Friday, October 21, 2016

Vatican Close To Agreement With China On Appointment of Bishops

Reuters reports today that the Vatican and the government of China are close to reaching an agreement on ordination of bishops. This would end a 60-year dispute over the authority of the Vatican in which the Chinese Communist Party has appointed bishops who often are not recognized by Rome while an underground Catholic Church continues to be loyal to the Vatican.  The Vatican may be set to recognize 4 of the 8 disputed bishops appointed by China. Of the other 4, two have children or girlfriends, and two head dioceses where there is a competing Vatican-appointed bishop. Pope Francis has made the negotiations with China a priority.  The agreement under discussion would allow local clergy to choose bishops, with the Pope making the final appointment and having a veto over the choices.  A large number of vacancies currently exist in dioceses in China.  The Vatican hopes that an agreement will also lead China to recognize the 30 bishops who currently refuse to be part of the government's Chinese Catholic Patriotic Association. [Thanks to Scott Mange for the lead.]

Defrauded Church's Conversion Claim Against Bank Is Dismissed

In Mt. Hope Universal Baptist Church, Inc. v. Bowen, (NY Kings Cty. Sup. Ct., Oct. 14, 2016), a New York state trial court dismissed a conversion claim brought by a church that was defrauded out of the proceeds of a life insurance policy.  In 1976, Rosetta Goodridge was the founding member of Mt. Hope Baptist Church.  She died in 2009, leaving a life insurance policy that named the church as beneficiary.  Goodridge's daughters and granddaughters fraudulently opened a bank account at Citibank in the name of Mt. Hope.  They then filed a claim with the insurance company and received the proceeds of the policy.  Among other claims, the church sued Citibank for conversion.  The court dismissed the action, holding that because Mt. Hope never had actual or constructive possession of the check, it had no cause of action for conversion. The court also held that the insurance company does not have a valid claim against Citibank for contribution.

Court Clarifies and Refuses To Narrow Injunction Against Federal Transgender Guidelines

As previously reported, in August a Texas federal district court issued a nationwide preliminary injunction preventing the federal government, particularly the Department of Education, from enforcing Guidelines issued earlier this year interpreting Title IX as barring discrimination by schools on the basis of gender identity. Now in State of Texas v. United States, (ND TX, Oct. 18, 2016), the court issued an opinion responding to a request for clarification and narrowing of the injunction.  The court refused to limit the injunction to the 13 states that are plaintiffs in the lawsuit, saying:
A nationwide injunction is necessary because the alleged violation extends nationwide.
The court also clarified that the injunction does not impact the EEOC's functions or activities other than preventing it from using the challenged Guidelines to argue that the definition of  "sex" as it relates to intimate facilities includes gender identity. The court ordered additional briefing by the parties on whether the Guidelines are enjoined in total or whether the principle of severability applies to them; whether the injunction impacts Title VII investigations when teachers or staff and students use the same bathrooms; and whether the injunction applies to activities of OSHA or the Department of Labor.  Texas Attorney General Ken Paxton issued a press release on the decision.

Thursday, October 20, 2016

New Polling Results On Candidate Morality and Religion

PRRI yesterday released polling results on voters reactions to immoral conduct by political candidates and to the importance of candidates' religious beliefs. It reports:
Across the political spectrum, Americans today are less likely to believe personal transgressions prevent public officials from performing their duties well. Seven in ten (70%) Republicans and more than six in ten Democrats (61%) and independents (63%) say public officials can behave ethically in their professional roles even if they acted immorally in their personal life. Notably, in 2011 only 36% of Republicans agreed, compared to nearly half of Democrats (49%) and independents (46%)....
Fewer Americans today say it is important that the candidate they are supporting for president has strong religious beliefs. Currently, a majority of the public says it is either very (29%) or somewhat (29%) important that a candidate has strong religious beliefs. Four in ten (40%) Americans say this is not too important or not at all important to them in making their voting decision. In 2011, nearly two-thirds (66%) of the public said it was important to them that the candidate they were supporting has strong religious beliefs, including 39% who said it was very important....
Among every religious group fewer say that having strong religious beliefs is a priority in a candidate for president, but white evangelical Protestants have shifted their views more than any other group. Today fewer than half (49%) of white evangelical Protestants say it is very important that a candidate have strong religious beliefs, while nearly two-thirds (64%) expressed this view in 2011. Today, roughly one-third (34%) of Catholics and one in five (20%) white mainline Protestants say strong religious beliefs are very important in a candidate. In 2011, four in ten (40%) Catholics and nearly three in ten (29%) white mainline Protestants said this quality was very important in a candidate for president. Even religiously unaffiliated Americans are less likely to say that strong religious beliefs are very important today than in 2011 (7% vs. 16%, respectively).

