Egyptian Court Acquits First Doctor Charged With Female Genital Mutilation

The Guardian on Thursday reported that the first doctor in Egypt to be brought to trial under a 2008 law on charges of female genital mutilation has been acquitted:

Raslan Fadl, a doctor and Islamic preacher in the village of Agga, northern Egypt, was acquitted of mutilating Sohair al-Bata’a in June 2013. The 12-year-old died during the alleged procedure, but Fadl was also acquitted of her manslaughter.

No reason was given by the judge, with the verdict being simply scrawled in a court ledger, rather than being announced in the Agga courtroom.

Sohair’s father, Mohamed al-Bata’a, was also acquitted of responsibility. Police and health officials testified that the child’s parents had admitted taking their daughter to Fadl’s clinic for the procedure.

Despite his acquittal, the doctor was ordered to pay 5,001 Egyptian pounds (about £450) to Sohair’s mother for her daughter’s manslaughter, after the pair reached an out-of-court settlement.

In rural areas, both Muslims and Christians support FGM, believing it reduces adultery. 91% of married Egyptian women have been subjected to the procedure.

Montana's Same-Sex Marriage Bans Falls; Becomes 34th State To Recognize Marriage Equality

On Wednesday, a Montana federal district court issued a permanent injunction barring Montana from enforcing statutory and constitutional provisions that prevent same-sex marriages or recognition of same-sex marriages performed in other jurisdictions.  The opinion in Rolando v. Fox, (D MT, Nov. 19, 2014), granting plaintiffs' motion for summary judgement on their equal protection claim, relies heavily on the 9th Circuit's decision last month striking down same-sex marriage bans in Idaho and Nevada. (See prior posting.) The Montana federal court's injunction, made effective immediately, makes Montana the 34th state to permit same-sex marriage.

AP reported today that in the Yellowstone County clerk's office in Billings, one deputy clerk has expressed religious objections, and three others have moral objections, to issuing same-sex marriage licenses. The County Human Relations Director, after consulting with the county attorney, has exempted the four, in part citing Title VII of the 1964 Civil Rights Act barring religious discrimination in employment.  Yellowstone County Clerk Kristie Lee Boelter is unhappy with the exemptions.  There are a total of 20 deputy clerks in the office.

Muslim's Religious Discrimination Claim Against NJ Transit Dismissed

In Allison v. New Jersey Transit Corp., 2014 U.S. Dist. LEXIS 162175 (D NJ, Nov. 19, 2014), a New Jersey federal district court dismissed a claim by an African American Muslim employee of New Jersey Transit that disciplinary action taken against him amounted to religious discrimination.  Individuals who filed complaints, investigated, prosecuted and adjudicated the disciplinary actions were unaware that plaintiff was a Muslim.

Zoning Denial Did Not Create Substantial Burden Under RLUIPA

In Andon, LLC v. City of Newport News, Virginia, (ED VA, Nov. 20, 2014, a Virginia federal district court dismissed a RLUIPA challenge to the city's refusal to grant a zoning variance to allow use of a leased building as a church.  The court held that while the landowner has standing, even though it did not engage in any religious activity, the denial of a variance does not impose a substantial burden on the religious exercise of the congregation that had entered an agreement to lease the building, subject to zoning approval.

Neo-Pagan Group Gets NY Property Tax Exemption

In In the Matter of Maetreum of Cybele, Magna Mater, Inc., v. McCoy. (NY Ct. App., Nov. 18, 2014), New York's highest court, in a brief opinion, affirmed the decision of an appellate court that a neo-Pagan group is entitled to a tax exemption for property in the Town of Catskill that includes a 12-bedroom house, a caretaker's cottage, several outbuildings and an outdoor temple. The Court of Appeals said:

The Appellate Division properly granted the petitions. Petitioner adequately established its entitlement to the RPTL 420-a exemption, as the proof at the trial established that petitioner "exclusively" utilized the property in furtherance of its religious and charitable purposes.

(See prior related posting.) Courthouse News Service reports on the decision.

Supreme Court Developments On Same-Sex Marriage

Yesterday the U.S. Supreme Court issued an Order (full text) in Wilson v. Condon denying a stay of a South Carolina federal district court's decision striking down South Carolina's ban on same-sex marriage. (See prior posting.) Justices Scalia and Thomas dissented from the denial of the stay. SCOTUSblog reports on developments.

Meanwhile, the state of Louisiana filed a petition for certiorari (full text) in Robicheaux v. George, seeking to bypass the 5th Circuit Court of Appeals and obtain Supreme Court review of a Louisiana federal district court decision that upheld Louisiana's ban on same-sex marriage. (See prior posting.) SCOTUSblog reports.

High Schooler Sues After He Is Suspended For Proselytizing

The Seattle Post Intelligencer reports on a federal lawsuit filed this week on behalf of an Everett, Washington high school student who was suspended three times for handing out Christian religious tracts at school and preaching to students using an amplifying device at a school-sponsored extracurricular event. Student Michael Leal claims religious discrimination. The school says that it took action because of the disruptive nature of the Leal's activity. Pacific Justice Institute announced the filing of the lawsuit.

9th Circuit Hears Oral Arguments In Conscience Challenge To Pharmacy Board Rules

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in Stormans, Inc. v. Weisman. (Audio of full oral arguments). In the case,  a Washington federal district court held unconstitutional the enforcement of rules of the Washington State Pharmacy Board that require pharmacies and pharmacists to dispense emergency contraception even when doing so violates a pharmacist's religious beliefs. (See prior posting.) The Oregonian reports on yesterday's oral arguments.

6th Circuit Hears Oral Arguments In Child Evangelism Fellowship Case

The U.S. 6th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Child Evangelism Fellowship v. Cleveland Metropolitan School District. At issue is the claim by Child Evangelism Fellowship that they were denied a fee waiver for use of school space, while a waiver (or in-kind arrangement) was granted to others. The federal district court for the Northern District of Ohio held in its Feb. 24, 2014 denial of a preliminary injunction (full text of decision): "Plaintiff cannot demonstrate that Defendant has a fee-waiver policy, and therefore cannot demonstrate Defendant operates such a policy in a discriminatory manner."

Suit Challenges Fort Lauderdale Restrictions On Feeding Homeless In Parks

Daily Business Review reports on a lawsuit filed Wednesday by Episcopal priest Rev. Mark Sims challenging a Fort Lauderdale, Florida ordinance that took effect on Nov. 1 imposing various requirements on organizations feeding the homeless in public parks. The suit claims the new law violates the federal and state constitutions as well as the Florida Religious Freedom Restoration Act. Sims and activist Arnold Abbott have been cited for violating the new law. According to the news report:

The highly publicized ordinance has been championed by Fort Lauderdale Mayor Jack Seiler and ridiculed by cable television political satirist Stephen Colbert of Comedy Central's "The Colbert Report." The most notable alleged violator is 90-year-old homeless activist Arnold Abbott.

The city bars "outdoor food distribution centers" within 500 feet of a residential property or other food distribution center and requires centers to provide restrooms, equipment for the disposal of water and wastewater, written consent of the property owner, food temperature controls and other conditions.

Apparently separately, 90-year old Abbott filed a motion to enforce an injunction issued in 2000 against an earlier Fort Lauderdale ordinance.

House Holds Hearings On Religious Accommodation In Military

Yesterday, the Military Personnel Subcommittee of the House Armed Services Committee held a hearing on Religious Accommodations in the Armed Services. The full texts of the prepared statements of five witnesses, plus statements submitted for the record by a member of Congress and ten advocacy organizations, are available at the Committee's website.

Ten North Carolina Magistrates Leave Over Performing Same-Sex Marriages

Time Warner News reported yesterday that in North Carolina, at least ten magistrates resigned or took early retirement last month because of their opposition to performing same-sex marriages. On Oct. 14, the North Carolina Administrative Office of the Courts ruled that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples. (See prior posting.) There are a total of 672 magistrates in the state.

Court Upholds College's Vaccination Requirement Over Free Exercise Challenge

In George v. Kankakee Community College, 2014 U.S. Dist. LEXIS 160737 (CD IL, Nov. 17, 2014), an Illinois federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 161379, Oct. 27, 2014) and dismissed a  paramedic student's claim that his free exercise and privacy rights were infringed when he was precluded from taking a clinical class required for his degree. Nicholas George was not permitted to enroll because he refused on religious grounds to comply with the vaccination requirements that were imposed by the hospital conducting the class.  The court held that the hospital's policy was generally applicable  and neutral. The court also remanded to state court plaintiff's state law claims.

