostile to Muslims.  Meanwhile, we’ve also seen, most recently in Europe, a rise in inexcusable acts of anti-Semitism, or in some cases, anti-Muslim sentiment or anti-immigrant sentiment.  When people spew hatred towards others -- because of their faith or because they’re immigrants -- it feeds into terrorist narratives.  If entire communities feel they can never become a full part of the society in which they reside, it feeds a cycle of fear and resentment and a sense of injustice upon which extremists prey.  And we can’t allow cycles of suspicions to tear at the fabric of our countries....  
 Violent extremists and terrorists thrive when people of different religions or sects pull away from each other and are able to isolate each other and label them as “they” as opposed to “us;” something separate and apart.  So we need to build and bolster bridges of communication and trust....
I’d like to close by speaking very directly to a painful truth that’s part of the challenge that brings us here today.  In some of our countries, including the United States, Muslim communities are still small, relative to the entire population, and as a result, many people in our countries don’t always know personally of somebody who is Muslim.  So the image they get of Muslims or Islam is in the news.  And given the existing news cycle, that can give a very distorted impression.  A lot of the bad, like terrorists who claim to speak for Islam, that’s absorbed by the general population.  Not enough of the good -- the more than 1 billion people around the world who do represent Islam, and are doctors and lawyers and teachers, and neighbors and friends....
The world hears a lot about the terrorists who attacked Charlie Hebdo in Paris, but the world has to also remember the Paris police officer, a Muslim, who died trying to stop them.  The world knows about the attack on the Jews at the kosher supermarket in Paris; we need to recall the worker at that market, a Muslim, who hid Jewish customers and saved their lives.  And when he was asked why he did it, he said, “We are brothers.  It's not a question of Jews or Christians or Muslims.  We're all in the same boat, and we have to help each other to get out of this crisis.”

Obama Sends Ash Wednesday and Lunar New Year Greetings

This past Wednesday, President Obama took time to send holiday greetings to two faith groups.  First he issued a statement (full text) marking Ash Wednesday, saying in part:
Today, Michelle and I join our fellow Christians across the country and around the world in marking Ash Wednesday. Lent is a season of sacrifice and preparation, repentance and renewal. Through reflection on the teachings that guide us, we reaffirm our commitment to God and one another -- and we remember those who are suffering, including those persecuted for their faith.
On the same day, the White House Initiative on Asian Americans and Pacific Islanders released a video message from the President (video and full transcript) sending Lunar New Year greetings, saying in part:
Michelle and I send our warmest wishes to everyone celebrating the Lunar New Year here in America and all around the world. I’ll always remember the parades, fireworks, and gatherings that surrounded the Lunar New Year when I was growing up in Hawaii. And now as President, this celebration is a perfect reminder of the many cultures and faiths that make us who we are as Americans.
The President used his message to again urge immigration reform.

Suit Challenges County Resolution Recognizing Christian Pregnancy Services Organization

The ACLU of Northern California earlier this week announced the filing of a state court lawsuit against the county of Calaveras, California on behalf of several residents and taxpayers who object to a resolution passed by the county Board of Supervisors.  The Resolution (full text) as passed in July 2014 recognizes the local Door of Hope pregnancy center "for serving the women of Calaveras County and helping to save the lives of our most vulnerable children." The complaint (full text) in Lavagetto v. County of Calaveras, (CA Super. Ct., filed 2/13/2015) objects to language in the resolution recognizing Door of Hope, among other things, for "enlighten[ing] and strengthen[ing]the lives of women and young women in Calaveras County by inviting them to test and see for themselves the many blessings that can come from living the teachings of Christ." Plaintiffs contend that the resolution favors one religon over another in violation of provisions in the California constitution which bar the establishment of religion and the expenditure of public funds to aid any religious sect.

D.C. Rabbi Pleads Guilty To Voyeurism Charges

In Washington, D.C. Superior Court yesterday, Rabbi Barry Freundel pleaded guilty to 52 counts of voyeurism.  AP reports that the rabbi, charged with videotaping women in the changing room of the National Capital Mikvah, admitted as part of the plea agreement that his secret recording of women began in 2009, sometimes utilizing three cameras at the same time.  A sentencing hearing is scheduled for May 15.

Thursday, February 19, 2015

In Kidnapping Trial, Rabbi Argues Torture To Extract Divorce Document From Husband Complies With Jewish Law

Yesterday in federal district court in Trenton, New Jersey the trial of respected Orthodox Rabbi Mendel Epstein, along with his son and two other rabbis, on conspiracy and kidnapping charges began.  As reported by NJ Advance Media, the defendants are charged with arranging the kidnapping and beating of recalcitrant Orthodox Jewish husbands to force them to give their wives a get-- a Jewish divorce document. Wives or their families paid tens of thousands of dollars for the document. Defense attorneys argued that the rabbis were merely following Jewish law. In his opening statement, Epstein's attorney argued that the Jewish community views a husband who refuses to grant his wife a get as being consumed by evil. He continued, that under Jewish law "force and torture can be used until evil leaves the husband's body and he does what he's supposed to do." (See prior related posting.)

