Monday, June 29, 2015

Texas AG, Critical of Obergefell, Issues Opinion On Religious Accommodation For Clerks and Judges

Texas Attorney General Ken Paxton issued a strong statement (full text) on Friday criticizing the U.S. Supreme Court's decision on same sex marriage, saying in part:
Today’s ruling by five Justices of the U.S. Supreme Court marks a radical departure from countless generations of societal law and tradition. The impact of this opinion on our society and the familial fabric of our nation will be profound. Far from a victory for anyone, this is instead a dilution of marriage as a societal institution.
What is most disturbing is the extent to which this opinion is yet another assault on the actual text of the U.S. Constitution and the rule of law itself....  The truth is that the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely-held religious beliefs about marriage.
Then on Sunday, Paxton issued an Attorney General's Opiinion (full text) on the right of public officials to assert religious objections to issuing marriage licenses or performing same-sex marriages. His statement (full text) accompanying the issuance of the opinion is a good deal more strident than the full opinion itself.  Paxton's statement says in part:
A ruling by the U.S. Supreme Court is considered the law of the land, but a judge-made edict that is not based in the law or the Constitution diminishes faith in our system of government and the rule of law.
Now hundreds of Texas public officials are seeking guidance on how to implement what amounts to a lawless decision by an activist Court while adhering both to their respective faiths and their responsibility to uphold and defend the U.S. Constitution. Here is where things currently stand:
Pursuant to the Court’s flawed ruling, the U.S. District Court for the Western District of Texas issued an injunction against the enforcement of Texas marriage laws that define marriage as one man and one woman and therefore those laws currently are enjoined from being enforced by county clerks and justices of the peace. There is not, however, a court order in place in Texas to issue any particular license whatsoever – only the flawed direction by the U.S. Supreme Court on Constitutionality and applicable state laws.
Importantly, the reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty
Paxton's opinion itself carefully provides that religious accommodation "may" be permitted:
A county clerk has a statutory right to delegate a duty to a deputy clerk, including theissuance of same-sex marriage licenses that would violate the county clerk's sincerely held religious beliefs. Regarding deputy clerks and other employees, state and federal employment laws allow them to seek reasonable accommodation for a religious objection to issuing same-sex marriage licenses. And under the Religious Freedom Restoration Acts, deputy clerks and other employees may have a claim that forcing the employee to issue same-sex marriage licenses over their religious objections is not the government's least restrictive means of ensuring a marriage license is issued, particularly when available alternatives would not impose an undue burden on the individuals seeking a license.... Importantly, the strength of any claim under employment laws or the Religious Freedom Restoration Acts depends on the particular facts of each case....
Factual situations may arise in which the county clerk seeks to delegate the issuance of same-sex marriage licenses due to a religious objection, but every employee also has a religious objection to participating in same-sex-marriage licensure. In that scenario, were a clerk to issue traditional marriage licenses while refusing to issue same-sex marriage licenses, it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution.
If instead, a county clerk chooses to issue no marriage licenses at all, it raises at least two questions. First, a clerk opting to issue no licenses at all may find himself or herself in tension with the requirement under state law that a clerk "shall" issue marriage licenses to conforming applications.
Moving then to the question of whether judges and justices of the peace may refuse on religious grounds to conduct same-sex marriage ceremonies, Paxton says in part:
Under the Religious Freedom Restoration Acts, justices of the peace and judges may claim that the government forcing them to conduct a same-sex wedding ceremony over their religious objection, when other authorized individuals have no objection, is not the least restrictive means of the government ensuring that the ceremonies occur, assuming that is compelling governmental interest. Again, the strength of any such claim depends on the particular facts.
The Houston Chronicle reports on developments.

Recent Articles of Interest

From SSRN:
From SmartCILP:

Sunday, June 28, 2015

Commentary: Justice Kennedy's Equal Protection Analysis In Obergefell

One of the most interesting and least-commented upon aspects of Justice Kennedy's majority opinion (see prior posting) in Obergefell v. Hodges , last Friday's marriage equality decision, is his treatment of appellants' equal protection arguments.  The traditional approach-- and that used by most lower courts in their same-sex marriage decisions--is to determine the level of scrutiny that should be given to laws that discriminate on the basis of sexual orientation.  Do such classifications deserve "strict" scrutiny, "heightened" scrutiny or does there merely need to be a "rational basis" for use of the classification?  Past Supreme Court decisions on LGBT rights have been particularly opaque on this question.