Apartment Owner Sued Over Rental Discrimination Against Muslims

The New Jersey Division on Civil Rights yesterday announced the filing of a lawsuit in state court charging the owner of an apartment building with discriminatory refusal to rent to Muslims. The complaint (full text) in Porrino v. Greda, (NJ Super., filed 10/19/2016), details the Division's use of testers after receiving a complaint from a Muslim woman.

Wednesday, October 19, 2016

Suit Challenges University's Anti-Harassment Policy

A suit was filed this week in an Iowa federal district court challenging the constitutionality of Iowa State University's anti-harassment policy and the required online anti-harassment training program for all students and staff.  The Student Code of Conduct defines discriminatory harassment as:
unwelcome behavior directed at an individual or group of individuals based on race, ethnicity, pregnancy, color, religion, national origin, physical or mental disability, age, marital status, sexual orientation, gender identity, genetic information, status as a U.S. veteran (disabled, Vietnam, or other), or other protected class when the behavior has the purpose or effect of substantially interfering with the student's education or employment by creating an intimidating, hostile, or demeaning environment.
Harassment may include some instances of First Amendment protected speech.  The complaint (full text) in Dunn v. Leath, (SD IA, filed 10/17/2016), alleges that the policy violates students' free speech, due process, equal protection and free exercise rights. The complaint reads in part:
131. Plaintiff seeks to exercise his sincerely held religious beliefs by discussing and advocating for his Christian faith and his Christian viewpoint on marriage, sexuality, abortion, and other issues in controversy.
132. Defendants’ promulgation and enforcement of each of the policies complained of herein substantially burden Dunn’s free exercise of religion by preventing and chilling him from sharing his religious views.
... 134. This policy is neither neutral nor generally applicable because it punishes speech critical of another religious belief or deemed offensive to listeners because of their religious beliefs while not sanctioning other speech.
ADF issued a press release announcing the filing of the lawsuit.

Court Approves Contentious Annexation By Kiryas Joel

As reported by the New York Law Journal, a New York state trial court judge last week, in a 97-page decision, upheld actions by the municipalities involved to allow the Village of Kiryas Joel-- inhabited almost entirely by Satmar Hasidic Jews-- to annex 164 acres of land from the Town of Monroe. Respondents contended that opposition to the annexation was motivated by anti-Semitism. Petitioners argued that the annexation reflected Kiryas Joel's desire to engage in religious segregation and to encourage an in-migration of residents from the Hasidic Jewish community in Brooklyn.  While much of the court's opinion dealt with the adequacy of the environmental review involved, the court also dealt with Establishment Clause claims and allegations of discrimination.  In Village of South Blooming Grove v. Village of Kiryas Joel Board of Trustees, (Orange Cnty. Sup. Ct., Oct. 11, 2016), the court held that the individual and organizational challengers lack standing to raise an Establishment Clause claim, and even if they had standing their claim would fail on the merits, saying in part:
The fact that most of the Village's residents belong to the same religious community does not extinguish the secular purpose of the annexation.
The court also rejected petitioners' claim that the annexation violated a provision in the Town of Monroe Ethics Code that prohibits causing voluntary segregation, saying that this is a provision that only applies to recruitment of personnel.

Tuesday, October 18, 2016

France's Le Pen Would Extend Ban On Religious Symbols In Public

In France, right-wing National Front Party leader Marine Le Pen told a TV station this week that if she is elected President next year, she will extend to all public places the ban on "conspicuous religious symbols" like Muslim headscarves that now applies to public schools. As reported today by New Europe, Le Pen says the ban will include the kippah (skullcap) worn by many observant Jews.  She explained:
It is clear that kippahs are not the issue within our country. But for the sake of equality, they should be prohibited. If I requested to ban solely Muslim attire, people would slam me for hating Muslims.
I know it’s a sacrifice, but I think the situation is too serious these days… I think every French person, including our Jewish compatriots, can understand that if we ask them for a sacrifice in order to help fight against the advance of this Islamic extremism… they will make the effort, they will understand, I am absolutely convinced because it will be in the best interests of the nation.
The French Jewish community has condemned Le Pen's proposal. Washington Times surveys Le Pen's chances in the election.

