Sunday, October 12, 2014

Withdrawal of Land From Uranium Mining Survives Establishment Clause Challenge

In Yount v. Salazar, (D AZ, Sept. 30, 2014), an Arizona federal district court held that the Secretary of Interior's withdrawal of more than 1 million acres of federal land surrounding Grand Canyon National Park from uuanium mining did not violate the Establishment Clause. While one of the government's purposes was "to protect against the impact of uranium mining on cultural and tribal resources," this was a proper secular purpose.

1999 E-Mail Urged Clinton To Invoke Talmudic Law As Lewinsky Defense

The New York Post  reported yesterday that among the final 10,000 documents released by the Clinton presidential library on Friday was a 1999 e-mail-- that eventually found its way to White House adviser Sidney Blumenthal-- urging Clinton to rely on the Jewish law definition of adultery in defending against charges growing out of his relationship with Monica Lewinsky. The e-mail that originated with a Long Island woman, who sent on an analysis of Talmudic law developed by Dartmouth Jewish Studies professor Susannah Heschel, read in part:
According to classical Jewish law, President Clinton did not commit adultery; adultery is defined as a married man having intercourse with a married woman, and Monica Lewinsky is single,

Recent Prisoner Free Exercise Cases

In Elizondo v. Livingston, 2014 U.S. Dist. LEXIS 141413 (ND T, Oct. 3, 2014), a Texas federal district court dismissed an inmate's complaint that for safety purposes he needed to be single celled or celled with someone of his same Jewish faith.

In Storm v. Reinke, 2014 U.S. Dist. LEXIS 141472 (D ID, Sept. 29, 2014). an Idaho federal district court dismissed an inmate's claim in a habeas corpus proceeding that, while on parole, his free exercise rights were curtailed when he was placed on sex offender caseload. The court concluded that the claim does not bear on petitioner's custody.

In Strickland v. Godinez, 2014 U.S. Dist. LEXIS 141863 (SD IL, Oct. 6, 2014), an Illinois federal district court permitted an inmate to proceed with his free exercise and RLUIPA claims that he is being denied Asatru group worship as well as individual Asatru ritual practices.

Enforcement of Israeli Child Support Order Does Not Violate Establishment Clause

In Jenkins v. Jenkins, (OH App., Oct. 3, 2014), an Ohio Court of Appeals rejected Establishment Clause and equal protection challenges to enforcement of a child support order issued by an Israeli court. While the Israeli civil family court cited Jewish law tradition that makes the father responsible for his daughter's essential support, it went beyond that and applied other considerations as well is setting support.

Collateral Estoppel Bars Title VII Religious Accommodation, But Not Retaliation, Claim

In Mathis v. Christian Heating & Air Conditioning, Inc., (ED PA, Oct. 7, 2014), plaintiff Paul Mathis, an atheist, was fired from his position as a sheet metal installer when he insisted on covering with tape his employer company's mission statement printed on the back of his identification badge. The statement read in part: "This company is not only a business, it is a ministry. It is set on standards that are higher than man’s own. Our goal is to run this company in a way most pleasing to the lord...." Mathis claimed that the mission statement was an attempt by the company to force its religious ideology on its employees.

In this Title VII action, a Pennsylvania federal district court held that Mathis was barred by collateral estoppel from proceeding with his Title VII claim of failure to accommodate his religious beliefs. In a prior state court worker's compensaton proceeding, the court held that Mathis had not shown any actual conflict between a sincere religious belief and the employer's requirement, nor had he requested an accommodation. Thefederal district court went on to hold, however, that Mathis was not barred by collateral estoppel from moving ahead with his claim under Title VII for unlawful retaliation against him for opposing what he saw to be religious discrimination.

Saturday, October 11, 2014

Muslim Waiter Alleges Religious Harassment

The New York Daily News reported Thursday on a lawsuit filed in a New York federal district court against the famous Peter Luger Steak House in Great Neck, Long Island by a Muslim waiter asserting a variety of grievances, including one of religious harassment.  The Bangladeshi-born employee, Altaf Chowdhury, alleged, among other things, that two managers tricked him into eating a pork hot dog, telling him it was chicken. Chowdhury says that after he discovered the true facts, he vomited ten times. The steak house says the claims lack merit.

