4th Circuit: No Title VII Claim Where Employee Failed To Follow Leave Procedures

In Abeles v. Metropolitan Washington Airports Authority, (4th Cir., Jan. 26, 2017), the U.S. 4th Circuit Court of Appeals rejected a religious discrimination claim by an Orthodox Jewish Airports Authority employee who was suspended for five days for taking off work for the last two days of Passover.  The employee gave only informal notice of her intention to take off those days and did not comply with the formal leave request procedure.  The court, responding to plaintiff's argument that under Title VII she should have been granted religious accommodation, said in part:

[N]o conflict existed between Plaintiff observing religious holidays and following MWAA’s neutral rules requiring advance approval of leave following specified procedures. Nor could she establish such a conflict. The Leave Policy merely requires employees to request leave by form or email, and obtain advance approval.

The court also rejected plaintiff's disparate treatment argument.  Discussion of the decision from plaintiff's perspective is provided by a Huffington Post contributor.

British Court Denies Transgender Parent Contact With Children Because of Religious Community's Reaction

A British Family Court in J v. B and the Children, (EWFC, Jan. 30, 2017), has rejected the petition of an Orthodox Jewish father, a member of the Manchester Charedi community who left home to live as a transgender woman, to have direct contact with his five children.  The court limited the father's contact to letters four times a year to the children. The court said in part:

These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education.... Contact carries the clear risk that the children and their mother will become the next casualties in a collision between two unconnecting worlds. The father has already experienced the consequences of that collision, and no one knows better than she does how very painful they can be.....

I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra‐Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact.

The Guardian reports on the decision. [Thanks to Mel Kaufman and Paul deMello for the lead.]

In Israel, A Victory and a Setback For Women's Prayer At Western Wall

In Israel today, proponents of equal rights for women at the Western Wall won a victory in the High Court of Justice. Haaretz reports that the Court ordered an end to special body searches of women suspected of smuggling in Torah scrolls for women to read at the Wall-- a practice strongly opposed by the Orthodox rabbi in charge of the Western Wall space. The decision is in response to a petition to the High Court to allow women to bring in their own Torah scrolls.  It was filed by four women who are members of the split -off "Original Women of the Wall" who want egalitarian prayer in the women's section of the Wall rather than a separate mixed prayer space for men and women that was negotiated by the larger "Women of the Wall" group.  The Court also gave religious authorities 30 days to explain why women cannot pray as they wish in the women's section of the wall, or alternatively to allow them to pray in another area that provides similar proximity to the Western Wall.

Meanwhile The Forward reported Monday that the East Jerusalem Development Authority took down a sign pointing to the existing egalitarian prayer space in the Robinson's Arch area near the Wall after an Orthodox Jewish group complained that it had been put up without a proper permit.

Problems In NY Town Experiencing Explosive Growth of Hasidic Jewish Community

Yesterday's Lower Hudson Journal News carried a very long investigative report titled Ramapo Nears Breaking Point, documenting the dislocations and conflict created by "chaotic, high-density sprawl" in a Rockland County, New York town that has seen explosive growth of its ultra-Orthodox, primarily Hasidic, Jewish community.  Here are a few excerpts from the report on the town of Ramapo:

While unprecedented population growth and a clash of cultures — complete with accusations of favoritism, anti-Semitism, racism and corruption — are symptoms of the changes, the Ramapo story is really one of loose zoning, lax enforcement of fire and building codes, and largely unchecked, out-of-control development....

Often, unchecked expansion is marked by dubious construction methods and materials, such as housing additions made of plywood. Extensions and even new structures are frequently built toward the back of lots, with no street access for emergency vehicles or municipal records of what’s actually there....

Rockland County had the state's highest population percentage increase in 2014.... While demand for housing keeps developers busy — and property values high — the town’s tax base has been eroded by an ever-growing number of tax-exempt yeshivas and synagogues, among other factors.....

The fast and loose nature of Ramapo development receives tacit approval from local officials who critics say rubber-stamp permits and ignore code enforcement. Often, those officials receive campaign contributions from developers.

Surrounding communities in Rockland County are taking legal steps to control development in order to avoid becoming "the next Ramapo."

