Delays In Sale of Historic Church Support Free Exercise, But Not RLUIPA, Claim

In California-Nevada Annual Conference of the Methodist Church v. City and County of San Francisco, (ND CA, Nov. 24, 2014), a California federal district court resolved two rather interesting issues defining the scope of religious liberty protection. The suit grows out of ten-years of legal delays-- including attempted landmarking-- imposed by San Francisco on the sale of an historic Methodist Church to condominium developers who planned to demolish the church building.The court rejected the Methodist Conference's RLUIPA claims, holding that the sale of the property to commercial developers is not a "religious exercise" under RLUIPA:

The fact that the proceeds from the sale were to be used to fund the Conference’s religious efforts does not transform the sale transaction itself into "religious exercise."

However the court refused to dismiss the Conference's 1st Amendment free exercise claim:

Unlike the Conference’s RLUIPA claim, which specifically hinged on the denial of the demolition permit and resultant inability to recoup profits on the land sale, the Conference’s First Amendment claim is based upon a broader notion of unequal treatment – generally, that the City embroiled the Conference in bureaucratic proceedings, much of which were unnecessary, in an effort to prevent the Conference engaging in religious exercise.

Controversial Former Navy Chaplain Loses Another Round

Former Navy chaplain Gordon James Klingenschmitt, who has been in a long-running battle with the military over regulations requiring chaplains to deliver inclusive prayers at military events other than religious services, lost another round this week.  In Klingenschmitt v. United States, (Ct. Fed. Cl., Nov. 24, 2014), the Court of Federal Claims rejected Klingenschmitt's claims under the Tucker Act and the Military Pay Act.  After recounting for some 19 pages the history leading up to the lawsuit, the court explains:

In this case, Dr. Klingenschmitt alleges that he was wrongfully discharged from the Navy and seeks an award of backpay and allowances and benefits retroactive to his separation date and reinstatement as a chaplain. Incident to that claim, he seeks removal of references to his 2005 and 2006 fitness reports and the CARE board’s recommendation from his record.... He also asks that the Court vacate his court-martial conviction and direct that references to the conviction, including the letter of reprimand issued pursuant to his conviction, be removed from his record.... Dr. Klingenschmitt’s complaint also includes a potpourri of other claims that appear to challenge Navy policies which he claims violate the First Amendment, RFRA, and 10 U.S.C. § 6031(a).... 

In dismissing, the court said in part:

the Court finds unpersuasive Dr. Klingenschmitt’s argument that his First Amendment right to practice his religious beliefs was infringed by Captain Pyle’s Order that he not wear his uniform to the media event held in Lafayette Park in March 2006. Captain Pyle’s Order was based on Navy regulations that prohibit the wearing of a uniform in connection with political activities.... The Order did not limit Dr. Klingenschmitt’s right to engage in any religious practices (including presenting an opening prayer at the event or invoking the name of Jesus in his prayer). It simply prohibited Dr. Klingenschmitt from engaging in this activity while wearing his uniform at what was clearly a political event and not, as Dr. Klingenschmitt seems to suggest, a bona fide religious service.

Therefore, taking this infraction into consideration in deciding whether to recertify Dr. Klingenschmitt as a chaplain did not violate either his First Amendment rights or RFRA.

AALS Newsletter Includes Comprehensive 2014 Bibliography On Law and Religion

The Association of American Law Schools Section on Law and Religion has issued its December 2014 Newsletter. It includes a 27-page bibliography of articles and books on law and religion published in 2014, as well as a list of relevant blogs.

Pope Francis Addresses European Parliament and Council of Europe

Pope Francis yesterday delivered a lengthy address (full text) to the European Parliament in Strasbourg, France. As reported by Vatican Radio, the Pope spoke of the importance of Christian values to Europe. He said in part:

Today, the promotion of human rights is central to the commitment of the European Union to advance the dignity of the person, both within the Union and in its relations with other countries....

