In Reversal, Kentucky Denies Tax Incentives To Noah's Ark Theme Park

The Louisville Courier-Journal reported yesterday that Kentucky's Tourism, Arts and Heritage Cabinet has now turned down a request by a proposed Noah's Ark theme park for $18 million in sales tax rebate incentives, despite earlier preliminary approval of the request. The state says that Ark Encounter has changed it position on hiring and now intends to discriminate in hiring on the basis of religion. The state also says that the park has evolved from a tourist attraction into a project to promote a literal reading of the Biblical book of Genesis. The state's Tourism Secretary said:

State tourism tax incentives cannot be used to fund religious indoctrination or otherwise be used to advance religion.

Attorneys for Ark Encounter say that federal and state law allow it, as a religious institution, to hire on the basis of religion, and that refusing to allow it to participate in tax incentives amounts to unconstitutional viewpoint discrimination. They say they will have no choice but to sue. (See prior related posting.)

Challenge To School Board Invocation Policy Dismissed On Standing Grounds

WIS-TV News reported yesterday on the dismissal by a Wisconsin federal district court of a challenge to the invocation policy at school board meetings in School District Five of Lexington & Richland Counties, Wisconsin.  The suit originally also challenged the District's policy on prayer at graduation (see prior posting), but the parties previously settled that claim after the school district revised its policy to allow student speakers to determine the content of their own messages. Then in Nielson v. School District Five of Lexington & Richland Counties, (D SC, Oct. 22, 2014), the federal district court dismissed claims seeking an injunction and declaratory judgment as to the school board invocations because "none of the Individual Plaintiffs attended a Board Meeting after the August 2013 Invocation Policy became effective and none remain students in District Five."  The court added, however, that plaintiffs could still pursue damage claims growing out of pre-2013 prayer practices.  But on Dec. 1, the court ordered dismissal of the action without prejudice, noting that the parties had settled the case. (Full text of dismissal order.)

Today Is International Human Rights Day

Today is International Human Rights Day-- a date set by the United Nations General Assembly in Res. 423(V) to celebrate the adoption on Dec. 10, 1948 of the Universal Declaration of Human Rights. The U.N. announced that this year's theme is "Human Rights 365." In a press release, the U.S. Commission on International Religious Freedom says it is marking the occasion by highlighting prisoners of conscience around the world, particularly those imprisoned because of their faith or belief.

UPDATE: The White House on Dec. 9 issued a Presidential Proclamation (full text) declaring Dec. 10 to be Human Rights Day and the week beginning Dec. 10 to be Human Rights Week.

2nd Circuit Dismisses Alien Tort Suit Charging Catholic Orders With Human Trafficking

The U.S. Second Circuit Court of Appeals has dismissed an Alien Tort Statute suit brought against several Catholic religious orders charging human trafficking,  In Ellul v. Congregation of Christian Brothers, (2d Cir., Dec. 8, 2014), the Second Circuit concluded that the Supreme Court's decision last year in the Kiobel case holding that the Alien Tort Statute does not apply extraterritorially requires dismissal of most of plaintiffs' claims.  The remainder must be dismissed on statute of limitations grounds. The suit alleged "shocking violations of internationally accepted norms." As described by the court:

Plaintiffs’ claims stem from an alleged “child migration” program undertaken in the aftermath of World War II.  As part of the scheme, the purpose of which was to populate Australia with “pure white stock” from Britain and “working boys” from Malta..., defendants allegedly took plaintiffs away from their families as children, falsely told them that their parents had died or abandoned them, and transported them to Australia, where plaintiffs and other children were made to work essentially as slaves, for long hours without pay, and were subjected to extreme physical and, in some cases, sexual abuse.

Mosque Proponents Sue Pennsylvania Township Over Zoning Variance Denial

CAIR-Philadephia announced yesterday that it has filed a federal lawsuit against Bensalem Township, Pennsylvania challenging its refusal to grant a zoning variance to a Muslim congregation, Bensalem Masjid, which seeks to build a mosque on property that it currently leases with an option to purchase. The complaint (full text) in The Bensalem Masjid Inc. v. Bensalem Township, (ED PA, filed 12/8/2014), contends that the Township's zoning ordinances allow houses of worship only in areas zoned Institutional (IN), and that there are no available properties zoned IN that could be used for a mosque. The complaint contends that the Township's zoning ordinances and regulations, and its action refusing a variance, violate RLUIPA, the 1st and 14th Amendments and the state's Religious Freedom Protection Act. Philadelphia Daily News reports on the lawsuit.

Senate Report on CIA Interrogation Includes Role of Religion In Prisoner Cooperation

A reported by the Washington Post, today the U.S. Senate Select Committee on Intelligence released an unclassified 525-page version of its Study of the CIA's Detention and Interrogation Program. (Full text of report). Appendix 3 in the report (.pdf pg. 488) outlines examples of inaccurate CIA testimony to the Intelligence Committee in 2007.  It includes a section captioned "The Religious Foundation for Cooperation" (.pdf pg. 511) that sets out the following inaccurate testimony given by CIA Director Michael Hayden:

This proposed program ... has been informed by our experience and it has been informed by the detainees. It's built on the particular psychological profile of the people we have and expect to get -- al-Qa'ida operatives. Perceiving themselves true believers in a religious war, detainees believe they are morally bound to resist until Allah has sent them a burden too great for them to withstand. At that point ... their cooperation in their own heart and soul becomes blameless and they enter into this cooperative relationship with our debriefers.

...we use the enhanced interrogation techniques at the beginning of this process, and it varies how long it takes, but I gave you a week or two as the normal window in which we actually helped this religious zealot to get over his own personality and put himself in a spirit of cooperation.... You recall the policy on which this is based, that we're going to give him a burden that Allah says is too great for you to bear, so they can put the burden down.

According to the Committee:

CIA records do not indicate that CIA detainees described a religious basis for cooperating in association with the CIA's enhanced interrogation technique.....

