Recent Prisoner Free Exercise Cases

In Todd v. Holt, 2014 U.S. Dist. LEXIS 57961 (MD PA, April 25, 2014), a Pennsylvania federal district court allowed an inmate to proceed with his complaint that he was denied religious certified meals for 14 days while the prison was in lockdown status.

In Sharonoff v. Nash, 2014 U.S. Dist. LEXIS 58114 (ED CA, April 25, 2014), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that his free exercise and equal protection rights were in fringed when authorities confiscated his mail package containing a copy of the publication "Cosmic Hidden" which contains messages from the edge of eternity.

In Allah v. Virginia, 2014 U.S. Dist. LEXIS 58529 (WD VA, April 28, 2014), a Virginia federal district court rejected an inmate's claim that his rights under RLUIPA were violated when authorities refused to recognize Nation of Gods and Earths as a religion or to allow NGE to meet communally, barred his wearing NGE clothing or having NGE publications, and allegedly did not accommodate his religious diet.

In Poslof v. CDCR, 2014 U.S. Dist. LEXIS 60776 (ED CA, April 30, 2014), a California federal magistrate judge held that an inmate's complaint regarding lack of a proper kosher diet would be dismissed unless an amended complaint is filed curing pleading defects.

In McBryde v. Thomas, 2014 U.S. Dist. LEXIS 59476 (D MT, April 29, 2014, a Montana federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 60657, April 7, 2014) and dismissed an inmate's claim that his parole was conditioned on his completion of a drug treatment program containing religious elements.

Court Invalidates Limits On Muslim Worship In Texas Prisons

A Texas federal district court has handed down a decision giving a major victory to Muslim inmates in Texas seeking more access to religious worship services. In Brown v. Livingston, (SD TX, April 30, 2014), the court held that

(a) [Texas Department of Criminal Justice] current Administrative Directive 7.30 ... which embodies TDCJ’s policy that inmates may not gather in groups of more than four for religious services unless a TDCJ staff member or outside volunteer is available to provide “direct supervision,” is an ongoing violation of the Muslim inmates’ federal rights under the Religious Land Use and Institutionalized Persons Act ... and the First Amendment; (b) the “Scott Plan,” which is TDCJ’s policy of providing TDCJ staff to supervise only one hour of religious services per week for each faith group unless an outside volunteer is present to provide direct supervision, is an ongoing violation of the Muslim inmates’ federal rights under RLUIPA and the First Amendment....

The court enjoined the prison system from applying Administrative Directive 7.30 or the Scott Plan to Muslim and Jehovah’s Witness inmates.

Defamation Claim Between Hindu Temple Members Dismissed

In Thiagarajan v. Tadepalli, (TX App., April 30, 2014), a three-judge panel of the Texas Court of Appeals dismissed under the ecclesiastical abstention doctrine both a defamation action against the secretary of the board of directors of a Hindu temple, and (by a 2-1 vote) a claim by the secretary against the Temple for indemnification for the costs of defending the action.  At issue were the alleged defamatory content of e-mails sent out by Sharma Tadepalli objecting to the DVDs available for purchase or rental from the Temple's library.  Thiagarajan, plaintiff in the defamation action, oversaw operation of the temple’s library.  Tadepalli claimed that some of the DVDs were non-religious and included X-rated Indian movies. The court held:

allowing Thiagarajan’s defamation claim to proceed unavoidably would lead a civil court into the forbidden territory of litigating “‘conformity of the members of a church to the standard of morals required of them.... Subject matter jurisdiction is foreclosed when defamation claims are bound up with ecclesiastical implications such as those present in this case.

The majority also concluded that:

Having pleaded that MTS [the Temple] should indemnify him precisely because the statements at issue “concerned  matters related to the conduct and governance of MTS and to other ecclesiastical matters,” Tadepalli cannot plausibly contend that a determination as to whether MTS should indemnify him nonetheless will avoid determination of “ecclesiastical matters.”

A concurring and dissenting opinion by Chief Justice Frost agreed that the defamation claim should be dismissed, but argued that the claim for indemnification can be decided using neutral principles of law and without resolving religious controversies.

Chaplain's Complaint Over Actions During Government Shutdown Dismissed As Moot

In Leonard v. United States Department of Defense, (D DC, April 30, 2014), the D.C. federal district court dismissed as moot claims by Catholic Navy chaplain Father Ray Leonard that his free exercise and RFRA rights were infringed when military authorities prevented him from performing his ecclesiastical duties during last year's government shutdown. The government asserted that this was required by the Anti-Deficiency Act, 31 U.S.C. § 1342, even if performed voluntarily. However, one day after this suit was filed, the government informed Father Leonard that he and other chaplains would be permitted to continue working during the shutdown and would be paid when funds later became available. The court similarly dismissed Leonard' retaliation claim because he is suffering no ongoing injury. (See prior related posting.)

Report on Human Rights In Pakistan Issued

Last week, the Human Rights Commission of Pakistan (an independent non-governmental organization) issued its 2013 annual report on the state of human rights in the country (full text). In a lengthy chapter on "Freedom of thought, conscience and religion", the Commission said in part:

Pakistan’s record in protecting members of its religious and sectarian minorities from faith-based violence and discrimination has been far from impressive in recent years. In fact, the year under review saw continuation of the recent trend of violence and impunity that seemed to reinforce each other. The growing problems for the minorities came from extremist militant groups seeking to justify violence and brutalities in the name of religion. Secondly, the challenges came from the local factors; and finally, from the government’s failure to protect members of minority religions and sects from faith-based violence or to confront hate speech, intimidation or intolerance. This year also nothing was done to weed out discrimination against non-Muslim citizens written into law or to introduce safeguards widely acknowledged to be needed in order to prevent abuse of the blasphemy law

The Commission made 5 recommendations in this area:

1. Unless serious steps are taken to stop sustained hate campaigns against members of religious and sectarian minority groups and unless those fanning hate speech are brought to justice, the bloodletting in the name of religious faith cannot be stopped.....

2. The blasphemy law is in urgent need of reform to prevent its abuse by extremists and opportunists.... The systematic and organised intimidation of judges in cases of blasphemy or desecration of scripture undermines administration of justice.... 

3. There is considerable evidence that those involved in faith-based violence have penetrated law enforcement agencies..... [T]hese elements should be urgently identified and weeded out....

4. Codification of personal law for Hindus and Sikhs should be a priority.....

5. Nothing has caused as great frustration and desperation among Pakistan’s minority religious faiths as incidents of forced conversion and lack of action against the perpetrators. The state should introduce a mechanism to ensure that the girls in question and their families get justice without having to suffer harassment and threats from rowdy crowds in courts and powerful politicians patronising this repulsive trampling of rights.

Pennsylvania Appellate Court: Property of Breakaway Congregation Belongs To PCUSA

In Peters Creek United Presbyterian Church v. Washington Presbytery of Pennsylvania, (PA Commonw. Ct., April 30, 2014), the Pennsylvania Commonwealth Court in a 4-3 decision held that the church building and other property of Peters Creek Church is held in trust for the Presbyterian Church USA, despite the vote of a majority of the congregation's members to break away and instead affiliate with the Evangelical Presbyterian Church. Applying neutral principles of civil law, the majority held that 2001 Peters Creek bylaw amendments bound the congregation to the PCUSA Book of Order (including its trust clause), and attempts in 2007 to revise the bylaws were invalid. The majority said in part:

[E]nforcement of Peters Creek Church’s commitment to the PCUSA is required by neutral principles if that commitment does not violate the laws of the Commonwealth. The non-profit corporation Peters Creek Church unequivocally incorporated into its own governing documents the mandatory provisions of the Book of Order, including the commitment not to disaffiliate without permission from the Washington Presbytery. Enforcement of those documents, in accordance with neutral principles, does not prevent any individual member of Peters Creek Church from exercising his or her religious preference to leave the Presbyterian Church (U.S.A.) and join the Evangelical Presbyterian Church, or any other church, or no church at all.

The dissenters, in an opinion by Judge McCulloch contended that no trust in favor of PCUSA was created and the 2007 vote to disaffiliate was valid.

Suit Challenging Denial of IRS Non-Profit Exemption Dismissed On Numerous Grounds

In Lock v. United States, (D OR, April 29, 2014), an Oregon federal district court allowed a pro se plaintiff to proceed in forma pauperis, but dismissed, with leave to amend, his suit complaining that the Internal Revenue Service had denied Section 501(c)(3) status for a small church he had founded.  The court held that the claim would need to be brought by the church itself, not by its founder, and also that only the Tax Court, Court of Claims or D.C. District Court would have jurisdiction over such a claim.  Finally it held that plaintiff had not alleged facts to show that the exemption denial was discriminatory.

