SEC Interprets Terms In Securities Laws To Include Same-Sex Marriages

The Securities and Exchange Commission on June 19 issued Release No. 33-9850 (full text) formally interpreting the terms "spouse" and "marriage" in the federal securities laws and rules to include same-sex spouses and same-sex marriages where the couple is lawfully married under state law, regardless of their domicile.

After Policy Change, Court Dissolves Injunction Forcing Carrying of Anti-Islam Bus Ads

As previously reported, in April a New York federal district court granted a preliminary injunction to a pro-Israel advocacy group requiring the New York Metropolitan Transit Authority to accept the group's anti-Islam ad for display on the back of New York City buses. The controversial ad declared that "killing Jews" draws Muslims closer to Allah. The MTA responded to the court order by changing its policy and barring all ads of a political nature.  Now in American Freedom Defense Initiative v. Metropolitan Transit Authority, (SD NY, June 19, 2015), the federal district court granted the MTA's motion to vacate the preliminary injunction, finding that the new policy has rendered the preliminary injunction moot.  The court said in part:

In this case, the only conduct that the Court previously enjoined as unconstitutional was the defendants’ exclusion of the Killing Jews ad under the “incitement of violence” standard.  The defendants are now only excluding the Killing Jews ad under the New Policy banning political ads, a policy they assert that they have no plans of revising.... Thus, the defendants have ceased the conduct that the Court identified as unconstitutional....

[I]t is likely that the MTA’s exclusion of all political ads has converted its advertising space from a designated public forum to a limited public forum or a nonpublic forum.

Raw Story reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

• Christine A. Corcos, Seeing it Coming Since 1945: State Bans and Regulations of 'Crafty Sciences' Speech and Activity, (37 T. Jefferson L. Rev. 39 (2014)).
• Milad Haghani, Iran Denies Education Rights to Bahá’ís, (Western Journal of Legal Studies, Vol. 4, No. 1, 2014).
• Tipu Salman Makhdoom, Can Legal Fiction Overcome Religious And Constitutional Locks? Death Penalty: A Pakistani Perspective, (July 1, 2014).
• Vito Breda, Over the Secular Ridge of Human Wants: The Constitutional Legitimacy of Secular-State Funding of Religious Education in Australia and Europe, (June 16, 2015).
• Patrick Talbot, Same-Sex Marriage and Religious Liberty Clashes in the U.S.: (An American Constitutional Challenge), (Anthology on Religious Freedom by Center of Ethics and Socio-religiosity Studies Petra Christian Univesity (PCU), Forthcoming).
• Margaret F. Brinig, Two Treatments of Pluralism: Canada and the United States, (Notre Dame Legal Studies Paper No. 1517, June 2015).
• Margaret F. Brinig, Religion and Child Custody, (Notre Dame Legal Studies Paper No. 1518, June 2015).
• Maura I. Strassberg, Scrutinizing Polygamy: Utah’s Brown v. Buhman and British Columbia’s Reference Re: Section 293, (Emory Law Journal, Vol. 64, p. 1815, 2015).
• Sarah Adams-Schoen, Land Use Law Update: Will Reed v. Town of Gilbert Require Municipalities Throughout the Country to Rewrite Their Sign Codes?, (29 Municipal Law Journal 16 (Winter 2015)).

From SmartCILP:

• Janet R. Decker & Kari A. Carr, Church-State Entanglement at Religiously Affiliated Charter Schools, 2015 Brigham Young University Education & Law Journal 77-105.
• Lucien J. Dhooge, Public Accommodation Statutes and Sexual Orientation: Should There Be a Religious Exemption for Secular Businesses?, 21 William & Mary Journal of Women & the Law 319-378 (2015).
• Robin Fretwell Wilson & Anthony Michael Kreis, Embracing Compromise: Marriage Equality and Religious Liberty in the Political Process, [Abstract], 15 Georgetown Journal of Gender & the Law 485-541 (2014).

