Religion Archives - New York Appellate Digest

Civil Procedure, Constitutional Law, Religion

PLAINTIFF CHURCH’S OBJECTION TO THE SYNOD’S TAKING CONTROL OF A SCHOOL OPERATED BY PLAINTIFF CHURCH IS A RELIGIOUS CONTROVERSY WHICH IS NOT JUSTICIABLE IN STATE COURTS (SECOND DEPT).

The Second Department determined three causes of action in a lawsuit brought by a church (Eltingville) against the Synod and its Bishop (stemming from the Synod’s decision to place a school owned and operated by Eltingville under its control) were not justiciable in state courts because of the constitutional separation of church and state:

… [T]he complaint challenged the Synod’s determination to impose synodical administration upon Eltingville. Such a determination could only be made upon finding that “the membership of a congregation has become so scattered or so diminished in numbers as to make it impractical for such a congregation to fulfill the purposes for which it was organized or that it is necessary for this synod to protect the congregation’s property from waste and deterioration” (Synod’s Constitution § 13.24; see Religious Corporations Law § 17-c[2][a][iii]). A Synod’s determination to impose synodical administration on a local church is a nonjusticiable religious determination … . Eltingville Lutheran Church v Rimbo, 2019 NY Slip Op 05957, Second Dept 7-31-19

July 31, 2019/by Bruce Freeman

Civil Procedure, Constitutional Law, Religion

DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, over a two-justice dissent, determined the action stemming from plaintiff church’s defrocking and ejecting defendant nun from a convent was not justiciable in the New York courts because inquiry into religious doctrine or practice was required. Defendant nun had complained about sexual harassment by a priest and alleged she was retaliated against by the plaintiff church:

“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs” … . A court may, however, properly preside over a dispute involving a religious body only when the dispute may be resolved utilizing neutral principles of law … .

Here, the summary proceedings for eviction and the action, inter alia, for ejectment are inextricably intertwined with the determinations of the ecclesiastical court, particularly its 2008 determination defrocking the defendant and ordering her to vacate the convent. Therefore, this consolidated action involves review of an ecclesiastical determination that may not be resolved by resort to neutral principles of law … . Moreover, this matter does not involve a purely religious determination requiring this Court to accept the actions of the ecclesiastical court as final and binding … . Russian Orthodox Convent Novo-Diveevo, Inc. v Sukharevskaya, 2018 NY Slip Op 08167, Second Dept 11-28-18

RELIGION (DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGION, DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT))/CIVIL PROCEDURE (RELIGION, (DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT))/FIRST AMENDMENT (RELIGION, DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT))

November 28, 2018/by Bruce Freeman

Animal Law, Civil Procedure, Municipal Law, Religion

WRIT OF MANDAMUS SEEKING TO COMPEL ENFORCEMENT OF ANIMAL CRUELTY LAWS IN CONNECTION WITH THE RELIGIOUS PRACTICE OF KILLING CHICKENS PROPERLY DENIED, MANDAMUS DOES NOT LIE FOR DISCRETIONARY ACTS OR TO COMPEL A PARTICULAR OUTCOME (CT APP).

The Court of Appeals determined a writ of mandamus seeking to compel the NYC Department of Health to enforce laws preventing animal cruelty was properly denied. The writ concerned the slaughter of chickens as part of the religious practice of Kaporos prior to Yom Kippur:

A writ of mandamus “is an extraordinary remedy’ that is available only in limited circumstances'” … . Such remedy will lie “only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law” … . While mandamus to compel ” is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which [a public] officer may exercise judgment or discretion'”… . Discretionary acts ” involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'”. Further, mandamus may only issue to compel a public officer to execute a legal duty; it may not ” direct how [the officer] shall perform that duty'” … .

