House-Passed Version of Defense Authorization Bill Impacts Chaplains, Religious Expression

The text of HR 4435, the "Howard P. ‘Buck’ McKeon National Defense Authorization Act for Fiscal Year 2015" as it passed the House of Representatives on May 22 is finally available online. The bill contains three provisions impacting military chaplains and religious expression by service members:

• Section 507 allows the Secretary of Defense to defer the retirement of a chaplain beyond age 68 if necessary for the needs of the military.
• Section 525 authorizes chaplains "called upon to lead a prayer outside of a religious service ... to close the prayer according to the traditions, expressions, and religious exercises of the endorsing faith group."
• Section 528 requires the Department of Defense to revise  Instruction 1300.17 (DOD's January 2014 policy on accommodation of religious practices-- see prior posting) "to ensure that verbal and written expressions of an individual’s religious beliefs are protected by the Department of Defense as an essential part of a the free exercise of religion by a member of the Armed Forces."  Section 528 also requires a similar revision in Air Force Instruction 1-1 (the Air Force's Aug. 2012 policy on free exercise and government neutrality-- see prior posting).

Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

In Valent v. Board of Review, Department of Labor, (NJ App., June 5, 2014), the New Jersey Superior Court Appellate Division held that a nurse employed by a hospital was entitled to unemployment compensation after she was fired for refusing to obtain a flu vaccination as required by the hospital's policy.  The hospital policy allowed exemptions for religious or medical reasons, however here the nurse's objections were based on secular non-medical concerns.  The court wrote in part:

By exempting employees who can produce religion-based documentation, the employer's flu vaccination policy is clearly not exclusively driven by health-related concerns. The Board cannot therefore accept the policy as a proper basis to find appellant committed an act of insubordination of sufficient magnitude to render her disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(b)....

The religion exemption merely discriminates against an employee's right to refuse to be vaccinated based only on purely secular reasons.  Our Supreme Court has clearly cautioned that "[g]overnment may not, under the First Amendment, prefer one religion over another or religion over non-religion but must remain neutral on both scores.".... Under these circumstances, by denying appellant's application to receive unemployment benefits based only on her unwillingness to submit to the employer's religion-based policy, the Board violated appellant's rights under the First Amendment.

AP reports on the decision.

Court Grants Preliminary Injunction To For-Profits and Non-Profits Challenging Required Contraceptive Coverage

In Catholic Benefits Association LCA v. Sebelius, (WD OK, June 4, 2014), an Oklahoma federal district court granted a preliminary injunction to prevent enforcement of the contraceptive coverage mandate against both non-profit and for-profit members of the Catholic Benefits Association, a third-party administrator of health insurance plans for Catholic employers. As to for-profit employers, the court was bound by the 10th Circuit's decision in Hobby Lobby.  Finding that the non-profit employers also suffered a substantial burden on their religious exercise by completing the opt-out form that results in contraceptive coverage directly from the third-party administrator, the court said in part:

the Court’s inquiry is focused upon how the plaintiffs themselves measure their degree of complicity in an immoral act, not whether a reasonable observer would consider the plaintiffs complicit in such an act....  Here, Plaintiffs sincerely believe that in executing the form and providing it to their issuers or TPAs, they play a central role in the provision of contraceptive services to their employees—something Plaintiffs find morally repugnant. This is where the Court’s inquiry ends, as it is not the Court’s role to say Plaintiffs’ religious beliefs are mistaken.

The court concluded, however, that as to the Archdioceses of Oklahoma City and of Baltimore, no substantial burden on religious exercise existed because they are totally exempt from the contraceptive coverage mandate. AP reports on the decision. (See prior related posting.)

Cert. Petition Filed In Challenge To Navy Chaplain Corps Procedures

The Rutherford Institute announced yesterday that it has filed a petition for certiorari (full text) in In re Navy Chaplaincy. In the long-running case, the D.C. Circuit Court of Appeals denied a preliminary injunction in a challenge to the Navy's procedures for promoting members of the Navy Chaplains Corps.  Petitioners argue that the current procedures favor Catholics and liturgical Protestants over various non-liturgical denominations.

Supreme Court Denies Stay In Oregon Same-Sex Marriage Case

In May, an Oregon federal district court struck down Oregon's ban on same-sex marriage. (See prior posting.) The state declined to appeal, but the National Organization for Marriage (NOM) has been seeking to intervene as a plaintiff so it can appeal the decision.  So far it has been unsuccessful.  Yesterday the U.S. Supreme Court, in a one-sentence order, denied NOM's request for a stay of the district court's order while NOM appeals the district court's denial of its motion to intervene. All the pleadings in the complex procedural battle by NOM are here. The Oregonian reports on the Supreme Court's action, as does SCOTUSblog.

Israel's Justice Minister Officiates At Same-Sex Jewish Wedding; Marriage Not Legally Recognized

In Israel yesterday, Justice Minister Tzipi Livni officiated at a same-sex wedding ceremony, even though the marriage will not be recognized by the Israeli government.  Jerusalem Post reports that Livni conducted the ceremony for Tsach Sa'ar, a former aide to a member of the Knesset, and Guy Arad, an attorney.  The ceremony used a traditional huppah (wedding canopy), and the traditional breaking of a glass by the groom used two glasses, one for each man to break. Posting pictures on her Facebook page, Livni wrote that the ceremony was not intended to be a provocation against Judaism, but instead respected Jewish tradition.  She added, "In our eyes, Judaism is open, accepting and respects all people who were created in God's image."

Baptist, Jewish Groups Join As Plaintiffs In Challenge To North Carolina Same-Sex Marriage Ban

The United Church of Christ announced today that two national religious bodies and a number of individual clergy have joined as plaintiffs in its lawsuit that contends that North Carolina law makes it a criminal offense for a member of the clergy to conduct a same-sex marriage ceremony.  This, they argue, infringes the free exercise and expressive associational rights of clergy whose religious teachings and beliefs embrace same-sex marriage.  The national groups joining the lawsuit are the Alliance of Baptists and the Central Conference of American Rabbis.

In Modified Opinion, Court Dismisses Some Diocesan Contraceptive Coverage Claims

In Roman Catholic Archdiocese of Atlanta v. Sebelius, (ND GA, May 30, 2014), a Georgia federal district court in part granted the government's motion to reconsider its March 26 decision.  That decision, invoking RFRA, had  permanently enjoined the government from requiring Catholic Education of North Georgia and Atlanta Catholic Charities to comply with the self-certification requirements to opt out of contraceptive coverage.  In that decision, the court refused on mootness grounds to grant summary judgment to the Atlanta Archdiocese and the Savannah Diocese because they are totally exempt from the contraceptive coverage mandate.  In its May 30 opinion, the court completely dismissed these claims by the Diocesan plaintiffs, as well as dismissing the non-RFRA claims by all the plaintiffs.  The court however refused to reconsider its conclusion that the health plans involved are "church plans" under ERISA.

7th Circuit Hears Oral Arguments On Several Milwaukee Archdiocese Bankruptcy Issues

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in two cases relating to the Archdiocese of Milwaukee. The first is Official Committee of Unsecured Creditors v. Listecki (audio of oral argument). It involves a number of complex legal issues growing out of a trial court decision that $50 million in a cemetery perpetual care trust fund is unavailable to creditors, including abuse victims, in the Archdiocese's bankruptcy reorganization. (See prior posting.) Among other issues is the question of whether RFRA can be raised as a defense to action taken by a Creditors' Committee in bankruptcy.  The case on appeal also involves the refusal of the trial court judge to recuse himself in the case. (See prior posting.)

The second case is Doe v. Archdiocese of Milwaukee (audio of oral argument). It involves the question of whether the bankruptcy court was correct in dismissing the claim of a sexual abuse victim who had signed a settlement agreement with the Archdiocese after mediation.  The victim contends that he was fraudulently induced to sign the agreement.  Milwaukee Journal Sentinel reports on yesterday's arguments.

Supreme Court Denies Review In Murfreesboro Mosque Case

The U.S. Supreme Court today denied certiorari in Fisher v. Rutherford County Regional Planning Commission, (Docket No. 13-1214, cert. denied, 6/2/2014). (Order List).  In the case, a Tennessee Court of Appeals reversed a trial court's holding that Rutherford County had given inadequate public notice of a meeting which approved the site plan for the controversial Murfreesboro mosque. (See prior posting.) The Tennessee Supreme Court denied review. The first portion of the planned Islamic center was completed and occupied in August 2012. Today's Tennessean has more details.

