Thursday, February 11, 2016

Tribal Council Balks At Posting of U.S. National Motto

According to the Smokey Mountain News, Rick Lanier, head of the U.S. Motto Action Committee, was startled at the reaction to his presentation last week to the Cherokee Tribal Council. Lanier has been trying to get the motto "In God We Trust" placed on government buildings around North Carolina, and his proposal is usually welcomed.  Members of the Cherokee Tribal Council and community members took Lanier to task for not understanding beliefs of the Cherokee, and for not realizing that the Cherokees are a sovereign nation and so would not want to put up the motto of the U.S. government.

Suit Says Zoning Change To Permit Chabad Development Violated Establishment Clause

The South Florida Sun Sentinel  reported yesterday on an unusual lawsuit filed by two Christian residents of Boca Raton, Florida alleging secret arrangements between the city, a developer and Chabad of East Boca to allow Chabad to build a $10 million synagogue and museum on Boca Raton's barrier island. The complaint (full text) in Gagliardi v. City of Boca Raton, Florida, (SD FL, filed 2/8/2016), alleges that the arrangement, undertaken in response to public objections to Chabad's locating in a different area of the city, violated the Establishment Clause, the due process and equal protection clauses, and the state constitution. The complaint alleges that the change in the city code to permit Chabad to locate on the barrier island (followed by variances and other actions to further the project) was a "complete and and express violation of the prohibition of advancing, endorsing or promoting of religion as set forth in the First Amendment of the United States Constitution."

City Sues Mosque Over Renovation and Expansion Plans

AP reports that the city of Lexington, Nebraska has sued a mosque to keep it from renovating and expanding its downtown property.  The Islamic Center of Dawson County wants to renovate two buildings it has occupied since 2008 and renovate an adjacent former laundromat building that it has acquired.  The city says the Islamic Center has never obtained an occupancy permit, and that it needs a conditional use permit to use the former laundromat building for religious purposes.  In December, City Council voted to deny the permit over concerns about parking and downtown redevelopment plans.  The city's lawsuit seeks penalties of $600 per day for building code and zoning violations, and asks for a temporary injunction against expansion into the laundromat building. The city is urging the Islamic Center to look for property in residential areas, but the mosque says those areas are far from where its members-- mostly Somalian and other African immigrants-- live.

Challenge To Ban On Marriage Ceremonies Without License Dismissed For Lack of Standing

In Carrick v. Snyder, (ED MI, Feb. 10, 2016), a Michigan federal district court dismissed for lack of standing a minister's First Amendment challenge to Michigan statutes that impose civil and criminal sanctions on anyone authorized to perform a marriage ceremony who does so for a couple who have not obtained a marriage license. (See prior related posting.) The court held that plaintiff had not alleged any actual intent to perform marriage ceremonies for couples without licenses.  According to the court:
plaintiff asserts an entirely hypothetical injury where he or unspecified others will not marry unspecified couples or groups because they might face hypothetical penalties from the state of Michigan.

Class Action Claims Valentine's Day Candies Misrepresented As Kosher

A class action lawsuit was filed this week in a California federal district court against See's Candy alleging that signage in the company's Los Angeles store misled plaintiff into believing that the Valentine's Day Heart Box of assorted chocolates was certified Kosher when in fact it was not.  The complaint (full text) in Weiss v. See's Candy Shops, Inc., (ND CA, filed 2/9/2016), asserts that plaintiff relied on a sign containing a kosher certified symbol which the store placed directly above the heart boxes of candy. The suit alleges breach of express warranty, unlawful business practices, violation of the Consumers Legal Remedy Act, false advertising, and fraudulent inducement. Law.com reports on the lawsuit.

