President Nominates Feldblum For Another Term on EEOC

Last week President Obama sent to the U.S. Senate the nomination of Chai Rachel Feldblum for another term on the U.S. Equal Employment Opportunity Commission. The nomination is for a term ending July 1, 2018.  (White House press release). Feldblum's current term expires on July 1 of this year. The The EEOC enforces federal employment discrimination laws, including those that ban religious discrimination in employment. Feldblum's initial nomination in 2009 was controversial among conservative Christian groups. (See prior posting.)

New Zealand Pro-Family Organization Appeals Its Deregistration By Charities Board

In New Zealand today, the organization Family First announced that it is filing an appeal with the High Court challenging the decision of New Zealand's  Charities Registration Board to deregister the organization as a charity.  The Charities Registration Board announced earlier this month that Family First, which promotes a traditional definition of marriage and family, does not meet the charitable purposes requirement set out in the Charities Act 2005. The Board explained:

The Board’s position is that Family First's main purpose is to promote particular points of view about family life.  Under the Act promotion of a controversial point of view is a political purpose.

In making its decision the Board determined that Family First does not advance religion or education, nor promote a benefit to all New Zealanders as determined by the Act.

ONE News, reporting on the decision to file the lawsuit, quotes the head of Family First who says that the government's decision is highly politicized.

Recent Articles of Interest

From SSRN:

• Lorin C. Geitner, Social Architecture and the Law: Law, Through the Lens of Religion, (May 10, 2013).
• Joseph E. David, Dwelling within the Law: Nahmanides’ Legal Theology, (Oxford Journal of Law and Religion, (2013), pp. 1–21).
• Thmas C. Berg, Secular Purpose, Accommodations, and Why Religion is Special (Enough), (80 U. Chicago L. Rev. Dialogue 24 (2013)).
• Brian Sheets, Papers or Plastic: The Difficulty in Protecting Native Spiritual Identity, (Lewis & Clark Law Review, Vol. 17, No. 2, 2013).
• Joseph E. David, The Notion of Tolerable Error from the Mishnah to Maimonides, (Toleration within Judaism (The Littman Library of Jewish Civilization, 2013)).
• Thomas C. Berg, Progressive Arguments for Religious Organizational Freedom: Reflections on the HHS Mandate, (Journal of Contemporary Legal Issues, Forthcoming).
• Justin Roth Muehlmeyer, Toward a New Age of Consumer Access Rights: Creating Space in the Public Accommodation for the LGBT Community, Cardozo Journal of Law and Gender, Forthcoming.
• Noemi Gal-Or, Let's Debate: State and Religious Freedoms in Canadian Democracy, (Journal of Parliamentary and Political Law/Revue de droit parlementaire et politique, VII (2), (2013, Forthcoming)).
• James E. Fleming  and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues, (Harvard University Press, 2013).
• Louis-Philippe Raynault-Ollu, Sunday Observance Laws in North America (February 20, 2012).

From SmartCILP:

• Jacob E. Dean, "Do You Have That New Church App for Your iPhone?"--Making the Case for a Clearer and Broader Definition of Church Under the Internal Revenue Code, [LEXIS link], 46 Creighton Law Review 173-206 (2013).
• Radwa S. Elsaman and Ahmed Eldakak, Is the Middle East Moving toward Islamism After the Arab Spring? The Case Study of the Egyptian Commercial and Financial Laws, 12 Richmond Journal of Global Law & Business 1-22 (2012).

As Memorial Day Approaches, Some Attention Returns To Veterans' Grave Markers

As Memorial Day approaches (Presidential Proclamation), at least some attention has been focused on the "emblems of belief" that are available to be placed on government-furnished headstones or markers for veterans.  The Department of Veterans Affairs furnishes at government expense a headstone or marker for deceased veterans, or in some cases a medallion to be placed on a privately purchased headstone. (National Cemetery Administration release.) (38 CFR Sec. 38.630).  Some 56 different emblems are currently approved. (National Cemetery Administration listing.) If an emblem representing a deceased veteran's religious beliefs is not currently available, the next of kin may apply for an emblem to be added representing those beliefs.  Earlier this month, at least some in the blogosphere reported on the May 2 addition of Thor's Hammer to the list of approved emblems (The Wild Hunt blog), indicating that a campaign for adding it began after the 2007 addition of the Pentacle. (The Wild Hunt blog.) It appears that 18 belief emblems have been added since 2007, including an emblem for the Unification Church also added in May. Here is the National Cemetery Administration's statement on criteria for approving a new emblem:

