June 10, 2006
Case Law Development: Federal Third Circuit Court of Appeals Oks Firing of Teacher at Catholic School who Publicly Advocated Abortion Rights
The United States Court of Appeals for the Third Circuit ruled this week against a teacher who was fired from a private Catholic school after she had signed her name to a newspaper advertisement celebrating the 30th anniversary of Roe v. Wade. She had argued that signing the advertisement was conduct protected by 42 U.S.C. § 2000e-3(a) and that she was fired for conduct less egregious under Catholic doctrine than conduct of male employees who were treated less harshly. The lower court had ruled that a 1978 law that forbids employers from discriminating against employees who support abortion rights does not apply to disputes involving a religious school The Court of Appeals agreed.
On the day the advertisement appeared, the woman was called into the office of the President of the private school and informed that the school was deeply troubled by her public support of a position inimical to accepted Catholic doctrine and was considering terminating her employment. A few days later she was fired. In her lawsuit, the woman claimed that a provision in Title VII protected her from being fired. That provision reads that “It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter . . ..” 42 U.S.C. § 2000e-3(a).2
The Third Circuit rejected her argument saying that the provision was aimed at preventing illegal employment practices but that “basic pro-choice advocacy does not constitute opposition to an illegal employment practice.”
It said that “we are not aware of any court that has found public protests or expressions of belief to be protected conduct absent some perceptible connection to the employer’s alleged illegal employment practice.” An example of protected conduct, according to the court, would be an employee’s appearance on the news magazine “60 Minutes” where the entire show was about allegations of sexual harassment and discrimination within the Bureau of Alcohol, Tobacco and Firearms. Hoffman v. Rubin, 193 F.3d 959, 963 (8th Cir. 1999). However, in this case, the court concluded that the advocacy was simply not connected to employment practices. It also dismissed her gender argument saying that “Congress has not clearly expressed an affirmative intention to apply Title VII to a claim, as asserted here, against a religious employer in the present context.” The Third Circuit Court of Appeals opinion, Curay-Cramer v. Ursuline Academy of Wilmington, may be found by clicking here (last visited June 10, 2006, reo).
Oglala Sioux Ban Abortion on Reservation—Suspend Tribal President
The Oglala Sioux tribe in South Dakota has voted to ban abortion on the Pine Ridge Reservation and has suspend tribal president Cecelia Fire Thunder for 20 days after she announced her intention to build a women’s health clinic on the reservation. Source. Ms. Magazine, msmagazine.com. The complete story may be found by clicking here (last visited June 10, 2006, reo).
South Dakota Primary Election Finds Abortion Bill Opponents Losing
Although it is not immediately clear how much their opposition to a Sourth Dakota abortion bill may have cost their reelection effort, four Republican state senators who voted against a bill that would ban abortions in South Dakota were all defeated in Tuesday’s primary election. Apparently, several candidates who supported the ban were successful in the primary. Source. Joe Kafka, AP, The Mercury News, mercurynews.com. The complete story may be found by clicking here (last visited June 10, 2006, reo).
Commentary: Do State Constitutional Bans on Same-Sex Marriage Impact Domestic Violence Statutes and Unmarried Women?
Ohio voters passed a 2004 constitutional amendment banning same-sex marriages. In late May, the Third Circuit Court of Appeals in Ohio struck down a domestic violence statute on the theory it created a relationship between unmarried individuals who lived together for the purpose of prosecuting domestic violence offenders. It is argued that without this statute, punishment for domestic violence is lowered from a felony and a misdemeanor, leaving unmarried women in these situations “increasingly vulnerable to physical abuse from their partners.” Source. Ms. Magazine, msmagazine.com. The complete story may be found by clicking here (last visited June 10, 2006, reo).
