New Orleans Amends "Aggressive Solicitation" Ordinance As Litigation Goes On

AP reports that on Thursday, the city of New Orleans revised its "aggressive solicitation" ordinance to eliminate the ban on loitering or gathering on Bourbon Street to disseminate "any social, political, or religious message between the hours of sunset and sunrise." The change also eliminated the ban on "conduct which reasonably tends to arouse alarm or anger in others." A federal court last September issued a TRO barring enforcement of the ordinance in a suit brought by a street preacher who was arrested during the Southern Decadence gay pride festival in 2012. (See prior posting.)

Recent Prisoner Free Exercise Cases

In LeBaron v. Spencer, (1st Cir., July 22, 2013), the 1st Circuit permitted a Messianic Jewish inmate to move ahead with his 1st Amendment and RLUIPA challenges seeking a kosher diet, access to a Messianic synagogue and group prayer, but dismissed his equal protection, retaliation and due process conspiracy claims.

In Knight v. Thompson, (11th Cir., July 26, 2013), the 11th Circuit rejected Native American inmates' RLUIPA challenge to Alabama prison system grooming rules that prohibited them from wearing long hair as required by their religion. The court held that the short-hair policy for male inmates is the least restrictive means of furthering compelling governmental interests in security, discipline, hygiene and safety.

In Nelson v. Jackson, 2013 U.S. Dist. LEXIS 102121 (SD OH, July 18, 2013), an Ohio federal magistrate judge recommended allowing a Jewish inmate to proceed with his free exercise, RLUIPA and 8th Amendment claims growing out of his complaint that while in the kosher meal program he was served meat and dairy together at the same meal and was required to cook his meal on the Sabbath. The court however denied plaintiff's request for a preliminary injunction.

In Green v. Dart, 2013 U.S. Dist. LEXIS 103182 (ND IL, July 23, 2013), an Illinois federal district court dismissed a complaint by a maximum security pre-trial detainee that he has been unable to meet with a Baptist minister and attend religious services in a chapel.

In Porter v. Wegman, 2013 U.S. Dist. LEXIS 103959 (ED CA, July 22, 2013), a California federal magistrate judge recommended granting a preliminary injunction requiring that an inmate be provided a kosher diet during the eight-day period of the Spring 2014 Yahweh Passover Feast of Unleavened Bread.

In Muhammad v. Arizona Department of Corrections. 2013 U.S. Dist. LEXIS 104317 (D AZ, July 25, 2013), an Arizona federal district court permitted a Muslim inmate to proceed with his complaints regarding a lack of pre-sunrise meals during Ramadan, denial of a religious diet, and refusal to allow him to openly wear a kufi. A number of other claims were dismissed, including his complaint that he was prohibited from gathering 5 times a day with other Ahlus-Sunnah Wal-Jamaah Muslims for prayer.

In Baze v. Parker, 2013 U.S. Dist. LEXIS 104708 (WD KY, July 25, 2013), a Kentucky federal district court dismissed a death row inmate's complaint about the denial of a pastoral visit to him.

In Jenkins v. Meyers, 2013 U.S. Dist. LEXIS 105165 (ED WA, July 25, 2013), a Washington federal district court dismissed a Muslim inmate's complaint that prayer oil he ordered was rejected because the vendor he used was no longer an authorized vendor.

In Toland v. Williams, 2013 U.S. Dist. LEXIS 104440 (SD GA, July 25, 2013), a Georgia federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 105213, June 13, 2013) and dismissed an inmate's complaint that he did not receive religiously-mandated vegan meals.

5th Circuit Dismisses "Candy Cane" Religious Expression Case For Failure To Use Certified Mail In Pre-Suit Notice

In the so-called "candy-cane case", Morgan v. Plano Independent School District, (5th Cir., July 26, 2013), the U.S. 5th Circuit Court of Appeals yesterday, in a 2-1 decision, dismissed the remaining claims on jurisdictional grounds because plaintiff gave notice of his lawsuit to the school by fax, regular mail and e-mail, rather than by certified mail return receipt requested as specified in the Texas Religious Freedom Restoration Act (TFRA), Sec. 110.006.  In the suit, originally filed 8 years ago by parents of several elementary school students, plaintiffs challenged school policy which allowed students to distribute only secular gifts, not religious ones, at the school's annual winter break party. The policy prevented  a third-grader from distributing a “candy cane ink pen” with a laminated card containing a religious message about the legend of the candy cane and its Christian origins. The majority opinion by Judge Davis held that TFRA's pre-suit notice requirement is a jurisdictional prerequisite to bringing suit.  Judge Elrod, dissenting, would have certified to the Texas Supreme Court the question of whether or not TRFRA's notice-by-certified mail requirement is jurisdictional. (See prior related posting.)