Government Says There Is No Controversy In Unusual Contraceptive Mandate Case

An unusual lawsuit involving the Affordable Care Act contraceptive coverage mandate was filed in April by Media Research Center (MRC) with little notice given to it, at least until a May 15 press release. MRC is the parent of CNSNews. In dozens of other cases, religious non-profits have sued objecting to the requirement that they complete the self-certification form to opt out that will lead to contraceptive coverage being furnished directly by the insurer or third-party administrator. The complaint (full text) in Media Research Center v. Sebelius, (ED VA, April 11, 2014), on the other hand, alleges that plaintiff has filed the self-certification form and has sought assurance from the government that it qualifies as an "eligible organization" entitled to avail itself of the opt out. It alleges that the government has refused to provide such assurance, and asks the court to issue a declaratory judgment that Media Research Center is an "eligible organization".

Then in a second count, it seeks an injunction against enforcement of the mandate and a declaratory judgement that the regulations allowing religious non-profits to opt out violates the Establishment Clause:

89. Determining which entities qualify as "religious employers" or "eligible organizations" requires the Government to determine (1) whether the organization truly seeks to inculcate "religious values," (2) whether an objection to the Contraception Mandate is truly "religious", and (3) whether an entity truly holds itself out as a "religious" organization.

90. The Contraception Mandate thus makes the Government the arbiter of which organizations are, or are not, sufficiently "religious" to qualify for exceptions to the Contraception mandate.

91. This entails an unconstitutionally invasive inquiry into an organization's religious purpose, beliefs, and practices.

92. Furthermore, the regulations are framed to value the activities of traditional religious groups (e.g, churches, ministries, and proselytizing organizations) more highly than non-traditional religious organizations (like MRC, which defends traditional American Judeo-Christian beliefs by exposing the hypocrisies and fallacies of media attacks on those beliefs).

The government in its Memorandum In Opposition (May 23, 2014) (full text) argues that there is no controversy present:

There is no dispute that MRC has determined that it is eligible for an accommodation and has executed the self-certification. There is also no dispute that MRC has now done everything that the regulations require in order to avail itself of an accommodation. Defendants have not disputed MRC’s status as an eligible organization, and have not suggested that they have any intent or reason to do so in the future. In fact, there is no dispute of any kind relevant to the instant motion....

Qualification for an accommodation depends on a self-certification—it does not require the government to make any determination at all. Nothing in the regulations or elsewhere suggests that defendants will undertake any sort of inquiry regarding MRC’s determination. Indeed, defendants refused to make a definitive pronouncement on MRC’s eligibility for an accommodation in this case because the government cannot possibly be in the business of making the type of individualized determination that MRC seeks for every potentially eligible organization. To agree to do so here would be to open the floodgates for such requests, which could quickly overwhelm defendants’ resources.

Recent Articles of Interest

From SSRN:

• Jeffrey A. Redding, Marriage ≠ Marriage: Querying the Relevance of Equality to the Interstate Recognition of Same-Sex Relationships, (University of Miami Law Review, Forthcoming).
• D. Brian Dennison, Faith Frieda Letacie & Heather M. Pate, Confronting Child Sacrifice in Uganda: A Multi-Layered View, (Kabarak University Law Review, Forthcoming).
• Kevin J. Murphy, Administering the Ministerial Exception Post-Hosanna-Tabor: Why Contract Claims Should Not Be Barred, (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 28, No. 1, 2014).
• Brian D. Galle, How Do Nonprofit Firms Respond to Tax Policy?, (May 29, 2014).

From SmartCILP:

• Elizabeth A. Clark, Liberalism In Decline: Legislative Trends Limiting Religious Freedom In Russia and Central Asia, 22 Transnational Law & Contemporary Problems 297-342 (2013).

Fired Principal of Seventh Day Adventist School Can Pursue Her Claim

In Galetti v. Reeve, (NM App., May 28, 2014), the New Mexico Court of Appeals held that the church autonomy doctrine does not require dismissal at this time of a damage claim by a former principal and teacher at a Seventh Day Adventist school who was fired from her position. Plaintiff claims that she was harassed by by her supervisor and was fired in retaliation for filling a complaint about it. The court held that the trial court erred in dismissing her breach of contract, retaliatory discharge, intentional interference with contract, civil conspiracy, and defamation claims, saying:

The First Amendment does not immunize every legal claim against a religious institution or its members, but only those claims that are rooted in religious belief.

It added that if later it becomes apparent that any of the claims turn on matters of doctrine or church governance, summary judgment may be proper then.

Colorado Civil Rights Commission Affirms Initial Decision In Gay Wedding Cake Case

According to the Denver Post, the Colorado Civil Rights Commission on Friday affirmed the Initial Decision of an administrative law judge in Craig v. Masterpiece Cake Shop. The initial decision rejected free speech and free exercise claims, and held that a bakery and its owner illegally discriminated against a same-sex couple on the basis of sexual orientation in refusing to sell them a wedding cake. (See prior posting.)  To prevent future discrimination, in Friday's decision the Commission required bakery owner Jack Phillips to submit quarterly reports for two years on steps taken to change company policies and train employees. The bakery must also disclose the names of any clients who are turned away. [Thanks to Tom Rutledge for the lead.]

Recent Prisoner Free Exercise Cases

In Funtanilla v. Williams, 2014 U.S. Dist. LEXIS 71354 (ED CA, May 22, 2014), a California federal magistrate judge allowed a Seventh Day Adventist inmate housed at a substance abuse treatment center to move forward against most of the defendants with his complaint that he was not permitted to place a copy of the Ten Commandments above his door, get his meals for the Sabbath ahead of time or delivered, and attend worship services.

In Rivera v. Michigan Department of Corrections, 2014 U.S. Dist. LEXIS 72325 (WD MI, May 28, 2014), a Michigan federal district court permitted Moorish Science inmate to proceed against certain of the defendants for an injunction to require recognition of  Moorish Science Temple of America-1928 as a separate religious group from Moorish Science Temple of America, Inc., (1934 Portion).

In Smart v. Aramark Inc., 2014 U.S. Dist. LEXIS 73106 (D NJ, May 29, 2014), a New Jersey federal district court dismissed an inmate’s complaint that prison rules requiring inmates who work in the kitchen to shave their facial hair discriminates against Muslim, Jewish and Christian inmates who wear beards for religious reasons.

In Free v. Ellis, 2014 U.S. Dist. LEXIS 73118 (D NJ, May 29, 2014), a New Jersey federal district court dismissed without prejudice an inmate’s claim that he was not allowed to attend religious services for a 15-month period.

New Teacher Contracts In Cincinnati Archdiocese Create Controversy

CNN reports today that controversy surrounds the new teacher contracts that must be signed by all teachers in the schools of the Archdiocese of Cincinnati. Going beyond the general language of the past that requires teachers to adhere to Catholic doctrine, the new contracts spell out some specifics. They bar cohabitation or sex outside of marriage, using in-vitro fertilization, living a gay "lifestyle," or publicly supporting any of these.  The new contracts also add the title "minister" to all teachers, regardless of subjects taught-- presumably to allow the Archdiocese to invoke the ministerial exception doctrine if sued for employment discrimination. Cincinnati Catholic Schools Superintendent Dr. Jim Rigg  says the contracts do not add any new requirements; they just explain in clear language some of the principles of the Church. Teacher Roger Rosen commented:

Jesus always acted out of love. Never out of fear, and we're all being asked to act out of fear because the lawyers have taken over.

Court Lets Fired Catholic School Administrator Continue Discrimination Suit

LifeSite News reports that a Washington state trial court judge last week refused to dismiss an employment discrimination lawsuit against Seattle's Eastside Catholic High School filed by Mark Zmuda, its former vice principal. Zmuda was forced to resign after he married his same-sex partner. Zmuda claims that the school violated its own anti-discrimination policy, while the school says Zmuda breached the morality clause in his contract that requires him to publicly uphold the teachings of the Catholic faith.  The school had given Zmuda the option to divorce his spouse and enter a civil commitment ceremony if he wanted to keep his position.

The court rejected the school's argument that the 1st Amendment's freedom of religion protections deprived the court of jurisdiction over the dispute.  King County Superior Court Judge Catherine Shaffer wrote in part: "The Federal and Supreme Courts have made it clear that an employee can sue regardless of ministerial doctrine." Zmuda's suit alleges violation of Washington's law against discrimination, breach of implied contract, wrongful termination, violation of the consumer protection act, and tortious interference. (See prior related posting.)