An emblem of belief for inscription on a Government headstone or marker is an emblem or symbol that represents the sincerely held belief of the decedent that constituted a religion or the functional equivalent of religion and was believed and/or accepted as true by that individual during his or her life. The belief represented by an emblem need not be associated with or endorsed by a group or organization.

Emblems of belief for inscription on Government headstones and markers do not include social, cultural, ethnic, civic, fraternal, trade, commercial, political, professional or military emblems. VA will not inscribe any emblem on a headstone or marker that would have an adverse impact on the dignity and solemnity of cemeteries honoring those who served the Nation. Emblems that would not be permitted include (but are not limited to), emblems that contain explicit or graphic depictions or descriptions of sexual organs or sexual activities that are shocking, titillating, or pandering in nature; and emblems that display coarse or abusive language or images.

[Thanks to God and Country blog for the lead.]

Recent Prisoner Free Exercise Cases

In Gonzalez v. Governor of State of Washington, (9th Cir., May 22, 2013), the 9th Circuit dismissed under the Rooker-Feldman doctrine an inmate's claim that state court judges violated his free exercise rights by refusing to transfer his case to an ecclesiastical tribunal.

In Phillips v. Toliver, 2013 U.S. Dist. LEXIS 71337 (ED CA, May 20, 2013), a California federal magistrate judge permitted a Muslim inmate to proceed against the jail chaplain under RLUIPA complaining about denial of Friday Jum'ah congregational prayer time.  He was given leave to amend his complaint to add other individuals as defendants.

In Furnace v. Giurbino, 2013 U.S. Dist. LEXIS 71357 (ED CA, May 17, 2013), a California federal magistrate judge recommended dismissing on collateral estoppel grounds a suit by an inmate who practices Shetaut Neter that he was not furnished a Kemetic diet.  Plaintiff was permitted to move ahead with some of his claims based on denial of necessary religious items.

In Al-Ameen v. Kilby Correctional Facility, 2013 U.S. Dist. LEXIS 70272 (MD AL, May 17, 2013), an Alabama federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 71549, April 3, 2013) and dismissed on statute of limitations grounds an inmate's objections to an officer's refusal to process him into a facility without his furnishing his commitment name, in addition to his religious name.

In Taylor v. Cook County, 2013 U.S. Dist. LEXIS 72890 (ND IL, May 23, 2013), an Illinois federal district court dismissed on various procedural and substantive grounds and inmate's complaint that he was prevented from attending communal Islamic prayer services for the first two months he was in the Cook County Jail, that the jail does not serve Halal meats, and that he was not allowed to observe his Ramadan fast.

In Holtz v. Karr, 2013 U.S. Dist. LEXIS 74014 (WD WA, May 24, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 74091, April 23, 2013) and ordered that plaintiff file an amended complaint supporting his claim that Christian prisoners are provided a sponsor and religious services, while Muslim and other prisoners are not.

In Dowdy-El v. Caruso, 2013 U.S. Dist. LEXIS 73612 (ED MI, May 24, 2013), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 188171 (July 24, 2012) and allowed a class action to proceed by Muslim inmates challenging provision of a halal diet and the impact of the work-release program on ability to attend Friday afternoon Jum'ah prayer services. The court entered judgment (without class certification) requiring plaintiffs be able to participate in Eid feasts when they have conflicting work detail.

Hawaii Appeals Court Rejects Free Exercise Defense To Marijuana Charges

In State of Hawai's v. Harris, (HI App., May 20, 2013), the Hawaii Intermediate Court of Appeals rejected a free exercise of religion defense raised by the president of Sacred Truth Mission church to drug charges.  A greenhouse next to the church contained 60 marijuana plants. Defendant Nancy Harris said she is a Rastafarian who uses marijuana for religious purposes. The court also rejected Harris' privacy, equal protection and void-for-vagueness defenses.

