Challenge To Florida School Choice Expansion Dismissed On Standing Grounds

In Faasse v. Scott, (FL Cir. Ct., Dec. 30, 2014), a Florida state trial court dismissed for lack of standing a suit by Florida teachers challenging a statute passed last year expanding private-school choice by creating Personal Learning Scholarship Accounts for special needs students and expanding the existing Florida Tax Credit Scholarship Program.  Plaintiffs contended that SB 850 violates the state constitution's single subject requirement.  The court held that plaintiffs failed to show that they suffered any special injury. Links to all the pleadings in the case are available here.  RedefinED reported on the decision.

Law Aimed At Religion-Based Terrorists On Fast Track In Pakistan's Parliament

In Pakistan on Saturday, the government introduced two new bills in response to the Taliban terrorist attack last month on the Army Public School in the city of Peshwar that killed 145 people (including 132 schoolchildren). The bills will sunset after two years. As reported by The News, The Constitution (21st Amendment) Bill, 2015, will allow terrorists to be tried in military courts. The Pakistan Army Act, 1952 (Amendment) Bill, 2015 (full text) adds provisions aimed specifically at terrorist groups acting in the name of a religion:

any person who is or claims or is known to belong to any terrorist group or organization using the name of religion or a sect and raises arms or wages war against Pakistan or attacks the Armed Forces of Pakistan and law enforcement agencies, or attacks any civil or military installations in Pakistan or kidnaps any person for ransom or causes death of any person or injury, or is in possession, storage, fabrication or transport of explosives, fire-arms, instruments, articles, suicide jackets or vehicles designed to be used for terrorist acts, or receives or provides funding from any foreign or local sources for such illegal activities and acts or does any act to overawe the state or any section of the public or a sect or a religious minority or to create terror or insecurity in Pakistan or attempts to commit any of the said acts, within or outside Pakistan shall be punished under this Act;

It is expected that the bills will pass in Parliament quickly.

Recent Articles, Book and Movie of Interest

From SSRN:

• Lina Triantafyllia Papadopoulou, Religious Jurisdictions and the Pluralisation of Legal Adjudication: The Emergence of Parallel Religious Jurisdictions in Greece, (August 28, 2014).
• M. Christian Green, From Social Hostility to Social Media: Religious Pluralism, Human Rights, and Democratic Reform in Africa, (African Human Rights Law Journal 14:1 (May 2014): 93-125).
• Mumtaz Ahmad Shah, Jammu and Kashmir: Understanding Identity and Difference, (December 21, 2014).
• Archana Mishra, Breaking Silence - Christian Women's Inheritance Rights Under Indian Succession Act, 1925, (December 25, 2014).
• Raphael Cohen-Almagor, Countering Hate on the Internet, (Annual Review of Law and Ethics, Vol. 22 (2014), pp. 431-443).
• Stephen G. Gilles, Does the Right to Elective Abortion Include the Right to Ensure the Death of the Fetus?, (January 2, 2015).
• Samuel William Bettwy, The Potential of Transnational Cinema to Counter Islamic Extremism, (CTX Journal, vol. 4, No. 4, November 2014).

From SmartCILP:

• Brett A. Geier, Texas Cheerleaders and the First Amendment: Can You Cheer for God At a Football Game?, 33 Mississippi College of Law Review 65-88 (2014).
• Rachel Wagley, The Quiet Audience: U.S. Responsibility To Call For an International Investigation Into Crimes Against Muslims in Burma, 28 Emory International Law Review 43-61 (2014).
• The Multicultural State and the Religiously Neutral State. Reply to Paul Cliteur by Phil Ryan [abstract]; rejoinder by Paul Cliteur [abstract]. 12 I.Con: Int'l J. Const. L. 457-467 (2014).

Recent book:

• Marc Solomon, Winning Marriage: The Inside Story of How Same-Sex Couples Took on the Politicians and Pundits—and Won, (ForeEdge, Nov. 2014), reviewed by The Daily Beast.

Recent movie:

• One Generation Away: The Erosion of Religious Liberty, (American Family Studios, Sept. 2014), reviewed by The Forward.

FFRF Moves Into Expanded Headquarters

LaCrosse (WI) Tribune reports that the Freedom From Religion Foundation headquartered in Madison, Wisconsin last week saw its staff begin the move into the four stories added to its headquarters as part of an over $3 million expansion.  The addition quadrupled the office space of the organization which is one of the leading legal advocacy groups promoting separation of church and state.  A second phase of the project will remodel the original part of the FFRF headquarters.  The FFRF staff will be expanded from 14 to 17.

Illinois Health Care System Pension Plan Is Not Exempt From ERISA As A "Church Plan"

In Stapleton v. Advocate Health Care Network, (ND IL, Dec. 31, 2014), an Illinois federal district court held that the defined benefit pension plan of Illinois' largest health care provider is not exempt from ERISA as a "church plan." Advocate is  affiliated with the United Church of Christ and the Evangelical Lutheran Church in America.  The court held that under ERISA a plan which is maintained merely by an organization associated with a church does not qualify for the exemption unless the plan was initially established by a church itself. In reaching its conclusion, the court refused to defer to a contrary opinion in an Internal Revenue Service private letter ruling issued to Advocate. Reporting on the decision, BNA Daily Report for Executives (Jan. 2) [subscription required] points out that this is the third district court to hold that this type of plan does not qualify for an exemption, while two district courts have held they are exempt.  Numerous other cases are pending.

Recent Prisoner Free Exercise Cases

In Shehee v. Anlin, 2014 U.S. Dist. LEXIS 177898 (ED CA, Dec. 25, 2014), a California federal magistrate judge dismissed with leave to amend a civil detainee's complaint regarding problems in connection with a requested religious diet.

In Flippin v. Vaughn, 2014 U.S. Dist. LEXIS 178053 (WD KY, Dec. 30, 2014), a Kentucky federal district court permitted a pre-trial detainee to move ahead with his complaint that he was denied the right to attend church after he was placed in administrative segregation due to overcrowding.

In Curry v. Bradt, 2014 U.S. Dist. LEXIS 176210 (WD NY, Dec. 19, 2914), a New York federal district court accepted a magistrate's recommendation (2014 U.S. Dist. LEXIS 178826, Dec. 2, 2014), and denied a TRO and preliminary injunction to a Muslim inmate who complained that only one of the two meals furnished to inmates on a Ramadan diet was a hot meal.

IRS Updates Instructions For Small Charities Seeking Exempt Status

In Internal Revenue Bulletin 2015-1 (Jan. 2, 2015), the IRS has published Rev. Proc. 2015–5 (scroll to pg. 186) .  The Revenue Procedure updates the instructions for small organizatons seeking a ruling on their tax-exempt status under Sec. 501(c)(3) using Form 1023-EZ.

Florida District Court Judge Attempts To Clarify Injunction In Same-Sex Marriage Case

A Florida federal district court has ruled on a motion to clarify a preliminary injunction it previously issued in a suit challenging Florida's ban on same-sex marriage. (See prior related posting.) At issue was whether the court's ruling did more than require a marriage license be issued to the specific couple who filed suit. In Brenner v. Scott, (ND FL, Jan. 1, 2015), the court said:

Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees.

The Clerk has acknowledged that the preliminary injunction requires her to issue a marriage license to the two unmarried plaintiffs. The Clerk has said she will do so. In the absence of any request by any other plaintiff for a license, and in the absence of a certified class, no plaintiff now in this case has standing to seek a preliminary injunction requiring the Clerk to issue other licenses. The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk’s obligation to follow the law arises from sources other than the preliminary injunction.

As reported by SCOTUSblog, immediately following this decision the law firm advising court clerks changed the advice it had previously given and said:

Greenberg Traurig has advised the Florida Association of Court Clerks and Comptrollers that clerks should follow the judge's ruling for all marriage-license applications or face the consequences identified by Judge Hinkle.

However, apparently Judge Hinkle's opinion still left some ambiguity.  Liberty Counsel issued a press release yesterday stating in part:

Nearly all media outlets... are grossly mischaracterizing the effect of the ruling....The error is likely the result of the order's condescending lecture to clerks on why they should bow to the August injunction even though they are not bound by it. Judge Hinkle’s lecture, however, has no force of law, and only invites lawlessness throughout the state.