Marriage Equality Proponents Win Victories In Nevada, Idaho, North Carolina

As previously reported, on Wednesday U.S. Supreme Court Justice Anthony Kennedy issued an order temporarily staying the 9th Circuit's  mandate invalidating same-sex marriage bans in Idaho and Nevada, even though only Idaho officials applied for the stay.  Later the same day, Justice Kennedy issued a second order (full text) vacating the portion of his order staying the 9th Circuit's decision as to Nevada, presumably allowing same-sex marriages to begin immediately there.Then yesterday, the full Court issued an order as to the Idaho case (full text) reading:
The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.
The 9th Circuit's decision affirmed the Idaho federal district court's decision invalidating Idaho's same-sex marriage ban.  However, because the 9th Circuit recalled its mandate ordering its affirmance effective immediately once the petition for a stay was filed with the Supreme Court, the parties are concerned that the decision by itself did not serve to dissolve the stay pending appeal of the district court's decision entered by the 9th Circuit in May. So yesterday the plaintiffs filed a motion (full text) to dissolve that stay, and (as reported by SCOTUblog) the 9th Circuit has called for a response by noon Monday, and a reply to that by 5:00 p.m. Monday. [Corrected chronology.]

Meanwhile, in General Synod of the United Church of Christ v. Resinger, (D NC, Oct. 10, 2014), a North Carolina federal district court on its own motion in a case challenging North Carolina's same-sex marriage ban held that the ban is unconstitutional as a matter of law.  In a brief opinion and order, the court pointed to the 4th Circuit's decision in Bostic v. Schaefer striking down Virginia's ban on same-sex marriage. (See prior posting.) The Charlotte Observer reports on the decision.

Wednesday, October 08, 2014

9th Circuit's Invalidation of Idaho and Nevada Same-Sex Marriage Bans Temporarily Stayed By Justice Kennedy

U.S. Supreme Court Justice Anthony Kennedy today temporarily stayed the 9th Circuit's mandate yesterday invalidating same-sex marriage bans in Idaho and Nevada. (Full text of order.) Even though only Idaho officials applied for the stay, Justice Kennedy's to stays the 9th Circuit's mandate in the Nevada case as well. Nevada officials had withdrawn their answering briefs in the 9th Circuit, conceding that discrimination against same-sex couples is unconstitutional.  Justice Kennedy's order calls for those opposing the bans to file a response by 5 p.m. tomorrow. NPR reports on Justice Kennedy's action.

European Court Says Violence Against Jehovah's Witnesses Violates Human Rights Convention

In Begheluri and Others v. Georgia, (ECHR, Oct. 7, 2014), in a Chamber Judgment, the European Court of Human Rights held that numerous incidents of violence against Jehovah's Witnesses, even when carried out only by private individuals, violated Articles 3 (freedom from inhuman or degrading treatment) and 9 (freedom of conscience and religion) of the European Convention on Human Rights because of the government's indifference and failure to protect those attacked.
... [T]he Court concludes that the relevant authorities were ineffective in preventing and stopping religiously motivated violence. Through the conduct of their agents, who either participated directly in the attacks on Jehovah’s Witnesses or by their acquiescence and connivance into unlawful activities of private individuals, the Georgian authorities created a climate of impunity, which ultimately encouraged other attacks against Jehovah’s Witnesses throughout the country. Furthermore, by an obvious unwillingness to ensure the prompt and fair prosecution and punishment of those responsible, the respondent Government failed to redress the violations, thereby neglecting the inherent preventive and deterrent effect in relation to future violations against Jehovah’s Witnesses.
... All of the above leads the Court to conclude that the Government simply declined to apply the law to protect the applicants. It therefore establishes that Article 3 of the Convention has been violated....
... [S]everal violent attacks took place with the direct participation of various public officials or with their connivance and acquiesence. As to the adequacy of the response, the applicants’ religious gatherings were violently disrupted on a large scale, their religious literature was confiscated and burnt, and their homes were ransacked. Having been treated in that way, the applicants were subsequently confronted with total indifference and a failure to act on the part of the authorities, who, on account of the applicants’ adherence to a religious community perceived as a threat to Christian Orthodoxy, took no action in respect of their complaints.... The authorities’ negligence opened the doors to widespread religious violence throughout Georgia against Jehovah’s Witnesses. The applicants were thus led to fear that they would be subjected to renewed violence at each fresh manifestation of their faith.
... [T]hrough their involvement, connivance or at least acquiescence, the relevant authorities failed in their duty to take the necessary measures to ensure that Jehovah’s Witnesses were able to exercise their right to freedom of religion.... The Court thus concludes that the State’s failures in connection with the circumstances concerning the Jehovah’s Witnesses and the practice of their religion, seen as a whole, resulted in a violation of Article 9 of the Convention...
Art. 3 violations were found as to 32 applicants and Art. 9 violations were found as to 88.  The court also issued a press release summarizing the decision. Chamber Judgments are appealable to the Grand Chamber.