Enforcement of the laws cited by plaintiffs would involve some exercise of discretion (see Town of Castle Rock v Gonzales, 545 US 748, 760-761 [2005]). Moreover, plaintiffs do not seek to compel the performance of ministerial duties but, rather, seek to compel a particular outcome. Accordingly, mandamus is not the appropriate vehicle for the relief sought … . Alliance to End Chickens as Kaporos v New York City Police Dept., 2018 NY Slip Op 07694, CtApp 11-14-18

CIVIL PROCEDURE (WRIT OF MANDAMUS SEEKING TO COMPEL ENFORCEMENT OF ANIMAL CRUELTY LAWS IN CONNECTION WITH THE RELIGIOUS PRACTICE OF KILLING CHICKENS PROPERLY DENIED, MANDAMUS DOES NOT LIE FOR DISCRETIONARY ACTS OR TO COMPEL A PARTICULAR OUTCOME (CT APP))/MANDAMUS (WRIT OF MANDAMUS SEEKING TO COMPEL ENFORCEMENT OF ANIMAL CRUELTY LAWS IN CONNECTION WITH THE RELIGIOUS PRACTICE OF KILLING CHICKENS PROPERLY DENIED, MANDAMUS DOES NOT LIE FOR DISCRETIONARY ACTS OR TO COMPEL A PARTICULAR OUTCOME (CT APP))/MUNICIPAL LAW (MANDAMUS, (WRIT OF MANDAMUS SEEKING TO COMPEL ENFORCEMENT OF ANIMAL CRUELTY LAWS IN CONNECTION WITH THE RELIGIOUS PRACTICE OF KILLING CHICKENS PROPERLY DENIED, MANDAMUS DOES NOT LIE FOR DISCRETIONARY ACTS OR TO COMPEL A PARTICULAR OUTCOME (CT APP))/RELIGION (WRIT OF MANDAMUS SEEKING TO COMPEL ENFORCEMENT OF ANIMAL CRUELTY LAWS IN CONNECTION WITH THE RELIGIOUS PRACTICE OF KILLING CHICKENS PROPERLY DENIED, MANDAMUS DOES NOT LIE FOR DISCRETIONARY ACTS OR TO COMPEL A PARTICULAR OUTCOME (CT APP))/ANIMAL LAW (WRIT OF MANDAMUS SEEKING TO COMPEL ENFORCEMENT OF ANIMAL CRUELTY LAWS IN CONNECTION WITH THE RELIGIOUS PRACTICE OF KILLING CHICKENS PROPERLY DENIED, MANDAMUS DOES NOT LIE FOR DISCRETIONARY ACTS OR TO COMPEL A PARTICULAR OUTCOME (CT APP))

November 14, 2018/by Bruce Freeman

Nuisance, Public Nuisance, Religion

PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT).

The Second Department determined the public nuisance cause of action, based upon the sexual abuse of plaintiff by a priest and the Diocese's failure to release the names of accused priests, should have been dismissed:

“A public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons” … . “A public nuisance is a violation against the State and is subject to abatement or prosecution by the proper governmental authority” … . A public nuisance is actionable by a private person only where the person suffered special injury beyond that suffered by the community at large … .

Here, the complaint failed to identify any cognizable right common to all members of the general public that the Diocese has interfered with by, among other things, failing to disclose the names of priests who had been accused of, but neither charged with nor convicted of, molesting children … . Notwithstanding a moral or ethical duty to notify the public, or investigate and report instances of suspected child molestation, the complaint does not allege that the Diocese violated any laws recognizing the public's right to information regarding accusations of child molestation, or that the Diocese violated any legal duty to report such accusations to appropriate authorities. …

… The complaint does not allege that any member or employee of the Diocese is a mandated reporter, or that any such member or employee violated Social Services Law § 413 in failing to report to appropriate authorities allegations of suspected child abuse. …

Furthermore, although parish and Diocese property may be open to the public, it still is private property … . Monaghan v Roman Catholic Diocese of Rockville Ctr., 2018 NY Slip Op 06527, Second Dept 10-3-18