... [M]ore than two months before Abu Zubaydah began his August 2002 enhanced interrogation period, Abu Zubaydah told interrogators that "if he possessed any more information on future threats, then he would provide this information to us to help himself, claiming that 'the sharia' gives him permission to do so in his current situation.  Abu Zubaydah also made a similar statement to his interrogators approximately a week later ... stating that he had "prayed his 'Istikharah' (seeking God's guidance) and was now willing to tell what he really knew," and "that he had received guidance from God" to cooperate to "prevent his captured brothers from having a difficult time."

Most of City Council Walks Out On Atheist's Invocation

In Lake Worth, Florida last Tuesday, the mayor and three of the four city commissioners walked out of the commission chamber as atheist Preston Smith approached the podium to offer the invocation.  WPTV News reports that yesterday Mayor Pam Triolo said her action was not because Smith was an atheist, but because of a Tweet Smith allegedly authored last summer giving an offensive interpretation of scripture. Smith's invocation (video included in article) called for building a better community without religious division.

DOJ Expands Ban on Law Enforcement Profiling To Include Religion and Other Characteristics

Yesterday, U.S. Attorney General Eric Holder announced the issuance of new guidelines on profiling by federal law enforcement officials (and local officials participating in federal task forces).  The new Guidance for Federal Law Enforcement Agencies (full text) adds national origin, gender, gender identity, religion, and sexual orientation to the already existing prohibitions on racial and ethnic profiling imposed in 2003.  The 11-page document sets out both in general principles and examples guidance on when the covered characteristics can and cannot be used.

Officials may still use race, religion, ethnicity, or any of the other prohibited bases for profiling when

there is trustworthy information, relevant to the locality or time frame, that links persons possessing a particular listed characteristic to an identified criminal incident, scheme, or organization, a threat to national or homeland security, a violation of Federal immigration law, or an authorized intelligence activity.

Here are two interesting examples from the many set out in the new Guidance:

• A law enforcement officer who is working as part of a federal task force has received a reliable tip that an individual intends to detonate a homemade bomb in a train station during rush hour, but the tip does not provide any more information.  The officer harbors stereotypical views about religion and therefore decides that investigators should focus on individuals of a particular faith. Doing so would be impermissible because a law enforcement officer’s stereotypical beliefs never provide a reasonable basis to undertake a law enforcement or intelligence action.

• An FBI field office attempts to map out the features of the city within its area of responsibility in order to gain a better understanding of potential liaison contacts and outreach opportunities. In doing so, the office acquires information from public sources regarding population demographics, including concentrations of ethnic groups. This activity is permissible if it is undertaken pursuant to an authorized intelligence or investigative purpose. The activity would not be permitted without such an authorized purpose or in circumstances that do not otherwise meet the requirements of this Guidance.

MSNBC reports on release of the new guidelines.

Burma Sues Author For Insultig Buddhism

In Burma last month, an official of the Department of Immigration in northwestern Chaung-U Township, at the request of local Buddhist clergy, filed a lawsuit against prominent writer and National League for Democracy member Htin Lin Oo, charging him with violation of Burmese statutes prohibiting the causing of religious offense.  Irrawaddy reported yesterday on the suit filed Nov. 20 which grew out of a two-hour speech that Htin Lin Oo delivered at a literary event on Oct. 23.  In the speech, he decried those who use Buddhism as an excuse for prejudice and discrimination. When a 10-minute excerpt from the speech was widely shared on social media, the Patriotic Buddhist Monks Union issued statement denouncing it. Htin Lin Oo says that people should listen to the entire speech before they react.  The suit charges Htin Lin Oo with violating Myanmar Penal Code Sec. 295-A (Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs), and Sec. 298 (Uttering words, etc; with deliberate intent to wound religious feelings).

Former High School Softball Players' Suit On School Religious Activites Moves Ahead

In Ryan v. Mesa Unified School District, (D AZ, Dec. 5, 2014), three former members of a Mesa, Arizona high school varsity girls' softball team sued the school district and the softball coach, Joseph Goodman, over various religious activities. The court held that plaintiffs lacked standing to challenge the school's LDS Church released time program. However, the court permitted plaintiffs to move ahead with two other claims, but only against Coach Goodman:

First, the court allowed an Establishment Clause claim alleging that during the 2013-14 girls softball season, certain players were appointed “prayer leaders” to lead a team prayer at the beginning of every game. Plaintiffs were dismissed from the team after one of them announced, and the others supported, an end to these prayers.

Second, the court allowed a free speech claim growing out of a 2014 softball tournament where hip-hop and other popular music was played to get players in a proper mental state for the game. One of the plaintiffs, the daughter of an LDS Church member, found the music offensive to her religious sensibilities. During the same tournament, the LDS parent of that plaintiff read a speech from a Tweet by another of the plaintiffs, and the content of the Tweet was reported to Coach Goodman.  Apparently this was related to the reason for plaintiffs' dismissal from the team.

Claims of Mislabeling of Dietary Supplements Did Not Infringe Free Exercise Rights

In State of Texas v. Valerie Saxion, Inc., (TX App., Dec. 4, 2014), a Texas state appellate court rejected arguments by defendant and her company that the state was infringing their free exercise rights by proceeding against them with charges that their mislabeling and misbranding of dietary supplements violated the Texas Food, Drug, and Cosmetic Act and the Deceptive Trade Practices Act. Defendant argued that her statements were based on sincerely held religious beliefs.  The court concluded, however:

The twenty-four “practices in pursuit and conduct of trade or commerce” listed by the State in its live pleading do not seek to restrain Saxion from practicing any religious beliefs or expressing any religious opinions..... Rather, the relief sought by the State attempts to regulate the advertising and sale of certain dietary supplements as a proper restraint on commercial speech necessary to protect the public..... Therefore [defendant] ... failed to allege a viable ultra vires claim with regard to her free-exercise-of-religion rights and the attorney general’s discretion and authority to enforce the TFDCA and DTPA.