Houston Passes Controversial Equal Rights Ordinance

As reported by CultureMap Houston, on Wednesday the Houston, Texas City Council by a vote of 11-6 passed the controversial Houston Equal Rights Ordinance (full text). The new law protects against discrimination in public accommodations, employment and housing on the basis of sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity or pregnancy. A provision that would have protected transgender persons in bathroom choice was removed after particularly strong objections from conservative and religious leaders.  Religious organizations are exempted from various provisions of the Ordinance. According to MSNBC, before passage of this ordinance, Houston was the largest U.S. city without local anti-discrimination laws.  Opponents of the measure are attempting to collect the needed 17,000 signatures to put repeal of the Ordinance on the ballot in November's election.

No Problem With School's Rejection of Tattooed Jesus Jumbotron Ad

In Little Pencil, LLC v. Lubbock Independent School District, (ND TX, May 29, 2014), a Texas federal district court rejected the free speech and free exercise claims by an organization that unsuccessfully sought to display a religious ad on a high school football field jumbotron. The ad depicted a tattooed Jesus and a website URL. The ad was part of a marketing concept using a new way to share the Bible's teachings.  The court, finding that the school had created a "limited public forum" in selling ad space, and that its rejection of plaintiff's ad was reasonable. First it implemented the school's broader policy against visible tattoos.  Second, the ad risked creating an Establishment Clause violation because it might be perceived as being endorsed by the school. The Lubbock Advance-Journal reports on the decision.

Top South African Judges Speak At Law and Religion Conference

IOL News and Ecumenical News report on a controversial speech by South Africa's Chief Justice Mogoeng Mogoeng at the University of Stellenbosch's second Annual African Law and Religion conference earlier this week. According to IOL:

Mogoeng decried the levels of maladministration, crime and corruption, and “the extremely low levels to which morality has degenerated… the dishonesty as well as the injustices that have permeated all facets of society - price-fixing and fronting included”.

These, he argued, “in my view would effectively be turned around significantly if religion were to be factored into the law-making process”.

Here is a video of his entire speech. Mogeng, a lay preacher in the Pentecostal Winners' Chapel, has been controversial since his appointment in 2011. (See prior posting.)

Former South African Constitutional Court Judge Albie Sachs also spoke at the Conference, emphasizing the need for different worldviews to co-exist.  Here is a video of his full speech.

House Holds Religious Freedom Hearing on "Countries of Particular Concern"

On May 22, the House Foreign Affairs Committee, Subcommittee on Africa, Global Health, Global Human Rights and International Organizations held a hearing on " Protecting Religious Freedom: U.S. Efforts to Hold Accountable Countries of Particular Concern." The committee's website has a video archive of the full hearing as well as transcripts of the statements of the four witnesses.

Another ACA Contraceptive Coverage Challenge Filed By Catholic Diocese

Suits challenging the Affordable Care Act contraceptive coverage mandate continue to be filed by religious non-profits.  The Catholic  Diocese of Greensburg, Pennsylvania announced that on Tuesday it filed suit in a Pennsylvania federal district court challenging the requirement that its Catholic Charities and Catholic elementary schools sign a self-certification form that triggers contraceptive coverage being provided by their health plan's third-party administrator. Pittsburgh Tribune reports on the case.

2nd Circuit OK's "In God We Trust" On Money

In Newdow v. Peterson, (2d Cir., May 28, 2014), the U.S. 2nd Circuit Court of Appeals rejected challenges to 31 U.S.C. §§ 5112(d)(1) and 5114(b), which require that the national motto "In God We Trust" be placed on all coins and currency. The court agreed with 4 other Circuits that the statutory provisions do not violate the Establishment Clause, Free Exercise Clause, or RFRA, saying in part:

As the Supreme Court has repeatedly indicated in dicta, the statutes at issue in this case have a secular purpose and neither advance nor inhibit religion.....

Appellants argue that ... using currency ... requires them “to bear on their persons . . . a statement that attributes to them personally a perceived falsehood that is the antithesis of the central tenant of their religious system.”... Appellants also contend that using money forces them to proselytize.... We respectfully disagree....  As the Supreme Court has previously indicated, the carrying of currency, which is fungible and not publicly displayed, does not implicate concerns that its bearer will be forced to proclaim a viewpoint contrary to his own.

RNS reports on the decision.

Court Rejects Jurisdictional Defenses In IRS 501(c)(3) Policy Challenge

In Z Street, Inc., v. Koskinen, (D DC, May 27, 2014), the D.C. federal district court rejected a number of jurisdictional and procedural defenses raised by the Internal Revenue Service in a viewpoint discrimination suit brought by a conservative pro-Israel group challenging the IRS's "Israel Special Policy."  Plaintiff alleges that the IRS has a policy of sending applications by Israel-related non-profit organizations seeking 501(c)(3) status to a special unit in the D.C. office to determine if the organization's policies differ from those of the Obama administration. Applications by such groups are allegedly subjected to additional review procedures not applied to others. In rejecting the IRS's motion to dismiss, the court said:

Defendant struggles mightily to transform a lawsuit that clearly challenges the constitutionality of the process that the IRS allegedly employs when it determines the tax-exempt status of certain organizations into a dispute over tax liability as a means of attempting to thwart this action’s advancement. But the instant complaint, which in no way seeks an assessment of the taxes to be paid or even a determination of the Plaintiff’s Section 501(c)(3) status, is not so easily deterred.

[Thanks to Steven H. Sholk for the lead.]

Nigeria's National Conference Adopts Recommendations On Religion

In Nigeria, The National Conference has been meeting since March 17. The National Conference grew out of a recommendation from a 13-member Presidential Advisory Committee on National Dialogue. The Conference is considering the reports of its 20 committees on different critical national issues. The Daily Times of Nigeria reports on yesterday's consideration of the report from the Committee on Religion. The National Conference adopted the Committee's recommendation that the government should no longer use public funds to sponsor any program, particularly religious pilgrimages.  Instead the top religious bodies in the country should handle all matters relating to pilgrimages through Pilgrims Commissions managed under a law to be passed by the National Assembly.

The Conference has not yet passed on another recommendation of the Committee on Religion-- the proposed creation of a Religious Equity Commission authorized to advocate, and to enforce constitutional religious rights such as freedom of religion and freedom to acquire land for religious purposes.

 While many applauded the work of the Committee on Religion, others criticized it for avoiding the issue of mission schools and the issue of regulating the location of worship centers.

Canadian Muslim Group Sues Prime Minister's Office For Defamation

The National Council of Canadian Muslims (NCCM) announced on Monday that it has commenced a defamation lawsuit against Prime Minister Stephen Harper and  Jason MacDonald, the Prime Minister’s Communications Director. After NCCM sent a letter to the Prime Minister's office in January objecting to the inclusion of a particular rabbi on the Prime Minister's visit to Israel, a spokesman for the Prime Minister said that NCCM is "an organization with documented ties to a terrorist organization such as Hamas." On Jan. 28, NCCM initiated a libel notice  against the Prime Minister's Office. Since there has been no retraction, NCCM filed suit. OnIslam reports on the lawsuit.

Neo-Pagan Religion Gets Formal Recognition In Siberian Republic

The Moscow Times reported yesterday that after 18 years of trying, the neo-pagan faith Aar Aiyy has finally received formal recognition as a "religious organization" in the Siberian Russian Republic of Sakha. Russia's Law On Freedom of Conscience and Religious Associations sets out the procedure for obtaining recognition.  Under Russian law, religious organizations have greater rights than unrecognized religious groups.

Israel's High Court of Justice Invalidates A Stipend Program For Orthodox Yeshiva Students

Times of Israel reports on a decision handed down Sunday by a 7-judge panel of Israel's High Court of Justice invalidating a government program that awards 4-year Orthodox Jewish yeshiva students stipends designed to assure that they receive the equivalent of the minimum wage.  The court ruled that, like another scholarship program it struck down in 2010, the stipends perpetuate favoritism toward yeshiva students and discriminate against "other groups, including women, those of other faiths, students belonging to other Jewish denominations and university students." It said that the program does not appear to carry out the government's goal of encouraging yeshiva students to enter the workforce after 4 years. The stipend cut-off takes effect next year.  A separate program that aids longer-term yeshiva students was upheld by the Court.