Texas Probate Court Holds Same-Sex Marriage Ban Unconstitutional

While the U.S. 5th Circuit Court of Appeals considers whether to hold Texas' same-sex marriage bans unconstitutional (see prior posting), Jurist reports that a Travis County, Texas Probate Court judge in Estate of Powell, (Travis Co. Prob. Ct., Feb. 17, 2015), rather summarily held that Texas Family Code Sec. 2.401 limiting common law marriages to  heterosexual couples is unconstitutional, as are Sec. 6.204(b) and Texas Constitution Art. I, Sec. 32 that invalidate same-sex marriages.  The decision dismissed challenges by other relatives of the deceased, Stella Marie Powell, to a claim by her same-sex partner that she is entitled to Powell's estate.

Obama Closes Summit On Violent Extremism By Speaking About Muslims

President Obama yesterday delivered closing remarks (full text) at the White House Summit on Countering Violent Extremism.  He spoke at length on the relationship of the battle against Al Queda and ISIL to the broader Muslim community, saying in part:
Al Qaeda and ISIL and groups like it are desperate for legitimacy.  They try to portray themselves as religious leaders -- holy warriors in defense of Islam.  That’s why ISIL presumes to declare itself the “Islamic State.”  And they propagate the notion that America -- and the West, generally -- is at war with Islam.  That’s how they recruit.  That’s how they try to radicalize young people.  We must never accept the premise that they put forward, because it is a lie.  Nor should we grant these terrorists the religious legitimacy that they seek.  They are not religious leaders -- they’re terrorists.  (Applause.)  And we are not at war with Islam.  We are at war with people who have perverted Islam.  (Applause.)  
Now, just as those of us outside Muslim communities need to reject the terrorist narrative that the West and Islam are in conflict, or modern life and Islam are in conflict, I also believe that Muslim communities have a responsibility as well.  Al Qaeda and ISIL do draw, selectively, from the Islamic texts.  They do depend upon the misperception around the world that they speak in some fashion for people of the Muslim faith, that Islam is somehow inherently violent, that there is some sort of clash of civilizations. ,,,
[I]f we are going to effectively isolate terrorists, if we're going to address the challenge of their efforts to recruit our young people, if we're going to lift up the voices of tolerance and pluralism within the Muslim community, then we've got to acknowledge that their job is made harder by a broader narrative that does exist in many Muslim communities around the world that suggests the West is at odds with Islam in some fashion....
... Muslim leaders need to do more to discredit the notion that our nations are determined to suppress Islam, that there’s an inherent clash in civilizations.  Everybody has to speak up very clearly that no matter what the grievance, violence against innocents doesn't defend Islam or Muslims, it damages Islam and Muslims.

Pediatrician, "After Much Prayer," Refuses To Treat Lesbian Couple's Infant

The Detroit Free Press yesterday reported on a new arena for religious objections to providing services to same-sex couples.  A suburban Detroit lesbian couple were told by a pediatrician that they had chosen that "after much prayer" she decided that she could not provide medical services to their newborn.  The news was given to the couple by a different staff physician as the mothers sat in the exam room waiting for their newborn's first checkup. The two mothers had previously met with Dr. Venesa Roi and chosen her particularly because of her holistic approach to treating children.  In a subsequent letter to the couple, Roi told them she was sorry that her decision hurt them, but she decided she could not develop the proper personal doctor-patient relationship with them.  She added that they were always welcome in the office to be seen by another physician on staff.  Michigan's Elliott-Larsen Civil Rights Act does not ban discrimination on the basis of sexual orientation, though the ethics rules of the AMA and American Academy of Pediatrics do.

Court Says Florist Violated Washington Public Accommodation Law In Refusing Flowers For Same-Sex Wedding

In State of Washington v. Arlene's Flowers, Inc., (WA Super. Ct., Feb. 18, 2015), a Washington state trial court held that a florist shop violated the Washington Law Against Discrimination and the state's Consumer Protection Act when the shop's owner advised a customer that for religious reasons she could not provide flower arrangements for his same-sex wedding ceremony. (See prior related posting.) The court rejected defendants' argument that application of the law to require the shop to provide flower arrangements for a same-sex wedding violates their free expression and free exercise rights.  Addressing the 1st Amendment speech claim, the court said:
Defendants offer no persuasive authority in support of a free speech exception (be it creative, artistic, or otherwise) to anti-discrimination laws applied to public accommodations.
Defendants' strongest constitutional argument turned on the Washington state constitution's free exercise clause, which gives greater protection than the 1st Amendment.  However the court rejected defendants' claims, concluding that even if the laws impose a substantial burden on defendants' religious exercise, the state has a compelling interest in combating discrimination in public accommodations. The court went on to reject defendants' argument that a more narrowly tailored approach would allow defendants to deny goods and services on the basis of sexual orientation and merely refer the customer to a non-discriminating business.  The court said: "This rule would, of course, defeat the purpose of combatting discrimination...."

