North Carolina Supreme Court Upholds School Voucher Program

In Hart v. State of North Carolina, (NC Sup. Ct., July 23, 2015), the North Carolina Supreme Court in a 4-3 decision reversed the trial court and upheld against constitutional attack the state's Opportunity Scholarship Program which offers some low-income students scholarships to attend private schools. The majority held that the state constitutional provision on the state school fund was intended "to protect the 'State school fund' in order to preserve and support the public school system, not to limit the State’s ability to spend on education generally." The provision requiring "a general and uniform system of free public schools" also does not bar the state's voucher program:

The uniformity clause applies exclusively to the public school system and does not prohibit the General Assembly from funding educational initiatives outside of that system.

The majority went on to hold that the appropriations for vouchers satisfy the public purpose requirement, and that taxpayer plaintiffs lack standing to  assert religious discrimination claims on behalf of students. Justices Hudson, Easley and Ervin dissented. AP reports on the decision.

The court also issued a short opinion in a companion case, Richardson v. State, relying on its holding in Hart.

Suit Threatened Over Kentucky Juvenile Prison Rule Limiting Counselors' Statements About Homosexuality

Liberty Counsel is threatening a lawsuit against the Kentucky Department of Juvenile Justice (DJJ) over its policy that provides:

DJJ staff, volunteers, interns, and contractors, in the course of their work, shall not refer to juveniles by using derogatory language in a manner that conveys bias towards or hatred of the LGBTQI community. DJJ staff, volunteers, interns, and contractors shall not imply or tell LGBTQI juveniles that they are abnormal, deviant, sinful, or that they can or should change their sexual orientation or gender identity.

In its press release last Friday, Liberty Counsel indicated that it has sent a demand letter (full text) to DJJ insisting on the reinstatement of a counselor and mentor, Christian pastor David Wells, who apparently had his volunteer prison minister status revoked when he refused to sign a form promising to refrain from telling any juvenile inmates that homosexuality was sinful. The demand letter argues in part:

DJJ 912 violates the First Amendment by prescribing an official state religious “orthodoxy:” now, only a religious belief that homosexuality is not “sinful” may be expressed in DJJ facilities, 

Recent Articles of Interest

From SSRN:

• John R. Morss, The International Legal Status of the Vatican/Holy See Complex, (Forthcoming, European Journal of International Law).
• Rex Ahdar, Solemnisation of Same-Sex Marriage and Religious Freedom, (Ecclesiastical Law Journal / Volume 16 / Issue 03 / September 2014, pp 283 - 305).
• Richard Moon, Conscientious Objections by Civil Servants: The Case of Marriage Commissioners and Same Sex Civil Marriages, (June 30, 2015).
• Stephen D, Sugarman, Is It Unconstitutional to Prohibit Faith-Based Schools from Becoming Charter Schools?, (July 21, 2015).
• Geoffrey Brahm Levey, Secularism as Proto-Multiculturalism: The Case of Australia, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2015/56, July 2015).
• Nadia N. Sawicki, Mandating Disclosure of Religious Limitations on Medical Practice, (Loyola University Chicago School of Law Research Paper No. 2015-016 (July 2015)).
• Harlan Grant Cohen, Zivotofsky II's Two Visions for Foreign Relations Law, (109 AJIL Unbound 10 (2015)).
• C. Christine Fair, Sharia, Piety and Maslak: Support for Sectarian Violence in Pakistan, (July 20, 2015).

Michigan Supreme Court: Wrong Oath For Jurors In Murder Case Does Not Require New Trial

An interesting decision from the Michigan Supreme Court last week illustrates the distance we have moved from the original conception of oaths as invocations of Divine retribution for straying from that which was promised.  In People v. Cain, (MI Sup. Ct., July 23, 2015), the jury in defendant's murder trial were sworn in with the wrong oath, though no one noticed at the time.  The Clerk swore them in using the oath given at voir dire -- to truly answer questions relating to their qualifications to serve as jurors-- instead of the oath to return a true and just verdict based only on the evidence and the judge's instructions. In a 5-2 decision, the majority held that:

the jurors were conscious of the gravity of the task before them and the manner in which that task was to be carried out, the two primary purposes served by the juror’s oath. Thus, we cannot say that the error here of failing to properly swear the jury seriously affected the fairness, integrity, or public reputation of the judicial proceedings.