Challenge To Oklahoma 10 Commandments Monument Can Move Forward

In American Atheists, Inc. v. Thompson, (WD OK, May 22, 2014), an Oklahoma federal district court refused to dismiss an Establishment Clause challenge to a Ten Commandments monument on the grounds of the Oklahoma state capitol. Even though the monument is identical physically to the one upheld in 2005 by the U.S. Supreme Court in Van Orden v. Perry, the court said that the physical setting and context in which it is displayed is different.  The court also refused to dismiss plaintiffs' claim that the monument and the state's moratorium on other monuments violates the Equal Protection clause.  The court however did dismiss one of the several plaintiffs for lack of standing. An American Atheists press release has more background.

Michigan Appeals Court: Ecclesiastical Proceedings Toll Statute of Limitations; Hierarchical Structure Poses Factual Question

In Chabad-Lubavitch of Michigan v. Schuchman, (MI App., May 22, 2014), a Michigan appellate court reversed a trial court's dismissal of a suit brought by Chabad-Lubavitch of Michigan in its property dispute with a local Chabad organization. Plaintiff claimed that property of Bais Chabad Torah Center of West Bloomfield should have been titled in the name of the Michigan parent entity rather than in the name of the local organization. The property claim was apparently first raised in a rabbinic panel proceeding as a counter-claim after the head of the West Bloomfield Chabad center filed complaints against the rabbi who heads the Michigan parent organization. The dispute has already been the subject of  five decisions by Jewish rabbinic panels, all of which ruled that title should be in the name of the parent group. However the West Bloomfield Chabad center refused to comply and the rabbinic court gave the parent body permission to file this civil suit.

The court held that the ecclesiastical abstention doctrine would require it to defer to the decision of the Chabad rabbinic determinations if Chabad-Lubavitch is a hierarchical organization. The court concluded, however, that "there is a genuine issue of material fact regarding whether Chabad-Lubavitch is hierarchical in regard to property matters, and thus, whether the ecclesiastical abstention doctrine applies in this case."

In the course or reaching this conclusion, the court made interesting rulings on defendants' statute of limitations defense. It held that "the applicable statutes of limitation were equitably tolled during the time that the parties were engaged in the mandatory ecclesiastical dispute resolution process."  It ruled that prior precedent refusing to toll statutes of limitation while parties are engaged in voluntary arbitration does not apply because the parties were involved in Chabad-Lubavitch's mandatory ecclesiastical procedure. But that left the question of when tolling ended:

[D]efendants dispute the date that the ecclesiastical dispute resolution process was concluded. Plaintiff maintains that the process was not complete until it received permission to bring a lawsuit in civil court.... Defendants maintain that plaintiff should have sought permission earlier so as to comply with the applicable statutes of limitations..... However, the parties’ dispute regarding when the internal procedure was final constitutes a factual question that is not appropriate for resolution by this Court on appeal. Moreover, resolution of the parties’ disagreement about when the internal dispute resolution process was final would require this Court to interpret religious doctrine or polity. Engaging in such an interpretation would be improper because the First Amendment “requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization.” ... Accordingly, we are required to defer to plaintiff’s claim that the procedure was not final until it received permission to file a civil lawsuit.... Therefore, plaintiff’s complaint was timely filed.

Recent Articles of Interest

From SSRN:

• Paul Horwitz, 'A Troublesome Right': The 'Law' in Dworkin's Treatment of Law and Religion, (Boston University Law Review, Forthcoming).
• Michael A. Helfand, Between Law and Religion: Procedural Challenges to Religious Arbitration Awards, (Chicago-Kent Law Review, Forthcoming).
• Edward C. Lyons, Causation and Complicity: The HHS Contraceptive Mandate and Asymmetrical Burdens on Free Exercise, (55 South Texas Law Review 229 (2014), Forthcoming).
• Aram Sinnreich, Sharing in Spirit: Kopimism and the Digital Eucharist, (May 14, 2014).
• Kenneth K. Ching, Beauty and Ugliness in Offer and Acceptance, (May 23, 2014).

From SSRN (Non-U.S. Law):

• David B. Kopel, Ancient Hebrew Militia Law, (Denver University Law Review, Vol. 90, 2013).
• Patrick Parkinson, Book Review: 'Managing Family Justice in Diverse Societies' (Eds Maclean and Eekelaar), (Australian Journal of Family Law, Vol. 27, No. 3, pp. 270-75, 2013).
• Andrew F. March, Constitutional Authority, (Ashgate Research Companion to Islamic Law, Ruud Peters and Peri Bearman, eds., pp. 179-192 (2014)).
• Brandy G. Robinson, Religiosity in Constitutions and the Status of Minority Rights, (March 6, 2014).
• Dawood I. Ahmed & Tom Ginsburg, Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions, Virginia Journal of International Law, Forthcoming.
• Mostafa Beheshti Seresht & Hasba Haj Najafi, Residential Mortgage Crisis – An Islamic Finance Perspective, (May 8, 2014).
• Muhammad Munir, The Share of Orphaned Grandchild under Islamic Law and Pakistani Legal System: A Re-Evaluation of Representational Succession in Section 4 of the Muslim Family Laws Ordinance 1961, (May 10, 2014).
• Richard Ashby Wilson, Inciting Genocide with Words, (Michigan Journal of International Law, Vol. 36, No. 1, 2015, Forthcoming).

From SmartCILP and elsewhere:

• Karen Gantt, Balancing Women's Health and Religious Freedom Under the ACA., [Abstract], 17 Quinnipiac Health Law Journal 1-44 (2013-2014).
• Sarah Lipton-Lubet, Contraceptive Coverage Under the Affordable Care Act: Dueling Narratives and Their Policy Implications, 22 American University Journal of Gender, Social Policy & the Law 343-385 (2014).
• Mark A. Strasser, A Constitutional Balancing In Need of Adjustment: On Defamation, Breaches of Confidentiality, and the Church, [Abstract], 12 First Amendment Law Review 325-384 (2013).
• Alan J. Meese & Nathan B. Oman, Hobby Lobby, Corporate Law, and the Theory of the Firm: Why For-Profit Corporations Are RFRA Persons,127 Harvard Law Review Forum 273 (May 20, 2014).

Two Recent Religious Discrimination Suits In New York

Two interesting religious discrimination suits filed in New York have been reported on in recent days by the media.  TMZ (May 21) reports that Nicole Johnson, a devout Muslim, is suing TV talk show host Bill Cunningham for mental anguish.  She claims that when she showed up in the audience for a taping of Cunningham's show wearing her hijab (head scarf), show employees forced her to leave her front row seat and sit in the back. She says she was also prohibited from asking a question during the show.

The New York Post (May 25) reports that Mollie Fermaglich, a New York University faculty member, has sued claiming that after 20 years at NYU and a successful television career, she has been repeatedly passed over for promotion in favor of younger, male, non-Jewish faculty.  She says that when she protested working on Passover, a colleague asked her: "Just how Jewish are you?" NYU says there is no basis for her claims.

Recent Prisoner Free Exercise Cases

In  Sutton v. City of Philadelphia, 2014 U.S. Dist. LEXIS 70242 (ED PA, May 21, 2014). a Pennsylvania federal district court, while dismissing a Muslim inmate's complaint that he was sometimes not served his vegetarian meals, allowed him to move to trial on his claim that the food service company maintained a discriminatory religious alternative meal system that provided kosher meals that sometimes included meat, but only vegetarian halal meals.

In Covington v. Mountries, 2014 U.S. Dist. LEXIS 69204 (SD NY, May 20, 2014), a New York federal district court concluded that a Muslim inmate had adequately pled that a lock down which prevented him from attending weekly Jumu'ah services substantially burdened his religious exercise, but failed to allege defendant's involvement. The court gave plaintiff 45 days to amend his complaint.

In Gilmore v. Augustus, 2014 U.S. Dist. LEXIS 69296 (ED CA, May 19, 2014), a California federal magistrate judge refused to allow a Muslim inmate to amend his complaint to allege that he was unable to fully enjoy his religious worship because of pain and suffering from excessive force used against him by a correctional officer.

In Shehee v. Anlin, 2014 U.S. Dist. LEXIS 69290 (ED CA, May 19, 2014), a California federal magistrate judge dismissed with leave to amend a civil detainee's complaint that while he was granted a religious vegan diet, often servers ran out of food that met his dietary requirements.

In Price v. White, 2014 U.S. Dist. LEXIS 70133 (WD KY, May 21, 2014), a Kentucky federal district court dismissed on qualified immunity and mootness grounds a challenge by a Jewish inmate to grooming standards that required him to cut his hair.

