Recent Prisoner Free Exercise Cases

In Buckley v. Munk, 2018 U.S. Dist. LEXIS 188322 (ND CA, Nov. 2, 2018), a California federal district court dismissed the complaint of an Orthodox Jewish former pre-trial detainee that he was not allowed to have candles and a particular prayer book or to wear his tallit katan outside his cell.

In Clark v. Foxwell, 2018 U.S. Dist. LEXIS 188343 (D MD, Nov. 1, 2018), a Maryland federal district court dismissed a suit by an inmate who said he is Jewish who complained that he did not receive proper kosher meals.

In Wali Ibn Abd-Ali v. Sibanda, 2018 U.S. Dist. LEXIS 188885 (WD PA, Nov. 2, 2018), a Pennsylvania federal magistrate judge recommended allowing a Muslim inmate to move ahead with his complaint that is ability to participate in the Ramadan fast was impeded, but recommended dismissing his claim that he could not participate in Eid feasts.

In Meeks v. Boulden, 2018 U.S. Dist. LEXIS 190037 (ED CA, Nov. 6,2018), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that his religious beliefs prohibit him from drinking tap water and he was denied distilled or bottled water as an alternative.

In Alvarez v. Lassiter, 2018 U.S. Dist. LEXIS 190236 (WD NC, Nov. 6, 2018), a North Carolina federal district court dismissed an inmate's complaint that his religious books and literature were taken from him, violating his free exercise rights.

At Pope's Request, U.S. Bishops Postpone Vote On New Conduct Standards

Crux reports that in a surprise move, on Sunday night the Holy See notified Cardinal Daniel DiNardo, president of the US Conference of Catholic Bishops, that the Pope wants U.S. bishops to postpone their vote on new standards of conduct for bishops and the creation of an outside commission to enforce it. The Pope wants the vote to wait until after a Feb. 21-24 international bishops' conference on clerical sex abuse.  In his opening address to the USCCB General Assembly in Baltimore yesterday (full text), Cardinal DiNardo said in part:

in light of this morning’s news, the nature of my address changes. We remain committed to the specific program of greater episcopal accountability that we will discuss these days. Consultations will take place. Votes will not this week. But we will prepare ourselves to move forward.

Jury Awards $3.2M To Muslim Employee For Religious Discrimination

According to the Press-Enterprise, last week a jury in a San Bernardino, California trial court awarded $3.2 million in damages for religious discrimination to a former warehouse employee at Loma Linda University Medical Center.  Muslim former employee Hugo Lizzaraga claimed that he was harassed for four years and ultimately was dismissed because of his Muslim religious beliefs.  Lizzaraga claimed that the harassment began after he converted to Islam and also broke his thumb and was placed on modified duty by his physician. A month before he was fired, he was suspended-- accused of telling a co-worker what he would have done differently in the 2015 San Bernardino terrorist shooting.

Albany Episcopal Bishop Defies Parent Body On Same-Sex Marriage Rites

In July, the General Convention of the Episcopal Church passed Resolution B012 Marriage Rites for the Whole Church, which was designed to give local congregational access to all couples wishing to have a same-sex marriage ceremony.  The Resolution stated in part:

[I]n dioceses where the bishop exercising ecclesiastical authority ... holds a theological position that does not embrace marriage for same-sex couples, and there is a desire to use such rites by same-sex couples in a congregation or worshipping community, the bishop exercising ecclesiastical authority ... shall invite, as necessary, another bishop of this Church to provide pastoral support to the couple...

Last week, in response to Resolution B012 that is to become effective on Dec. 3, the Bishop of Albany, William Love, who has been an opponent of same-sex marriage, issued a Pastoral Letter (full text) that reads in part as follows:

I cannot in good conscience as a bishop in God’s holy Church agree to what is being asked for in B012. While I respect the authority of General Convention as an institutional body, my ultimate loyalty as a bishop in God’s holy Church is to God....

Until further notice, the trial rites authorized by Resolution B012 of the 79th General Convention of the Episcopal Church shall not be used anywhere in the Diocese of Albany by diocesan clergy (canonically resident or licensed)....

Albany Times-Union reports on the Bishop's action.