Early in his opinion, Justice Kennedy laid groundwork that might have been used to flesh out a decision on the appropriate level of scrutiny.  He reviewed the history of discrimination against gays and lesbians-- one of the factors that traditionally figures into a determination of whether heightened scrutiny is called for.  However when he gets to the discussion of equal protection, Justice Kennedy largely ignores that groundwork, mentiioning the history of discrimination only in passing. Instead he treats the equal protection clause as a provision that primarily serves to emphasize the correctness of the fundamental-right-to-marriage conclusion that he has already reached.  That is, unlke most past cases in which substantive due process arguments were made largely to emphasize the severity of the denial of equal protection, here the roles of the two clauses are reversed. Justice Kennedy says in part:
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.  The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right....
The Court’s cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause....
Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged....
It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.  And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.
Justice Kennedy thus muddys the water even more as to the test for when discrimination against gays and lesbians, outside the context of marriage, violates the equal protection clause.    He also implicitly suggests that future governmental action burdening in some fashion the right to same-sex marriage should be tested primarily under the due process clause.  Thus if states enact laws permitting business owners with religious objections to refuse to provide goods or services for a same-sex marriage, it would seem that the provision's constitutionality should now be tested not by whether the government has a compelling interest to treat same-sex marriages differently than other marriages, but rather by whether the governmental action places a substantial obstacle or undue burden on the liberty interest of the marriage partners.

Recent Prisoner Free Exercise Cases

In Jones v. Williams, (9th Cir., June 25, 2015), the 9th Circuit held that prison authorities are not entitled to qualified immunity on a Muslim inmate's cliam that he was ordered to cook pork loins as part of his job duties.  The court however dismissed claims that cooks added pork to a tamale pie, and that the grill cleaning method left residual pork grease on the grill.

In Speed v. Neal, 2015 U.S. Dist. LEXIS 81606 (ED MO, June 24, 2015), a Missouri federal district court dismissed a Muslim inmate's complaint that on one occasion he did not receive a non-pork tray. It also dismissed his claim for damages of $30 million because of failure to receive pre-dawn meals, a copy of the Qur'an, a place to congregate for prayer and a clock to tell the correct time for prayer.

In Koenig v. Maryland, 2015 U.S. Dist. LEXIS 81696 (D MD, June 23, 2015), a Maryland federal district court dismissed a Jewish inmate's claims that the kosher diet menu was made unattractive to discourage inmates from signing up for it, and that study sessions occur infrequently and religious texts are not available.

In Linares v. Department of Homeland Security, 2015 U.S. Dist. LEXIS 83379 (ND AL, May 28, 2015), an Alabama federal magistrate judge recommended that a Jewish Immigrations and Customs civil detainee be permitted to proceed with his claim that his free exercise rights were infringed by denial of kosher meals, Sabbath services and access to a rabbi, but recommended dismissal of his class action claims and claims for injunctive relief.  The federal district court (2015 U.S. Dist. LEXIS 82492, June 25, 2015) held that while the magistrate's recommendation was well taken, the suit should be dismissed without prejudice because plaintiff culd no longer be located.

Saturday, June 27, 2015

Suit Proceeds Claiming Admissions Denial Because of Religious Statements In Interview

In Buxton v. Kurtinitis, (D MD, June 25, 2015), plaintiff sued five employees of the Community College of Baltimore County (MD) alleging that he was unconstitutionally denied admission to the school's radiation therapy program.  Dustin Buxton claimed that he was denied admission because of his expression of religious belief during his admissions interview. A Maryland federal district court dismissed Buxton's free speech claim, concluding that the First Amendment does not protect speech expressed in an admissions interview from admissions consequences in a competitive process. However the court permitted Buxton to proceed with an Establishment Clause and and equal protection claim.