USCIRF Issues 2014 Annual Report

The U.S. Commission on International Religious Freedom yesterday issued its 2014 Annual Report (full text). Its press release describes highlights of the report. Here are excerpts:

[The Report] recommended that the State Department add eight more nations to its list of “countries of particular concern,” defined under law as countries where particularly severe violations of religious freedom are tolerated or perpetrated: Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan, Turkmenistan, and Vietnam. USCIRF also recommended that the following eight countries be re-designated as “countries of particular concern,” or CPCs: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan. 

This year’s report, the 15th since the Commission’s creation in 1998, documents religious freedom violations in 33 countries and makes country-specific policy recommendations. The report also examines U.S. international religious freedom policy over the past decade and a half, reviewing what IRFA requires, assessing the record on implementing its provisions, and recommending ways to strengthen U.S. engagement on and promotion of religious freedom.....

Along with recommending CPC designations, USCIRF also announced the placement of 10 countries on its 2014 “Tier 2” list, a USCIRF designation for governments that engage in or tolerate violations that are serious, but which are not CPC-level violators. USCIRF urged increased U.S. government attention to these countries, which include Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos, Malaysia, Russia, and Turkey.

The USCIRF report also highlights religious freedom concerns in countries/regions that do not meet the Tier 1 (CPC) or Tier 2 threshold, but should also be the focus of concern, including Bahrain, Bangladesh, Belarus, Central African Republic, Ethiopia, Kyrgyzstan, Sri Lanka, and Western Europe.

The 200 page report also includes lists of prisoners in various countries held for their religious beliefs or views, or on blasphemy charges. Commissioner William Shaw (at pg. 165) dissented from the decision to make Turkey a Tier 2 country, as well as dissenting from the 15 year IFRA review chapter in the report.

Today Is National Day of Prayer

Today is National Day of Prayer.  36 USC Sec. 119 provides:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

Presumably this year's Proclamation will be posted on the White House website sometime today. Meanwhile the private National Day of Prayer Task Force has scheduled a national observance at the Cannon House Office Building at 9:00 a.m. this morning.  The Task Force's observances traditionally are Christian in focus-- and that remains the case this  year.  The event will be hosted by Alabama Congressman Robert Aderholt.  While two rabbis are listed as participants in the program, they are both from Messianic Jewish organizations.

According to CBN, in preparation for National Day of Prayer, the 25th annual U.S. Capitol Bible reading marathon began Sunday evening. The entire Bible is being read non-stop, and will be completed today.

UPDATE: The Presidential Proclamation -- National Day of Prayer, 2014 is now available on the White House website.

Court OK's Sale of Mausoleum Space and Headstone Inscriptions By NJ Catholic Cemeteries

In Monument Builders of New Jersey v. Roman Catholic Archdiocese of Newark, (NJ Super., April 29, 2014), a New Jersey trial court upheld the right of the Newark Catholic Archdiocese to sell monument inscription rights and burial rights in mausoleums at Catholic cemeteries. Commercial monument builders argued that the Archdiocese has engaged in unfair competition with them, and that the sale of monuments by the Archdiocese is ultra vires and against public policy. (See prior posting.) The court held first that the state's statutory ban on cemeteries selling monuments or mausoleums is inapplicable to religiously owned cemeteries that restrict burial to members of the religious faith and their families.  Secondly, the court concluded that if the Archdiocese is statutorily authorized to engage in its monument and mausoleum programs, its alleged competitive advantage is irrelevant.  The court went on to conclude that the state's religious corporation law grants the Archdiocese the authority to acquire and install mausoleums and monuments and to sell inscription rights. Newark Star-Ledger reports on the decision.

President Declares May As Jewish American Heritage Month

President Obama issued a Proclamation (full text) yesterday declaring May as Jewish American Heritage Month. The Proclamation reads in part:

For thousands of years, the Jewish people have sustained their identity and traditions, persevering in the face of persecution. Through generations of enslavement and years of wandering, through forced segregation and the horrors of the Holocaust, they have maintained their holy covenant and lived according to the Torah. Their pursuit of freedom brought multitudes to our shores, and today our country is the proud home to millions of Jewish Americans. This month, let us honor their tremendous contributions -- as scientists and artists, as activists and entrepreneurs. And let all of us find inspiration in a story that speaks to the universal human experience, with all of its suffering and all of its salvation.

Bill Would Eliminate Constitutional Problems With Parsonage Allowance

As previously reported, an appeal has been taken to the 7th Circuit in Freedom From Religion Foundation v. Lew, in which a Wisconsin federal district court held that the tax code provision excluding a minister's parsonage allowance from gross income violates the Establishment Clause because it benefits religious persons but not others. The appeal has drawn a number of amicus briefs from religious organizations across the spectrum. (Links to briefs and other documents.) On Monday, Louisiana Representative Bill Cassidy introduced a bill into Congress which, if enacted, would presumably remove the constitutional problems with the parsonage allowance. (Cassidy press release.)  H.R. 4493 provides that Section 107 of the Internal Revenue Code that grants the parsonage allowance to any "minister of the gospel"-- a term already interpreted by the courts to include non-Christian clergy as well-- is amended to add:

For purposes of this section, the term `minister of the gospel' includes any duly recognized official of a religious, spiritual, moral, or ethical organization (whether theistic or not).

So far, the bill has no co-sponsors and hearings on it have not been scheduled.  The progress (if any) of the bill through Congress can be followed here. [Thanks to Robert Baty for the lead.]

Suit Challenges Ohio's Refusal To Allow Same-Sex Marriages

In the wake of a federal district court ruling two weeks ago that Ohio's refusal to recognize same-sex marriages performed elsewhere is unconstitutional (see prior posting), a new federal lawsuit was filed yesterday challenging Ohio's ban on issuing marriage licenses to same-sex couples who wish to wed in Ohio.  The complaint (full text) in Gibson v. Himes, (SD OH, filed 4/30/2014), contends:

Ohio Rev. Code § 3101.01 and OH Const. Art. XV, §11 violate fundamental liberties that are protected by the Freedom of Association Clause of the First Amendment, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment on their face.

Cincinnati Enquirer reports on the filing of the lawsuit.

Suit Voluntarily Dismissed After School District Changes Rule On Distribution of Religious Material

ADF announced yesterday that it has voluntarily dismissed it lawsuit in K.R. v. Unified School District No. 204, (D KA, April 29, 2014) (full text of Notice of Voluntary Dismissal) after the school district removed its restriction on distribution of religious material.  The suit challenged school district rules that originally permitted students to post information and hand out flyers during non-instructional time, except for religious material. (See prior posting.)

Kenyan President Signs New Marriage Act, Allows Polygamy

BBC News and Jurist report that in Kenya, President Uhuru Kenyatta has signed into law the controversial Marriage Act 2014. The new law requires that all marriages be registered and provides that a woman is entitled to 50% of the property acquired during marriage. However the greatest attention has been given to provisions that allow polygamous marriages. Men may marry as many women as they wish, without consulting their current wives. Christian leaders have opposed the law.

California Court Refuses To Allow Sikh Juror To Wear Kirpan

In Yuba City, California, members of the Sikh community protested yesterday when officials refused to allow Gursant Singh to enter the Sutter County Courthouse to report for jury duty. Singh has been unable to convince authorities to allow him to wear his kirpan (a religious dagger with a 5 inch blade) in the courthouse.  CBS13 reports that court officials insist on enforcing their no-weapons policy to ban the traditional religious symbol. It is unclear whether Singh will be penalized for not appearing for jury duty.

Pentagon Chaplain Hosts First Ever Sikh Program

Huffington Post reports that the first ever program at the Pentagon to recognize the Sikh faith was held last Friday. Hosted by the Pentagon Chaplain, the program  celebrated Vaisakhi, described by Valarie Kaur who spoke at the program as a celebration of "the founding of the Sikh community as the Khalsa, a spiritual sister and brotherhood."

Inmate With Multiple Wives Can Move Ahead With RLUIPA Challenge To Conjugal Visit Rule

While prisoner lawsuits challenging limits on conjugal visits are not particularly unusual, the challenge involved in Thomas v. Corbett, (PA Commonwealth Ct., April 29, 2014) presents unusual facts.  As described by the court:

Thomas raises several claims in the Complaint relating to DOC’s conjugal visit policy, which precludes conjugal visits for all inmates. Thomas avers that his religion requires him to marry and, in fact, to have multiple wives.  Thomas avers that DOC’s policy concerning visits from spouses precludes him from enjoying conjugal visits with his wives. Thomas avers that this policy has a detrimental effect on the status of his marriages, because his wives are threatening to divorce him under Islamic religious rules if they are unable to have intercourse with him.