Washington state Attorney General Bob Ferguson welcomed the decision, saying: "The law is clear: If you choose to provide a service to couples of the opposite sex, you must provide the same service to same-sex couples."

California Court Says Iranian Forum Would Discriminate Against Women and Non-Muslims

In Aghaian v. Minassian, (CA App., Feb. 17, 2015), a California state appellate court held that Iranian citizens living in the United States should not be required to litigate a dispute with other Iranian citizens over property in Iran in an Iranian court.  Reversing the trial court's forum non conveniens stay of the action in California, the appellate court said:
[T]he evidence is overwhelming that Iranian courts discriminate against women and non-Muslims. Among other things, Plaintiffs submitted evidence that the testimony of a woman counts for half the value of that of a man, and that women are not treated equally before the courts, particularly in personal status matters relating to marriage, divorce, inheritance, and child custody, and only men can serve as judicial officers.... [T]he judiciary in Iran is heavily influenced by religious authorities and ... the law requires the head of the judiciary as well as the prosecutor general and all Supreme Court judges to be high ranking clerics....
Two of the three Plaintiffs here are women and [plaintiffs] family members are not Muslim. Leaving aside whether Iranian courts are independent or corrupt, this is sufficient to show Iran is not a suitable alternative forum. This is the “rare circumstance” in which an alternative forum “provides no remedy at all.”
Los Angeles Metropolitan News-Enterprise reports on the decision.

Wednesday, February 18, 2015

Fired Atlanta Fire Chief Sues Mayor and City

Today former Atlanta Fire Chief Kevin Cochran filed a federal court lawsuit against Atlanta Mayor Kasim Reed and the City of Atlanta  claiming that Reed's firing of Cochran last month violated Cochran's 1st and 14th Amendment rights. (See prior related posting.)  The 54-page complaint (full text) in Cochran v. City of Atlanta, Georgia, (ND GA, filed 2/18/2015) contends that
[Reed] terminated Cochran for holding historical Christian beliefs about marriage and sexuality and making those views known in a self-published, non-work-related, religious book.
As reported by the Atlanta Journal-Constitution, Cochran's book, titled Who Told You That You Were Naked?: Overcoming the Stronghold of Condemnation, includes passages that describe homosexuality as a "sexual perversion" akin to bestiality. Cochran gave copies of his book to a number of city officials and employees. The suit seeks reinstatement, damages and an end to city policy that requires pre-clearance before employees publish a work.  ADF issued a press release announcing the filing of the lawsuit.

School Drops Required Disclaimer In Settlement of Suit On Student-To-Student Distributions

A suit filed last year (background) against a Loomis, California elementary school was settled last week with the school agreeing to change its policy on student distribution of invitations and flyers.  At issue was a reprimand to a student for handing out invitations to two of her friends for a "Genesis Apologetics" event that would discuss creation and evolution. The school insisted that even though the distribution was outside of class time, the flyers had to be stamped by the school with a disclaimer of sponsorship. According to a press release from Pacific Justice Institute, under the settlement the school will no longer insist on disclaimers on material given from one student to another.

City's Solicitiation Ordinance Held Too Restrictive

In United States Mission Corp. v. City of Mercer Island, (WD WA, Feb. 10, 2015), a Washington federal district court granted a preliminary injunction against enforcement of a Seattle suburb's solicitation ordinance in a suit by a Christian religious organization.  The Mission operates residential facilities for the homeless, and requires its residents to engage in door-to-door religious solicitation on its behalf. The challenged ordinance bars door-to-door solicitations (but not proselytizing without soliciting funds) after 7:00 p.m.  The Mission engages in residential solicitations between 5:00 p.m. and 8:00 p.m. on weekdays. The court held that prior cases "have continuously found that curfews prior to 9:00 p.m. are not sufficiently connected to a municipality's interest in crime prevention" to meet the compelling interest- least restrictive means requirement for content-based regulation of speech.

According to the Mercer Island Reporter, City Council will meet on Feb. 23 to amend the solicitation ordinance to comply with the court's holding.

Cert Filed In RLUIPA Zoning Case

AP reported yesterday that a petition for certiorari has been filed with the U.S. Supreme Court in Chabad Lubavitch of Litchfield County, Inc. v. Litchfield Historic District Commission,  In the case, the U.S. Second Circuit Court of Appeals held that the district court had applied erroneous legal standards in deciding whether a refusal to allow a Jewish group to expand a building in Litchfield's Historic District violates RLUIPA’s substantial burden and nondiscrimination provisions. (See prior posting).