Suit Challenges Zoning Approval For Temporary Jewish School

A resident of Ramapo, New York filed suit in a state trial court earlier this month challenging the decision of the Ramapo Zoning Appeals Board which allowed an Orthodox Jewish congregation to convert a single family residence into a temporary school.  The Board relied on a provision of the zoning code that allows use of temporary modular trailers as classrooms for up to two years while obtaining approval to build a permanent school. The residence meets fire and building codes.  The complaint (full text) in Katz v. Town of Ramapo, (Rockland Cty Sup. Ct., filed 12/19/2016) contends that zoning authorities should have required the school to go through the procedures to obtain a special use permit, including a public hearing.  According to the Lower Hudson News, zoning officials say it would not make sense to require tearing down of the house and replacing it with temporary modular trailers, and that kind of burden could not be justified under RLUIPA.

Voting Fraud Indictments Are Latest In Battle Over Hasidic Development In NY Town

As reported yesterday by The Forward, since 2012 the village of Bloomingburg, New York has been embroiled in a battle over whether an ultra-Orthodox Jewish community would expand into the town:

To the Orthodox and their allies, resistance to new Jewish neighbors can look like anti-Semitism. To the non-Orthodox, the arrival of a Hasidic community, with its schools and its institutions and its rabbinic authority, can feel like an invasion.

In Bloomingburg, local governments and an Orthodox developer have faced off in court, and in raucous village meetings, amid a volley of accusations of voter fraud and hate crimes.

The Forward article traces what appeared to be the success of Satmar Hasidim in expanding into the village. (See prior Religion Clause postings on Bloomingburg.) However yesterday, the U.S. Attorney's Office for the Southern District of New York announced the indictment (full text) of three men on charges of conspiracy to corrupt the electoral process in Bloomingburg in order to obtain clearance to build a housing development for members of the Satmar community:

In pursuit of millions of dollars in profits from a real estate development project, the defendants allegedly hatched a cynical ploy to corrupt the electoral process in Bloomingburg.  As alleged, to get public officials supportive of their development project elected to local government, the defendants concocted a scheme to falsely register voters who did not live in Bloomingburg, including some who had never even set foot there.  And to cover up their voter fraud scheme, the defendants allegedly back-dated fake leases and even placed toothpaste and toothbrushes in empty apartments to make them appear occupied by the falsely registered voters.  Profit-driven corruption of democracy cannot be allowed to stand no matter who does it or where it happens.

One of those indicted was developer Shalom Lamm whose father, Norman Lamm served for many years as president of Yeshiva University. The Forward reports on the indictments.

A fourth man was indicted and has pleaded guilty to charges of conspiracy to submit false voter registrations. (Full text of Information.)

4th Circuit Hears Employment Discrimination Case

The U.S. 4th Circuit Court of Appeals yesterday heard oral arguments in Abeles v. Metropolitan Washington Airports Authority. (Audio of full oral argument.) In April, a Virginia federal district court rejected plaintiff's claim that she was discriminated against because of her Orthodox Jewish faith when she was suspended for five days after stayed off work on the last two days of Passover. (District court opinion.) Among the issues on appeal are whether plaintiff followed proper procedures in requesting time off, and whether RFRA and the Virginia Religious Freedom Act apply to the case.  Becket Fund has links to documents in the case.

Israeli Rabbinate Will Adopt New Standards Likely To Validate Conversion of Ivanka Trump

As previously reported, in Israel in July the country's Supreme Rabbinical Court (which hears appeals in personal status matters) ruled that it will not recognize religious conversions performed by U.S. modern Orthodox Rabbi Haskel Lookstein.  Lookstein is the New York rabbi who officiated in the conversion of Donald Trump's daughter Ivanka. In recent years, the Israeli Rabbinate has become more restrictive in recognizing conversions performed abroad.  Now however it appears that Donald Trump's victory in the U.S. presidential election has even impacted the Israeli Rabbinate.  According to JTA, in separate announcements yesterday both Israel's Ashkenazi and Sephardi chief rabbis announced that they will convene a meeting next week with the Chief Rabbinate Council and the Supreme Rabbinical Court to create standards for determining which rabbis' conversions will be recognized.  Once a rabbi is on the list, his conversions will be automatically recognized without further investigation. Chief Rabbi Yitzhak Yosef suggested that the standards will result in recognition of Ivanka Trump's conversion.