Friday, June 26, 2015

The Dissents In Today's Supreme Court Same-Sex Marriage Decision

Following up my earlier posting on Justice Kennedy's majority opinion today in Obergefell v. Hodges (the Supreme Court's decision deciding that states must permit and recognize same-sex marriage), here is a summary of the four dissents:

Chief Justice Roberts dissent (joined by Justices Scalia and Thomas) argued that the majority opinion was a return to the long-rejected judicial policy-making symbolized by the Lochner case:
[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. ...
The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition....
The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry.... In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policy making that characterized discredited decisions such as Lochner v. New York.... Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society....
Emphasizing his central theme, the Chief Justice ended his dissent with the following paragraph:
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
Justice Scalia's dissent (joined by Justice Thomas) makes a similar point in somewhat more strident language:
Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. ...
But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.
In making his point, Justice Scalia pointed out the unrepresentative character of the Supreme Court:
nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.
Justice Thomas' dissent (joined by Justice Scalia) included a lengthy historical critique of the majority's understanding of the term "liberty" in the due process clause, saying in part:
Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it. 
Justice Alito's dissent (which Justices Scalia and Thomas joined) included a more direct discussion than did the other opinions of the position of those who continue to oppose same-sex marriage:
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected.... We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
.... If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

Supreme Court Says States Must License and Recognize Same-Sex Marriage-- A Review of Justice Kennedy's Majority Opinion

Today in Obergefell v. Hodges, (Sup. Ct., June 26, 2015), in a 5-4 decision the U.S. Supreme Court held that the 14th Amendment's due process and equal protection clauses require states to license same-sex marriages and to recognize same-sex marriages lawfully licensed and performed in other states. Justice Kennedy wrote a rather tightly reasoned majority opinion which was joined by Justices Ginsberg, Breyer, Sotomayor and Kagan.  He began by tracing changes in the concept of marriage that have occurred over time, saying in part:
There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex. That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex.... 
The petitioners acknowledge this history but contend that these cases cannot end there.... Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment....
The history of marriage is one of both continuity and change.... For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman.... As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity....  As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned.... 
[T]he Court has long held the right to marry is protected by the Constitution... It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part.... In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond.... The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.
A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.... A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. ... A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.... Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order ...
Justice Kennedy expanded on the third of these premises:
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. ...
Justice Kennedy went on:
[B]y virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.... 
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied....
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other.... Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry....
Justice Kennedy then addressed the concerns of those who oppose same-sex marriage on religious grounds:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
Each of the 4 dissenting justices filed a separate dissent.  A later posting will review those.  UPDATE: Here is a posting summarizing the dissents.

Film Producer Says Its Ads For Comedy About U.S. Muslims Is Permitted Under New York MTA Revised Guidelines

As previously reported, in late April the New York Metropolitan Transportation Authority changed its policy on display advertising to exclude all ads of a political nature. Yesterday a lawsuit was filed on behalf of a movie production company that claims ads for its movie "The Muslims Are Coming!" was wrongfully rejected under that policy.  The complaint (full text) in Vaguely Qualified Productions LLC v. Metropolitan Transportation Authority, (SD NY, filed 6/25/2015), alleges that acceptance of ads for the film-- created by two American Muslim comedians-- was unconstitutionally delayed before the policy change, and then wrongfully rejected under the new policy because the ads are not political.  The complaint alleges in part:
55. With its Revised Policy, Defendants seeks to convert the MTA’s property from a designated public forum into a limited public forum....
57. In a limited public forum, strict scrutiny is accorded to restrictions on speech that fall within the designated category for which the forum has been opened. Restrictions on speech that fall outside that designated category must only be viewpoint neutral and reasonable.
58. VQP’s Advertisements fall within a designated category for which Defendants have opened the forum. Specifically, VQP’s Advertisements are “commercial advertising,”... because, in a manner consistent with VQP’s brand, the Advertisements “promote” and “solicit the sale” of VQP’s product, “The Muslims Are Coming!,” by promoting the underlying message of the film—that American Muslims are ordinary people.
A Muslim Advocates press release announced the filing of the lawsuit. Newsweek reports on the lawsuit.

Jury Awards Consumer Fraud Damages In Conversion Therapy Lawsuit

The Southern Poverty Law Center reported that a New Jersey state trial court jury yesterday awarded treble damages of $72,400 to a total of five plaintiffs who sued a provider of "conversion therapy" under the state's consumer fraud law. The award against JONAH (Jews Offering New Alternatives for Healing), its founder and a counselor, compensated plaintiffs for fees paid and for mental health counseling needed by one of the plaintiffs. The jury found that claims JONAH could change clients from gay to straight were fraudulent and unconscionable. In coming weeks the judge will also decide whether to cancel JONAH's business license. (See prior related posting.) SPLC's case docket furnishes links to all the pleadings and orders in the case as it proceeded through the court since it was filed in 2012.