Consent Injunction Issued In Church's RLUIPA "Equal Terms" Challenge

A Kansas federal district court last week issued a consent order (full text) granting a preliminary injunction barring Garden City, Kansas from enforcing its zoning code against a church that has been located in the city's central business district for ten years. The order in Mount Zion Church of God In Christ v. City of  Garden City, Kansas, (D KA, Nov. 14, 2014), comes in a RLUIPA challenge to provisions that fail to include churches as permitted uses in the area zoned as Central Business District.  The complaint (full text) in the case invokes RLUIPA's "equal terms" provision as well as the 14th Amendment.  In September the city told Mount Zion that it must stop using its location as a church after the city received a complaint from a citizen about another nearby church. RLUIPA Defense blog today reports on the case.

Monitor's Report Critical of Actions By Orthodox Jewish Majority On East Ramapo NY School Board

The New York Times reported yesterday that a state-appointed monitor has delivered a report to the New York State Board of Regents sharply critical of the East Ramapo (NY) School District board.  A majority of the East Ramapo Board's members are Orthodox Jews. In the district, Jewish yeshivas enroll around 24,000 students while the public schools enroll 9,000 students, predominately Black and Latino. Public school parents complain that the Board gives increasing financial aid to yeshivas, while cutting public school budgets. The special monitor, Hank Greenberg, essentially agreed, saying:

What I have found is that you have a board deeply influenced and informed by the community from which they’ve come — so concerned about the children of that community that it has blinded them to the needs of the entire community,

His report calls for more state funding, accompanied by a new law that would provide for a fiscal monitor with the power to overrule decisions of the school board and superintendent. East Ramapo school board president Yehuda Weismandel issued a statement (full text) responding to the monitor's report.

Air Force Amends Instruction On Religious Freedom and Accommodation

Last week, the U.S. Air Force announced that Air Force Instruction 1-1 on Air Force Culture has been updated as of Nov. 7 to clarify standards on free exercise of religion and religious accommodation. The amended Instruction (full text) strengthens free exercise and religious accommodation rights of military personnel, and weakens restrictions on proselytizing. The new amendments provide in part:

Every Airman also has the right to individual expressions of sincerely held beliefs, to include conscience, moral principles or religious beliefs, unless those expressions would have an adverse impact on military readiness, unit cohesion, good order, discipline, health and safety, or mission accomplishment.....

[Leaders] must ensure their words and actions cannot reasonably be construed to be officially endorsing or disapproving of, or extending preferential treatment for any faith, belief, or absence of belief.

Gone from the amended version is previous language providing that leaders "must avoid the actual or apparent use of their position to promote their personal religious beliefs to their subordinates."

The original version of the Instruction allowed religious accommodation requests to be denied on the basis of "military necessity."  The new amendments provide:

If it is necessary to deny free exercise of religion or an accommodation request, the decision must be based on the facts presented, must directly relate to the compelling government interest of military readiness, unit cohesion, good order, discipline, health and safety, or mission accomplishment, and must be by the least restrictive means necessary to avoid the cited adverse impact.

The amended Instruction also makes it clear that these guidelines on religious expression apply to communications on social media.

Military Association of Atheists & Freethinkers has an analysis of the amendments as well as a chart of the changes in language in the 2014 amendments.

Florida School District Proposing To Ban Distribution of All Religious Material

The Orange County, Florida Public Schools are giving up on their passive distribution policy that originally allowed Bibles to be distributed by World Changers in high schools, but then led to litigation over material critical of the Bible that Freedom From Religion Foundation sought to distribute. That was followed by a request from a New York-based Satanic Temple to distribute its materials under the school district's limited public forum policy. According to yesterday's Christian Post, the Florida school district is now proposing a rule change that will prohibit distribution of materials of a denominational, sectarian, religious, political or partisan nature. Pending requests to distribute material will be put on hold while the rule change is under consideration. Commenting on the proposal, school board chairman Bill Sublette said that the situation has gotten out of hand. "I think we've seen a group or groups take advantage of the open forum we've had," he said.

UPDATE: The Board adopted the proposed ban bya 7-1 vote on Feb. 10, 2015. (Orlando Sentinel).

New Lawsuit Challenges Nebraska's Ban On Same-Sex Marriage

A lawsuit was filed yesterday in federal district court in Nebraska by 7 couples challenging the constitutionality of Art. I, Sec. 29 of Nebraska's state constitution.  The provision prohibits same-sex couples from marrying and bars recognition of the marriages of same-sex couples performed in other jurisdictions. The complaint (full text) in Waters v. Heineman, (D NE, filed 11/17/2014) contends that the provision violates the due process and equal protection clauses of the 14th Amendment. ACLU announced the filing of the lawsuit. Sioux City Journal has additional background. In 2006, in Citizens for Equal Protection v. Bruning, the 8th Circuit upheld the Nebraska ban.

Suit Challenges Prayer and Bible Readings At School Board Meetings

The Freedom From Religion Foundation filed suit last week against a California school board challenging the practice of prayer and Bible readings at school board meetings.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, (CD CA, filed 11/13/2014), alleges:

The Chino Valley School Board ... begins each meeting with a prayer. Indeed the meetings resemble a church service more than a school board meeting, complete with Bible readings by the Board members, Bible quotations by Board members, and other statements by Board members promoting the Christian religion.

The suit contends that the school board's practices violate both the federal and California constitutions. Friendly Atheist blog reports on the lawsuit.

Pope Francis Confirms Planned September U.S. Visit

The New York Times, Vatican Radio and other media reported yesterday that Pope Francis has confirmed that he will make his first Papal Visit to the United States in September to attend the World Meeting of Families in Philadelphia. No other stops in the U.S. have been confirmed, but the Vatican's United Nations representative says the trip will also include a visit to New York. The Pope announced his visit while speaking in Rome at a Colloquium on Complementarity of Man and Woman sponsored by the Congregation for the Doctrine of the Faith.  The U.S. trip is hardly a surprise since, as previously reported, last July Philadelphia Archbishop Chaput confirmed it.

Group Launches Annual "Friend or Foe Christmas" Campaign

Liberty Counsel announced yesterday that it is launching its 12th annual "Friend or Foe Christmas Campaign." The campaign treats as a "foe" of Christmas businesses or governmental entities that use terms other than "Christmas" in promoting the holiday season.  Liberty Counsel publishes a "Naughty or Nice List" of retailers that either use the term "Christmas" or refused to do so. The group also has placed on its website a legal memo on religious displays and celebrations in schools and governmental offices. A second legal memo focuses on religious expression rights of employees of private businesses.

Church of Brethren Has No Right To Property of Break-Away Congregation

In Church of the Brethren v. Roann Church of the Brethren, Inc., (IN App., Nov. 17, 2014), an Indiana appeals court held that a break-away Church of the Brethren congregation had not placed its property into an irrevocable trust, express or implied, for the benefit of the Denomination.  Applying the neutral-principles-of-law approach, the court reviewed the Denomination's Organization and Polity Manual, the underlying deeds and the congregational constitution to affirm the trial court's holding that the church property remains with the congregation. [Thanks to Michael E. DiRienzo for the lead.]

Nuns Volunteering For Red Cross Were Not "Employees" Under Title VII

In Marie v. American Red Cross, (6th Cir., Nov. 14, 2014), the U.S. 6th Circuit Court of Appeals rejected Title VII as well as 1st and 14th Amendment claims by two Catholic nuns who were dismissed from their long-time volunteer positions as disaster relief workers for the American Red Cross and the Ross County (Ohio) Emergency Management Agency.  The court rejected plaintiffs' Title VII religious discrimination claims because "their volunteer relationship does not fairly approximate employment and is not covered by Title VII."

The court also concluded that plaintiffs had not produced evidence to support their 1st Amendment claim that they were terminated in retaliation for expressing their traditional Catholic beliefs and wearing traditional habits, rosaries, and crosses. Nor did they show disparate treatment in violation of their equal protection rights. In addition, the court found that neither the American Red Cross nor its district executive director were engaged in "state action."

