3rd Circuit Hears Arguments In Muslim Challenge To NYPD Surveillance

Yesterday the U.S. Third Circuit Court of Appeals heard oral arguments in Hassan v. City of New York. (Audio of full oral arguments.)  The case involves a constitutional challenge to the New York City Police Department's surveillance of the Muslim community in New Jersey following 9/11. The district court had dismissed the case both for lack of standing and failure to show intentional discrimination. (See prior posting.)  NorthJersey.com reports on the case.

French and Israeli Officials Display Some Tensions After Supermarket Terrorist Attack

While most of the media depicted the turnout of world leaders at the Paris march against terrorism on Sunday as a show of unity, there appears to be a continuing tension between French and Israeli officials in the wake of the fatal attack at a kosher supermarket.

First, in a Jan. 12 article, Haaretz reported that originally French officials asked both Israeli Prime Minister Benjamin Netanyahu and Palestinian Authority President Mahmoud Abbas to stay away from the solidarity demonstration to avoid diverting attention to controversial issues such as the Israeli-Palestinian conflict.  Originally both leaders agreed. But then when Foreign Minister Avigdor Lieberman and Economy Minister Naftali Bennett-- both Netanyahu rivals in the upcoming Israeli elections announced they would attend the Paris demonstration, Netanyahu changed his mind. This led French officials to then extend an invitation to Abbas as well.  French President Hollande showed his anger by leaving the Sunday evening ceremony at the Great Synagogue in Paris as Netanyahu was about to speak. (I24 News reports that Foreign Minister Liberman denied that the French asked Netanyahu not to attend the Paris demonstration.)

Additional tensions have been created by the statement of condolence that Prime Minister Netanyahu issued Saturday evening in which he welcomed French Jews to emigrate to Israel, suggesting a threat to Jewish safety in France. (See prior posting.) Even before the terrorist attack, there has been increasing French Jewish emigration to Israel.  Reacting to that earlier trend, The Atlantic in a Jan. 10 article reports that French Prime Minister Manuel Valls said: "[I]f 100,000 Jews leave, France will no longer be France. The French Republic will be judged a failure." Yesterday, according to the New York Times, the French Interior Minister said that 4,700 police officers would be sent to guard France's 700 Jewish schools and other institutions.

Then at the funeral in Israel today for the four victims of the Paris supermarket shooting, Israeli President Reuven Rivlin said: "We cannot allow that in 2015, 70 years since the end of World War II, Jews are afraid to walk in the streets of Europe with skullcaps and tzitzit." (The Local).

Canadian Court Rejects Claim For Damages For Breach of Ketubah

In Zalik v. Zalik, (BC Sup. Ct., Dec. 31, 2014), a British Columbia (Canada) trial court rejected a claim brought by a husband in a divorce proceeding seeking damages from his wife for her breach of their Ketubah (Jewish marriage contract).  The breach cited by the husband was a failure to maintain a lifetime marriage.  The court held that if the Ketubah contains a religious obligation to maintain a lifetime marriage, that obligation is inconsistent with the parties legal rights under Canada's Divorce Act. Metro News reports on the decision.

Court Dismisses Defamation Claims Against Church And Pastors By Excommunicated Plaintiffs

In Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered Augsburg Confession of Worthington, (MN App., Jan. 12, 2015), a Minnesota state appellate court invoked the ecclesiastical abstention doctrine to dismiss a defamation suit brought against a church and its pastors by a couple who had been excommunicated for their criticism of the church's pastors.  Plaintiffs, an elderly couple, claim that statements made during a meeting of church members and before a synod review panel as part of the excommunication process injured their character and reputation in their small community. The court held, however, that:

any judicial inquiry into the truth of statements made during a church disciplinary proceeding would create an excessive entanglement with the church that would violate the First Amendment...

Developments In Marriage Equality Cases: Louisiana and South Dakota

There were two developments yesterday in the array of cases challenging same-sex marriage bans.  The U.S. Supreme Court denied the petition for direct review of a trial court decision in Robicheaux v. Devin, (Docket No. 14-596, cert. before judgment denied, Jan. 12, 2015) (Order List). The district court upheld Louisiana's same-sex marriage ban and the 5th Circuit last week heard oral arguments in the case. (See prior posting.)