Obama Hosts Annual White House Iftar Dinner

On Thursday night, President Obama hosted the White House's annual Iftar dinner to mark Ramadan.  In his remarks (full text) he said in part:

Here at the White House, we now have a tradition of celebrating the sacred days of our various faiths.  And these are occasions to reflect on the teachings that so many religions share; to celebrate the diversity that defines our country; and to reaffirm one of our most deeply held beliefs, that here in America and around the world, people should be free to choose the God that they worship however they choose, to practice their faiths freely, or to practice no faith at all.

Honored guests at this year's event were Muslim entrepreneurs and innovators. Obama said:

Throughout our history, Islam has contributed to the character of our country, and Muslim Americans, and their good works, have helped to build our nation -- and we’ve seen the results.  We’ve seen those results in generations of Muslim immigrants -- farmers and factory workers, helping to lay the railroads and build our cities.  Muslim innovators who helped build some of our highest skyscrapers and who helped to unlock the secrets of our universe. 

Every day, Muslim Americans are helping to shape the way that we think and the way that we work and the way that we do business.  And that’s the spirit that we celebrate tonight -- the dreamers, the creators whose ideas are pioneering new industries, creating new jobs and unleashing new opportunities for all of us.

3rd Circuit Rejects ACA Challenge: For-Profit Corporations Cannot Engage In Religious Exercise

In Conestoga Wood Specialties Corp. v. Secretary of U.S. Department of Health and Human Services, (3rd Cir., July 26, 2013), the U.S. 3rd Circuit Court of Appeals in a 2-1 decision denied a preliminary injunction sought by a family-owned business to stop enforcement of the Affordable Care Act contraceptive coverage mandate.  Rejecting free exercise and RFRA claims, Judge Cowan's majority opinion held that "for-profit, secular corporations cannot engage in religious exercise," and the conscience rights of the owners of a corporation do not pass through to the corporation.  Cowan in his majority opinion wrote, in part:

We are unable to determine that the "nature, history, and purpose" of the Free Exercise Clause supports the conclusion that for-profit, secular corporations are protected under this particular constitutional provision....

We recognize the fundamental importance of the free exercise of religion.... Thus, our decision here is in no way intended to marginalize the Hahns' commitment to the Mennonite faith. We accept that the Hahns sincerely believe that the termination of a fertilized embryo constitutes an ―intrinsic evil and a sin against God to which they are held accountable ... and that it would be a sin to pay for or contribute to the use of contraceptives which may have such a result. We simply conclude that the law has long recognized the distinction between the owners of a corporation and the corporation itself. A holding to the contrary—that a for-profit corporation can engage in religious exercise—would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.

Judge Jordan, dissenting, wrote in part:

 My colleagues, at the government's urging, are willing to say that the Hahns' choice to operate their business as a corporation carries with it the consequence that their rights of conscience are forfeit.

That deeply disappointing ruling rests on a cramped and confused understanding of the religious rights preserved by Congressional action and the Constitution. The government takes us down a rabbit hole where religious rights are determined by the tax code, with non-profit corporations able to express religious sentiments while for-profit corporations and their owners are told that business is business and faith is irrelevant. Meanwhile, up on the surface, where people try to live lives of integrity and purpose, that kind of division sounds as hollow as it truly is.

[Thanks to Jeffrey Pasek for the lead.] 

Malaysian Court Invalidates Father's Conversion of Children To Islam Without Mother's Consent

AFP reports that a Malaysian high court yesterday ruled that the 2009 conversion to Islam of three Hindu children to be unconstitutional.  The court said that the father-- who converted to Islam and brought the children with him-- had failed to take the mother and children to Islamic authorities for their consent to the conversion.  If the conversion had been upheld, the Hindu mother of the children would lose custody-- which a court granted her in 2010-- since under Shariah law, a non-Muslim parent cannot share custody of converted children. Earlier this month, the government withdrew a proposal to change Malaysian law to allow conversions of children to Islam by one parent.

UPDATE: The full text of the opinion in In re the Certificate of Conversion to Islam, (High Court, July 25, 2013) is now available online.

House Debates Atheist/ Humanist Chaplains In Defense Appropriations Bill

On July 23, the House of Representatives, by a vote of 253-173, approved an amendment to HR 2397, the 2014 Department of Defense Appropriations Act, requiring that all military chaplains must receive an endorsement from a qualified religious organization.  The amendment, introduced by Rep. Fleming of Louisiana, provides:

None of the funds made available by this Act may be used to appoint chaplains for the military departments in contravention of Department of Defense Instruction 1304.28, ....