Recent Articles of Interest

From SSRN:

• Helen A. Alvare, Same-Sex Marriage and the 'Reconceiving' of Children, (Case Western Reserve Law Review, Vol. 64, No. 3, pp. 829-862, 2014).
• Odetayo Samson, A Critical Assessment of the Validity and Recognition of Same Sex Marriage Under the Nigerian Legal System, (October 16, 2014).
• Ankita Bharadwaj, Adultery- Judicial Interpretation and the Law Under Various Personal Laws in India, (November 22, 2014).
• Valentino Cattelan, Property (Mal) and Credit Relations in Islamic Law: An Explanation of Dayn and the Function of Legal Personality (Dhimma), (Arab Law Quarterly, Forthcoming).
• Christine A. Corcos, The Scrying Game: The First Amendment, State Regulation of the Crafty Sciences, and the Rise of Spiritualism, 1848-1944, (January 16, 2013).
• Ioanna Tourkochoriti, The New Regulation Against Hate Speech in Greece: Strengths and Weaknesses, (Council for European Studies, Reviews & Critical Commentary (CritCom) Columbia University, Forthcoming).
• George K. Yin, The IRS's Misuse of Scarce Compliance Resources in the Exempt Organization Area, (December 5, 2014).

From SmartCILP:

• Hossein Mir Mohammad Sadeghi, Filling the Gap In Favor of the Accused: The Approach of Islamic Criminal Law In Light of the Rule No Punishment In Case Of Doubt, [Abstract], 29 Tulane European & Civil Law Forum 147-156 (2014).

Recent Prisoner Free Exercise Cases

In Mitchell v. Fox, (9th Cir., Dec. 5, 2014), the 9th Circuit affirmed the dismissal of an inmate's complaint that prison officials destroyed and confiscated his religious property. Plaintiff had not shown that this constituted a substantial burden on his practice of religion.

In Mehmood v. United States Marshals Service, 2014 U.S. Dist. LEXIS 166386 (ED CA, Dec. 1, 2014), a California federal magistrate judge permitted a Muslim federal pre-trail detainee housed in a county jail to proceed with claims under the Free Exercise and Establishment clauses objecting to the diet furnished to him in response to his request for halal food, and denial of various religious items and of the ability to leave his cell 5 times a day to pray. His equal protection and RLUIPA claims were dismissed with leave to amend.

In Evans v. Godinez, (IL App., Dec. 1, 2014), an Illinois appellate court affirmed the trial court's dismissal of a complaint by a Nation of Islam inmate seeking space and time for weekly inmate-led NOI study groups and prayer sessions.

In Brame v. Hodge, 2014 U.S. Dist. LEXIS 166586 (SD IL, Dec. 2, 2014), an Illinois federal district court denied a preliminary injunction to a Hebrew Israelite inmate who claims he suffered retaliation because of a lawsuit he filed complaining that he was denied a kosher diet, attendance at Jewish services, and participation in Jewish holidays.

In Reiske v. Bruno, 2014 U.S. Dist. LEXIS 167443 (D CT, Dec. 3, 2014), a Connecticut federal district court dismissed a Wiccan inmate's complaint that he was not permitted to purchase various religious items, including religious oils and a pendant cord.

In Ajala v. West, 2014 U.S. Dist. LEXIS 168602 (WD WI, Dec. 5, 2014), a Wisconsin federal district court vacated its earlier order and allowed a Muslim inmate to proceed with his complaint that he was denied Ramadan meal accommodations, but affirmed the earlier dismissal of his complaint regarding his Eid-al-Fitr meal.

NYT Surveys Atheists' Push To Remove Belief Requirement For Public Office

The New York Times posted an article yesterday titled In Seven States, Atheists Push to End Largely Forgotten Ban. Reporting on the bans in Maryland, Arkansas, Mississippi, North Carolina, South Carolina, Tennessee and Texas, it says in part:

Maryland and six other states still have articles in their constitutions saying people who do not believe in God are not eligible to hold public office. Maryland’s Constitution still says belief in God is a requirement even for jurors and witnesses.

Now a coalition of nonbelievers says it is time to get rid of the atheist bans because they are discriminatory, offensive and unconstitutional. The bans are unenforceable dead letters, legal experts say, and state and local governments have rarely invoked them in recent years. But for some secular Americans, who are increasingly visible and organized, removing the bans is not only a just cause, but a test of their growing movement’s political clout.

Iowa's Flag Desecration and Misuse Laws Invalidated In Suit By Westboro Baptist Church Demonstrators

In Phelps v. Red Oak Police Chief, (SD IA, Dec. 3, 2014), an Iowa federal district court held Iowa's flag desecration and flag misuse statutes unconstitutional on their face because of their overbreadth.  The holding comes in a free expression challenge to the laws by members of the Westboro Baptist Church who regularly picket funerals of soldiers and participate in other protests. Plaintiffs allege that Red Oak police threatened to enforce the statutes against them, leading them to refrain from dragging the flag on the ground and wearing it on their bodies as part of their demonstrations. The court rejected plaintiff's additional argument that the laws infringed her free exercise of religion.

IRS Shifts Offices Responsible For Legal Rulings On Tax Exempt Organization Issues

In Announcement 2014-34, issued last Wednesday, the Internal Revenue Service announced that beginning Jan. 2, it is shifting responsibility for making various legal rulings regarding tax-exempt organizations from the much-criticized Tax Exempt and Government Entities Division based in Cincinnati to the office of Associate Chief Counsel (Tax Exempt and Government Entities) based in Washington. Shifting to Washington is "the authority to prepare revenue rulings, revenue procedures, announcements, and notices, and to issue technical advice (including technical advice memoranda (TAMs)), certain letter rulings, and certain information letters" on tax-exempt organization issues.  The Cincinnati office will retain authority to issue determination letters on the exempt status of organizations under §§ 501(c) and 521.  Law 360 reports on the IRS action.

Paper Says Israel's Outgoing Government Failed To Remove Advantages to Haredi Community

As Israel moves toward new parliamentary elections in March, yesterday's Jerusalem Post carried a lengthy article detailing the modest progress, at best, made by the outgoing coalition government on the goal of ending special benefits enjoyed by the country's ultra-Orthodox Jewish population.

