Appeals Court Upholds Finding That Peyote Was Not Held For Religious Use

In People v. Marbain, 2014 Cal. App. Unpub. LEXIS 7012 (CA App., Sept. 29, 2014), a California appellate court affirmed a trial court's denial of a motion by an officer of a local chapter of the Native American Church seeking return of peyote seized at multiple residences.  The appeals court held that the trial court was justified in concluding that the peyote was not intended for religious use because of substantial quantities of marijuana also found at defendant's residences.

White House Sends Muslims Best Wishes on Eid and Hajj

On Friday, the White House issued a statement (full text) from the President extending best wishes to Muslims celebrating Eid al-Adha, and congratulating those performing the Hajj this year.

Recent Prisoner Free Exercise Cases

In Allen v. Lizarraga, 2014 U.S. Dist. LEXIS 136439 (ND CA, Sept. 26, 2014), a California federal district court rejected an inmate's claim in a habeas corpus proceeding that his free exercise rights were infringed by a state court's conclusion that the clergy-penitent privilege did not apply to his confession.

In Peele v. Klemm, 2014 U.S. Dist. LEXIS 136935 (WD PA, Sept. 29, 2014), a Pennsylvania federal magistrate judge allowed a Muslim inmate to proceed under RLUIPA with a challenge to a Department of Corrections policy that restricts participation in the Eid-al-Fitr and Eid-al-Adha feasts to inmates who have participated in Ramadan services, who pay the cost of the feast and who are not in disciplinary custody.

In Williams v. Pollard, 2014 U.S. Dist. LEXIS 137297 (ED WI, Sept. 27, 2014), a Wisconsin federal district court allowed an inmate to challenge the confiscation of his two folders of religious material and more broadly an unofficial policy that disfavors Nation of Islam as a religion, as well as retaliation against him for his earlier role in getting NOI recognized as a religion.

In Covington v Annucci, 2014 N.Y. Misc. LEXIS 4214 (Seneca Co. NY Sup. Ct., Sept. 25, 2014), a New York state trial court rejected a complaint by a Muslim inmate that he is sometimes treated by a female medical worker.

In Pittman v. Jesson, 2014 U.S. Dist. LEXIS 137803 (D MN, Sept. 30, 2014), a Minnesota federal district court permitted a civilly committed sex offender to proceed against certain defendants with his complaint that rules barred him from wearing his Kufi outside his cell except during Jumah services and that he was prohibited from bringing his Koran into the yard, wearing his prayer beads at all times, doing his daily prayers in the yard, and keeping his prayer oils in his room.

In yet another decision in Davis v. Abercrombie, 2014 U.S. Dist. LEXIS 139028 (D HI, Sept. 30, 2014), an Hawaii federal district court has now certified classes and subclasses in the class action on behalf of Native Hawaiian inmates who claim their religious rights were infringed.

In Harbin v. South Carolina Department of Corrections, 2014 U.S. Dist. LEXIS 138215 ( D SC, Sept 30, 2014), a South Carolina federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 139617, June 12, 2014) and dismissed an inmate's complaint that Nation of Islam inmates are not provided separate study group classes and services from other Muslims.

In Salam v. Delaney, 2014 U.S. Dist. LEXIS 138479 (WD AR, Sept. 30, 2014), an Arkansas federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 138480, Sept. 8, 2014) and among other things dismissed a Muslim inmate's claim that he was denied a pork-free diet.

In Morceli v. Meyers, 2014 U.S. Dist. LEXIS 141037 (ED CA, Oct. 1, 2014), a California federal magistrate judge recommended dismissing an inmate's complaint because there was no evidence that the named defendant was responsible for the alleged policy of refusing to allow Muslim inmates to wear kufis in the dining hall, or to purchase and wear black kufis anywhere.

Muslims In Europe Concerned About Names Used To Refer To ISIS/ ISIL

The New York Times reported last week that Muslims in France and Britain have been urging their governments to find a name other than "Islamic State" to refer to ISIL. French Muslims say that using "Islamic State" stigmatizes the country's Muslims and gives unwarranted legitimacy to ISIL. French Foreign Minister Laurent Fabius announced last month that his government would refer to the terrorist group as "Daesh", an acronym for the group's Arabic name "Al-Dawla al-Islamiya fi al-Iraq wa al-Sham." Some experts warn, however, that Daesh creates negative reactions because it sounds like the Arabic word "daes" that means to trample or crush. American Muslim groups generally agree that any name that does not actually use the workd "Islamic" is acceptable, so that they generally do not object to "ISIS".

Bankruptcy Court Rejects RFRA Defense To Fraudulent Conveyance Recovery

In In re Khan, 2014 Bankr. LEXIS 4205 (Bkrptcy. ED NY, Sept. 30, 2014), a New York federal bankruptcy court rejected a defendant's Religious Freedom Restoration Act defense against an attempt by the bankruptcy trustee to recover some $35,500, the proceeds of certain real estate transactions, as fraudulent conveyances. Defendant, son of Shahara Khan who filed a Chap. 7 bankruptcy petition argued that:

the Trustee's claims amount to a violation of the RFRA because they would undo the transactions entered into between the Debtor and her son in furtherance of their personal religious, cultural, and familial obligations. In particular ... "[i]t is the religious belief and practice of the family that [the] family is one unit and transfer of an asset from [one family member] to the other does not transfer real ownership." ... [and that] "[i]t is against the religious practice of the family to place mother or son as creditor and debtor of each other."....

The court rejected defendant's claim, stating in part:

Here, the record shows that the Defendant sincerely believes, as a matter of his religion and culture, that there can be no "business between mother and son.".... The Defendant and his sister "had a religious call to respect our mother and to show our respect we put our mother['s] name on our first house we ever bought here at the United States."...  

This Court respects and acknowledges the sincerity of the Defendant's religious beliefs. But that does not mean that those beliefs, and the Defendant's free exercise of his religion, is burdened by the relief sought by the Trustee. The Defendant has not shown that the avoidance of the Mortgage Proceeds Transfer and the Sale Proceeds Transfer ... substantially burdens the Defendant's right to practice his religion. He has not shown that he will be required to refrain from engaging in a practice important to his religion, or compelled to choose between following the precepts of his religion or accepting a benefit  under law. Nor has he demonstrated that he is under "substantial pressure . . . to modify his behavior" or "to violate his beliefs."

Enforcement of Israeli Child-Support Order Does Not Violate Establishment Clause

In Jenkins v. Jenkins, (OH App., Oct. 3, 2014), an Ohio Court of Appeals rejected a father's claim that enforcement of an Israeli child-support order would violate his rights because its terms were based on his Jewish religion and his gender. The court noted that the order was issued by an Israeli civil family court, not a religious court.  It went on to conclude that while the family court in Israel cited the Jewish-law tradition that the father is responsible for his daughter’s essential support, the Israeli court went on to consider other factors as well.

Pastor's Claim of Wrongful Termination Is Dismissed

In Simons v. Lewis, (NJ App., Oct. 2, 2014), a New Jersey appellate court affirmed the trial court's dismssal of a lawsuit by a church's senior pastor who was ousted from his position. The appellate court said in part:

Where, as here, a church's governing body determines that the church's pastor is spiritually disqualified from continuing to serve the congregation, the courts cannot interfere without trenching on the church's right of self-governance and its First Amendment right to choose its clergy.

The court also held that the "clean hands" doctrine prevents the pastor from arguing that the board members who removed him lacked authority to do so. His claim was that he lacked authority to appoint the board members that he did.

Ireland Will Have Vote On Removing Blasphemy From Constitution

Last year, Ireland's Convention on the Constitution recommended that a referendum be held on whether to replace the current constitutional provision on blasphemy with a general provision banning incitement to religious hatred. (See prior posting.)  Yesterday, according to The Journal, the government announced that it accepted the recommendation that the people vote on whether to remove the offense of blasphemy from the Constitution. A government spokesman said that it is still an open question whether the proposed constitutional amendment will also call for replacing the ban on blasphemy with a prohibition on incitement to religious hatred. A date has not been set for the referendum.  It will apparently require a law be enacted by the Oireachtas.

October 5 Is 7th Annual Pulpit Freedom Sunday

This Sunday is Alliance Defending Freedom's 7th Annual Pulpit Freedom Sunday (Press release.). Pastors are encouraged to preach sermons that day "presenting biblical perspectives on the positions of electoral candidates" as a protest against federal tax code limitations on non-profits becoming involved in partisan political campaigns. ADF says that nearly 1500 pastors will participate this year.