In the case, the 3-judge Pennsylvania Commonwealth Court  panel refused to dismiss plaintiff's  RLUIPA challenge to the conjugal visit ban at this early stage of the proceedings.  It is not enough for the government to merely allege that it has a compelling interest. The court also allowed plaintiff to move forward with a portion of his challenge to the prison's ban on prayer oil. PennLive reports on the decision.

Obama's Statement On Yom HaShoah

Yesterday the White House released a statement (full text) from President Obama on Yom HaShoah (Holocaust Remembrance Day). The statement reads in part:

On this Yom HaShoah, I join people of all faiths in the United Sates, in the State of Israel, and around the world in remembering the six million Jews – innocent men, women and children – who were senselessly murdered during the Holocaust, as well as all the victims of Nazi brutality and violence.... [L]et us recommit ourselves to the task of remembrance, and to always oppose anti-Semitism wherever it takes root. 

White House Statement On Canonization of Popes John XXIII and John Paul II

Yesterday the White House issued a statement (full text) from President Obama celebrating Sunday's canonization of Pope John XXIII and Pope John Paul II. The statement reads in part:

We celebrate these Saints and the leadership of His Holiness Pope Francis, and we look forward to continuing to work with Pope Francis and Catholics around the world to advance peace and justice for all people.

Georgian Orthodox Patriarch Objects To Proposed Anti-Discrimination Law That Includes Sexual Orientation and Gender Identity

The nation of Georgia has entered a Visa Liberalization Action Plan which envisions a number of reforms in order for the country to obtain visa-free status in the European Union.  As reported by Civl.ge, one of those reforms involves adoption of anti-discrimination legislation. Parliament passed the bill on its first reading on April 17. It is coming up this week for its second reading.  Yesterday Georgian Orthodox Church Patriarch Ilia II issued a statement objecting to the inclusion in the bill of sexual orientation and gender identity as prohibited grounds for discrimination. The statement, asking the government to delay action on the bill, says in part:

Proceeding from God’s commandments, believers consider non-traditional sexual relations to be a deadly sin, and rightly so, and the anti-discrimination bill in its present form is considered to be a propaganda and legalization of this sin.

Church Synod and Various Clergy Sue Claiming North Carolina Same-Sex Marriage Ban Infringes Their Free Exercise Rights

A federal lawsuit with a different twist challenging North Carolina's ban on same-sex marriage was filed yesterday. In addition to same-sex couples, the plaintiffs are a religious denomination-- the United Church of Christ-- and individual clergy from UCC, Lutheran, Baptist, Unitarian-Universalist, and Reform Jewish congregations. The complaint (full text) in General Synod of the United Church of Christ v. Cooper, (WD NC, filed 4/28/2014), claims, among other things, that North Carolina law makes it a criminal offense for a member of the clergy to conduct a same-sex marriage ceremony, and that this infringes the free exercise and expressive associational rights of clergy whose religious teachings and beliefs embrace same-sex marriage. The same-sex couples also assert due process and equal protection claims.  UCC has issued a press release and created a website with additional information on the case. The Charlotte Observer also reports on the case. [Thanks to Don Clark for the lead.]

New Survey of Anti-Semitism Has Grim Narrative

Yesterday, Tel Aviv University's Kantor Center (along with the European Jewish Congress) announced the release of a new report Worldwide Report on Antisemitism 2013. (The report is also listed in my posting earlier today of Recent Articles of Interest.) The Kantor Center's report is one of several similar surveys including the European Union's Discrimination and hate crime against Jews in EU Member States (see prior posting) and the ADL's 2013 Annual Audit of Antisemitic Incidents (see prior posting). The Kantor Center's report appears to be more conservative than others in its methodology for counting incidents, finding:

554 registered violent antisemitic acts perpetrated with weapons or without, by arson, vandalism or direct threats against Jewish persons or institutions such as synagogues, community centers, schools, cemeteries, monuments as well as private property

However its narrative appears much grimmer:

Anti-Zionism, which is rampant in the west, cannot explain the present level of antisemitism, nor can it be explained by the rise of right-wing extremist parties (each having its own wider agenda), or by the economic crisis of 2008 (which is no longer ‘news’). No Middle East event tied to the Israeli-Palestinian conflict occurred in 2013, nor can elevated data of antisemitic incidents in this year be attributed to hate-generated hordes of admirers sparked by the attack on the Toulouse Jewish school in March 2012. In short, what we witness in 2013 is ‘net antisemitism’ per se.

Supreme Court Denies Review In Case of Disciplinary Sanctions On Former Kansas AG For Abortion Clinic Investigations

The Supreme Court today denied certiorari in Kline v. Kansas Disciplinary Administrator, (Docket No. 13-1104, cert. denied 4/28/2014) (Order List). In the case, the Kansas Supreme Court imposed an indefinite suspension of the right to practice law on former state attorney general Phillip Kline for 11 violations of the rules of professional conduct in his investigation of abortion clinics while he served as Attorney General and for his role with a citizen-requested grand jury while he served as Johnson County District Attorney. (See prior posting.)

6th Circuit Stays Tennessee Same-Sex Marriage Ruling

In Tanco v. Haslam, (6th Cir., April 25, 2014), the U.S. 6th Circuit Court of Appeals granted a stay pending appeal of a district court preliminary injunction requiring the state of Tennessee to recognize the same-sex marriages of 3 couples who were legally married in other states. (See prior posting.) The Tennessean reports on the decision. [Thanks to How Appealing for the lead.]

Recent Articles of Interest

From SSRN:

• Asma Mushtaq, Akseer Ahmad Abbasi, Maroona Nazir, & Shagufta Omar, Inheritance, (Inheritance, Women Aid Trust, January 2014).
• Larry Catá Backer, The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States, (Cornell International Law Journal, Vol. 48, 2015).
• Robert W. McGee, Attitudes on the Ethics of Tax Evasion: A Survey of Philosophy Professors, (April 14, 2014).
• Robert W. McGee, Gender and the Ethics of Tax Evasion: An Empirical Study of 82 Countries, (April 14, 2014).
• Robert W. McGee & Geoff A. Goldman, Ethics and Tax Evasion: A Survey of South African Opinion, (April 14, 2014).
• Nelson Tebbe, Associations and the Constitution: Four Questions About Four Freedoms, (North Carolina Law Review, Vol. 92, No. 3, 2014).
• Paul Horwitz, More 'Vitiating Paradoxes': A Reply to Steven D. Smith — And Smith, (Pepperdine Law Review, Forthcoming).
• Teresa Hernandez & Robert W. McGee, The Ethical Perceptions of Bribe Taking in Four Muslim Countries, (Journal of Accounting, Ethics and Public Policy, Vol. 15, No. 1, 2014).

From SmartCILP and elsewhere:

• Sarah Barringer Gordon, The First Disestablishment: Limits On Church Power and Property Before the Civil War, 162 University of Pennsylvania Law Review 307-372 (2014).
• Lynn M. Daggett, "Minor Adjustments" and Other Not-So-Minor Obligations: Section 504, Private Religious K-12 Schools, and Students With Disabilities, 52 University of Louisville Law Review 301-331 (2014).
• Religion and Family Planning Under the U.S. Constitution. Articles by Colleen Connell, Lorie Chaiten, Richard Muniz, Steven H. Resnicoff and Tom Judge. 15 DePaul Journal of Health Care Law 1-44 (2013).
• Dina Porat (ed.), Antisemitism Worldwide 2013, European Jewish Congress, April 27, 2014.

Recent Prisoner Free Exercise Cases

In Native American Council of Tribes v. Weber, (8th Cir., April 25, 2014), the 8th Circuit affirmed a district court’s conclusion that South Dakota correctional officials violated RLUIPA by banning Native American inmates’ use of tobacco for religious purposes. Defendants failed to showthat the tobacco ban is the least restrictive means of furthering their compelling government interest.

In Hoeck v. Timme, 2014 U.S. Dist. LEXIS 55059 (D CO, April 21, 2014), a Colorado federal district court found no merit in an inmate's challenge to his conviction in a habeas proceeding complaining that his court appointed counsel would only meet with him between Friday sunset and Saturday sunset, the Sabbath for petitioner.

In Merrick v. Ryan, 2014 U.S. Dist. LEXIS 55738 ( AZ, April 17, 2014), an Arizona federal district court remanded to state court a suit in which an inmate, under his complaint as amended, claimed that the denial of religious materials violated Arizona's Free Exercise of Religion Act.  In his amended complaint he removed all references to federal law.