Also yesterday in Rosenbrahn v. Daugaard, (D SD, Jan. 12, 2015), a federal district court held that  South Dakota's same-sex marriage ban violates the due process and equal protection clauses of the 14th Amendment.  However, the court stayed its injunction pending appeal to the 8th Circuit. Lyle Denniston at SCOTUSBlog reporting on the decision said:

Although most of Judge Schreier’s reasons for nullifying the South Dakota ban on Monday were familiar from other decisions, she was among the first to reject what has been a more recent claim by state officials: that is, that marriage is a domestic relations matter, and that federal courts have no jurisdiction over such matters.  There is such an exception, the Sioux Falls judge found, but that it does not go so far as to bar new constitutional claims against same-sex marriage bans.

Following the district court's decision, South Dakota Attorney General Marty Jackley reacted in a press release, saying in part: "It remains the State’s position that the institution of marriage should be defined by the voters of South Dakota and not the federal courts."

Transcript of Today's SCOTUS Arguments In Town of Gilbert Now Available

The full transcript of oral arguments today in Reed v. Town of Gilbert -- the case on regulation of church directional signs-- is now available.  SCOTUSBlog has an analysis of the arguments, saying in part:

Throughout the argument, Justices of differing philosophical leanings seemed skeptical of a one-size-fits-all First Amendment approach for judging sign ordinances.  That was the way they interpreted the argument of David A. Cortman of Lawrenceville, Georgia, representing the small Good News Community Church and its pastor, Clyde Reed.   No member of the Court appeared persuaded by his argument that, if a city allows more leeway for one kind of sign, the Constitution demands that all signs in any way similar be treated the same.

Dismissal of Atlanta Fire Chief Over Anti-Gay Book Riles Religious Conservatives

As reported by GA Voice, last week Atlanta Mayor Kasim Reed dismissed Fire Chief Kelvin Cochran for publishing a book reflecting Cochran's anti-gay views, without discussing the matter with the mayor. Reed says that the publication is inconsistent with the city's policy that bars discrimination, among other things, on the basis of sexual orientation, and casts doubt on Cochran's ability to lead a diverse work force.  However yesterday's New York Times reports that the firing has generated a backlash:

[C]onservatives and religious organizations were outraged. The Georgia Baptist Convention has organized an online petition demanding that the firing be reversed. The evangelist Franklin Graham, in an opinion piece for a religious news site, called Mr. Cochran the “latest target of politically correct bullying against Bible-believing Christians.”

The firing may give impetus to a religious freedom bill that has again been proposed in the Georgia legislature. Summarizing the situation, Mayor Reed said:  "I hired him to put out fires. Not to create them."

Expanding Protestant Churches Face New Opposition From Chinese Government

Yesterday's Christian Science Monitor carried a long story on the rapid growth of Protestantism in China and the government's new moves to crack down on official as well as unofficial churches.  Here is an excerpt:

As evangelical Christianity grows sharply, officials fear it could undermine their authority. Already, Christians may outnumber members of the Communist Party. That has far-reaching implications both for Chinese society and for a party that frowns on unofficial gatherings and other viewpoints. In China, party members cannot be Christian.

More than half of China’s Protestants attend illegal “house churches” that meet privately. The rest go to one of China’s official, registered Protestant churches.... [which] operate under an arrangement that says in effect: We are patriotic, good citizens. We love China. We aren’t dissidents. We go to official theology schools. So the party will let us worship freely....

Yet in the past year authorities have attacked and even destroyed official Protestant churches, as well as unofficial ones. Many Evangelicals feel they are now on the front lines of an invisible battle over faith in the world’s most populous nation, and facing a campaign by the party-state to delegitimize them. Underneath it all is a question: Will China become a new fount of Christianity in the world, or the site of a growing clash between the party and the pulpit?

Consideration of Church's Location In Redistricting Does Not Violate Establishment Clause

Harris v. City of Texarkana, (WD AR, Jan. 9, 2015), is a challenge to the drawing of ward boundary lines in a city for election purposes after the 2010 census. While most of the opinion was devoted to rejecting plaintiff's Voting Rights Act challenge, plaintiff also raised an unusual Establishment Clause challenge.  In drawing ward lines, one of the members of the City Board of Directors requested that a particular church be kept within his ward. The court said:

In this case, there was no endorsement of any religion.... The alleged consideration of where the church fell within the ward boundaries was not an attempt to make religion relevant to a citizen’s standing within the community, and there is no evidence that the religion practiced by the members was a consideration.... The church was only relevant insofar as it had members who were of voting age who had a relationship with a member of the Board of Directors. Accordingly, Plaintiff’s First Amendment claims fails. 