PUBLIC NUISANCE (SEXUAL ABUSE BY PRIESTS, PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT))/PRIESTS (SEXUAL ABUSE BY PRIESTS, PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT))/SEXUAL ABUSE (PRIESTS, (SEXUAL ABUSE BY PRIESTS, PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT))/SOCIAL SERVICES LAW (SEXUAL ABUSE BY PRIESTS, PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT))

October 3, 2018/by Bruce Freeman

Arbitration, Contract Law, Family Law, Religion

ARBITRATION AWARD BY A RABBINICAL COURT IN THIS DIVORCE PROCEEDING SHOULD NOT HAVE BEEN VACATED, FAILURE TO FOLLOW THE EQUITABLE DISTRIBUTION LAW DID NOT VIOLATE PUBLIC POLICY, UNCONSCIONABILITY IS NOT A STATUTORY GROUND FOR VACATING AN ARBITRATION AWARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitration award by a Rabbinical Court in this divorce proceeding should not have been vacated. The fact that the Equitable Distribution Law was not followed did not warrant vacation of the award because parties can elect to deviate from the Domestic Relations Law (no violation of public policy). The Second Department further held that unconscionability is not a statutory ground for reviewing or setting aside an arbitration award:

Judicial review of an arbitration award is extremely limited (see CPLR 7510, 7511…). “Outside of the narrowly circumscribed exceptions of CPLR 7511, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact'” … .

“An award is irrational only where there is no proof whatever to justify the award” … . Moreover, that showing must be made by clear and convincing evidence … . Here, the very limited record does not even reveal what evidence was submitted to the arbitrators regarding, among other things, the parties’ assets and financial condition. Therefore, the Supreme Court lacked any basis upon which to conclude that the award was irrational.

“An arbitration award violates public policy only where a court can conclude, without engaging in any extended fact-finding or legal analysis, that a law prohibits the particular matters to be decided by arbitration, or where the award itself violates a well-defined constitutional, statutory, or common law of this state” … . …

… [W]e disagree with the Supreme Court’s determination that the … award was unconscionable on its face. Unconscionability is a doctrine grounded in contract law, which can be applied to invalidate an agreement to arbitrate … or a marital agreement entered into before or during the marriage … . The doctrine, which requires proof of both procedural unconscionability in the formation of the contract, as well as substantive unconscionability in the terms of the contract … , is not a statutory ground upon which an arbitration award may be reviewed, let alone set aside… . If the arbitral procedure was tainted by corruption, fraud, or misconduct, or the partiality of an arbitrator appointed as a neutral, the proper remedy is to move to vacate the award pursuant to CPLR 7511(b)(1)(i) or (ii). Zar v Yaghoobzar, 2018 NY Slip Op 03170, Second Dept 5-2-18