In Leishman v. Patterson, 2014 U.S. Dist. LEXIS 69909 (D UT, May 20, 2014), a Utah federal district court dismissed damage claims by an inmate who was an adherent of Asatru who was not permitted to possess rune tiles made of wood or conduct Blot ceremonies.

In Harris v. Sawyer, 2014 U.S. Dist. LEXIS 70349 (D AZ, May 22, 2014), and Arizona federal district court dismissed with leave to amend an inmate's claim that on two occasions he was not allowed to attend religious services.

In Pressley v. Pennsylvania Department of Corrections, 2014 Pa. Commw. Unpub. LEXIS 308 (PA Commnw. Ct., May 23, 2014), a 3-judge panel of the Pennsylvania Commonwealth court dismissed 1st Amendment but not RLUIPA claims by a Muslim inmate who had requested a kosher diet because prison authorities were not cleaning cookware and serving utensils properly before using them for preparing halal meals.

In Williams v. Madrid, 2014 U.S. Dist. LEXIS 55826 (ED CA, April 21, 2014), a California federal magistrate judge dismissed without prejudice a complaint by an uncommitted civil detainee being held as a sexually violent predator that the Establishment Clause was violated when he was required to participate in the Better Lives Treatment Program.

Pope Visits Holy Land; Presses On Peace Efforts

Pope Francis is on a 3-day visit to the Holy Land, originally described by the Vatican as follows:

The Holy Father will travel to the Holy Land from Saturday, 24 May to Monday, 26 May, to celebrate the 50th anniversary of the historic embrace between Paul VI and Ecumenical Patriarch Athenagoras in Jerusalem on 5 January 1964.

The trip takes the Pope to Jordan, the Palestinian territories and Israel. the Full text of all the Papal addresses during the trip and all Vatican media reports on it are on a special Holy Land Pilgrimage website.

AP reports today that the Pope became heavily involved in encouraging Middle East peace efforts by inviting Palestinian President Mahmoud Abbas and Israeli President Shimon Peres to a summit in the Vatican next month to discuss the peace process. Both presidents have accepted. According to AP:

Peres has been a fervent support of Mideast peace efforts, and the independent-minded Israeli president, whose job is largely ceremonial, risks upsetting Prime Minister Benjamin Netanyahu with the move.

South Dakota Suit Challenges Ban on Same-Sex Marriage

On Thursday, six couples filed a lawsuit in federal district court in South Dakota challenging the constitutionality of South Dakota's constitutional and statutory ban on same-sex marriage.  The complaint (full text) in Rosenbrahn v.  Daugaard, (D SD, filed 5/22/2014), contends that the ban violates the due process and equal protection clauses of the 14th Amendment, and that the refusal to recognize same-sex marriages performed elsewhere also violates plaintiffs' right to travel. As reported by AP, South Dakota Attorney General Marty Jackley says that he is obligated by law to defend the state's ban.  With the filing of this lawsuit, only North Dakota with a ban on same-sex marriage that has not been challenged in the courts.

More Indictments In Kidnappings To Obtain Jewish Divorces From Recalcitrant Husbands

Yesterday the U.S. Attorney's Office for the District of New Jersey announced a new series of grand jury indictments in the investigation that began in 2011 of kidnappings and assaults to force recalcitrant Orthodox Jewish husbands to give their wives a religious divorce document (get). (See prior posting.) Yesterday's indictments charged four Orthodox Jewish rabbis and one of their sons with kidnapping and conspiracy. They face maximum sentences of life in prison. According to AP, the attorney for Rabbi Jay Goldstein, one of those charged, said  that the case was "overcharged" and that prosecutors failed to take into account the individual circumstances of the women who were aided in obtaining divorces. Attorneys for other defendants called the charges false.

UPDATE: Jewish Voice reports that on May 24, FBI agents made two more arrests on kidnapping charges growing out of a 2009 abduction of a man in order to force him to give his wife a get.  The two were charged in a criminal complaint, taken before a  magistrate and released on $500,000 bail plus home detention and electronic monitoring.  The two who were charged are David Epstein (who was also name in the indictment described in the main posting) and Chaim Rubin.

Russian Court Imposes Sanctions On Library of Congress For Failure To Return 7 Religious Books On Loan

Last year, a D.C. federal district court held the Russian government and three of its agencies in civil contempt for not complying with a 2010 default judgement ordering them to return two expropriated collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States.  The court  imposed civil sanctions of $50,000 per day until defendants comply with the court's order. (See prior posting.) In response, the Russian government filed suit in a Russian court to force the U.S. Library of Congress to return seven books from one of the two collections that were loaned to it. (See prior posting.) Now, according to The Forward, a Moscow arbitration court ruled yesterday that the Library of Congress must pay $50,000 in fines for every day the seven books are not returned. Russia claims that the books were loaned to the Library of Congress in 1991 for 60 days, but have never been sent back to Russia.

10th Circuit OK's Discipline of Police Officer Who Refused Order On Attendance At Mosque's Police Appreciation Event

In Fields v. City of Tulsa, (10th Cir., May 22, 2014), the U.S. 10th Circuit Court of Appeals dismissed a civil rights complaint filed by Tulsa, Oklahoma police captain Paul Fields who refused to comply with an order requiring him to arrange for two officers and a supervisor from his shift to attend a law enforcement appreciation day held at the Islamic Society of Tulsa. Fields objected that the order required him to enter a Mosque.  The department suspended Fields for 10 days without pay and transferred him to a less attractive shift because of his refusal. Fields sued, claiming violations of the free exercise clause, establishment clause, his right to freedom of association and the equal protection clause.  The court rejected all of these claims. The court held there was no free exercise violation because Fields wan not personally required to attend under the order. The event was a thank you from the Islamic community to the police department and did not require anyone to participate in religious activities. Tours of the mosque and discussions of Islam at the event were purely voluntary.

The court also upheld the refusal to allow Fields to amend his complaint to allege retaliation for filing the lawsuit in violation of his free speech rights. It concluded that the police department had a compelling interest that outweighed any restriction on speech. The Tulsa World reports that Fields lawyer says he will seek en banc review of the decision.

Washington Supreme Court Says Anti-Discrimination Law Requires Reasonable Accommodation of Religious Beliefs

In Kumar v. Gate Gourmet, Inc., (WA Sup. Ct., May 22, 2014), the Washington state Supreme Court, in a 5-4 decision, held that Washington's Law Against Discrimination implies a requirement that employers reasonably accommodate employees' religious practices. It went on to hold that the employees of an airport food service company stated a prima facie claim for failure to reasonably accommodate their religious dietary needs. For security reasons the employees could not bring their own food to work or leave for lunch, so the company furnished meals. However employees allege that the beef-pork meatballs served did not meet their religious requirements, and that when they informed the company it initially deceived them into eating food that violated their religious beliefs and then refused to accept any of the employees' proposed accommodations. The majority found that the employees had also adequately stated claims for disparate impact, battery, and negligent infliction of emotional distress.

Justice Madsen's dissent argued that implying a cause of action for reasonable accommodation improperly encroaches on the legislature's function. Even if it is implied, it should not be applied on these facts because there was no actual or threatened adverse employment action taken against the employees.

Suit Claims High School Teachers Indoctrinated Girls Into Religious Cult

A lawsuit filed last Monday in Connecticut federal district court claims that three Spanish teachers and a guidance counselor at Connecticut's Avon High School engaged in "unlawful and predatory religious indoctrination of students."  The 64-page complaint (full text) in Doe v. Mastoloni, (D CT, filed 5/19/2014), alleges 24 separate causes of action against the teachers, counselor, the Avon school district and Wellesley College. Brought by the parents of 3 daughters who were allegedly indoctrinated, and one of the daughters who broke free of the indoctrination, the complaint alleges:

6. All three girls experienced sudden and severe personality changes. They became flat and distant, reclusive, secretive, and non-communicative. They lost their humor and their empathy. They began speaking in a bizarre new language. They became unable to think critically or independently. They became dependent on the school teachers and guidance counselor who had indoctrinated them, especially Defendant Tanya Mastoloni.

7. On information and belief, the two older Doe sisters were indoctrinated into a religious cult that promotes martyrdom, and celebrates death. This has caused the elder Doe sisters to experience fantasies of suicidal ideation and martyrdom.