British Court Rejects Challenge To Jewish Cemetery's Refusal To Allow Exhumation

In Britain this week, a High Court judge has denied an application for leave to obtain judicial review of a decision by a Jewish cemetery that refused to allow a man's body to be exhumed for reburial in Israel.  According to the Jewish Chronicle, the case involves the late Joseph Charazi who was buried in a Jewish cemetery in Hertfordshire in 1993. Charazi was born in Israel and his wife Anne claims his dying wish was to be buried back there. However in 1993 his widow could not afford to send his body that distance. In 2011, his widow herself moved to Israel and now wants to carry out Charazi's wishes even though 4 of Charzi's children oppose the move.  Adath Yisroel Burial Society that administers the cemetery followed a ruling of the rabbinate that the body should not be exhumed.  The court held that a decision of a religious body in a matter of a religious nature is generally not amenable to judicial review.

In Israel, Anti-Noise Bill Aimed At Mosques Falters When Legislators Realize It Also Bars Jewish Sabbath Alerts

The Washington Post reported yesterday that in Israel this week, ultra-Orthodox Jewish government ministers stopped progress in the Knesset (Parliament) on a government-approved bill that would have prevented religious institutions from using loud speakers.  The law was aimed at mosques in which the five-times-per-day calls to prayer are broadcast through loudspeakers attached to the top of minarets.  Jewish Israelis living close to Muslim neighborhoods have complained for years, especially about the early morning calls to prayer that wake them. Arab Israelis had strongly opposed the law, one Arab Knesset member calling it "a populist and racist attempt to incite against the Arab public."  What stopped the bill however was the realization by Orthodox Jewish Knesset members that the bill, written in broad terms, would also outlaw sirens used in Jewish neighborhoods to alert Jews to the start of the Sabbath.

Chabad Files RLUIPA Lawsuit In New Jersey Town

North Jersey.com reports on a RLUIPA lawsuit filed Nov. 1 by an Orthodox Jewish Chabad group against the mayor, property maintenance officer and Zoning Board of Adjustment of Woodcliff Lake, New Jersey. The suit challenges denials of variances and waivers by the zoning board which Chabad sought in order to build a house of worship on its property. According to the report:

The lawsuit ... allege[s] that the congregation has been the victim of a "targeted effort" to block them from developing a house of worship in Woodcliff Lake - something that the congregation alleges has caused "unjustified fear" and "prejudice" of Orthodox Jews. Chabad also alleges that Mayor Carlos Rendo made various statements that Chabad was attempting to "turn the borough into a little Jerusalem" and that the "town will be littered with black hats walking the town on Saturdays," (a reference to Hassidic Orthodox Jews.)

In Israel, Egalitarian Protesters Confront Western Wall Authorities

In Israel today, the conflict between ultra-Orthodox Jewish groups and egalitarian streams of Judaism led to physical clashes at the Western Wall.  Haaretz reports that leaders of the Conservative and Reform movements as well as Women of the Wall broke through security guards and carried Torah scrolls to the Wall in protest of the government's continuing failure to follow through on an agreement to create a separate egalitarian prayer space at the Wall. The group had obtained a permit from police for the demonstration; however the Western Wall Heritage Foundation that controls the area was not informed of this.  Young ultra-Orthodox boys confronted the group with scuffles breaking out. In a statement, Prime Minister Netanyahu's office criticized the protest saying: "unilateral breaches of the status quo in the Kotel harm our attempts to reach a compromise."  But a spokesperson for the protesters said that waiting has yielded no results.

Settlements Revealed In Abuse Cases Against Jewish School

A suit filed last week in state court in New York reveals information about the previously secret settlements by an Orthodox Jewish school in two cases of sexual abuse dating back to the 1970's. The Gothamist and the New York Post report that the settlements totaling $2.1 million were reached in 2014 with two plaintiffs who were abused as young boys by Rabbi Joel "Yehuda" Kolko who was kept on for 25 years as a teacher at Yeshiva Torah Temimah in Brooklyn. The settlements came to light when the victims now filed suit for $1 million of the promised settlements that have not been paid. It has been alleged that Rabbi Kolko had abused numerous other students, though an internal investigation by the school rejected the claims. In 2012 in a plea agreement, Kolko pleaded guilty to two misdemeanor counts of child endangerment.