Greece Appoints Chaplains To Teach Qur'an In Greek In Thracian Schools and Mosques

OnIslam reports today that in Greece the government-- in a controversial move-- has appointed 90 chaplains to teach the Qur’an in Greek to minority children at mosques and state schools in Western Thrace.  About one-third of Western Thrace's population is Muslim.  Most are of Turkish origin. Others are Pomaks and Romas. The chaplains appointed must be Greek citizens and members of the minority group they are teaching. This follows passage last January of the so-called "240 Imams Law" which provides officials serving in Western Thracian mosques will be appointed by a board of 5 persons including Christian Greek citizens. The law was strongly opposed by the Turkish minority, who were not consulted in its drafting.

Activist Alton Lemon, of "Lemon Test" Fame, Dies At 84

The New York Times reports today on the death earlier this month of Alton T. Lemon, first-named plaintiff in the famous 1971 Supreme Court case of Lemon v. Kurtzman. Lemon was a civil rights activist who objected to state aid to parochial schools. He was the first African-American president of the Ethical Humanist Society of Philadelphia. The lawsuit which developed the test generally used to decide Establishment clause cases was brought by six religious, civil rights and educational groups and two other taxpayers as well. Mr. Lemon, who was 84 years old when he died on May 4, was a graduate of Morehouse College and the University of Pennsylvania. He served in the army and later worked in a series of government jobs.  He was also active in the NAACP and the ACLU.

Full 10th Circuit Hears Oral Arguments In Hobby Lobby Case

Yesterday, in the most prominent of the many cases filed by small businesses challenging the Affordable Care Act contraceptive coverage mandate, an 8-judge en banc panel of the U.S. 10th Circuit Court of Appeals heard arguments in  Hobby Lobby Stores Inc. v. Sebelius. In an unusual procedure the court previously decided to hear the case en banc without it first being heard by a 3-judge panel. (See prior posting.) While the 10th Circuit does not make audio recordings of oral arguments available, AP reported on the arguments.  Hobby Lobby's attorney, citing the Supreme Court's Citizen's United case, argued that corporations have protected religious liberty rights. He said that Hobby Lobby is a "profit-making company, yes, but also a ministry."  The Justice Department argued: "If you make an exemption for the employer, it comes at the expense of the employee" who is unable to get health care coverage.

Muslim School Can Maintain RLUIPA Substantial Burden and Establishment Clause Claims

Muslim Community Association of Ann Arbor v. Pittsfield Charter Township, (ED MI, May 22, 2013), is a suit by a pre-K -12 Islamic school challenging the refusal of a township board to approve a rezoning request to allow it to use property it purchased for a new school and community center. Plaintiff claimed that the rezoning denial was motivated in part by anti-Muslim sentiment. The court dismissed plaintiff's RLUIPA limitations and exclusion claim, its free exercise, freedom of speech and association, and 14th Amendment claims and comparable claims under the Michigan constitution However it permitted plaintiff to move ahead with its RLUIPA discrimination and substantial burden claims and its Establishment Clause claim against defendants in their individual capacities.

Catholic Religious Order Reaches $16.5 Million Bankruptcy Settlement With Abuse Victims

Today's Chicago Tribune reports that a Catholic religious order now in Chapter 11 bankruptcy proceedings-- the Edmund Rice Christian Brothers North American Province-- has agreed to a $16.5 million settlement with 400 priest sexual abuse claimants nationwide.  The order also agreed to enforce a zero-tolerance policy for brothers accused of sexual abuse. Earlier this month, frustrated with the inability to reach a settlement in bankruptcy court, 31 Chicago men who were victims of abuse by members of the Order filed suit in state court. (See prior posting.)