Wednesday, February 10, 2016

Israel Appoints 7 New Muslim Religious Court Judges

In Israel yesterday, Israeli President Reuven Rivlin and Minister of Justice Ayelet Shaked spoke at a ceremony at the President's residence marking the appointment of seven new judges (Qadis) to Israeli Shariah courts that adjudicate Muslim personal status matters.  (Ministry of Foreign Affairs press release.) As reported by the Jerusalem Post, two new judges were appointed to the Shariah Court of Appeals, and five were appointed to Shariah regional courts.  Both Rivlin and Shaked expressed their hope that future appointment of Qadis would include women. Shaked said that she had asked the the sub-committee that recommends appointments for the names of female candidates. Apparently they did not produce any. A bill proposed in the Knesset last year would have required that at least one woman be on the list of recommended nominees, but the government coalition partner United Torah Judaism party vetoed the bill fearing it might set a precedent for Jewish religious court judges. (See prior posting.)

National Federation of Blind Settles EEOC's Religious Accommodation Lawsuit

The EEOC announced Monday that the National Federation of the Blind has settled a religious discrimination lawsuit brought by the Commission on behalf of a Hebrew Pentecostal bookkeeper who was refused religious accommodation.  NFB fired Joseph R. Massey II after telling him that he must work on certain Saturdays.  NFB refused Massey's request to instead work Sundays or late on week nights. Under the settlement NFB will pay $25,000 in damages, and agreed to an injunction against religious discrimination, adoption of a non-discrimination policy and training of managers and supervisors.

4th Circuit: Variance Denial For Church Does Not Violate RLUIPA

In Andon, LLC v. City of Newport News Virginia, (4th Cir., Feb. 9, 2016), the U.S. 4th Circuit Court of Appeals rejected the argument that a Board of Zoning Appeals' refusal to grant a zoning variance amounted to a substantial burden on religious exercise under RLUIPA. Seeking to use a building that did not meet zoning requirements as a church facility, Reconciling People Together in Faith Ministries entered a lease of it contingent on obtaining a variance. The court held:
Because the plaintiffs knowingly entered into a contingent lease agreement for a non-conforming property, the alleged burdens they sustained were not imposed by the BZA’s action denying the variance, but were self-imposed hardships....  A self-imposed hardship generally will not support a substantial burden claim under RLUIPA, because the hardship was not imposed by governmental action altering a legitimate, pre-existing expectation that a property could be obtained for a particular land use.
[Thanks to Will Esser via Religionlaw for the lead.]

Court Says Enforcement Motion Against Kim Davis Is Moot

A decision by a Kentucky federal district court yesterday may have nearly ended the ongoing legal saga of Rowan County Clerk Kim Davis who, until court intervention, refused to allow her office to issue any marriage licenses once same-sex marriage was legalized in the state. (See prior posting.)  As recounted by the court:
On September 3, 2015, the Court held Defendant Kim Davis in contempt.... After remanding Davis to the custody of the United States Marshal’s Service, five of six Rowan County Deputy Clerks told the Court that they would issue marriage licenses in her absence. The next day, multiple same-sex and opposite-sex couples obtained marriage licenses.... Because Davis’ Office issued these licenses, the Court found that she had purged herself of the contempt and ordered her release from custody on September 8, 2015.
However when Davis returned to work, she insisted on modifying the license forms being issued. At that point plaintiffs asked to court to order the deputy clerks to go back to issuing licenses in the original form.  In Miller v. Davis, (ED KY, Feb. 9, 2016), the court held:
Since Plaintiffs filed this Motion, the Court has received numerous Status reports [indicating] ... that the Rowan County Clerk’s Office is issuing marriage licenses to individuals eligible to marry as needed.... There has been no indication that Davis has continued to interfere with the issuance of marriage licenses since September 20, 2015.... Moreover, there is every reason to believe that any altered licenses issued between September 14 ... and September 20 ... would be recognized as valid under Kentucky law.... Under these circumstances, the Court finds that Plaintiffs’ request for relief is now moot. The Court will continue to monitor Davis and the Rowan County Clerk’s Office to ensure compliance with its Orders.
Liberty Counsel issued a press release on the decision.