Recent Articles of Interest

From SSRN:

• B. Jessie Hill, Ties that Bind? The Questionable Consent Justification for Hosanna-Tabor, (109 Northwestern University Law Review Online (Forthcoming)).
• Elizabeth Sepper, Gendering Corporate Conscience, (Harvard Journal of Law and Gender, Vol. 39 (in Harvard Law School Symposium, Religious Accommodation in the Age of Civil Rights) (Forthcoming 2014).
• Elizabeth Sepper, Reports of Accommodation's Death Have Been Greatly Exaggerated, (128 Harvard Law Review Forum 24 (2014)).
• Mohammad Rubaiyat Rahman, Freedom of Religion and Human Rights: South Asia Perspective, (ELCOP Yearbook of Human Rights 2014, pp. 80-90).
• Daiwood I. Ahmed & Moamen Gouda, Measuring Constitutional Islamization: The Islamic Constitutions Index, (Hastings International and Comparative Law Review, Forthcoming).
• Sean-Tamba Matthew, Kids and the Keystone Constitutional Conundrum: Can Pennsylvania Institute a School Voucher Program to Rescue Children from Underperforming Schools?, (Widener Law Review, Vol. 20, No. 139, 2014).
• Lorenzo Zucca, A Secular Globe? The Place of Freedom of Religion in the Westphalian World Order, (Lorenzo Zucca, Religious Rights, Ashgate 2015).
• Ashutosh Avinash Bhagwat, Reed v. Town of Gilbert: Signs of (Dis)Content?, (NYU Journal of Law & Liberty, Forthcoming).

From SmartCILP:

• Michael J. Broyde, Ira Bedzow & Shlomo C. Pill, The Pillars of Successful Religious Arbitration: Models for American Islamic Arbitration Based On the Beth Din of America and Muslim Arbitration Tribunal Experience, 30 Harvard Journal of Racial & Ethnic Justice 33-76 (2014).
• Maryam S. Khan, Ethnic Federalism In Pakistan: Federal Design, Construction of Ethno-Linguistic Identity & Group Conflict, 30 Harvard Journal of Racial & Ethnic Justice 77-129 (2014).

In Iraq, Excessive Official Holidays Lead To Educational and Governmental Concerns

Al Monitor reports today that in Iraq, educational achievement and productivity in government, sevices and contruction sectors are being adversely affected by the excessive number of officially recognized religious and ethnic holidays. The political system leads to governmenmt recognition of the holidays of each of the many religious and ethnic group in the country.  Iraq recognizes 150 official vacation days under a law passed by Parliament last year.

Recent Prisoner Free Exercise Cases

In Glenn v. Liebel, 2014 U.S. Dist. LEXIS 158195 (SD IN, Nov. 10, 2014), an Indiana federal district court allowed an inmate to proceed with his complaint that his Eastern Orthodox religion has not been included in the prison system's Handbook of Religious Belief and Practices, and that he has been denied access to Eastern Orthodox religious services and various religious items.

In Muhammad v. Jenkins, 2014 U.S. Dist. LEXIS 158481 (SD NY, Nov. 4, 2014), a New York federal district court rejected claims for injunctive relief but set for trial the damage action by plaintiff who claimed that the denial of a change in his parole curfew restrictions were motivated by religious hostility and prevented him from attending his Nation of Islam mosque.

In Guillory v. Jones County Jail, 2014 U.S. Dist. LEXIS 159159 (SD MS, Nov. 12, 2014), a Mississippi federal district court permitted a Muslim pre-trial detainee's claim that he was prevented from performing daily prayers because of cell overcrowding and was not given special Ramadan meals, a prayer rug or religious hat to proceed only against the sheriff in his official capacity.

In Hunter v. Corrections Corporation of America, 2014 U.S. Dist. LEXIS 159739 (SD GA, Nov. 13, 2014), a Georgia federal magistrate judge permitted a Muslim inmate to move ahead with his claims under RLUIPA and the Establishment Clause that he enrolled in a faith-based program when a bottom bunk became available and he was told that he could teach Islam there, but instead he was forced to attend group sessions promoting Christianity 13 times per week.

Obama Urges Equality For Religious Minorities In Burma

In Burma yesterday, President Obama held a joint news conference (full text) with opposition politician Daw Aung San Suu Kyi. Asked about his discussions with the Burmese President and political leaders on constitutional change, President Obama said in part:

I indicated that we are paying attention to how religious minorities are treated in this country.  Now, I recognize the complexities of the situation in Rakhine state.  On the other hand, consistent with what Daw Suu just said, I am a firm believer that any legitimate government has to be based on rule of law and a recognition that all people are equal under the law.  And discrimination against the Rohingya or any other religious minority I think does not express the kind of country that Burma over the long term wants to be.  And I know of no successful democracy in which sectarian or religious divisions are allowed to fester, or the people of different faiths are treated as second-class citizens.  Ultimately, that is destabilizing to a democracy.

Cert. Petitions Begin To Be Filed In 6th Circuit Same-Sex Marriage Cases

Plaintiffs who lost in the 6th Circuit last week in their challenges to same-sex marriage restrictions in four states (see prior posting) are seeking Supreme Court review rather than an en banc rehearing by the full 6th Circuit. Petitions for certiorari were filed on Friday in:

• Henry v. Hodges (Ohio) (full text of petition)
• Tanco v. Haslem (Tennessee) (full text of petition)

Detroit Free Press says a petition is expected Monday in DeBoer v. Snyder  (Michigan). A petition will also be filed in the near future in Love v. Beshear (Kentucky). (HRC Blog).

DC Circuit Upholds ACA Contraceptive Compromise For Religious Non-Profits

The U.S. Court of Appeals for the D.C. Circuit today upheld the Obama administration's accommodation for religious non-profits that object to directly furnishing contraceptive coverage in their health insurance plans as required by regulations under the Affordable Care Act.  In Priests for LIfe v. U.S. Department of Health and Human Services, (DC Cir., Nov. 14, 2014), the unanimous 3-judge panel in an 86-page opinion written by Judge Cornelia Pillard said in part:

The regulatory opt out works simply: A religious organization that objects on religious grounds to including coverage for contraception in its health plan may so inform either the entity that issues or administers its group health plan or the Department of Health and Human Services. Delivery of the requisite notice extinguishes the religious organization’s obligation to contract, arrange, pay, or refer for any coverage that includes contraception. The regulations then require group health plan insurers or administrators to offer separate coverage for contraceptive services directly to insured women who want them, and to inform beneficiaries that the objecting employer has no role in facilitating that coverage....

We conclude that the challenged regulations do not impose a substantial burden on Plaintiffs’ religious exercise under RFRA. All Plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state. Religious nonprofits that opt out are excused from playing any role in the provision of contraceptive services, and they remain free to condemn contraception in the clearest terms. The ACA shifts to health insurers and administrators the obligation to pay for and provide contraceptive coverage for insured persons who would otherwise lose it as a result of the religious accommodation.

Even if, as Plaintiffs aver, we must take as dispositive their conviction that the accommodation involves them in providing contraception in a manner that substantially burdens their religious exercise, we would sustain the challenged regulations. A confluence of compelling interests supports maintaining seamless application of contraceptive coverage to insured individuals even as Plaintiffs are excused from providing it. That coverage offers adults and children the benefits of planning for healthy births and avoiding unwanted pregnancy, and it promotes preventive care that is as responsive to women’s health needs as it is to men’s. The accommodation requires as little as it can from the objectors while still serving the government’s compelling interests. Because the regulatory opt-out mechanism is the least restrictive means to serve compelling governmental interests, it is fully consistent with Plaintiffs’ rights under RFRA. We also find no merit in Plaintiffs’ additional claims under the Constitution and the Administrative Procedure Act.

Christian Science Monitor reports on the decision.

Court Will Not Decide Validity of Vote In Challenge By Excommunicated Members of Buddhist Temple

In Matter of Ming Tung v China Buddhist Association, (NY App., Nov. 13, 2013), a New York state intermediate appeals court, in a 4-1 decision, refused to order a Buddhist Temple to hold a membership meeting with a receiver determining those eligible to vote. The dissent described the facts as follows:

Respondent Mew Fung Chen (Master Chen) excommunicated not only the three petitioners but a total of 517 members, representing all the congregants of the Manhattan chapter of the CBA and a majority of the CBA's members, 10 days before the special meeting called by the two unauthorized trustees appointed by Master Chen. Thus, he deprived the Manhattan congregants of their right to vote on the agenda of the meeting which, in effect, resulted in the transfer of control of all properties and assets of the CBA to Master Chen. Only 110 members of the Queens faction of the CBA, all supporters of Master Chen, were given notice of the special meeting. 