Court Denies Preliminary Injunction In Church's Challenge To State Transgender Nondiscrimination Laws

In Fort Des Moines Church of Christ v. Jackson, (SD IA, Oct. 14, 2016), an Iowa federal district court refused to issue a preliminary injunction to bar enforcement against a church of  provisions of the Iowa Civil Rights Act and the Des Moines City Code.  The laws prohibit discrimination on the basis of gender identity in places of public accommodation. Both statutes exempt religious acts of religious institutions.  The church sued after the Iowa Civil Rights Commission issued a guide stating that the anti-discrimination provisions may apply to non-religious activities of a church that are open to the public. The church wants to publicize on its website and in its church bulletin its policy of limiting its rest rooms on the basis of anatomy as identified at birth or by one's original birth certificate.  The policy includes the following rationale:
This policy is consistent with and required by God’s Word, which sets forth the distinctiveness, complementariness and immutability of the male sex and female sex as Jesus Christ himself taught in Matthew 19:4. God’s Word also teaches that physical privacy and personal modesty spring from the physical conditions and unique characteristics of the sexes.
While refusing to dismiss the lawsuit, the court also denied a preliminary injunction because plaintiff is unlikely to succeed on the merits. The court rejected plaintiff's vagueness challenge, and rejected its as-applied free speech challenge because it is unlikely that the laws would ever apply to plaintiff's activities. All of the activities the church indicated it engaged in were religious in nature.  The court rejected plaintiff's free exercise challenge because the anti-discrimination provisions are neutral laws of general applicability. (See prior related posting.)

Suit Charges FLDS Towns With Discrimination Against Non-FLDS Members

The FLDS-controlled towns of Colorado City, Arizona and Hilldale, Utah, along with the FLDS Church, were sued last week in federal district court for discriminating against non-members of the Church. The allegations in the complaint (full text) in Prairie Farms. L.L.C. v. Town of Colorado City, (D AZ, filed 10/12/2016) are summarized in a news article from the Phoenix New Times:
Alleged illegal arrests by a cult-run police force have spurred a new federal lawsuit against two polygamous towns on the Arizona-Utah border.
Three businessmen who are former members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints allege ... that officials in the rural towns ... violated their constitutional rights. They claim the officers with the Colorado City/Hildale marshal's office arrested two of them for trespassing on land they were leasing, that the marshal's office failed to investigate reports of vandalism on the leased land, and that Colorado City officials refused to provide water and garbage services to the property.

Sunday, October 16, 2016

Recent Articles of Interest

From SSRN:
From SmartCILP:
  • Special Issue: Islamic Law: Its Sources, Interpretation, Its Economics, Finance and the Translation Between It and Laws Written in English. Articles by Rafat Y. Alwazna, Abdul-Hakim Al-Matroudi, Mustafa Shah, Ramon Harvey, Shafi Fazaluddin, Valentino Cattelan, Sami Al-Daghistani, Abbas Mehregan, Daniel Vazquez-Paluch, Fahad Al-Zumai, Mohammed Al-Wasmi and Hanem El-Farahaty. 29 International Journal for the Semiotics of Law 251-501 (2016).

European Court Rules On Jurisdiction In Annulment Action By Third Party

Last week, the Court of Justice of the European Union issued an interpretation of European Council regulations on judicial cooperation in civil matters in the context of an extremely unusual annulment action.  Edyta Mikołajczyk (EM) is heir to the estate of Zdzisława Czarnecka (ZC), first wife of Stefan Czarnecki (SC).  SC died apparently in 2012. ZC died in 1999.  SC had remarried in 1956, to Marie Louise Czarnecka (MLC). In a suit in Poland, EM brought an action to annul SC's second marriage to MLC, claiming that SC's first marriage to ZC had not been dissolved at the time of his marriage to MLC.  If successful, this would presumably mean that EM stands to inherit a larger portion of SC's estate than otherwise.  In Mikołajczyk v. Czarnecka, (CJEU, Oct. 13, 2016), the Court of Justice held that its regulation on recognition and enforcement of judgments in matrimonial matters applies to an action for annulment of marriage brought by a third party following the death of one of the spouses.  However, the Court of Justice went on to hold that under the jurisdictional provisions of the regulation, the annulment action should have been brought in France, where SC and MLC had lived, and not in Poland where EM resides. Law & Religion UK has more on the decision.

Recent Prisoner Free Exercise Cases

In Garner v. Muenchow, 2016 U.S. Dist. LEXIS 141335 (ED WI, Oct. 12, 2016), a Wisconsin federal district court dismissed an inmate's complaint that correctional officers treated Muslim inmates differently than others in access to vendor catalogs to order religious items and access to a Qur'an from the chapel.

In Annabel v. Michigan Department of Corrections, 2016 U.S. Dist. LEXIS 142269 (WD MI, Oct. 14, 2016), a Michigan federal district court dismissed a broad series of claims of mistreatment by a Jewish inmate, including harassment on the basis of his religion and interferences with his kosher diet.

In Hamilton v. Deputy Warden, 2016 U.S. Dist. LEXIS 142299 (SD NY, Oct. 13, 2016), a New York federal district court, while dismissing many claims, allowed a Muslim inmate to move ahead with his complaint against one defendant that he was denied access to religious services.