Ghana's Top Shia Imam Calls For Political Steps

GhanaWeb yesterday published the New Year message from the Shia National Imam of Ghana. The message set out a political agenda, calling for support of Palestinians in Gaza and promoting the battle against Muslim extremists. The Imam made an extensive appeal to fight corruption in Ghana, contending: "Corruption seems to have permeated our society from governments, politicians, religious leaders, government functionaries and top public servants."  While congratulating the government on 2014 Hajj arrangements, he additionally called for reform:

I reiterate and hope that government will harness more capabilities and commit Hajj under the full control of Muslims by setting up a permanent National Hajj Commission to organize Hajj in Ghana as previously promised.

A Survey of Law School Books On Law and Religion

With the new semester beginning in U.S. law schools, here is a listing casebooks and other publications designed for courses in law and religion:

Ravitch and Backer's Law and Religion: Cases, Materials, and Readings, 3d, (West, 2015).

Edward J. Larson, Creationism in the Classroom: Cases, Statutes, and Commentary, (West, 2013).

Leslie C. Griffin, Law and Religion: Cases and Materials, 3d, (Foundation Press, 2013).

Michael W. McConnell, John H. Garvey, Thomas C. Berg, Religion and the Constitution, Third Edition, (Wolters Kluwer, 2011).

Hon. John T. Noonan Jr. & Edward M. Gaffney Jr., Religious Freedom: History, Cases, and Other Materials on the Interaction of Religion and Government, 3d, (West, 2010).

Leslie C. Griffin, Law and Religion: Cases in Context, (Wolters Kluwer, 2010).

W. Cole Durham & Brett G. Scharffs, Law and Religion: National, International, and Comparative Law Perspectives, (Wolters Kluwer, 2009).

Frank S. Ravitch, Law and Religion, A Reader: Concepts, Cases and Theory, 2d ,(West, 2008).

Stephen G. Gey, Religion and the State, Second Edition, (LexisNexis, 2006).

Thomas C. Berg, The State and Religion in a Nutshell, 2d, (West, 2004).

UPDATE: Conkle's Constitutional Law - The Religion Clauses, 2d ,(Turning Point Series) (Foundation Press, 2009).

Former NY Governor Mario Cuomo Remebered For His Speech On The Complexity of Being A Catholic Politician

The New York Times reports that former New York Governor Mario Cuomo died today at age 82.  Among many other things, Cuomo is remembered for a groundbreaking speech given at Notre Dame University in 1984 titled Religious Belief and Public Morality: A Catholic Governor's Perspective (full text) in which he said:

I protect my right to be a Catholic by preserving your right to believe as a Jew, a Protestant or non-believer, or as anything else you choose.  We know that the price of seeking to force our beliefs on others is that they might some day force theirs on us....

Cuomo used the speech to make a forceful argument in defense of Catholic public officials who do not support anti-abortion legislation.  He said in part:

As Catholics, my wife and I were enjoined never to use abortion to destroy the life we created, and we never have..... But not everyone in our society agrees with me and Matilda.

And those who don't -- those who endorse legalized abortions -- aren't a ruthless, callous alliance of anti-Christians determined to overthrow our moral standards. In many cases, the proponents of legal abortion are the very people who have worked with Catholics to realize the goals of social justice set out in papal encyclicals: the American Lutheran Church, the Central Conference of American Rabbis, the Presbyterian Church in the United States, B'nai B'rith Women, the Women of the Episcopal Church. These are just a few of the religious organizations that don't share the Church's position on abortion....

I repeat, there is no Church teaching that mandates the best political course for making our belief everyone's rule, for spreading this part of our Catholicism. There is neither an encyclical nor a catechism that spells out a political strategy for achieving legislative goals....

This latitude of judgment is not something new in the Church, not a development that has arisen only with the abortion issue. Take, for example, the question of slavery. It has been argued that the failure to endorse a legal ban on abortions is equivalent to refusing to support the cause of abolition before the Civil War.....

But the truth of the matter is, few if any Catholic bishops spoke for abolition in the years before the Civil War....  They weren't hypocrites; they were realists. At the time, Catholics were a small minority, mostly immigrants, despised by much of the population, often vilified and the object of sporadic violence. In the face of a public controversy that aroused tremendous passions and threatened to break the country apart, the bishops made a pragmatic decision. They believed their opinion would not change people's minds.... [S]o they were silent. As they have been, generally, in recent years, on the question of birth control. And as the Church has been on even more controversial issues in the past, even ones that dealt with life and death.

... The decision they made to remain silent on a constitutional amendment to abolish slavery or on the repeal of the Fugitive Slave Law wasn't a mark of their moral indifference: it was a measured attempt to balance moral truths against political realities. Their decision reflected their sense of complexity, not their diffidence....

Supreme Court Will Finally Move To Electronic Filing and Public Access

Chief Justice John Roberts announced yesterday in his Year-End Report on the State of the Judiciary (full text) that the U.S. Supreme Court will finally develop its own system for electronic filing and retrieval of documents. He said in part:

The Supreme Court is currently developing its own electronic filing system, which may be operational as soon as 2016. Once the system is implemented, all filings at the Court—petitions and responses to petitions, merits briefs, and all other types of motions and applications—will be available to the legal community and the public without cost on the Court’s website. Initially, the official filing of documents will continue to be on paper for all parties in all cases, with the electronic submission an additional requirement for parties represented by attorneys. Once the system has operated effectively for some time and the Supreme Court Bar has become well acquainted with it, the Court expects that electronic filing will be the official means for all parties represented by counsel, but paper filings will still be required. Parties proceeding pro se will continue to submit documents only on paper, and Court personnel will scan and upload those documents to the system for public access.

Much of his report is an explanation of why the Court has been so slow in adopting this technology.  Legal Times has more on the announcement.

Happy New Year 2015!

Dear Religion Clause Readers:

Happy New Year 2015!  Last year was important.  The religious liberty and church-state developments of 2014 have raised fundamental questions about arrangements that have evolved over decades in the United States:

• Does the Religious Freedom Restoration Act still draw the proper balance for religious accommodation?  
• Should the civil and religious aspect of marriage be more clearly separated?
• As small and marginal faith groups, as well as mainstream ones, compete for a place on statehouse lawns and in lineups for delivering legislative invocations, is a rush toward creating limited public forums for religious expression still the preferable policy? 
• Can the government assure universal access to health care services that some find religiously objectionable without creating a single-payer system?
• How much of a burden on third parties is justified in order to provide religious accommodation?

Religion Clause has attempted to provide the raw materials for the inevitable debate over these and other important policy questions. I have also attempted to expand coverage of law and religion issues arising outside the United States.

As we enter 2015, I want to again thank all of you who read Religion Clause-- both long-time followers and those who have discovered the blog more recently. And thanks to all of you who send me leads or corrections. Your input is important in maintaining completeness and accuracy. I read all of your e-mails and comments and appreciate receiving them, even though time constraints often prevent me from replying individually. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want to be mentioned, I will be happy to honor that request if you let me know when sending me information.

Religion Clause's established format of neutrality, broad coverage and links to extensive primary source material has produced a loyal readership.  Often Religion Clause carries a story well before mainstream media feature it. This year, for the sixth time in 8 years, Religion Clause was named by the ABA Journal as one of the 100 top blogs for a legal audience. This year Religion Clause was also added to the ABA's "Blawg 100 Hall of Fame."

StatCounter shows over 256,000 vists to the blog during 2014, but those numbers are skewed for many reasons. For me, raw numbers are not as important as the quality of the audience and the usefulness of the blog to readers. On this score, I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, and others working professionally dealing with church-state relations and religious liberty concerns.  I encourage you to recommend Religion Clause to colleagues and friends who might find it of interest.  Increasingly readers are finding Religion Clause through links on Twitter and Facebook.  I urge you to share Religion Clause postings on your social media platforms.

Finally, I remind you that the Religion Clause sidebar contains links to a wealth of resources.