At the same time, however, care must be taken not to fall into certain errors which can arise from a misunderstanding of the concept of human rights and from its misuse.  Today there is a tendency to claim ever broader individual rights; underlying this is a conception of the human person as detached from all social and anthropological contexts....  The equally essential and complementary concept of duty no longer seems to be linked to such a concept of rights. ....

To our dismay we see technical and economic questions dominating political debate, to the detriment of genuine concern for human beings. Men and women risk being reduced to mere cogs in a machine that treats them as items of consumption to be exploited, with the result that – as is so tragically apparent – whenever a human life no longer proves useful for that machine, it is discarded with few qualms, as in the case of the terminally ill, the elderly who are abandoned and uncared for, and children who are killed in the womb.

Later yesterday, the Pope gave a second address to the Council of Europe. (Full text.) As reported by Vatican Radio, his talk addressed many of the challenges facing Europe today.

A day before the Pope's visit, the radical feminist group FEMEN staged a protest in the Strasbourg Cathedral. According to FEMEN's webiste:

Today, the day before Pope's venue, FEMEN sextremists climbed the altar in Strasbourg Cathedral and installed a European flag as a symbol of new union between European political power and Catholic Church with it's Vatican. Symbolically, the protest took place in the only region of France where the state and church are not separated by law, Alsace region. The activist was carring a slogan "Antisecular Europe" on her chest to denounce the betrayer of secular ideas by the EU Parliament that invited the Pope.

Lifesite News reports on the topless demonstration.

Religion Clause Nominated For ABA Journal Blawg 100

I am pleased to announce that Religion Clause has been nominated by the ABA Journal for inclusion in its 8th Annual Blawg 100 rankings.  This is the sixth time in eight years that Religion Clause has made this prestigious list of the top 100 blogs directed at audiences interested in law and lawyers.  This year, Religion Clause was awarded the added honor of becoming part of the Blawg 100  Hall of Fame-- a group of 30 blogs described by the ABA Journal as blogs which have "consistently been outstanding throughout multiple Blawg 100 lists."

Click here to go to ballot

Now that the ABA Journal editors have narrowed the list to 100, the Journal asks you to vote for your favorite in each of its 13 categories. Religion Clause has been nominated in the "Profs" category. You may cast your votes in all categories at this link.  The ABA Journal requires a short registration process as part of the voting in order to prevent ballot box stuffing.  I hope you find Religion Clause a worthwhile enough read to vote for it.  Voting ends on Dec. 19.  Thanks to all who nominated Religion Clause for this honor.

Colorado Supreme Court: FFRF Lacks Standing To Challenge Day of Prayer Proclamations

In a 5-2 decision yesterday, the Colorado Supreme Court held that the Freedom From Religion Foundation and its members lack standing to challenge the Governor's annual Colorado Day of Prayer proclamations. The suit claimed that the proclamations violate Art. II, Sec. 4 of the Colorado Constitution which prohibits the government from giving preference to any religious denomination.  In Hickenlooper v. Freedom from Religion Foundation, Inc., (CO Sup. Ct., Nov. 24, 2014), the majority said in part:

Although we do not question the sincerity of Respondents’ feelings, without more, their circuitous exposure to the honorary proclamations and concomitant belief that the proclamations expressed the Governor’s preference for religion is simply too indirect and incidental an injury to confer individual standing. To hold otherwise would render the injury-in-fact requirement superfluous, as any person who learned of a government action through the media and felt politically marginalized as a result of that secondhand media exposure would have individual standing to sue the government. Because such a result would stretch our already broad conceptualization of individual standing beyond recognition and thrust the judiciary beyond its article III limits, we hold that Respondents have not alleged an injury sufficient to establish individual standing.

Justice Hood, joined by Justice Hobbs, dissented. They would have found standing, but concluded that the proclamations do not violate the state constitution's Preference Clause, saying in part:

If our “tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith,” then it must also be assumed that adult citizens can tolerate something far less intrusive: a proclamation urging appreciation of the power of a prayer.