June 9, 2006
Missouri Legislation Decriminalizes Homosexual Activity - Attorney General Says Lesbian Foster Care Controversy is Now Moot
Missouri Attorney General Jay Nixon said Wednesday that the state no longer can challenge a Kansas City lesbian’s efforts to become a foster parent. That pronouncement follows the pen stroke earlier this week of Gov. Matt Blunt, who signed into law H.B. 1698, which enacts tough new penalties on sexual predators. The measure also repeals a longstanding Missouri law that essentially criminalized homosexuality. The state Department of Social Services had cited the law as the primary reason for denying a foster-parent license to Lisa Johnston, who wanted to raise a child with her partner, Dawn Roginski. Johnston applied for a foster-parent license three years ago and sued after it was denied on the basis that she lacked “reputable character” because she was a lesbian. The case was the first of its kind in Missouri. “The governor’s signature took away the last argument of the state in this case,” said Scott Holste, a spokesman for Nixon.
To read more, see the Kansas City Star Article by Tim Hoover (last visited June 8, 2006 bgf)
Case Law Development: Forum Non Conveniens and UCCJEA Jurisdictional Questions Require Hearings
The Connecticut Court of Appeals has examined the doctrine of forum non conveniens and subject matter jurisdiction in custody modification actions involving international families. This case involved a couple who were divorced in Connecticut and moved to Japan. After disputes in Japan regarding Mother's visitation, Mother moved back to Connecticut and filed a motion to modify the parenting arrangements and for contempt. The trial court dismissed the case without a hearing, on the basis of forum non conveniens and lack of subject matter jurisdiction under the UCCJEA.
The court of appeals reversed. The court noted that regarding the forum non conveniens decision, the applicable law was the common law rather than the UCCJEA. In enacting the UCCJEA, Connecticut had eliminated that portion of the model act that extended the definition of "state" to include foreign countries. However, even under common law forum non conveniens rules, the court noted, a hearing is necessary.
Likewise, in determining if the trial court had exclusive or concurrent jurisdiction under the UCCJEA, the court of appeals held that a hearing was necessary. The jurisdictional issue involves questions of fact such as whether Connecticut was the children's home state when the modification motion was filed and whether Mother had a significant connection with the state, not just Japan. Due process, the court explained, required a trial-like hearing to determine these factual issues on which questions of jurisdiction depended.
Temlock v. Temlock, 95 Conn. App. 505 (May 23, 2006)
Opinion on the web (last visited June 8, 2006 bgf)
Case Law Development: Nebraska upholds grandparent visitation statute
The Nebraska Supreme Court has upheld the constitutionality of its grandparent visitation statutes and affirmed a trial court's award of visitation to the children's paternal grandparents. Under the Nebraska grandparent visitation statutes, grandparents can seek visitation only under certain circumstances: if the grandchild’s parent or parents are deceased, divorced or in the process of seeking a divorce, or have never been married but paternity has been legally established. Moreover, a court is without authority to order grandparent visitation unless a petitioning grandparent can prove by clear and convincing evidence that (1) there is, or has been, a significant beneficial relationship between the grandparent and the child; (2) it is in the best interests of the child that such relationship continue; and (3) such visitation will not adversely interfere with the parent-child relationship. The court concluded that these statutes are narrowly drawn and explicitly protect parental rights while taking the child’s best interests into consideration so as to withstand strict scrutiny.