Tuesday, February 09, 2016

New York Regulations Aim To End Conversion Therapy

On Feb. 6, New York Governor Andrew Cuomo announced a series of executive actions to prevent the practice of LGBT conversion therapy in the state:
The New York State Department of Financial Services is issuing regulations barring New York insurers from providing coverage for conversion therapy given to an individual under the age of 18. Additionally, the New York State Department of Health is prohibiting coverage of conversion therapy under New York’s Medicaid program and the New York State Office of Mental Health is issuing regulations prohibiting facilities under its jurisdiction from providing conversion therapy treatment to minors.
Christian News reports on the governor's actions.

Suit In Nation of Georgia Seeks Marriage Equality

According to yesterday's EurasiaNet, in the Caucasus nation of Georgia for the first time a lawsuit has been filed seeking to legalize same-sex marriage.  Plaintiff Giorgi Tatishvili filed suit in the Constitutional Court challenging the constitutionality of a Georgian law that defines marriage as being only between a man and a woman. The country's influential Orthodox Church which opposes same-sex marriage nevertheless on Sunday called for the government to provide Tatishvili protection, saying that violence against him is likely for bringing the suit. Minority rights activists in Georgia have not supported the lawsuit, fearing that it will increase hostility against and marginalization of the country's LGBT community. Pro-Russian groups have used the specter of legalized same-sex marriage in their opposition to Georgia joining the European Union.

Church's State Court Suit Challenges California Mandate For Health Insurance Abortion Coverage

A La Mesa, California church last week filed suit in state court against the California Department of Managed Health Care challenging a state requirement that all health insurance policies sold in California cover elective abortions, without exceptions.  The complaint (full text) in Skyline Wesleyan Church v. California Department of Managed Health Care, (Super. Ct., filed 2/4/2016), alleging violations of several state and federal constitutional provisions, contends:
the Mandate has created an inconsistent and untenable situation where Skyline Church and other religious employers do not have to provide health insurance coverage for contraceptives and infertility treatments but must pay for voluntary and elective abortions....
Defendants substantially burden Skyline Church's religious exercise when they force Skyline Church to choose between following its religious beliefs and suffering debilitating penalties under federal law or violating its conscience in order to avoid those penalties.
A similar challenge was filed in federal court by three other  churches last October. (See prior posting.)  ADF issued a press release announcing last week's state court lawsuit.

Monday, February 08, 2016

Victim Advocate Is Asked To Take Leave From Pontifical Commission on Protection of Minors

Crux reported Saturday that in the Vatican, British sexual abuse survivor Peter Saunders has been asked by other members of the Pontifical Commission for the Protection of Minors to take a leave of absence from the Commission.  Saunders, appointed to the Commission by Pope Francis last year, has become increasingly critical of the Pope. A Vatican official described the situation, saying that Saunders-- who founded Britain's National Association for People Abused in Childhood-- "has to decide if he's an advocate and campaigner [for survivors] instead of being an adviser." Cardinal Sean O'Malley, head of the Pontifical Commission says he has asked Saunders for advice on a possible victim survivor panel to work with the Commission.

Recent Articles of Interest

From SSRN:
From SSRN (Islamic Law):
From SSRN (Same-sex marriage):
From SmartCILP:
  • Eric Rassbach, Are Houses of Worship "House[s]" Under the Third Amendment?, [Abstract], 82 Tennessee Law Review 611-626 (2015).
  • Elizabeth Sepper, Free Exercise Lochnerism, 115 Columbia Law Review 1453-1519 (2015).

Sunday, February 07, 2016

Recent Prisoner Free Exercise Cases

In Muhammad v. Virginia, 2016 U.S. Dist. LEXIS 11153 (WD VA, Feb. 1, 2016), a Virginia federal magistrate judge recommended dismissing a Nation of Islam inmate's complaint that the common fare diet does not comply with his religious beliefs and that if he elected to receive the common fare diet during Ramadan, he would not be allowed to receive special food for the Eid feasts. The magistrate also rejected his contention that Eid ul-Fitr was celebrated on the wrong date.

In Gomez v. Gipson, 2016 U.S. Dist. LEXIS 11634 (ED CA, Feb. 1, 2016), a California federal magistrate judge dismissed with leave to amend a complaint by a Native American inmate who alleged that authorities limited sweat lodge ceremonies to once a month, without a spiritual adviser, in retaliation for his filing an inmate grievance.