Feel free to contact me by e-mail (religionclause@gmail.com) or through comments to this or other posts throughout the year.

Best wishes for 2015!  It is already shaping up as a year of important developments.

Howard M. Friedman

Church Files RLUIPA and Constitutional Challenges To Zoning Delays

Earlier this month, a lawsuit was filed against the Town of Colonie, New York, its Planning Board and officials claiming that the town's refusal to give a church various zoning approvals for a new facility violated RLUIPA, the 1st and 14th Amendments and New York state constitutional provisions.  The complaint (full text) in Life Covenant Church, Inc. v. Town of Colonie, (ND NY, filed 12/17, 2014), alleges:

LifeChurch’s zoning requests have been lost in a bureaucratic maze as the Town and Town Officials have routinely made conflicting requests and continued to unnecessarily delay in requesting and reviewing materials prior to the Planning Board’s consideration of LifeChurch’s zoning requests.

RLUIPA Defense blog has additional details.

Flurry of Court Filings Seeks To Clarify Status of Same-Sex Marriage In Florida

Florida counties find themselves uncertain about the legality of same-sex marriage in the state.  In August, in Grimsley v. Scott, a Florida federal district court issued a preliminary injunction barring various state officials from enforcing the state's ban on same-sex marriage, and ordering the Clerk of Court of Washington County, Florida to issue marriage licenses to a same-sex couple that brought the lawsuit. The court temporarily stayed these orders, but with the denial of further stays by higher courts (see prior posting), the orders are scheduled to take effect on Jan. 5. That leaves in some confusion the effect of the court's injunction.  On Dec. 24, the Clerk of Washington County filed an Emergency Motion for Clarification with the court asking it whether the court's injunction means that marriage licenses must be granted to all same-sex couples, or only to the couple specifically named in the injunction.

In response, the ACLU filed a legal memo (full text) arguing that because the court found Florida's same-sex marriage ban facially unconstitutional, the order means that all county clerks must issue marriage licenses to all same-sex couples. The court also ordered the state to respond to the motion for clarification. In its response (full text), the Attorney General said that the court is best situated to determine the reach of its own order.

Meanwhile this week an advocacy group filed state court lawsuits against two separate sets of local Florida officials seeking to prevent them from issuing licenses or performing same-sex marriages after Jan. 5. The complaint (full text) in Florida Family Action, Inc. v. Ramirez, (FL Cir. Ct., filed 12/29/2014), seeks a writ of mandamus ordering the Osceola County Clerk to deny any application for marriage license by same-sex couples.  The complaint (full text) in Florida Family Action, Inc. v. Dyer, (FL Cir. Ct., filed 12/30/2014) seeks a writ of mandamus barring the mayor of Orlando and a local judge from performing same-sex wedding ceremonies.  In both cases, the officials had expressed their intent to move ahead with same-sex marriages.

Orthodox Jewish Group To Lobby For More New York Day School Aid

The Forward reported this week that the Orthodox Union, the organization representing non-haredi Orthodox Jewish synagogues, is planning a multi-million dollar, multi-year advocacy campaign to try to increase governmental aid for Jewish day schools in New York.  The OU already has ten full-time staff members working on the project, and will be adding more. New York state has over 150,000 students in Jewish day schools and yeshivas. Tuition at some New York Jewish schools exceeds $30,000 per year.

President Sends Kwanzaa Greetings

Last Friday the White House released a statement (full text) from the President and First Lady extending warmest wishes to those celebrating Kwanzaa.  The festival, which celebrates African American heritage and culture, began Dec. 26 and extends through Jan. 1.

Kentucky Legislature Hearing Rooms Now Have "In God We Trust" Signs

In Kentucky, state officials have hung eleven "In God We Trust" signs in committee rooms in the state Capitol building and Capitol annex.  According to AP, the signs-- paid for with private donations-- were authorized by legislation enacted earlier this year. Similar signs already hang in the House and Senate chambers.  Sen. Albert Robinson, sponsor of the legislation authorizing the signs, said: "This is America. I feel like this nation was and is established by God.  We need to show the same respect in the committee rooms that we show in the Senate and House chambers." The signs put up in the committee rooms are temporary ones, because the permanent ones would not be ready by the time the legislature reconvenes on Jan. 6.

Egyptian Court Bans Jewish Pilgrimage Festival To Moroccan Rabbi's Grave

In Egypt on Monday, the Administrative Court of Alexandria banned an annual Jewish religious pilgrimage that has been held since 1979 to the grave of the Moroccan rabbi Yaakov Abu Hatzira. The grave, in the Nile Delta, was declared an Egyptian cultural monument by the government in 2001. AP and World Bulletin report on the court's action not only banning the annual festival that honors Abu Hatzira's birth, but also ordering that the shrine be removed from the list of Egyptian antiquities and barring the removal of Abu Hatzira's remains to Israel as Israel had requested through UNESCO.  The annual festival which has drawn hundreds of Jews each year from Israel, Morocco and France has been controversial. The court's action came in response to a complaint filed by local residents objecting to the mingling of men and women at the festival and the consumption of alcohol. They also contended that security for the festival was disruptive to them.

Rhode Island Supreme Court Rejects Firefighters' Objections To Riding In Pride Parade

In Fabrizio v. City of Providence, (RI Sup. Ct., Dec. 19, 2014), the Rhode Island Supreme Court dismissed a suit brought by two Catholic firefighters who objected on religious grounds to serving as part of the crew on a fire engine in a gay pride parade. They contended that "their beliefs as Catholics do not allow them to “support, encourage, nor condone homosexual behavior.'" The Court said, however:

The respondents' appearance in the parade, solely as members of the Providence Fire Department, did not constitute a form of expression on their part. Rather, it was simply the accomplishing of a task assigned to an engine company of the Providence Fire Department, and the individuals chosen to carry out that assignment cannot be said to have engaged in personal speech by carrying out their work as public servants.

Courthouse News Service reports on the decision.

District Court Enjoins Latest ACA Non-Profit Contraceptive Coverage Mandate Accommodation

In Catholic Benefits Association LCA v. Burwell, (WD OK, Dec. 29, 2014), an Oklahoma federal district court granted a preliminary injunction against the latest Affordable Care Act contraceptive mandate accommodation to a Catholic nonprofit association that was formed to assist Catholic employers in providing health benefits.The court said:

Although CBA members may be “effectively exempt” from directly providing contraceptive services if they comply with the notification requirement, they are not exempt from the notification requirement itself. This requirement also violates their religious beliefs because, they argue, it requires them to be complicit in indirectly providing their employees with contraceptive services.

After thus finding a substantial burden on plaintiffs' religious exercise, the court concluded that prior 10th Circuit precedent (its decision in  Hobby Lobby) has held that the government does not  have a compelling interest in requiring contraceptive coverage, and the Supreme Court in Hobby Lobby did not conclusively rule otherwise.

Former Navy Instructor Sues Claiming Anti-Muslim Bias

CAIR has announced the filing last week of a religious discrimination lawsuit against the United States Navy on behalf of a former barracks instructor whose reenlistment was blocked.  The complaint (full text) in Berts v. Mabus, (ED CA, filed 12/23/2014) alleges that the plaintiff Jonathan Berts, an African-American Muslim, was denied his request to wear a beard as a religious accommodation. For four years prior to making has religious accommodation request, Berts had worn a beard under a medical waiver. He alleges that after his religious accommodation request was denied, his commander refused to promote him, subjected him to questions about his beard, to racist and anti-religious jokes, and questioned his loyalty to the United States.  He was removed from his teaching duties and assigned to watch duty in a roach-infested building guarding piles of old office equipment.  Berts claims his treatment burdened his religious exercise in violation of RFRA and the Administrative Procedure Act and seeks a return to active duty along with an accommodation to allow him to grow a beard.

Uncertainty Continues On Religious Expression In the Military

Stars and Stripes yesterday reports at length on the ambiguity in the military's current policy on expression of religious speech that is illustrated by a mandatory suicide prevention briefing last month for soldiers at Ft. Benning. At the session, a chaplain, Capt. Joe Lawhorn, told members of a Ranger battalion that faith in Jesus is what helped him through depression, though he also presented non-religious methods of combating suicide. Handouts to soldiers were a sheet which on one side gave secular suicide prevention tips, and on the other presented Christianity as the solution. According to Stars and Stripes:

After the incident was publicized by the Military Association of Atheists and Freethinkers advocacy group, Fort Benning’s command warned the chaplain to cool the religious content in mandatory briefings.