Supreme Court Grants Review In Abercrombie & Fitch Religious Accommodation Case

The U.S. Supreme Court today granted certiorari in EEOC v. Abercrombie & Fitch Stores, Inc., (Docket No. 14-86). (Order List). In the case, the 10th Circuit held that there is a strict notice requirement before an employer is required to accommodate religious beliefs. Merely wearing  hijab to an employment interview did not give notice that a job applicant wore it for religious purposes or needed religious accommodation because of its conflict with Abercrombie's clothing policy. (See prior posting.) The cert. petition and related briefs are available here from SCOTUSblog. News 9 reports on the Supreme Court's grant of review.

South African Appeals Court Says Minister Must Arbitrate Dispute With Church

In De Lange v. Presiding Bishop of the Methodist Church of Southern Africa, (S, Afr. Sup. Ct, App., Sept. 29, 2014), the South African Supreme Court of Appeal refused to set aside an arbitration agreement under which a minister was required to arbitrate her dispute with the church that suspended her as a minister after she announced she would enter a same-sex civil union.  The court said in part:

As the main dispute in the instant matter concerns the internal rules adopted by the Church, such a dispute, as far as is possible, should be left to the Church to be determined domestically and without interference from a court. A court should only become involved in a dispute of this kind where it is strictly necessary for it to do so. Even then it should refrain from determining doctrinal issues in order to avoid entanglement. It would thus seem that a proper respect for freedom of religion precludes our courts from pronouncing on matters of religious doctrine, which fall within the exclusive realm of the Church.

The court also issued a press release describing its decision.  IOL News reports on the decision.

Court Rejects 1st Amendment Objections To Required AA Attendance

In State v. Miller, (OH App., Sept. 30, 2014), an Ohio appellate court rejected free exercise and establishment clause claims raised by Johnny Miller, a convicted robber, who as a condition of his community control sentence was required to attend Alcoholics Anonymous. The claim comes in the context of Miller's appeal of his conviction for forging his AA attendance documents. In rejecting the claim, the court noted that Miller only raised the religious claims belatedly.  The court added that, more importantly:

the record is devoid of any evidence showing that appellant ever attended an AA meeting whose primary purpose was to advance religious beliefs rather than to promote sobriety and recovery from addiction and substance abuse. 

Church Evicts AA Out of Fear It Would Lead To Required Hosting of Gay Weddings

KSLA reported last week that in a Sept. 17 letter, the pastors of a Keithville, Louisiana Baptist church told an AA group that had been meeting at the church for five years that it could no longer accommodate them out of fear that a court would hold that the church would also need to make its building available for same-sex wedding ceremonies and receptions.

Suit Challenges MTA's Rejection of Anti-Hamas Ad

Reuters reported yesterday on a lawsuit filed by the American Freedom Defense Initiative claiming that its civil rights were violated when the New York City Metropolitan Transit Authority rejected its city bus ad that included the line: "Killing Jews is worship that draws us close to Allah - Hamas MTV". The MTA says they rejected the ad because it may incite violence.

Los Angeles Archdiocese Sued Over Cemetery Lease Termination

AP reported  yesterday that S.E. Funeral Homes of California Inc. has filed a $250 million breach of contract lawsuit in state court in California against the Catholic Archdiocese of Los Angeles.  The suit claims that the Archdiocese in 1997 agreed to a 40 year lease of land on or near six cemeteries for S.E. Funeral Homes to operate its funeral services business. The company spent $37 million to build funeral homes, mausoleums and other facilities and pre-sold $190 million worth of services. However in early September the Archdiocese notified the company that it would terminate the leases in a month, claiming that the company was in breach of lease because of a reverse merger with a subsidiary of Service Corp. International. At issue is a clause in the lease that bars "transfer or entrustment of operations" without the consent of the Archdiocese. S.E. Funeral says the Archdiocese is acting in bad faith to seize its lucrative business.

Lawsuit Seeks To Stop Use of Chickens In Pre-Yom Kippur Ceremony

BNC reported yesterday that a lawsuit has been filed in a New York state trial court seeking to enjoin to enjoin Brooklyn Jewish residents from organizing, conducting or participating in the pre-Yom Kippur ritual of kaporos using live chickens. The chickens are slaughtered after use in a ceremony seeking to atonemnet for one's sins.  The suit, filed by an organization known as Alliance to End Chickens As Kaporos, was prompted by concern that thousands of chickens are shipped into Brooklyn for the ceremony each year and many are left starving for days and found dead.  Many Jews use coins that are contributed to the poor in the ritual instead of chickens.

Successful DOMA Challengers Denied Attorneys' Fees Award

In McLaughlin v. Hagel, (1st Cir., Sept. 23, 2014), the U.S. 1st Circuit Court of Appeals held that plaintiffs who successfully challenged the constituitonality of Sec. 3 of the Defense of Marriage Act are not entitled to an award of attorneys' fees against the government under the Equal Access to Justice Act. According to the court:

This extraordinary case presents the unusual situation in which the government's pre-litigation and during-litigation position was to enforce a challenged statute, but in which the government's litigation position was to argue that the challenged statute is unconstitutional....

Though novel, the government's litigate-to-lose position is not barred by the case law. And because it was constitutionally appropriate, fees were correctly denied as a matter of law.

 National Law Journal reported on the decision.

Russian Constitutional Court Upholds Ban on Promoting Homosexuality To Minors, Interpreting It Narrowly

Interfax reported last week that Russia's Constitutional Court has upheld the constitutionality of Article 6.21 of the Russian Code of Administrative Violations that bans promoting homosexuality among minors, but said it must be interpreted narrowly.  The Sept. 23 decision (full text in Russian), which was issued without a public hearing, came in a suit filed by gay rights activists who had been fined under the law. According to Interfax:

the Constitutional Court decided that the legislator's purpose was to establish a balance between personal autonomy and the public interest with regard for the traditional ideas of marriage, family and motherhood in Russian society, in which many religious people are represented.

Constitutional Court Judge Nikolay Bondar commented on the decision, saying:

The Russian Constitutional Court has found that the contested provision does not contradict the Constitution. It also gave a constitutional law interpretation, which shows all law enforcers that a broad interpretation of the ban is unacceptable and it is compulsory for everyone, including courts.... 

Secondly, the court ruled that this provision is not aimed at banning or officially condemning non-traditional sexual relations. Thirdly, this article does not prevent impartial public debate of the legal status of sexual minorities, including by holding public events according to the procedures established by law. However, minors should not be involved in the relevant events, no matter whether it's rallies or debates, and the disseminated information should not be targeted at them.

(See prior related posting.)

Arkansas Firing Range Says It is A "Muslim Free Zone"

An indoor firing range in Hot Springs, Arkansas has declared itself a "Muslim Free Zone." Jan Morgan, owner of The Gun Cave Indoor Firing Range and conservative online journalist sets out ten reasons for her decision, ranging from strange behavior recently by two Muslim patrons at her firing range to concern about ISIS and honor killings.  She says she has chosen to "err on the side of caution" since she has "no way of discerning which muslims will or will not kill in the name of their religion and the commands in their koran." Addressing the issue of religious discrimination, Morgan says: "I view Islam as a theocracy, not a religion." KRMG News says that comments are flooding the firing range's Facebook page in support of it decision.

North Carolina Distributes First Voucher Funds While Challenge Is On Appeal

AP reports that last week the North Carolina State Educational Assistance Authority distributed $1.1 million under its Opportunity Scholarship Program to 109 private and religious schools for 568 qualifying students.  The largest amount of money-- $90,300 for 43 students went to the Greensboro Islamic Academy. $54,600 went to Word of God Christian Academy. The voucher program had been enjoined by a state trial court, but on Sept. 19 the state court of appeals ruled that, pending an appeal, students who had already been granted Opportunity Scholarships could receive the funds.

Cert. Filed In Ban On Church Use of New York City Schools

A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Bronx Household of Faith v. Board of Education of the City of New York, (cert. filed 9/24/2014).  In the case the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision held that the Board of Education of the City of New York did not violate the free exercise clause when in 2007 it changed its rules to bar the use of school facilities by churches for religious worship services. ADF announced the filing of the cert. petition. [Thanks to Jeff Pasek for the lead.]

EEOC Files Two Religious Discrimintion Cases

In recent days, the EEOC has filed two separate religious discrimination cases. On Sept. 25, the agency announced that it has filed suit against a Michigan-based automobile dealership-- Feldman Automotive, Inc. The suit alleges that the company refused to hire Brandan Allen as a car salesman after learning that he was a religious member of a non-denominational church.