Senate Version of Defense Authorization Act Passes--Several Provisions On Religion In the Military

As reported by U.S. News, last Thursday the U.S. Senate by a vote of 71-25 passed its version of H.R.1735, the National Defense Authorization Act for Fiscal Year 2016 (full text).  The bill now goes to conference with the House that passed its own version last month.  The Senate bill includes several provisions relating to religion in the armed forces:

• Section 505: (a) AUTHORITY.—Section 1253 of title 10, United States Code, is amended by adding at the end the following new subsection:
   ‘‘(c) EXCEPTION FOR CHIEFS OF CHAPLAINS AND DEPUTY CHIEFS OF CHAPLAINS.—The Secretary of the military department concerned may defer the retirement under subsection (a) of an officer serving in a general or flag officer grade who is the Chief of Chaplains or Deputy Chief of Chaplains of that officer’s armed force. Such a deferment may not extend beyond the first day of the month following the month in which the officer becomes 68 years of age.’’.
  
•  Section 524: (a) FINDINGS.—Congress finds the following:
  (1) The United States military includes individuals with a variety of national, ethnic, and cultural backgrounds that have roots all over the world.
  (2) In addition to diverse backgrounds, members of the Armed Forces come from numerous religious traditions, including Christian, Hindu, Jewish, Muslim, Sikh, non-denominational, nonpracticing, and many more.
  (3) Members of the Armed Forces from diverse backgrounds and religious traditions have lost their lives or been injured defending the national security of the United States.
  (4) Diversity contributes to the strength of the Armed Forces, and service members from different backgrounds and religious traditions share the same goal of defending the United States.
  (5) The unity of the Armed Forces reflects the strength in diversity that makes the United States a great Nation.

(b) SENSE OF CONGRESS.—It is the sense of Congress that the United States should—
(1) continue to recognize and promote diversity in the Armed Forces; and
(2) honor those from all diverse backgrounds and religious traditions who have made sacrifices in serving the United States through the Armed Forces.

•  Section 829: The Department of Defense may not preclude a non-profit organization from competing for a contract for religious related services on a United States military installation. 

Recent Prisoner Free Exercise Cases

In Robinson v. Jackson, (6th Cir., June 15, 2015), the 6th Circuit held that vegetarian meals satisfied an inmate's need for a Halal diet.

In Mauwee v. Palmer, 2015 U.S. Dist. LEXIS 77830 (D NV, June 16, 2015), a Nevada federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 77833, May 26, 2015) and dismissed a complaint by a Native American inmate that his eagle talon-- a sacred object-- was confiscated and destroyed before he completed the grievance process.

In Cohee v. Coupe, 2015 U.S. Dist. LEXIS 77940 (D DE, June 16, 2015, a Delaware federal district court permitted plaintiff, who is a Thelemite, to proceed with his complaint that when he was transferred to the hole he was denied access to his religious book and was advised that he could only have a Bible or the Qur'an. He did not have a constitutional claim regarding theft of several of his religious books.

In Rogers v. Molina, 2015 U.S. Dist. LEXIS 78010 (ND CA, June 15, 2015), a California federal magistrate judge held that a nursing home resident can proceed with his complaint that while in the emergency room, sheriff's deputies instead of providing him a wheelchair, a threw him to the ground and, among other things, seized blessing oil that he uses to practice his religion.

In O'Neal v. Amah, 2015 U.S. Dist. LEXIS 78716 (ED CA, June 16, 2015, a California federal magistrate judge allowed an inmate to move ahead with his complaint that when he was moved to a new facility he was denied a religious diet for over 60 days. He was given leave to amend his complaint to more clearly allege facts regarding denial of access to weekly church services much of the time.

In Nance v. Miser, 2015 U.S. Dist. LEXIS 79136 (D AZ, June 16, 2015), an Arizona federal district court dismissed a Muslim inmate's complaint that a Halal diet with meat was unavailable, but permitted him to move ahead with his 1st Amendment damage claim for denial of a shaving waiver for 7 months.