The majority held, however:

At first blush the petition appears to present a straightforward issue of corporate governance, specifically whether various corporate actions, including a meeting held in May 2011, were improperly taken, thereby depriving petitioners of their right to participate in those events.... We hold, however, that because petitioners are not members of the CBA based upon Master Chen's excommunication of them, they cannot challenge these corporate actions.... Petitioners contend that their excommunication was completely motivated by Master Chen's desire to squelch the simmering underlying dispute over ownership of real property in Manhattan and Queens where the CBA owns temples. Even where the parties' dispute concerns control of church property, the court will not intervene in matters that are predominantly religious disagreements...

Reuters reports on the decision.

Suit Challenges Vote Counting On Tennessee Pro-Life Amendment

Tennessee voters this month voted on a proposed state constitutional amendment providing:

Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.

In preliminary results, state election officials reported that the measure passed 728,751 in favor and 656,427 opposed.  However, the Memphis Flyer reports that in an attempt to prevent the measure from taking effect, a group of pro-choice voters have filed suit in federal district court challenging the state's vote-counting procedure.

Tennessee Constitution, Art. XI, Sec. 3, provides that amendments need to be approved "by a majority of all the citizens of the state voting for governor, voting in their favor."  Plaintiffs claim that this is more than a requirement for a certain number of total votes.  They say election officials must actually match ballots and count only votes from voters who also voted for Governor. Supporters of the ballot measure this year had urged their backers to vote for the Amendment, but not vote for governor, in order to magnify the effect of their vote.  Apparently many did this because some 32,500 more votes in total were cast for or against the amendment that in the governor's race.

7th Circuit: Challenge To Parsonage Allowance Dismissed For Lack of Standing

In Freedom From Religion Foundation v. Lew, (7th Cir., Nov. 13, 2014), the U.S. 7th Circuit Court of Appeals dismissed for lack of standing an Establishment Clause challenge to the constitutionality of the federal tax code's parsonage allowance for clergy.  The co-presidents of FFRF, and organization of atheists and agnostics, received part of their salaries as a housing allowance, but they never sought to exclude the income on their federal income tax returns and did not file a claim for a tax refund. Therefore the IRS and the Tax Court never had a chance to interpret the scope of the exemption. According to the court:

A person suffers no judicially cognizable injury merely because others receive a tax benefit that is conditioned on allegedly unconstitutional criteria, even if that person is otherwise “similarly situated” to those who do receive the benefit. Only a person that has been denied such a benefit can be deemed to have suffered a cognizable injury.

Courthouse News Service reports on the decision. [Thanks to Steveh H. Sholk and To Rutledge for the lead.]

District Court Strikes Down South Carolina Same-Sex Marriage Ban; 8-Day Stay Granted

In Condon v. Haley, (D SC, Nov. 12, 2014), a South Carolina federal district court struck down South Carolina's ban on same-sex marriage. The court held that the 4th Circuit's decision in Bostic v. Schaefer striking down a similar ban in Virginia is controlling. However the court granted a stay until Nov. 20 to allow the state to seek a stay pending appeal from the 4th Circuit. The State reports that South Carolina Attorney General Alan Wilson says he will appeal to the 4th Circuit.

Religious Conservatives Oppose Proposal To Ban Transgender Discrimination

The Miami Herald reports that yesterday a Committee of the Miami Dade County (Florida) Commission by a vote of 3-1 approved a proposed Ordinance (full text) that would ban discrimination based on gender identity or gender expression in public accommodations, employment and housing. The Committee's 4-hour public hearing on the proposal was filled with testimony from religious conservatives opposing the proposal:

Raw emotion and invocations of biblical damnation over a proposed ban on discrimination against transgender people dominated Wednesday what was perhaps the fiercest debate Miami-Dade County Hall has seen this year.

Advocates of a more inclusive society, including transgender men and women who spoke of how difficult it can be to find public acceptance, were outnumbered by conservatives who, in a show of force, assailed the legislation as immoral and a threat to public safety. Two likened South Florida to Sodom and Gomorrah.

Sikh Student Sues For Accommodation To Enlist In ROTC

The ACLU yesterday announced the filing of a lawsuit on behalf of a Sikh college student who was refused a religious accommodation to permit him to enlist in the ROTC program at Hofstra University.  The complaint (full text) in Singh v. McHugh, (D DC, Nov. 12, 2014), contends that plaintiff's rights under the Religious Freedom Restoration Act were violated:

As a practicing Sikh, Mr. Singh’s religious beliefs require him to maintain long hair and wear a turban and beard. Defendants have refused to allow Mr. Singh to enlist in ROTC unless he agrees to abandon these practices upon enrolling as a Cadet. Specifically, Defendants will not allow Mr. Singh to enlist in ROTC unless he agrees to follow all Army grooming and uniform regulations, which would require him to cut his hair, remove his turban, and shave off his beard.

Singh, who is fluent in Punjabi, Hindi, and Urdu, wants to become a military intelligence officer. The military says it will not consider Singh's request for an accommodation until he formally enlists and complies with the grooming and uniform regulations.

Supreme Court Lifts Stay On Same-Sex Marriages In Kansas

The U.S. Supreme Court issued an order (full text) late afternoon today vacating the temporary stay initially granted by Justice Sotomayor in Moser v. Marie.  Justices Thomas and Scalia dissented indicating they would grant the stay.  The Court's action gives effect to a preliminary injunction against Kansas' same-sex marriage ban that was issued by a federal district court last week. (See prior posting.) Washington Post reports on the Supreme Court's action. [Thanks to Tom Rutledge for the lead.]

Army Studying Religious Requirement for ROTC Prof At Christian College

Fox News reported yesterday that the U.S. Army is conducting a review of its ROTC policies after a queston was raised as to whether Wheaton College, a Christian school, can require that its lead professor of military science be of the Christian faith. The Military Religious Freedom Foundation, which complained to the Army, contends that the Army cannot impose a religious test for an assignment.

Pope Francis Creates New Judicial Body To Speed Up Sex Abuse Claims

Religion News Service and Vatican Radio report that Pope Francis has created a new 7-member judicial body within the Congregation for the Doctrine of the Faith to speed up the handling of complaints against priests alleging sexual abuse of minors.  The new body will deal with cases initially screened by local bishops. It will also deal with serious abuses of the Sacrament of Penance.  Complaints against bishops will continue to be handled by the full Congregation for the Doctrine of the Faith. The full text of the Pope's rescript which came into force yesterday is available in Italian.

Suit Challenges Ban On Prayer Group During High School Free Period

A Christian high school student filed suit last week against a Colorado Springs high school claiming that his 1st and 14th Amendment rights were infringed by a school policy that allowed students to congregate informally for a variety of activities during certain home room periods, but barred students meeting for purposes of prayer, religious songs and religious discussion.  Religious activities were allowed only before and after school.  The complaint (full text) in Windebank v. Academy School District #20, (D CO, filed 11/7/2014), seeks an injunction, attorneys' fees and nominal damages.  An ADF press release announced the filing of the lawsuit.

International Parliamentary Group Promoting Religious Freedom Is Formed

According to a press release from the U.S. Commission on International Religious Freedom, on November 8 in Oslo, Norway, the International Panel of Parliamentarians for Freedom of Religion or Belief was formally launched. Thirty Parliamentarians from 18 countries signed a Charter for Freedom of Religion or Belief,

Suit Challenges Old Amendments to United Effort Plan Trust

The Salt Lake Tribune reported yesterday on a lawsuit filed in Utah state court in September, but which has so far gone largely unnoticed. Some 33 plaintiffs-- some one-time FLDS Church leaders-- are asking the court to invalidate 1998 amendments to the United Effort Plan Trust (UEP) that holds property of residents in the twin towns of Hilldale, Utah and Colorado City, Arizona.  They seek to invalidate amendments that effectively gave control of the trust to FLDS Church leader Warren Jeffs. Those amendments made FLDS membership a condition of being a trust beneficiary, and led to the eviction from their homes of non-members. Attorneys for UEP have asked the court to consolidate the case with the ongoing Probate Court proceedings which are revising the terms of the Trust.