Justice Viviano (joined by Justice McCormack) dissented, saying in part:

the oath was, and has always been, a defining criterion of “jury.” In light of this deep etymological pedigree, it seems quite implausible that the Framers, who lived in a time in which society placed great emphasis on oaths, intended anything other than a sworn jury when they drafted the Sixth Amendment. 

Recent Prisoner Free Exercise Cases

In Littell v. Kennell, 2015 U.S. Dist. LEXIS 93757 (CD IL, July 20, 2015), an Illinois federal district court held that a Muslim inmate stated a valid First Amendment claim alleging that Muslims were not permitted to congregate for prayer, but because he is no longer held by the Illinois Department of Corrections injunctive relief is not available; only nominal (and possibly punitive) damages are.

In Snodgrass v. Robinson, 2015 U.S. Dist. LEXIS 95026 (WD VA, July 21, 2015), a Virginia federal magistrate judge recommended that a Muslim inmate be permitted to proceed against various defendants on his RLUIPA, free exercise and due process challenges to a policy that denied inmates the right to participate in the Ramadan fast if they had missed more than three consecutive religious services.

In Aragon v. Erlanger, 2015 U.S. Dist. LEXIS 96185 (D CO, July 23, 2015), a Colorado federal magistrate judge recommended that a Messianic Jewish inmate be permitted to proceed against the food services supervisor on his complaint that Passover meals and messianic Jewish diets were prepared without special preparation cleaning of the kitchen area and equipment to meet kosher requirements. A claim against the outside rabbi who advised on kosher standards was dismissed,as was a complaint that Messianic Jews should have been permitted to celebrate Passover on a different date than Jewish inmates.

In Dearwester v. Sacramento County Sheriff's Department, 2015 U.S. Dist. LEXIS 96413 (ED CA, July 22, 2015), a California federal magistrate judge recommended that  plaintiff,a Christian inmate who believed that the New Testament required his eating a kosher diet, be permitted to move forward with his First Amendment damage claim based on denial of kosher meals.

In Blankenship v. Setzer, 2015 U.S. Dist. LEXIS 96871 (WD NC, July 23, 2015), a North Carolina federal district court permitted to proceed on his complaint that he was not allowed to take his Bible with him when he was being transported to court in another county, and that his Bible was confiscated for not having a cover.

NYT Magazine Chronicles Plight of Christians In the Middle East

Today's New York Times Magazine carries a long article, captioned in its online version: Is This the End of Christianity in the Middle East?,with the subtitle: "ISIS and other extremist movements across the region are enslaving, killing and uprooting Christians, with no aid in sight." The article comments:

It has been nearly impossible for two U.S. presidents — Bush, a conservative evangelical; and Obama, a progressive liberal — to address the plight of Christians explicitly for fear of appearing to play into the crusader and ‘‘clash of civilizations’’ narratives the West is accused of embracing. In 2007, when Al Qaeda was kidnapping and killing priests in Mosul, Nina Shea, who was then a U.S. commissioner for religious freedom, says she approached the secretary of state at the time, Condoleezza Rice, who told her the United States didn’t intervene in ‘‘sectarian’’ issues. Rice now says that protecting religious freedom in Iraq was a priority both for her and for the Bush administration. But the targeted violence and mass Christian exodus remained unaddressed. 