DC Circuit: Anti-Injunction Act Does Not Bar Suit Challenging Alleged Special IRS Review of Zionist Groups

In Z Street v. Koskinen, (DC Cir., June 19, 2015), the D.C. Circuit Court of Appeals held that the Anti-Injunction Act, which prohibits suits to restrain the assessment or collection of any tax, does not bar a suit by a pro-Israel non-profit organization that sued to prevent allegedly unconstitutional delay in processing its application for non-profit status.  Z Street claimed that the IRS has a special Israel policy that results in special scrutiny, and thus delay, of applications by groups holding political views on the Middle East inconsistent with those of the Obama administration. Jewish Press reports on the decision.

Texas Supreme Court: State Lacks Standing To Appeal Trial Court's Grant of Same-Sex Divorce

In a 5-3 decision, the Texas Supreme Court yesterday in State of Texas v. Naylor  (TX Sup. Ct., June 19, 2015), held that the state lacks standing to appeal a divorce decree of sorts that had been granted by a trial court to a lesbian couple.  In the case, the couple had been legally married in Massachusetts, but were now Texas residents.  The trial court recognized the problem of issuing a decree since under Texas law the couple's marriage was not recognized.  Instead it issued an order-- pursuant to an agreement of the parties-- which was "intended to be a substitute for ... a valid and subsisting divorce... and is intended to dispose of all economic issues and liabilities as between the parties whether they [are] divorced or not."  After the order was entered, the state of Texas filed a motion to intervene to defend the Texas law that limits divorce actions to opposite-sex couples who are married to one another.

The Supreme Court's majority opinion by Justice Brown held that the state was too late in attempting to intervene as a party since it did not try to do so until after a decree was entered.  It also held that the state did not show grounds to maintain a third-party appeal of the trial court's decision. Justice Boyd filed a concurring opinion emphasizing that the state is in no way bound by the trial court's decree.

Justice Willett delivered a dissenting opinion (which was joined by Justices Guzman and Devine) concluding:

In my view, the attorney general—constitutionally bound to “represent the State in all suits” has an interest sufficient to intervene to defend Texas law against perceived constitutional attack. His arguments may not prevail, but he should be allowed to make them.

Justice Devine also filed a separate dissent reaching the merits and concluding that the Texas ban on same-sex marriages is constitutional.  Thus, since the parties were not married, the trial court lacked jurisdiction over the divorce action. Dallas Morning News reports on the decision. [Thanks to How Appealing for the lead.]

9th Circuit Rejects Inmate's RLUIPA Claim For Racially Segregated Cell

In Walker v. Beard, (9th Cir., June 18, 2015), the U.S. 9th Circuit Court of Appeals rejected an Aryan Christian Odinist prison inmate's claim that under RLUIPA he should be exempt from being classified as eligible for placement in a racially mixed cell-- just as inmates who have a history of perpetrating or being victimized by racial violence are exempted. Here inmate Dennis Walker claimed that part of his Odinist religious practice is "the spiritual circle of Odinist Warding" ritual. The presence of a non-Aryan in his cell during the ritual would pollute the spiritual circle.  The court held that even though "the racially eligible classification  under the Housing Policy substantially burdens his religious exercise," the state has a compelling interest in complying with constitutional requirements barring racial segregation in prisons, and its actions were the least restrictive means to further this compelling interest.  The court added:

it is possible to imagine how the State might have maintained its race-neutral celling policy and offered an accommodation to Walker – for example, by giving him time outside his cell to perform the warding ritual by himself. But Walker never asked for such relief, nor has he given any indication that he would accept anything short of being assigned a white cellmate. The State has no additional obligation under RLUIPA independently to research and propose every possible way of mitigating that practice’s negative effects.... If Walker wants time outside his cell to perform the ritual, he needs to ask for it. If the State were to refuse him, that might be the basis for a separate RLUIPA challenge, but it does not bear on the challenge here, which is to the application of the Housing Policy to him without an exemption.

The court also rejected Walker's 1st Amendment free exercise argument.  Sacramento Bee reports on the decision.

