Monday, August 31, 2015

US and Saudis Furnish Hajj Travel Information To Americans

The Hajj will take place this year approximately from Sept. 21 - 26. The U.S. State Department has posted a Hajj Fact Sheet on its website.  It reviews health, travel and safety considerations for U.S. citizens planning a trip to Saudi Arabia for the event. The Saudi Arabian embassy in Washington, D.C. has also posted a webpage titled Hajj Requirements, focusing on visas, travel and guidelines.

Recent Articles of Interest

From SSRN:
From SmartCILP:

Sunday, August 30, 2015

Recent Prisoner Free Exercise Cases

In Aziz v. Cruzen, 2015 U.S. Dist. LEXIS 111862 (ND CA, Aug. 21, 2015), a California federal district court permitted inmates to move ahead with their complaint that correctional officers would not allow Muslim inmates to pray in groups larger than four, despite a contrary ruling by the Religious Review Committee.

In Sioleski v. Sullivan, 2015 U.S. Dist. LEXIS 111827 (WD NY, Aug. 24, 2015), a New York federal district court denied an inmate's motion for reconsideration of his previously dismissed complaint that on one occasion officials harassed him about his Native American hairstyle and placed him in keeplock for an hour while they decided whether his hairstyle complied with Department of Corrections rules.

In Peters v. Clarke, 2015 U.S. Dist. LEXIS 113380Charles v. Clarke, 2015 U.S. Dist. LEXIS 113378Cascen v. Clarke, 2015 U.S. Dist. LEXIS 113379, and Blyden v. Clarke, 2015 U.S. Dist. LEXIS 113377, (WD VA, Aug. 26, 2015), a Virginia federal district court dismissed complaints by Rastafarian inmates who were housed in the Violators Housing Unit for violating grooming regulations that they was not allowed to participate in Rastafarian group religious services outside the VHU pod.  In Blyden the court dismissed the additional complaint that while Rastafarian services are now available in the VHU, they lack a spiritual leader or reading material.

In Salyers v. Blue, 2015 U.S. Dist. LEXIS 114243 (WD KY, Aug. 27, 2015), a Kentucky federal district court dismissed an Orthodox Christian inmate's complaint that while in isolation for protective custody, he was not allowed to participate in group religious functions with other inmates.

In Greybuffalo v. Wall, 2015 U.S. Dist. LEXIS 114381 (WD WI, Aug. 28, 2015), a Wisconsin federal district court dismissed without prejudice for failure to exhaust administrative remedies a Native American inmate's request to have religious feasts at the conclusion religious ceremonies.

In Bargo v. Kelley, 2015 U.S. Dist. LEXIS 114610 (ED AR, Aug. 28, 2015), an Arkansas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 114614, Aug. 5, 2015) and permitted an inmate who is a practitioner of the Hindu Kriya/Raja Yoga to move ahead with his claim for injunctive relief. He is seeking use of the barracks day room and chapel, and a Yoga mat, to practice Yoga.

Court Rejects Second Amended Complaint In RLUIPA Land Use Case

In Salman v. City of Phoenix, (D AZ, Aug. 27, 2015), an Arizona federal district court denied plaintiffs' motion for leave to file a Second Amended Complaint after dismissing plaintiffs' RLUIPA and state Free Exercise of Religion Act claims. At issue is the city's application of its building code to plaintiffs' use of their home for weekly Bible studies for 35 people. (See prior posting.) The court however gave plaintiffs two weeks to file another amended complaint curing prior pleading defects.

Saturday, August 29, 2015

Tax Court Upholds Penalties Against Promoters of Evasionary "Corporation Sole" Tax Scheme

In Gardner v. Commissioner of Internal Revenue, (USTC, Aug. 26, 2015), the U.S. Tax Court upheld $47,000 in penalties assessed by the Internal Revenue Service against a husband and wife who marketed to more than 300 people a tax evasion scheme involving the creation of a purported religious entity -- a "corporation sole."  Defendants claimed that taxpayers could turn otherwise taxable income into tax free income by assigning it to the corporation sole they create and control. BNA Daily Report for Executives [subscription required] reports on the decision.