Obama Takes Kenya To Task Over Gay Rights; Kenyan President Responds

At a news conference (full text) yesterday on his visit to Kenya, President Obama criticized Kenya for its treatment of gays and lesbians. Kenyan President Kenyatta responded:

PRESIDENT OBAMA: ... Similarly, with respect to the rights of gays and lesbians, I’ve been consistent all across Africa on this.  I believe in the principle of treating people equally under the law, and that they are deserving of equal protection under the law and that the state should not discriminate against people based on their sexual orientation.  And I say that, recognizing that there may be people who have different religious or cultural beliefs.  But the issue is how does the state operate relative to people.  

If you look at the history of countries around the world, when you start treating people differently -- not because of any harm they’re doing anybody, but because they’re different -- that’s the path whereby freedoms begin to erode and bad things happen.  And when a government gets in the habit of treating people differently, those habits can spread.  

And as an African-American in the United States, I am painfully aware of the history of what happens when people are treated differently, under the law, and there were all sorts of rationalizations that were provided by the power structure for decades in the United States for segregation and Jim Crow and slavery, and they were wrong.  

So I’m unequivocal on this.  If somebody is a law-abiding citizen who is going about their business, and working in a job, an obeying the traffic signs -- (laughter) -- and doing all the other things that good citizens are supposed to do, and not harming anybody -- the idea that they are going to be treated differently or abused because of who they love is wrong.

And the state does not need to weigh in on religious doctrine.  The state just has to say we’re going to treat everybody equally under the law.  And then everybody else can have their own opinions....

PRESIDENT KENYATTA: ... With regard to the second question, just like President Obama, I think we also need to be able to speak frankly about some of these things.  And the fact of the matter is that Kenya and the United States, we share so many values -- our common love for democracy, entrepreneurship, value for families.  These are things that we share.  But there are some things that we must admit we don’t share -- our culture, our societies don’t accept.  It is very difficult for us to be able to impose on people that which they themselves do not accept.  

This is why I repeatedly say that, for Kenyans today, the issue of gay rights is really a non-issue.  We want to focus on other areas that are day-to-day living for our people:  The health issues that we have discussed with President Obama.  These are critical.  Issues of ensuring inclusivity of women, a huge section of society that is normally left out of the mainstream of economic development.  What we can do in terms of infrastructure; what we can do in terms of education; in terms of our roads; in terms of giving our people power, encouraging entrepreneurship.  These are the key focuses.  

Maybe once, like you have overcome some of these challenges, we can begin to look at new ones.  But as of now, the fact remains that this issue is not really an issue that is on the foremost mind of Kenyans, and that is the fact.

Homosexual acts between men are punishable by 14 years (and in some cases 21 years) in prison in Kenya. (Background.)

$1M Gift To Emory Will Support Expanded Religious Freedom Education

Emory Law School's Center for the Study of Law and Religion announced last week that it has received an anonymous $1 million gift for a 4-year project called "Restoring Religious Freedom: Education, Outreach, and Good Citizenship," The fund will support internships and externships for students, lectures, conferences and  will begin a new series of publications on law and religion practice guidelines.

Texas Supreme Court OK's Referendum Petitions On Houston's Equal Rights Ordinance

As previously reported, in May 2014 the Houston, Texas City Council passed an Equal Rights Ordinance that attracted significant opposition because of its ban on discrimination on the basis of sexual orientation or gender identity. Opponents circulated petitions to get a repeal referendum on the ballot.  The City Secretary certified that there were sufficient signatures on the petitions, but the City Attorney disputed that conclusion and City Council refused to move ahead with the reconsideration of the Ordinance that is required when a valid referendum petition is filed. (See prior posting.) Litigation ensued in various courts.  In In re Jared Woodfill, et. al.,  (TX Sup. Ct., July 24, 2015), the Texas Supreme Court conditionally granted a writ of mandamus to proponents of the referendum, holding:

The Charter ... gives the City Council no discretion to reevaluate the petition; instead, it requires “immediate[]” action by the City Council following the City Secretary’s certification....