In Gunderson v. Pharis, 2014 U.S. Dist. LEXIS 55431 (ND IL, April 22, 2014), an Illinois federal district court dismissed on the basis of Younger abstention claims of plaintiff, a Hindu, that he was denied conjugal visits and was given inadequate time for yoga, all of which burdened his religious practices.  Plaintiff is being held at a mental health facility under an ongoing treatment plan after being found not guilty by reason of insanity. The court also dismissed on the merits plaintiffs complaint that he did not have access to an appropriate Hindu spiritual leader.

In Dodds v. Quintero, 2014 U.S. Dist. LEXIS 56487 (D CO, April 23, 2014), a Colorado federal district court dismissed discrimination and free exercise claims by an African-American inmate who practices Judaism against a sheriff's deputy who allegedly greeted plaintiff with the words "Asalam Walakim" while plaintiff was waiting for his kosher breakfast.

In Pouncil v. Tilton, 2014 U.S. Dist. LEXIS 56786 (ED CA, April 22, 2014), a California federal district court permitted a Muslim inmate to move forward with his claim that his rights under RLUIPA were violated by a rule that barred inmates serving a sentence of life without possibility of parole from having conjugal visits.

In George v. County of Westchester, 2014 U.S. Dist. LEXIS 57185 (SD NY, April 10, 2014), a New York federal district court permitted a Jewish inmate to move ahead with  his complaint of denial of Jewish congregate religious services and inadequate hot water and microwave oven for preparation of his kosher food.

In Payne v. Duncan, 2014 U.S. Dist. LEXIS 57335 (MD PA, April 23, 2014), a Pennsylvania federal district court dismissed a Muslim inmate's complaint that his free exercise rights were infringed when his books were confiscated and discarded, preventing him from studying his religion.

In JCG v. Ercole, 2014 U.S. Dist. LEXIS 57417 (SD NY, April 24, 2014), a New York federal magistrate judge recommended that a Messianic Jewish inmate be permitted to move forward with his complaint that the prison's Jewish chaplain refused to approve kosher meals for him or his attendance at Jewish religious services and Jewish holiday celebrations.

New Law Aims To Increase Availability of Kosher and Halal Food In Emergency Assistance Programs

AP in a report today calls attention to a little-noticed provision in the Agriculture Act of 2014 that was signed into law by the President on Feb. 7.  Sec. 4207 of the Act provides for increased purchase of kosher and halal food for the government's emergency food assistance program.  The Section provides:

As soon as practicable after the date of enactment of this subsection, the Secretary shall finalize and implement a plan— 

(1) to increase the purchase of Kosher and Halal food from food manufacturers with a Kosher or Halal certification to carry out the program established under [the Emergency Food Assistance Act] if the Kosher and Halal food purchased is cost neutral as compared to food that is not from food manufacturers with a Kosher or Halal certification; and 

(2) to modify the labeling of the commodities list used to carry out the program in a manner that enables Kosher and Halal distribution entities to identify which commodities to obtain from local food banks.

Court Issues Preliminary Injunction and Halts Other Rulings in Non-Profit's ACA Challenge Until Supreme Court Decides Hobby Lobby

In Fellowship of Catholic Students v. Sebelius, (D CO, April 23, 2014), a Colorado federal district court issued a preliminary injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate against a non-profit Catholic student organization. The court entered the order after the government failed to respond to the plaintiff's motion for a preliminary injunction. The court also stayed discovery and any ruling on plaintiff's summary judgment motion until after the U.S. Supreme Court issues its decision in the Hobby Lobby case. (Full text of orders.) CNS reports on the decision. (See prior related posting.)

Article Recounts Continued Lack of Religious Freedom In Egypt

Today's New York Times carried a front-page article titled Vow of Freedom of Religion Goes Unkept in Egypt. Here are some excerpts:

The architects of the military takeover in Egypt promised a new era of tolerance and pluralism when they deposed President Mohamed Morsi of the Muslim Brotherhood last summer.

Nine months later, though, Egypt’s freethinkers and religious minorities are still waiting for the new leadership to deliver on that promise. Having suppressed Mr. Morsi’s Islamist supporters, the new military-backed government has fallen back into patterns of sectarianism that have prevailed here for decades.

Prosecutors continue to jail Coptic Christians, Shiite Muslims and atheists on charges of contempt of religion..... The military leader behind the takeover, Abdul-Fattah el-Sisi, often appeals to the Muslim majority in a language of shared piety....

... But the complaints about continued sectarianism have not deterred church leaders from firmly supporting Mr. Sisi as their protector against worse treatment by the Muslim majority.

Head of Jewish Free Loan Society Pleads Guilty To Operating An Unchartered Bank In Money Laundering Case

The New Jersey U.S. Attorney's Office announced that on Wednesday criminal defendant Moshe Schwartz pleaded guilty to charges of operating an unchartered bank and aiding in the filing of a false tax return. As reported by the Newark Star-Ledger, the case grows out of the arrest of 46 politicians and Jewish religious leaders in 2009 in an investigation of  money laundering and corruption. (See prior posting.) Schwartz, who was not among those initially arrested, headed a supposed charitable organization, Gemach Shefa Chaim. The organization was created to provide interest-free loans to needy members of the Sanz Hasidic community in Union City, New Jersey.  However it was also used to launder millions of dollars, free from oversight by banking regulators.  By 2009, the Gemach had 350 client accounts. It accepted deposits from the clients and then made wire transfers and wrote Genach checks at the direction account holders to disburse funds. Schwartz, who will be sentenced in July, could face up to 5 years in prison.

Alabama Supreme Court Concurrence Relies On Natural Law Argument To Define Fetus as A "Child"

In a blog post yesterday, Americans United called attention to the concurring opinion of Alabama Supreme Court Chief Justice Roy Moore in Ex parte Hicks, (AL Sup. Ct., April 18, 2014). In the case, in an 8-1 decision, the Court upheld the conviction of Sarah Janie Hicks for ingesting cocaine while pregnant, concluding that "the use of the word 'child' in the chemical-endangerment statute includes all children, born and unborn." Justice Parker's majority opinion focused mainly on legislative intent.  Chief Justice Moore's concurrence, however, made a broader natural law argument, rooted in language from the Declaration of Independence.  He wrote in part:

[A]s stated by James Wilson, one of the first Justices on the United States Supreme Court: "Human law must rest its authority ultimately upon the authority of that law which is divine." ***

 Under the Equal Protection Clause of the Fourteenth Amendment, states have an obligation to provide to unborn children at any stage of their development the same legal protection from injury and death they provide to persons already born. Because a human life with a full genetic endowment comes into existence at the moment of conception, the self-evident truth that "all men are created equal and are endowed by their Creator with certain unalienable rights" encompasses the moment of conception. Legal recognition of the unborn as members of the human family derives ultimately from the laws of nature and of nature's God, Who created human life in His image and protected it with the commandment: "Thou shalt not kill." Therefore, the interpretation of the word "child" in Alabama's chemical-endangerment statute, § 26-15-3.2, Ala. Code 1975, to include all human beings from the moment of conception is fully consistent with these first principles regarding life and law.

Trinity Western Grads Will Not Be Eligible For the Ontario Bar

The controversy over Canada's newest proposed law school-- Christian affiliated Trinity Western-- continues. At the center of the controversy is a provision in the school's "community covenant" that calls for abstention from "sexual intimacy that violates the sacredness of marriage between a man and a woman." The Toronto Star reports that after receiving approval earlier this month from the Law Society of British Columbia-- the school's home province-- yesterday the school suffered a defeat in the province of Ontario.  The Law Society of Upper Canada voted 28-21 against granting the school accreditation. This means that the school's graduates will not be permitted to apply for admission to the bar in Ontario.  A vote is expected today by the Nova Scotia Barristers' Society, and in June by the Law Society of New Brunswick.

UPDATE: On April 25, the Nova Scotia Barristers' Society voted 10-9 to only give provisional accreditation to Trinity Western law school. Its graduates will be allowed to enroll in the province's bar admission program only if the school drops its Community Covenant that bars same-sex intimacy.  If the Covenant is not dropped graduates will not be allowed to article in the province, but they can still practice in Nova Scotia according to the Prince George Citizen.

Excluding Churches From Unemployment Compensation Coverage Does Not Violate 1st or 14th Amendment

In Spicer v . Texas Workforce Commission, (TX App., April 22, 2014), a Texas state appellate court upheld the statutory exclusion of persons employed by churches from Texas' unemployment compensation coverage.  Appellant, formerly an organist and pianist for a Methodist church, claimed that denying him unemployment compensation violates his free exercise and equal protection rights. The court disagreed.  Appellant also argued that the exemption of churches from the tax required  by the unemployment compensation system violates the Establishment Clause. Again the court disagreed, saying in part:

a number of types of work are excluded from employment under the TUCA, reflecting the Legislature’s decision that the entities for whom that work is performed should not be subject to the burden of paying the tax required by the unemployment compensation system..... The breadth of the exemptions demonstrates the exemption ... was not “aimed at establishing, sponsoring, or supporting religion."