The amendment generated an interesting debate (full text). Here are some excerpts:

  Mr. FLEMING....   My amendment is fairly simple. The DOD is permitted to appoint military chaplains--individuals who minister to the spiritual needs of any and all members of the armed services--in accordance with the current DOD policy. Chaplains must possess appropriate educational credentials, 2 years of religious leadership experience, and, more importantly, must receive an endorsement from a qualified religious organization attesting to the tenets of the endorser's faith.

 In June, the Members of this body--Democrats and Republicans alike--twice affirmed that the military is not permitted to appoint atheist chaplains. Despite these recent votes and by completely bypassing Congress--the voice of the people--and current DOD standards, it has been confirmed that the military is considering the possibility of appointing an atheist chaplain. Since the formation of the chaplaincy in 1775, chaplains have been affiliated with faith and spirituality. By definition, chaplains minister to the spiritual needs of our men and women in the armed services--a vital function that an individual without any inclination towards spirituality would not be able to perform....

     Mr. POLIS. [Colorado]. Mr. Chairman, I rise in opposition to the Fleming amendment.

I think there is a basic misunderstanding here about the needs of people who lack a particular faith tradition. I would also point out that we already ordain nontheistic chaplains in our military, including Buddhists, which is a nontheistic faith. Some Unitarians may also have a nontheistic faith tradition. However, over 20 percent of the members of our military identify as nonbelievers. While, of course, their needs should be catered to by members of the chaplaincy from diverse faiths, it's only fair to have their humanism, or outlooks, represented....

Now, to be clear, the military has not announced plans to move forward with ordaining humanist chaplains; but what this amendment does is to lock in place a 2004 rule, placing it in statute and preventing the military, even if they feel the need should arise for the good of the chaplaincy, from having the flexibility they need to appoint humanist chaplains....

Mr. BRIDENSTINE....  My constituents back in Oklahoma are shaking their heads. The secular left is so invested in ripping God from everything that I must stand here with my friend Dr. Fleming in order to prohibit Obama's Department of Defense from establishing an oxymoron--atheist chaplains....

   Mr. POLIS....  Increasingly, there are seminaries who prepare humanist chaplains for ordination and work in the field, in hospitals, in universities, and again in the militaries that have them. I personally hope that this is a direction that our military considers in the future....

   Mr. FLEMING. Mr. Chairman, first of all, with all due respect to my good friend from Colorado, there is no way that an atheist chaplain or atheist whatever can minister to the spiritual needs of a Christian or a Muslim, or a Jew, for that matter....

   In the final analysis, I believe that an atheist chaplain would be the last person in the world that we would want for a dying soldier who needs that last moment of counseling in their life.

Huffington Post, reporting on the amendment, suggests that the actual language of the amendment will not prevent appointment of humanist chaplains:

Jason Torpy, president of the Military Association of Atheists and Freethinkers, points out that military regulations already require that chaplains be endorsed — and not necessarily by an organization of believers in a divinity.

“The language (of the amendment) only requires adherence to the applicable instruction, which in no way restricts chaplains to only those who believe in some higher power,” he said. “Their amendment does nothing, so there’s nothing to be done in response. It just shows their ignorance about atheists, humanists, and military regulations.”

As reported by Christian Fighter Pilot blog, the House twice voted down an earlier amendment by Rep. Polis that would have specifically authorized appointment of chaplains  endorsed by non-theistic organizations.

On July 24, the House passed the full Appropriations bill by a vote of 315- 109 and sent it to the Senate for consideration.

North Carolina Legislature Passes Law Described As Anti-Sharia Bill

The North Carolina legislature gave final passage yesterday, and sent to the governor for signature, HB 522 (full text), described by its supporters as a ban on enforcement of Sharia law. (Background from WFAE News.) The Act only applies to divorce, alimony and child custody cases. The bill prohibits the application of foreign law, or of any contract provisions, that would violate a party's fundamental constitutional rights.

UPDATE: RNS reported on Aug. 26 that Gov. Pat McCrory has allowed the bill to become law without formally signing it.

Pennsylvania County Issues Same-Sex Marriage Licenses Despite State Law Ban

AP reports that in Montgomery County, Pennsylvania (suburban Philadelphia), the county's Register of Wills, D. Bruce Hanes, has begun to issue marriage licenses to same-sex couples, despite the legal ban on such marriages in the state.  Hanes says he wants to come down "on the right side of history and the law." At least 5 same-sex couples were issued marriage license yesterday.  The county's district attorney says that the marriage licenses are not legal, but that the remedy for issuing an invalid does not include intervention by the district attorney. The state's attorney general has previously said that she will not defend the state's same-sex marriage ban, leaving enforcement to the governor's office.