In response, Lawhorn’s attorney, Michael Berry — of the Liberty Institute, a competing advocacy group — cited the wording in the [military's] new policy in a letter demanding that the Army explicitly approve religious content in the chaplain’s briefings.

Recent Articles of Interest

From SSRN:

• Muhammad Munir, Rights of the Child: An Islamic Perspective on Preventing Violence, Abuse, and Exploitation of Children and Pakistani Law, (December 14, 2014).
• Lorenz Blume, Bernd Hayo & Stefan Voigt, Correlates and Determinants of Direct Democracy, (December 23, 2014).
• Kenneth L. Marcus, Higher Education, Antisemitism, and the Law, (December 22, 2014).
• Moslay Uddin & MD Ayatullah, Muslim Law: Judicial and Legislative Changes Around the World, (December 17, 2014).
• Peter Hostettler, The Protection of Cultural Property in Armed Conflict and Peace Operations – Achievements and Challenges Ahead, (December 24, 2014).
• Deborah A. Widiss & Andrew Koppelman, A Marriage by Any Other Name: Why Civil Unions Should Receive Federal Recognition, (Indiana Journal of Law and Social Equality, Forthcoming).
• Tristin Green, On Employment Discrimination and Police Misconduct: Title VII and the Mirage of the 'Monell Analogue', (Boston University Law Review, 2015, Forthcoming).

Defendant's Failure To Touch Bible During Oath Leads NJ High Court To Remand

In Davis v. Husain, (NJ Sup. Ct., Dec. 23, 2014), the New Jersey Supreme Court remanded a case to the trial court for a different judge to consider whether religious considerations tainted a $12,500 verdict in a sexual harassment suit by a woman against her former employer. As described by the Supreme Court:

After the verdict was rendered and the jury was discharged, but before post-trial motions were argued and the judgment was entered, the trial judge conducted an ex parte discussion with the jurors, which was not recorded. According to the judge, one juror noted during that discussion that she was surprised that defendant had not placed his hand on the Bible before he testified. The judge did not make a record of the juror’s observation, but he did inform counsel as later events reveal.

The court indicated in a footnote:

Husain’s certification, submitted during post-verdict motion practice, indicates that Husain’s action was based on his religious beliefs. He states that it is his religious belief that the left hand should never be placed on a holy book.” He also states that he is “of Indian descent and the left hand is not used for any official purpose because of our culture.” 

The Supreme Court also banned for the future any post-verdict communications between a trial judge and jurors outside the presence of counsel. New Jersey Advance Media reports on the decision.

Recent Prisoner Free Exercise Cases

In McElroy v. Mathena, 2014 U.S. Dist. LEXIS 175956 (WD VA, Dec. 22, 2014), a Virginia federal district court dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint regarding his removal from the Ramadan fast list.

In Webb v. Californa Department of Corrections, 2014 U.S. Dist. LEXIS 177044 (ED CA, Dec. 22, 2014), a California federal magistrate judge dismissed with leave to amend an inmate's complaint regarding lack of funds, denial of religious items, chapel time and outdoor worship space for the Asatru/Odinic religion.

Airlines Facing Religious Objections By Passengers

At least two instances have been reported in the past ten days in which U.S. airlines have had to deal with passengers who have become unruly because of religion-related objections to some aspect of the flight.  The New York Post reports on an incident last Tuesday in which American Airlines escorted a passenger off a flight he had just boarded at LaGuardia Airport.  The passenger, despite attempts to calm him, continued to shout at the flight crew objecting to the gate agent and flight attendant wishing passengers "Merry Christmas." He shouted that not everyone celebrates Christmas. Passengers applauded his ouster from the plane.

Meanwhile Failed Messiah reports on a December 20 incident at New York's JFK Airport on a Delta flight to Israel. Haredi (Jewish ultra-Orthodox) men refused to take their assigned seats that turned out to be between two women. Other passengers, many of them Israeli, refused to move. The flight finally took off 30 minutes late after an American passenger changed seats to accommodate the men.

Top Dozen Church-State and Religious Liberty Developments In 2014

Each year in December, I attempt to highlight the most important  Church-State and Religious Liberty Developments of the past year.  Usually I identify the top ten stories.  This year however was so full of important developments that I have had to increase my nominations to the Top Dozen.  As always, I invite reader feedback on my selections and omissions.  Here they are:

1. The Supreme Court's Hobby Lobby decision allowed closely-held corporations to assert religious exercise rights of their owners.

2.  In the wake of the Supreme Court's Windsor decision, lower courts strike down same-sex marriage barriers in an increasing number of states.  The 6th Circuit is the main dissenter.

3.  Religiously-affiliated schools, hospitals and charities continue to object that administrative accommodations to the Affordable Care Act contraceptive coverage mandate are insufficient to protect their religious liberty rights.  Dozens of cases are in litigation over the issue.

4. In Town of Greece case, Supreme Court upholds non-coercive sectarian invocations at city council meetings.

5. The increasing strength of ISIS in Syria, Iraq and elsewhere threatens religious minorities in the Middle East and revives dream of a Caliphate.

6.  State RFRA proposals become more controversial as they clash with LGBT rights.

7.  Challenges to Internal Revenue Code parsonage allowance and church filing exemptions survive constitutional attack for plaintiffs' lack of standing.

8.  Satanic Temple becomes player in battle to diversify religious displays on public property, participate in literature distribution in schools and assert other religious rights.

9.  Courts continue to uphold New Jersey and California bans on sexual orientation change therapy for minors.

10. 6th Circuit requires strict causation to prove religiously motivated hate crimes against Amish.

11. Series of cases challenging definition of "church plan" under ERISA threatens legality of several Catholic hospital pension plans.

12. NLRB decision announces new test for asserting jurisdiction over unionization efforts at religiously-affiliated colleges and universities.

Earlier this month Religion Newswriters Association released their list of the Top 10 Religion Stories in 2014. (They too selected 12 stories, finding ties in two instances.) UPDATE: Also see the year's top picks from Don Byrd at Blog From the Capital.

Employment Discrimination Claim Filed By Muslims Against Hertz In Minneapolis

The Minneapolis Star-Tribune reports on an employment discrimination lawsuit filed Tuesday against Hertz Corp. by five Somali-American Muslims and an Ethiopian Muslim, all of whom were fired in 2007 from their jobs cleaning and servicing Hertz vehicles at Minneapolis-St. Paul International Airport after a dispute about overtime. The suit claims that Hertz managers interrupted their prayers, regularly demeaned their religion and imposed arbitrary prayer times and rules on Muslims. The EEOC issued plaintiffs a right-to-sue letter in September after years reviewing complaints.

Jehovah's Witness Title VII Claim Survives Summary Judgment Motion

In Shepherd v. Gannondale, (WD PA, Dec. 22, 2014), a Pennsylvania federal district court refused to grant summary judgment to defendant, a Catholic residential care facility, in a suit by a former employee, a Jehovah's Witness, alleging religious discrimination.  Plaintiff Sharon Shepherd worked as a Fiscal Supervisor for defendant, Gannondale, until she was terminated or forced to resign.  Gannondale is a ministry of the Sisters of Our Lady of Charity which provided holistic and therapeutic care for young women placed by the court. It operated using the "Sanctuary Model of Trauma Informed Care" which involves "community meetings" which all clients and staff were required to attend. Shepherd stopped attending community meetings in the Fall of 2012 because she concluded they involved too much "anti-Christian content" for her to be a part of them.  She disagreed in general with the Sanctuary Model because it was not based on Biblical teachings.