Restaurant Settles EEOC Suit On Dress Code Accommodation

The EEOC last week announced the settlement of a religious discrimination suit it had filed against the operators of a Flowood, Mississippi restaurant, Georgia Blue.  The restaurant agreed to pay $25,000 to settle a complaint by an Apostolic Pentecostal waitress who objected to the company's dress code that required servers to wear blue jean pants.  The company had refused to accommodate her religious beliefs that women should only wear skirts or dresses. The settlement also requires the company to change its employee policies and to provide non-discrimination training to managers.

Recent Articles of Interest

From SSRN:

• Thomas Scott-Railton, A Legal Sanctuary: How the Religious Freedom Restoration Act (RFRA) Could Protect Sanctuary Churches, (Yale Law Journal, Forthcoming).
• Tamar Hostovsky Brandes, Israel's Nation-State Law – What Now for Equality, Self-Determination, and Social Solidarity?, (October 1, 2018).
• Jan Petrov, The Populist Challenge to the European Court of Human Rights, (The Jean Monnet Working Paper Series (NYU School of Law) 3/18 (2018).
• Eric Segall, Putting the 'Exercise' Back in the Free Exercise, (Kentucky Law Journal, Forthcoming).
• Elizabeth Kukura, Revisiting Roe to Advance Reproductive Justice for Childbearing Women, (Notre Dame Law Review Online, Vol. 94, 2018).
• Deborah Hellman, The Epistemic Commitments of Nondiscrimination, (Virginia Public Law and Legal Theory Research Paper No. 2018-60 (2018).
• Yaoyao Fan, Kose John, Hong Liu & Luqyan Tamanni, Security Design, Incentives, and Islamic Microfinance: Cross Country Evidence, (October 14, 2018).

From SmartCILP and elsewhere:

• Judge Shams Al Din Al Hajjaji,  Government By Judiciary In Islam: Islamic Theory of Government and Mal/practice of Muslim Governments (Turkey, Saudi Arabia, Egypt and Morocco), 48 California Western International Law Journal 283-339 (2018).
• Babak Manouchehrifar, Is Planning ‘Secular’? Rethinking Religion, Secularism, and Planning, [Abstract], Planning Theory and Practice (2018).

Recent Prisoner Free Exercise Cases

In Wright v. Bibens, 2018 U.S. Dist. LEXIS 187463 (D CT, Nov. 1, 2018), a Connecticut federal district court dismissed a Rastafarian inmate's complaint that he was denied common fare meals for 4 days after he was transferred to a different institution.

In Braun v. Sterno, 2018 U.S. Dist. LEXIS 187654 (D CT, Oct. 31, 2018), a Connecticut federal district court allowed a Native American inmate to move ahead with free exercise and RLUIPA claims against a correctional officer who dumped out his medicine bag and kicked and stomped sacred items in it.

In Harris v. Cearlock, 2018 U.S. Dist. LEXIS 187839 (CD IL, Nov. 2, 2018), an Illinois federal district court allowed an African Hebrew Israelite inmate to move ahead with his complaint that he was denied a religious diet.

In Jean-Pierre v. Clay, 2018 U.S. Dist. LEXIS 187606 (MD GA, Nov. 2, 2018), a Georgia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 188138, Oct. 10, 2018) and allowed a Muslim inmate to move ahead only on his claim for nominal damages for restricting his prayer time during Ramadan, prohibiting him from leading prayers and other religious instruction, and removing him to isolation in retaliation for continuing to pray during Ramadan.

In Prosha v. Robinson, 2018 U.S. Dist. LEXIS 188313 (ED VA, Nov. 2, 2018), a Virginia federal magistrate judge allowed a House of Yahweh inmate to move ahead with his RLUIPA complaint that he did not receive an adequate religious diet during Passover.

Indian Court Says Jewish Divorce By Mutual Consent Not Permitted

Times of India today reports on a Sept. 24 decision by the Family Court in Mumbai denying a Jewish couple's petition for divorce by mutual consent.  Unlike the situation of numerous other religious groups, there is no codified statutory law in India governing Jewish divorces.  The court held that the divorce is governed by uncodified Jewish personal law, and the parties have not shown that divorce by mutual consent is allowed under Jewish law.