Hotel Settles EEOC Suit Charging Failure To Accommodate Seventh Day Adventist Employee

The EEOC announced Tuesday the settlement of a lawsuit it had filed against a Nags Head, North Carolina hotel charging that the Comfort Inn's new management refused to continue a religious accommodation for a Seventh Day Adventist employee so she would not have to work on her Sabbath (sundown Friday to sundown Saturday).  In the settlement, the hotel agreed to pay $45,000 in damages to the fired employee, and to implement policies and training to prevent religious discrimination in the future.

Another Contraceptive Coverage Mandate Challenge-- This Time By PLC Law Firm and Its Principals

Yet another lawsuit challenging the Affordable Care Act's contraceptive coverage mandate has been filed-- this one by an employer that is a law firm organized as a Michigan professional limited liability company.  The federal court lawsuit was filed by the PLC and by the two brothers who are each 50% owners of the firm. One brother is Catholic and the other is Protestant.  The complaint (full text) in Willis & Willis PLC v. Sebelius, (D DC, filed 7/24/2013), challenges required coverage for contraceptives plaintiffs consider to be abortifacients.  Alleging 1st Amendment, RFRA and APA violations, the complaint contends in part:

Had Plaintiffs’ religious beliefs, or the beliefs of the millions of other Americans who share Plaintiffs’ religious beliefs been obscure or unknown, the Defendants’ actions might have been an accident. But because the Defendants acted with full knowledge of those beliefs, and because they arbitrarily exempt some plans for a wide range of reasons other than religious conviction, the Mandate can be interpreted as nothing other than a deliberate attack by the Defendants on Christianity, the religious beliefs held by Plaintiffs and the similar religious beliefs held by millions of other Americans.

Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Yosef and Lau Win Chief Rabbinate Election In Israel

According to reports by the Jerusalem Post and Times of Israel, the sons of two former chief rabbis were elected to ten year terms as the new Sephardi and Ashkenazi chief rabbis of Israel today.  Yitzhak Yosef, son of Shas party leader Ovadia Yosef, was chosen as the next Sephardi chief rabbi, beating out, among others,  Shmuel Eliyahu who had been criticized for allegedly racist statements.  David Lau, son of Yisrael Meir Lau, was elected Ashkenazi chief rabbi, dashing the hopes of those who backed David Stav, a moderate who represented the religious Zionist movement. (Background.) In the bitterly-fought election that originally involved 10 candidates, both Yosef and Lau received 68 of the 147 ballots actually cast. (See prior related posting.)

Would European Court Override Conscience Protections In British Same-Sex Marriage Law? Sikhs Fear So.

The Telegraph reported this week that in Britain the advisory group Sikhs In England has suggested to Sikh gurdwaras that they deregister themselves as venues for civil weddings to avoid possible legal challenges for refusing to conduct same-sex marriages which have recently been legalized in Britain. (See prior posting.) If Sikh temples follow the advice, they would be able to conduct religious marriage ceremonies, but couples would be required to have a separate civil ceremony elsewhere as well. While the new same-sex marriage law contains safeguards against compelling anyone with religious objections to perform or take part in same-sex ceremonies, Sikhs in England is concerned that the European Court of Human Rights might override these protections.

County Enjoined From Opening Board Meetings With Sectarian Prayer

ACLU reports that yesterday a North Carolina federal district court issued a preliminary injunction in  Lund v. Rowan County, barring the Rowan County (NC) Board of Commissioners from "knowingly and/or intentionally delivering or allowing to be delivered sectarian prayers" at official Board of Commissioners meetings. In March the ACLU filed suit on behalf of three local citizens complaining that 139 of the past 143 Rowan County Board of Commissioners meetings were opened with prayers that concluded with references to Jesus or other Christian concepts. (See prior posting.)  AP also reports on the decision.

USCIRF Elects New Chair, Vice-Chairs

The U.S. Commission on International Religious Freedom yesterday held its annual election for Chair of the Commission.   A USCIRF press release reports that Robert P. George, McCormick Professor of Jurisprudence at Princeton University and a Visiting Professor at Harvard Law School, was elected, succeeding Dr. Katrina Lantos Swett.  Also yesterday Dr. Swett and M. Zuhdi Jasser were elected Vice-Chairs.