Kansas Same-Sex Marriage Ruling Generates Flurry of Appeals

The issuance by a Kansas federal district court on Nov. 5 in Marie v. Moser of a preliminary injunction against Kansas' ban on same-sex marriages has generated a flurry of appeals. That preliminary injunction was to take effect today. (See prior posting.)

On Nov. 6, Kansas filed an emergency motion with the 10th Circuit to stay the district court's injunction to give Kansas time to seek an initial appeal to the 10th Circuit en banc.  Three-judge panels of the 10th Circuit have already ruled against same-sex marriage bans in Utah and Oklahoma. (Kansas AG's statement.)  On Nov. 7, the 10th Circuit denied the motion for a stay. Yesterday, Kansas filed a stay application (full text) with U.S. Supreme Court Justice Sonia Sotomayor, and Justice Sotomayor issued an order (full text) staying the preliminary injunction until today and ordering plaintiffs to file a response by this afternoon.

Meanwhile, in a Nov. 7 opinion (full text), the district court denied the motion by Westboro Baptist Church to intervene in the appeal so that it can raise religiously-based arguments against same-sex marriage. (See prior posting.) WBC immediately filed a Notice of Appeal with the 10th Circuit. Yesterday's Topeka Capital-Journal reports on developments.

Los Angeles Monsignor Cleared of Abuse Charges In Canon Law Trial

In a press release issued last Saturday, the Catholic Archdiocese of Los Angeles announced that after ten years of investigation and a Canon Law trial, Monsignor Richard Loomis has been cleared of sexual abuse charges. AP reports that Loomis has been on inactive leave since charges against him surfaced in 2003.  The attorney for the alleged victim (who long ago filed a civil suit) says that the molestation occurred between 1968 and 1971 when Loomis was a teacher at a Catholic high school and had not taken his final vows. Apparently the alleged victim was never contacted in the church investigation.

Man Charged With Criminal Mischief For Placing Protest Stickers On Courthouse Church Directory

The Athens (Ohio) News reports that a pre-trial is scheduled today on criminal mischief charges against 69-year old Eliot Kalman who plastered over a framed glass Church Directory on the Athens (Ohio) County courthouse with stickers. Kalman placed a sticker advocating church-state separation on the glass of the directory that lists some 40 local churches. He has been in communication with the county since 2011 objecting to the Directory which is maintained by the Athens County Ministerial Association. The Directory was first put up in the 1940's by the Athens Christian Education Committee. The directory includes two non-Christian religious groups.

Israeli Rabbis Debate Jewish Prayer On Temple Mount

Today's Jerusalem Post reports on the halachic (Jewish religious law) dispute between haredi and national religious rabbis in Israel over whether it is permissible for Jews to visit the Temple Mount, now the location of Muslim holy sites.  The issue has taken on new urgency since the attempted assassination last month of Rabbi Yehudah Glick, leader of the Temple Mount Heritage Foundation that promotes the right of Jews to pray on the Mount in preparation for restoring of a third Jewish Temple there. (Background). In recent weeks there have been increased clashes between Arab demonstrators and police in Jerusalem. (Background).

USCIRF Issues Report On Burma As Obama Visit Approaches

In advance of President Obama's trip to Burma (Myanmar) later this week, the U.S. Commission on International Religious Freedom issued a report titled Burma: Religious Freedom and Related Human Rights Violations are Hindering Broader Reforms.  In a Nov. 6 press release summarizing the Report, USCIRF said in part:

USCIRF focused on four key issues in its mission: discrimination and horrible abuses against Rohingya Muslims; broader patterns of intolerance against Muslims driven by bigotry and chauvinism among religious and political figures that also impact all other minority religious communities in Burma; laws, policies and proposed legislation that entrench multiple forms of discrimination; and deprivation of citizenship to Rohingya Muslims and prejudicial practices in the issuance of identification documents to all Muslims.

Recent Articles of Interest

From SSRN:

• John Witte, Religion, (Dinah Shelton, ed., "The Oxford Handbook of International Human Rights Law" (New York/Oxford: Oxford University Press, 2014): 9-31 (with M. Christian Green)).
• William M. Janssen, Led Blindly: One Circuit's Struggle to Faithfully Apply the U.S. Supreme Court's Religious Symbols Constitutional Analysis, (West Virginia Law Review, Vol. 116, p. 33, 2013).
• William M. Janssen, Toiling in the Lemon Groves: Prelude to the Endorsement Test, (Charleston Law Review, Vol. 7, p. 691, 2013).
• C.G. Bateman, Method and Metaphysics: A Legal Historian's Canon, (The Journal Jurisprudence, Volume 23, pp. 255-312, September 2014).
• Edward A. Morse, Health Accounts/Arrangements: An Expanding Role Under the Affordable Care Act?, (NYU Review of Employee Benefits, 2014).
• Lorenzo Zucca, A Genealogy of State Sovereignty, (Theoretical Inquiries in Law, Forthcoming).
• Pnina Lahav, Current Challenges: Gender and New Forms of Political Activism, (Boston Univ. School of Law, Public Law Research Paper No. 14-71, 2014).
• Eliaabeth Wicks, Dying with Conscience: The Potential Application of Article 9 ECHR to Assisted Dying, (University of Leicester School of Law Research Paper No. 14-26, 2014).
• Law and ChristianityNathan B. Oman, Need for a Law of Church and Market, (Duke Law Journal Online, Forthcoming).
• Richard Delgado & Jean Stefancic, Hate Speech in Cyberspace, (Wake Forest Law Review, Vol. 49, 2014).
• Angela Cameron, Angela Chaisson & Jena McGill, The Law Society of Upper Canada Must Not Accredit Trinity Western University's Law School, (October 22, 2014.
• John Witte & Christopher Manzer, A Prequel to Law and Revolution: A Long Lost Manuscript of Harold J. Berman Comes to Light, (Journal of Law and Religion, Vol. 29 (2014) 142-169).

Fom SSRN: Law and Christianity

• John Witte, From Gospel to Law: The Lutheran Reformation and Its Impact on Legal Culture, (Mark A. Noll and Tal Howard, eds., Protestantism? Reflections in Advance of the 500th Anniversary of the Protestant Reformation, 1517-2017, Forthcoming).
• John Witte, John & M. Christian Green, Freedom, Persecution, and the Status of Christian Minorities, (Blackwell Companion to World Christianity, Basil Blackwell, 2014, Forthcoming).
• John Witte, Sex and Marriage in the Protestant Tradition: 1500-1900, (Adrian Thatcher, ed., Oxford Handbook on Theology, Sexuality, and Gender (Oxford: Oxford University Press, 2014), Forthcoming).

From SSRN: Law and the Mormon Church

• Cheryl B. Preston, 'The Spiritual Concept of Form and Function as One': Structure, Doctrine, and The Church of Jesus Christ of Latter-Day Saints, (53(3) BYU Studies Quarterly 37-76 (2014)).
• Nathan B. Oman, Doux Commerce in the City of God: Trade and the Mormon Ideal of Zion, William & Mary Law School Research Paper No. 09-289 (2014)).

Recent Prisoner Free Exercise Cases

In Hall v. Sutton, 2014 U.S. App. LEXIS 21073 (7th Cir., Nov. 5, 2014), the 7th Circuit affirmed the district court's grant of qualified immunity in a challenge to a prison's two-meal practice during Ramadan and its delay of the Eid-ul-Fitr celebration.

In May v. Snaza, 2014 U.S. Dist. LEXIS 156088 (WD WA, Nov. 4, 2014), a Washington federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 156027, Oct. 8, 2014) and dismissed without prejudice a Muslim inmate's claim that his transfer to a different jail violated his free exercise rights because he was then denied Ramadan meals, Jumu'ah prayer services, and an Islamic leader and literature, and had a delay in being placed on a vegetarian diet.

In Ajala v. West, 2014 U.S. Dist. LEXIS 156618 (WD WI, Nov. 4, 2014), a Wisconsin federal district court dismissed Muslim inmates' claims that prison authorities refused to accommodate their Ramadan fast and have a special meal for Eid al-Fitr. Plaintiffs though were permitted to file additional material on their claim that their 2012 Ramadan request was refused.