On Sept. 29, the EEOC announced that it has sued U.S. Steel Tubular Products, Inc., a subsidiary of U.S. Steel Corporation for failing to accommodate the religious beliefs of an applicant for a utility technician position who was a member of the Nazirite sect of the Hebrew Israelite faith. The company insisted that the applicant Stephen Fayusi take a hair follicle drug test that required cutting his hair at the scalp, and refused alternatives such as hair from other parts of his body.

Continuing Resolution Extends USCIRF Until Dec. 11

The Continuing Appropriations Resolution 2015, (Sec. 144), signed by the President on Sept. 19, among other things amends 22 USC 6436 to extend the life of the U.S. Commission on International Religious Freedom from Sept. 30, 2014 to Dec. 11, 2014.

Recent Articles of Interest

From SSRN:

• Ioana Cismas, Introductory Note to Committee on the Rights of the Child Concluding Observations on the Second Periodic Report of the Holy See, (International Legal Materials, Vol. 53, No. 3 (2014), pp. 580-59).
• Jeremy Waldron, What Do Philosophers Have Against Dignity?, (September 17, 2014).
• Judith Areen, Uncovering the Reformation Roots of American Marriage and Divorce Law, (Yale Journal of Law & Feminism, Vol. 26, pp. 29-85, 2014).
• Frederick Mark Gedicks, One Cheer for Hobby Lobby: Improbable Alternatives, Third-Party Burdens, and the Specter of RFRA Strict Scrutiny, (Harvard Journal of Law and Gender, Vol. 38, 2015 Forthcoming).
• Spencer Churchill, Reasoning from Principles of Religious Liberty to a Test of Sincerity for Corporate RFRA Claims, (August 28, 2014).
• Faisal Kutty, 'Islamic Law' in U.S. Courts: Judicial Jihad or Constitutional Imperative?, (Pepperdine Law Review, Forthcoming).
• Faisal Kutty, The Kutty 'Islamic Law' Flowchart, (September 24, 2014).
• Corey Ciocchetti, Religious Freedom & Closely Held Corporations: The Hobby Lobby Case & Its Ethical Implications, (Oregon Law Review, Forthcoming).
• Christopher R. Leslie, Embracing Loving: Trait-Specific Marriage Laws and Heightened Scrutiny, (Cornell Law Review, Vol. 99, No. 5, 2014, pp.1077-1130).

From SmartCILP:

• Hanna Lerner, Critical Junctures, Religion, and Personal Status Regulations in Israel and India, [Abstract], 39 Law & Social Inquiry 387-415 (2014).
• Joshua C. Wilson &Amanda Hollis-Brusky, Lawyers for God and Neighbor: The Emergence of "Law As a Calling" As a Mobilizing Frame for Christian Lawyers, [Abstract], 39 Law & Social Inquiry 416-448 (2014).
• Rafael Domingo, A Right to Religious and Moral Freedom? [Abstract]; Reply by Michael J. Perry [Abstract], 12 I.Con: International Journal of Constitutional Law 226-255 (2014).

Many Navy Chaplains' Claims Dismissed on Limitations Grounds

The federal district court for the District of Columbia last week dismissed on statute of limitations grounds a number of discrimination claims in the long-running suit brought by a group of Non-Liturgical Protestant chaplains and their certifying agencies against the U.S. Navy. In In re Navy Chaplaincy, (D DC, Sept. 24, 2014), the court rejected various theories put forward by plaintiffs who argued that the suit was still timely.

Recent Prisoner Free Exercise Cases

In Ureña v. Strafford County House of Corrections, 2014 U.S. Dist. LEXIS 132513 (D NH, Sept. 22, 2014), a New Hampshire federal magistrate judge recommended allowing a Muslim inmate to proceed with a number of his claims regarding access to a halal diet and to Jumu'ah, a Qur'an, a kufi and an Imam.

In Sublett v. Green, 2014 U.S. Dist. LEXIS 135527 (ED KY, Sept. 24, 2014), a Kentucky federal district court dismissed an inmate's complaint that he was denied kosher meals while in segregation. The court found plaintiff had not exhausted administrative remedies.

In Bartlett v. Wengler, 2014 U.S. Dist. LEXIS 135516 (D ID, Sept. 24, 2014), an Idaho federal district court indicated that it intended to dismiss an inmate's complaint about failure to provide kosher meals.

In Shepherd v. Powers, 2014 U.S. Dist. LEXIS 136467 (SD NY, Sept. 26, 20140, a New York federal district court allowed an inmate to proceed with a complaint that in punitive segregation he was unable to attend church or Bible study classes, and he only a received a Bible three days after he requested one.

Suit Filed In US Court Against Indian Primie Minister Over 2002 Anti-Muslim Riots

Reuters reports on a lawsuit filed last Thursday in the Southern District of New York federal district court against Indian Prime Minister Narenda Modi over his alleged lack of action as Chief Minister of Gujarat during anti-Muslim rioting in 2002. Modi is a member of the Hindu nationalist BJP Party.  The person behind the lawsuit is 70-year old Joseph Whittington, a member of the Harvey, Illinois City Council. Whittington, who is African-American, says some of his constituents or their families were victims of the Gujarat riots, which reminded him of the U.S. civil rights movement. Whittington worked with a group of New York lawyers to found a non-profit, American Justice Center, which filed the suit against Modi. AP reports that American Justice Center is offering a $10,000 reward to anyone who can serve process on Modi while he is in the United States for a visit. Normally sitting heads of state enjoy immunity from lawsuits in American courts and cannot be served.

Megachurch Leader Threatens To Sue Rappers Over Remix

The New York Daily News reported Thursday that Dallas megachurch leader T.D. Jakes is threatening to sue popular rappers Young Jeezy and Kendrick Lamar over use of a 24-second clip from a Jakes' sermon in a remix of "Holy Ghost." Legal experts suggest that the fair use doctrine makes Jakes' claim a difficult one.

Federal Court Says State Court Should Act First In Challenge To Eruv Zoning Decisions

East End Eruv Association v. Town of Southampton, (ED NY, Sept. 24, 2014), is the latest decision by a New York federal district court in challenges to the refusal by Long Island towns to permit a Jewish organization to construct an eruv.  The court held that the claim that zoning authorities acted arbitrarily and capriciously in denying an appeal and a variance should be decided in state court, and that plaintiffs' other five claims should be stayed pending that decision.  In a related decision, on the same day in the same case, the court refused to allow an organization known as Jewish People Opposed to the Eruv to intervene in the case.

President Sends Greetings For Rosh Hashanah

The Jewish holiday of Rosh Hashanah begins this evening. The White House has posted a video and transcript of High Holiday greetings from President Obama.

Obama To U.N.: Terrorists Have Perverted Islam

President Obama today delivered a wide-ranging speech (full text) before the United Nations General Assembly addressing challenges facing the international community. Significant portions of his remarks focused on the role of religion in current conflicts.  He said in part:

In the 20th century, terror was used by all manner of groups who failed to come to power through public support. But in this century, we have faced a more lethal and ideological brand of terrorists who have perverted one of the world’s great religions....  At the same time, we have reaffirmed that the United States is not and never will be at war with Islam. Islam teaches peace. Muslims the world over aspire to live with dignity and a sense of justice. And when it comes to America and Islam, there is no us and them – there is only us, because millions of Muslim Americans are part of the fabric of our country.

So we reject any suggestion of a clash of civilizations. Belief in permanent religious war is the misguided refuge of extremists who cannot build or create anything, and therefore peddle only fanaticism and hate. And it is no exaggeration to say that humanity’s future depends on us uniting against those who would divide us along fault lines of tribe or sect; race or religion....

[I]t is time for the world – especially Muslim communities – to explicitly, forcefully, and consistently reject the ideology of al Qaeda and ISIL. It is the task of all great religions to accommodate devout faith with a modern, multicultural world.... There should be no more tolerance of so-called clerics who call upon people to harm innocents because they are Jewish, Christian or Muslim. It is time for a new compact among the civilized peoples of this world to eradicate war at its most fundamental source: the corruption of young minds by violent ideology....

That means bringing people of different faiths together. All religions have been attacked by extremists from within at some point, and all people of faith have a responsibility to lift up the value at the heart of all religion: do unto thy neighbor as you would have done unto you....

[W]e must address the cycle of conflict – especially sectarian conflict – that creates the conditions that terrorists prey upon. There is nothing new about wars within religions. Christianity endured centuries of vicious sectarian conflict. Today, it is violence within Muslim communities that has become the source of so much human misery. It is time to acknowledge the destruction wrought by proxy wars and terror campaigns between Sunni and Shia across the Middle East. And it is time that political, civic and religious leaders reject sectarian strife..... 