Supreme Court Will Review 5th Circuit Decision On Specialty License Plates

As reported by SCOTUS blog, yesterday the U.S. Supreme Court granted certiorari in Walker v. Sons of Confederate Veterans, (Docket No. 14-144, cert. granted 12/5/2014). (Order List). In the case, the 5th Circuit Court of Appeals held in a 2-1 decision that messages on state specialty license plates are private speech, not government speech.  The majority also concluded that the Texas Department of Motor Vehicles Board engaged in unconstitutional viewpoint discrimination when it rejected a specialty plate design that included the Confederate battle flag. Texas rejected the design because many members of the public found it offensive.  (See prior posting.) The petition for certiorari focused on two issues-- whether messages and images on specialty plates are government speech; and whether denial of a plate can involve viewpoint discrimination if the state never issued a plate expressing a different message on the same subject.

Reporting on the Court's grant of cert., the Washington Post points out that the Court still has before it a petition for certiorari in ACLU v. Tata involving North Carolina's authorization of a "Choose Life" specialty plate while it refused to issue a pro-choice plate. (See prior posting.)

Georgetown Law Student Sues Rabbi Accused of Mikvah Voyeurism

As previously reported, in October Rabbi Barry Freundel, head of Washington, D.C.'s Kesher Israel synagogue, was arrested for electronic voyeurism. Freundel was charged with using hidden cameras at the synagogue's mikvah (ritual bath) so he could view women disrobing there. Freundel was also an adjunct professor at Georgetown Law School where he co-taught a seminar.  The Washington Post and The Forward report that last Tuesday a female Georgetown Law student filed a class action against Kesher Israel, the National Capital Mikvah and Georgetown Law School, alleging that:

Defendants turned a blind eye to obvious signs of Freundel’s increasingly bizarre behavior, ignoring the bright red flags that Freundel was acting inappropriately with women subjected to his authority.

The Jewish student says that she used the Mikvah twice as part of her research for a paper titled "The Mikvah: Expanding the Ritual for Jewish Women," and each time Freundel accompanied her to the changing room and then left.

UPDATE: The Forward (Dec. 24) reports that two additional suits, also seeking class action status, were filed against Kesher Israel and the Rabbinical Council of America on Dec. 2 and Dec. 18 respectively.  The suits claim that defendants should have acted sooner to remove Freundel from his positions of authority.

Cert. Petition Filed In Challenge To New Jersey Ban On Reparative Therapy For Minors

On Wednesday, a petition for certiorari (full text) was filed with the U.S. Supreme Court in King v. Governor of New Jersey.  In the case, the 3rd Circuit upheld New Jersey's statute barring professional counselors from engaging in sexual orientation change therapy with minors. (See prior posting.)  Liberty Counsel issued a press release announcing the filing of the petition for review.

French Court Says Local Council's Nativity Scene Violates Principle of Secularism

On Tuesday in France, the Nantes administrative court ruled that the traditional nativity scene that for years has been placed at the entrance to the Vendee government's council building in La Roche-sur-Yon must be removed. As reported by The Local, the court held that the display is inconsistent with the principle of secularism (laicitie) embodied in France's 1905 Law on Separation of Churches and State. The ruling came in a case filed by the local Free Thinking Association, and shortly after a Belgian activist group tore down a nativity scene in Brussels.

Israeli Court Rules Messianics' Commercial Guest House Cannot Reject Same-Sex Wedding Reception

In Israel, a Jerusalem district court has held that the Messianic Jewish village of Yad Hashmonah violated Israel's anti-discrimination laws when it refused to rent out their guest house facilities to a lesbian couple for a wedding reception.  According to yesterday's Israel Today, the court concluded that the guest house was operated as a secular commercial establishment open to the public and is thus subject to Israel's public accommodation anti-discrimination laws. It is completely separate from the village's religious meeting room.  The court, affirming a damage award equivalent to $15,000 (US), rejected the village's argument that "the laws regulating freedom of religion must protect us from allowing a ceremony in our backyard which is in complete contradiction to our faith."

Indian Court Orders Frozen Body of Spiritual Leader Released For Last Rites; Appeal Is Filed

In Chandigarh, India, officials of the spiritual organization Divya Jyoti Jagriti Sansthan petitioned the High Court of Punjab and Haryana for review by a Division Bench of a single judge's order issued on December 1 requiring last rites to be performed on the organization's leader Ashutosh Maharaj by December 15.  As reported by the Economic Times, Ashutosh was declared clinically dead by doctors last January. However some of his followers placed his body inside a deep freezer claiming that he had merely gone into a deep state of meditation (samadhi). Another follower, Dalip Kumar Jha, last April petitioned the High Court to release Ashutosh's body to him for last rites and also investigate the cause of Ashutosh's mysterious death.

UPDATE: On Dec. 15, a Division Bench of the High Court stayed the single judge's order, at least unitl the next hearing on Feb. 9. (AFP).

Marriage Equality Decision Stayed In Mississippi, But Not In Florida

In Campaign for Southern Equality v. Bryant, (5th Cir., Dec. 4, 2014), the U.S. 5th Circuit Court of Appeals granted a stay pending appeal of a district court injunction invalidating Mississippi's ban on same-sex marriage. (See prior posting.) In granting the stay, the court said:

It is not our task today to resolve the merits of this conflict in deciding the instant motion, however, we are convinced by the opinions of our sister circuits that “a detailed and in depth examination of this serious legal issue” is warranted before a disruption of a long standing status quo.

Meanwhile in Brenner v. Armstrong, (11th Cir., Dec. 3, 2014), the U.S. 11th Circuit Court of Appeals refused to extend beyond January 5 a previous stay of a federal district court decision handed down last August invalidating Florida's ban on same-sex marriage.  As reported by SCOTUS blog, the situation in Florida, however, is confused because of several state court rulings that have been stayed pending state court appeals.