8. The youngest Doe daughter, J.D., was targeted to be indoctrinated into the same belief system, but she eventually broke free. J.D. has now joined her parents as a Plaintiff in this case.

9. The other two Doe daughters have, at the urging of Defendants Mastoloni, Kessler, Esposito, and Sullivan, cut off all of their communications with the rest of the Doe family, including extended family. They have also cut off all of their communications with their friends.

10. Defendants Mastoloni, Kessler, Esposito, and Sullivan pose a serious threat to the Avon community and the public at large. They each exert significant influence over the impressionable high school students who have been entrusted to their care. There is an obvious power differential between students and their teachers and guidance counselors.

11. Defendants Mastoloni, Kessler, Esposito, and Sullivan have consistently targeted minors and pursued them until they were of age in order to complete the conversion to martyrdom. Because of that, Defendants Mastoloni, Kessler, Esposito, and Sullivan pose a serious danger to students, students' families, and the public at large.

Courthouse News Service reports on the case.

UPDATE: Responding to the lawsuit, the Avon school superintendent said that the district had not previously been contacted about the allegations and the complaint has been turned over to counsel for review.

UPDATE 2: AP reported on March 5, 2018 that a settlement has been reached in the case.

RLUIPA Suit Challenges City's Refusal To Allow Homeless Ministry To Continue

A suit was filed last week in a California federal district court by the Stanford Law School Religious Liberty Clinic on behalf of a church in San Buenaventura, California that was denied a permit to continue to operate its ministry to the homeless in its current location.  The complaint (full text) in Harbor Missionary Church Corp. v. City of San Buenaventura, (CD CA, filed 5/14/2014), contends that the church's rights under the 1st Amendment and RLUIPA were violated when the city refused to recognize that the current permit to operate as a church was sufficient to allow the church to continue to offer meals, clothing, laundry and shower facilities, Bible study and prayer to the homeless, and then refused to issue the church a conditional use permit to allow the ministry to continue. Here is Plaintiff's Memorandum in Support of Motion for Preliminary Injunction. Courthouse News Service reports on the case. [Thanks to Paul Harold for the lead.]

Church Gets TRO Permitting Use of After-School Space

In Prairie Valley Baptist Church v. Whitney Independent School District, (TX Dist. Ct., May 19, 2014), a Texas trial court granted a temporary restraining order requiring Whitney High School to provide a classroom for one hour a week after school for use by the Christian Worldview Ministry (CWM). According to the complaint (full text) in the case, the school permits several secular outside groups to use school facilities, but the school board denied CWM's request for a variety of reasons, one of which was that the activity was too sectarian.  In granting the TRO, the court said that the school board's action substantially burdened plaintiff's free exercise of religion and deprived it of its fundamental right to freedom of speech, without furthering a compelling governmental interest or using the least restrictive means for doing so. A hearing on plaintiff's request for a temporary injunction is scheduled for May 30. Liberty Institute has links to all of the documents in the case. Christian News Network reports on the decision.

Son's Ashes Are Not Property Subject To Partition Between Parents

In Wilson v. Wilson, (FL App., May 21, 2014), a Florida state appellate court held that the cremated remains of 23-year old Scott Wilson, killed in a 2010 auto accident, are not "property" that is subject to partition between the young man's divorced parents. In the case, the parents could not agree on where the ashes should be buried, so the father asked to court to allow each parent to dispose of half the ashes as they wished. The mother objected on religious grounds.The appellate court, citing authority going back to Blackstone, agreed with the trial court that the ashes are not property. The case now goes back to the trial judge who has indicated that he will appoint a curator or other suitable person to decide how to dispose of the remains if the parents are unable to reach an agreement.  The Broward-Palm Beach (FL) Sun Sentinel reports on the decision.

Court Issues Preliminary Injunction Against ACA Contraceptive Mandate Enforcement Against Two Religious Colleges

In Dordt College v. Sebelius, (ND IA, May 21, 2014), an Iowa federal district court granted a preliminary injunction to two religiously-oriented colleges-- Dordt College (Christian Reformed Church) and Cornerstone University (Baptist)-- to prevent enforcement of the Affordable Care Act contraceptive coverage mandate rules against them. This is another of the many cases in which religious non-profits-- objecting to covering contraceptives that they believe to be abortifacients-- claim that their free exercise rights under RFRA are violated even under the government's compromise in which coverage is provided directly from their insurers or third-party administrators. (See prior related posting.) The court indicated that it was planning to wait for the U.S. Supreme Court's Hobby Lobby decision to issue an opinion, but the mandate takes effect against Dordt College on June 1 and the 8th Circuit (which includes Iowa) has issued injunctions pending appeal in two challenges to the contraceptive coverage mandate by for-profit businesses. ADF issued a press release announcing the decision. Des Moines Register reports on the decision.

Christian Student Challenges University's Speech Code

A lawsuit was filed last week in an Oklahoma federal district court challenging the Expressive Activity Policy and Equal Opportunity Policy of Cameron University, a public university in Lawton, Oklahoma.  The complaint (full text) in Harper v. McArthur, (WD OK, filed 5/14/2014), alleges that Daniel Harper, an evangelical Christian student at the University, was prevented from handing out a flyer criticizing the beliefs of a student organization, the World Mission Society. The university claims that Harper's flyer violates the university's prohibition on "offensive" and "discriminatory" speech.  It allows literature to be handed out on campus only if it is from a student organization and has been approved for distribution by the University. The suit claims that the University speech code violates the 1st and 14th Amendments as well as the Oklahoma Religious Freedom Act. Alliance Defending Freedom announced the filing of the lawsuit.

Montana's Same-Sex Marriage Ban Challenged

According to Lambda Legal, as of last week only 3 states which do not allow same-sex marriage had no litigation challenging the ban pending.  Now that has dropped to two.  The ACLU of Montana announced yesterday the filing of a lawsuit on behalf of four same-sex couples seeking to marry in Montana or to have their out-of-state same-sex marriage recognized in Montana. The complaint (full text) in Rolando v. Fox, (D MT, filed 5/21/2014), asks the court to declare that Montana's constitutional and statutory bans on same-sex marriage violate the due process and equal protection clauses of the 14th Amendment. With the filing of this lawsuit, only North and South Dakota have marriage equality bans with no litigation pending.

5th Circuit Rejects Religion-Related Income Tax Gimmick

In Gunkle v. Commissioner, (5th Cir., May 20, 2014), the U.S. 5th Circuit Court of Appeals affirmed a Tax Court decision that rejected husband and wife taxpayers' attempted use of a "religion-related tax gimmick" to avoid income taxes. Initially the Gunkle's had created a 501(c)(3) non-profit, City of Refuge Christian Fellowship, Inc. They however heard a speaker at a church conference who claimed they could instead create a non-501(c)(3) "corporation sole," assign their income to it, deduct this as a charitable contribution without qualifying as a non-profit, and thus make their income non-taxable. They did this, and then signed a vow of poverty, assigned their residence to the corporation sole, and had the corporation sole agree to provide “all their needs as Apostles and as pastors of this church ministry." The 5th Circuit agreed with the Tax Court that payments of living expenses of the Gunkle's from the corporation sole's Pastoral Account were taxable income to the Gunckle's, and their assignment of income to the corporation sole did not qualify for a charitable deduction.

Court Rejects Atheists' Attack On Church Favoritism In Tax Code

In American Atheists, Inc. v. Shulman, (ED KY, May 19, 2014), a Kentucky federal district court dismissed claims by several atheist organizations that under the Internal Revenue Code and Regulations, churches and religious organizations are treated more favorably that other non-profits. The court identified five advantages enjoyed by churches, including fewer filings and tax advantages for clergy compensation. The court held that plaintiffs lack standing because they never applied for an exemption as a church or religious organization, pointing out that:

A review of case law establishes that the words “church,” “religious organization,” and “minister,” do not necessarily require a theistic or deity-centered meaning.... 

Thus, the Atheists’ assertion that they are subjected to unconstitutional discrimination and coercion due to their alleged inability to gain classification as religious organizations or churches under I.R.C. §501(c)(3) is mere speculation. At this point, the Atheists have no idea whether they could gain classification as a church or religious organization under I.R.C. §501(c)(3) because they have never sought such classification. Accordingly, the Atheists have not suffered a particularized injury which is fairly traceable to the actions of the Commissioner.