Hamit v. Hamit, 271 Neb. 659 (June 2, 2006)
Opinion on the web (last visited June 6, 2006 bgf)
Case Law Development: Removing Child from Person With Whom Child Has Strong Attachment but No Legal Rights is Not AbuseAfter their relationship ended, the former lesbian partner of Mother sought to continue contact with the seven-year-old daughter born during their relationship. When Mother denied visitation, Partner brought a dependency action, alleging that depriving the child of contact with someone with whom she has a primary or secondary attachment constitutes abuse. After a hearing, the trial court dismissed the petition, concluding that "depriving [the child] of contact with [her mother's partner], someone to whom the child has no legal connection, constitutes the level of abuse needed to support a finding of a dependency." In a brief opinion, the Florida Court of Appeals affirmed. D.E. v, R.D.B., 2006 Fla. App. LEXIS 8605 (June 2, 2006) Opinion on the web (last visited June 8, 2006 bgf)
June 8, 2006
Florida Children Missing from Foster Care
"When the disappearance of a 5-year-old girl from her Miami foster home four years ago went unnoticed for months, the ensuing scandal that engulfed Florida's child-welfare agency led to recriminations and promises of beefed-up efforts to track down children who went missing from state care. A few months later, Gov. Jeb Bush and his social-services chief declared ''success,'' saying the state had found all but 102 of about 400 foster children who had gone missing. That was Dec. 17, 2002.
Yet as of Monday, the number of kids missing from the state's troubled child-welfare system has skyrocketed to 652, most of them runaway teens and youngsters snatched from foster care by their biological parents. The number of missing kids has risen even as the number of kids in state care has declined." By Carol Marbin Miller, MiamiHerald.com Link to Article (last visited 6-7-06 NVS)
Mother Asks Son to Sell Marijuana
"A woman who police say asked her son to sell marijuana to raise money to bail her out of jail faces an additional charge. Elaine Baker is currently being held in the Clay County jail on two drug charges and child endangerment." Yahoo News Link to Article (last visited 6-7-06 NVS)
Aggression Linked to Experimentation
"Among young adolescents, aggression is linked to a likelihood of experimenting with cigarettes or marijuana for the first time, while impulsivity confers a greater risk of trying alcohol, a new study shows. However, the researchers found no association between attention-deficit/hyperactivity disorder (ADHD) and substance-use initiation." Reuters Health, Yahoo News Link to Article (last visited 6-7-06 NVS)
Sham Marriage Immigration Scam
"US federal prosecutors said they had bust open an illegal immigration ring that provided permanent resident cards to hundreds of people through a sham marriage scam. An indictment unveiled in New York named 30 defendants including the sibling masterminds allegedly behind the scheme which netted an estimated one million dollars." AFP,Yahoo News Link to Article (last visited 6-7-06 NVS)
Cloning Human Embryos
"Scientists at Harvard and Children's Hospital Boston announced Tuesday they have the green light to clone human embryos that could generate stem cell lines for specific diseases. The researchers join a small cadre of scientists worldwide attempting to do what a South Korean scientist claimed to have done, only to have his work unravel when it was exposed as a fraud. "We are convinced that work with embryonic stem cells holds enormous promise," Harvard's Steven Hyman said. Embryonic stem cells are the precursor cells to almost every tissue in the body; growing them could provide replacement tissues for diseases such as diabetes and cancer. In theory, the body would not reject the tissues from cloned embryos. Cloning requires inserting a cell from a patient into an egg and chemically triggering division of their union. So far, only a team at the U.K.'s University of Newcastle Upon Tyne apparently has created a cloned human embryo." By Dan Vergano. USA Today, Yahoo News Link to Article (last visited 6-7-06 NVS)
June 7, 2006
Pennsylvania House Passes Gay Marriage Ban
The Pennsylvania state House of Representatives voted 136-61 for a bill that would outlaw same-sex marriages and polygamous marriages in that state. This is a first step toward amending the state constitution with a provision that would ban gay and lesbian marriages. Source. Tom Barnes, Post-Gazette Harrisburg Bureau, post-gazette.com. For the complete story, please click here (last visited June 7, 2006, reo).
English High Court Asked to Recognize Marriage of Canadian Lesbians
Two lesbian university professors have asked the English High Court Family Division to declare their Canadian marriage valid under English law. The Government opposed recognition declaring that a valid marriage is only between a man and a woman. The hearing has been continued to today (Wednesday), with judgment reserved. Source. Joshua Rozenberg, Legal Editor, Telegrphy.co.uk. For the complete story, please click here (last visited June 7, 2006, reo).