Sri Lanka Deports British Tourist Because of Buddha Tattoo

BBC News reports that on Monday a British tourist in Sri Lanka was arrested, ordered deported by a magistrate and placed in an immigration detention camp until she is sent back to the UK because she has a tattoo of Buddha on her arm. Sri Lankan police say tourist Naomi Coleman with hurting the religious feelings of others. Coleman was originally cleared through the airport, but two taxi drivers and a plain clothes policeman later took her to a police station when they saw the tattoo.

UPDATE: According to AFP report, on May 21, 2014 Coleman filed suit against Sri Lankan police, immigration and prison officials over the incident. The suit in the Supreme Court in Colombo seeks the equivalent of $78,000 (US) in damages.

Cert. Petition Filed In Challenge To California's Ban On Teen Repairative Therapy

In a press release yesterday, the Pacific Justice Institute announced that it has filed a petition for certiorari with the U.S. Supreme Court in Pickup v. Brown. In the case, the 9th Circuit upheld the constitutionality of California's  ban on state-licensed mental health providers engaging in sexual orientation change efforts with patients under 18. (See prior posting.)

Suit Claims FBI Infringes Muslims' Free Exercise Rights By Using No Fly List To Coerce Them To Become Informants

The Center for Constitutional Rights yesterday announced the filing of a lawsuit against the FBI on behalf of four American Muslim men who were placed on the No-Fly List after they refused to work as FBI informants in their religious communities, or were told they would be removed from the List only if they agreed to work with the FBI.  The complaint (full text) in Tanvir v. Holder, (SD NY, filed 4/22/2014) claims that the FBI's actions violate plaintiffs' procedural due process rights, 1st Amendment free exercise rights and the Religious Freedom Restoration Act. It alleges in part:

65.  Many American Muslims, like many other Americans, and many followers of other religions, have sincerely held religious and other objections against becoming informants in their own communities, particularly when they are asked to inform on the communities as a whole rather than specific individuals reasonably suspected of wrongdoing. Acting as an informant would require them to lie and would interfere with their ability to associate with other members of their communities on their own terms. For these American Muslims, the exercise of Islamic tenets precludes spying on the private lives of others in their communities.

66. The FBI uses the No Fly List to coerce American Muslims into becoming informants and to retaliate against them when they exercise constitutionally protected rights.

Washington Post reports on the lawsuit.

Court Dismisses Episcopal Priest's Suit Against Bishop Who Fired Him

In Warnick v. All Saints Episcopal Church, (PA Com. Pl., April 15, 2014), a Pennsylvania trial court dismissed a suit brought by Episcopal priest Jeremy Warnick against All Saints Episcopal Church (his former parish), the Episcopal Bishop of Pennsylvania and three All Saints congregants.  The suit, alleging contract and defamation claims, challenges Bishop Charles Bennison's revocation of Warnick's license to minister in Pennsylvania, the Bishop's letter to the congregation explaining the decision and statements made by three congregants at a church meeting. The controversy revolved around Warnick's proposal for a radical restructuring of the parish.  It also involved complaints that Warnick was living on week ends with a woman (who he then married in a Methodist ceremony) before his divorce from his wife was finalized, and Warnick had posted answers to a "sexual position quiz" on Facebook.

After Warnick unsuccessfully pursued a canonical complaint against Bennison, he filed this civil lawsuit. The court held that both the First Amendment requirement of deference to ecclesiastical courts and the ministerial exception doctrine require dismissal of the complaint. The court added that even if all the claims were not barred by the First Amendment, "Father Warnick’s claims fail as a matter
of law because the undisputed evidence shows that necessary elements have
not been shown for defamation, contract and civil conspiracy claims."

Georgia Lawsuit Is Latest To Challenge Same-Sex Marriage Ban

Lambda Legal announced yesterday that it has filed suit in federal district court in Georgia on behalf of three same-sex couples and a widow challenging Georgia's statutory and state constitutional bans on same-sex marriage. The complaint (full text) in Inniss v. Aderhold, (ND GA, filed 4/22/2014) was filed as a class action and challenges both the ban on same-sex marriage and the non-recognition of same-sex marriages performed in other jurisdictions. According to a Washington Post compilation, with the filing of this lawsuit, only four states-- Alaska, Montana, North Dakota and South Dakota-- have same-sex marriage bans that are not being challenged in court; and a suit is in the offing in South Dakota.

Suit Charges Student Not Admitted To Community College Program Because of His Expression of Religious Beliefs

ACLJ announced yesterday that it has filed a federal lawsuit on behalf of student Brandon Jenkins against The Community College of Baltimore County Maryland for denying Jenkins admission to the school's radiation therapy program in part because of Jenkins' expression of his religious beliefs. The complaint (full text) in Jenkins v. Kurtinitis, (D MD, filed 4/21/2014) alleges that the program director explained Jenkins' rejection in part as follows:

I understand that religion is a major part of your life and that was evident in your recommendation letters, however, this field is not the place for religion. We have many patients who come to us for treatment from many different religions and some who believe in nothing at all. If you interview in the future, you may want to leave your thoughts and beliefs out of the interview process.

Brunei Postpones Phase-In of Sharia Criminal Code

The small southeast Asian nation of Burnei has postponed implementation of a new sharia criminal code that had been scheduled to take effect today. According to AFP, no new date has been given for implementing the phase-in of sharia penalties that eventually will include flogging, severing of limbs and death by stoning. AFP says:

Burnei’s Sultan Hassanal Bolkiah — the driving force behind sharia — is visiting Singapore, and the government is believed to be waiting for the all-powerful Islamic monarch to return before introducing the sensitive legal code.

But the delay could feed perceptions of hesitation by the 67-year-old sultan — one of the world’s wealthiest men — who earlier this year faced a backlash from the country’s social-media-savvy citizens.

City Council Settles Suit By ending Invocations, Abolishing Chaplain Position

The Freedom From Religion Foundation announced last week that it has reached a settlement with the city of Pismo Beach, California which it sued last year challenging its practice of opening city council meetings with Christian prayer, usually offered by the city chaplain who is a Pentecostal clergyman. (See prior posting.) In the settlement, which must be approved by the court, the city agreed to end its practice of opening meetings with prayer, abolish the city chaplain position, and pay plaintiffs nominal damages and attorney fees of about $47,500. [Thanks to Andrew Seidel for the lead.]

Suit Challenges Daily School Recitation of Pledge of Allegiance

The American Humanist Association announced yesterday that it has filed suit in a New Jersey state court challenging New Jersey's statutory requirement that schools open each day with the Pledge of Allegiance that includes the phrase "under God."  The complaint (full text) in American Humanist Association v. Matawan-Aberdeen Regional School District, (NJ Super Ct., filed 4/19/2014) which raises only state constitutional claims contends that the daily classroom exercise unconstitutionally discriminates on the basis of religion against plaintiffs who hold Humanist or atheist religious views.

2 Suits Say Japan's Prime Minister Violated Religion-State Limits In Visiting Yasukuni Shrine

In Japan yesterday, 273 plaintiffs filed suit asking the Tokyo District Court to rule that the visit last December to the Yasukuni Shrine by Prime Mnister Shinzo Abe violated Japan's constitutional separation of politics and religion.  Asahi Shimbun reports that the suit claims the visit aggravated relations with neighboring nations because in addition to memorializing Japan's war dead, the shrine memorializes 14 Class-A war criminals from World War II. A similar lawsuit was filed in the Osaka District Court on April 11. Yesterday's suit seeks an injunction against future visits by the prime minister plus a minimal amount in damages.

U.S. Supreme Court Grants Review In Dispute Over Passport Listing of Jerusalem As Place of Birth

The U.S. Supreme Court today granted certiorari in Zivotofsky v. Kerry, (Docket No. 13-628, cert. granted 4/22/2014). (Order List.) This is the second time the case will have been heard by the Supreme Court. In 2012 it ruled that the political question doctrine does not prevent federal courts from ruling in a dispute between Congress and the State Department over whether Americans born in Jerusalem are to have "Jerusalem", not "Israel", listed as their place of birth. (See prior posting.) A congressional statute calls for the State Department to change its policy and list "Israel", but the Executive Branch claims that this statute unconstitutionally interferes with the President's constitutional authority to conduct the country's foreign affairs. In a 2013 decision-- the case which the Supreme Court today agreed to review-- the D.C. Circuit agreed with the Executive Branch that the statute impermissibly intrudes on the President’s exclusive power to decide whether and on what terms to recognize foreign nations. (Zivotofsky v. Secretary of State, (DC Cir., July 232, 2013).