Challenge Filed To Texas' Limits On Marriage Celebrants

A suit was filed last week in a Texas federal district court challenging the constitutionality of Texas Family Code Section 2.202 which limits those who can officiate at marriage ceremonies to members of the clergy and various judges.  The complaint (full text) in Center for Inquiry, Inc. v. Warren, (ND TX, filed 11/5/2018) contends that the failure to allow secular celebrants to perform marriage ceremonies violates the Establishment Clause, the Equal Protection clause and Art. VI's ban on religious tests. Center for Inquiry issued a press release announcing the filing of the lawsuit.

Suit Challenges Denial of Zoning Approval For Mosque

A suit was filed in a Michigan federal district court yesterday against the city of Troy, Michigan challenging the denial of a zoning variance for property acquired for use as a mosque and community center.  The complaint (full text) in Adam Community Center v. City of Troy, (ED MI, filed 11/9/2018), alleges RLUIPA and constitutional violations, saying in part:

31. The City of Troy currently has seventy-three (73) approved places of worship for various religions including Christian Churches and Hindu Temples. However, the city of Troy does not have a single approved Muslim Mosque or other Muslim religious institution within the city.

32. The city of Troy, through its Zoning Board of Appeals as well as planning commission employees, has on several occasions since 2013 recommended that Adam look to other cities as a better place to build their mosque and has stated that there are no places left in Troy where a mosque would be possible. This is despite the fact that there have been new Christian churches built and approved in the city of Troy between 2013 and 2018.

CAIR issued a press release announcing the filing of the lawsuit. Detroit News reports on the lawsuit.

Satanic Temple Sues Netflix Over Wrongful Use Of Bahomet Statue

Yesterday The Satanic Temple filed suit in a New York federal district court against Netflix and Warner Brothers, seeking $50 million in damages.  The complaint (full text) in United Federation of Churches LLC v. Netflix, Inc., (SD NY, filed 11/8/2018), alleges that defendants wrongfully used the image of a statue belonging to the Satanic Temple in its television series Chilling Adventures of Sabrina. The Satanic Temple alleges that it spent $100,000 to develop the statue, Baphomet with Children, which is a modification of the historical deity Baphomet:

Baphomet historically involved a goat’s head ... on a female body associated with Lilith, a figure from Jewish mysticism sometimes considered a goddess of the night. The classic visual representation of idea of Baphomet is an image created in or about 1856 by an occult historian Eliphas Levi.... 

[T]he TST Baphomet with Children, consists of several modifications from the historic expressions of the deity....

The Sabrina Series’ evil antagonists stand in stark contrast to TST’s tenets and beliefs.... By misappropriating TST Baphomet with Children (which is a registered copyright and famous mark of TST) to publish this false and defamatory depiction of TST, Defendants have engaged in three classes of wrong: copyright infringement (Claim 1), trademark violation (Claim 2), and injury to business reputation (Claim 3).

In addition to damages, plaintiff seeks an injunction requiring defendants to digitally remove the statue from all future distributions of the TV program. Courthouse News and Reuters report on the lawsuit. [Thanks To Tom Rutledge for the lead.]

UPDATE: According to a Nov. 21 post by Lucien Greaves, the suit has been amicably settled, with the unique elements of the Satanic Temple’s Baphomet statue acknowledged in credits of episodes already filmed.

Preliminary Agreement Reached For Church of Greece Clergy To Lose Civil Servant Status

Reuters reports that in Greece on Tuesday, Prime Minister Alexis Tsipras and Archbishop Ieronymos of the Church of Greece reached a preliminary agreement to end the civil servant status of priests and auxiliary staff. Some 10,000 members of the clergy will no longer be paid directly by the government. Instead the government will annually transfer a subsidy to a special church fund for the payment of salaries. The agreement also contemplates settlement of a long-standing property dispute between the church and the Greek government. The agreement, which creates a brighter line between church and state, must still be approved by the cabinet, parliament and church leaders. [Thanks to Scott Mange for the lead.]