7th Circuit Upholds Northwestern University's Cut-Off of Chabad House

In Lubavitch-Chabad of Illinois, Inc. v. Northwestern University, (7th Cir., Nov. 6, 2014), the U.S. 7th Circuit Court of Appeals rejected a claim by Chabad House Rabbi Dov Hillel Klein at Northwestern University that his rights under 42 USC Sec. 1981 were violated when the University ended its affiliation with Chabad House because of underage student drinking there. Section 1981 bars racial discrimination in making or enforcing contracts. The disaffiliation resulted in non-renewal of the rabbi's contract to supervise kosher food supplied to Northwestern. The court concluded:

[T]he only discrimination ... alleged is that the university staff did not take the same measures against student organizations that it did against the Chabad house, even though, as is well known, excessive (and underage) drinking is common in such organizations, notably fraternities. But unlike Chabad houses, fraternities are not managed by adults and are components of the university rather than separate entities merely affiliated with it. And the fraternity drinking incidents to which Klein refers occurred before the current vice president of student affairs assumed office, so leniency regarding such drinking was the policy of a different decision‐maker.

Settlement Reached In Case of Sikh IRS Employee's Wearing of Kirpan

A settlement has been reached in the case of a Sikh employee of the Internal Revenue Service who lost her job after she insisted on wearing her kirpan into her federal office building. As reported this week by the Houston Chronicle and in a Becket Fund press release, the settlement was reached shortly after the trial of RFRA claims began in the case that was on remand from the 5th Circuit. (See prior posting.) Under the settlement, plaintiff Kawaljeet Tagore's firing is expunged from her record. She may not seek re-employment with the IRS, but may apply to other federal agencies.  She is allowed to enter federal buildings with her kirpan for a period of three years. Finally she is awarded $400,000 for lawyers' fees and expenses.

Challenge To Tennessee Limittions On LGBT Protections Dismissed On Standing and Mootness Grounds

In Howe v. Haslam, (TN App, Nov. 4, 2014) (Farmer, J opinion for court)  (Stafford, J concurring) (McBrayer, J concurring in part), the Tennessee Court of Appeals dismissed on a combination of mootness and standing grounds a challenge to Tennessee statutes that effectively prevent local governments from enacting civil rights protections to ban discrimination on the basis of sexual orientation or gender identity.  At issue are provisions of state law that amend Tennessee's state anti-discrimination law to define "sex" to mean the designation of male or female on one’s birth certificate, and then generally prohibit local governments from imposing anti-discrimination standards that deviate from those in state law.

Humanist Sues Navy Over Rejection of His Chaplaincy Application

Stars and Stripes reported yesterday that a lawsuit has been filed in federal district court for the Northern District of Virginia by a religion scholar and former youth minister whose application to become the Navy's first Humanist chaplain was turned down.  Plaintiff Jason Heap, who filed suit along with the Humanist Society, claims that political opposition to a Humanist as a chaplain derailed his application. (See prior related posting.) He contends that he holds his Humanist beliefs with the same strength and sincerity as believers in traditional religions hold theirs.  He says that his rejection violated his constitutional rights and asks the court to order his instatement as a Navy Chaplain. The suit names various Navy and Defense officials as defendants. Last week in an unrelated case, an Oregon federal district court held that Humanism is a religion for Establishment Clause purposes. (See prior posting.)

NYT Surveys Increasing Persecution of Rohingya By Myanmar

The New York Times in a lengthy article posted yesterday surveys the increasing persecution of the Rohingya Muslims by the government of Myanmar. Here is an excerpt:

The Myanmar government has given the estimated one million Rohingya people in this coastal region of the country a dispiriting choice: Prove your family has lived here for more than 60 years and qualify for second-class citizenship, or be placed in camps and face deportation.

The policy, accompanied by a wave of decrees and legislation, has made life for the Rohingya, a long-persecuted Muslim minority, ever more desperate, spurring the biggest flow of Rohingya refugees since a major exodus two years ago.

Malaysian Court Strikes Down Law Restricting Transgender Rights

BBC News reports today that a 3-judge appeals court panel in the Malaysian state of  Negeri Sembilan has struck down a state law barring Muslim men from wearing women's clothing. The appeal was brought by three transgender women who, a lower court had ruled, were required to wear men's clothing because they were born as males. In what is seen as a major victory for transgender rights, the court ruled that the law is "degrading, oppressive and inhumane."

Court Rejects Free Exercise and Establishment Clause Challenges To California's Reparative Therapy Ban

In Welch v. Brown, (ED CA, Nov. 5, 2014), a California federal district rejected Free Exercise and Establishment Clause challenges to California's ban on mental health professionals providing "sexual orientation change efforts" (SOCE) for minors.  The decision follows on the 9th Circuit's rejection of a free speech challenge to the law.  At issue was a claim by a licensed therapist who was also an ordained minister. The court held that the SOCE ban is a neutral law of general applicability, so that only rational basis review need be applied, saying:

the Legislature was concerned with the harm SOCE therapy causes minors regardless of whether it is motivated by secular or religious beliefs.

The court also rejected the argument that the law creates excessive entanglement with religion:

even if a mental health provider's use of SOCE relies on church doctrines or teachings, the state need not evaluate or consider those religious teachings in order to determine whether the provider performed SOCE.

Finally the court rejected privacy challenges to the law.

White House Aide Will Be New ADL National Director

The Anti-Defamation League announced yesterday that its new National Director will be Jonathan Greenblatt who currently serves as Special Assistant to President Obama and Director of the White House Office of Social Innovation & Civic Participation. Greenblatt, the grandson of a Holocaust survivor who escaped Nazi Germany, is described as a social entrepreneur who has had a lifelong commitment to Jewish social causes.  Greenblatt will succeed long-time ADL director Abe Foxman.

6th Circuit Upholds Same-Sex Marriage Bans

In DeBoer v. Snyder, (6th Circuit, Nov. 6, 2014), in a 2-1 decision, the U.S. 6th Circuit Court of Appeals today became the first federal circuit court to uphold state bans on same-sex marriage and on recognition of same sex-marriages performed elsewhere.  Departing from decisions by the Fourth, Seventh, Ninth and Tenth Circuits, the court upheld state statutory and constitutional provisions from Michigan, Ohio, Kentucky and Tennessee. Judge Sutton, writing for the majority, summarized his approach:

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.

Judge Daughtry dissenting said in part:

In the main, the majority treats both the issues and the litigants here as mere abstractions.  Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status....

SCOTUSblog reporting on the 6th Circuit's decision speculated that the split among circuits that it creates is likely to lead to Supreme Court review unless en banc review from the 6th Circuit is sought and granted.

Court Says Students Can Proceed With Claims of Anti-Semitic Harassment At School

In T.E. v. Pine Bush Central School District, (SD NY, Nov. 4, 2014), a New York federal district court refused to dismiss claims by three Jewish students that they suffered extensive anti-Semitic harassment from fellow-students while attending elementary school, middle school and high school. In a 76-page opinion, the court allowed students to proceed against the school district and various school officials in their individual capacities with claims under Title VI of the 1964 Civil Rights Act, the 14th Amendment and the New York Civil Rights Law. Courthouse News Service reports on the decision.

Suit By Catholic Challenges Nigeria's Requirements For Christian Marriages

In Nigeria, Olisa Agbakoba, the former president of the Nigerian Bar Association,  has filed a lawsuit challenging the constitutionality of provisions of the Marriage Act and the Matrimonial Causes Act. According to yesterday's This Day, the suit brought in the Lagos Division of the Federal High Court contends that the Marriage Act forces Agbakoba, a Catholic, to be married in a secular ceremony rather than in accordance with Canon Law in violation of his constitutionally protected right of religious freedom.  According to the complaint:

The Marriage Act and the Matrimonial Causes Act subject the sacrament of holy matrimony to state certification thus constrained the Applicant to contract a secular marriage. But the ATR [African traditional Religion] adherents, Muslims, and traditionalists are enabled by the Nigerian legal system to contract valid marriages under their religious codes without state intervention or further ‘validation’ by a Marriage Registry or other civil authority under a secular statute.

Agbakoba also claims that the Matrimonial Causes Act is discriminatory by requiring Christians to resolve marital disputes through the civil courts by judges who are not knowledgeable in Canon law, while Muslims may use Islamic courts and adherents of African Traditional Religions may use Customary Courts.