Boy Scouts Approve Membership For Gays

The Boy Scouts of America announced that its National Council has approved a Membership Standards Resolution removing the restriction on gays becoming scout members. However the ban on gays serving as scout leaders remains.  Yesterday's BSA press release said:

Today, following this review, the most comprehensive listening exercise in Scouting's history the approximate 1,400 voting members of the Boy Scouts of America's National Council approved a resolution to remove the restriction denying membership to youth on the basis of sexual orientation alone. The resolution also reinforces that Scouting is a youth program, and any sexual conduct, whether heterosexual or homosexual, by youth of Scouting age is contrary to the virtues of Scouting. A change to the current membership policy for adult leaders was not under consideration; thus, the policy for adults remains in place. The BSA thanks all the national voting members who participated in this process and vote.

According to AP, some 61% of the members of the National Council who cast a ballot voted in favor of the Resolution. In a Points of Clarification memo, the Scouts say:

Some have asserted that the proposed change for youth runs counter to values of and raises concerns among Scouting's religious chartered organizations. We are unaware of any major religious chartered organization that believes a youth member simply stating he or she is attracted to the same sex, but not engaging in sexual activity, should make him or her unwelcome in their congregation.

In a statement issued last month, the Mormon Church-- the largest sponsor of scout troops in the country-- indicated its approval of the Scouts' new approach. But other denominations are split on the issue. (See prior posting.)  Southern Baptist leaders have expressed strong opposition to the change. Scout membership standards still require scouts to "subscribe to and abide by the precepts of the Declaration of Religious Principle (duty to God)."

Houston Police Sued By Street Preacher

On Wednesday the Thomas More Law Center announced that it has filed a federal civil rights action on behalf of a Houston, Texas Christian street preacher who was arrested three different by Houston police. According to the press release:

[David] Allen’s three arrests occurred while he was preaching the Gospel message against the sins of abortion, homosexuality, and adultery on public sidewalks in Houston, Texas.  His preaching included donning a wool prayer shawl called a “Tallit” and sounding a ram’s horn known as a “Shofar”.

The complaint (full text) in  Allen v. City of Houston, (SD TX, filed 5/15, 2013) alleges violation of plaintiff's free exercise, free speech, and 4th Amendment rights. The Examiner reports on the lawsuit.

Court Reconsiders Ripeness Holding In Affordable Care Act Case

In March, a Pennsylvania federal district court dismissed on ripeness grounds a challenge to the Affordable Care Act contraceptive coverage mandate brought by the religiously-sponsored Geneva College. (See prior posting.) Now, however, in Geneva College v. Sebelius, (WD PA, May 8, 2013) the court has granted Geneva College's motion for reconsideration and decided the case is ripe because of the short time frame it has to negotiate the terms of student health insurance plans for the coming academic year. The court said:

Geneva’s ability to negotiate is fundamentally impacted by the final rules and the proposed rules, none of which alleviate its religious objections to the mandate. Geneva cannot, therefore, simply carry on as though nothing will happen.

Then the court went on to deny the government's motion to dismiss free exercise, RFRA and Administrative Procedure Act claims, but did dismiss without prejudice Establishment Clause and free speech claims. It dismissed with prejudice plaintiffs' due process claims. In making these rulings the court relied largely on its opinion in March relating to claims of a private business and its owners, all of whom were co-plaintiffs with Geneva College. IFA Webnews reported yesterday on the decision.

Pussy Riot Band Member Denied Parole After She Goes On Hunger Strike

Reuters and The Guardian reported yesterday that in Russia, Pussy Riot punk rock band member Maria Alyokhina who is serving a two-year jail sentence for the group's anti-Putin  protest performance in Moscow's Christ the Savior Cathedral (see prior posting) has now gone on a hunger strike.  She is protesting a court's refusal to allow her to be personally present at her parole hearing. She was only allowed to attend by video link, and had to file all motions by fax. In protest she also barred her lawyers from representing her further during the hearing. According to Radio Free Europe, the parole hearing resumed today, with a court-appointed lawyer representing Alyokhina. The court, in the Russian town of Berezniki then denied her parole request.

Faith Healing Couple Charged With 3rd Degree Murder In Death of Second Child

UPI reports that in Philadelphia, prosecutors yesterday charged Catherine and Herbert Schaible with third degree murder in the faith healing death of their 7-month old son who died of bacterial pneumonia and dehydration. (See prior posting.)  The charges came after the medical examiner ruled Tuesday that the death was a homicide. The couple had previously been convicted of manslaughter and sentenced to 10 years' probation in the death of another of their children for whom they failed to seek medical treatment. The couple belong to the First Century Gospel Church which teaches that illness is to be healed through prayer.