Suit Challenges Union's Application of Religious Exemption To Fair Share Fee Requirement

Under Pennsylvania's Public Employee Fair Share Fee Law, public employee unions may enter collective bargaining agreements that require non-union members to pay a fair share fee instead of dues. However for employees who object on religious grounds, the law permits the employee to pay an equivalent amount to a nonreligious charity agreed upon by the employee and the union.  This week, a teacher in a high school near Pittsburgh has filed suit in federal district court claiming her due process and free speech rights have been infringed by the union's refusing to accept the charities to which she wants to send her fair share fee.

The complaint (full text) in Misja v. Pennsylvania State Education Association, (MD PA, filed 6/18/2015), says that teacher Linda Misja initially requested that her payment be sent to People Concerned for the Unborn Child, but the union refused insisting that this would be sending the fees to an organization that furthers plaintiff's religious beliefs, instead of to a nonreligious charity as required by law.  Misja then requested that her fees be sent to the National Rifle Association Foundation. The union rejected this choice because it has a policy of not agreeing to the charitable subsidiaries of political organizations. According to the complaint:

Ms. Misja seeks a declaratory judgment that the PSEA cannot maintain its practice of withholding her funds indefinitely, without access to an independent decision-making process to resolve the disputed application thereof, and cannot engage in pernicious viewpoint discrimination by restricting her choice of charity simply because Ms. Misja’s chosen charity takes positions with which the PSEA does not agree.

The Fairness Center has issued a press release and a legal backgrounder on the case.

Suit By U.S. Against FLDS Towns Moves Ahead

United States v. Town of Colorado City, Arizona, (D AZ, June 17, 2015), is a decision in a civil suit by the Untied States against the twin towns of Colorado City, Arizona and Hilldale, Utah, and against utility companies serving the towns alleging a pattern of discrimination against residents who are not members of the polygamous FLDS Church, denying them housing, police protection and access to public services. (See prior posting.) The court refused to dismiss claims that defendants violated Violent Crime Control and Law Enforcement Act of 1994 by denying plaintiffs their constitutional rights, saying that there are material questions of fact as to whether there have been violations.  The court also allowed the United States to move ahead with its claims of violations of the Fair Housing Act, though found that plaintiff could not recover damages on behalf of certain individuals. It also held that a prior civil suit by a private party could not be relied on by the government to assert non-mutual collateral estoppel. AP reporting on the decision calls it a loss for the Justice Department.

Supreme Court Unanimously Upholds Church's Challenge To Restrictive Sign Ordinance

Today in Reed v. Town of Gilbert, Arizona, (Sup. Ct., June 18, 2015), the U.S. Supreme Court unanimously held that an Arizona town's sign ordinance that placed greater restrictions on temporary directional signs than on other signs violates the First Amendment.  The challenge to the ordinance was brought by a local church whose Sunday services are held at various temporary locations and which posted signs each weekend displaying the Church name and the time and location of the next service.  Justice Thomas' majority opinion (joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito and Sotomayor) concluded that the provisions placing greater restrictions on temporary directional signs than on signs conveying other messages (such as ideological and political signs) "are content-based regulations of speech that cannot survive strict scrutiny."  It emphasizes:

Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.

It added:

a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.

Justice Alito, joined by Justices Kennedy and Sotomayor, filed a short concurring opinion setting out examples of content-neutral alternatives.

Justice Breyer filed a separate opinion concurring in the judgment saying that while the regulation here does not warrant strict scrutiny, it is nevertheless invalid. He explains:

The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification.

Justice Kagan (joined by Justices Ginsburg and Breyer) also filed an opinion concurring in the judgment, saying in part:

The Town of Gilbert’s defense of its sign ordinance—most notably, the law’s distinctions between directional signs and others—does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test.... The absence of any sensible basis for these and other distinctions dooms the Town’s ordinance under even the intermediate scrutiny that the Court typically applies to “time, place, or manner” speech regulations. Accordingly, there is no need to decide in this case whether strict scrutiny applies to every sign ordinance in every town across this country containing a subject-matter exemption.