Securities Fraud Defendant Gets Bail Because of Religious Affiliations

A major defendant in a massive securities fraud and money laundering case has been granted bail by a Brooklyn federal judge in large part because of the defendant's religious ties and credentials. The Wall Street Journal and Bloomberg News report details.  Vitaly Korchevsky is both a former Morgan Stanley Vice President and for decades has been a Baptist pastor.  He is charged with making more than $17 million in profits in an elaborate international scheme in which hackers broke into the computers of financial news disseminators and stole some 150,000 press releases.  They then passed information from the still confidential press releases to traders in the United States and Ukraine who realized $100 million profit in total from them. Korchevsky was born in Kazakhstan, and lived while young in the former Soviet Union, where he was beaten for keeping Bibles.  He is a prominent figure in the Slavic Baptist Church in the U.S. and elsewhere and serves as chairman of an association of 28 churches. 80 to 90 of his supporters showed up at his bail hearing.  In granting release on $2 million bond, Judge Raymond Dearie cited  "the faith that hundreds of people have put in [Korchevsky]."

Illinois Milk Law Change Was Pushed By Orthodox Jewish Group

Earlier this month (Aug. 6), Illinois Governor Bruce Rauner signed into law (effective next January) Illinois S.B. 1228 (full text) amending the state's Grade A Pasteurized Milk and Milk Products Act.  The new law requires milk in the state to be labeled in accordance with the federal Model Grade "A" Pasteurized Milk Ordinance.  The major change this makes stems from the provision in the federal model ordinance stating: "The common name of the hooved mammal producing the milk shall precede the name of the milk or milk product when the product is or is made from other than cattle's milk."  It turns out, according to a JTA report this week, that the primary proponent of this change was the Chicago Rabbinical Council, an Orthodox rabbinical and kosher certification organization.  Under Illinois' prior law, products sold as milk could have contained non-kosher milk from pigs or camels without the consumer being aware of that fact.

Friday, August 28, 2015

Kentucky Clerk Seeks Supreme Court Stay of Order Requiring Her To Issue Same-Sex Marriage Licenses

Today, Kim Davis, the Rowan County, Kentucky court clerk who has been refusing to allow her office to issue marriage licenses because of her religious objections to same-sex marriage, filed with the U.S. Supreme Court an Emergency Application (full text) to stay the district court's order against her while she appeals to the 6th Circuit.  The application, filed with Justice Kagan who is Circuit Justice for the 6th Circuit, includes a 40-page memorandum of law supporting the request for a stay.  The 6th Circuit has already refused a stay pending appeal. (See prior posting.)  A Liberty Counsel press release reported on the filing.

Ten Commandments Monument At School Unconstitutional, But Claim For Injunction Is Moot

In Freedom From Religion Foundation, Inc. v. Connellsville Area School District, (WD PA, Aut. 28. 2015), a Pennsylvania federal district court held that a granite Ten Commandments monument that has stood outside a Pennsylvania junior high school since 1957 violates the Establishment Clause even though the monument, donated by the Fraternal Order of Eagles, is nearly identical to the one upheld by the U.S. Supreme Court in the Van Orden case.  However, the court said:
there are at least two factors that distinguish this case from Van Orden, such that it does not control the outcome. First, the monument in Van Orden was displayed “in a large park containing 17 monuments and 21 historical markers.”... Conversely, the monument in this case stands alone, prominently displayed outside one of the entrances to the school with a sidewalk just 14 feet away... There has been no effort on the part of the School District to impart “a broader moral and historical message” by displaying the monument alongside or nearby other secular monuments or displays.... Not only does the monument stand alone, but it stands alone “on the grounds of a public school, where,” as Justice Breyer explained, “given the impressionability of the young, government must exercise particular care in separating church and state.”... 
Nevertheless, the relief granted by the court was rather narrow.  Since the plaintiff no longer attends the Junior High School, her claims for injunctive and declaratory relief were denied as moot. Instead the court only granted nominal damages of $1, thus placing the school under no immediate direct order to remove the monument. Pittsburgh Post Gazette reports on the decision.