9th Circuit: Same-Sex Marriage Bans In Idaho and Nevada Are Unconstitutional

In Latta v. Otter, (9th Cir., Oct. 7, 2014), a 3-judge panel of the U.S. 9th Circuit Court of Appeals held unanimously that laws in Idaho and Nevada that prohibit same-sex marriage and recognition of same-sex marriages performed elsewhere violate the Equal Protection Clause of the 14th Amendment because they discriminate on the basis of sexual orientation. Judge Reinhardt, who wrote the court's opinion, also filed a concurring opinion arguing that the bans also infringe plaintiffs' fundamental right to marriage protected by the 14th Amendment's due process clause.  Judge Berzon wrote a concurring opinion holding that the bans also amount to unconstitutional discrimination on the basis of gender.

A mandate issued by the 9th Circuit yesterday evening decreed that its decision takes effect immediately.

Reporting on the decision, Lyle Denniston at SCOTUSblog says that the decision is expected to control pending challenges to similar laws in Alaska, Arizona and Montana-- all in the 9th Circuit.

Bangladeshi Cabinet Minister Fired Over Anti-Hajj Remarks

In Bangladesh last week, the ruling Awami League party dismissed Post and Telecommunication Minister Abdul Latif Siddique from the cabinet after he made unusually critical remarks about the tradition of the hajj. Yesterday's International Policy Digest reports that while in New York, exchanging views with expatriates, Siddique said:
I am dead against hajj. Hajj costs a substantial amount of manpower. About two million people are now in Saudi Arabia to perform Hajj. These people have no work, no production. [They are] only causing reduction [in wealth]. [They are] only having meals [inside the country] and spending money [abroad].
Siddique's remarks led to 19 court cases being quickly filed against him for hurting religious sentiment.

District Court Carries Out Supreme Court's Contraceptive Coverage Decision In Conestoga

The U.S. Supreme Court's Hobby Lobby opinion handed down last June also applied to the companion case of Conestoga Wood Specialties Corp. v. Burwell.  Since the 3rd Circuit in Conestoga had denied a preliminary injunction against enforcement of the contraceptive coverage mandate (see prior posting), the Supreme Court reversed the 3rd Circuit and remanded the case for further proceedings. Last week in Conestoga Wood Specialties Corp. v. Burwell, (ED PA, Oct. 2, 2014), the federal district court, in light of the Supreme Court's decision, issued a permanent injunction barring the government from enforcing the contraceptive coverage mandate against Conestoga as to those contraceptive services to which the company and its owners object on religious grounds. The court noted that if the proposed rules creating an accommodation for businesses asserting a religious objection are adopted, the government reserves the right to enforce the accommodation against Conestoga. Christian News reports on the court's action.

Tuesday, October 07, 2014

Supreme Court Hears Oral Arguments In Prison Beard Case; Full Transcript Available

The U.S. Supreme Court today heard oral arguments in Holt v. Hobbs, a case in which a Muslim inmate seeks for religious reasons to grow a one-half inch beard, in violation of Arkansas prison grooming rules. The prisoner asserts that RLUIPA affords him that right.  The transcript of the full oral argument is available from the Supreme Court's website. SCOTUSblog also has a lengthy report on the oral argument, saying:
The Supreme Court on Tuesday sent a blunt message to prison officials planning a policy that limits the religious freedom of inmates:  it would be important to have a good reason for the restriction before it gets into court.  Trying to bolster the rationale at the lectern is not a promising strategy.
A lawyer for Arkansas prison officials found that out in two quick exchanges with Justice Samuel A. Alito, Jr., that came close to collapsing his case.

Court Allows NYC Muslim Bus Driver To Move Ahead With Challenge To Headwear Policy

In Muhammad v. New York City Transit Authority, (ED NY, Sept. 30, 2014), a New York federal district court denied the Transit Authority's motion for summary judgment in a suit filed against it by a female Muslim bus driver who was reassigned to a less desirable position after she refused to remove her khimar or cover it with a Transit Authority uniform cap. Originally filed in 2004, the lawsuit alleges violations of Title VII and the First Amendment. The court concluded that a reasonable jury could find that the Transit Authority failed to offer plaintiff a reasonable accommodation of her religious beliefs. It also concluded that plaintiff had presented a prima facie case of disparate impact under Title VII and religious discrimination in violation of the First Amendment. Two years ago, the Transit Authority settled a parallel suit brought against it by the U.S. Department of Justice. (See prior posting.)