I suspect this Court and others will regret the majority’s insistence today on answering that question in the affirmative.  As the years go by, courts will discover that thousands of towns have such ordinances, many of them “entirely reasonable.”

Supreme Court Holds Specialty License Plates Are "Government Speech"

Today in Walker v. Texas Division. Sons of Confederate Veterans, Inc., (Sup. Ct., June 18, 2015), the U.S. Supreme Court in a 5-4 decision upheld a decision by the Texas Department of Motor Vehicles Board to reject an application by Sons of Confederate Veterans for the issuance of a specialty license plate design featuring a Confederate battle flag. The majority in an opinion by Justice Breyer (joined by Justices Thomas, Ginsburg, Sotomayor and Kagan) held the specialty plates are government speech, and that "when government speaks, it is not barred by the Free Speech Clause from determining the content of what it says."  The majority, relying largely on its 2009 Summum decision, said the history of license plates show that they have largely communicated state messages and their design is controlled by and closely identified in the public mind with the state. The majority added:

Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech.... And the Free Speech Clause itself may constrain the government’s speech if, for example, the government seeks to compel private persons to convey the government’s speech. But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf. 

Justice Alito's dissenting opinion (joined by Chief Justice Roberts and Justices Scalia and Kennedy) argued that the 350 varieties of specialty plates issued by the state of Texas are not seen as expressions of state policy:

If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” 

Pope's Encyclical On Environmental Protection Issued; Republican Presidential Candidates May Be Pressed

The Vatican this morning released Pope Francis' much anticipated Encyclical Laudato Si: On Care For Our Common Home, as well as a Press Guide to the lengthy document.  The Encyclical begins:

1. “LAUDATO SI’, mi’ Signore” – “Praise be to you, my Lord”. In the words of this beautiful canticle, Saint Francis of Assisi reminds us that our common home is like a sister with whom we share our life and a beautiful mother who opens her arms to embrace us....

2. This sister now cries out to us because of the harm we have inflicted on her by our irresponsible use and abuse of the goods with which God has endowed her. We have come to see ourselves as her lords and masters, entitled to plunder her at will. The violence present in our hearts, wounded by sin, is also reflected in the symptoms of sickness evident in the soil, in the water, in the air and in all forms of life. This is why the earth herself, burdened and laid waste, is among the most abandoned and maltreated of our poor....

In an article earlier this week, the New York Times suggests that the Encyclical will put pressure on Catholic Republican candidates for President who have questioned scientific findings on human causes of climate change and opposed policies to tax or regulate the burning of fossil fuels. These include Jeb Bush and Marco Rubio who "have courted influential and deep-pocketed donors, such as the billionaire brothers Charles G. and David H. Koch, who vehemently oppose such climate policies." Other announced or likely Catholic candidates are Rick Santorum, Bobby Jindal and Chris Christie.  AP reports that, speaking to reporters yesterday, Jeb Bush said:

I go to church to have my faith nourished, to have my faith challenged.  That's why I go to Mass. I don't go to Mass for economic policy or for things in politics.

2nd Circuit: Post-9-11 Muslim-Arab Alien Detainees Have Due Process-Equal Protection Claims

In Turkmen v. Hasty, (2d Cir., June 17, 2015), the U.S. Second Circuit Court of Appeals in a 2-1 decision held that a group of "out-of-status" aliens rounded up on immigration charges and detained after the 9/11 attacks have substantive due process and equal protection claims under Bivens v. Six Unknown Agents against various defendants including former Attorney General John Ashcroft, former FBI Director Robert Mueller and former INS Commissioner James Ziglar.  The court however held that a Bivens remedy is not available  for plaintiffs' free exercise claims.  The majority concluded that plaintiffs had adequately pleaded that they were being held in punitive conditions only because they were, or were perceived to be, Arab or Muslim.  According to the majority, that policy was "built on a perception of a race and faith that has no basis in fact." AP and FDL report further on the 109-page majority opinion and 91-page dissent.