The court concluded that Shepherd had stated a prima facie case of disparate treatment based on religion as well as a claim of failure to accommodate her desire to be excused from community meetings.  The court said in part:

Defendant appears to be invoking a sort of “esprit de corps” argument that has never been applied outside the context of the military and the police force....  No doubt every employer would argue that allowing even one employee to be excused from an organization-wide practice would undermine that practice as a whole and might encourage other employees to seek exemptions. Nevertheless, Title VII requires reasonable accommodation of employees’ sincerely held religious beliefs unless an employer demonstrates that such accommodation would subject it to an undue hardship..... Defendant’s argument would allow the undue hardship exception to swallow the rule of religious accommodation and it is rejected.

Obamas Send Christmas Greetings

The White House today posted Weekly Address: Happy Holidays from the President and First Lady (transcript) (video). The President said in part:

... today, our family will join millions across the country in celebrating the birth of Jesus – the birth not just of a baby in a manger, but of a message that has changed the world: to reach out to the sick; the hungry; the troubled; and above all else, to love one another as we would be loved ourselves.

He also thanked American troops as the combat mission in Afghanistan comes to an end:

... as our troops continue to transition back home—back to our businesses, our schools, our congregations, and our communities—it’s up to all of us to serve them as well as they have served us.

The First Lady urged Americans to go to the JoiningForces website for more information on supporting troops, veterans and military families.

Meanwhile, The Independent reports that in Britain the Queen's annual Christmas message will be broadcast this afternoon. Channel 4's Alternative Christmas Message was given this year by British Ebola survivor William Pooley. The Queen is likely to praise aid workers fighting Ebola and is also likely to highlight this year's commemoration of the 100th anniversary of the start of World War I.

State Freedom of Conscience Clause Does Not Cover Environmentalist Who Refuses To Mow Lawn

In Gul v. City of Bloomington, (IN App., Dec. 22, 2014), an Indiana state appellate court rejected constitutional and statutory challenges to a city ordinance that prohibits grass in yards from being over 8 inches tall.  Environmentalist Alexander Gul claimed, among other things, that the citation he received for for refusing to mow his lawn violated his free expression rights and his freedom of conscience protected by the Indiana constitution. The court recounts:

Gul allows his yard to grow naturally and does not apply chemicals, mow, water, or fertilize it. He explains that his decision to maintain a natural yard is a statement of his sincerely held environmental belief that the overuse of chemicals, water, and lawnmowers to maintain a traditional lawn is harmful to the environment.

Bloomington officials disagree and view Gul’s yard as merely overgrown.

Rejecting Gul's under the state constitution's conscience clause, the court said:

... we find that Article 1, Section 3 was intended to apply to religious, rather than non-religious, matters of conscience. But even if it includes non-religious matters of conscience, it protects only the right to hold one’s own opinions, and does not protect the right to act on one’s own opinions in contravention of the law. 

Lawsuit Challenges Courthouse Lawn Nativity Scene

Despite a disclaimer placed on the courthouse lawn Nativity Scene in Baxter County, Arkansas (see prior posting), this week a federal court lawsuit was filed challenging the display on Establishment Clause grounds.  The complaint (full text) in American Humanist Association v. Baxter County, Arkansas, (WD AR, filed 12/23/2014), alleges that: "Religious and specifically Christian elements overwhelmingly dominate the County’s annual Nativity Scene display." It contends that a purported 2-month lease of the property on which the display stands to the Chamber of Commerce for $1 is "a sham attempt to insulate the County from responsibility...." Last year the County refused to allow two county residents to place a Happy Solstice Banner near the Nativity Scene. AP reports on the lawsuit.

DC Court of Appeals Grants Default Judgment Against North Korea In Torture Death of Christian Missionary

In Kim v. Democratic People's Republic of Korea, (DC Cir., Dec. 23, 2014), the Court of Appeals for the D.C. Circuit awarded a default judgment against North Korea to the family of Reverend Dong Shik Kim who allegedly was abducted from China by North Korean agents, taken to a North Korean labor colony, tortured and then killed. Kim, a Christian missionary, was allegedly targeted for providing humanitarian aid to North Korean defectors and refugees who fled to China seeking asylum, and for his proselytizing defectors.  According to a 2008 Washington Post article:

Kim, whose wife and two children are U.S. citizens, had raised the ire of the North Korean government by helping its citizens flee the repressive regime and by attempting to convert North Korean athletes who attended the 1996 Olympic Games in Atlanta.

The suit against North Korea was based on the "terrorism exception" to the Foreign Sovereign Immunities Act, allowing suits based on allegations of torture. The appeals court found that plaintiffs had produced sufficiently satisfactory evidence of torture to satisfy the requirements for entering a default judgment. The court concluded:

If the DPRK is unhappy with that outcome and has evidence that it has not tortured and killed Reverend Kim, it, like any defendant in default, may ask the district court to vacate that judgment under Federal Rule of Civil Procedure 60(b).

McClatchy News reports on the decision.

Court Orders Sikh Temple Meeting With Quorum Requirement Dropped

According to the Marysville, California Appeal-Democrat, a Sutter County, California state trial court judge last Friday issued an interim order in a dispute over control of a Sikh Temple in Yuba City.  Members who have wanted to hold a meeting to challenge action of the Temple's board of directors have been unable to do so because of the by-laws' unrealistic quorum requirement.  The bylaws require a quorum of over 50% of the formal members of the Temple.  A membership list compiled in 2008 lists over 4400 members, many of whom have died or moved away.  Only 500 people are signed up to receive the Temple's monthly newsletter.  An attempt to obtain a quorum in May 2013 led to 2000 people showing up, but a number still short of a quorum.  The court Friday ordered a special meeting of members to be held, and ordered the Temple to drop the quorum requirement for the meeting. The Temple's attorney argues that the interim order is unconstitutional because it infringes on the Temple's internal governance.

Jury Awards Catholic School Teacher Fired For In Vitro Fertilization Damages of $1.95M

The Fort Wayne (IN) Journal Gazette reports that a federal jury last Friday awarded former Catholic school teacher Emily Herx $1.95 million in damages in her Title VII sex discrimination claim against the Diocese of Fort Wayne-South Bend. Herx's teaching contract was not renewed after she became pregnant through in vitro fertilization. The Catholic Church considers in vitro fertilization immoral, and the Diocese argued that Herx had agreed to uphold Catholic teachings. Herx argued that the Diocese would not have refused to renew a male teacher's contract under the same conditions. While finding substantial actual damages, the jury awarded Herx only a nominal $1 in punitive damages.  It is likely that the Diocese will appeal the decision. (See prior posting.) [Thanks to Wall of Separation for the lead.]

NLRB Announces New Test For Jurisdiction Over Religious Colleges

In an important decision handed down last week, the National Labor Relations Board-- interpreting the U.S. Supreme Court's 1979 decision in NLRB v. Catholic Bishop of Chicago-- developed a new test for when the Board will assert jurisdiction over religiously-affiliated colleges.  In a 3-2 decision in Pacific Lutheran University, (NLRB, Dec. 16, 2014), the Board held:

... when a college or university argues that the Board cannot exercise jurisdiction over a petitioned-for unit of faculty members because the university is a religious one, the university must first demonstrate, as a threshold requirement, that First Amendment concerns are implicated by showing that it holds itself out as providing a religious educational environment.  Once that threshold requirement is met, the university must then show that it holds out the petitioned-for faculty members themselves as performing a specific role in creating or maintaining the college or university’s religious educational environment, as demonstrated by its representations to current or potential students and faculty members, and the community at large.

Applying this test, the majority held that

... although [Pacific Lutheran University] meets the threshold requirement of holding itself out as creating a religious educational environment, it does not hold out the petitioned-for contingent faculty members as performing a religious function in support of that environment.

In a dissenting opinion, Member Johnson said in part:

The majority decision today represents yet another effort to push back against the Supreme Court’s mandate that we avoid striving for jurisdictional boundaries that could violate the First Amendment. Although the majority announces its intent to “articulate a new test that is . . . faithful to the holding of Catholic Bishop,” the majority’s new test falls short in that goal in many regards.

Member Miscimarra, dissenting in part, agreed with this portion of Member Johnson's dissent.  The Board's decision also rejected the argument that the faculty involved were exempt managerial employees.

Chronicle of Higher Education reports on the NLRB's decision. [Thanks to Larry Hansen for the lead.]