Gay Marriage Constitutional Amendment Most Likely to Fail—Debate Continues
Despite the almost certain defeat of the effort to persuade at least 67 senators to vote for a constitutional amendment to the United States Constitution banning gay marriage, the debate continues. Supporters are reportedly at least a dozen votes short of the number needed to send the measure to the states. Source. Craig Gilber, Milwaukee Journal Sentinel, mercurynews.com. For the complete story, please click here (last visited June 7, 2006, reo).
Case Law Development: Mississippi Appeals Court Rules Woman Waited Too Long to File Action against Diocese in Case Alleging She was the Victim Sexual Abuse By a Priest
The Mississippi Court of Appeals ruled Tuesday that a woman alleging abuse by two priests in the 1970s waited too long to bring her suit against the Catholic Diocese of Jackson. It is reported that in 2003 the Diocese admitted that she was sexually abused by two priests.
The woman argued that the Mississippi six year statute of limitations, which began to run when she reached age 21, should have been tolled because “she did not psychologically comprehend that the priests’ acts were abuse, she did not connect the priests’ actions to her emotional problems, and she only recently began to psychologically comprehend that the priests’ acts were abusive and the cause of her injuries.” The Court of Appeals rejected the argument stating the exception to the six-year statute required evidence of a “latent injury.” Under Mississippi law, “latent injury” is defined as “one where the plaintiff is precluded from discovery of the harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question, or when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” The court concluded that given the nature of the physical acts the woman allegedly endured, and her age at the time of the abuse, she was “certainly aware of the abuse at the time of its occurrence. Whether or not [she] was mentally capable of understanding the physical acts she endured when they occurred is not the critical inquiry with the discovery rule.” For a copy of the slip opinion of the Mississippi Court of Appeals in Doe v. Roman Catholic Diocese of Jackson, please click here (last visited June 7, 2006, reo).
Commentary & Analysis: “The Long Road to Improving Foster Care in D.C.”
Regular readers of this Blog may find Robert Siegel’s article about reforming the District of Columbia child-welfare system of interest. Mr. Siegel traces the reform efforts beginning in 1994 up to the present. Along the way, the system was seized by the federal court because of its failure to protect children. Eventually, under standards set by U.S. Federal District Court Judge Thomas F. Hogan, the system was returned to the city after it had demonstrated it could effectively operate the welfare system. Today, the system remains under control of the District. Source. Robert Siegel, npr.org. For the complete story, please click here (last visited June 7, 2006, reo).
June 6, 2006
Case Law Development: Income Withholding Not Subject to Limitations Period for Actions to Enforce Judgments
The Minnesota Supreme Court holds that, because administrative income withholding proceedings initiated by a county to collect child support arrearages are not judicial proceedings, they also are not "actions" within the meaning of the Minnesota statute providing a 10-year limitation period on actions to enforce a judgment.Gerber v. Gerber, 2006 Minn. LEXIS 338 (June 1, 2006) Opinion on the web (last visited June 6, 2006 bgf)
Case Law Development: Court May Not Grant Blanket Orders Sealing Divorce Records
After their divorce, husband and wife moved to have their divorce records sealed, which the trial court granted. In a challenge by the Times-Picayune newspaper to the order, the Supreme Court of Louisiana granted a writ vacating the trial court's order. The court commented:
"Considering the strong constitutional bias in favor of open access by the public to court proceedings, we find the trial court's blanket order sealing the entire record in this case to be overbroad. Although there may be some justification for sealing certain sensitive evidence in a proceeding, the parties have the burden of making a specific showing that their privacy interests outweigh the public's constitutional right of access to the record. The trial court, should it grant such relief, must ensure that its order is narrowly tailored to cause the least interference possible with the right of public access."
Copeland v. Copeland, 2006 La. LEXIS 1649 (June 2, 2006 bgf)