Recent Articles of Interest

From SSRN:

• Anna Su, Book Review: Separation Anxiety: The End of American Religious Freedom?, (Constitutional Commentary, Forthcoming).
• Jonathan G. Burns, The Banking Sector in Post-Revolution Egypt: Is Islam the Solution?, (29 Banking & Finance Law Review 319, No. 2, 2014).
• Thomas A. Schweitzer, Is Prayer Constitutional at Municipal Council Meetings?, (27 Mun. Law. 26 (2013)).
• Levi Cooper, Bitter Herbs in Hasidic Galicia, (JSIJ 12 (2013), 1-40).
• Zia Ullah Ranjah & Shahbaz Ahmad Cheema, Protection of Legal Status of Women in Pakistan: An Analysis of the Role of Supreme Court, (International Journal of Physical and Social Sciences, Vol. 4, Issue 4, 2014).
• Danièle Hervieu-Léger & Janet Bennion, The Meanings of Marriage in the West: Law, Religion and 'Nature', (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2014/38, 2014).
• Dale Carpenter, Windsor Products: Equal Protection from Animus, (Supreme Court Review (2014 Forthcoming)).

Forfeited Iranian Charity's Building Will Be Sold; Iran Claims Religious Freedom Violation

On Thursday, the U.S. Attorney's Office in the Southern District of New York announced that the federal district court has approved a U.S. government settlement agreement (full text of stipulation) with holders of terrorism-related judgments against the Government of Iran.  The agreement among other things provides for the sale of a forfeited building in Manhattan. The building belonged to the Alavi Foundation and Bank Melli, which the court found acted as fronts for the government of Iran.  The court last year ordered forfeiture because of violations of the Iranian Transactions Regulations promulgated under the International Emergency Economic Powers Act, and the federal money laundering statutes. In response, yesterday Iran's Ministry of Foreign Affairs issued a statement claiming that "the New York branch of Alavi Fund is an independent charity fund in the United States which has no relation with Iran." It added that the court's verdict violates "the US commitments to respect and safeguard the religious freedom of its own citizens."

Christian School's RLUIPA, Constitutional Challenges To Zoning Denials Are Rejected

In Tree of Life Christian Schools v. City of Upper Arlington, (SD OH, April 18, 2014), an Ohio federal district court dismissed a Christian school's challenge to an Ohio city's refusal to issue a conditional use permit or to rezone for use as a school an existing office building in an area zoned for offices and research facilities. In dismissing the school's claim that the refusal violates RLUIPA's "equal terms" provision, the court held that "the proper comparator for a religious school is a non-religious or secular school." The court also rejected the school's 1st and 14th Amendment challenges to the zoning decision.

Recent Prisoner Free Exercise Cases

In Robledo v. Livingston, (5th Cir., April 14, 2014), the 5th Circuit allowed an inmate to proceed in forma pauperis and vacated the district court’s conclusion that his claims under RLUIPA and the Texas RFRA statute were frivolous. The court held plaintiff's claim that for months he was not allowed to participate in weekly Christian worship services "is not based upon an indisputably meritless legal theory, and his factual contentions are not clearly baseless."

In Layman v. Chacon, 2014 U.S. Dist. LEXIS 50804 (ND TX, April 11, 2014), a Texas federal district court dismissed an inmate's complaint that some of his religious materials were confiscated when they were improperly stored.

In Miles v. Guice, 2014 U.S. Dist. LEXIS 51507 (ED NC, April 10, 2014), a North Carolina federal district court allowed an inmate to move ahead, but denied a temporary restraining order, in plaintiff's suit seeking recognition of Nations of Gods and Earth as a religion and accommodation of his religious diet and other practices.

In Rossi v. Fischer, 2014 U.S. Dist. LEXIS 52068 (SD NY, April 15, 2014), a New York federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 52146, March 31, 2014) and refused to grant a Rastafarian inmate a preliminary injunction to allow a group Rastafarian celebration on April 21 after prison authorities agreed to excuse plaintiff from work that day and serve him a vegetarian meal.

In Johnson v. Hicks, 2014 U.S. Dist. LEXIS 54239 (ED CA, April 17, 2014), a California federal magistrate judge held that an inmate's complaint that his religious materials were confiscated should be dismissed, with leave to amend, since he had not alleged any facts indicating that this substantially burdened his religious exercise.

In Villalobos v. Bosenko, 2014 U.S. Dist. LEXIS 54280 (ED CA, April 16, 2014), a California federal magistrate judge dismissed, but with leave to file an amended complaint, a Buddhist inmate's claim that he was denied a vegetarian diet.

Article Traces Evolution of Obama's Position On Same-Sex Marriage

Today's New York Times Magazine carries a lengthy article titled How the President Got to ‘I Do’ on Same-Sex Marriage. It traces the evolution of President Obama's public position on the issue.

President Obama Sends Easter and Passover Greetings

President Obama used his White House address yesterday (full text) (video) to convey Easter and Passover greetings, saying in part:

These holy days have their roots in miracles that took place long ago.  And yet, they still inspire us, guide us, and strengthen us today.  They remind us of our responsibilities to God and, as God’s children, our responsibilities to one another.

For me, and for countless other Christians, Holy Week and Easter are times for reflection and renewal.  We remember the grace of an awesome God, who loves us so deeply that He gave us his only Son, so that we might live through Him.... 

The common thread of humanity that connects us all – not just Christians and Jews, but Muslims and Hindus and Sikhs – is our shared commitment to love our neighbors as we love ourselves.  To remember, I am my brother’s keeper. I am my sister’s keeper.  Whatever your faith, believer or nonbeliever, there’s no better time to rededicate ourselves to that universal mission.

Anti--SLAPP Motion Granted To Dismiss Suit Growing Out of Ground-Zero Mosque Controversy

Forras v. Rauf, (D DC, April 18, 2014), is a remnant from the widely publicized battle over attempts in 2010 to construct a mosque and community center two blocks from Ground Zero in lower Manhattan.  New York City first responder Vincent Forras sued to prevent building of the mosque, claiming that it would be a nuisance, would inflict emotional distress and amounted to an assault.  In response to the complaint in that suit, Imam Feisal Rauf and the other defendants moved to dismiss, filing a memorandum of law that, among other things, said that Forras equates Islam with terrorism and has become "America's Spokesman of Bigotry." The suit was ultimately dismissed.

Meanwhile, however, Forras filed this lawsuit against Rauf and the other defendants alleging defamation, false light, assault, and intentional infliction of emotional distress from the statements they made in their memorandum of law seeking dismissal of the original lawsuit. Forras moves to dismiss under the D.C. Anti-SLAPP Act which provides for rapid dismissal of a lawsuit that is filed to chill speech about public issues.  The court granted the motion, finding that Forras had not shown a likelihood of succeeding on the merits of his claims.  The judicial proceedings privilege would defeat the defamation and false light claims.  Plaintiffs also failed to show that they are likely to succeed on their other claims, including their claim that the statements in the original court proceedings "put a de facto Fatwah on Plaintiffs."

Kentucky Supreme Court Fleshes Out The Ministerial Exception Doctrine

In two cases decided earlier this week, the Kentucky Supreme Court clarified the ministerial exception doctrine.  In Kirby v. Lexington Theological Seminary, (KY Sup. Ct., April 17, 2014), Jimmy Kirby, a tenured professor teaching Christian social ethics at Lexington Theological Seminary had his employment terminated as part of the seminary's response to a financial crisis it was facing. Kirby sued claiming race discrimination and breach of contract. The court held that the race discrimination claim was barred by the ministerial exception doctrine, saying:

we explicitly adopt the ministerial exception as applicable to employment claims—especially discrimination claims—asserted against a religious institutional employer by an employee who is directly involved in promulgating and espousing the tenets of the employer's faith.....

From a broad perspective, the ministerial exception does not strip a court of its jurisdiction but, instead, simply disallows the forward progress of the particular suit. The ministerial exception's very name inherently suggests it does not operate as a jurisdictional bar. It is an exception, not an exemption.  Most likely, a great deal of the current disagreement over the ministerial exception's proper operation stems from the conflation of the ministerial exception with the broader principle of ecclesiastical abstention. Secular courts do not have jurisdiction to hear disputes over church doctrine. But courts do have jurisdiction to hear and resolve employment disputes, contract claims, tort claims, or similar. And that authority is not lost as a result of the ministerial exception.