The court also held that plaintiffs had failed to state an equal protection claim.  In addition, the court rejected a novel argument by plaintiffs that IRS action violates the No Religious Test Clause of Art. VI, cl. 3 of the Constitution.  Plaintiffs had contended that modern-day 501(c)(3) organizations amount to "public trusts" as that term is used in Art. CI, cl. 3. (See prior related posting.) [Thanks to Steven H. Sholk for the lead.]

Court Strikes Down Pennsylvania Ban On Same-Sex Marriage

In Whitewood v. Wolf, (MD PA, May 20, 2014), a Pennsylvania federal district court held that the Pennsylvania's prohibition of same-sex marriage and its refusal to recognize same-sex marriages validly entered elsewhere violate the 14th Amendment's due process and equal protection clauses. The court concluded that "the fundamental right to marry is a personal right to be exercised by the individual" and rejected "Defendants’ contention that concepts of history and tradition dictate that same-sex marriage is excluded from the fundamental right to marry."  In its lengthy equal protection analysis, the court concluded that classifications based on sexual orientation are quasi-suspect and applied intermediate scrutiny to find that Pennsylvania had not shown that the ban on same-sex marriage is substantially related to an important governmental interest.

The Washington Post reports that immediately after the court's ruling, same-sex couples hurried to obtain marriage licenses, fearing that Gov. Tom Corbett would appeal the ruling. County offices remained open late in Philadelphia to issue licenses, and the Pittsburgh office is taking marriage license applications online.  Pennsylvania has a 3-day waiting period after issuance of a license before a person can marry, unless a court waives the waiting period. The Governor's office said it was studying the court's ruling. The Governor defended the state's ban in court after the state's attorney general refused to do so.

UPDATE: On May 21, Gov. Tom Corbett announced that the state will not appeal the court's decision.

Court Accepts Fair Use Defense In Copyright Claim By Prominent Christian Speaker

In Caner v. Autry, (WD VA, May 14, 2014), a Virginia federal district court dismissed copyright infringement claims brought by Ergum Caner, the former dean of Liberty Theological Seminary and former vice president of academic affairs at Arlington Baptist College. Caner was raised in Ohio. His father was a devout Muslim. During high school he became a born-again Christian.  Caner spoke widely to military and church groups on how Muslims in the Middle East would view U.S. Marines from the perspective of jihad.  He sued Jonathan Autry, formerly a student at Liberty University, over blog posts that linked to YouTube videos featuring Caner. The posts attempted to expose as untrue Caner's claims that he was raised as as Muslim in Turkey-- a claim he made in numerous speeches before church and military groups.  The court accepted defendant's fair use defense, saying:

Plaintiff has filed this suit to suppress legitimate criticism of alleged contradictions in the narrative that supported his rise to prominence. The purpose and character of Defendant’s use weigh strongly in favor of finding fair use.

Correction [thanks to Commenter]: Caner is now  President of Brewton-Parker College in Mt. Vernon, Georgia. The post has also been corrected to spell Caner's name correctly.

Two USCIRF Appointments Announced By White House

Last week, the White House announced two Presidential appointments to the U.S. Commission on International Religious Freedom. President Obama appointed Rev. Thomas J. Reese, S.J. and reappointed Dean Eric P. Schwartz. Reese is senior analyst for the National Catholic Reporter. God and Country blog has more on Reese.

Oklahoma Must Pay $304,000 In Plaintiffs' Attorneys Fees In Anti-Sharia Law Case

An Oklahoma federal district court last week (May 14) ordered members of the Oklahoma State Election Board to pay $304,000 in attorneys' fees and costs to plaintiffs in Awad v. Ziriax. (Full text of order.) In the case, plaintiffs successfully prevented the Election Board from certifying voter approval of an anti-Sharia state constitutional amendment. (See prior posting.)  The Oklahoman reports on the order.

Utah Must Recognize Same-Sex Marriages Performed During 17-Days Before Stay; But This Order Temporarily Stayed Also

In Evans v. State of Utah, (D UT, May 19, 2014), a Utah federal district court granted a preliminary injunction requiring the state of Utah to recognize same-sex marriages solemnized under Utah marriage licenses between Dec. 20, 2013 when a federal district court struck down Utah's ban  on same-sex marriages, and Jan. 6, 2014 when the U.S. Supreme Court granted a stay of that order, pending appeals. The court concluded:

Even though the Supreme Court’s Stay Order put Utah’s marriage bans back in place, to retroactively apply the bans to existing marriages, the State must demonstrate some state interest in divesting Plaintiffs of their already vested marriage rights. The State has failed to do so.

However the court granted a 21-day stay to allow the state to file an emergency motion with the 10th Circuit for review. Fox News reports that Utah's attorney general had not made an immediate determination of whether or not to pursue an appeal. The court's decision affects some 1200 marriages performed during the 17 days involved here.

Family of Muslim Man Killed By L.A. Police Wins In 9th Circuit, But Not On Free Exercise Claim

Yesterday, the U.S. 9th Circuit Court of Appeals issued two opinions-- one published and the other unpublished-- in the case of an autistic 21-year old Muslim man-- Mohammad Usman Chaudhry-- who was shot and killed by Los Angeles police.  The coroner took custody of Chaudhry's body but did not notify his family of his death for 21 days. This prevented the family from burying Chaudhry in accordance with their religious beliefs.  In the published opinion in Chaudhry v. City of Los Angeles (I), (9th Cir., May 19, 2014), the 9th Circuit gave a substantial victory to the family, reversing a number of the district court's rulings. Among other things, it reversed the dismissal of claims under state and federal civil rights laws, allowing the family to proceed  on 4th Amendment grounds, and on substantive due process grounds for loss of companionship. It also held that California's bar to pre-death pain and suffering claims does not apply to suits based on 42 USC Sec. 1983, reinstating the jury's $1 million award. It alsoFr held that plaintiffs introduced enough evidence to raise a jury question on whether the coroner's office was negligent in it attempts to locate Chaudhry's family.  In the unpublished opinion in Chaudhry v. City of Los Angeles (II), (9th Cir., May 19, 2014), the 9th Circuit rejected the family's free exercise of religion claim, holding that "the Los Angeles Coroner Department’s policies for locating decedents’ families are generally applied and neutral with respect to religion." It also rejected plaintiffs' equal protection claim, finding no evidence of intent to discriminate on the basis of religion or race.

Oregon's Same-Sex Marriage Ban Is Invalidated

In Geiger v. Kitzhaber, (D OR, May 19, 2014), an Oregon federal district court held that Oregon's constitutional and statutory provisions that limit civil marriage to "one man and one woman" discriminate on the basis of sexual orientation in violation of the 14th Amendment's equal protection clause. Judge McShane concluded his opinion with these observations:

I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage.... Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today' s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing.... Even today I am reminded of the legacy that we have bequeathed today' s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay." 

.... It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities. 

.... With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community. 

.... I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.

ACLU of Oregon issued a press release announcing the decision. According to the Los Angeles Times, marriage licenses were issued to same-sex couples in Multnomah County, home to Portland, as soon as the decision was handed down. In February, the state attorney general said she would not defend the ban in court.

Minor Historical Error In Kagan's Town of Greece Dissent Has Been Corrected

Yair Rosenberg writing today at Tablet Magazine notes that the previously reported minor error in American religious history that had crept into Supreme Court Justice Elena Kagan's dissent in the Town of Greece case earlier this month has now been corrected. The version of the opinion now on the Supreme Court's website correctly refers to Newport, Rhode Island as "one of the first communities of American Jews" rather than as "the first".

DC Transit System Carries Competing Controversial Ads Sparked By Middle East Rivalries

The Washington Post reported last week on the latest round of competing advertising on the sides of Washington, DC's Metro buses.  In mid-March to mid-April, the Illinois-based group American Muslims for Palestine bought advertising space on the sides of 20 buses for an a banner ad featuring a drawing of Uncle Sam waving an Israeli flag, and reading: "We're Sweating April 15 So Israelis Don't Have To! Stop US Aid To Israel's Occupation!" In response to those ads which it described as "Jew-hating,"  the pro-Israel American Freedom Defense Initiative has purchased a month's worth of ads on the side of 20 buses beginning last Monday. Those ads feature a photo of Adolph Hitler with the mufti of Jerusalem who supported him, and read: "Islamic Jew-Hatred: It's In The Quran.Two-Thirds Of All US Aid Goes To Islamic Countries. Stop Racism. End All Aid To Islamic Countries."