Tribe Sues Over California Solar Project In Ancestral Lands

According to the Parker (AZ) Pioneer, on June 12 the Colorado River Indian Tribes filed suit in a California state court challenging the state's approval of a solar project near Blythe, Calif.  Invoking California's environmental quality act, the tribes say the the impact of the project was not adequately analyzed. This is one of ten solar projects that will cover 35,000 acres of tribal ancestral homeland.  The Parker Pioneer adds:
Historical and ancestral trails run through the land proposed for development (which lies about eight miles outside of the tribe’s reservation boundary) that were once used for physical and spiritual migration. The project site also house “burial grounds, grindstones, hammerstones, and petroglyphs” created by the tribes’ ancestors.

2nd Grade Teacher Sued For Intimidating Student Who Said He Did Not Believe In God

Yesterday's Fort Wayne (IN) Journal Gazette reported on a federal lawsuit filed last week by the Indiana ACLU on behalf of a 2nd grade student and his mother against the boy's teacher at Fort Wayne's Forest Park Elementary School.  According to the complaint, after the boy, identified only as A.B., had a playground discussion with a classmate whom he told he did not go to church or believe in God, the classmate complained to the teacher, Michelle Meyer. The teacher told A.B. she was very concerned about what he had done, and for three days required him to sit by himself at lunch and not talk to other students because he had offended them.  A.B. is now anxious and fearful about school, believing many teachers and students hate him, even though teachers subsequently told him he could believe what he wants.

The lawsuit only names the teacher personally as defendant, and not the school district.  According to WTHR News, the district released a statement saying that "It is clear that it is not the province of a public school to advance or inhibit religious beliefs or practices...."

Thursday, June 25, 2015

Supreme Court Holds Fair Housing Act Supports Disparate-Impact Claims

Today in a 5-4 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., (Sup. Ct., June 25, 2015), the U.S. Supreme Court held that disparate-impact claims, not just intentional discrimination claims, are cognizable under the federal Fair Housing Act.  In an opinion by Justice Kennedy, joined by Justices Ginsberg, Breyer, Sotomayor and Kagan, the court held that while the statute which bars discrimination in the sale or rental of housing because of race, color, religion, sex, handicap, familial status, or national origin supports challenges to policies that cause racial or other disparities, there are significant limitations on such claims, saying:
If the specter of disparate-impact litigation causes private developers to no longer construct or renovate housing units for low-income individuals, then the FHA would have undermined its own purpose as well as the free-market system.
Justice Kennedy went on for 5 pages discussing the required safeguards against inappropriate disparate-impact claims, saying in part:
An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest served by their policies. This step of the analysis is analogous to the business necessity standard under Title VII and provides a defense against disparate-impact liability....
It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapidated housing in our Nation’s cities merely because some other priority might seem preferable. Entrepreneurs must be given latitude to consider market factors. Zoning officials, moreover, must often make decisions based on a mix of factors.... The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in suburban communities.
Justice Alito wrote a dissenting opinon joined by Chief Justice Roberts and Justices Scalia and Thomas.  Justice Thomas also filed a separate dissent.

Case Challenging Library Conference Room Policy Settled

On Tuesday, a North Carolina federal district court entered a Stipulated Final Judgment (full text) in Liberty Counsel, Inc. v. County of Wake, North Carolina (ED NC, June 23, 2015) after the parties agreed to settle the case. In the case, plaintiff challenged the county library's conference room policy that permitted non-profit groups to use library conference rooms for cultural, civic and informal educational purposes, but not for religious instruction, religious services or religious ceremonies. (See prior posting.) According to Liberty Counsel's press release, in the settlement "the library agreed to remove all offending bans on religion." The court's order also awarded nominal damages of $100 to plaintiff, and retained jurisdiction to enforce other parts of the settlement agreement if necessary.