7th Circuit Hears Oral Arguments In 2 Contraceptive Coverage Mandate Cases

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in two cases challenging the Affordable Care Act contraceptive coverage mandate.  One was Korte v. U.S. Department of Health and Human Services (Audio of the full oral argument).  In the case, an Illinois federal district court denied a preliminary injunction sought by a for-profit construction business and its controlling shareholders in a free exercise challenge to the contraceptive coverage mandate under the Affordable Care Act.  (See prior posting.) The 7th Circuit then issued an injunction preventing enforcement while the appeal was pending. (See prior posting.) Reporting on yesterday's arguments, the Chicago Tribune said:

[I]n an unexpected twist ... the lawyer for the U.S. government argued that accommodating the business owners' religious beliefs could violate the First Amendment as well.... Alisa Klein, an attorney for the U.S. Department of Justice, said allowing a company to impose a religious framework on a diverse workforce would amount to fostering or enabling religious practice.

The second case argued yesterday was Grote v. Sebelius. (Audio of the full oral argument.) In the case an Indiana federal district court refused to grant a preliminary injunction to a for-profit business that manufactures vehicle safety systems and its Catholic owners who claim that their religious liberty rights are infringed by the mandate. (See prior posting.) The 7th Circuit in this case also issued an injunction preventing enforcement while the appeal is pending. (See prior posting.)

Arizona State Legislator Objects To Invocation Delivered By Atheist House Member

AP today reports on an unusual controversy in Arizona over the opening prayer offered by one member of the state House of Representatives.  Members of the House rotate in offering the invocation. On Tuesday it was Rep. Juan Mendez's turn.  With members of the Secular Coalition for Arizona in the visitor's gallery, Mendez, an atheist, asked House members not to bow their heads but to instead look around at each other "sharing together this extraordinary experience of being alive and of dedicating ourselves to working toward improving the lives of the people of our state." The next day, Rep. Steve Smith complained that Mendez's remarks did not qualify as a prayer. He asked other House members to join him in a second prayer in repentance for there not being one the prior day. Smith said that Mendez's remarks were analogous to someone leading the Pledge of Allegiance by  pledging "I love England."

Texas Legislature Passes Bill On Winter Holidays In Schools

On Monday, the Texas legislature gave final passage and sent to the governor for his signature HB 308 that attempts to protect public schools' teaching about Christmas and Hanukkah.  The bill provides:

(a) A school district may educate students about the history of traditional winter celebrations, and allow students and district staff to offer traditional greetings regarding the celebrations, including: (1)"Merry Christmas"; (2)"Happy Hanukkah"; and (3)"happy holidays."

(b) Except as provided by Subsection (c), a school district may display on school property scenes or symbols associated with traditional winter celebrations, including a menorah or a Christmas image such as a nativity scene or Christmas tree, if the display includes a scene or symbol of: (1) more than one religion; or (2) one religion and at least one secular scene or symbol.

(c) A display relating to a traditional winter celebration may not include a message that encourages adherence to a particular religious belief.

National Post reports on the bill's passage.

Arizona Legislature Gives Final Passage Expansion of Sate RFRA; 2 Other Bills Near Final Legislative Action

In Arizona yesterday, the state Senate gave final passage, and sent to the Governor for her signature, SB 1178, which significantly expands Arizona's Religious Freedom Restoration Act. The bill allows a person whose religious exercise "is likely to be burdened" to sue because of the impending violation, without waiting for the infringement to actually occur.  The bill also allows RFRA to be asserted whenever state action burdens religion, even if the state is not a party to the litigation. The Center for Arizona Policy has additional background information on the bill. AP reports on the Senate's action on SB 1178, as well as on two other bills that are nearing final passage-- HB 2446 (bill status and text) that expands the property tax exemption to cover certain vacant land held by churches for expansion, and HB 2645 (bill status and text) that exempts church pre-schools from the requirements of unemployment compensation tax.