Court Says Muslim Witness Cannot Take Oath On Quran

Today's Legal Intelligencer reports on a decision by a Pennsylvania trial court judge holding that a Muslim woman could not take her oath as a witness using the Quran. In Musaitef v. Musaitef, (Philadelphia County, PA Common Pleas), the court read 42 PA.C.S. Sec. 5901 strictly to require that the witness either take the oath on the Christian Bible or else make a non-religious affirmation. The case, a custody dispute between a Muslim mother and Muslim father, is still ongoing.  The father, who took his oath on the Bible, raised the objection to the mother using the Quran.  Apparently the mother's insistence on a Quran was intended to suggest that the father's testimony was untruthful because his Islamic faith included the belief that oaths taken on non-Muslim religious books do not bind him to tell the truth.

British Tax Tribunal: Company Can Assert Religious Rights As Alter Ego of Owner

In Exmoor Coast Boat Cruises Ltd. v. Commissioners for Her Majesty's Revenue & Customs, (UK FTT, Dec. 17, 2014), the United Kingdom First-Tier Tribunal Tax Chamber held that a business entity can assert religious liberty rights where it is the alter ego of a natural person (or possibly a group of persons) whose rights are being infringed.  At issue was whether Exmoor Coast, a company, solely owned by Matthew Oxenham, could claim an exemption from mandatory electronic filing of Value Added Tax returns. VAT regulations permit paper filing by any "practising member of a religious society or order whose beliefs are incompatible with the use of electronic communications...."

The court concluded that while the alter ego test was met, it was not shown that the electronic filing requirement interferes with Oxenham's manifestation of his religion or belief. His objections relate to the amount of CO2 created by the Internet and its impact on climate change.  However Oxenham was willing to use the Internet for some purposes.  The court concluded:

... it was [Oxenham's] belief that the internet should not be used save where he judged it economically necessary to do so.... [T]hat belief does not attain a level of cogency, seriousness, cohesion and importance such that it should be protected. This is because his belief ... is not so strongly held that he will make economic sacrifices for it; further, [Article 9 of the European Convention on Human Rights] cannot have been intended to protect a belief system which allows the practitioner to pick and chose when it suits him to adhere to his principles as that would amount to allowing people to pick and choose when they can be compelled to obey the law.

Law & Religion UK has more on the case.

India Considering Anti-Conversion Law

According to a report from AFP on Saturday, in India, Parliament is paralyzed over a proposed law against "forced conversion." The term is used in India to describe not just conversion under threat of violence, but also conversion through inducements such as offers of free food or education.  Hindu nationalists connected to Prime Minister Narendra Modi's Bharatiya Janata Party (BJP) have become more aggressive in their conversion efforts. The Daily Times reports

The Bharatiya Janata Party’s (BJP’s) militant wing, the Rashtriya Swayamsewak Sangh (RSS) has started a forced conversion movement called homecoming. The RSS believes that these Muslims and Christian were originally Hindus and the homecoming movement is simply an attempt to bring them back to where they belong.

RSS was accused of converting some 50 poor Muslim families a week ago, promising the converts ration cards and other financial incentives.  A larger planned conversion of Christians and Muslims on Christmas day has been called off.  Amit Shah, leader of BJP, says the party favors a new law.

Recent Articles of Interest

From SSRN:

• Jane Mair, Belief in Marriage, (Forthcoming in the International Journal of the Jurisprudence of the Family).
• Ines Michalowski, What is at Stake in Military Chaplaincy When Muslims Join the Ranks? An International Comparison, (Robert Schuman Centre for Advanced Studies Research Paper No. 2014/126 (Dec. 2014)).
• Linda C. McClain, Corporate Conscience and the Contraceptive Mandate: A Dworkinian Reading, (Forthcoming in the Journal of Law and Religion, Vol. 30, No. 1, February 2015).
• Thomas J. McSweeney, Magna Carta, Civil Law, and Canon Law, (Magna Carta and the Rule of Law (Daniel Magraw et al eds., 2014)).

From SmartCILP:

• Symposium on Ronald Dworkin's Religion Without God. Introduction by James E. Fleming; articles by Jeremy Waldron, Stephen L. Carter, Paul Horwitz, Andrew Koppelman, Cecile Laborde, Linda C. McClain, Micah Schwartzman and Steven D. Smith. 94 Boston University Law Review 1201-1355 (2014).

Cert. Petiiton Filed In 6th Circuit ACA Non-Profit Contraceptive Mandate Case

On Dec. 12, a petition for certiorari was filed with the U.S. Supreme Court in Michigan Catholic Conference v. Burwell. (Docket entry). The full text of the petition is available on Westlaw at  2014 WL 7166539. In the case, the U.S. 6th Circuit Court of Appeals denied preliminary injunctions to several Catholic non-profit entities that object to the Affordable Care Act contraceptive coverage accommodation. (See prior posting.) BNA Daily Report for Executives [subscription required] reports on the filing of the petition.

President Signs Bill Extending Until 12/31 Tax-Free Charitable IRA Distributions

On Friday, President Obama signed H.R. 5771, the Tax Increase Prevention Act of 2014. Section 108 of the Act extends until Dec. 31, 2014 the provision allowing tax-free distributions from IRA's for charitable purposes. The benefit applies to IRA holders who are at least 70 1/2 years old.  The Wall Street Journal reports in more detail on the provision.

Recent Prisoner Free Exercise Cases

In Wakefield v. Indermill, (9th Cir, Dec. 18, 2014), the 9th Circuit affirmed dismissal of an inmate's complaint that he was denied weekly communion and foot washing services in the security housing unit.

In Presley v. Scott, 2014 U.S. Dist. LEXIS 172742 (ND AL, Dec. 15, 2014), an Alabama federal district court, while dismissing a number of plaintiff's claims, allowed an inmate to proceed against certain of the defendants for seizing and destroying his medicine bag and other religious items.

In Johnson v. Lewis, 2014 U.S. Dist. LEXIS 173411 (WD NC, Dec. 16, 2014), a North Carolina federal district court held that a Hebrew Israelite inmate seeking a kosher diet can move ahead with claims for injunctive relief against defendants in their official capacities, but dismissed damage and individual capacity claims.

In Surles v. Cater, 2014 U.S. Dist. LEXIS 174236 (SD GA, Dec. 17, 2014), a Georgia federal district court accepted a magistrate's recommendation and dismissed an inmate's claim that his free exercise and equal protection rights were infringed when on one occasion he was denied a pre-Ramadan meal.

In Ben-Levi v. Brown, 2014 U.S. Dist. LEXIS 175040 (ED NC, Dec. 18, 2014), a North Carolina federal district court upheld enforcement of a prison's rule that Jewish Bible study with fewer than ten participants must be led by a rabbi.

In Smith v. Perlman, 2014 U.S. Dist. LEXIS 175341 (ND NY, Dec. 18, 2014), a New York federal district court dismissed an inmate' complaint that the number of Islamic holy days designated as family events was reduced from 2 to 1; he was denied attendance at congregate religious services while in keeplock; and that his request to incorporate halal meats into his therapeutic diet was refused.

In Pickering v. California Department of Corrections, 2014 U.S. Dist. LEXIS 175656 (ED CA, Dec. 18, 2014), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that authorities have hindered his practice of his Asatru/Odinic faith in numerous ways including denial of chapel times on a few occasions, denial of outdoor worship space and of various items needed for worship.

A suit was filed this week in an Ohio federal district court on behalf of a Muslim woman who alleges that, over her objections, she was forced to attend Christian prayer services while serving a 60-day sentence in the Cuyahoga County (OH) jail. Cleveland.com reports on the lawsuit. (Full text of complaint in Majeed v. Cuyahoga County, (ND OH, filed 12/18/2014)). [Thanks to Matthew Besser for the lead.]