The City Council is directed to comply with its duties, as specified in the City Charter, that arise when the City Secretary certifies that a referendum petition has a sufficient number of valid signatures. Any enforcement of the ordinance shall be suspended, and the City Council shall reconsider the ordinance. If the City Council does not repeal the ordinance byAugust 24, 2015, then by that date the City Council must order that the ordinance be put to popular vote during the November 2015 election. The writ will issue only if the City Council does not comply.

Josh Blackman's Blog has more on the decision, as does the Houston Chronicle.

Indiana Deputy Clerk, Fired For Refusing To Issue Same-Sex Marriage Licences, Sues [UPDATED]

Linda Summers, a former deputy clerk in the Harrison County, Indiana Superior Court Clerk's Office, last week filed a federal court lawsuit alleging violation of her First Amendment free exercise rights. religious discrimination in employment.  The Louisville Courier Journal reports that after the U.S. Supreme Court denied review of a case from Indiana upholding marriage equality, County Clerk Sally Whitis sent an e-mail to all employees telling them that even if it conflicted with their religious beliefs, they were required to process licenses for same-sex couples. Summers responded with a hand-delivered letter asking that she not be required to do so based on her religious beliefs.  She was fired for insubordination. The lawsuit seeks damages and a change in employment practices.

UPDATE: Despite the Courier Journal's quote from plaintiff's counsel that the lawsuit is "just a generic First Amendment free exercise case", now that I have a copy of the complaint it appears that the suit is based on Title VII of the 1964 Civil Rights Act.  Here is the full text of the complaint in Summers v. Whitis, (SD IN, (filed 7/17/2015).  [Thanks to Greg Lipper for the copy of the complaint.]

Cert. Petition Filed In Challenge To Non-Profit Contraceptive Coverage Accommodataion

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Little Sisters of the Poor Home for the Aged, Denver Colorado v. Burwell.  In the case, the U.S. 10th Circuit Court of Appeals upheld against RFRA and constitutional challenges the Obama Administration's Affordable Care Act accommodation for religious non-profits that object to furnishing contraceptive coverage. (See prior posting.) Becket Fund issued a press release announcing the filing of the petition for review.

Satanic Temple Chooses Detroit To Unveil Statue Aimed At Oklahoma or Arkansas Statehouse Lawns

The Detroit News reports that The Satanic Temple has chosen Detroit as the site to unveil its 9-foot tall bronze statute of the goat headed Baphomet-- a statue that it hopes to place next to an existing Ten Commandments monument on the Oklahoma state capitol grounds in Oklahoma City, or next to one on the Arkansas state capitol grounds in Little Rock.  The original plans for the Oklahoma location have become less certain after the Oklahoma Supreme Court earlier this month ruled that the Ten Commandments monument must be removed. (See prior posting.)  According to an interview with a Satanic Temple leader published in Wednesday's Detroit Metro Times, Detroit was chosen for the unveiling of the $100,000 sculpture because the city has a strong local chapter and is the location of The Satanic Temple's first chapter house.

Plans for the unveiling, however, have faced difficulties. The owner of the space in Detroit's Eastern Market district where the unveiling was originally planned backed out after a campaign against the statute by the pastor of Detroit's St. Matthew Baptist Church. Salon Magazine discusses at length the threats to destroy the statue posted on Facebook. So now the unveiling is scheduled for tomorrow at a location that will be revealed only to ticket holders through e-mail on the day of the event. The Satanic Temple's website-- though which tickets may be purchased-- extends an invitation reading in part:

The Satanic Temple invites you to join us for a night of chaos, noise, and debauchery at The Unveiling, a hedonistic celebration introducing the controversial Baphomet monument accompanied by provocative performances and installations.

Never before seen in public, The Satanic Temple Baphomet monument is already the most controversial and politically charged contemporary work of art in the world.... The event will serve as a call-to-arms from which we’ll kick off our largest fight to date in the name of individual rights to free exercise against self-serving theocrats.