Today Is 2014 "See You At the Pole" Prayer Event

Today is the date for this year's annual Christian-sponsored "See You At The Pole" event at schools around the country and beyond.  According to the SYATP website:

See You at the Pole™ is simply a prayer rally where students meet at the school flagpole before school to lift up their friends, families, teachers, school, and nation to God. See You at the Pole™ is a student-initiated, student-organized, and student-led event.

This year's theme is a verse from Ephesians 6:18: "Never Stop Praying, Especially for Others."  Organizers claim that over 3 million students in 20 countries participate in the event.  Alliance Defending Freedom has distributed a Legal Memo on "Student Rights to Participate In and Promote See You at the Pole."

New Study Released On Israeli Religion-State Public Opinion

In Israel yesterday, Hiddush- Freedom of Religion for Israel released its 2014 Israel Religion and State Index. The report is its annual study of Israeli public opinion on religion and state issues. Here is an excerpt from the Executive Summary:

[T]he Israeli Jewish public expressed an all-time high dissatisfaction with the government policies regarding religion and state..... A sweeping majority of Israelis (including the beleaguered residents of southern Israel) indicated their opposition to the claim, used to legitimize ultra-Orthodox draft evasion, that Torah study and prayers are Israel's true defense mechanism. Similarly, the majority of the respondents did not accept rabbinic explanations that security incidents and natural disasters are caused by punishments for religious sins.  Unfortunately, freedom of religion and equality continuously fall victim to politicians who ignore the strong will of the Israeli public for freedom of religion and equality.

Preacher Claims Health Department Job Offer Was Withdrawn Because of His Religious Views

The Atlanta Journal Constitution reports that a Seventh Day Adventist preacher yesterday filed a complaint with the Equal Employment Opportunity Commission claiming that the Georgia Public Health Department rescinded a job offer it had made to him when it learned of some of his religious views.  At issue are videos of sermons by preacher Eric Walsh in which he says that homosexuality is a sin and evolution is a "religion created by Satan."   Walsh resigned from his job in California two days before Georgia rescinded the offer.  The Georgia Public Health Department says that the job offer was contingent on a background check and that its withdrawal was not related to Walsh's religious beliefs.

New Mediation Efforts In Milwaukee Archdiocese Bankruptcy Fail

The Catholic Archdiocese of Milwaukee announced yesterday that its second attempt at mediation with the creditors' committee and abuse victims in its bankruptcy reorganization has failed.  The sticking point is whether some $50 million held by a Cemetery Trust for perpetual care of Archdiocesan cemeteries will be available to Archdiocese creditors.  That issue is currently on appeal to the 7th Circuit after a federal district court held that the Trust asssets were not available to creditors. (See prior posting.)  The Archdiocese has already incurred over $15.4 million in legal fees and expenses in the bankruptcy reorganization.

Louisiana State Court Invalidates State's Same-Sex Marriage Bans

Yesterday, a Louisiana state trial court declared the state's ban on same-sex marriage and its refusal to recognize same-sex marriages performed elsewhere unconstitutional.  The full text of the opinion has apparently not yet been publicly released, but BuzzFeed News reports that it was permitted to review a copy of the decision on the condition that it not post it or quote directly from it. (The decision was sealed because it involves the adoption of a minor.) BuzzFeed reports that the 23-page opinion invalidates the bans on the basis of the equal protection, due process and Full-Faith-And-Credit clauses. The Louisiana Department of Justice plans to appeal directly to the state Supreme Court and has already asked the trial court to suspend its order pending appeal. The trial court's invalidation of the state's same sex marriage ban comes less than a month after a Louisiana federal district court upheld the ban. (See prior posting.)

UPDATE: Here is the full opinion in Costanza v. Caldwell, (LA Dist. Ct., Sept. 22, 2014).

8th Circuit Invokes Hobby Lobby To Reverse In For-Profit Challenge To Contraceptive Mandate

Earlier this month in a per curiam two-paragraph order, the U.S. 8th Circuit Court of Appeals, invoking the Supreme Court's Hobby Lobby decision, reversed a Missouri federal district court's dismissal of a RFRA claim (see prior posting) by a for-profit company that objected to the contraceptive coverage mandate. The case is O'Brien v. U.S. Department of Health and Human Services, 8th Cir., Sept. 8, 2014). The 8th circuit also vacated and remanded the district court's dismissal of other claims in the case, without expressing a view on their merits.

Muslim Groups Denounce Anti-Islamist Ads That Will Appear on NYC Busses and Subway Stations

AlJazeera reported yesterday that Muslim groups are denouncing a series of six anti-Muslim, anti-Jihad ads that will appear on 100 New York buses and two subway entrances for the next four weeks, saying they equate all Muslims with extremism.  The ads, which reportedly cost some $100,000, were purchased by the American Freedom Defense Initiative, a group led by Pamela Geller. Five of the ads are pictured on AFDI's website.  One of the ads focuses on ISIL's radicalization of Westerners; another equates CAIR with Hamas; two others focus on promotion of anti-Christian and anti-Jewish views by Islamic countries; and one call Jihadists savages and urges support for Israel. An MTA spokesman says that court decisions (see prior posting) make it clear that under the First Amendment it must accept the ads unless they provoke violence or interfere with operations (which one proposed ad did).

2nd Circuit Says Trial Court Misinterpreted RLUIPA In Chabad Zoning Case

In Chabad Lubavitch of Litchfield County, Inc. v. Litchfield Historic District Commission, (2d Cir.,  Sept. 19, 2014), the U.S. Second Circuit Court of Appeals held that the district court had applied erroneous legal standards in deciding whether a refusal to allow a Jewish group to expand a building in Lichtfield's Historic District violates RLUIPA’s substantial burden and nondiscrimination provisions. RLUIPA's substantial burden provision applies because the statutes involved call for an individual assessment of applications to alter historic properties. The district court should have looked at more than religious comparators in deciding the discrimination claim. The court also held that the district court wrongly dismissed on standing grounds the RLUIPA claim of the rabbi who was to live in the building.  AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

Suit Seeks Religious Accommodation In Schedulng of Tennis Tournament

The United States Tennis Association's Eastern Adult Section Championships are scheduled for Sept. 27 to 29. The New York Times reports that last Friday one of the teams in the tournament, the Long Beach Lipschik, sued in a New York federal district court seeking to force the USTA to make accommodations for the team since 9 of its 12 members are Orthodox Jews who will not play tennis from sundown Friday to after sundown Saturday. According to JP Updates, the USTA says it has already changed the dates of the tounament once to avoid its conciding with Rosh Hashanah which is celebrated from Wednesday evening to Friday evening this week. A hearing in the case is set for Wednesday. [Thanks to Steven H. Sholk for the lead.]

2015 National Religious Freedom Moot Court Competion Announced

The George Washington University Law School has announced that again this academic year it is hosting the National Religious Freedom Moot Court Competition. The event pits teams from various law schools around the country against one another in arguing a hypothetical religious freedom case.  This year's competition, which will take place on Feb. 6-7, 2015, involves a case in which teachers object on conscientious grounds to a hypothetical D.C. law that requires them to carry firearms on public school property during school hours.

Pope Francis In Albania Speaks On Religious Violence and Religious Freedom

Pope Francis, on a visit to Albania yesterday, spoke at the Catholic University of Tirana to leaders of various faith communities on issues of religious freedom and religious violence.  Vatican Radio reports the full text of his speech. The Pope said in part:

We cannot deny that intolerance towards those with different religious convictions is a particularly insidious enemy, one which today is being witnessed in various areas around the world.... [A]ll those forms which present a distorted use of religion, must be firmly refuted as false since they are unworthy of God or humanity. Authentic religion is a source of peace and not of violence! No one must use the name of God to commit violence! To kill in the name of God is a grave sacrilege. To discriminate in the name of God is inhuman.

Seen in this light, religious freedom is not a right which can be guaranteed solely by existing legislation, although laws are necessary. Rather religious freedom is a shared space, an atmosphere of respect and cooperation that must be built with everyone’s participation, even those who have no religious convictions. Allow me to outline two attitudes which can be especially helpful in the advancement of this fundamental freedom.

The first attitude is that of regarding every man and woman, even those of different religious traditions, not as rivals, less still enemies, but rather as brothers and sisters. When a person is secure of his or her own beliefs, there is no need to impose or put pressure on others.... 

The second attitude which fosters the promotion of religious freedom is the work done in service of the common good....  The more men and women are at the service of others, the greater their freedom!