Tuesday Exit Polls Reveal Voting Behavior By Religious Affiliation

The Fox News Exit Polls published yesterday include a number of questions about religious affiliation and voting behavior on Tuesday.  While Republicans did well nationally, the poll shows significant variation in support for Republicans depending on the voter's religious affiliation. Here are the percentages by religious persuasion who voted Republican: Mormon- 73%; Protestant-65%; Other Christian- 55%; Catholic- 34%; Jewish 33%; Other religion- 32%; No religion- 29%. For the sub-category of White evangelical or born again Christians, 78% voted Republican.

Results On Ballot Issues of Interest

Here are unofficial voting results from yesterday on several ballot issues of interest to Religion Clause readers:

Alabama Issue 1 adding a state constitutional amendment banning use of "foreign law" in Alabama courts passed with 72% in favor. (99% of votes counted) (full voting results).

Colorado personhood amendment (Amendment 67) defeated with 64.29% voting no. (17 of 64 counties not fully counted) (full voting results).

Illinois Advisory Question on requring contraception coverage as part of drug coverage passed with 66% in favor. (92% of votes counted) (full voting results).

North Dakota "life begins at conception" amendment defeated with 64.13% voting no. (100% of votes counted) (voting results).

Tennessee Amendment 1 adding a state constitutional amendment allowing regulation of abortion passed with a vote of 52.61% in favor. (100% of votes counted) (voting results).

Many Polling Places Are In Houses of Worship

Yesterday's Houston Chronicle explores the widespread practice of using churches and other houses of worship as polling places. Reporting on one Texas county, the paper says:

As Harris County voters Tuesday help select a new governor and other key officials in an unusually contentious mid-term election, many will cast their ballots at places of worship. Almost one-fifth of the county's 1,069 precincts vote in churches. And while election officials say they endeavor to ensure that such venues are neutral, recent studies suggest that even when overt political messages are absent, religious spaces can subtly affect voter choices.

Belgium's Top Administrative Court Invalidates School Bans On Religious Headwear

Strasbourg Observers blog reported yesterday on two Oct. 14 decisions by Belgium's Council of State (its highest administrative court) invalidating school regulations that banned students from wearing religious headwear or other religious insignia. The bans at issue were imposed by the Flemish Community Education Board. One of the cases decided by the court involved a Sikh turban or patka and the other involved a Muslim headscarf-- the main target of the regulations. The Court held:

Taking into account the proportionality requirement, a justification is all the more necessary as the litigious ban might lead to a denial of access to education for students for the sole reason that they exercise a fundamental right, without it being adequately demonstrated that they disrupt the public order or endanger the rights and freedoms of others.

The full text of the decisions (Case 228.751 and Case 228.752 ) are available in Dutch. [Thanks to Paul deMello for the lead].

Crimea Related Sanctions Lead To Issues For Russian Jews

After the United States and Western European nations imposed sanctions on Russia over of its annexation of Crimea and its support for rebels in eastern Ukraine, Russia imposed counter-sanctions barring import of European agricultural products.  To make up for the lost European produce, agricultural imports from Israel to Russia have increased dramatically.  According to yesterday's Jerusalem Post, this has created problems for religious Jews in Russia who want to comply with strict interpretations of religious law barring consumption of produce grown in Israel during the Biblical sabbatical year (which is this year). Russia's Congress of Jewish Religious Organizations met in Moscow this week to discuss the matter.

Federal District Court Issues Preliminary Injunction Against Kansas Same-Sex Marriage Ban

In Marie v. Moser, (D KS, Nov. 4, 2014), a Kansas federal district court issued a preliminary injunction barring Kansas officials from enforcing any law that prohibits the issuance of marriage licenses to same-sex couples. However, because of lack of standing, the injunction does not extend to Kansas provisions that prohibit the recognition of same-sex marriages performed elsewhere. The court stayed its injunction until Nov. 11 to give defendants time to appeal to the 10th Circuit. The 10th Circuit has already struck down same-sex marriage bans in Utah and Oklahoma. The Topeka Capital-Journal reports on the decision.

Home Province British Columbia Reverses Approval of Christian Law School

In Canada, the controversial Trinity Western University has been dealt a severe setback in its efforts to create a law school based on Christian teachings.  As reported yesterday by Life Site News, benchers of the British Columbia Law Society have voted to rescind their previous approval of the law school after a referendum of the entire membership voted 3 to 1 against the school because of its "community covenant" which requires staff, faculty and students to refrain, among other things, from sex outside of heterosexual marriage. (See prior posting.) Because the school is based in British Columbia, it will be particularly difficult to operate if students are ineligible for bar membership in their home province. The school is now considering whether to appeal the decision to the courts.

Suit Challenges Rules For Preaching On Boardwalk

A lawsuit was filed in New Jersey federal district court last week challenging the regulations governing preaching and distributing religious material on the Boardwalk at Point Pleasant Beach, NJ.  The complaint (full text) in Paoella v. Borough of Point Pleasant Beach, New Jersey, (D NJ, filed 10/24/2014), alleges:

Plaintiff, as an exercise of his Christian beliefs, intends to go to the public areas of the Boardwalk, hold a sign expressing a religious message, and speak about God and hand out religious literature to those who wish to receive his message. 

However the Borough insists that in order to do so, plaintiff Joseph Paoella must first submit a "hold harmless" agreement, a "Religious Activities Application and Facility Use Form," a Memorandum of Understanding, and proof of insurance satisfactory to the Municipal Clerk. Paoella alleges that his violates his rights under the 1st and 14th amendment as well as comparable state constitutional protections.  NJ Advance Media reports on the filing of the lawsuit.

Overview of Malaysian Dispute On Use of "Allah" By Non-Muslims To Refer To God

Today's New York Times carries an interesting overview of the conflict in Malaysia regarding non-Muslims speaking or writing in the Malay language using the word "Allah" to mean "God."  Christians , who make up 10% of Malasia's population, regularly use the term, while the country's Islamic councils say it is reserved for Muslims.

Supreme Court Hears Oral Arguments On Passport Designation For Americans Born In Jerusalem

The U.S. Supreme Court today heard oral arguments in Zivotofsky v. Kerry,  involving  a dispute between Congress and the Executive Branch over the constitutionality of a statute that calls for the State Department to change its policy and allow "Israel" rather than "Jerusalem" to be listed as the birthplace of Americans born in Jerusalem. The full transcript of the arguments are available on the Court's website. SCOTUSblog has a detailed report on the arguments, suggesting that the various justices were playing "diplomat for a day." This is the second time the case has been before the Supreme Court. (See prior posting.)

Certiorari Denied In NYC Pregnancy Center and Texas Episcopal Church Property Cases

The U.S. Supreme Court today (Order List) denied review in two groups of cases of interest to Religion Clause readers.

The first involved a challenges to the New York City ordinance requiring pregnancy service centers to disclose various items to potential clients. The 2nd Circuit upheld (by a 2-1 vote) the requirement to disclose whether or not there is a licensed medical provider on staff. It unanimously struck down the requirements to disclose whether or not the center provides or refers out for abortion, emergency contraception and prenatal care, and a requirement to disclose that the New York health department encourages women who may be pregnant to consult a licensed medical provider. (See prior related posting.) The cases are Evergreen Association, Inc.  v. New York, NY, Docket No. 13-1462, cert. denied 11/3/2014) and Pregnancy Care Center v. New York, NY, (Docket No. 13-1504, cert. denied 11/3/2014). Reuters reports on the denial of review.

The Supreme Court also denied review in Episcopal Church v. Episcopal Diocese of New York, (Docket No. 13-1520, cert. denied 11/3/2014).  The petition involved related decisions by the Texas Supreme Court in two cases holding that the neutral principles approach must be used in deciding ownership of property of the break-away Fort Worth diocese. (See prior posting.) AP reports on the Supreme Court's action.

Issues of Interest on Tomorrow's State Ballots

Tomorrow is election day. Here are some of the ballot issues in various states that may be of interest to Religion Clause readers:

• Alabama- Statewide Amendment 1: Alabama Foreign Laws In Court.
• Colorado- Amendment 67: Definition of Personhood.
• Illinois- Advisory Question: Birth Control in Prescription Drug Coverage.
• North Dakota- Measure 1: Life Begins At Conception Amendment.
• Tennessee- Amendment 1: Legislative Powers Regarding Abortion.

