Showing posts with label Courts. Show all posts
Showing posts with label Courts. Show all posts

Thursday, September 28, 2023

Michigan Supreme Court Adopts New Rule Requiring Use of Preferred Pronouns, or Respectful Alternative

In Amendment of Rule 1.109 of the Michigan Court Rules, (MI Sup. Ct., Sept. 27, 2023), the Michigan Supreme Court by a vote of 5-2 adopted a Rule requiring Michigan courts to use the name and personal pronouns listed by parties and attorneys on pleadings in the case when addressing, referring to or identifying a party or attorney orally or in writing. Alternatively, the court may use "other respectful means of address not inconsistent with the individual’s designated salutation or personal pronouns." Two Justices filed opinions concurring in the adoption of the Rule, and two other Justices filed dissents. Justice Welch, concurring, said in part:

[P]eople object to honoring a person’s specified pronouns on the basis that they do not personally agree with the notion that someone can switch genders or be nonbinary. This was the subject of a great deal of the input we received after publishing the proposed amendments. Whether for religious or other reasons, many comments reflected a personal belief that gender could not change. But the rule provides that “other respectful means” can be used to address a party who makes a specific pronoun request. Certainly, asking our judges to be respectful to litigants using other general neutral means (such as addressing a party as “Attorney Smith” or “Plaintiff Smith”) does not force anyone to violate their beliefs.

Justice Bolden concurring said in part:

Some commenters have raised First Amendment concerns, arguing that the amendment compels speech and/or infringes upon religious liberty. However, Code of Judicial Conduct, Canon 2(A) ...requires judges to “accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and [they] should do so freely and willingly.”... Similarly, the United States Supreme Court has explained that government employees have certain limitations on their freedom that they must accept in the workplace....

Justice Zahra, dissenting, said in part:

Some believe that the use of preferred pronouns is simply a matter of courtesy and that those who oppose it are stubborn, perhaps even bigoted. Others, however, believe they should not be compelled, especially under oath and/or in conflict with their deeply held religious beliefs, to affirm a person’s preferred pronouns that are inconsistent with the biological gender on that person’s birth certificate. All told, this is a fluid political debate into which our judicial branch of state government should not wade, let alone dive headfirst and claim to have resolved. Such hubris has no place within the operation of a judicial branch of state government. As aptly stated by the Catholic Lawyers Society of Metropolitan Detroit, “[t]he Court should decline to insert itself into one of the most controversial social issues of our time, declare a winner, dismiss objections as mere products of bigotry, and threaten to punish dissenters whilst ignoring their constitutional rights.” I am deeply troubled by the Court’s willingness to do so.

Justice Viviano, dissenting, said in part:

... [A]ll the arguments that the concurrences employ against the constitutional concerns with the present action could in turn be employed to support the opposite rule. I have my doubts that the majority would be so cavalier about the First Amendment implications of their actions if the shoe was on the other foot.

CBS Detroit reports on the new rule.

Friday, September 30, 2022

Courtroom Invocations Did Not Violate Establishment Clause [UPDATED]

In Freedom From Religion Foundation v. Mack, (5th Cir., Sept. 29, 2022), the U.S. 5th Circuit Court of Appeals held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain does not violate the Establishment Clause. The court said in part:

The plaintiffs cry coercion because Texas Justice of the Peace Wayne Mack opens his court with a ceremony that includes a prayer. But Mack also takes great pains to convince attendees that they need not watch the ceremony—and that doing so will not affect their cases. Some attendees say they feel subjective pressure anyway. Yet the plaintiffs have no evidence suggesting that “coercion is a real and substantial likelihood.” Town of Greece v. Galloway, 572 U.S. 565, 590 (2014).

Want of evidence showing coercion dooms their case. In holding otherwise, the district court disregarded the Supreme Court’s most recent guidance.

First Liberty Institute issued a press release announcing the decision.  The 5th Circuit had previously granted a stay which allowed the invocations to go on while the case was on appeal.

UPDATE: This was a 2-1 decision. Judge Jolly filed an opinion dissenting in part.  He argued that the case needed to be sent back to the district court for additional fact finding.  He criticized the majority's opinion, saying in part:

Plaintiffs have produced considerable evidence showing that Judge Mack conducts his opening prayer and other religious ceremonies “in such a way as to oblige the participation of objectors.” ...  For the majority to find that there is no evidence of coercion, suggests, in my opinion, willful blindness and indisputable error....

[D]espite digging into the history books, the majority’s opinion comes up dry on historical precedent.... [And] the majority inaccurately presents recent Supreme Court precedent.