Supreme Court Will Hear Arguments Today On Church's Challenge To Sign Ordinance

The U.S. Supreme Court will hear oral arguments this morning in Reed v. Town of Gilbert.  (Argument calendar.) In the case, the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, upheld as content-neutral an Arizona town's sign ordinance that limits the display of directional signs.  The ordinance was challenged by a church that placed 17 signs in the area around its place of worship announcing the time and location of its services. (See prior posting.)  Here is the SCOTUSBlog's case page with links to all of the briefs in the case. and here is Lyle Denniston's preview of the arguments.

Recent Articles of Interest

From SSRN:

• Marc Helbling & Richard Traunmüller, How State Support of Religion Shapes Attitudes Toward Muslim Immigrants. New Evidence from a Subnational Comparison, (January 6, 2015).
• Rim-Sarah Alouane, Bas Les Masques! Unveiling Muslim Women on Behalf of the Protection of Public Order: Reflections on the Legal Controversies Around a Novel Definition of 'Public Order' Used to Ban Full-Face Covering in France, (The Experiences of Face Veil Wearers in Europe and the Law (Ed: Eva Brems),Cambridge University Press, 2014, 194-205).
• Washim Ahmed, Old Wine in a New Bottle: Analyzing the Impacts of Polygamy Inadmissibility Under Bill S-7 on Immigration Law, (December 20, 2014).
• Markus Mättö & Mervi Niskanen, National Culture and Cross-Country Differences in Trade Credit, (January 4, 2015).
• Gregory Brazeal, Constitutional Fundamentalism, (January 8, 2015).
• Samuel D. Brunson, Dear I.R.S., It Is Time to Enforce the Campaigning Prohibition. Even Against Churches, (January 7, 2015).

Over Strong Dissent, 9th Circuit Denies En Banc Review of Marriage Equality Decisions

In Latta v. Otter, (9th Cir., Jan. 9, 2015), the U.S. 9th Circuit Court of Appeals refused to grant en banc review of a 3-judge panel's decision striking down same-sex marriage bans in Idaho and Nevada. (See prior posting.) Judge O'Scannlain, joined by Judges Rawlinson and Bea, filed a 25-page dissent to the denial of review, saying in part:

Nothing about the issue of same-sex marriage exempts it from the general principle that it is the right of the people to decide for themselves important issues of social policy.

SCOTUSBlog reports on the 9th Circuit's action, calling Judge O'Scannlain's opinion "one of the strongest dissenting statements yet ... on same-sex marriages."

Recent Prisoner Free Exercise Cases

In Davila v. Gladden, (11th Cir., Jan. 9, 2015), the 11th Circuit Court of Appeals in a 31-page opinion reversed a district court's dismissal of a claim for injunctive relief under RFRA by a federal prisoner who is a Santeria priest.  He was not allowed to have his goddaughter bring him his set of personal Santeria beads and Cowrie shells. The court said that "the prison has offered no evidence to justify its cost and safety concerns."  The Court however affirmed the dismissal of plaintiff's 1st Amendment claims and his damage claims under RFRA.

In  Mobley v. Coleman, 2015 Pa. Commw. Unpub. LEXIS 15 (PA Commnwlth. Ct., Jan. 6, 2015), a Pennsylvania trial court rejected an inmate's claim that the Establishment Clause and Equal Protection Clause were violated when a prison provided Sunni Muslim congregational services while not providing similar Nation of Islam services.

In Williams v. Nish, 2015 U.S. Dist. LEXIS 1159 (MD PA, Jan. 7, 2015), a Pennsylvania federal district court dismissed complaints by a Native American inmate that he and others were forced to conduct prayer and smudging ceremonies outdoors in cold or adverse weather and that Three Sisters seeds used as ceremonial relics were destroyed and not replaced.

In Shaw v. Georgia, 2015 U.S. Dist. LEXIS 1484 (SD GA, Jan. 7, 2014), a Georgia federal magistrate judge permitted an inmate to proceed with his 1st and 8th Amendment claims based on his complaint that he has suffered serious health problems from the denial of a nutritionally adequate diet that complies with his religious beliefs.

In Mutawakkil v. Hamblin, 2015 Wisc. App. LEXIS 6 (WI App., Jan. 8, 2015), a Wisconsin state appeals court affirmed the dismissal of an inmate's complaint that he was only allowed to use his spiritual name along with the name on his judgment of conviction, while those who had their name changed legally could used their new name alone on correspondence and for various other purposes.