In Isakhanova v. Muniz, 2016 U.S. Dist. LEXIS 11663 (ND CA, Jan. 29, 2016), a California federal magistrate judge dismissed with leave to amend a suit by the mother of an inmate who was allegedly mistreated when she came to visit her son in prison. The court dismissed with leave to amend her complaint that correctional officers made derogatory remarks about her Muslim religion while they temporarily held her on suspicion she had passed tobacco to her son.

In Lashley v. Sposato, 2016 U.S. Dist. LEXIS 12165 (ED NY, Feb. 2, 2016), a New York federal magistrate judge  recommended allowing a Muslim woman, a former inmate, to file an amended complaint alleging that she was required to spend 11 days in lock down and denied access to legal documents for refusing to remove her Khimar.

In Holcomb v. Kramer, 2016 U.S. Dist. LEXIS 10557 (D SC, Jan. 29, 2016), a South Carolina federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 12303, Jan. 6, 2016) and dismissed a claim by an inmate (a rabbi) that his kosher diet requirements were not adequately accommodated.

In Mitchell v. Staten, 2016 U.S. Dist. LEXIS 12930 (SD GA, Feb. 3, 2016), a Georgia federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 13712, Jan. 4, 2016) and permitted a Muslim inmate to proceed with his claim for an injunction and nominal damages growing out of his complaint that his Qur'an was taken during a search of his jail cell and has not been returned to him.

In Searcy v. Macomb County Jail, 2016 U.S. Dist. LEXIS 13905 (ED MI, Jan. 14, 2016), a Michigan federal magistrate judge recommended dismissing an inmate's claim that the jail offered no books, services, advice, or counseling for Jewish inmates.

In United States v. Cohee, 2016 U.S. Dist. LEXIS 14224 (D KS, Feb. 5, 2016), a Kansas federal district court rejected the claim by a convicted sexual offender who was on supervised release that his free exercise rights were violated because he has "the right to be judged by God and not by man."

Nevada Democratic Caucuses Pose Problems For Sabbath Observers

After this week's New Hampshire primaries, the presidential candidates move to Nevada and South Carolina.  As reported last week by the Las Vegas Review-Journal, the Democratic caucuses in Nevada are on Saturday, Feb. 20 at 11:00 a.m.  This means that observant Jews and Seventh Day Adventists may be unable to participate because doing so violates their Sabbath.  The Republican caucuses in Nevada will be held on Tuesday, Feb. 23, obviating the Sabbath observance problem.  The same concerns arose in 2008 and 2012 when both parties held their Nevada caucuses on Saturday.  In 2012, the Republicans held an additional evening caucus for those unable to participate earlier in the day for religious reasons.  In 2008, Democrats placed caucus sites near religious neighborhoods and synagogues so people could walk, and precinct captains were educated to write down information on behalf of observant Jews instead of asking them to sign-in and write themselves. (See prior posting.) It is unclear whether Democrats will be making similar accommodations this year.

South Carolina's primaries are on Saturdays for bot parties (Feb. 20 and 27).  However, unlike in caucuses, primary voters can cast absentee ballots in advance. [Thanks to Steven H. Sholk for the lead.]

Saturday, February 06, 2016

Suit Over Religious Themed Donor Plaque Dismissed After School Removes All Plaques

Last year, Michael Lucas, an alumnus of the Colorado School of Mines, filed suit against the school after it rejected the text he chose for a donor plaque. The school's fundraising campaign for a new Athletic Complex allowed donors to purchase a personalized plate to be placed in the new football locker room. However the school rejected Lucas' proposed inscription "Colossians 3:23 & Micah 5:9." (See prior posting.) According to an ADF press release, Lucas yesterday moved to voluntarily dismiss the suit because the school has now removed all donor nameplates from the locker room. In a letter to donors (full text), the school's President said:
The purpose of the football locker fundraising program ... was to solicit donations and honor Mines' student athletes.... Unfortunately, an individual who participated in this fundraising program mistakenly viewed our new football locker room as a public space for free expression.
The letter invited donors to transfer their gifts to a new program that would replace their old plaque with a new one containing specified identifying information on the person the donor wished to honor.  No free text quotes are allowed.