ARBITRATION (FAMILY LAW, RELIGION, ARBITRATION AWARD BY A RABBINICAL COURT IN THIS DIVORCE PROCEEDING SHOULD NOT HAVE BEEN VACATED, FAILURE TO FOLLOW THE EQUITABLE DISTRIBUTION LAW DID NOT VIOLATE PUBLIC POLICY, UNCONSCIONABILITY IS NOT A STATUTORY GROUND FOR VACATING AN ARBITRATION AWARD (SECOND DEPT))/FAMILY LAW (ARBITRATION AWARD BY A RABBINICAL COURT IN THIS DIVORCE PROCEEDING SHOULD NOT HAVE BEEN VACATED, FAILURE TO FOLLOW THE EQUITABLE DISTRIBUTION LAW DID NOT VIOLATE PUBLIC POLICY, UNCONSCIONABILITY IS NOT A STATUTORY GROUND FOR VACATING AN ARBITRATION AWARD (SECOND DEPT))/CONTRACT LAW (ARBITRATION AWARD BY A RABBINICAL COURT IN THIS DIVORCE PROCEEDING SHOULD NOT HAVE BEEN VACATED, FAILURE TO FOLLOW THE EQUITABLE DISTRIBUTION LAW DID NOT VIOLATE PUBLIC POLICY, UNCONSCIONABILITY IS NOT A STATUTORY GROUND FOR VACATING AN ARBITRATION AWARD (SECOND DEPT))/RELIGION (RABBINICAL COURT, ARBITRATION AWARD BY A RABBINICAL COURT IN THIS DIVORCE PROCEEDING SHOULD NOT HAVE BEEN VACATED, FAILURE TO FOLLOW THE EQUITABLE DISTRIBUTION LAW DID NOT VIOLATE PUBLIC POLICY, UNCONSCIONABILITY IS NOT A STATUTORY GROUND FOR VACATING AN ARBITRATION AWARD (SECOND DEPT))/RABBINICAL COURT (ARBITRATION AWARD BY A RABBINICAL COURT IN THIS DIVORCE PROCEEDING SHOULD NOT HAVE BEEN VACATED, FAILURE TO FOLLOW THE EQUITABLE DISTRIBUTION LAW DID NOT VIOLATE PUBLIC POLICY, UNCONSCIONABILITY IS NOT A STATUTORY GROUND FOR VACATING AN ARBITRATION AWARD (SECOND DEPT))

May 2, 2018/by Bruce Freeman

Disciplinary Hearings (Inmates), Religion

DISTRIBUTING A LETTER WHICH DEALT WITH RELIGIOUS (NATION OF ISLAM) INFORMATION DID NOT VIOLATE ANY PRISON GUIDELINES OR POLICIES, MISBEHAVIOR DETERMINATION ANNULLED (SECOND DEPT).

The Second Department annulled the misbehavior (smuggling) determination. Petitioner was accused of smuggling a letter. But part of petitioner’s duties was sending out religious information (Nation of Islam). The letter was religious in nature. The charges did not allege the violation of any particular guideline or policy which was violated:

The charges against the petitioner here were not supported by substantial evidence. Although the inmate misbehavior report charged failure to comply with and follow guidelines and instructions given by staff regarding facility correspondence procedures… , it did not specify any particular guideline or instruction with which the petitioner had failed to comply. Further, the correction officer who authored the report could not identify the particular correspondence policy he believed the petitioner had violated. Accordingly, the finding that the petitioner violated rule 180.11 must be annulled … .

In addition, the hearing evidence established that the petitioner, in his capacity as inmate facilitator for the prison’s Nation of Islam office, had duties including sending religious materials to other inmates from the Nation of Islam office, and neither the misbehavior report nor the testifying correction officer identified any regulation prohibiting the petitioner, in that capacity, from including the subject letter with the other materials. Accordingly, the finding that the petitioner violated rule 114.10 must also be annulled … . Matter of Smith v Annucci, 2018 NY Slip Op 02330, Second Dept 4-4-18

DISCIPLINARY HEARINGS (INMATES) (DISTRIBUTING A LETTER WHICH DEALT WITH RELIGIOUS (NATION OF ISLAM) INFORMATION DID NOT VIOLATE ANY PRISON GUIDELINES OR POLICIES, MISBEHAVIOR DETERMINATION ANNULLED (SECOND DEPT))/RELIGION (DISCIPLINARY HEARINGS (INMATES), DISTRIBUTING A LETTER WHICH DEALT WITH RELIGIOUS (NATION OF ISLAM) INFORMATION DID NOT VIOLATE ANY PRISON GUIDELINES OR POLICIES, MISBEHAVIOR DETERMINATION ANNULLED (SECOND DEPT))/ISLAM (DISCIPLINARY HEARINGS (INMATES), DISTRIBUTING A LETTER WHICH DEALT WITH RELIGIOUS (NATION OF ISLAM) INFORMATION DID NOT VIOLATE ANY PRISON GUIDELINES OR POLICIES, MISBEHAVIOR DETERMINATION ANNULLED (SECOND DEPT))

April 4, 2018/by Bruce Freeman

Family Law, Religion

INABILITY TO AGREE ON CHILD’S RELIGIOUS TRAINING CONSTITUTED A CHANGE IN CIRCUMSTANCES WARRANTING THE AWARD OF SOLE CUSTODY TO MOTHER (SECOND DEPT).