Lawsuit Claims Kars4Kids Is Using Shell Synagogue To Hide Financial Dealings

Last week, an Orthodox synagogue, Young Israel of Eltingville, filed suit in a New York state trial court against the charity Kars4Kids alleging that the charity is improperly attempting to take over the synagogue located on Staten Island and use it to avoid filings with the Internal Revenue Service. The Forward, PixII, The Gothamist and an earlier New York Post article all report on the lawsuit and its background. In 2007, a former president of the synagogue-- attempting to save it from financial collapse-- entered an arrangement with Oorah, Inc., an Orthodox Jewish charity affiliated with Kars4Kids.  Oorah's name was placed on the deed to the synagogue in exchange for $250,000 and upgrades to the building. Young Israel says that the arrangement was for it to continue to used the sanctuary for worship, while Oorah would use the rest of the building for a preschool and adult classes.  An earlier dispute over whether Young Israel owes Oorah for some of the renovations is in state court after a religious court awarded Oorah $1 million.

In 2008, Rabbi Eliyahu Mintz, president of Oorah and Kars4Kids, incorporated Congregation Oorah and listed its place of worship as the Young Israel synagogue, even though Congregation Oorah apparently conducts no religious services.  In last week's lawsuit, Young Israel alleges that all of this was undertaken to create an entity that is exempt from filing Form 990 with the Internal Revenue Service. This, it is alleged, would allow Kars4Kids, which has a history of questionable financial dealings, to use Congregation Oorah to hide its activities.

Court Approves Contentious Annexation By Kiryas Joel

As reported by the New York Law Journal, a New York state trial court judge last week, in a 97-page decision, upheld actions by the municipalities involved to allow the Village of Kiryas Joel-- inhabited almost entirely by Satmar Hasidic Jews-- to annex 164 acres of land from the Town of Monroe. Respondents contended that opposition to the annexation was motivated by anti-Semitism. Petitioners argued that the annexation reflected Kiryas Joel's desire to engage in religious segregation and to encourage an in-migration of residents from the Hasidic Jewish community in Brooklyn.  While much of the court's opinion dealt with the adequacy of the environmental review involved, the court also dealt with Establishment Clause claims and allegations of discrimination.  In Village of South Blooming Grove v. Village of Kiryas Joel Board of Trustees, (Orange Cnty. Sup. Ct., Oct. 11, 2016), the court held that the individual and organizational challengers lack standing to raise an Establishment Clause claim, and even if they had standing their claim would fail on the merits, saying in part:

The fact that most of the Village's residents belong to the same religious community does not extinguish the secular purpose of the annexation.

The court also rejected petitioners' claim that the annexation violated a provision in the Town of Monroe Ethics Code that prohibits causing voluntary segregation, saying that this is a provision that only applies to recruitment of personnel.

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

In France, right-wing National Front Party leader Marine Le Pen told a TV station this week that if she is elected President next year, she will extend to all public places the ban on "conspicuous religious symbols" like Muslim headscarves that now applies to public schools. As reported today by New Europe, Le Pen says the ban will include the kippah (skullcap) worn by many observant Jews.  She explained:

It is clear that kippahs are not the issue within our country. But for the sake of equality, they should be prohibited. If I requested to ban solely Muslim attire, people would slam me for hating Muslims.

I know it’s a sacrifice, but I think the situation is too serious these days… I think every French person, including our Jewish compatriots, can understand that if we ask them for a sacrifice in order to help fight against the advance of this Islamic extremism… they will make the effort, they will understand, I am absolutely convinced because it will be in the best interests of the nation.

The French Jewish community has condemned Le Pen's proposal. Washington Times surveys Le Pen's chances in the election.