Friday, April 08, 2022

5th Circuit Hears Oral Arguments In Texas Courtroom Prayer Case

On Tuesday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Freedom From Religion Foundation v. Mack. (Audio of full oral arguments). In the case, a Texas federal district court held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain violates the Establishment Clause. (See prior posting.)  Last July, the 5th Circuit granted a stay pending appeal of the Texas district court's declaratory judgment order. (See prior posting.)

Tuesday, July 13, 2021

5th Circuit: Courtroom Invocations Do Not Violate Establishment Clause

In Freedom From Religion Foundation, Inc. v. Mack, (5th Cir., July 9, 2021), the U.S. 5th Circuit Court of Appeals granted a stay pending appeal of a Texas district court's declaratory judgment order which concluded that a a Justice of the Peace's program under which court sessions are opened with a prayer from a volunteer chaplain violates the Establishment Clause. (See prior posting.) Attendees may to step out of the courtroom before the ceremony if they wish. The appeals court held that official capacity claims under 42 USC §1983 are barred, and that FFRF's individual capacity claims are likely to fail. The court said in part:

The Supreme Court has held that our Nation’s history and tradition allow legislatures to use tax dollars to pay for chaplains who perform sectarian prayers before sessions. See Marsh v. Chambers, 463 U.S. 783 (1983). If anything, Judge Mack’s chaplaincy program raises fewer questions under the Establishment Clause because it uses zero tax dollars and operates on a volunteer basis....

It’s true that Marsh and Town of Greece involved a legislature’s chaplains, not a justice of the peace’s chaplains. But it’s unclear why that matters, given the abundant history and tradition of courtroom prayer.

Washington Times reports on the decision.

Thursday, January 24, 2019

Suit Over Forced Removal of Hijab To Enter Courthouse Is Dismissed

In Elqutt v. Regalado, (ND OK, Jan. 22, 2019), an Oklahoma federal district court dismissed without prejudice a suit by a Muslim woman who was required to remove her hijab to gain entry to the Tulsa County Courthouse. After setting off metal detectors, sheriff's deputies insisted that Suha Elqutt remove her hijab in front of male deputies. After extensive discussions, she was permitted to remove it in a nearby parking lot while crouching between parked cars with only female deputies present, though she claims men could have walked past her as well.   Dismissing her claim for damages for violation of her free exercise rights, the court held that defendants had qualified immunity because they would not have been put on notice by clearly established law that they were violating her constitutional rights. The court also denied her an injunction because she had not alleged a likelihood that she would return to the courthouse and face similar future actions.  Tulsa World reports on the decision.

Thursday, July 19, 2018

Australian Court Bans Niqab In Spectator's Gallery

In Australia, a judge in the Victoria Supreme Court has refused to allow the wife of a terrorism defendant to wear a niqab (a full-face veil) in the court's public spectator gallery during her husband's trial.  In The Queen v. Chaarani, (VSC, July 18, 2018), the court said in part:
... Australia is obviously a multicultural society and I agree that religious dress should be accommodated as much as possible, but the right of religious freedom and the right to participate in public life are not absolutes....
Criminal proceedings in the trial division of the Supreme Court are often highly stressful experiences, not only for the accused but for those close to the accused. Likewise for those close to any victims. As a consequence of that stress, incidents happen from time to time in court.... Spectators whose faces are uncovered are likely to appreciate that, if they misbehave, it will not be too difficult to establish their identity, even if they manage to get away from the court....
A requirement that spectators have their faces uncovered is not to force anyone to act immodestly.  First, the exposure of one’s face in a court room cannot reasonably be viewed as an immodest act: subjective views to the contrary cannot rule the day, or the management of a court room. Second, if someone feels strongly that it would be improper for them to uncover their face in court, they can choose not to attend. If that is Ms Al Qattan’s choice, arrangements will be made for live streaming of the proceedings to a remote facility within the court building so that she can still view the trial.
The Guardian reports on the decision.

Friday, May 18, 2018

Australian Appeals Court Upholds Refusal To Allow Testimony From Plaintiff Wearing Niqab

In the Australian state of New South Wales, the Court of Appeal in Elzahed v. State of New South Wales, (NWCA, May 18, 2018), rejected a Muslim woman's contention that she should have been permitted to testify in her civil suit against police officers while her face was fully covered by a niqab.  Plaintiff was suing for assault allegedly occurring during the execution of a search warrant. The court said in part:
There was no error in the primary judge’s ruling that the appellant could not give evidence with her face covered by a niqab. The appellant was a party in the case, not merely a witness. The appellant’s evidence was strongly contentious. The resolution of the case would require the primary judge to make findings about whether to accept the appellant’s evidence or the conflicting evidence of the NSW police officers. Viewing the appellant’s face while she was giving her evidence was capable of affecting the resolution of that conflict. The primary judge did not err in concluding that fairness to all parties required her to reject the appellant’s application.
The appeals court pointed out that plaintiff had not asked the trial judge for alternative arrangements such as testifying from behind a screen so that her face would be visible only to to some of the people in the courtroom. Reporting on the decision, Australian Associated Press  adds this background information:
Moutia Elzahed, who's married to jailed Islamic State extremist Hamdi Alqudsi, tried unsuccessfully to sue the state and federal governments over claims of police violence during a 2014 raid on their Sydney home....
Judge Audrey Balla in mid-2017 ordered Elzahed pay $250,000 in costs to the commonwealth and state governments responsible for the federal and state police officers involved in the 2014 raid.
In early May, Elzahed became the first person in NSW to be found guilty of refusing to stand for a judge in court after insisting she only stood for Allah when she appeared before Judge Balla.