The Second Department determined the parents’ inability to agree on the child’s religious training, together with the father’s threat to take to child to Morocco if she were not raised as a “true Muslim,” warranted awarding sole custody to mother:

” In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child'”… . Here, the parties’ inability to agree on the child’s religious training, which was an issue that had not been addressed in the parties’ July 2009 stipulation of settlement, constituted a change in circumstances. The change in the child’s relationship with the father based on the child’s fear of his displeasure if she were not a “true Muslim,” and her belief that he threatened to abscond with her to Morocco, also contributed to the change in circumstances warranting modification … . …

The evidence established that the only issue on which the parents disagreed was the religion in which the child should be raised and to what degree she should be expected to observe the tenets of each parent’s religion. The award to the mother of sole decision-making authority with respect to religion is in the child’s best interests, and the award of parenting time to each parent on his or her respective religious holidays will continue to allow the child to be exposed to both parents’ religions … . Matter of Baalla v Baalla, 2018 NY Slip Op 01050, Second Dept 2-14-18

FAMILY LAW (CUSTODY, INABILITY TO AGREE ON CHILD’S RELIGIOUS TRAINING CONSTITUTED A CHANGE IN CIRCUMSTANCES WARRANTING THE AWARD OF SOLE CUSTODY TO MOTHER (SECOND DEPT))/CUSTODY (FAMILY LAW, INABILITY TO AGREE ON CHILD’S RELIGIOUS TRAINING CONSTITUTED A CHANGE IN CIRCUMSTANCES WARRANTING THE AWARD OF SOLE CUSTODY TO MOTHER (SECOND DEPT))/RELIGION (FAMILY LAW, CUSTODY, INABILITY TO AGREE ON CHILD’S RELIGIOUS TRAINING CONSTITUTED A CHANGE IN CIRCUMSTANCES WARRANTING THE AWARD OF SOLE CUSTODY TO MOTHER (SECOND DEPT))

February 14, 2018/by Bruce Freeman

Real Property Law, Religion

DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT).

The Second Department, interpreting both real estate law and the canons of the Protestant Episcopal Church, determined a corrected deed superseded the deed which indicated the property was held in trust for defendant church, St. Matthias. St. Matthias had separated from the Episcopal Church and both the corrected deed and the applicable canons eliminated St. Matthias’s property rights:

The 1905 corrected deed removed any language indicating that the property was being held in trust for the congregation of St. Matthias. Where a deed of correction has been obtained, the corrective deed will control and the title of the grantee will be determined by the new grant … . The 1905 deed superseded the 1904 deed and was controlling.

Even if the 1905 deed did not supersede the 1904 deed, the Supreme Court was correct in holding that the ownership of the property vested in the [plaintiff] upon the separation of St. Matthias … from the Episcopal Church pursuant to the applicable canons of the … National Church … and the plaintiff Episcopal Diocese of Long Island … . By accepting the principles of the National Church and the Diocese for approximately 100 years, the defendants were subject to their canons, rules, and practices … . Episcopal Diocese of Long Is. v St. Matthias Nondenominational Ministries, Inc., 2018 NY Slip Op 00276, Second Dept 1-17-18

REAL PROPERTY LAW (DEED, RELIGIOUS LAW, DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT))/DEEDS (CORRECTED DEED, DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT))/RELIGION (CANONS OF THE EPISCOPAL CHURCH, REAL PROPERTY, DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT))/CANONS OF THE EPISCOPAL CHURCH DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT))

January 17, 2018/by CurlyHost

Constitutional Law, Family Law, Religion

RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT).