TRO Lifted In Challenge To Kaporos Ceremonies

Just as Yom Kippur was beginning on Tuesday evening, a California federal district court dissolved a TRO that it had issued last week (see prior posting) in a challenge under California's business practices law to the pre-Yom Kippur ritual of kaporos. In addition to lifting the TRO, the court ordered the parties to meet to set a date for a preliminary injunction hearing. (Full text of court order). The case has attracted significant attention, including the filing of an amicus brief by a Houston law professor Josh Blackman. AP reports on developments. The Atlantic says that the restraining order had no effect because defendants (Chabad of Irvine) had not scheduled a ceremony.  Instead Jews performed the koporos ceremony at a local slaughterhouse because of changes in California law.

California Court Issues TRO Against Kaporos Practices

As previously reported, in late September an animal rights group filed suit against Chabad of Irvine in a California federal district court challenging Chabad's promotion of the pre-Yom Kippur ceremony of kaporos that involves use of live chickens which are then slaughtered. (Complaint in United Poultry Concerns v. Chabad of Irvine, (CD CA, filed 9/29/2016)). The complaint contended that defendants are in violation of California's unfair business practices law. On Oct. 6, the court on its own motion ordered plaintiff to show cause why the case should not be dismissed for lack of standing. (Full text of court order.)  On Oct. 7, plaintiff filed a response (full text) arguing in part:

UPC has standing under the Unfair Competition Law based on its diversion of organizational resources spent addressing Defendants’ unlawful activity and attempting to convince authorities to take action. 

The court was apparently convinced.  It issued another order (full text) on Oct 7 granting plaintiff a temporary restraining order barring defendants from killing chickens or other animals in exchange for a fee or donation in violation of California Penal Code Sec. 597(a). It set a hearing on whether to order a preliminary injunction for October 13, the day after Yom Kippur-- effectively barring the pre-Yom Kippur practice by defendants for this year.

Liberal Jewish Groups Ask Israel's High Court To Order Egalitarian Prayer Space At Western Wall

As reported by YNet News, yesterday groups representing Reform and Conservative Judaism and the group Women of the Wall filed an amended petition with Israel's High Court of Justice asking it to order the government to provide egalitarian prayer space at the Western Wall (Kotel).  After long negotiations a compromise had been approved by the government early this year, but the agreement unraveled after objections from ultra-Orthodox parties in the government. (See prior posting.) A press release from the Israel Movement for Reform and Progressive Judaism describes yesterday's court filing:

The petition ... demands ... [establishment of] a permanent, national praying platform, respectable and accessible, serving as an official and organized part of the Kotel site, and which will regularly hold prayer services with no gender separation.... 

Furthermore, the petition demands ensuring suitable budgets for the building and on-going maintenance of the site in one of two ways – either complete implementation of the government decision to establish an egalitarian platform by Robinson’s arch or the establishment of a third prayer platform in the existing Kotel area (alongside a separate men’s and women’s section).

Furthermore, the petitioners demand that as part of the Kotel Heritage Foundation institutions, proper representation shall be given to the Reform and Conservative Movements and to Women of the Wall, and that the regulation regarding subordination to the Chief Rabbinate hereby be omitted from the Foundation regulations.

[Thanks to Scott Mange for the lead.]

Suit Claims Kaporos Violates California's Business Practices Law

A lawsuit was filed last week in a California federal district court by an animal rights group challenging the legality under California law of the pre-Yom Kippur ritual of kaporos (or kapparot) practiced by many observant Jews.  The ritual involves waving a live chicken overhead to symbolically transfer one's sins to it, and then slaughtering the chicken. The complaint (full text) in United Poultry Concerns v. Chabad of Irvine, (CD CA, filed 9/29/2016) alleges that the ritual as implemented by Chabad of Irvine constitutes an "unlawful business practice" under California's Business and Professions Code because the practice violates the state's ban on "intentional and malicious killing of animals" other than for use as food (California Penal Code Sec. 597(a), 599c).  The complaint adds:

taking out vengeance on an innocent animal for one’s own shortcomings is exactly the type of societal evil the legislature sought to prohibit in enacting this provision. 

According to the complaint Chabad charges $27 to each person for furnishing and disposing of the chicken, making a $25 profit per chicken. The suit seeks a preliminary and permanent injunctions and declaratory relief. On Monday, UPC issued a press release announcing the filing of the lawsuit.