Recent Articles and Books of Interest

From SSRN:

• James A. Davids, The Establishment Clause and Public Funding of Religious Colleges, (5 Regent Journal of Law & Public Policy 11 (2013)).
• Jared G. Price, The Gods of Greece Are Not Pleased: The Constitutionality of Legislative Prayer at the Local Level, (January 21, 2014).
• Steven J. Heyman, The Conservative-Libertarian Turn in First Amendment Jurisprudence, (West Virginia Law Review, Vol. 117, No. 1, 2014).
• Mary Szto, Chinese Ritual and the Practice of Law, (Touro Law Review, Vol. 30, No. 103, 2014).
• Jeffrey Shulman, Sacred Trust or Sacred Right?, (in The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child: Yale University Press, 2014).
• S.I. Strong, Religious Rights in Historical, Theoretical and International Context: Hobby Lobby as a Jurisprudential Anomaly?, (Vanderbilt Journal of Transnational Law, 2015 Forthcoming).
• Shagufta Omar, Marriage in Islam: Life Partnership or Discriminatory Family Set Up? An Analysis of Some Protective Legal and Moral Shariah Provisions for Women with Special Reference to Surah An-Nisa, (September 5, 2014).
• Valentino Cattelan, In the Name of God: Managing Risk in Islamic Finance, (July 2014).

From SmartCILP:

• Eun-Jung Katherine Kim, Islamic Law in American Courts: Good, Bad, and Unsustainable Uses, 28 Notre Dame Journal of Law Ethics and Public Policy 287-307 (2014).
• George P. Smith II, Cura Personalis: A Healthcare Delivery Quandary At the End of Life, 7 St. Louis U. J. Health L. & Pol'y 311-329 (2014).

New Books:

• Jay Sekuow, Rise of ISIS: A Threat We Can't Ignore, (Howard Books, Sept. 2014).
• Stephen Eric Bronner, The Bigot: Why Prejudice Persists, (Yale University Press, July 2014).

Recent Prisoner Free Exercise Cases

In Williams v. Lemmon, 2014 U.S. Dist. LEXIS 129217 (SD IN, Sept. 16, 2014), an Indiana federal district court dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint about a 30-day suspension of Jumah services.

In Grohs v. Santiago, 2014 U.S. Dist. LEXIS 130139 (D NJ, Sept. 17, 2014 ( NJ, Sept. 17, 2014), a New Jersey federal district court dismissed, with leave to amend, an inmate's complaint that he had to dispose of religious material because of lack of storage space.

In Brown v. Mathena, 2014 U.S. Dist. LEXIS 130574 (WD VA, Sept. 16, 2014), a Virginia federal district court dismissed various complaints by a Nation of Islam inmate that the Common Fare diet does not give him nutritional food that meets his religious dietary requirements.

In Martz v. Sci-Coal Twp. Therapeutic Community, 2014 U.S. Dist. LEXIS 130823 (MD PA, Sept. 18, 2014), a Pennsylvania federal district court dismissed an inmate's claim that his rights under the Establishment Clause were infringed when he was denied parole because he did not complete a substance abuse program allegedly religious in nature.

In Cowart v. Allen, 2014 U.S. Dist. LEXIS 130693 (MD AL, Sept. 18, 2014), an Alabama federal district court adopted a magistrate's recommenation (2014 U.S. Dist. LEXIS 131149, Aug. 26, 2014) and dismissed an inmate's complaint that prison policy denies tobacco use during Native American religious ceremonies, that guards interrupt ceremonies, limit access to fires and a sweat lodge, allow gang members on sacred ground and that the chaplain desecrated his religious objects.

In Short v. Martyn, 2014 U.S. Dist. LEXIS 131352 (WD MI, Sept. 19, 2014), a Michigan federal district court permitted an inmate to proceed on a retaliation claim (but not a free exercise claim) against a corrections officer who fired plaintiff from his prison job after he attended a non-denominational Christian conference.

In Green v. Beck, 2014 U.S. Dist. LEXIS 131647 (ED NC, Sept. 9, 2014), a North Carolina federal district court dismissed a former inmate's complaints about the handling of his request for recognition  of his religious name. He was ultimately issued a new identifcation card.

In Powers v. Clarke, 2014 U.S. Dist. LEXIS 131886 (ED VA, Sept. 17, 2014), a Virginia federal district court dismissed an inmate's complaint that authorities refused to recognize Nation of Gods and Earths (Five Percenters) as a religion and instead have classified it as a gang and restricted distribution of its literature.

State University Reaches Compromise With Football Team Members On Wearing Cross Decal

Inquisitr reports that Arkansas State University officials have reached a compromise with member of the school's football team-- the Red Wolves-- who want to honor their recently murdered teammate and their recently deceased equipment manager by wearing a Christian cross with the men's initials on it on team helmets this season. (See prior posting.) So long as the student athletes purchase the cross decals themselves and personally place them on their helmets, the University will not object. Liberty Institute, which had written the University (full text of letter) complaining about its original decision to disallow the decals, issued a press release praising the University's decision last Wednesday to now allow them.

Oklahoma Trial Court Rejects Challenge To State Capitol Ten Commandments

AP reports that an Oklahoma state trial court has dismissed an Establishment Clause challenge to a Ten Commandments monument on Oklahoma State Capitol grounds. The court in Prescott v. Capitol Preservation Commission, (OK Cnty Dist. Ct., Sept. 19, 2014), held that the monument, which is on statehouse grounds that have 51 other monuments as well, held that "the Ten Commandments monument on the Oklahoma Capitol grounds is constitutional because of its historical value." According to AP:

The 6-foot-tall granite monument was authorized by the Legislature in 2009 and was erected in 2012 after Republican state Rep. Mike Ritze and his family paid nearly $10,000 for it. The monument's placement has led others to seek their own on the Capitol grounds, including a satanic group that earlier this year unveiled designs for a 7-foot-tall statue of Satan.

In a release reacting to the decision, the Oklahoma ACLU said:

We respectfully disagree with the decision of the court.... [I]t is offensive to [plaintiffs] that this sacred document has been hijacked by politicians. We will appeal this decision and ask the Oklahoma Supreme Court to find that the Oklahoma Constitution does not give the government the power to cheapen inherently religious texts.

(See prior related posting.) [Thanks to How Appealing for the lead.]

Congressional Committee Holds Hearing On Protecting International Religious Freedom

The U.S. House Committee on Oversight & Government Reform held a hearing yesterday on "Protecting International Religious Freedom."  A video of the full hearing and trascripts of the six witnesses' prepared statements are available on the Committee's website.

Pakistani State's Supreme Court Invalidates Appointments of State's Shariat Court Judges

The Supreme Court of the Pakistani state of Azad Jammu and Kashmir has handed down a decision invalidating the procedures for appointing the jurisdiction's Shariat Court judges. In Mughal v. Azad Government of the State of  Jammu and Kashmir, (AKJ Sup. Ct., Aug. 25, 2014), the Court concluded that appointments to the Shariat Court since 1993 are void because the law did not provide for consultation with the relevant chief justices before Shariat Court judges are appointed, did not provide for removal of Shariat Court judges for misconduct or incapacity, and did not require appointment of at least one Islamic legal scholar to the court. In order to avoid the order creating a vacuum, the Supreme Court instructed the government to immediately appoint High Court judges as judges of the Shariat Court as well. Pakistan's Daily Times reports on the decision, which it says was released on Sept. 17.

Group Says Justice Ginsburg Made Improper Comment On Possible Review of Same-Sex Marraige Cases

Liberty Counsel issued a press release yesterday contending that U.S. Supreme Court Justice Ruth Bader Ginsburg violated the Judicial Code of Conduct in remarks she made to an audience at the University of Minnesota Law School.  Ginsburg apparently told the audience that there would be "no need for us to rush" in reviewing challenges to same-sex marriage bans if the 6th Circuit in four cases pending before it does not create a split among circuits by upholding the bans.  She continued saying that there would be "some urgency" to review if a split is created.  Liberty Counsel says that this amounted to comment on the merits of an impending case. Technically, the Judicial Conference's Code of Conduct is not binding on Supreme Court Justices.

Cert. Filed In Case of Police Officer Who Refused To Attend Appreciation Event In Mosque

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Fields v. City of Tulsa.  In the case, the 10th Circuit dismissed a complaint filed by a Tulsa, Oklahoma police captain who was disciplined after he refused on religious grounds to comply with an order to arrange for two officers and a supervisor from his shift to attend a law enforcement appreciation day held at a mosque. American Freedom Law Center which represents plaintiff has more background on the case and links to all of plaintiff's pleadings.