Suit Challenges Montana's Ban on Polygamy

According to MTN News, a federal court lawsuit was filed yesterday challenging Montana's  ban on polygamous marriages.  Nathan and Vicki Collier were legally married in 2000.  Nathan is now seeking a marriage license to legally marry Christine Parkinson who has also been living as his wife in a polygamous relationship.  The family has a total of eight children.  In July, the Yellowstone County clerk's office denied Nathan a marriage license and asked the county attorney's office for legal advice.  In a letter, the Deputy County Attorney said that the U.S. Supreme Court's same-sex marriage decision does not extend to protect polygamous marriages.  Nathan, Vicki and Christine all filed the lawsuit, representing themselves, arguing that their consensual plural family association is protected by the equal protection, free exercise,  and establishment  clause as well as by the 1st Amendment's protection of speech and association. Montana's bigamy statute imposes a fine of $500 and imprisonment up to 6 months on those convicted.

Suit Challenges Nevada's School Voucher Program

The ACLU yesterday filed suit in state court in Nevada challenging the state's broad school voucher program.  Under the program, parents of a child who has attended public school for 100 consecutive days may move the child to a private school (including a religious school) and have the state pay into an educational savings account for the student an amount equal to at least 90% of the statewide average basic support per pupil. (See prior posting.) The complaint (full text) in Duncan v. State of Nevada, (NV Dist. Ct., filed 8/27/2015), contends that private religious schools constitute the majority of private schools eligible to participate in the educational savings account program. It alleges that the program violates Art. XI, Sec. 10 of the Nevada constitution that prohibits public funds from being used for sectarian purposes, as well as Art. XI Sec. 2 that requires a uniform system of common schools in which no instruction of a sectarian character takes place. AP reports on the lawsuit.

Thursday, August 27, 2015

Brief In Polygamy Appeal Garners Attention

In 2013 in Brown v. Buhman, a Utah federal district court  struck down much of Utah's statute which criminalizes polygamy.  The decision limits the statute's applicability to cases in which an individual has multiple marriage licences, concluding that the statute's broader ban on cohabiting while married to another person is unconstitutional. (See prior posting.) The state of Utah filed an appeal with the 10th Circuit in September 2014.  Yesterday, appellees filed their brief with the 10th Circuit. It is gaining particular attention (as in this Fox 13 piece) because of (1) the celebrity status of appellees -- the polygamous family that is the subject of the popular reality television series "The Sister Wives; (2) the high profile counsel who filed the brief-- law professor and frequent legal commentator Jonathan Turley; and (3) the Supreme Court's same-sex marriage decision which was handed down subsequent to the district court's ruling on the anti-polygamy statute.  Some opponents of same-sex marriage argued that its legalization would create a "slippery slope" toward other marital arrangements.  The Supreme Court's Obergefell decision is cited extensively in the brief, but appellees emphasize: "This case is about the criminalization, not recognition, of plural relationships."  The full brief may be read here.

Canadian Court Says Charter Does Not Protect Proselytizing In Primary School During School Hours

In Bonitto v. Halifax Regional School Board, (NS Ct. App., Aug. 26, 2015), the Nova Scotia (Canada) Court of Appeal rejected the claim by Sean Bonitto, a fundamentalist Christian parent of school children, that Secs. 2(a) and (b) of the Canadian Charter of Rights and Freedoms protect his right to hand out religious literature during school hours to elementary school students.  He sought to distribute his literature in a school in which 25% of the students were Muslim.  The court said in part:
Mr. Bonitto’s model envisages a theological midway with rivals beckoning nine year olds walking to their classrooms. The Minister, Board and school would have no control over the messages. That would contradict a basic premise of public schooling under the Education Acti.e. on school premises during school hours, the inculcated message must pertain to the approved scholastic program.
Mr. Bonitto’s message is that non-Christians will burn in a sea of flames for eternity. The Board’s witnesses held the view that elementary students, especially non-Christians, hearing this on the steps would entertain an unsettling distraction from their classwork. The message would undermine the “orderly and safe learning environment” and the “positive and inclusive school climate” proclaimed by the preamble to the Education Act. That view makes good sense to me.
CBC News reports on the decision.