However the court permitted Kirby to proceed with his claim that his dismissal violated his contractual rights as a tenured professor:

Although state contract law does involve the governmental enforcement of restrictions on a religious institution's right or ability to select its ministers, those restrictions are not governmental restrictions. Simply put, the restrictions do not arise out of government involvement but, rather, from the parties to the contract, namely, the religious institution and its employee. 

Contractual transactions, and the resulting obligations, are assumed voluntarily. Underneath everything, churches are organizations. And, like any other organization, a "church is always free to burden its activities voluntarily through contracts, and such contracts are fully enforceable in civil court."  Surely, a "church can contract with its own pastors just as it can with outside parties."  "Enforcement of a promise, willingly made and supported by consideration, in no way constitutes a state-imposed limit upon a church's free exercise rights."

In a companion case, Kant v. Lexington Theological Seminary, (KY Sup. Ct., April 17, 2014),  Laurence Kant, another tenured professor who was terminated at the same time, also sued for breach of contract.  The Court held that Kant, a Professor of History of Religion who was Jewish, was not a "minister" for purposes of the ministerial exception doctrine:

we find it important to emphasize the connection between the religious institution's employee and the doctrine or tenets of the religious institution. A minister, in the commonly understood sense, has a very close relationship with doctrine of the religious institution the minister represents. The members of the congregation or faith community view a minister as one who is, among other things, the face of the religious institution, permitted to speak for the religious institution, the embodiment of the religious institution's tenets, and leader of the religious institution's ritual.  Kant did none of these things....

[T]he simple fact that an employee professes a different religious belief system than his religious institutional employer does not eliminate the employee as a ministerial employee under the law. The primary focus under the law is on the nature of the particular employee's work for the religious institution. Here, Kant's work was chiefly secular.

Dobson's Family Talk Wins Preliminary Injunction Against ACA Contraceptive Coverage Rules

In Dobson v. Sebelius, (D CO, April 17, 2014), a Colorado federal district court issued a preliminary injunction preventing the government from enforcing the Affordable Care Act contraceptive coverage mandate against James Dobson's religious non-profit Family Talk.  The court concluded that the ACA regulations which allow religious non-profits to opt out, and call for contraceptive coverage to then be furnished directly by insurers or third party administrators, do not eliminate the free exercise burden:

Here, any myopic focus on the brevity of the Exemption Form and its ease of completion misses the mark. It is the de facto forced facilitation of the objectionable coverage that is religiously repugnant to the plaintiffs. The resultant moral abhorrence is not effectively extenuated by a transfer of responsibility via an Exemption Form from the plaintiffs to the TPA. For the plaintiffs, such legal legerdemain does not expiate the morally unacceptable means or end. The transformation of moral culpability from plaintiffs as principals to aiders and abettors does not absolve the plaintiffs from their immutable moral responsibility. Such a compelled concession – even by an ostensibly innocuous legal prophylactic – does not ameliorate the moral ignominy and obliquity created by the pressured participation in the process.

Further, it is of no moment that ultimately the decision by an employee to elect the objectionable coverage is optional. To the plaintiffs, it is the offer per se that is morally offensive regardless of the extent of its acceptance.

Thus, I conclude ultimately that there is a substantial likelihood that the plaintiffs can show that the pressure to execute the Exemption Form imposed on them by the ACA and the concomitant regulations constitutes impermissible pressure to act in violation of their religious beliefs.

Christian Post reports on the decision. (See prior related posting.)

University's Diversity Officer, Demoted For Anti-Gay Marriage Views, Loses Discrimination Lawsuit

In McCaskill v. Galludet University, (D DC, April 14, 2014), the District of Columbia federal district court dismissed a lawsuit brought by Angela McCaskill, Gallaudet University's former Chief Diversity Officer. The University placed McCaskill on administrative leave and eventually demoted her after it become known that at her church she had signed a petition to get a proposed state constitutional amendment to ban same-sex marriage on the Maryland ballot. The University justified its action on the ground that McCaskill's ability to advocate for her constituents, particularly the university's gay community, had been compromised.  McCaskill brought the suit alleging discrimination on the basis of race, religion, sexual orientation, marital status, and political affiliation in violation of D.C.'s Human Rights Act; infliction of emotional distress; and defamation. In rejecting McCaskill's religious discrimination  claim, the court said in part:

Even if Gallaudet knew of her religious convictions or was aware that those convictions motivated her to sign the petition – a fact that remains hazy on the face of the Complaint – there is no factual allegation that her religion somehow prompted her suspension or demotion. ... [A]lthough it may be true that McCaskill signed the petition because she is a Christian ... the university cannot be guilty of discrimination on that basis.

Washington Business Journal reports on the decision.

Seventh Day Adventist Sues Over Hostility To His Not Working On Saturdays

The New York Post reports on an employment discrimination lawsuit filed in a New York federal district court last Monday by a Seventh Day Adventist who formerly was employed by CVS pharmacy.  Plaintiff Nowran Busgith, who worked as a loss-prevention specialist, claims that he had no problems getting Saturdays off work until his supervisor Abdul Salui, a Muslim, learned that the reason for the request was Busgith's observance of his Sabbath. From then on Salui became hostile toward him, repeatedly asked him why he was in a "white boy religion," and refused his requests not to work on Saturdays. The suit seeks an unspecified amount of damages against CVS and Salui.

Australian Court Says Christian Camp Illegally Discriminated On Basis of Sexual Orientation

In Christian Youth Camps Ltd. v. Cobaw Community Health Service Ltd., (Vict. App., April 16, 2014), the Court of Appeal of the Australian state of Victoria, in a 2-1 decision, held that a Christian youth camp unlawfully discriminated on the basis of sexual orientation when it refused to rent out its camp for a weekend to an organization whose goals were to prevent suicide among "same-sex attracted young people."  The majority held that neither of the two religious freedom exemptions in the Equal Opportunity Act 1995 apply. The exemption in Sec. 75(2) does not apply because the camp is not "a body established for religious purposes." The exemption in Section 77 (prior to its amendment in 2010) for conduct "necessary ... to comply with the person's genuine religious beliefs or principles" should be read as covering only individuals, and not corporations.

Justice Redlich dissented, arguing that the exemption in Section 77 is available to corporations, and that in addition corporations may claim the exemption when it is validly claimed by an agent of the corporation who acted for it. Christian Today reports on the decision.

10th Circuit Hears Oral Arguments In Oklahoma Same-Sex Marriage Case

As reported by the Los Angeles Times, the U.S. 10th Circuit Court of Appeals yesterday heard oral arguments in  Bishop v. Smith.  An audio recording of the full oral arguments is available from the court's website. In the case, an Oklahoma federal district court held that the provision in the Oklahoma constitution barring same-sex marriage in the state violates the equal protection clause of the 14th Amendment.  The same 10th Circuit panel heard arguments last week in a case challenging Utah's same-sex marriage ban. (See prior posting.)

New York City Churches Still Holding Out Hope For Continued Use of Public School Space

The battle by New York City churches to continue to use public school buildings on weekends for religious services is not over despite the Second Circuit's recent decision upholding the school board's rule change barring such use. On Tuesday, appellants in Bronx Household of Faith v. Board of Education of the City of New York filed a petition (full text) for an en banc rehearing by the full Second Circuit.  According to an ADF press release, "The filing automatically puts the panel’s ruling on hold, which means that congregations will be able to continue meeting through Easter and the remainder of Passover while the 2nd Circuit decides what to do with the petition." Meanwhile, as reported by World, there continues to be speculation that New York Mayor Bill de Blasio will move to reverse the policy the school board adopted under his predecessor's administration and allow churches to continue to use school space.

Atheist Sues New Jersey Over Refusal of Vanity License Plate

A New Jersey woman yesterday filed suit in federal district court against the New Jersey Motor Vehicle Commission over its refusal to issue her a vanity license plate reading "8THEIST".  The complaint (full text) in Morgan v. Martinez, (D NJ, filed 4/17/2014), contends that in rejecting the plate because it "may carry connotations offensive to good taste and decency" the state violated plaintiff's rights under the 1st and 14th Amendments.  The state was willing to issue a vanity plate reading "BAPTIST".  Americans United issued a press release announcing the filing of the lawsuit.

New Hampshire Supreme Court Hears Arguments In Education Tax Credit Challenge

On Wednesday, the New Hampshire Supreme Court heard oral arguments in Duncan v. State of New Hampshire. A video recording of the full arguments is available from the Supreme Court's website. [File will download.]  In the case, a New Hampshire trial court held that the state's Education Tax Credit program violates the state constitution's ban on compelling any person to support sectarian schools and its "No Aid" clause, insofar as the state allows funds generated by the program to be used at religious schools. (See prior posting.) The Concord Monitor reports on the oral arguments.