Chabad Rabbis At George Washington University Litigate Over Contract

Thursday's Baltimore Jewish Times reports on an unusual lawsuit just concluded in D.C. Superior Court between two Chabad rabbis:

“American Friends of Lubavitch (Chabad), et al. v. Yehuda Steiner, et al.” pits Rabbi Levi Shemtov, executive vice president and director of American Friends of Lubavitch (Chabad), one of the most recognizable and politically connected Jewish leaders in the country, against [Rabbi Yehuda] Steiner and his wife, Rivky Steiner, the couple Shemtov appointed in 2008 as shluchim, or emissaries, to coordinate Chabad’s presence on George Washington University’s campus.

D.C. Superior Court Judge Neal Kravitz ruled on Monday that Rabbi Steiner, popular with students, was in breach of his contractual obligations that had previously been worked out between the two rabbis through a Jewish religious court. Kravitz enjoined Steiner from leading further Chabad activities at GWU. However, Kravitz also ruled that the non-compete provision in the Steiners' employment contract was unenforceable, leaving open the possibility that Steiner might move his outreach to D.C. students to nearby Georgetown University.

Supreme Court Denies Stay of Florida Same-Sex Marriage Ruling

The U.S. Supreme Court late yesterday afternoon denied an application for a stay in a Florida same-sex marriage case while the decision is on appeal to the 11th Circuit.  The Supreme Court's order (full text) in Armstrong v. Brenner, (Dec. 19, 2014) results in a district court decision handed down in August taking effect on January 5. (See prior related posting.)  Justices Scalia and Thomas dissented from the Court's action.  SCOTUSblog reports on the Court's action.

Westboro Baptist Attempt To Intervene In Same-Sex Marriage Case Again Rejected

In Marie v. Moser, (D KA, Dec. 18, 2014), a Kansas federal district court for a second time (see prior posting) refused to allow Westboro Baptist Church to intervene as a party in a lawsuit challenging the Kansas ban on same-sex marriage. The court said that WBC's arguments were based on speculation about future possible claims by same-sex couples.  WBC was allowed to continue to file amicus briefs to assert arguments it would like the court to consider.

Hawaii Supreme Court Hears Oral Arguments On Challenge To Marriage Equality Law

Yesterday the Hawaii Supreme Court heard oral arguments in McDermott v. Abercrombie, a case challenging the state legislature's authority to enact the Hawaii Marriage Equality Act of 2013. The Court, on its website, summarizes the issues:

Respondents argue, inter alia, that the Hawai`i Marriage Equality Act is unconstitutional because in 1998, the people of Hawai`i voted to amend article 1, section 23 of the Hawai`i Constitution to state that “the legislature shall have the power to reserve marriage to opposite-sex couples.” Respondents argue that the intent of this amendment was to constitutionally reserve marriage to opposite-sex couples, so the legislature was not authorized to pass the Hawai`i Marriage Equality Act. In response, Petitioners argue that article 1, section 23 allows the legislature to reserve marriage to opposite-sex couples, but does not require it to do so. Petitioners also argue that Respondents lacked standing to bring this lawsuit.

An audio recording of the full oral arguments is available from the Court's website. AP reports further on the case.

Lawsuit Against Hebrew National Dismissed In State Court With No Appeal Filed

American Jewish World reported yesterday on the end of the long-running lawsuit against ConAgra Foods challenging the adequacy of its standards for kosher slaughter of the beef used in manufacturing Hebrew National hot dogs.  As previously reported, in April the U.S. 8th Circuit Court of Appeals remanded the case to state court.  Then, in a little noticed October 6 opinion (reported on at the time by American Jewish World), a Minnesota state court judge dismissed the case, saying that a civil court cannot make a judgement about whether religious standards for kosher slaughter have been met.  He added:

At bottom, the ultimate remedy for those who feel they don’t have confidence in the degree of kashrut observed in the production of [Hebrew National] products is not to purchase them.

Now the time for appeal of that dismissal has run with no appeal being filed.

Chicago Travel Agent Charged With Mail Fraud In Hajj Visa Misrepresentations

The U.S. Attorney's Office for the Northern District of Illinois yesterday announced the arrest on mail fraud charges of Chicago travel agent Rashid Minhas.  A criminal complaint charges that Minhas sold Hajj travel packages to some 50 customers for a total of $525,000, falsely representing to them that the package contained the required visa to enter Saudi Arabia. It is alleged that Minhas knew that his company, Light Star Hajj, was not authorized by Saudi Arabia to obtain visas.

Israel's High Court Approves Rabbinical Court's Retroactive Invalidation of Conversion

On Wednesday, a 3-judge panel of Israel's High Court of Justice ruled that a rabbinical court had authority to retroactively cancel a conversion of a woman to Judaism where the woman misled the rabbinical court about her intention to lead an Orthodox Jewish life style.  Times of Israel and Jerusalem Post report that the rabbinical court acted two years after approving the conversion because convert Yonit Erez completely changed her Orthodox lifestyle shortly after her conversion. Critics of the decision say there is no basis in Jewish law, short of bribery, for reversing a conversion. Reform Rabbi Uri Regev says that false promises to maintain an Orthodox lifestyle are common among converts from the former Soviet Union in Israel.

FFRF Lacks Standing To Challenge Church Filing Exemptions

In Freedom From Religion Foundation v. Koskinen, (WD WI, Dec. 17, 2014), a Wisconsin federal district court held that Freedom From Religion Foundation and its local affiliate lack standing to challenge the Internal Revenue Service's  exemption of religious organizations from filing Form 990 annual reports, while requiring most other non-profit organizations to file. FFRF had never sought a similar exemption and disavowed any intent to do so. In reaching its conclusion, the court reversed its own holding to the contrary a year ago because of the intervening 7th Circuit decision in Freedom From Religion Foundation, Inc. v Lew. (See prior posting).

Kentucky Supreme Court Defines Ecclesiastical Abstention Doctrine

In St. Joseph Catholic Orphan Society v. Edwards, (KY Sup. Ct., Dec. 18, 2014), the Kentucky Supreme Court redefined the operation of the "ecclesiastical abstention doctrine" under Kentucky law. The Court held that the doctrine is not a bar to jurisdiction, but instead operates as an affirmative defense designed to allow both churches and other religious organizations independence from secular control.  At issue in the case was a challenge by a group of St. Joseph Home alumni to the action at an annual meeting of members taken after the existing Board had been unable to muster a high enough vote to remove one of its own members accused of harassing employees.  By a resolution passed overwhelmingly, the members replaced the existing Board members and amended the bylaws to add protections against Board-member misconduct. The Court concluded that a challenge to this action involves an issue of ecclesiastical governance that is covered by the ecclesiastical abstention doctrine, and so remanded the case to the trial court for dismissal.

The practical effect of the court's procedural holding is that in the future defendants will be able to file an interlocutory appeal when a trial court refuses to apply the ecclesiastical abstention doctrine, instead of proceeding as in this case by seeking a writ of prohibition from the Court of Appeals.

Meanwhile, it appears that while the Supreme Court's decision on issuing a writ of prohibition was pending, the trial court went on with the case.  WDRB reports that on Dec. 10, the trial court dismissed the challenge to the action at the annual meeting because the ousted trustees had an opportunity to attend a second meeting at which the bylaw amendments were to be reconsidered, and they chose not to attend. This report also sheds more light on the nature of the leadership contest:

The lawsuit pitted a largely aging group of trustees – among them former residents of the Frankfort Avenue orphanage -- against a younger faction with corporate ties.

[Thanks to Tom Rutledge for the lead.]

Congress Gives USCIRF 9 More Months of Life

Earlier this week, Congress passed and sent to the President H.R. 5816 (full text), extending the life of the U.S. Commission for International Religious Freedom until Sept. 30, 2015.  The bill is retroactive to Dec. 10, the day before the Commission's current authorization expired. (See prior posting.) The White House website lists this, along with other bills awaiting the President's signature and provides an online opportunity for individuals to comment on the bill.

Group Releases 2014 World Report On Rights of Atheists and Humanists

As reported by Religion News Service, on Dec. 10 the International Humanist and Ethical Union released Freedom of Thought 2014: "A Global Report  on the Rights Legal Status and Discrimination Against Humanists, Atheists and the Non-religious." The 542-page report surveys country-by-country the rights and treatment of non-believers. The report highlights the "steady march" of militant groups such as ISIS and Boko Haram, as well as "a long-standing prohibition of 'apostasy' and 'blasphemy' associated with Islam that is perpetuated by many modern Islamic states."