The Second Department, in a full-fledged per curiam opinion, determined that a change in circumstances warranted a modification of the stipulation of settlement of a divorce action. The opinion is too detailed to fairly summarize here. At issue was the extent of the religion-related requirements of the stipulation of settlement. Father objected to the lifestyle changes associated with mother’s open acknowledgment that she is gay and the presence of O, a transgender man, in the home. The court held that the religion-based restrictions placed upon mother’s lifestyle, stemming from Supreme Court’s finding that the religious aspects of the stipulation were paramount, violated her constitutional rights. Rather than the religious concerns, the analysis must focus on the best interests of the children. To that end, the Second Department determined certain aspects of the stipulation concerning the father’s desire to raise and educate the children in the Hasidic tradition were in the children’s best interests:

… [T]he Supreme Court improperly directed that enforcement of the parties’ stipulation of settlement required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools. Although the court accepted the father’s argument that the religious upbringing clause “forb[ids] [the mother from] living a secular way of life in front of the children or while at their schools,” the plain language of the parties’ agreement was “to give the children a Hasidic upbringing” … . The parties’ agreement does not require the mother to practice any type of religion, to dress in any particular way, or to hide her views or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle … . * * *

Contrary to the mother’s contention, the weight of the evidence demonstrates that it is in the children’s best interests to continue to permit the father to exercise final decision-making authority over the children’s education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices. Weisberger v Weisberger, 2017 NY Slip Op 06212, Second Dept 8-16-17

FAMILY LAW (RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/CUSTODY (FAMILY LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGION, FAMILY LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/RELIGION (FAMILY LAW, CUSTODY, CONSTITUTIONAL LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))

August 16, 2017/by CurlyHost

Animal Law, Municipal Law, Religion

THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE.

The First Department, in a full-fledged opinion by Justice Gische, over a two justice dissenting opinion authored by Justice Gesmer, determined the city’s decision whether to enforce animal cruelty and other laws and regulations which may pertain to the public, ritual killing of chickens in an annual religious practice (Kaporos) is discretionary and therefore cannot be enforced by a mandamus proceeding:

We hold that the laws which plaintiffs seek to compel the City defendants to enforce in this action involve the judgment and discretion of those defendants. This is because the laws themselves implicate the discretion of law enforcement and do not mandate an outcome in their application. … There are disputes about whether the conduct complained of is in violation of the implicated laws and regulations. There are disputes about whether and to what extent the implicated laws can be enforced without violating constitutional rights belonging to the non-City defendants. Rituals involving animal sacrifice are present in some religions and although they may be upsetting to nonadherents of such practice, the United States Supreme Court has recognized animal sacrifice as a religious sacrament and decided that it is protected under the Free Exercise Clause of the Constitution, as applied to the states through the Fourteenth Amendment … .

Consequently, the decision whether and how to enforce these laws and regulatory provisions allegedly violated during Kaporos implicates the reasoning and discretion of the City defendants and the law enforcers. None of the laws or regulations plaintiffs rely on preclude the City defendants from deciding whether or not to enforce those laws in the context of Kaporos. Plaintiffs do not have a “clear legal right” to dictate which laws are enforced and how, or against whom. Determining which laws and regulations might be properly enforced against the non-City defendants without infringing upon their free exercise of religion involves the exercise of reasoned judgment on the part of the City defendants. The outcome cannot be dictated by the court through mandamus. Alliance to End Chickens as Kaporos v New York City Police Dept., 2017 NY Slip Op 04408, 1st Dept 6-6-17

MUNICIPAL LAW (ANIMAL CRUELTY, RITUAL KILLING OF CHICKENS, THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)/ANIMAL LAW (RELIGIOUS RITUAL KILLING OF CHICKENS, THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)/RELIGION (RITUAL KILLING OF CHICKENS, THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)/KAPOROS (ANIMAL CRUELTY, RITUAL KILLING OF CHICKENS, THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)

June 6, 2017/by CurlyHost