5th Circuit Stays Execution of Man Who Believes His Sentence Is A Satanic Plot

On Wednesday, the U.S. 5th Circuit Court of Appeals stayed the execution of Scott Panetti in order to "fully consider the late arriving and complex legal questions at issue...." (Full text of court's decision.) As reported by Newsweek, Panetti (who was convicted of murdering the parents of his second wife) suffers from  schizophrenia, and his case brings back the question of when it is constitutionally permissible to execute someone who is mentally ill. (Background.)  According to Texas Defender Service, Panetti (acting without a defense lawyer) attempted at his trial to subpoena the Pope, John F. Kennedy, and Jesus.  He believes that his execution is being orchestrated by Satan, working through the State of Texas, to end his preaching the Gospel to condemned prisoners.

Fired Gay Church Music Director Files Discrimination Complaints

Yesterday's Chicago Tribune reports that Colin Collette, who had been employed for 17 years as a  music director at Holy Family Catholic Community in Inverness, Illinois, has filed discrimination complaints with the federal EEOC and the Cook County Human Rights Commission. Collette was fired in July after he announced that-- now that same-sex marriage is legal in Illinois-- he was engaged to be married to his longtime partner Will Nifong.  Collette says church leaders knew he was gay long before he posted his engagement notice on Facebook.  His complaints, naming a priest and a parish manager as respondents, allege discrimination on the basis of sex, sexual orientation and marital status.

D.C. Repeals Sexual Orientation Discrimination Exemption For Private Religious Schools

On Dec. 2, the District of Columbia City Council passed (vote history) B20-803 (full text) which repeals the religious educational institution exemption to certain provisions of the D.C. Human Rights Act.  The new law repeals D.C. Code Sec.2-1402.41(3) which read:

(3) Notwithstanding any other provision of the laws of the District of Columbia, it shall not be an unlawful discriminatory practice in the District of Columbia for any educational institution that is affiliated with a religious organization or closely associated with the tenets of a religious organization to deny, restrict, abridge, or condition -

(A) The use of any fund, service, facility, or benefit; or

(B) The granting of any endorsement, approval, or recognition, to any person or persons that are organized for, or engaged in, promoting, encouraging, or condoning any homosexual act, lifestyle, orientation, or belief.

Conservative Christian organizations opposed the bill, as reflected by this letter from Liberty Counsel.

White House Christmas Theme Announced

Yesterday the White House issued a press release captioned Information on White House Christmas 2014. It reveals that the theme for this year is "A Children's Winter Wonderland."  The release outlines at length the decorations in each part of the White House. It also highlights a high tech innovation:

For the first time ever this year, the White House hosted a 3D Printed Ornament Challenge, in collaboration with the Smithsonian and Instructables..... From a holiday Abe Lincoln and happy snowmen to a map of highways in the United States, the Challenge received over 300 designs, many of which were creative, whimsical and beautiful.....

The Challenge highlights the importance of the Maker Movement and the way that tools and technologies like 3D printing are enabling more people to take their ideas and turn them into reality. Educators are increasingly using technologies like 3D printing to engage students in a hands-on approach to learning about STEM.

Satanic Temple Gets OK For Its December Display In Florida Capitol

Slate reports that Florida's Department of Management Services this week officially approved an application by the Satanic Temple to place a religious display of an angel falling into a pit of fire in the Rotunda of the state capitol building from Dec. 22-29.  In a press release issued Tuesday, Americans United for Separation of Church and State said it had threatened to file a lawsuit on the Temple's behalf. The state last year rejected the Satanic Temple's request under rules that designate the Rotunda as an open forum for private speech, but allow exclusions of displays that are grossly offensive.

Court Dismisses Challenge By Theists To Kansas Science Standards

In COPE v. Kansas State Board of Education, (D KA, Dec. 2, 2014), a Kansas federal district court dismissed on 11th Amendment and standing grounds a challenge to the Kansas State Board of Education science Framework and Standards. Students, parents, taxpayers and a non-profit organization sued claiming that adoption of these guidelines "will cause Kansas public schools to establish and endorse a non-theistic religious worldview in violation of the Establishment, Free Exercise, and Speech Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment."  As further explained by the court:

Plaintiffs contend that the Standards ... use... deceptive methods to lead impressionable children to answer questions about the cause of life with only materialistic or atheistic answers.

In its 25-page discussion of standing, the court said in part:

The Court concludes that our Circuit, when confronted with plaintiffs’ standing argument in this case, would follow the reasoning used by the Seventh and District of Columbia Circuits and hold that plaintiffs lack standing to sue where the only injury alleged is based on a “message” of government endorsement of religion.

AP reports on the decision. COPE has links to pleadings in the case.

European Court Says Turkey Discriminated Against Alevi Houses of Worship

In Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfi v. Turkey, (ECHR, Dec, 2, 2014) (full text in French), the European Court of Human Rights in a Chamber Judgment held that Turkey had violated the European Convention on Human Rights (Art. 9 and 14) in its discriminatory treatment of Alevi houses of worship (cemevis),  As summarized by the Court's English language press release:

Turkish law reserved the exemption from payment of electricity bills to recognised places of worship and that, by excluding cemevis from the benefit of that status, it introduced a difference in treatment on the ground of religion.

Turkey's Daily News calls the decision a landmark ruling and says:

The Dec. 2 ruling comes after the Turkish government recently announced a fresh set of reforms aimed at answering the demands of Alevis. These reforms were greeted with considerable skepticism among Alevis, as they once again failed to recognize cemevis as official places of worship.

Chamber judgments are appealable to the Grand Chamber of the Court.

County Votes For Disclaimer On Courthouse Nativity Scene

In Baxter County, Arkansas, the Quorum Court (the equivalent of a county council) voted unanimously yesterday to add a sign containing a disclaimer to the Nativity Scene that traditionally goes up on the county courthouse lawn.  According to the Baxter Bulletin, the creche is put up and taken down by a private family on a portion of the lawn that is leased to the Chamber of Commerce for the display.  Reacting to last Christmas season's complaint from the Appignani Humanist Legal Center, the county approved the following disclaimer:

During the Holiday Season, the County of Baxter salutes liberty. Let these festive lights and times remind us that we are keepers of the flame of liberty and our legacy of freedom. Whatever your religion or beliefs, enjoy the holidays. This display is owned and erected by private citizens of Baxter County.