Hamptons Town Board Drops Opposition To Eruv

Since 2011, a Suffolk County, New York, Jewish organization known as the East End Eruv Association (EEEA) has been attempting to obtain approval to erect an eruv (a symbolic boundary) in three towns in the Hamptons. It has been opposed by a citizens group known as Jewish People Opposed to the Eruv. The clash between groups has spawned extensive state and federal litigation.  According to 27 East, on Tuesday EEEA moved significantly closer to success. The Southampton Town Board voted not to pursue an appeal of an adverse state trial court decision.  That decision held that the town's sign ordinance does not bar construction of the eruv. The town also will drop its federal lawsuit challenging the eruv on Establishment Clause grounds. The Town Board's decision will permit expansion of an eruv currently in  Westhampton Beach Village to also include the hamlets of Quiogue and Westhampton.

Court Upholds City's Decision To End Display of Christian Cross

On Tuesday, an Ottawa County, Michigan trial court judge dismissed a lawsuit seeking to force the city of Grand Haven to resume displaying a 48-foot Christian cross on Dewey Hill, a city-owned sand dune. Plaintiffs object to City Council's decision to turn the cross into a Coast Guard anchor. (See prior posting.) As reported by MLive, a group of seven residents sued the city alleging that the city's decision amounted to unconstitutional regulation of  speech in a traditional public forum and discriminated on the basis of religion. However the court held that the display is governmental speech and "the City has the right to determine what messages it sends through the use of its own governmental property." (See prior related posting.)

6th Circuit Refuses To Stay Injunction Against Recalcitrant Kentucky County Clerk

In Miller v. Davis, (6th Cir., Aug. 26, 2015), the U.S. 6th Circuit Court of Appeals refused to grant a stay pending appeal of a preliminary injunction (see prior posting) issued against a Rowan County, Kentucky, Clerk who has religious objections to issuing marriage licenses to same-sex couples.  The 6th Circuit explains:
As the County Clerk ..., Davis’s official duties include the issuance of marriage licenses. In response to the Supreme Court’s holding in Obergefell v. Hodges ..., Davis unilaterally decided that her office would no longer issue any marriage licenses. According to Davis, the issuance of licenses to same-sex marriage couples infringes on her rights under the United States and Kentucky Constitutions as well as the Kentucky Freedom Restoration Act.... The Rowan County Clerk’s office has since refused to issue marriage licenses to the plaintiffs, and this action ensued.
The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity. The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.....
USA Today reports on the decision. [Thanks to Tom Rutledge for the lead.]

UPDATE: On Thursday, Davis' office continued to refuse to issue a marriage license to a same-sex couple, arguing that the district court's stay remains in effect until Aug. 31.  The district court stayed its preliminary injunction until Aug. 31 or the 6th Circuit issued a ruling. On Thursday afternoon, the clerk's office was temporarily closed for "computer upgrades." Davis is considering filing an appeal with the U.S. Supreme Court. (CBS News).

Wednesday, August 26, 2015

No Establishment Clause Problem In Indictment of Halal Meat Exporter For False Statements

In United States v. Aossey, (ND IA, Aug. 25, 2015), an Iowa federal district court rejected Establishment Clause and Free Exercise challenges to a 92-count indictment against various affiliated companies and individuals charging them with making false statements on export certificates and on a website regarding Halal-slaughter of meat being exported. The court said in part:
[N]either the court nor the jury will be required to decide what Halal means. The government is not claiming merely that Defendants represented that they were selling Halal products that were not in fact Halal....  Rather, the government is alleging that Defendants made specific, false representations, including: (1) Defendants did not use penetrative captive bolt stunning; (2) all of Defendants’ beef products were hand-slaughtered; (3) a practicing Muslim recited a specific prayer while slaughtering; (4) Defendants did not sell leftover hindquarters from Kosher slaughters as Halal; (5) Defendants’ meat products complied with the laws and requirements of Malaysia, Indonesia, Kuwait and the United Arab Emirates; and (6) the animals slaughtered were vegetarian fed. The government believes that Defendants made these allegedly false representations to convince their customers that their meat products were Halal.
(See prior related posting.)