Recent Articles of Interest

From SSRN:

• Chaim Gans, Jewish/Palestinian Self-Determination and Citizenship in Israel/Palestine, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2014/35, 2014).
• Kyle Langvardt, The Lawless Rule of the Norm in the Government Religious Speech Cases, (20 Wash. & Lee J. Civil Rts. & Soc. Just. 405 (2014)).
• Neil James Foster, Christian Youth Camp Liable for Declining Booking from Homosexual Support Group, (April 21, 2014).
• James M. Oleske, The Public Meaning of RFRA versus Legislators' Understanding of RLPA: A Response to Professor Laycock, (67 Vanderbilt Law Review En Banc 125 (2014)).
• Edward C. Lyons, Slaughter of the Innocents: Justification, Excuse, and the Principle of Double Effect, (Berkeley Journal of Criminal Law Vol 18:2, Fall 2013).
• Ellen D. Katz, Hobby Lobby and the Pathology of Citizens United, (Duke Journal of Constitutional Law & Public Policy, Forthcoming).
• Christie Stancil Matthews, Missing Faith in Batson: Continued Discrimination Against African Americans Through Religion-Based Peremptory Challenges,(2013).

From SSRN (Islamic Law):

• Jolyn Ang, Are Sukuk Truly Islamic?, (October 18, 2013).
• Amjad Hussain & Humaira Afzal, Exploring the Issue of 'Run-Away Women' in Pakistan - A Call for Social and Legal Change, (Journal of Law and Social Research (JLSR) No.4 (2013) pp. 59-72).
• Muhammad Munir, Reinventing the Islamic Law of Inheritance: The Share of Orphaned Grandchild in Islam and Pakistani Legal System, (April 29, 2014).
• Adis Duderija, Islam and Gender in the Thought of a Critical-Progressive Muslim Scholar Activist Ziba Mir Hosseini, (Journal of Islam and Christian Muslim Relations, Forthcoming).

From SmartCILP and elsewhere:

• Tulsa Law Review Book Review Issue (Vol 49, Issue 2, 2013) (includes a number of book reviews of interest).
• Fifty States Under God. Articles by Paul Benjamin Linton, Robert F. Williams, Mary Jane Morrison and Christopher Hammons. 7 University of St. Thomas Journal of Law & Public Policy 103-239 (2013).
• Hadley Arkes, Recasting Religious Freedom, First Things (June/July 2014).

Utah Supreme Court Stays Orders On Birth Certificates For Adoptees of Same-Sex Parents

According to AP and a release from the Utah Attorney General's Office, the Utah Supreme Court on Friday night issued a stay of several state trial judges' orders that required the Utah Department of Health to issue birth certificates in same-sex parent adoptions.  The stay came in response to a Petition for Emergency Relief filed by the Attorney General's office seeking clarification as to whether the trial court orders violate other provisions of Utah law that prohibit the state from recognizing same-sex marriages. Those provisions remain in effect while federal constitutional challenge to the ban on same-sex marriage is being appealed. (See prior posting.) Friday's state Supreme Court stay remains in effect until the issue of recognizing same-sex parent adoptions is resolved by the state Supreme Court.

Recent Prisoner Free Exercise Cases

In Malipurathu v. Johnson, 2014 U.S. Dist. LEXIS 64891 (ND OK, May 12, 2014), an Oklahoma federal district court permitted a Sikh inmate to proceed with his complaint that he was denied a Halal diet unless he changed his religious choice to Islam, and that he was not consistently being served halal meals that met his religious requirements even though he was put on a halal diet.

In Rodriguez v. Hubbard, 2014 U.S. Dist. LEXIS 65165 (ED CA, May 9, 2014), a California federal magistrate judge recommended allowing a Native American inmate who was recognized as a sacred "pipe holder" to move ahead with his 1st, 8th and 14th Amendment claims growing out of the confiscation of religious items, an attack on him by other Native American inmates for not safeguarding the sacred pipe, and other infringements on his religious practices.

In Patterson v. Cate, 2014 U.S. Dist. LEXIS 65182 (ED CA, May 8, 2014), a California federal magistrate judge dismissed with leave to amend a Mulim inmate's complaint that he was not receiving three Halal meal per day.

In Maier v. Pall, 2014 U.S. Dist. LEXIS 65270 (MD PA, May 13, 2014), a Pennsylvania federal district court dismissed the complaint of an Odinist inmate who was refused an exemption from the grooming policy as to hair and beard length, and was not allowed to possess runestones and a Thor's hammer or observe holy days outside.

In Aron v. Green, 2014 U.S. Dist. LEXIS 65287 (ND TX, May 12, 2014), a Texas federal district court dismissed a Muslim inmate's complaint that a corrections officer told him that he should not be a Muslim, and that destruction of his personal property and other harassment was retaliation because of his religion.

In Hayes v. Boone, 2014 U.S. Dist. LEXIS 66420 (ED VA, May 14, 2014), a Virginia federal district court dismissed an inmate's complaint that his Common Fare religious diet was suspended temporarily when the prison experienced an influx of inmates from elsewhere evacuated because of Hurricane Irene.

4th Circuit Vacates and Remands Challenge To Elementary School Graduation In Christian Chapel

In American Humanist Association v. Greenville County School District, (4th Cir., May 16, 2014), the 4th Circuit Court of Appeals vacated the district court's denial of a preliminary injunction in a suit challenging the holding of graduation ceremonies for a South Carolina elementary school at the chapel of a Christian college and including prayer as part of the official graduation ceremony.  In his ruling from the bench, the district court judge had said that plaintiffs "were making a mountain out of a mole hill." (See prior posting.) The 4th Circuit concluded:

In denying Plaintiffs’ motion for a preliminary injunction, the district court provided no analysis of the law and made no attempt to apply the four factors [to be considered in granting a preliminary injunction] ... to the facts as alleged in the complaint. Thus, we are constrained to remand the case for reconsideration of the issue.

The 4th Circuit similarly vacated and remanded the district court's denial of plaintiffs' unopposed motion to proceed using pseudonyms.  The court also agreed with plaintiffs that on remand the case should be reassigned to a different district court judge. AP reports on the decision.

Man Accused of Blasphemy In Pakistan Killed While In Police Custody

In Pakistan today, a 65-year old man who had been accused of blasphemy was shot dead by a teenager. According to Reuters:

Victim Khalil Ahmad was a member of the minority Ahmadi community, a sect who say they are Muslim but whose religion is rejected by the Pakistani state.

Ahmad and three other Ahmadis had asked a shopkeeper in their village in central Pakistan earlier this week to remove inflammatory stickers denouncing their community.... In retaliation, the shopkeeper filed blasphemy charges against the four men on May 12. Ahmad, a father of four, was in police custody when the teenage boy walked in, asked to see him, and shot him dead....

Some mullahs in Pakistan encourage the killing of Ahmadis.

Concerns Over Religious Tolerance In India Raised As BJP's Modi Is Elected Prime Minister

Reuters this morning reports that in India, markets are soaring as Narendra Modi's pro-Hindu Bharatiya Janata Party (BJP) appears to have won a landslide Parliamentary majority. Modi has been Chief Minister of Gujarat state since 2001. Writing at CNN, journalist Sunny Hundal however raises the question of whether Modi as prime minister will threaten India's liberal secular tradition. He writes in part:

Established as a secular and liberal nation in 1950, India will find itself in uncharted territory as it has never before had a hardline Hindu nationalist at the helm.

This raises an important question: what will Modi the prime minister be like? Will he sweep away the corruption scandals blighting the country's reputation and do a better job of rejuvenating India, or will he inflame religious tensions as some fear?

Much of the criticism aimed at Modi has focused on the riots of 2002 when hundreds, possibly thousands, of Muslims were butchered by Hindu mobs, while his government was accused of standing by and watching. But if a Prime Minister Modi carries on like he did as Chief Minister of Gujarat state and as the candidate for the Bharatiya Janata Party (BJP) during campaigning, there are plenty of reasons to be worried about the future. The future Modi is a terrifying prospect if he is based on the past Modi.

9th Circuit Temporarily Stays Injunction That Allowed Same-Sex Marriage In Idaho

In Latta v. Otter, (9th Cir., May 15, 2014), the U.S. 9th Circuit Court of Appeals granted a temporary stay of a federal district court's order that struck down Idaho's statutory and constitutional same-sex marriage ban. (See prior posting.) The temporary stay will be in place while the 9th Circuit decides whether to grant state and local officials' emergency motion (full text) for a longer stay pending appeal. Idaho Statesman reports on the 9th Circuit's order.