Britain's Law Society Withdraws Practice Note On Drafting Sharia-Compliant Wills

Last March, the Law Society of England and Wales issued a Practice Note to assist British solicitors whose clients ask them to draw up wills that comply with Sharia law. The Law Society's action drew criticism from those who objected that such wills may deny women an equal share of an estate and exclude "illegitimate" children or unbelievers. (See prior posting.) Yesterday the Law Society announced that it has withdrawn the Practice Note, saying in part:

Our practice note was intended to support members to better serve their clients as far as is allowed by the law of England and Wales.  We reviewed the note in the light of criticism. We have withdrawn the note and we are sorry.

The Telegraph reports on reaction to the Law Society's latest action.

DOJ Requires Georgia County To Provide Extensive Training To Prevent Religious Bullying of Sikhs and Others

Last week (Nov. 18), the Justice Department announced an extensive agreement between federal authorities and the DeKalb County, Georgia school district requiring the district to implement polices and procedures to prevent and respond to religious and national origin harassment of students by fellow-students. The Resolution Agreement (full text) supplements a May 2013 agreement (full text) that settled a lawsuit brought by a Sikh student who had been repeatedly harassed and bullied. (2013 Sikh Coalition release.) That agreement required implementation of a safety plan for that student and anti-harassment training.  Last week's settlement (Sikh Coalition release) grew out of the Justice Department's continuing examination of the school district's harassment policies. Among other things, it requires the school district:

to develop and implement annual age and position-appropriate trainings on religious and national origin harassment for all students, staff who interact with students (including administrators, teachers, counselors, and bus drivers), and District-level administrators who interact with students or who are involved in addressing harassment or bullying in the District. The District will implement separate student- and staff-specific trainings....

All trainings must include:

A facilitated discussion of the root causes of religious and national origin harassment and the harms resulting from such conduct, including but not limited to issues related to post-9/11 backlash and the perpetuation of negative stereotypes impacting the Sikh, Muslim, South Asian, and Arab-American communities....

SCOTUS Hobby Lobby Decision Implemented With Narrow Injunction

Last week, an Oklahoma federal district court implemented the U.S. Supreme Court's decision in the Hobby Lobby case, issuing a narrow injunction. In Hobby Lobby Stores, Inc. v. Sebelius, (WD OK, Nov. 19, 2014), the court enjoined the government from enforcing regulations under the Affordable Care Act "which require plaintiffs Hobby Lobby Stores, Inc. and Mardel, Inc. to provide their employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which plaintiffs' object on religious grounds...." The court refused to issue the broader injunction sought by plaintiff that would have enjoined enforcement of the statute, as well as the regulations, saying: "A broader order enjoining any potential application of the statute ... goes beyond what has been actually decided and litigated in this case."

Oklahoma Legislator Will Replace Destroyed 10 Commandments Monument

As previously reported, last month a man, claiming to have been directed to do so by Satan, drove his car into the Ten Commandments monument on the Oklahoma State Capitol grounds.  KOCO today reports that Republican state legislator Mike Ritze who paid $10,000 for the monument says that he has ordered an identical new monument to replace the original that is beyond repair. Again the monument will be paid for by private funds. An Establishment Clause challenge to the original monument was rejected by an Oklahoma state trial court (see prior posting), and the case is now on appeal to the state Supreme Court.

Conservative Group Seeks IRS Communications With Freedom From Religion Foundation

As previously reported, in July the Freedom From Religion Foundation reached a settlement agreement with the Internal Revenue Service in a suit challenging the IRS's alleged non-enforcement against churches and religious organizations of the Section 501(c)(3) ban on political activity by non-profits. In announcing the settlement, FFRF said that the IRS has now adopted procedures for reviewing, evaluating and determining whether to initiate church investigations.