2nd Circuit Affirms Dismissal of Class Action By Sikh Victims of 1984 Riots In India

In Sikhs for Justice, Inc. v. Gandhi, (2d Cir., Aug. 25, 2015), the U.S. 2nd Circuit Court of Appeals affirmed the district court's dismissal of a putative class action on behalf of victims of 1984 anti-Sikh riots in India brought against Sonia Gandhi, president of India's ruling political party.  Claims under the Alien Tort Statute were dismissed because all relevant conduct took place outside the United States. Torture Victim Protection Act claims were dismissed on standing grounds.  The court added:
Moreover, plaintiffs failed to plausibly allege that defendant is liable for the anti-Sikh riots. At best, the amended complaint alleges that certain attacks were carried out on defendant’s “orders,” and that defendant was present at one of several meetings at which the riots were planned.

Burma's Parliament Passes Controversial Religious Conversion and Monogamy Laws

According to Human Rights Watch, on Aug. 21 Burma's joint parliament passed two bills that violate human rights and threaten to entrench religious discrimination.  The Religious Conversion Bill will require anyone wishing to change religion to be over 18, and then to file an application with a local Religious Conversion Scrutinization and Registration Board.  It is feared that many local boards will be dominated by ethnic Buddhists who will be biased against conversion to other faiths. The second bill, the Monogamy Bill, is seen as targeting religious minorities that practice polygamy. These two laws, along with the Population Control Law which became law in May, and the Interfaith Marriage Law, passed in July but not yet signed into law, were promoted by the Association for Protection of Race and Religion ("Ma Ba Tha"), an organization of Buddhist monks with an anti-Muslim and ultra-nationalist agenda. Human Rights Watch urges Burma's President Thein Sein to refuse to sign the two newly-passed bills.

The U.S. Commission on International Religious Freedom also issued a statement this week condemning Burma's Religious Conversion Bill.

EEOC Sues National Federation of the Blind For Refusing To Accommodate Employee's Sabbath Observance

The EEOC announced last week that it has filed suit in a Maryland federal district court against the National Federation of the Blind for religious discrimination.  The EEOC summarizes the charges:
Joseph R. Massey II is a practicing Hebrew Pentecostal, a Christian denomination, and abstains from working from sunset Friday to sunset Saturday based on his sincerely-held religious beliefs.  The National Federation of the Blind hired Massey for a bookkeeping position at its Baltimore office in November 2013.  In January 2014, the Federation told Massey he had to work certain Saturdays.  Massey explained he could not work Saturdays due to his religious faith and suggested alternatives such as working on Sundays or working late on week nights other than Fridays.  EEOC charged that the Federation refused to provide any reasonable accommodation and instead fired Massey because he could not work Saturdays due to his religious beliefs.

Malaysian Federal Court Upholds Death Sentence of Gardener Who Killed Doctor For Insulting Islam

Yesterday a 5-judge panel of Malaysia's Federal Court upheld the death sentence that had been imposed on a Pakistani Muslim gardener who in 2011 beheaded a doctor for whom he was working. The murder stemmed from a conversation between the two men in which the doctor had insulted the Kaabah, the building at the center of Islam's most sacred mosque. The New Straits Times reports on the decision.

Tuesday, August 25, 2015

Bankruptcy Code's Automatic Stay Applies To Proceedings In Jewish Religious Court

In In re Congregation Birchos Yosef, (SD NY Bkrptcy, Aug. 24, 2015), a New York federal bankruptcy court held that the statutory automatic stay of proceedings against a debtor that is triggered by the filing of a petition in a bankruptcy reorganization applies to invalidate proceedings against a debtor and its principals in a Jewish religious court (beis din).  In the case, a religious organization in Monsey, New York that had filed for bankruptcy reorganization, as part of the bankruptcy proceedings, instituted suit against a Jewish school, Bais Chinuch L'Bonois, asserting claims for fraud, breach of fiduciary duty and looting of the Debtor’s assets.  In response, Bais Chinuch invoked a beis din which issued a hazmana or summons to individuals controlling Congregation Birchos Yosef inviting them to adjudicate their dispute in the Jewish religious court.  The beis din also issued an ekul or injunction against the parties continuing to pursue the dispute through the Bankruptcy Court.