Pending Lawsuit In Spain Challenges Award of State Medals To Icons

The Wall Street Journal reported yesterday on a lawsuit filed in Spain earlier this year challenging the odd practice of awarding state medals to Roman Catholic icons.  The suit was triggered by the latest example-- the presentation of Spain’s Gold Medal of Police Merit last April to a statue named Virgin del Amor (Our Most Holy Mary of Love) located in a church in the city of Malaga. The state award is supposed to go to a member of the police force who suffered injury or death in the line of duty. In announcing the award last February, the Interior Ministry praised the icon "for sharing police values such as dedication, caring, solidarity and sacrifice." The lawsuit, filed in Spain's National Court, was brought by Jorge García González, head of the Movement Towards a Secular State. Officials say such awards merely recognize long-standing ties between Catholic lay communities and the police. An April article in The Guardian has additional background.

Suit Accuses Author Nicholas Sparks of Discrimination Against Jewish-Quaker School Headmaster

Times of Israel reports on a lawsuit filed last week against popular author Nicholas Sparks by the fired head of The Epiphany School of Global Studies. The K-12 school in New Bern, North Carolina was founded by Sparks. The suit claims that Sparks and other members of the school's board engaged in a campaign to humiliate and defame plaintiff Saul Hillel Benjamin by displaying contempt for his Jewish heritage and Quaker faith. The Oct. 2 lawsuit was filed in North Carolina federal district court.

State Trooper Sued Over Proselytizing After Traffic Stop

Huffington Post reported yesterday on a federal lawsuit filed last month against an Indiana State Police Trooper for proselytizing a driver after stopping her for a traffic violation. The complaint (full text) in Bogan v. Hamilton, (SD IN, filed 9/23/2014), alleges that after stopping driver Ellen Bogan and issuing her a warning ticket for speeding, Trooper Brian Hamilton asked Bogan whether she had a home church and had accepted Jesus as her savior. He then gave her a pamphlet from a Cambridge City, Indiana Baptist church. The suit asks for damages alleging that the trooper's coercive questioning and proselytizing violated the First Amendment.

More Certiorari Denials From SCOTUS Yesterday

Yesterday the U.S. Supreme Court issued it usual long beginning-of-term list of cases in which it is denying review. (Order List). In addition to the already widely reported denial of certiorari in same-sex marriage cases from five states (see prior posting), the Court also denied certiorari in the following cases of interest:
  • Mehanna v. United States, (Docket No. 13-1125). At issue was whether a citizen's political or religious speech may constitute provision of material support or resources to a Foreign Terrorist Organization. (1st Circuit's opinion in the case.)
  • Freshwater v. Mount Vernon School District, (Docket No. 13-1311). In the case, the Ohio Supreme Court upheld the firing of a middle school science teacher for insubordination in failing to comply with orders to remove religious materials from his classroom. (See prior posting.)
  • Pittman-Bey v. Celum, (Docket No. 13-10031). In the case, the 5th Circuit held that defendants had qualified immunity in a suit by a Muslim inmate who was not allowed to participate in Ramadan activities without first having participated in Jumu'ah services. (See prior posting.)

Monday, October 06, 2014

Supreme Court Denies Review In Same-Sex Marriage Cases From 5 States

The U.S. Supreme Court today denied certiorari in seven same-sex marriage cases from 5 states that had been decided by various circuit courts. (Order List). All of the Circuit Court decision had invalidated bans on same-sex marriage and/or recognition of same-sex marriages performed elsewhere. The cases are:

Herbert v. Kitchen (Docket No. 14-124) (Utah)
Smith v. Bishop (Docket No. 14-136) (Oklahoma)
Rainey v. Bostic (Docket No. 14-153) (Virginia)
Schaefer v. Bostic (Docket No. 14-225) (Virginia)
McQuigg v. Bostic (Docket No. 14-251) (Virginia)
Bogan v. Baskin (Docket No. 14-277) (Indiana)
Walker v. Wolf (14-278) (Wisconsin)

AP reports on the Court's action.

Red Mass and Modernized Website Herald Opening of Supreme Court's 2014 Term

The Supreme Court's new term opens today.  To mark the occasion, the annual Catholic Red Mass was held yesterday in Washington's Cathedral of St. Matthew the Apostle.  According to the Legal Times, four of the Court's six Catholic Justices (Roberts, Scalia, Kennedy, Thomas) and two of its three Jewish Justices (Breyer and Kagan) attended. So did a number of D.C. lower court judges.

Tomorrow the Court will hear oral arguments in a religious accommodation case-- Holt v. Hobbs.  At issue is whether the Religious Land Use and Institutionalized Persons Act permits Arkansas to bar a Muslim prison inmate from growing a one-half inch beard. (See prior related posting.) All the briefs filed in the case are available from SCOTUSblog.

The Court usually issues a long list of certiorari denials on its first day of the term, and might grant review in additional cases as well.  Among the most closely watched are a number of petitions for review in same-sex marriage cases.

The Court also begins the Term displaying a revamped website with a modernized look and improved navigation features. (Court press release.)