In Bullock v. Mitchell, 2016 U.S. Dist. LEXIS 142624 (WD NC, Oct. 13, 2016), a North Carolina federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that authorities were attempting to reclassify the Moorish Science Temple of America as a gang and its members as "security threat individuals."

In Wilcox v. Brown, 2016 U.S. Dist. LEXIS 142625 (WD NC, Oct. 13, 2016, a North Carolina federal district court dismissed an inmate's complaint that Rastafarian services were suspended.

Saturday, October 15, 2016

Suit Charges Jehovah's Witness Congregation With Negligence In Employing Sexual Attacker

The Salt Lake Tribune reports on a suit filed in Utah state court last Wednesday against a Roy, Utah, Jehovah's Witness congregation, church leaders, and the Watchtower Bible and Tract Society charging negligence in allowing a man with a history of inappropriate sexual behavior to become an instructor in the church. Plaintiff alleges that she was sexually attacked by the instructor at least three times.  She also charges that the Roy church created a judicial committee to investigate whether the girl engaged in inappropriate sexual behavior, forcing plaintiff and her parents to listen to a 4-5 hour recording of one of the purported sexual attacks on her.

Buddhist Center Can Pursue Misrepresentation and As Applied, But Not Facial, RLUIPA, Challenges [CORRECTED]

In Thai Meditation Association of Alabama v. City of Mobile, 2016 U.S. Dist. LEXIS 142651 (SD AL, Oct. 12, 2016), an Alabama federal magistrate judge recommended dismissing facial claims under RLUIPA by a Buddhist meditation center whose zoning approval was denied.  The court rejected facial RLUIPA equal terms, discrimination and substantial burden challenges, but allowed plaintiff to proceed on its "as applied" challenges under RLUIPA.  The magistrate judge also recommended allowing plaintiff to move ahead with a negligent misrepresentation claim growing out of a zoning official's assurances that the meditation center would be treated as a house of worship for zoning purposes and that planning approval rather than seeking  use variance was the proper procedure to follow.

9th Circuit Upholds Required Disclosures By Pregnancy Clinics

In National Institute of Family and Life Advocates v. Harris, (9th Cir., Oct. 14, 2016, the 9th Circuit Court of Appeals upheld California's FACT Act which requires licensed pregnancy counseling clinics to disseminate a notice on the existence of publicly-funded family planning services, including contraception and abortion.  Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed. The court affirmed the district court's denial of a preliminary injunction to three religiously-affiliated non-profits, rejecting free speech and free exercise objections. The court concluded that the required notice by licensed facilities is professional speech subject to intermediate scrutiny. UPI reports on the decision. [Thanks to Scott Mange for the lead.]

Friday, October 14, 2016

English Consistory Courts Deny Requested Headstone Inscriptions

In England, Consistory Courts are ecclesiastical courts with jurisdiction over Church of England property and churchyards.  Two recent Consistory Court opinions deny families' requests for inscriptions on tombstones.  Law & Religion UK reports on a September decision from the Diocese of Carlisle refusing to allow the addition of a Masonic symbol to a headstone, concluding it is in violation of Churchyard Regulations. In a second case, The Telegraph reported yesterday on a decision from the Diocese of Ely refusing to allow a sentimental statement from a wife on her husband's headstone. The court said: A memorial stone is not the right place for a statement about how members of the family feel about the deceased nor how they would address him or her were they still alive. Passages of scripture, which have a timeless quality, are to be preferred."

3rd Circuit Gives Muslim Inmate Victory On Retaliation and RFRA Claims

In Mack v. Warden, (3d Cir., Oct. 11, 2016), the U.S. 3rd Circuit Court of Appeals in a lengthy opinion gave an unusual victory to an inmate who claims that anti-Muslim harassment by two correctional officers caused him to refrain from praying while at his paid work assignment at a federal prison commissary.  He contends that he was terminated from his work assignment for orally complaining to a supervisor about the harassment.  The suit was filed pro se, and inmate Charles Mack lost at the trial court level.  However he prevailed on a number of his claims on appeal at which he was represented by law students from Duke University's Appellate Litigation Clinic.

One of the defendant officers slapped Mack on his back, sticking an "I Love Bacon" sign on him, and then threatened to have him fired when he later objected.  The appeals court held 2-1 that Mack's oral complaint to a prison guard about the mistreatment qualifies as a petition for the redress of grievances protected by the 1st and 14th Amendments.  It thus supports a 1st Amendment retaliation claim. Second the appeals court held unanimously that a claim for damages under RFRA (as opposed to RLUIPA) lies against individual officers for their ultra vires acts, even though a prison policy or regulation is not being challenged, and that the alleged conduct substantially burdened plaintiff's religious exercise. The court however refused to extend a Bivens damage remedy for 1st Amendment free exercise violations and also dismissed plaintiff's equal protection claim. Penn Live reports on the decision.