9th Circuit Rejects Free Exercise Challenge By Pharmacies To Required Filling of Emergency Contraception RX

In Stormans, Inc. v. Wiesman, (9th Cir., July 23, 2015), the U.S. 9th Circuit Court of Appeals upheld against constitutional challenge rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require a pharmacy to deliver all prescription medications, even if the owner of the pharmacy has a religious objection. An individual pharmacist with religious objections may refuse to fill the prescription if another pharmacist working for the pharmacy does so.

The court held that these rules are both facially and operationally neutral, and are generally applicable, so that  heightened scrutiny need not be applied to plaintiffs' free exercise challenge:

The possibility that pharmacies whose owners object to the distribution of emergency contraception for religious reasons may be burdened disproportionately does not undermine the rules’ neutrality.

The court also rejected plaintiffs' substantive due process challenge, rejecting the argument that there is a fundamental liberty interest in owning, operating or working at a licensed professional business free from regulations requiring activities that one sincerely believes lead to the taking of human life. Alliance Defense Fund immediately announced that it would appeal the court's decision. The Olympian reports on the 9th Circuit's decision.

European Court Holds Italy Gives Inadequate Protection To Same-Sex Couples

In a Chamber judgment in Oliari and Others v. Italy, (ECHR, July 21, 2015), the European Court of Human Rights in a Chamber judgment awarded damages to three same-sex couples whose relationships were not adequately protected by Italian law.  While the award was unanimous, 3 concurring judges thought that the case could be decided on narrower grounds than did the 4-judge majority opinion.  The Court's press release describes the majority opinion in part as follows:

In previous cases, the Court had already found that the relationship of a cohabitating same-sex couple living in a stable de facto partnership fell within the notion of “family life” within the meaning of Article 8. It had also acknowledged that same-sex couples were in need of legal recognition and protection of their relationship....

The Court considered that the legal protection currently available in Italy to same-sex couples ... not only failed to provide for the core needs relevant to a couple in a stable committed relationship, but it was also not sufficiently reliable. Where registration of same-sex unions with the local authorities was possible – only in a small share of municipalities in Italy – this had merely symbolic value, as it did not confer any rights on same-sex couples. 

As regards the possibility, since December 2013, to enter into “cohabitation agreements”, such contracts were limited in scope. They failed to provide for some basic needs ... such as mutual material support, maintenance obligations and inheritance rights. The fact that cohabitation agreements were open to any set of people who were cohabiting, such as friends, flatmates or carers, showed that those agreements did not primarily aim to protect couples. Furthermore, such a contract required the couple concerned to be cohabiting, whereas the Court had already accepted that the existence of a stable union between partners was independent of cohabitation, given that many couples – whether married or in a registered partnership – experienced periods during which they conducted their relationship at long distance, for example for professional reasons.

Among the authorities cited by the majority was the U.S. Supreme Court's recent Obergefell decision. A Chamber judgment may be appealed to the Grand Chamber. Frontiers Media reporting on the decision points out that Italy is the only major Western European country that does not provide either civil partnerships or same-sex marriage.

Anti-Proselytizing Provision In Nepal Draft Constitution Creates Controversy

Reuters reports that on June 30, the government of Nepal released a preliminary draft of its first republican constitution. A new constitution was called for in a 2006 peace agreement with Maoist rebels that ended a 10-year civil war, but the process for producing and approving it has remained controversial. Yesterday's Christianity Daily reports that Christians and Muslims in the largely Hindu country are critical of a provision in the proposed new charter that prohibits religious proselytizing.  The draft provides:

No one shall behave, act, or undertake activities that breach public order or break public peace/peace in the community; and no one shall attempt to change or convert someone from one religion to another, or disturb/jeopardise the religion of others, and such acts/activities shall be punishable by law.