In Hassan v. Whart, 2015 U.S. Dist. LEXIS 2602 (ED VA, Jan. 9, 2015), a Virginia federal district court dismissed a suit by a former jail inmate who sued for $1 million in damages and injunctive relief because during his 5 weeks in jail he was not able to attend congregate Friday Jumu'ah services.

In Bear v. Dietsch, 2015 U.S. Dist. LEXIS 2763 (ND IA, Jan. 9, 2014), an Iowa federal district court dismissed for failure to exhaust administrative remedies inmates' complaint that while in the Transition Incentive Program they were not permitted to attend community religious services.

Challenge To Catholic School's Entrance Requirements Dismissed Under Ecclesiastical Abstention Doctrine

In In re Vida, (TX App., Jan. 7, 2015), a Texas state appeals court held that under the ecclesiastical abstention doctrine, a trial court must dismiss for lack of jurisdiction a suit by parents of a Catholic school kindergartner against the school superintendent.  The suit alleging negligence, tortious interference with contract and conspiracy was filed after the school refused to admit the student to first grade because she failed to meet the 6-year old age requirement.  The court said:

Just as the courts cannot question the admission requirements for Catholic churches, they also do not have jurisdiction to consider a claim arising from the admission requirements for Catholic schools which “are subject to the authority of the Church” under Canon Law.

In Wake of Terrorism, Broader Anti-Semitism In France Is Examined

In the wake of this week's terrorist attack on a kosher supermarket in Paris, the media are beginning to examine more broadly the issue of rising anti-Semitism in France.  The Telegraph carries an article which begins:

The least surprising thing about today’s turn of events in Paris is that Jews are the target. Because when it comes to home grown anti-Semitism, France leads the world.... No wonder Jewish emigration from France is accelerating.

As reported by JTA, in the wake of the attacks, the Grand Synagogue of Paris was closed for Sabbath services for the first time since World War II.

Meanwhile, Israeli Prime Minister Benjamin Netanyahu issued a statement (full text) sending condolences to the French Jewish community and the French people, and saying to French and European Jews:

The State of Israel is not just the place to which you turn in prayer. The State of Israel is also your home. This week, a special team of ministers will convene to advance steps to increase immigration from France and other countries in Europe that are suffering from terrible anti-Semitism. All Jews who want to immigrate to Israel will be welcomed here warmly and with open arms. We will help you in your absorption here in our state that is also your state.”

5th Circuit Hears Oral Arguments In 3 Same-Sex Marriage Cases

Yesterday, the U.S. Fifth Circuit Court of Appeals heard oral arguments in three same-sex marriage cases.  The cases argued were Robicheaux v. Caldwell, in which a district court upheld Louisiana's ban (see prior posting) (audio recording of full oral arguments); DeLeon v. Perry, in which a district court struck down the Texas bans (see prior posting) (audio recording of full oral arguments); and Campaign for Southern Equality v. Bryant, in which a district court found Mississippi's ban unconstitutional (see prior posting) (audio recording of full oral arguments). The Washington Times reports that supporters of marriage equality were encouraged by the questions from two of the three judges on the panel.

New Head of Reform Judaism's Religious Action Center Profiled

The Washington Post on Wednesday published a lengthy profile of Rabbi Jonah Pesner, the new head of Reform Judaism's Religious Action Center. Pesner, a Boston community activist, succeeds long-time RAC head Rabbi David Saperstein who was recently confirmed as U.S. ambassador-at-large for International Religious Freedom.  The Religious Action Center has a long history of leadership on civil rights and other liberal causes.

Brunei Bans Public Christmas Celebrations That Are Displayed To Muslims

According to the International Business Times, yesterday the Brunei Ministry of Religious Affairs officially banned the public celebration of Christmas in the country, concerned that viewing such celebrations could damage the faith of Muslims. The ban implements a Dec. 27 Statement from the Ministry (full text) which says in part:

Muslims are prohibited from imitating the customs and practices of other religions that are related to matters of aqidah (faith). In a hadith ... Prophet Muhammad ... said, "Whoever imitates a people is one of them".

For example, in conjunction with Christmas celebrations, Muslim children, teenagers and adults can be seen wearing hats or clothes that resemble Santa Claus. Actions such as these can amount to an offence under Section 207 (1) of the Syariah Penal Code Order, 2013, that is performing or practicing a ceremony or act contrary to Hukum Syara’ [Syariah law] ....