Mosques: Georgia Town Rejects One After Anti-Islam Protests While New Jersey Town Settles Suit Allowing One

Think Progress reports on the 4-1 vote by Kennesaw, Georgia city council on Monday rejecting the request of a Muslim group to rent space in a strip mall to use for daily and Friday prayers. The action comes after two weeks of heated debate featuring anti-Muslim rhetoric. Protesters outside city council carried signs with slogans such as "Islam Wants No Peace." An anti-Muslim group posted personal information-- including home address and children's pictures-- online about the one council member who favored allowing the mosque. The mayor however says the mosque could increase traffic and interfere with nearby businesses,

UPDATE: On Dec. 15, city council reversed itself and unanimously approved the mosque. (WABE News).

Meanwhile, the town of Bridgewater, New Jersey has reached a settlement with a Muslim group in Al Falah Center v. Township of Bridgewater, after the mosque won a preliminary injunction. (See prior posting).  As reported by NJ,com, the RLUIPA challenge to the township's zoning law amendment was resolved by the mosque exchanging its original property for a $2.75 million parcel at a different location purchased by the township, and payment of $5 million in damages and attorney's fees by the township's insurer.

Suit Challenges School-Sponsored Religious Activity

On Monday, the American Humanist Association and three individuals filed suit against the Hall County Georgia School District seeking to enjoin prayers and religious activities that are part of the District's football and other athletic programs. (Press release.) The complaint (full text) in American Humanist Association, Inc. v. Hall County School District, (ND GA, filed 12/1/2014) alleges in part:

This action challenges Defendants’ policy, practice, and custom of  authorizing faculty, coaches and other school officials to lead and participate in prayer with students during school-sponsored activities, and their policy, practice, and custom of inserting biblical references into official football team documents and banners, in violation of the Establishment Clause.

Oklahoma School District Drops Plans For Bible Course

Religion News Service reported last week that the Mustang, Oklahoma School District has dropped its plans to offer a Bible course using materials developed by the Museum of the Bible-- an organization funded by Hobby Lobby president Steve Green.  Critics of the Bible curriculum say it adopts the conservative Christian belief that the Bible is inerrant. The school district says it dropped plans for the course when the district was not able to review the final curriculum, and did not receive a commitment from the course developers to provide legal coverage to the district if it is sued over the course.

Suit Charges Jehovah's Witnesses With Covering Up Child Abuse

The Oregonian reports that yesterday a $10.5 million lawsuit was filed in state court in Oregon against Jehovah's Witness organizations claiming that they have a policy of covering up sexual abuse of minors by Jehovah's Witness leaders.  The suit was brought by a man and a woman, adults now, who claim they were molested as children by Daniel Castellanos, who held a position equivalent to an ordained minister of a congregation. Plaintiffs' attorney says that the Jehovah's Witness governing body does not disfellowship an alleged abuser unless he confesses or they have two eyewitnesses to the abuse. Even then the congregation is not told why the action occurred.

ERISA "Church Plan" Definition Certified For Interlocutory Appeal To 9th Circuit

In Rollins v. Dignity Health, Inc., (ND CA, Nov. 26, 2014), a California federal district court, reversing it own earlier decision, certified for interlocutory appeal to the 9th Circuit its ruling that the pension plan for employees of  Dignity Health, a 16-state non-profit Catholic health care provider, does not qualify for the "church plan" exemption in ERISA. The court said that it is now persuaded that there is a "controlling question of law" involved such that an interlocutory appeal would be appropriate. The court said:

Dignity estimates having to spend several thousand additional attorney hours, costing in excess of $500,000, to respond to the currently pending and expected discovery requests, in addition to incurring several hundred thousand dollars in attorneys’ fees in responding to Plaintiff’s currently pending motions.... These costs could be avoided, perhaps entirely, by a reversal at the Court of Appeals.

The district court stayed all further proceedings in the case until the 9th Circuit decides whether to take the appeal.  If the 9th Circuit were to decide the plan qualifies as a church plan, the court could ultimately be faced with plaintiffs' argument that the church plan exemption violates the Establishment Clause. Sacramento Business Journal reports on the court's action.

7th Circuit Rejects Appeal of Non-Final Order By Catholic Diocese Sued Over Firing of Teacher

In Herx v. Diocese of Fort Wayne-South Bend, Inc., (7th Cir., Dec. 1, 2014), the 7th Circuit rejected on procedural grounds defendant's appeal from denial of its summary judgment motion seeking dismissal of the employment discrimination suit against it. The district court ruled that a Catholic school teacher who was fired because she underwent in vitro feritilization-- a procedure inconsistent with Catholic teachings-- can move ahead with her claim of sex discrimination under Title VII of the 1964 Civil Rights Act.  The district court rejected various defenses raised by the diocese. (See prior posting.) The 7th Circuit held that the trial court's refusal to dismiss the case is not a final order and thus is not appealable.  The court held that the narrow exception for review of certain collateral orders does not apply to this case. The Diocese will be able to pursue its objections after a final order is issued in the case. The Fort Wayne Journal-Gazette reports on the 7th Circuit's decision.

Supreme Court Denies Cert. In Suit By Police Officer Who Refused To Attend Event At Mosque

The U.S. Supreme Court today denied certiorari in Fields v. Tulsa, Oklahoma, (Docket No. 14-323, cert. denied 12/1/2014). (Order List.)  In the case, the 10th Circuit rejected a free exercise claim brought by a Tulsa, Oklahoma police captain who was ordered to arrange for two officers and a supervisor to attend a police appreciation day held at the Islamic Society of Tulsa. (See prior posting.) News OK reports on the high court's action.