The provision responds in part to charges by the pro-Hindu Rastriya Prajatantra Party-Nepal that Christians have engaged in mass forced conversions.

Sale of Mt. Soledad Memorial Site To Private Organization Completed

The  Mt. Soledad Memorial Association announced this week that it has completed the purchase from the Defense Department of the half-acre parcel on Mt. Soledad in La Jolla, California, on which the Mt. Soledad Veterans Memorial is located. It said in part:

The sales price was $1.4 million with the all-cash transaction completed on Friday, July 17. It follows the passage of the National Defense Authorization Act of 2015, signed into law by Congress and signed by the President of the United States in December 2014, calling for the sale of the property by the federal government to the Association.

The sale apparently ends the dispute-- in litigation for over 25 years-- over the constitutionality of the 43 foot high cross that is the centerpiece of the memorial.

UAE's New Law Bars Discrimination, Hate Speech and Insulting of Religion

The National reports that on Monday the United Arab Emirates adopted the Anti-Discriminatory Law which prohibits discrimination on the basis of religion, caste, creed, doctrine, race, color or ethnic origin. The new law also bans actions that promote religious hatred or insult God, his prophets or apostles or holy books or houses of worship or graveyards. It prohibits hate speech or the promotion of discrimination or violence against others using any form of media.

White House Honors Climate Faith Leaders

RNS reports that on Monday the White House honored 12 "Climate Faith Leaders" as part of its Champions of Change program. The White House website highlights the accomplishments of the twelve leaders-- Christian, Jewish, Muslim and Hindu-- in the environmental area.

9th Circuit: Indian Tribe's Challenge To California Geothermal Leases Can Proceed

In Pit River Tribe v. Bureau of Land Management, (9th Cir., July 20, 2015), the U.S. 9th Circuit Court of Appeals reversed the district court's dismissal of an Indian tribe's challenge to the Bureau of Land Management's extension of 26 unproven geothermal leases in northeastern California’s Medicine Lake Highlands. Several environmental groups were also plaintiffs.  The Pit River Tribe contends that development on geothermal leases will interfere with its members use of the area for spiritual and traditional cultural purposes. The Court held that plaintiffs' claims include a challenge under a provision of the Geothermal Steam Act that requires the BLM to conduct environmental, historical, and cultural review under the National Environmental Policy Act and the National Historic Preservation Act. Sacramento Bee reports on the decision.

Plaintiff Entitled To Accommodation From Affordable Care Act's Hyde Amendment Arrangement

In Howe v. Burwell, (D VT, July 20, 2015), a Vermont federal district court dealt with yet another permutation of religious objections to provisions in the Affordable Care Act.  Under the ACA, health insurers which offer policies through state exchanges may, but are not required to, cover abortion services.  If they do, in order to comply with the Hyde amendment that bars use of federal funds to pay for abortions, the insurance company is required to segregate at least $1 per month of the premium paid by each individual and use those funds to pay for abortion services. All policies offered through the Vermont exchange have this arrangement for abortion services which plaintiff claims, among other things, violates his free exercise rights under RFRA. He objects on religious grounds to funds he is required to pay in as a premium being used to pay for others' abortions.

The court held that most of plaintiff's RFRA claims against the federal government arise out of decisions third parties, such as private insurance companies, have made. However the federal government could accommodate plaintiff by refraining from enforcement actions against any insurance company that agrees not to comply with the segregation requirement for the policy offered to plaintiff. The court went on:

The Federal Defendants have already agreed not to enforce the segregation requirement against any third party health insurer willing to offer Plaintiff health insurance coverage. Notwithstanding that agreement, because the Federal Defendants have not offered this as an accommodation under RFRA on a permanent basis, Plaintiff retains standing to request it in the form of declaratory relief. ...

Plaintiffs request for a declaratory judgment that he is entitled to non-enforcement of the segregation requirement (and the separate payment) is therefore sufficiently plausible to avoid dismissal at this stage in the proceedings.