Catholic Non-Profits Object To Newly Revised Contraceptive Mandate Rules

As reported yesterday by the Southwest Florida News-Press, Catholic non-profit instituitons have signaled their dissatisfaction with the Interim Final Rules under the Affordable Care Act issued last month in an attempt to meet objections to the contraceptive coverage mandate. (See prior posting.) In a Motion for Preliminary Injunction (full text) filed last week by the Becket Fund on behalf of Ave Maria University, the non-profit Catholic college takes issue with the government's claim that the new rules are consistent with the Supreme Court's order in the Wheaton College case:

The augmented rule demands far more than what the Supreme Court required in Wheaton, and, in fact, is substantively indistinguishable from the original rule that the Wheaton Court enjoined. Rather than simply requiring notice that Ave Maria is a religious nonprofit with a religious objection, the augmented rule would require Ave Marie to provide its insurance company’s name and contact information for the specific purpose of allowing HHS to issue a notice requiring the insurer to provide the exact same items through Ave Maria’s healthcare plan as if Ave Maria had given the insurer Form 700 directly. 

Simply routing the form through HHS is a distinction without a difference....

Air Force Will Allow Enlistees and Officers To Drop "So Help Me God" From Oath

The U.S. Air Force announced yesterday that effective immediately it would allow enlisted members and officers who wished to do so to omit the words "So help me God" from enlistment and officer appointment oaths.  The change comes after the Department of Defense General Counsel issued an opinion concluding that the omission is permissible despite language in federal statutes setting out the language of the oaths that include the phrase. The Air Force requested the opinion after an enlisted man who is an atheist insisted on omitting the phrase. (See prior posting.) According to ABC News, the other branches of the military already allow the omission, as did the Air Force until a policy change last year.

Poland's Supreme Court Upholds Airport Security Requirement To Remove Sikh Turban

According to Sikh Sangat News, Poland's Supreme Court yesterday ruled against Shaminder Singh Puri, an environmental expert who does a great deal of international travel, who sued the the Chief of Poland's Border Guard for violation of his religious rights.  Puri, a practicing Sikh, was asked on five occasions between 2009 and 2011 to remove his turban at Warsaw Airport. Puri, seeking damages and an apology, argued that security officials acted disproportionately by immediately requiring him to remove  his turban instead of first using other screening methods.  The Supreme Court held however that security guards were respectful of Puri's religion and, when ordering him to remove his turban, allowed him to do so in a separate room away from other passengers.

Court Says Hospital's Retirement Plan Is "Church Plan," Rejecting Magistrate's Recommendation

In Medina v. Catholic Health Initiatives, (D CO, Aug. 26, 2014), a Colorado federal district court disagreed with the interpretation of ERISA in a federal magistrate judge's recommendation (see prior posting) and held that a Catholic health system's retirement plan is an exempt "church plan." This is one of a series of cases filed around the country claiming an IRS 2002 Private Letter Ruling was legally incorrect in allowing plans that were not "created" by a church to claim the exemption. The suits seek to require the religiously-affiliated hospital plans to meet ERISA's funding and other requirements. The court held that it is enough under the relevant statutory provision that the retirement plan is "maintained by an organization controlled by or associated with a church...." BNA Daily Report for Executives (Aug. 28) [subscription required] reports that with this decision, federal district courts are split 2-2 on the issue, with four more cases pending.

Diocese Challenge To Charter School's Leasing of Catholic High School Property Moves Ahead

In Roman Catholic Diocese of Brooklyn, New York v. Christ the King Regional High School, (NY Queens Co. Sup. Ct., Aug. 21, 2014), a New York state trial court denied a Catholic high school's motion to dismiss a declaratory judgment action filed against it by the Brooklyn Diocese challenging its decision to lease a substantial portion of its property to a non-sectarian charter middle school. In 1976 the Diocese conveyed the school property to the educational corporation that operated the Catholic high school on the condition that the property would be reconveyed to the Diocese if it ceased to be used for a Catholic high school. While under New York property law failure to record the condition extinguished it as a possibility of reverter, the court held that the restriction is still enforceable as a matter of contract law.

European Court Says Turkey Should Offer Alevis Exemption From Compulsory Religion and Ethics Courses

In Mansur Yalçın and Others v. Turkey, (ECHR, Sept. 16, 2014) (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment held that Turkish schools have not made sufficient chagnes in required religion and ethics classes to accommodate Alevis.  As summarized in the Court's English language press release:

The fact that the curriculum of the religion and ethics classes gave greater prominence to Islam as practised and interpreted by the majority of the Turkish population than to other minority interpretations of Islam could not in itself be viewed as a departure from the principles of pluralism and objectivity which would amount to indoctrination. However, bearing in mind the particular features of the Alevi faith as compared with the Sunni understanding of Islam, the applicants could legitimately have considered that the approach adopted in the classes was likely to cause their children to face a conflict of allegiance between the school and their own values.

The Court failed to see how such a conflict could be avoided in the absence of an appropriateexemption procedure. The discrepancies complained of by the applicants between the approach adopted in the curriculum and the particular features of their faith as compared with the Sunni understanding of Islam were so great that they would scarcely be alleviated by the mere inclusion in textbooks of information about Alevi beliefs and practice.

A Chamber Judgment may be appealed to the Grand Chamber of the Court.

Professor's Law Review Article Used In Robocall By Opponent in Mayoral Race

In 2010, then-Associate Professor Jorge Elorza at Roger Williams University Law School published an interesting and sophisticated 65-page law review article in Pittsburgh Law Review titled Secularism and the Constitution: Can Government Be Too Secular?  (Given the timing, this may well have been his "tenure piece.") Elorza, now a full professor, is on leave and running as the Democratic candidate for mayor of Providence, Rhode Island.  WPRI News reported yesterday that the law review article has become the subject of a robocall attack by one of Elorza's opponents in the mayoral race, independent candidate Vincent A. “Buddy” Cianci Jr.:

The caller asks the listener to press 1 if they agree with Cianci that teaching about the existence or nonexistence of God “does not belong in schools,” or press 2 if they agree with Elorza that it would be acceptable “to teach in schools that there is no God.”

New Brunswick Law Society Members Call On Council To Revoke Approval of Christian Law School

In Canada, controversy over the new Christian-affiliated Trinity Western University Law School continues. The school, scheduled to open in 2016, requires students, faculty and staff to subscribe to its religious-based "community covenant" which, among other things, prohibits sex outside of heterosexual marriage. In June, the Council of the New Brunswick Law Society voted to accredit the law school, clearing the way for its graduates to practice in the province.  However, according to yesterday's Straight Talk, at a special general meeting held last week, Law Society members in an advisory vote of 137-30 called on the Council not to approve the school.

Pennsylvania Boy Charged With Desecrating Venerated Object After Facebook Photo of Simulated Sex With Jesus Statue

In Everett, Pennsylvania last week police charged a 14-year old boy with violating Pennsylvania's ban on desecration of venerated objects (18 Pa. Cons. Stat. § 5509) after he posted photos on Facebook showing him simulating oral sex with a statue of Jesus. According to a Pennsylvania State Police Report, the incident took place in July, and charges were filed in Juvenile Court on Sept. 9. Queerty reports that the statue belongs to the Christian organization Love In the Name of Christ.  An organization spokesman says it does not believe the boy should be prosecuted, and asked instead "for prayer for the young man."

Supporters of Scottish Independence Promise Protection of Catholic Schools

On Thursday, voters in Scotland will cast ballots on whether Scotland should break away from the United Kingdom and become an independent country. (Background from Wikipedia.) According to yesterday's Herald Scotland, just days ahead of the vote Roseanna Cunningham, the country's Legal Affairs Minister, promised that in the event of independence, parochial schools will be protected.  She said:

A Yes vote means that Scotland will have a written constitution and that means everyone can be assured that the constitution in place on Independence Day will uphold the rights and liberties of all, including freedom of religion and the protection of Catholic education.

In an advertisement yesterday, 100 members of the Catholic community urged a "yes" vote on independence.

Citing Hobby Lobby, Court Excuses Testimony From FLDS Member Who Has Religious Belief In Secrecy

Relying extensively on both the 10th Circuit and Supreme Court opinions in Hobby Lobby, a Utah federal district court has held that the Religious Freedom Restoration Act allows Vernon Steed, a member of the FLDS Church, to refuse to testify in a Department of Labor administrative proceeding about the internal affairs and organization of the Church.  In Perez v. Paragon Contractors, Corp., (D UT, Sept. 11, 2014), the Department of Labor sought testimony from Steed as part of its investigation of possible child labor violations involving work by FLDS children at a Utah pecan ranch harvest. Steed however claimed he believes that the identity of FLDS Church leaders, the Church's organization and its internal affairs are sacred matters, designated by God, and that he has vowed not to discuss them.  The court held:

It is not for the Court to “inquir[e] into the theological merit of the belief in question”. Hobby Lobby, 723 F.3d at 1137. “The determination of what is a ‘religious’ belief or practice is more often than not a difficult and delicate task .... However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 714 (1981)....