The Bankruptcy Court held that:
Bais Chinuch and the individuals’ invocation of the beis din proceeding - and the issuance of the beis din's ekul, or injunction - are actually directed at the Debtor through its principals with the intention of wresting control of the Debtor’s adversary proceeding and exerting pressure to have it dismissed....  Because of the principals’ identity of interest here with the Debtor, the automatic stay applies to protect them from the beis din
The court went on to hold that enforcement of the automatic stay does not violate the Free Exercise or Establishment Clause of the First Amendment.  It held that RFRA is not applicable, because it does not apply to the Debtor's motion, a private action between private parties.  Even if applicable, application of the automatic stay survives RFRA strict scrutiny.  The court added, "The automatic stay’s enforcement here does not substantially burden the objectors’ free exercise of religion, moreover, when they have invoked a rabbinical court to decide (and interfere with) an essentially commercial dispute."

Proposed Hindu Statue At Arkansas Capitol Turned Down Initially

In Arkansas, a request by the Universal Society of Hinduism to place a privately-financed statute of the Hindu god Lord Hanuman on the grounds of the state Capitol has been rejected by the Secretary of State's office.  Arkansas News Bureau reported last Friday that Chief Deputy Secretary of State Kelly Boyd told the Hindu group that it is the State Capitol Arts and Grounds Commission that is responsible for approving monuments on the Capitol grounds.  The Hindu group's request follows the state legislature's approval in April of a Ten Commandments monument at the Capitol. (See prior posting.) The Secretary of State's office suggested that the Hindu group seek similar legislative approval. The group says it may send its request to the governor.  According to Merinews, Christian, Buddhist, Jewish, Baha'i and other faith leaders have backed the Hindu group's request.  [Thanks to Scott Mange for the lead.]

Mirror of Justice Blogger Robert Araujo Posts Sad Farewell

On Sunday, Loyola University Chicago Law Professor Robert John Araujo, S.J., posted a sad farewell on Mirror of Justice to which he has contributed for ten years.  Mirror of Justice is a wonderful blog dedicated to the development of Catholic legal theory, and Prof. Araujo's posts have been an important part of the blog's contribution to thinking about law and religion.  Prof. Araujo writes that he is now in palliative/hospice care while finishing his final scholarly project -- a book on the Declaration on Religious Liberty and its relevance to the law. We all salute Prof Araujo for his scholarly contributions on Papal diplomacy, religious liberty and Catholic social thought.  Even more so, we salute him for the courageous example he has set in facing impossibly difficult health care decisions.

Judge Preventing Church Leader From Obtaining Unusual Name Change

According to the Rome News-Tribune, in Rome, Georgia an 81-year old resident whose current name apparently is "Serpentfoot" is petitioning a Floyd County (GA) court to change her name to:
Nofoot Allfoot-69-mouth-tail-solids-liquids-gases-animal-vegetable-mineral-going-over-under-around-and-through-Our-Greater-Self-our-habitat-the-cosmos-of-which-we-are-but-part-and-where-all-life-feeds-upon-other-life-from-the-smallest-bacteria-to-the-great-black-holes-and-dog-eat-dog-and-last-suppers-where-we-are-what-we-eat-or-consume-and-each-lives-on-in-the-other … ∞ Serpentfoot.
Serpentfoot who is the leader of her own church, "Our Greater Self Co-op," says that the name change will further her ministry. The court however apparently turned down the request in on Aug. 6 when Serpentfoot was a few minutes late for her 8:30 am hearing. She has now filed a petition asking the judge to reconsider his ruling or else recuse himself.  This is the latest in a series of requests by Serpentfoot to change her name.  Her last request was denied in May by the court when she could not remember her proposed name.