Friday, February 05, 2016

First Ever Meeting of Heads of Catholic, Russian Orthodox Churches Scheduled In Cuba For Next Week

In a joint press release today, the Vatican and the Patriarchate of Moscow announced that Pope Francis and Patriarch Kirill will meet on Feb. 12 in Cuba at the Havana airport.  The historic meeting, which will culminate in the signing of a joint declaration, is the first meeting ever between a Pope and the head of the Russian Orthodox church. AP reports on the religious and well as political implications of the historic meeting.

U.S. Opposes Chabad Subpoenas Seeking To Enforce Court Sanctions Against Russia

As previously reported, in a long-running lawsuit by a Chabad group in the United States to recover two expropriated collections of religious books from the Russian government, a D.C. federal district court last year imposed $43.7 million in sanctions on various Russian government entities that have refused to comply with the court's order after a default judgment. Chabad is attempting to enforce the sanctions by locating Russian assets in the United States. It has subpoenaed five major financial institutions seeking information on accounts of the Russian government, and of individuals such as Russian President Vladimir Putin.  National Law Journal reported yesterday that the Justice Department this week filed a Statement of Interest of the United States (full text) in the case contending that Chabad's subpoenas:
are contrary to the goal of resolving this dispute and will harm not only further diplomatic efforts to do so but also the foreign policy interests of the United States.
The government argued that any Russian assets in the subpoenaed banks are immune from attachment anyway.  And it emphasized:
The United States has invested significant resources in diplomatic efforts over many years to resolve this dispute, and it continues to believe that out-of-court dialogue with Russia, rather than litigation, presents the best opportunity for ultimate resolution. 

Reparative Therapy Practitioners, Enjoined In New Jersey, Move Work To Israel

As previously reported, last December a New Jersey state court issued a permanent injunction under the state's Consumer Fraud Act against JONAH (Jews Offering New Alternatives for Healing), prohibiting it from offering gay conversion therapy in the future.  Yesterday, however, AP reported that therapists who had been connected to JONAH have moved their work to Israel. According to AP:
Israel’s Health Ministry advises against so-called “gay conversion” or “reparative” therapy, calling it scientifically dubious and potentially dangerous, but no law limits it. In Israel, practitioners say their services are in demand, mostly by Orthodox Jewish men trying to reduce their same-sex attractions so they can marry women and raise a traditional family according to their conservative religious values.
Clients also include Jewish teenagers from the U.S. and other countries who attend post-high school study programs at Orthodox seminaries in Israel....
Proponents in Israel say therapy does not “convert” clients, but boosts self-esteem and masculinity, which they say can reduce homosexuality. In Israel, therapists say there is greater acceptance of their work than in the U.S.

7th Circuit: Valuable Copy of Book of Mormon Exempt In Bankruptcy Under Illinois Law

In In re Robinson, (7th Cir., Feb. 4, 2016), the U.S. 7th Circuit Court of Appeals, in a bankruptcy case, held that under Illinois law, a debtor's copy of a rare, first edition Book of Mormon is exempt from attachment by creditors.  The court held that the exemption in Illinois law, 735 ILCS 5/12-1001(a), for the debtor's bible does not limit the debtor to retaining only one bible, nor does it limit the exemption to a bible of a particular value. St. Louis Post-Dispatch reports on the decision.

President Speaks At National Prayer Breakfast

Yesterday President Barack Obama spoke at the 64th annual National Prayer Breakfast at the Washington Hilton Hotel. His remarks (full text) which NBC described as focusing on "piety not politics," but with political "undertones in the background," built on a quotation from Second Timothy: "For God has not given us a spirit of fear, but of power and of love and of a sound mind." C-Span has posted video of all the speakers, including House Speaker Paul Ryan.