Recent Articles and Book of Interest

From SSRN:

• Khaled A. Beydoun, Between Muslim and White: The Legal Construction of Arab American Identity, 69 N.Y.U. Ann. Surv. Am. L. 29 (2013).
• Ayelet Blecher-Prigat, A Constitutional Right to Marry: Israeli Style, (47 Israel Law Review 433 (2014)).
• Sherif Girgis, Windsor: Lochnerizing on Marriage?, (Case Western Reserve Law Review, Vol. 64, No. 3, 2014). 

From SmartCILP:

• J. Michael Martin, Why Congress Adopted the Church Audit Procedures Act and What Must Be Done Now To Restore the Law for Churches and the IRS, 29 Akron Tax Journal 1-27 (2014).

Forthcoming Book:

• Roberta Rosenthal Kwall, The Myth of the Cultural Jew: Culture and Law in Jewish Tradition, (Oxford University Press, Feb. 2015). (Introduction).

British Lords Discuss Religion In Public Life

In Britain on Thursday, the House of Lords, after a lengthy debate (full text), passed a motion reading: "this House takes note of the role of religion and belief in British public life."  While the motion seems unremarkable, the Lords' debate on it (to read full debate, click on "Next Section" at bottom of each page of text) sheds interesting light on religion and politics in Britain.  The motion was put forward by Lord Richard Harries of Pentregarth, a retired bishop of the Church of England. Here is part of his lengthy remarks on the resolution:

In the 2011 census there was a voluntary question about religion. This revealed the presence of 33.2 million Christians—59% of the country, down from 72% in 2001.... At the same time, the Muslim presence was revealed as 2.7 million—4.8% of the population, up from 3% in 2001. Other religions also showed an increase. Hindus were up to 1.5% of the population and Sikhs up to 0.8%—the same figure as for a combination of all other religions, except for Judaism, which remained static on 0.5%

No less significant was the number of people who said that they had no religion—14.1 million or 25.1% of the population, up from 14.8% in 2001, making it the second largest category after Christianity. To this might be added the large number of people who prefer to define themselves as spiritual, rather than religious....

However, it is not just the presence of non-Christian religions and those who profess no religion that has made the difference. It is that religion is visible and agitative in a way that it was not before. It has a voice, or rather a variety of voices that want to be heard in the public sphere. They are not content to have religion confined to the inward and personal dimension. So it is, for example, that issues concerning the wearing of the cross and employment practices have found their way to the European Court of Human Rights, and there have been major issues concerning religion in schools, as we know.

In short, whether one likes it or not, religion is now a major player on the public stage in a way that could not have been envisaged perhaps even 30 years ago.

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

Recent Prisoner Free Exercise Cases

In Ajala v. West, 2014 U.S. Dist. LEXIS 163003 (WD WI, Nov. 19,2014), a Wisconsin federal district court dismissed a Muslim inmate's complaint that he was denied a halal diet and that officials refused to serve him the prepackaged meals that Jewish prisoners receiving kosher meals received.

In Dockery v. Wetzel, 2014 U.S. Dist. LEXIS 163403 (MD PA, Nov. 21, 2014), a Pennsylvania federal district court dismissed a Muslim inmate's complaint that his request for a halal diet with meat was refused; that he was not permitted to leave his unit (one for inmates with serious mental health and disciplinary problems) to attend Jumu'ah services with the general population; and he was not permitted to view religious services on closed circuit TV.

In Graddy v. Ding, 2014 U.S. Dist. LEXIS 163489 (ED CA, Nov, 20, 2014), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that he was not allowed to participate in Ramadan activities while on "C Status" because of his misbehavior.

In Nji v. Heath, 2014 U.S. Dist. LEXIS 163060 (SD NY, Nov. 10, 2014), a New York federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that as a keeplock inmate he was not allowed to attend Christmas religious services.

In Houston v. Schriro, 2014 U.S. Dist. LEXIS 165409 (SD NY, Nov. 24, 2014), a New York federal district court allowed an inmate to proceed with his complaint that he was denied low-sodium halal meals.

Pope Francis Visiting Turkey Decries ISIL Violence

Pope Francis is in the midst of a 3-day visit to Turkey.  Yesterday in Ankara he spoke to religious and political leaders in an address to the Presidency of Religious Affairs, the "Diyanet." (Full text of speech). He said in part:

Especially tragic is the situation in the Middle East, above all in Iraq and Syria. Everyone suffers the consequences of these conflicts, and the humanitarian situation is unbearable..... Particular concern arises from the fact that, owing mainly to an extremist and fundamentalist group, entire communities, especially – though not exclusively – Christians and Yazidis, have suffered and continue to suffer barbaric violence simply because of their ethnic and religious identity. They have been forcibly evicted from their homes.... This violence has also brought damage to sacred buildings, monuments, religious symbols and cultural patrimony, as if trying to erase every trace, every memory of the other.

As religious leaders, we are obliged to denounce all violations against human dignity and human rights.... [A]ny violence which seeks religious justification warrants the strongest condemnation because the Omnipotent is the God of life and peace. The world expects those who claim to adore God to be men and women of peace who are capable of living as brothers and sisters, regardless of ethnic, religious, cultural or ideological differences.

False Anti-Muslim Speech Protected By 1st Amendment

In American Freedom Defense Initiative v. Southeastern Pennsylvania Transportation Authority ("SEPTA"), (ED PA, Nov. 25, 2014), a Pennsylvania federal district court granted a motion to exclude expert testimony on the falsity of language in an anti-Islam ad which an advocacy group wants to place on public buses. SEPTA refused to accept the ad under its policy to refuse copy that, among other things, disparages on the basis of religious belief.  AFDI sued claiming this rejection violates its free speech rights.  In the lawsuit, SEPTA sought to offer expert testimony that the ad's referring to Haj Amin al-Husseini as the “leader of the Muslim world” is false and that the statement “the Quar’an teaches Jew-Hatred” is “unfair and erroneous.” The court concluded however that the proposed testimony is irrelevant because the 1st Amendment protects false speech as well as accurate expression. The court also rejected as too attenuated the argument that the ad amounts to a fraudulent charitable solicitation.  The website listed in the ad links to a second website at which charitable contributions can be made. WND's report on the decision includes a photo of the disputed ad.