Now the conservative organization, Judicial Watch is attempting to discover more about these new procedures.  It announced today that earlier this month it filed a Freedom of Information Act lawsuit seeking all records of communications between the IRS and FFRF on the promotion of political issues, legislation and candidates by churches and religious organizations.  It is also seeking all records relating to IRS monitoring of churches and religious organizations that took place to ensure they are not engaging in political activity.  The complaint (full text) in  Judicial Watch, Inc. v. Internal Revenue Service, (D DC, filed 11/6/2014), says that so far the IRS has failed to comply with Judicial Watch's request for these records.

Commenting on the filing of the lawsuit, Judicial Watch president Tom Fitton said:

As expressed by the First Amendment, Americans have the God-given right to both express their religious views and to engage in the political process. It is troubling that the IRS seems set to rely on a group of atheists to point them toward churches that might have criticized politicians.  And it is even more disturbing that the IRS would violate federal law, The Freedom of Information Act, in order to keep secret its monitoring of Americans praying together in church.  To be clear, the very IRS that abused Tea Partiers for Obama’s election now purports to be able to ‘audit’ houses of worship in order to protect politicians from criticism. I am sure the Obama administration is more than happy to use the excuse of a lawsuit by a leftist group to use the IRS to punish churches that oppose Obama’s war on religious freedom

Recent Articles and Books of Interest

From SSRN:

• Abner S. Greene, Religious Freedom and (Other) Civil Liberties: Is There a Middle Ground?, (Harvard Law & Policy Review, 2015 Forthcoming).
• Geoffrey P. Miller, The Kingdom of God in Samuel, (NYU School of Law, Public Law Research Paper No. 14-66, Nov. 2014).
• Cyra Akila Choudhury, Beyond Culture: Human Rights Universalisms versus Religious and Cultural Relativism in the Activism for Gender Justice, (__J. of Research in Gender Studies__ (2015 Forthcoming)).
• Charles J. Reid, Sovereignty and Belief: Thoughts on H.L.A. Hart, the Rule of Recognition, and the Crisis in Iraq, (Judicial Service Association Journal (2014 Forthcoming)).
• Margo A. Bagley, The Wheat and the (GM) Tares: Lessons for Plant Patent Litigation from the Parables of Christ, (Virginia Public Law and Legal Theory Research Paper No. 71 (Nov. 2014)).
• Margo A. Bagley, 'Grant Me Justice Against My Adversary': What Parables Can Teach Us About Organic Seed Growers & Trade Assoc. v. Monsanto Co., (Irene Calboli & Srividyha Ragavan, eds., Reconciling Diverse Identities and Intellectual Property, Cambridge University Press, 2015, Forthcoming).
• Larissa Lee, Let the Hospital's Conscience Be Your Guide: How Institutional Policies are Eroding 'Death with Dignity', (November 22, 2014). 

From SSRN (Islamic Law):

• Muhammad Munir, Shari‘ah and Nation-State: The Transformation of Maqasid Al-Shari‘ah Theory, (November 8, 2014).
• Michael J. T. McMillen, The UNCITRAL Model Secured Transactions Law: A Shariʿah Perspective, (UNCITRAL Working Group VI: The Draft UNCITRAL Model Law on Secured Transactions (tentative title), Forthcoming).

From SmartCILP:

• William A. Galston, Should Public Law Accommodate the Claims of Conscience?, [Abstract], 51 San Diego Law Review 1-18 (2014).
• Frederick B. Jonassen, "So Help Me?": Religious Expression and Artifacts In the Oath of Office and the Courtroom Oath, [Abstract], 12 Cardozo Public Law, Policy and Ethics Journal 303-373 (2014).
• Charles J. Russo, Religious Freedom In A Brave New World: How Leaders In Faith-Based Schools Can Follow Their Beliefs In Hiring, [Abstract], 45 University of Toledo Law Review 457-470 (2014).
• Ronna Greff Schneider, The Crucifix In the Classroom, Religious Symbols, and Public Classroom Walls: An International Perspective On Religion In the Public Sphere (Reviewing The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom, edited by Jeroen Temperman), [Abstract], 36 Human Rights Quarterly 668-682 (2014).
• Adam Wallwork, Legislating the Free Exercise Clause: Congressional Power and the Religious Land Use and Institutionalized Persons Act of 2000, 5 Faulkner Law Review 1-28 (2013-2014). 