Sunday, May 07, 2017

Courthouse Renovation Discovery Creates Church-State Concern

A church-state controversy may be in the making in Nelson County, Virginia where $5 million renovation of a century-old historic courthouse has uncovered a religious inscription in the courtroom.  Today's Lynchburg News & Advance reports that as four coats of paint were stripped from the wood structure resting on columns supporting a courtroom balcony, the inscription "Virtus — Keep God’s Commandments — Veritas" was revealed.  Historians say the inscription may date from the 1830's when newly-formed Protestant denominations used the courthouse for worship services.

Thursday, August 18, 2016

Defense Counsel's Prayers on Facebook Pose Concerns

Prayers posted on Facebook by an Ellis County, Texas defense attorney have come under scrutiny of trial judges after complaints by the county district attorney's office that running commentary on ongoing trials is included in his prayers.  As reported Tuesday by CBS DFW, prosecutors are concerned that jurors might come upon the posts during the trial  So far judges have not totally barred attorney Mark Griffith from posting prayers online, but they have ordered that the prayers not contain a running account of the trial. Griffith says he will appeal.

Tuesday, August 16, 2016

Texas AG Opinion OK's Courtroom Chaplains

Texas Attorney General Ken Paxton yesterday issued Attorney General Opinion No. KP-0109 (Aug. 15, 2016), responding to three Establishment Clause concerns.  The Opinion first concludes:
Courts do not violate the Establishment Clause by opening court proceedings with a statement such as, "God save the State of Texas and this Honorable Court."
It then moves to questions about the more controversial practice of a Texas justice of the peace who is also the county coroner.  As previously reported the judge created a volunteer chaplaincy program to help grieving family, friends and witnesses at death scenes to which the coroner is called.  To recognize these volunteer chaplains, they are also invited to give a brief prayer to open justice of the peace court proceedings. The state's Commission on Judicial Conduct had urged an end to these practices.  However, yesterday's AG opinion concluded that each of these practices is constitutional. A press release from First Liberty Institute discusses the AG opinion.

Monday, May 30, 2016

Judge Sentences Defendant To 12 Sundays of Baptist Services

Yesterday's Cincinnati Enquirer reports on the elaborate in-court discussion that led a Hamilton County, Ohio trial court judge to sentence defendant Jake Strotman, charged with attempted assault, to attend a local Baptist church for the next 12 Sundays.  He also paid $480 in court costs and $2800 in attorneys' fees.  The assault charge grew out of a brawl that developed outside a hockey arena between enthusiastic street preachers and hockey fans (including Strotman) who had been drinking at the game.  Strotman, a Catholic, is apparently happy with the sentence.

Friday, May 27, 2016

Appeals Court Upholds Saturday Murder Trial Despite Defendant's Religious Objection

In State v. Victor, 2016 La. App. LEXIS 1030 (LA App., May 26, 2016), a Louisiana state appeals court held that defendant's free exercise rights were not violated when the court refused to adjourn his second degree murder trial on Saturday, which defendant claimed was his Sabbath.  Defendant was on trial for the murder of his 8-year old stepson who died after a severe beating that was allegedly administered as discipline for stealing ice cream. In upholding on compelling interest grounds the trial court's refusal to adjourn for Saturday, the appeals court said in part:
the record reflects that the trial judge carefully considered defendant's concerns as well as his delay in raising this issue, including his failure to object when the prospective jury was advised numerous times of the possibility that they would be required to work on Saturday, his lack of a specific religious affiliation or particular church membership, the unavailability of the State's key expert witness the following week, and "the justice system as a whole," in denying defendant's request not to hold trial on Saturday.

Tuesday, April 05, 2016

Brazilian Court Trains Clergy As Mediators

Religion News Service reports on an experimental mediation program instituted by the courts in the Brazilian state of Goias.  In a program called "Mediar e Divino" ("To Mediate is Divine"), the court is training evangelical pastors, Catholic priests and Protestant ministers to mediate in family law cases and disputes among neighbors. Brazilian courts face massive backlogs of cases.  In Goias state alone, 800,000 new cases were filed last year.