Religious Discrimination Claim Moves Ahead Against Loan Company Denying Entry To Woman Wearing Hijab

In Ali v. Advance America Cash Advance Centers Inc., (ED MI, June 24, 2015), a Muslim woman brought a discrimination lawsuit against an Inkster, Michigan financial services outlet that refused her entry under its policy that customers must remove sunglasses and hats before entering.  Plaintiff, who wanted to purchase a money order, was wearing a hijab.  A Michigan federal district court held that plaintiff's complaint did not allege racial discrimination under 42 USC 1981, nor did it allege national origin discrimination under Michigan's Elliott-Larsen Civil Rights Act.  However it did allege religious discrimination under the Michigan statute. The court refused to grant defendants summary judgment on this claim, holding that there remains a factual question regarding reasons for the policy.  Defendants claimed that it is a safety policy designed to deter criminal behavior and advance employee safety.  The policy only applies in the company's branches that lack bullet-resistant glass. Plaintiff claims that this reason is pretextual.

Islamic State Militants Destroy Two Historic Tombs In Palmyra, Syria

AP reported yesterday that in Syria, Islamic State militants have destroyed two historic mausoleums in or near their recently-captured historic city of Palmyra.  One was the grave of Shiite saint Mohammad Bin Ali, a descendant of Imam Ali who was the cousin of the Prophet Muhammad. The second was the grave of Sufi scholar Nizar Abu Bahaa Eddine.  IS radicals are Sunnis who view Shiites as heretics and who believe that visiting tombs and religious shrines amounts to idol worship. Syria's Ministry of Culture posted photos of the destruction. CNN has additional details.

Ohio Police Department Will Continue Hijab Ban

The Columbus, Ohio Police Division has decided to continue its ban on officers wearing headscarves, despite publicity earlier this year about a Somali-American Muslim recruit who dropped out of the department's police academy because of the ban on her wearing a hijab.  According to yesterday's Columbus Dispatch, Deputy Police Chief Michael Woods explained the decision:
We want to interact with all members of the community without a preconceived notion of who we are. We strive to be a nonpolitical, nonreligious organization.
The assistant city attorney representing the Police Division says that case law supports the continued headscarf ban, pointing to the 2007 Pennsylvania federal district court decision in Webb v. City of Philadelphia. (See prior posting).

Wednesday, June 24, 2015

California AG Need Not Process Unconstitutional Anti-Gay Ballot Proposal

In Harris v. McLaughlin, (CA Super. Ct., June 22, 2015), a California trial court judge entered a default judgment allowing California's attorney general to ignore the statutory requirement to prepare a circulating title and summary for a proposed anti-gay ballot measure that had been filed.  These steps are required before the proponent can attempt to obtain the required number of signatures. The measure, the so-called Sodomite Suppression Act, would have barred "sodomistic propaganda" and called for the killing of anyone who "willingly touches another person of the same gender for purposes of sexual gratification" (see prior posting). The court held that the proposal "is patently unconstitutional on its face" and that any action by the attorney general moving ahead with the proposal "would be inappropriate, waste public resources, generate unnecessary divisions among the public, and tend to mislead the electorate." Huntington Beach Independent reports on the decision.

Taxi Commission Rule Requiring Black Pants Violates Muslim Driver's Religious Freedom

In Naeem v. Metropolitan Taxicab Commission, (MO Cir. Ct., June 22, 2015), a Missouri trial court reversed a license suspension (which had previously been stayed by the court pending litigation) and fines that the St.Louis area taxicab commission had imposed on Muslim taxicab driver Raja Naeem who violated the commission's regulation requiring drivers to wear white shirts and black pants.  Naeem believes that his religion requires him to wear certain clothing, including white pants. The court held that the commission rule violates Naeem's religious liberty. As reported by the St. Louis Post-Dispatch, the Taxicab Commission had granted Naeem a compromise. He could wear a loose-fitting kurta instead of a shirt, if it was white and did not go below his thighs. However his pants or shalwar had to be black. The court held:
In the case at bar, Mr. Naeem's right to express his religious beliefs by his mode of dress is directly infringed by the Commission's dress code. The Missouri Constitution clearly prohibits such infringement. Further commentary would be superfluous.
The court also held that the regulation, even though a generally applicable rule, violates Naeem's First Amendment rights:
No interest other than esthetics is served by the uniform code....  Even under the reasoning of Smith... the regulation must fail. Wearing particular clothing as part of the practice of one's religion also implicates the First Amendment guaranty of freedom of speech. When both speech and religion are affected by a regulation, there must be a compelling justification. 