Ohio's Refusal To Recognize Maryland Same-Sex Marriage Held Likely Unconstitutional

In Obergefell v. Kasich, (SD OH, July 22, 2013), an Ohio federal district court granted a temporary restraining order requiring the state to recognize the validity of a same-sex marriage performed in Maryland.  The court, relying on the U.S. Supreme Court's recent Windsor decision, as well as its earlier decision in Roemer v. Evans, held in a 15-page opinion:

Quintessentially, Plaintiffs have established a substantial likelihood that they will prevail at trial on their claim that by treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied here, violates the United States Constitution which guarantees that "No State shall make or enforce any law which shall ... deny to any person within its jurisdiction equal protection of the laws."

Plaintiffs had been living together in a committed relationship for over 20 years. They recently traveled to Maryland to marry as one of the two, John Arthur, was approaching death from ALS. The court's TRO (full text) orders the local state registrar to only accept a death certificate that lists John Arthur as married at the time of his death and that lists James Obergefell as his surviving spouse. The Washington Blade reports on the decision.

1st Circuit: Creating Church As Historic District Did Not Unduly Burden Free Exercise

In Roman Catholic Bishop of Springfield v. City of Springfield, (1st Cir., July 22, 2013), the U.S. 1st Circuit Court of Appeals dismissed challenges by the Catholic Bishop of Springfield, Massachusetts to the city's creation of an historic district to protect the Italian Renaissance style Our Lady of Hope Church.  The District was created at the urging of parishioners after the Bishop announced the closing of the Church. The Court held that because the Bishop has taken no further steps to deconsecrate, sell or lease the Church, and has not sought permission from the Springfield Historical Commission to alter the Church's exterior, various of the claims "lack the requisite concreteness to warrant resolution of whether hypothetical outcomes transgress RLUIPA or either the federal or state constitutions." However, plaintiff was permitted to proceed on the claim that the mere enactment of the ordinance imposed delay, uncertainty and expense on its planning for use of the building. The Court concluded, however, that the requirement to submit future plans to the Springfield Historical Commission for approval does not violate RLUIPA's substantial burden or equal terms provisions, nor does it violate the free exercise clause:

there is no evidence that suppression of Catholic religious practices was the object of the Ordinance. The text of the Ordinance requires only that RCB file an application with the SHC before making any changes to the exterior of the Church. The language of the Ordinance does not require RCB to perform or forego any particular practice, and it does not prohibit deconsecration or even closing of the Church outright. While the circumstances of the Ordinance's enactment reveal that the Ordinance was motivated at least in part by a desire to prevent demolition of the Church -- a possible outcome of RCB's religious decisionmaking process -- there is no evidence that this goal was rooted in "animosity to religion or distrust of its practices." 

EEOC Sues Over Failure To Accommodate Seventh Day Adventist

The EEOC announced last week the filing in June of a lawsuit against United Cellular, Inc. in an Alabama federal district court alleging refusal to accommodate a Seventh Day Adventist's need to observe his Sabbath.  Charles Embry was hired as a technician in July 2011. In Fall 2011 the company began to insist that Embry work weekends, and when Embry refused to work from Friday evening to Saturday evening, he was fired. The case is EEOC v. United  Cellular, Inc., Case No. CV-13-JHE-1207-NE, (ND AL, filed 6/27/2013).

Decedent's Sister Lacked Standing To Sue Wife Over Cremation Decision

In Cohen v Marcus L. Bianconi Funeral Home, Ltd., (NY Sup. Ct., Sept. 10, 2012), decided last year but just posted this week by New York's Official Reports, a New York trial court dismissed a suit brought by a man's sister who objected to the fact that his remains were cremated rather than buried in an Orthodox Jewish cemetery. The sister, in a suit against the deceased's Italian Catholic wife, her family and the funeral home, claimed she suffered emotional distress from her brother being cremated against his moral beliefs and express wishes. The court held that under New York Public Health Law Sec. 4201, only the surviving spouse had authority to control disposition of the decedent's remains. His sister lacked standing to bring the lawsuit.

USCIRF Calls On Ethiopia To Release 29 Religious Freedom Protesters

The U.S. Commission on International Religious Freedom yesterday issued a press release calling on the Ethiopian government to release 29 Muslims who were among a larger group initially arrested a year ago. While most were released, the 29 were eventually charged under the government’s Anti-Terror Proclamation. The arrests grew out of Friday protests beginning in December 2011 against efforts by the government and the Ethiopian Islamic Affairs Supreme Council to impose the al-Ahbash interpretation of Islam. USCIRF Chair Katrina Lantos Swett said: "We are deeply concerned that Ethiopia’s government is seeking to silence peaceful religious freedom proponents by detaining and trying them in secret under trumped-up terrorism charges."