Recent Articles of Interest

From SSRN:

• Terri Day, Leticia M. Diaz & Danielle Weatherby, A Primer on Hobby Lobby: For-Profit Corporate Entities’ Challenge to the HHS Mandate, Free Exercise Rights, RFRA’s Scope, and the Nondelegation Doctrine, (October 26, 2014).
• Mohamad A. Arafa, Islamic Policy of Environmental Conservation: 1,500 Years Old – Yet Thoroughly Modern, (16 European J. L. Reform 2 (EJLR), Special Issue on Islamic Law (Spring 2014)).
• Steven Douglas Smith, Equality, Religion, and Nihilism, San Diego Legal Studies Paper No. 14-169 (2014)).
• Paul Horwitz, The Hobby Lobby Moment, (Harvard Law Review, Forthcoming).
• John Witte, Religious Sources and Dimensions of Human Rights, (G. J. Buis, J. T. Sunier, and P.G.A. Veenstra, eds., "Risky Liasions? Democracy and Religion: Reflections and Case Studies" (Amsterdam: VU University Press, 2013)).
• Thomas C. Berg, Religious Accommodation in the Welfare State, (Harvard Journal of Law and Gender, 2014, Forthcoming).
• Andrew Coleman, The Islamic State and International Law: An Ideological Rollercoster?, (October 29, 2014).
• Kathryn Chan, The Co-Optation of Charitable Resources by Threatened Welfare States, (Queen's Law Journal, Vol. 40, 2015, Forthcoming).
• Khrista Johnson, The Charitable Deduction Games: Catching Change, (Georgia State University Law Review, Vol. 30, No. 4, 2014).
• Khrista Johnson, The Charitable Deduction Games: Are the Laws in Your Favor?, (Columbia Journal of Tax Law, Vol. 5, 2013).
• Clarke Jones, Are Prisons Really Schools for Terrorism? Challenging the Rhetoric on Prison Radicalisation, (Punishment and Society 16(1): 74-103 (2014)).

From elsewhere:

• C.G. Bateman, Method and Metaphysics: A Legal Historian’s Canon, ((2014) Journal of Jurisprudence 255.
• Faisal Kutty, Creeping Sharia or Conspicuous Islamophobia, Columbia Journal of International Affairs, Oct. 28, 2014.

Israel's Cabinet Approves Regulation That Will Ease Conversions To Judaism

In a controversial move, Israel's cabinet today approved an administrative regulation that will permit municipal chief rabbis to create conversion courts.  The Jerusalem Post reports that the new regulation, which is strongly opposed by the Chief Rabbinate and haredi (ultra-Orthodox) political parties, will ease the way for conversion for many Russians  who emigrated to Israel under the Law of Return. The government's action came as the Knesset threatened to pass its own bill. Using the route the cabinet did makes it easier to repeal the decision in the future.

Recent Prisoner Free Exercise Cases

In Turner v. Hamblin, (7th Cir., Oct. 27, 2014), the 7th Circuit affirmed the dismissal of a Muslim inmate's complaint that Islamic services were canceled when non-prisoners were unavailable to lead them, while Christian services were never canceled.

In Lewis v. Grounds, 2014 U.S. Dist. LEXIS 152288 (SD IL, Oct. 28, 2014), an Illinois federal district court permitted a Hebrew Israelite inmate to proceed with his claim that the prison grooming policy requires him to violate his Nazarite vow to never cut his "hairlocks."

In Bailey v. Ingram, 2014 U.S. Dist. LEXIS 152493 (ED KY, Oct. 24, 2014), a Kentucky federal district court dismissed a Catholic Cherokee inmate's complaint that he was terminated from his kitchen job for attending a Christian religious encounter event rather than reporting for work.

In Manges v. Harman, 2014 U.S. Dist. LEXIS 152969 (ND IN, Oct. 29, 2014), an Indiana federal district court dismissed most of the claims by an inmate described as a "serial grievance filer" who complained of various instances in which he was prevented from attending Eastern Orthodox religious services. However the court permitted him to move ahead on two retalitation claims.

In Hollins v. Munks, 2014 U.S. Dist. LEXIS 153462 (N.D. Cal.Oct. 29, 2014), a California federal district court dismissed a complaint by a Muslim inmate that he had not received a Halal diet.

In Comundoiwilla v. Liles, 2014 U.S. Dist. LEXIS 153593 (E CA, Oct. 29, 2014), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that he was not permitted to attend congregational Jumu'ah prayer services for two years because of his confinement status.

In Cash v. Armstrong, 2014 U.S. Dist. LEXIS 153739 (ED TN, Oct. 29, 2014), a Tennessee federal district court permitted an inmate to proceed with his complaint that he was not adequately furnished items he needed for his planned conversion to Islam.

Federal District Court Holds Humanism Is A Religion

In American Humanist Association v. United States, (D OR, Oct. 30, 2014), an Oregon federal district court held that "Humanism is a religion for Establishment Clause purposes," observing that "such a view is consistent with longstanding Supreme Court jurisprudence." The holding comes in a case in which a federal prisoner sought recognition of Humanism so the prison would create a Humanist study group.

Extremist Hindu Groups In India Using Violence To Prevent Hindu-Muslim Marriages

Today's New York Times carries an opinion piece on right-wing extremist Hindu groups in India that are using violence to stop marriages between Hindu women and Muslim men, saying in part:

right-wing politicians have used the boogeyman of love jihad in states with sizable Muslim populations like Gujarat and Maharashtra to present themselves as the protectors of Hindu virtue and win Hindu votes. Their behavior fit the descriptions of a hate crime, although no charges have ever been filed against them. 

Philadelphia Passes Hate Crimes Ordinance

The Philadelphia Inquirer reports that on Thursday Philadelphia City Council unanimously passed Bill No. 140720 (full text) which provides an additional penalty of up to 90 days in jail and a $2000 fine where any of several crimes are motivated by hatred toward the actual or perceived sexual orientation, gender or gender identity, or disability of the victims. It is expected that Mayor Nutter will sign the bill into law.

Egyptian Court Sentences Men In Gay Wedding Party To 3 Years In Prison

AP reports tht in Egypt today, 8 men who were shown in an Internet video as part of a same-sex wedding party were each sentenced to 3 years in prison for "inciting debauchery."  According to AP:

The verdict is the latest in a crackdown by authorities against gays and atheists. The campaign also targets liberal and pro-democracy activists and violators of a draconian law on street protests.

(See prior related posting.)

Abuse Victim Awarded $13.5 M In Suit Against Jehovah's Witness Watchtower Society

The San Diego Union Tribune reports that last Wednesday a California state trial court judge awarded compensatory and punitive damages totalling $13.5 million to 36-year old Jose Lopez who, in 1986 as a 7-year old child, was sexually molested by Jehovah's Witness church leader Gonzalo Campos. After the victim's mother reported the abuse the church decided Campos was repentant, and he rose through the ranks, was expelled for a few years after another victim came forward, but was then reinstated.  The judge had previously imposed sanctions on the church's governing body, the Watchtower Bible and Tract Society of New York, for not producing documents, and it was precluded from presenting evidence in defense in the 6-day trial.

GITMO Detainee Seeks End To Use of Female Guards In Transporting Him

On Oct. 16, lawyers for Guantanamo detainee Abdul Hadi al Iraqi filed an Emergency Motion (full text, redacted) with the Military Commission seeking an order to prohibit female guards from being used during al Iraqi's transfers to and from hearings and meetings with attorneys.  Al Iraqi's Muslim beliefs prohibit him from having physical contact with women, which occurs during guards' shackling and unshackling him.  In seeking relief, al Iraqi's attorneys cite RFRA, as well as the 1st, 5th and 6th Amendments.  A hearing on the motion is scheduled for Nov. 17. Reporting on developments, the Miami Herald focuses on the decision by military censors to black out references to "female" and "male" in the redacted version of the motion.

Justice Alito Gets Award From St. Thomas More Society

The St. Thomas More Society of Maryland yesterday presented U.S. Supreme Court Justice Samuel Alito with its "Man for All Seasons Award."  According to The Daily Record, Catholic groups have particularly praised Alito for his majority opinion earlier this year in Burwell v. Hobby Lobby Stores. The award was presented to Justice Alito at the Society's Red Mass Banquet.