Petitioner has failed to show that forcing Mr. Steed to answer the questions offensive to his sincerely held religious beliefs is the least restrictive means to advance any compelling interest it may have. For example, as a less restrictive alternative, Petitioner can continue with its efforts to obtain needed information from Paragon Contractors Corporation, Brian Jessop, Dale Barlow and others who contracted to manage the pecan ranch. See Hobby Lobby, 134 S.Ct. at *2780....

UPDATE: It should be noted that the body of the opinion refers to the objecting FLDS member as "Vernon Steed", while the caption labeling the motion being ruled upon refers to him as "Vergel Steed."

Air Force Grants Its First Religious Accommodation For Jewish Chaplain To Wear Beard

J Space News reports that last Wednesday the U.S. Air Force for the first time granted a religious accommodation under a January 2014 revised Department of Defense directive (see prior posting) to commission a bearded rabbi as a chaplain.  Rabbi Elie Estrin, director of a Chabad House at the University of Washington, was sworn in at McCord Air Force Base in Seattle.  In 2011 the Army commissioned a rabbi after litigation over whether he should receive an accommodation for wearing a beard. (See prior posting.)

Satanic Temple Will Seek To Hand Out Its Literature In Florida High Schools

As previously reported, once Orange County, Florida high schools allowed World Changers to distribute Bibles it had essentially created a limited public forum and felt compelled to allow Freedom From Religion Foundation to distribute at least some literature.  Now the next shoe is about to drop. Yesterday's Orlando Sentinel reports that a New York-based group, The Satanic Temple, plans to ask Orange County to allow it to hand out it literature to students so at least they will be exposed to a variety of religious opinions.  In particular it wants to hand out "The Satanic Children's Big Book of Activities" which, it says, gives students information on protecting themselves from corporal punishment at school. The Satanic Temple supports social justice causes and sees Satan as the "eternal rebel against the ultimate tyrant."

Settlement Reached In Presbyterian Church Property Dispute

Presbyterian News Service and The Christian Post reported last week that a settlement has been reached in a lawsuit (see prior posting) brought against Presbyterian Church USA by the Dallas, Highland Park Presbyterian Church. Highland Park, a megachurch, has voted to break away from PCUSA and affiliate with the more conservative Evangelical Covenant Order of Presbyterians.  The suit had been filed by Highland Park to determine ownership of church property. Under the settlement, Highland Park will pay $7.8 million (26% of its assets) to PCUSA to obtain a release of claims that the property belongs to PCUSA under it Book of Order trust clause and to obtain ecclesiastical dismissal.  The dollar amount was agreed on in court-facilitated mediation, and was based on the percentage of Highland Park members that have chosen to remain with PCUSA.

Complaint Filed With HHS Over California Requirement That Insurance Policies Cover Elective Abortions

Last week, seven employees of the religiously-affiliated Loyola Marymount University filed a complaint (full text) with the U.S. Department of Health and Human Services objecting to a decision by the California Department of Managed Health Care requiring all private health care plans in the state to cover elective abortions. The complaint contends that the state's decision depriving them of a plan that omits elective abortion coverage violates the Hyde-Weldon Conscience Protection Amendment (Sec. 507 of the 2014 Consolidated Appropriations Act). That provision prohibits states from discriminating against a health care entity because it does not provide abortion coverage. A press release announced the filing of the complaint by Life Legal Defense Foundation and Alliance Defending Freedom.

New EEOC Nominee Announced

Last week the White House announced that President Obama will nominate  Charlotte Burrows to fill a vacant position on the Equal Employment Opportunity Commission. Burrows is currently Associate Deputy Attorney General at the Department of Justice. Among her previous positions, she was staff counsel to the Senate Judiciary Committee.  The EEOC administers federal laws barring employment discrimination, including discrimination on the basis of religion.

Nigeria Bans Religious Gatherings To Stop Ebola Spread; Group Threatens Lawsuit

In Nigeria, Health Minister Onyebuchi Chukwu has banned religious gatherings as a way to prevent the spread of Ebola. However, according to a report from This Day Live yesterday, the Christian Professionals Association of Nigeria is threatening to sue over the ban if it is not lifted in 72 hours. The group says that while the government has banned Christian religious gatherings, the government has not stopped political rallies across the nation. It says that the religious ban violates freedom or worship, movement and assembly protected under Sections 38-41 of the 1999 Constitution Act (As Amended).

Recent Articles of Interest

From SSRN:

• Kathryn E. Kovacs, Hobby Lobby and the Zero-Sum Game, (92 Washington University Law Review, Forthcoming).
• Rostam J. Neuwirth, The Governance of Religion and Law: Insights from the Prohibition of Usury, (International Review of Law 2014(2)).
• Caleb Ayuba, Thou Shall Not Kill: An Interfaith Model in Peacebuilding, (August 26, 2014).
• Eric William Palfreyman, The Qu'Ran, Radical Islam, and the Possibility of a Moderate Exegesis, (August 26, 2014).
• Arif A. Jamal, Religious Authority and Constitutional Order: A Case Study of the Conciliation and Arbitration Boards (CABs) of the Shia Imami Ismaili Community, (Journal of Law, Religion & State 2 (2013) 235–249).
• Brian McCall, Entender Los Males Economómicos Modernos a La Luz De La Doctrina Social Cátolica (Understanding Modern Economic Woes in Light of Catholic Social Doctrine), (Verbo Vol. 52 Nos. 525-526 (2014): 487-509).
• Marc O. DeGirolami, Constitutional Contraction: Religion and the Roberts Court, (Stanford Law & Policy Review, Forthcoming).
• Ronen Perry & Tal Zarsky, 'May the Odds Be Ever in Your Favor': Lotteries in Law, (February 13, 2014).
• Engy Abdelkader, Animal Protection Theory in U.S. and Islamic Law: A Comparative Analysis with a Human Rights Twist, (UCLA Journal of Islamic and Near Eastern Law, 2015, Forthcoming).
• Jess R. Phelps, 'Scarcely a Vestige of Antiquity Remains': Evaluating the Role of Preservation Easements in Protecting Historic Religious Architecture, (Environmental Law Reporter, Vol. 44, No. 10808, 2014).

New York and Peoria Dioceses In Battle Over Body Of Archbishop Fulton J. Sheen

A high-profile dispute between the Catholic Archdiocese of Peoria, Illinois and New York's Archbishop Cardinal Timothy Dolan over the body of Archbishop Fulton J. Sheen is the focus of a New York Times report today. Sheen was a popular television personality in the 1950's.  Since his death in 1979, his body has been sealed in a crypt in New York's St. Patrick's Cathedral.  The Peoria Diocese has been pushing for sainthood for Sheen, and has elaborate plans for a shrine to house his tomb, but Dolan refuses to allow the body to be exhumed.  This has led to a halt in the movement toward canonization.  According to the Times:

The very public tug-of-war over the body of Archbishop Sheen, has shocked many Catholics, in part because it seems like something that belongs in another era.

 “We should have moved out of the 14th century by now,” said Joan Sheen Cunningham of Yonkers, a niece of the archbishop and, at 87, his oldest living relative. “I would have thought so.” She wants the body to remain where it is.

The dispute is unlikely to ever reach the courts because of the refusal of civil courts to intervene in religious matters.

Jewish Vote In New York City Is Becoming Increasingly Orthodox and Hasidic

Th New York Times reports today that the profile of Jewish voters in New York City area is changing. Within a generation, a majority of New York City's Jews will likely be Orthodox, and a large percentage of those will be Hasidim who often have very large families.  The traditional liberal voting patterns of New York Jews is thus becoming more conservative.  Hasidim often vote in blocks for candidates favored for pragmatic reasons by their sect's grand rabbi. Hasidim often seek more aid for their system of yeshivas (religious schools). Already Hasidic groups have successfully resisted enforcement of the City's new informed consent requirement for circumcisions using the oral suction method, as well as requirements for various secular courses to be offered in their private schools. Top city and state officials are hiring Orthodox or Hasidic political advisers.

Recent Prisoner Free Exercise Cases

In Johnson v. Brown, (11th Cir., Sept. 12, 2014), the 11th Circuit reversed an Alabama federal district court's dismissal at the screening stage of a complaint that Sunnah Muslim inmates' access to a classroom used as a Masjid for prayer was being limited, their prayer services were being interrupted or cancelled, Eid al-Adha was mishandled and plaintiff was not allowed to wear a kufi.