District Courts Reach Conflicting Results In Challenges To ACA Religious Non-Profit Contraceptive Accommodation

In Association of Christian Schools International v. Burwell, (D CO, Nov. 26, 2014), a Colorado federal district court upheld the Obama administration's most recent accommodation for religious non-profits that have conscience objections to the contraceptive coverage mandate under the Affordable Care Act.  The court rejected RFRA challenges by 5 non-profits, concluding that the accommodation "imposes a de minimis rather than a substantial burden on plaintiffs’ religious exercise."  The court explained:

All that plaintiffs are required to do under the new accommodation is provide a single sheet of paper that attests to their sincere religious objection and identifies their insurance provider or third-party administrator.... Plaintiffs claim that, by invoking the new accommodation via written notice, they would be “enabling the government’s scheme to facilitate free access to abortifacient services[.]”... But plaintiffs’ involvement with the administration of the mandate ends the moment they submit the written notice opting out of paying for contraceptive coverage. Plaintiffs’ objection is not to the notice they must submit to the government, but rather to the actions of third parties that will occur afterwards.

Plaintiffs in the case were educational institutions, a health care sharing organization and the legal advocacy organization Alliance Defending Freedom.

However, in Insight for Living Ministries v. Burwell, (ED TX, Nov 25, 2014), a Texas federal magistrate judge issued a preliminary injunction barring the federal government from enforcing the accommodation against a Christian radio broadcast ministry, saying:

The Court finds, and Defendants do not dispute, that IFLM holds sincere religious beliefs against providing certain drugs or devices which potentially could harm or kill a fertilized human egg. The accommodation compels or pressures IFLM to perform an act that it was not already performing. The nature of the accommodation provided by the Government would cause IFLM to facilitate, participate, and assist in, actions resulting in the provision of the abortionfacient drugs and renders IFLM complicit in providing its employees with what it contends are abortionfacient drugs....

Requiring IFLM to certify its objections to HHS (or to its TPA) requires IFLM to participate and act in the very arrangement to which it objects on the basis of its sincerely held religious beliefs. The Court therefore finds that IFLM is substantially burdened in its religious exercise.

Suit Says Police Promoted Prayer Vigil

The American Humanist Association announced this week that it has filed an Establishment Clause lawsuit against the City of Ocala, Florida and its police department over a Sept. 24 community prayer vigil.  The complaint (full text) in American Humanist Association, Inc. v. City of Ocala, Florida, (MD FL, filed 11/24/2014), says that police in their uniforms spoke and preached at the vigil which had been promoted by the police chief on the police department's Facebook page.  The suit seeks a declaratory judgment and injunction.

President Issues Thanksgiving Day 2014 Proclamation

Yesterday the President issued the Thanksgiving Day 2014 Presidential Proclamation, officially proclaiming today as a National Day of Thanksgiving. The Proclamation reads in part:

With God's grace, this holiday season we carry forward the legacy of our forebears.  In the company of our loved ones, we give thanks for the people we care about and the joy we share, and we remember those who are less fortunate.  At shelters and soup kitchens, Americans give meaning to the simple truth that binds us together:  we are our brother's and our sister's keepers.  We remember how a determined people set out for a better world -- how through faith and the charity of others, they forged a new life built on freedom and opportunity.

Florida and Texas Churches Successfully Challenge Zoning Denials

This week, churches in Florida and Texas were successful in their RLUIPA challenges to zoning denials.

In Church of Our Savior v. City of Jacksonville, (MD FL, Nov. 25, 2014), a church prevailed on its RLUIPA "as applied" equal terms challenge to Jacksonville, Florida's denial of a conditional use permit. A Florida federal district court found that the city granted a permit to a Montessori school to operate in a residentially zoned area, while denying it to the church, thereby creating less than equal treatment.  The court went on to hold that the city had not shown that its two denials of conditional use permit applications were narrowly tailored to further compelling interests.  The court held that the city's actions did not violate various other provisions of RLUIPA, including RLUIPA's "substantial burden" provisions. [Thanks to Dan Dalton for the lead.]

In Cornerstone Church By the Bay v. Town of Bayview, (SD TX, Nov. 24, 2014), a Texas federal district court a preliminary injunction agreed to by both parties that apparently envisions that the town will grant a special use variance to allow a congregation to operate a church and school on property it owns in an area zoned residential. The injunction prevents the town from enforcing the zoning ordinance or interfering with the church's operation while the church applies for the required permits. Liberty Institute reports on the court's action and provides further background and links to the pleadings.

Arkansas, Mississippi Same-Sex Marriage Bans Invalidated

Yesterday federal district courts in two more states-- Arkansas and Mississippi-- struck down state bans on same-sex marriage.  In each case, the ruling was stayed to permit an appeal.

In Austin v. Crane, (ED AR, Nov. 25, 2014), an Arkansas federal district court held that Arkansas' state constitutional and statutory restrictions on same-sex marriage "deny consenting adult same-sex couples their fundamental right to marry," and impose unconstitutional gender classifications. Issuance of an injunction was stayed to permit a timely appeal to the 8th Circuit. AP reports on developments.

In a separate case, last May an Arkansas state trial court struck down Arkansas' same-sex marriage ban (see prior posting), and that case is currently on appeal.  In yesterday's decision, the federal court rejected arguments that it should therefore abstain.

In Campaign for Southern Equality v. Bryant, (SD MS, Nov. 25, 2014), a Mississippi federal district court held that:

Mississippi’s same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law. Gay and lesbian citizens cannot be subjected to such second-class citizenship. Mississippi’s same-sex marriage ban violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The court issued a preliminary injunction, but stayed it for 14 days to permit an appeal to the 5th Circuit. The Clarion-Ledger reports.

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.