Obama Hosts White House Iftar Dinner

On Monday night, President Obama hosted the White House's annual Iftar dinner recognizing the importance of Ramadan to Muslims around the world. In his remarks (full text), the President gave special recognition to one guest, Samantha Elauf, the successful complainant in the U.S. Supreme Court's recent Abercrombie & Fitch decision on the right to wear a hijab at work. (See prior posting.) Speaking to the guests that included members of the diplomatic corps and Congress, government officials and invited young people, Obama also said in part:
 So tonight, we keep in our prayers those who are suffering around the world, including those marking Ramadan in areas of conflict and deprivation and hunger.  The people of Iraq and Syria as they push back on the barbarity of ISIL.  The people of Yemen and Libya, who are seeking an end to ongoing violence and instability.  Those fleeing war and hardship in boats across the Mediterranean.  The people of Gaza, still recovering from last year’s conflict.  The Rohingya in Myanmar, including migrants at sea, whose human rights must be upheld. 

Cert. Petition Filed In Challenge To Differential NY Child Protection Safeguards For Private Schools

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in U.L. v. New York State Assembly.  In the case, the U.S. Second Circuit Court of Appeals rejected 1st and 14th Amendment challenges to New York's statutory exclusion of private schools (including religious schools) from some of the state child protection requirements that are mandatory in public schools. (See prior posting.) [Thanks to Elliot Pasik for the lead.]

Tuesday, June 23, 2015

British Court Holds Jehovah's Witness Parent Body Vicariously Liable In Clergy Sex Abuse Case

A v. Trustees of the Watchtower Bible and Tract Society, (EWHC, June 19, 2015), involves claims against a Jehovah's Witness congregation (actually its successors) and the Jehovah's Witness parent body by a 29-year old woman who between the ages of 4 and 9 was sexually abused by Peter Stewart, a Jehovah's Witness ministerial servant. A judge on England's High Court (Queen's Bench) held the Watchtower Bible and Tract Society vicariously liable for the failure of the Elders in the congregation to take reasonable steps to protect claimant from Peter Stewart after they became aware in 1990 that he had sexually assaulted another child in the congregation. The court also held defendants vicariously liable for the sexual assault itself, saying:
Whether the abuse took place at or after book study at whoever's home, on field service, at Kingdom Hall or at the Convention, he was ostensibly performing his duties as a Jehovah's Witness ministerial servant. I am satisfied that the progressive acts of intimacy were only possible because he had the actual or ostensible status of a ministerial servant that meant no one who saw him questioned his being alone with the claimant.
Law & Religion UK has more on the decision.

Zoroastrians In Kurdistan Threaten To Sue Company Over Use of Sacred Text Name For Diapers

In the Kurdistan Region of Iraq, members of the Zoroastrian religious minority are threatening to bring a lawsuit against the Avesta Baby Diaper company.  Rudaw reported yesterday that "Avesta" is the name of Zoroastrian sacred scriptures and the word is holy to Zoroastrians.  The owner of the diaper company says he did not know of the religious connection; he chose the Kurdish name as a courtesy to Kurds. But now, he says, the brand name is popular with customers, and changing it would cause a major financial loss.  He adds that he would consider changing the name if he were compensated for the losses involved. The head of a Zoroastrian advocacy group says he believes the owner of the diaper company, a Muslim, chose the name deliberately.

5th Circuit Rejects RFRA Challenge To Contraceptive Mandate Accommodation For Religious Non-Profits

In East Texas Baptist University v. Burwell, (5th Cir., June 22,2015), the U.S. 5th Circuit Court of Appeals upheld the Obama administration's rules that allow religious non-profits to opt out of the Affordable Care Act's contraceptive coverage mandate by certifying their religious opposition and either notifying their insurer or plan administrator of their opposition, or furnishing the Department of Health and Human Services with the name and contact information for their insurer or administrator.  In either case, the insurer or administrator must then offer coverage directly.  Plaintiffs argued that this accommodation still violates their religious freedom rights under RFRA.  The court disagreed, saying in part:
Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith are those of third parties. Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise.
Slate reports on the decision.