Recent Books:

• Franco Garelli, Religion Italian Style: Continuities and Changes in a Catholic Country, (Ashgate, Nov. 2014).
• Marie-Claire Foblets, et. al. (eds.), Belief, Law and Politics: What Future for a Secular Europe?, (Ashgate, Dec. 2014). (from the book, Pasquale Annicchino, Coherence (and Consistency) or Organized Hypocrisy? Religious Freedom in the Law of the European Union.)

Israel's Cabinet Approves Proposed Basic Law Declaring Israel As A Jewish State

The Jerusalem Post reports that Israel's Cabinet today voted 15-6 to approve three proposed versions of the highly controversial "Basic Law: Israel as the Nation-State of the Jewish People." The Cabinet Ministers' discussion descended into a shouting match. The bills will be presented for a preliminary vote in the Knesset Wednesday, and then will go to committee where the versions will be combined. All of the versions protect "Hatikva" as the national anthem, protect state symbols, use of the Hebrew calendar and the Law of Return, and give freedom of access to holy places and protect them.

Recent Prisoner Free Exercise Cases

In Robbins v. Toole, 2014 U.S. Dist. LEXIS 160274 (SD GA, Nov. 14, 2014), Georgia magistrate judge allowed an inmate to proceed with his complaint that he was not being given food that meets his religious requirements.

In Malipurathu v. Johnson, 2014 U.S. Dist. LEXIS 160529 (ND OK, Nov. 13, 2014), an Oklahoma federal district court dismissed complaints by a Sikh inmate that he was not permitted to obtain a halal diet until he listed his religion as Sikh/ Islam.  Plaintiff never requested that the Department of Corrections add the Sikh religion to the list of those entitled to a halal diet. The court also dismissed various complaints about the content of halal meals served to plaintiff.

In Snodgrass v. Robinson, 2014 U.S. Dist. LEXIS 161517 (WD VA, Nov. 17, 2014), a Virginia federal district court refused to dismiss a Muslim inmate's complaint that he was not permitted to participate in the 2013 Ramadan fast.

In Amos v. Stolzer, 2014 U.S. Dist. LEXIS 161557 (ED MO, Nov. 18, 2014), a Missouri federal district court permitted a Muslim inmate to proceed against a jail sergeant, but not against other defendants, in his complaint that he was denied halal food, a "hardback" Qur'an, a "prayer rug" and access to religious services with an Imam.  His Establishment Clause claim based on the absence of Muslim clergy on the authorized clergy list was dismissed.

In Pegues v. Billingsley, 2014 U.S. Dist. LEXIS 161842 (CD IL, Nov. 19, 2014), an Illinois federal district court permitted a "vegetarian Ethiopian Jewish" pre-trial detainee to proceed with his complaint that he has been denied pastoral care from any religious volunteers, and has been denied the opportunity to meet with religious leaders in retaliation for his filing complaints.

Court Enjoins South Carolina's Refusal To Recognize Same-Sex Marriages From Elsewhere

As previously reported, on Nov. 12 in Wilson v. Condon, a South Carolina federal district court struck down South Carolina's ban on issuing licenses for same-sex marriages. Attempts to stay effectiveness of the decision failed. (See prior posting.)  Six days later, in a decision that has been less noticed, a different South Carolina federal district court judge entered a permanent injunction against enforcing South Carolina's ban on recognition of same-sex marriages validly performed in other jurisdictions.  In Bradacs v. Haley, (D SC, Nov. 18, 2014), the court concluded that "South Carolina’s denial of legal recognition to the marriages of same-sex couples who were married in other states or jurisdictions violates the Equal Protection and Due Process Clauses...." However the court refused to hold that the ban violates the Constitution's Full Faith and Credit Clause. WXLT reported on the decision.

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.