White House, State Department Send Ramadan Greetings

Yesterday the White House issued a press release carrying Ramadan greetings from President Obama and the First Lady "to all those observing the month of fasting in the United States and around the world." The President's statement said in part:

In this month of giving, Muslims around the globe reach out to assist those afflicted by conflict, hunger, poverty and disease. And here in the United States, American Muslims join their fellow citizens to serve the less fortunate, hosting inter-faith activities that build understanding and remind us that we stand together as one American family. The diversity and patriotism of America’s religious communities give strength to all of us, and our freedom to worship reminds us of the values we share.

The press release also indicated that again this year the President will host an iftar dinner at the White House.

Also yesterday the State Department released a press statement  from Secretary of State Kerry wishing Muslims "a joyful Ramadan Kareem."

Ramadan Begins This Evening

Ramadan begins this evening, according to an announcement by Saudi Arabia's Supreme Court. (Al Arabiya). The dawn to dusk fast that begins tomorrow morning is particularly difficult in northern Europe and North America because the holy period based on the lunar calendar falls this year during the long days of summer.The International Business Times reports that Muslim clerics in Britain differ on whether Muslims in Europe can use the fasting hours for Mecca-- 12 to 13 hours per day-- instead of the longer 18 hours that are involved by using actual sunrise and sunset in northern Europe.

Meanwhile PolitiFact discusses the outrage on conservative social media over the decision of the U.S. Embassy in Indonesia to hold its annual 4th of July celebration-- an outreach event aimed at local influentials-- on June 4 since a daytime event during Ramadan would not have been well attended.

Afghan President Appoints First Woman To Supreme Court, But Clerics Object

Afghanistan President Ashraf Ghani has appointed the country's first female Supreme Court judge according to yesterday's Euronews.  Ghani fulfilled an election promise by appointing Anisa Rassouli, former head of the Afghan Women Judges Association.  Rassouli's appointment must still be approved by Parliament. Ghani says he has religious approval for the appointment, but Islamic clerics on the Ulema Council of Afghanistan say that Sharia law prohibits a woman from occupying the position of judge.

Group Challenges Sheriff's Preaching While In Uniform

Lakeland, Florida, which is no stranger to church-state conflicts, is now home to another one. Fox 13 News reports that Polk County Sheriff Grady Judd delivered a sermon last April at the First Baptist Church in Lakeland, wearing his sheriff's uniform. The sermon focused on developing faith based dorms at the Polk County Jail and criminals changing their lives after finding Jesus. The Freedom From Religion Foundation has threatened to sue if Judd continues to wear his official uniform while preaching.

Jordanian Media and Muslims Criticize U.S. Ambassador's Support of LGBT Event

AlMonitor reported yesterday on the strong criticism leveled by Jordan's Islamic Action Front and conservative Jordanian media of U.S. Ambassador Alice Wells' attendance at an event last month in central Amman to mark the International Day Against Homophobia, Transphobia and Biphobia. In a statement, the Islamic Action Front said in part:

such meetings are a form of corruption and deviation. These meetings threaten the security and stability of the country, spreading the taboo and immorality in this conservative society and are also contrary to the constitution.

Suit Claims College Volleyball Coach Required Team Members To Attend Church

The Wilmington News Journal and Courthouse News Service report on a lawsuit filed this week in federal district court in Delaware by a former Delaware Sate University volleyball player who says she lost her scholarship because she objected to the volleyball coach's requirement that players attend church and participate in other religious activities.  The suit filed by Natalia Mendieta, a Catholic, against former coach LaKisya Killingsworth and former athletic director Candy Young claims that in 2013 the coach required players to attend Sunday services with her at Calvary Assembly of God, a Pentecostal church. The coach also had the team pray before each match, distributed Bibles to the team and urged players to join the Fellowship of Christian Athletes. In 2014, the coach made religious activities optional, but still listed church on the team's schedule and favored those who attended.  The suit claims that after plaintiff objected to the church attendance requirement, the coach used plaintiff's violation of a curfew by a few minutes as an excuse for revoking her scholarship for the 2015-16 school year.