British Trial Court Rejects Claim That Wealthy Family's Property Was Held Under Hindu/ Sikh Law

Singh v. Singh, (EWHC, April 8, 2014) is a property dispute between members of an extremely wealthy Sikh family living in Britain. In the case, the eldest son in the family, Jasminder Singh, claims ownership of Tetworth Hall, described as "a spacious house standing in its own grounds on the edge of Ascot race course." He also claims ownership of 5.28% of the shares of Edwardian Group, Ltd., a very profitable company that operates hotels in central London and elsewhere. Both the house and the company shares are registered in Jasminder's name.

According to the court, Jasminder's father, however, claims that:

these and other items of property are joint family assets which are held in accordance with the principles of what is known as the Mitakshara. This is the legal code ... by which a Hindu family living and eating together as a composite household may hold its property. The code which is of very ancient origin applies as much to Sikhs as to Hindus. This is relevant because, as their name implies, the Singh family are Sikhs. The beneficial interest in property of a joint Hindu (or Sikh) family, if held subject to the Mitakshara, belongs jointly to the male members of that family down to the third generation from a common male ancestor.

Jasminder responds that: "until this dispute first arose he had never even heard of the Mitakshara, let alone had any understanding of how it operates."

The court prefaced a lengthy review of the family's history with this observation:

If nothing else this litigation has highlighted the extraordinary enterprise that has enabled the Singh family, in the space of just two generations, to rise from obscurity and very modest circumstances in what was then rural British India, overcome all manner of difficulties, come eventually to this country and make a fortune for itself. I dare say it is not untypical of many such families but there can be few whose rise has been quite so meteoric. The family's story as it unfolded in the course of this trial has a heroic quality to it. It has made it all the more painful to have to listen to the tragic differences that now divide its members.

In a 248 paragraph opinion, th High Court judge concluded:

At the end of the day the question is whether Father has demonstrated that as between himself and Jasminder there existed an understanding that any property which they or either of them acquired would be held as joint family property.... I am unable to find that there was such an understanding.

[Thanks to Law & Religion UK for the lead.] 

Suit Over Sale of Former Public School To Yeshivas Is Settled

Lower Hudson Journal News reports on the settlement of a lawsuit between the East Ramapo, New York school district and two Orthodox Jewish schools (yeshivas) that are leasing and seeking to purchase an elementary school building that was closed as a public school in 2009. Congregation Bais Malka of Monsey and the Hebrew Academy for Special Children, a religious school for children with special needs, have been renting the former Colton school since 2011. They sued last summer seeking credits for rent paid to reduce the purchase price of the building.  Opponents claim a conflict of interest in the entire transaction since a majority of the school board members are Orthodox Jews whose families use Orthodox Jewish yeshivas. In the settlement agreement, East Ramapo will give the yeshivas over $1 million in rent credits, will waive late fees for rent that was never paid, and give additional credits for repairs that the tenants made. A New York trial court judge finally approved the settlement on Monday, but insisted that it include language that the court does not endorse the findings of fact in the settlement. (See prior related posting.)

3 USCIRF Commissioners Are Reappointed

The U.S. Commission on International Religious Freedom announced last week that three of its commissioners have been reappointed. On March 28, Senate Minority Leader Mitch McConnell announced his reappointment of Mary Ann Glendon and Dr. M. Zuhdi Jasser. On April 9, Senate Majority Leader Harry Reid announced his reappointment of Dr. Katrina Lantos Swett. Commissioners are appointed for 2-year terms, some by Congressional leaders and some by the President, as specified in Section 201 of the International Religious Freedom Act.

U.S. Embassy Is One Sponsor Of School Program In Czech Republic To Fight Prejudice Against Muslims

AINA reported this week that the U.S. Embassy in Prague is one of a half dozen sponsors of a program titled "Muslims in the Eyes of Czech School Children."  The project, authorized by the Czech Republic's Ministry of Education, is designed to fight stereotypes and prejudices about Muslims by teaching school children about Islamic beliefs and practices. The first phase of the project is aimed at analyzing the accuracy of information about Islam in Czech school textbooks. Later phases involve examination of issues such as veiling of women and media coverage of Islam, artistic projects and thematic lectures. Critics of the program are concerned that it will involve proselytizing.

Religion Clause Is 9 Years Old Today

Religion Clause is 9 years old today! Thanks to all of you who have made the blog successful as the "go to" resource for coverage of religious liberty and church-state developments.  I appreciate your readership and hope you will continue to recommend the blog to others.  I remain committed to religiously and ideologically neutral reporting, with extensive links particularly to primary source material. As always, I welcome your e-mails on leads for blog posts, or on factual corrections. You can reach me at religionclause@gmail.com. Also feel free to send along any suggestions for change through Comments to this post.

NYPD Ends Muslim Neighborhood Surveillance Unit

The New York Times yesterday reported that the New York Police Department is dropping its controversial Demographics Unit that has sent plainclothes detectives into Muslim neighborhoods to secretly monitor individuals. The reassignment of detectives that has inactivated the Unit appears to be part of new Police Commissioner William Bratton's attempt to build better relations with minority communities.

New Approval, But Also Law Suit, Are Latest Steps In Creating New Canadian Christian Law School

In Canada last week, the Law Society of British Columbia announced that it has voted to approve the proposed law school at Trinity Western University, making TWU graduates eligible to enter the Law Society's admissions program. The full text of the documents underlying the vote are available online. This follows similar approval last December by Advanced Education Minister Amrik Virk, and by the Federation of Law Societies of Canada. (See prior posting.)  A TWU press release says that BC Society's decision now allows it to move forward with creating the law school.  The opening of a law school at the evangelical Christian university has been controversial because of the university's Biblical-based "community covenant" which requires staff, faculty and students to refrain from homosexual relationships (as well as gossip, lying, smoking and consuming alcohol). (See prior posting.)

Meanwhile, according to the Victoria (BC) Times Colonist, on Monday an openly gay member of the Vancouver Park Board filed suit in B.C. Supreme Court challenging the approval of the school by the government's Advanced Education Minister. The suit contends that the approval fosters a discriminatory policy that violates the Canadian Charter of Rights and Freedoms.

Ohio's Ban On Recognizing Same-Sex Marriages From Elsewhere Invalidated, But Most of Order Stayed Pending Appeal

In Henry v. Himes, (SD OH, April 14, 2014), an Ohio federal district court held that Ohio's bans on recognizing same-sex marriages validly performed in other jurisdictions are "facially unconstitutional and unenforceable under any circumstances." Legal Times reports on the decision. Judge Black had announced earlier this month that this ruling was coming. In a follow-up opinion today (full text) the court stayed its broad ruling on facial unconstitutionality  while the case is appealed  However the court refused to stay the order as to the "as applied" claims of the four same-sex couples who brought the lawsuit. Judge Black ordered the state to issue birth certificates for these Plaintiffs’ children which list both lawfully married same-sex spouses as parents.

President Sends Passover Greetings

The White House issued a statement from the President (full text) today sending greetings from himself and Michelle to all those celebrating Passover. Passover begins this evening.  Mr. Obama announced that, as in past years of his Presidency, on Tuesday he will be joining friends and loved ones at a Seder. His statement spoke both of the meaning of Passover and, in light of yesterday's shootings in Kansas, of the need to combat ignorance and intolerance, including anti-Semitism, that can lead to violence.

President Hosts Easter Prayer Breakfast

This morning, President Obama hosted religious leaders at the White House for his 5th annual Easter Prayer Breakfast marking the beginning of Holy Week. (Press release and video of remarks).  He began his remarks (full text) by speaking of the shootings in Kansas City yesterday. He then went on:

So this Easter Week, of course we recognize that there’s a lot of pain and a lot of sin and a lot of tragedy in this world, but we’re also overwhelmed by the grace of an awesome God.  We’re reminded how He loves us, so deeply, that He gave his only begotten Son so that we might live through Him.  And in these Holy Days, we recall all that Jesus endured for us -- the scorn of the crowds and the pain of the crucifixion, in our Christian religious tradition we celebrate the glory of the Resurrection -- all so that we might be forgiven of our sins and granted everlasting life. 

He went on to speak about his recent meeting with Pope Francis, and to thank religious leaders in the audience for their good works, including participation in the My Brother's Keeper initiative.

U.S. Delegation To Canonization Mass Named

Last Friday the White House announced the makeup of the Presidential Delegation to the Holy See which will attend the Canonization Mass of Pope John XXIII and Pope John Paul II on April 27, 2014.  The delegation will be led by Presidential Counselor John Podesta. Other members of the delegation are Rep. Xavier Becerra, Chairman of the House Democratic Caucus; and Katie Beirne Fallon, Assistant to the President and Director of Legislative Affairs.