White House Hosts Two Hanukkah Receptions [UPDATED POST]

President and Mrs. Obama hosted the first of two White House Hanukkah receptions late yesterday afternoon as again this year the guest list was too long for only a single reception.  In his remarks (full text), the President first discussed the freeing earlier in the day of Alan Gross who had been held by Cuba for over five years.  The traditional lighting of the menorah focused on two students and a parent from a bilingual school in Jerusalem that brings Jewish and Muslim students together. Their school was hit by arsonists two weeks ago. They built a menorah around the theme of their school's values and brought it to be used at the reception. Introducing them, President Obama said:

So Inbar and Mouran and their fellow students teach us a critical lesson for this time in our history:  The light of hope must outlast the fires of hate.

The White House posted a 10-minute video of the President's remarks and those of Rabbi  Bradley Shavit Artson who led the blessings in lighting the Hanukkah candles.

A few hours later the President hosted the second reception. (Full text of remarks.)  At this reception, a menorah from children in Yemin Orde, a village in Israel founded in 1953 to provide a safe haven to orphans and young immigrants after the Holocaust, was used.  The candles were lit by a Yemin Orde graduate, along with Dr. Adam Levine who recently returned from fighting ebola in Liberia. Manhattan Rabbi Angela Buchdahl recited the blessings.

GAO Releases Report On IRS Oversight of Tax Exempt Organizations

Yesterday, the U.S. Government Accountability Office released a 66-page report (full text) on IRS oversight of tax-exempt organizations.  The report recommended that the IRS develop better measures of enforcement performance; communicate more clearly with state charity regulators on allowed use of IRS information; and expand electronic tax-return filing for charities.

4th Circuit: Appeal of Injunction Against Sectarian County Board Prayer Fails On Procedural Grounds

In Hudson v. Pittsylvania County, Virginia, (4th Cir., Dec. 17, 2014), the U.S. 4th Circuit Court of Appeals dismissed on procedural grounds an appeal from a district court's injunction against opening County Board meetings consistently with Christian invocations.  The appeals court held that a notice of appeal filed 175 days after the district court entered summary judgment for plaintiff was untimely.  The appeals court also affirmed the district court's later post-trial award of some $53,000 in attorneys' fees. Chatham Star Tribune reports on the decision.

While this appeal was pending, the U.S. Supreme Court decided the Town of Greece case. Pittsylvania County quickly asked the district court to dissolve its injunction.  As previously reported, the district court held however that "unlike in Town of Greece, where invited clergy and laypersons offered the invocations, the Board members themselves led the prayers in Pittsylvania County."  The district court said it was willing to modify the injunction to make it consistent with the holding in Town of Greece, but it did not have jurisdiction to do so until the 4th Circuit to which the case had been appealed granted at least a limited remand.  Yesterday's affirmance of the attorneys' fee award and dismissal of the remainder of the appeal presumably does not amount to a limited remand.                                                          

Fayetteville Anti-Discrimination Law Repeal Applauded By Group As Victory For Religious Values

According to KNWA News, voters in a special election in Fayetteville, Arkansas on Tuesday voted 52% to 48% to repeal an extensive anti-discrimination law (full text) enacted by city council last August. At least one major conservative Christian group applauded the repeal as a victory for religious liberty.  Liberty Counsel in a press release yesterday said:

... Fayetteville voters repealed a law ... that required churches, Christian schools, and other para-church ministries to hire homosexuals for "secular" jobs (such as school teachers), allowed men to use women’s restrooms and locker rooms, and required Christian business owners to service "same-sex weddings."....  Mat Staver, Founder and Chairman of Liberty Counsel, said "... This ordinance sought to criminalize Judeo-Christian values."

Britain's Supreme Court Punts On Whether Narrow Abortion Law Conscience Rights Violate Religious Freedom

In Greater Glasgow Health Board v. Doogan, (UK SC, Dec. 17, 2014), the United Kingdom's Supreme Court gave a narrow interpretation to the conscience clause in Britain's Abortion Act 1967, but left open the question of whether that interpretation violates religious freedom rights or amounts to religious discrimination.  Section 4(1) of the Abortion Act provides that, with certain exceptions:

no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection....

In a suit by two Catholic midwives who worked as labor-ward coordinators, the Court held that "participate in" should be read narrowly:

It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with those acts. Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital..., the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. “Participate” in my view means taking part in a “hands-on” capacity.

However, in an important qualification, the Court said:

So, even if not protected by the conscience clause in section 4, the petitioners may still claim that, either under the Human Rights Act or under the Equality Act, their employers should have made reasonable adjustments to the requirements of the job in order to cater for their religious beliefs. This will, to some extent at least, depend upon issues of practicability which are much better suited to resolution in the employment tribunal proceedings (currently sisted pending the resolution of this case) than in judicial review proceedings such as these.

The Court also issued a press release summarizing the decision, and BBC News reports on the decision. [Thanks to Scott Mange for the lead.]

Chabad of California Liable For $845K Damages Under False Claims Act

In United States ex. rel. Kozak v. Chabad-Lubavitch, Inc., (ED CA, Dec. 9. 2014), a California federal district court granted summary judgment in a False Claims Act  qui tam action, finding Chabad of California liable for $844,985 in treble damages and statutory penalties.  The court concluded that Chabad of California misappropriated Department of Homeland Security grant funds intended to pay for video surveillance and other security equipment for Chabad and two of its affiliated institutions. (See prior related posting.) Chabad executed documents assuring the government that it would comply with specific financial management standards in receiving advances of the grant funds to assure that the funds would be used for the purposes for which they were awarded. However Chabad had no written financial management procedures, deposited the grant funds into its general checking account and used $272,495 of the funds for non-grant purposes.

While Chabad argued that there were triable issues of fact as to whether it submitted false claims "knowingly," the court said:

The undisputed facts in this matter show that Chabad knew about the requirements attendant to NSG Program grants in general and to drawdown advance requests in particular, yet had no compunction whatsoever in failing to adhere to those requirements. Under the circumstances, it is clear to the Court that Chabad acted at minimum “knowingly” as defined by the FCA.

The court did not grant summary judgment against two Chabad affiliates that were also defendants, finding that triable issues of fact remain as to their liability.  Jewish Journal reports on the court's decision.

DOJ Announces Settlement of RLUIPA Zoning Suit On Behalf of Minnesota Mosque

The Minnesota United States Attorney's Office announced yesterday that a settlement agreement in principle has been reached in its RLUIPA lawsuit against the City of St. Anthony Village (MN).  The suit challenges the city's refusal to issue a conditional use permit to the Abu Huraira Islamic Center-- with its largely Somali Muslim membership-- that sought to purchase an existing business center in an area zoned "light industrial," use the basement for worship space and continue to rent the remainder of the building to existing business tenants. (See prior posting.)  The agreement, which must still be approved by the St. Anthony City Council, the Justice Department and the federal district court, calls for the city to create a Planned Use Development that will allow the Islamic Center to use the basement space for worship. The city will also undertake various other initiatives to prevent future religious discrimination.  The Minneapolis Star-Tribune reports in more detail on the settlement terms.

Suit Challenges Creche On Indiana Courthouse Lawn

The Freedom from Religion Foundation, through the Indiana ACLU, filed suit in federal district court yesterday challenging the constitutionality of a life-size city-owned Nativity Scene on the lawn of the Franklin County Courthouse in Brookville, Indiana. The complaint (full text) in Freedom From Religion Foundation v. Franklin County, Indiana, (SD IN, filed 12/16/2014), (which includes a photo of the display) says that while the city also displays a series of plastic reindeer on the lawn, they are not part of the same display and are barely visible during the day when they are not lighted. Both the ACLU and FFRF have issued press releases announcing the filing of the lawsuit.

UPDATE: Under an agreement reached by the parties on Dec. 19, the Nativity Scene will remain up only until the day after Christmas, and FFRF will drop its request for a preliminary injunction. According to a press release by Thomas More Society, litigation on plaintiffs' request for a permanent injunction will now continue on a more normal time schedule.