Attorneys Get Fee Award In Trinity Lutheran Case

Yesterday, a Missouri federal district court handed down a fee award to successful plaintiff's counsel in last year's important Trinity Lutheran case.  In the case, the Supreme Court ultimately upheld the right of a church to participate in a Missouri grant program for school playgrounds. In Trinity Lutheran Church of Columbia v. Comer, 2018 U.S. Dist. LEXIS 190824 (WD MO, Nov. 7, 2018), the court awarded attorneys' fees totaling $433,792 for litigating the case from district court through the U.S. Supreme Court.  It also awarded costs and expenses of $32,593. Plaintiff had asked for attorney's fees totaling $840,605.

Arizona Voters Repeal Expansion of School Voucher Program

In Arizona on Tuesday, voters repealed Senate Bill 1431 which expanded the state's Empowerment Scholarship Accounts to make all public school students eligible to apply. The vote on the measure, known as Proposition 305, was 67% in favor of repeal, 33% opposed to repeal. The program allows students with disabilities (and certain other students) to opt out of public schools and instead receive state funds for use in private schools or for home schooling.

Guam Archdiocese Plans Chapter XI Filing

Guam's Archdiocese of Agana announced yesterday that it plans to file for bankruptcy reorganization within the next 90 days. The Archdiocese said that this is the most expeditious way to handle sexual abuse claims. Guam Daily Post, reporting on the Archdiocese's announcement, says that more than 180 sexual abuse claims against the Archdiocese are pending.

Kim Davis Loses Re-election Bid

According to the Lexington Herald-Leader, in Rowan County, Kentucky on Tuesday, county clerk Kim Davis lost her re-election bid by some 650 votes. Davis garnered national attention in 2015 by her adamant refusal to sign marriage licenses for same-sex couples. (See prior posting).

Trump Administration Finalizes Broadened Contraceptive Mandate Exemptions

In two releases yesterday, the Health and Human Services Administration, jointly with the IRS and Department of Labor, issued final rules making permanent (with minor changes) the interim final rules issued last October expanding exemptions from the contraceptive coverage mandate under the Affordable Care Act. One release (full text) finalizes exemptions for various entities and individuals with religious objections to providing coverage for some or all contraceptive or sterilization methods. The other release (full text) finalizes exemptions for entities and individuals with moral objections to providing such coverage. The final rules will become effective on Jan. 14, 2019.  Last December, two federal district courts issued nationwide preliminary injunctions against enforcing the interim final rules. RNS reports on the new rules.

Third Circuit Hears Arguments In Challenge To Foster Care Non-Discrimination Requirement

Courthouse News Service reports on Tuesday's oral arguments in the U.S. 3rd Circuit Court of Appeals in Fulton v. City of Philadelphia. In the case, a Pennsylvania federal district court rejected Catholic Social Services challenges to the requirement that it not discriminate against same-sex couples in foster care placement. (See prior posting.)

Abortion Measures Defeated In Oregon; Approved In West Virginia

Oregon voters yesterday apparently defeated, by a vote of 37% yes and 63% no, a proposed state constitutional amendment (Oregon Measure 106) that would have prohibited the expenditure of public funds directly or indirectly for abortion, except when medically necessary or required by federal law. These figures are based on tabulation of 68% of the votes.

Voters in West Virginia yesterday approved, by a vote of 51.7% yes and 48.3% no, Amendment 1 which amends the state constitution to add language providing "nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion."

Suit Seeks To Impose Vaccination Exemption On Religious School

VIN News reports on a suit filed last month in a New York state trial court by parents who are seeking to require a Jewish day school to grant their 4-year old son a religious exemption from immunization requirements.  Yeshiva Oholei Torah requires children to be immunized in order to attend, and the school does not recognize exemption requests. The suit apparently contends that the religious exemption provision in New York's Public Health Law Sec. 2164(9) is mandatory for schools. The section provides that the mandatory vaccination requirements of state law "shall not apply to children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein required, and no certificate shall be required as a prerequisite to such children being admitted or received into school or attending school." The trial court denied an emergency injunction in the case last month to the parents who claim their religious freedom is being infringed.. A hearing on a preliminary injunction will be held next week. Some four dozen measles cases have been confirmed among yeshiva students in New York and New Jersey. [Thanks to Avram Schwartz for the lead.]