In Miller v. Lewright, 2014 U.S. Dist. LEXIS 124584 (ED CA, Sept. 5, 2014), a California federal magistrate judge dismissed with leave to amend a complaint by a Native American civil detainee that authorities refused to release to him a spiritual bead necklace that he had ordered from a private vendor.

In Utt v. Brown, 2014 U.S. Dist. LEXIS 122602 (ED NC, Sept. 3, 2014), a North Carolina federal district court permitted a Wiccan inmate to proceed with his complaint about a policy that tarot cards are only for personal use, confiscation of his homemade religious items, a prohibition on his practicing sacred Esbats and denial of corporate worship.

In Vigil v. Raemisch, 2014 U.S. Dist. LEXIS 124986 (D CO, Sept. 8, 2014), a Colorado federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 124985, Aug. 15, 2014), and dismissed a Native American inmate's complaint that he was not allowed to wear a Mohawk haircut.

In Henderson v. Hedgpeth, 2014 U.S. Dist. LEXIS 125315 (ND CA, Sept. 8, 2014), a California federal district court dismissed with partial leave to amend a Muslim inmate's complaint that authorities failed to provide Muslim prayer services or a full-time chaplain, have not purchased various Muslim religious items (Qurans, prayer rugs, oils, books), have not allowed group breaking of the Ramadan fast or allowed ordering of Halal food.

In Desmond v. Phelps, 2014 U.S. Dist. LEXIS 126428 (D DE, Sept. 10, 2014), a Delaware federal district court allowed a Jewish inmate to join in a suit by Sunni-Salafi and Catholic inmates raising issues regarding the practice of religion at a Delaware prison. The court denied a preliminary injunction relating to retaliation claims by one of the Catholic plaintiffs.

In Elmore v. Saunders, 2014 U.S. Dist. LEXIS 126978 (MD NC,Sept. 11, 2014), a North Carolina federal district court denied the free exercise claim of an inmate who alleged that he could not pray during four days in a close observation cell because he was handcuffed and denied water to cleanse himself.

In Cejas v. Myers, 2014 U.S. Dist. LEXIS 127008 (ED CA, Sept. 10, 2014), a California federal magistrate judge dismissed, with partial leave to amend, a Buddhist inmate's complaint that Buddhists were denied chapel time while on C-status, and failed to fill a vacant chaplain position.

In Walters v. Livingston, 2014 U.S. Dist. LEXIS 127630 (WD TX, Sept. 12, 2014), a Texas federal magistrate judge dismissed on various grounds claims by a Native American inmate (who now has been released after completing his sentence) that he was wrongly transferred to a non-Native American unit after he was disciplined and not provided accommodations to practice his faith there. Defendants' counterclaim for attorneys' fees was also dismissed.

"God" In Pledge and in Military Oath Challenged Anew By Humanist Group

Stars and Stripes reported earlier this week that the U.S. Air Force is seeking an opinion from the Defense Department's chief lawyer on whether an enlisted man who is an atheist can refuse to include the phrase "so help me God" in his re-enlistment oath. Among the armed services, only the Air Force has a policy that does not make inclusion of the phrase optional.  The American Humanist Association has threatened to sue on behalf of the airman, who is stationed at Creech Air Force Base in Nevada-- if the issue is not resolved next week.

Meanwhile last week the American Humanist Association launched a national campaign urging everyone to sit out the pledge of allegiance until the phrase "under God" is removed from it. The organization has created a website devoted to the campaign. The campaign yesterday released a letter it sent to New Town, North Dakota school officials complaining about a teacher's refusal to allow a first-grader to sit out the pledge.

3rd Circuit Upholds New Jersey's Ban On Reparative Therapy As Permissible Regulation of Professional Speech

Yesterday, the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges New Jersey's statute barring professional counselors from engaging in sexual orientation change therapy with minors. In King v. Governor of the State of New Jersey, (3rd Cir., Sept. 11, 2014), the court affirmed the district court's decision, while disagreeing with its 1st Amendment free expression analysis. Rejecting the district court's conclusion that talk therapy is not speech, the court instead concluded that it is "professional speech" which is subject to the same intermediate scrutiny as commercial speech.  Applying that test, the court found that the law directly advances New Jersey’s interest in protecting minors from harmful professional practices and is narrowly enough tailored to survive intermediate scrutiny.  The court rejected plaintiffs' free exercise challenge, finding that the law is neutral and generally applicable, and rejected plaintiffs' overbreadth challenge as well. Finally it agreed with the district court that plaintiffs lacked standing to bring suit on behalf of their minor clients. Bloomberg News reports on the decision. Liberty Counsel which represented plaintiffs announced that it would seek Supreme Court review.

University Tells Team To Remove Memorial Cross From Helmets

This season, the Arkansas State University football team decided to honor their recently murdered teammate and their former equipment manager who recently died in a car crash by wearing a Christian cross with the men's initials on it on their helmets. However, as reported yesteday by Fox News, University counsel told the team to remove the emblems after receiving a complaint that the team's wearing them violates the Establishment Clause. Counsel said that alternatively the players could change the Christian Cross to a "Plus sign" to eliminate the problem.

EEOC Sues Dunkin' Donuts Over Refusal To Hire Seventh Day Adventist

The EEOC yesterday filed a religious discrimination lawsuit against a Dunkin' Donuts franchise in Ashville, North Carolina. The company withdrew its offer to hire Darrell Littrell as a donut maker when he refused to begin work on Friday evening because of his Seventh Day Adventist feligious beliefs. The EEOC's announcement also indicated that the company was charged with failing to preserve required employment records.

9th Circuit: Ban On Soliciting At LAX Upheld Over Hare Krishna Challenge

In a case that slipped under my radar last month, the U.S. 9th Circuit Court of Appeals upheld a Los Angeles ordinance banning continuous or repetitive solicitation for the immediate receipt of funds at Los Angeles International Airport, rejecting a challenge to the ban by the Hare Krishna movement.  In International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles, (9th Cir., Aug. 20, 2014), a 3-judge panel of the 9th Circuit held that major international airports have a legitimate interest in controlling pedestrian congestion and reducing the risk of fraud and duress attendant to repetitive, in-person solicitation.

Legal Loopholes Allow Israeli Farmers To Avoid Sabbatical Year Strictures

JTA this week carries a report on the legal technicalities surrounding observance of the Biblical Sabbatical year for farmers in Israel.  With the coming of Rosh Hashanah (Jewish New Year) in late September, the Sabbatical year begins.  Various legal loopholes-- such as the fictional sale of farms to non-Jewish owners for a nominal amount for the year-- have been developed through the Chief Rabbinate and Religious Courts to allow Jewish farmers to avoid the complete shut-down of their farms that would flow from strict observance of the Biblical mandate.

California Univerisites De-Recognize InterVarsity Christian Fellowship

RNS reported this week that the California State University System is withdrawing official recognition  of the InterVarsity Christian Fellowship at its 23 campuses because the organization limits leadership roles to those who affirm belief in its traditional Christian Doctrinal Basis (full text). While membership in the group is open to any student, its limit on who may be leaders conflicts with the University System's non-discrimination policy. De-recognition means the group will lose it discount on use of meeting rooms, and will lose access to other official events such as student fairs. Christian Post reports that the group will  will now use other techniques, including social media, for recruitment.

New "Candy-Cane" Religious Message Case Filed

In what may be a reprise of nearly a decade of litigation out of Texas, a new "candy-cane" case has hit the courts, this time in California. The San Bernadino County Sun reported yesterday that Alex and Myrna Martinez, parents of a first grader (Isaiah), have filed a lawsuit against the West Covina Unified School district alleging that a Merced Elementary School teacher refused to allow their son to distribute Christmas candy canes with a story about Jesus attached. Allegedly the teacher tore the messages off the candy before allowing the student to distribute them, saying that Jesus is not allowed in school. The complaint claims that other students were allowed to distribute Christmas gifts. The school board says that the candy canes were being distributed during instructional time, which is prohibited by school rules. Advocates for Faith and Freedom, which sent a demand letter (full text) to school officials on behalf of the student, has posted more about the case. School board president Steve Cox says he is concerned that the district is being "set up" as a test case.

Philadephpia Schools Settle Religious Accommodation Suit With Justice Department

The Justice Department announced Monday that it has reached a settlement with the School District of Philadelphia in a Title VII religious accommodation lawsuit that it filed in March. (See prior posting.)  At issue is the school district's October 2010 policy change which barred a Muslim school police officer from wearing a beard longer than one-quarter inch. Under the settlement, the school district will adopt a revised appearance and attire policy for police officers that will allow them to apply for a religious accommodations. The school district will also pay damages to two employees, expunge disciplinary items from their files, and will train supervisors on religious accommodation issues.