Meanwhile, believers of other religions that live under the rule of an Islamic country – according to Islam – may practice their religion or celebrate their religious festivities among their community, with the condition that the celebrations are not disclosed or displayed publicly to Muslims.

South Carolina Issues Final Tax Rulings On Treatment of Same-Sex Marriages

As reported by BNA Daily Report for Executives [subscription required], on Dec. 31 the South Carolina Department of Revenue issued final versions of two revenue rulings dealing with tax treatment of same-sex marriages. Revenue Ruling #14-8  makes it clear that "same-sex marriages that are recognized for federal income tax purposes will now be recognized for South Carolina income tax purposes."  Revenue Ruling #14-9  provides that "same-sex couples who are legally married under any state law will now be treated as married for all South Carolina tax purposes...." and sets out examples relating to property taxes and deed recording fees.

Activist Convinces City To Remove Cross

Mitch Kahle, an activist with a history of pressing for church-state separation, recently moved from Hawaii to Michigan where he began a campaign to get the city of Grand Haven to remove a cross that has been at the top of a city hill for over 50 years.  The Washington Free Beacon reports that, under threat of a lawsuit, the Grand Haven city council voted 3-2 earlier this week to have the cross removed from Dewey Hill.  Grand Haven resident and blogger Brandon Hall called Kahle "a bully... an atheist extremist who targets Christians and gives atheists a bad name."  Hall said he has taken out papers to force a recall vote on Councilman Bob Monetza who supported removal of the Dewey Hill Cross. Monetza explained his vote, saying that the alternative was "the prospect of a grotesque circus of rotating and competing displays and messages... until Dewey Hill stops being a beautiful backdrop to our downtown and becomes a hideous billboard."

The Grand Haven Tribune reports that Kahle also recently convinced Grand Haven schools to end the practice of permitting a Christian pastor to be present in hallways during lunch periods "enticing children with candy to join him in prayer and other religious activities."  The pastor's activities will be moved outside of regular school hours.

Hawaiian Temple Sues Over Zoning Denial

RLUIPA Defense blog reported this week on a suit filed last November in federal district court in Hawaii by Spirit of Aloha Temple which was denied zoning approval to expand the use of a botanical garden it owns.  The Temple sought to use existing structures on the property for its Integral Yoga observances, including religious services, weddings and educational activities. The complaint (full text) in Spirit of Aloha Temple v. County of Maui, D HI, filed 11/26/2014) contends that the denial of permission violates RLUIPA, the 1st and 14th Amendments and Hawaiian constitutional and statutory provisions.

2nd Circuit Upholds New York's Compulsory Vaccination Requirements

In Phillips v. City of New York, (2d Cir., Jan 7, 2015), the U.S. Second Circuit Court of Appeals upheld New York's requirement that, subject to medical and religious exemptions, all children be vaccinated before attending public school. It relied largely on the 1905 U.S. Supreme Court decision in Jacobson v. Massachusetts to dispose of substantive due process objections.  The court also upheld, over free exercise objections, New York's regulation allowing officials to temporarily exclude students who are exempted from the vaccination requirement on religious grounds from school during an outbreak of a vaccine‐preventable disease. Quoting dicta in a 1944 Supreme Court decision, it held that the state could have imposed a vaccination requirement with no exemptions, so the more limited exclusion of those with an exemption during disease outbreaks is likewise constitutional. The court went on to reject equal protection and 9th Amendment arguments as well.  Education Week reports on the decision. New York Times reports that plaintiffs will seek Supreme Court review in the case.

Guantanamo Military Judge Orders End To Use of Female Guards For Objecting Muslim Defendants

AP reports that a military judge at Guantanamo Bay yesterday issued an order that, pending a final decision, authorities should stop using female guards to move 5 defendants held in a top-secret Guantanamo unit back and forth to meetings with their lawyers. Defendants have been refusing to meet with counsel because physical contact with the female guards violates their Muslim religious beliefs.

Court Denies Motions To Dismiss Suits In Shop's Refusal To Sell Flowers For Same-Sex Wedding

AP reports that a Washington state trial court judge yesterday denied two motions to dismiss in State of Washington v. Arlene's Flowers in which the state and individual plaintiffs are suing over a flower shop's refusal to sell floral arrangements for a same-sex wedding. (See prior posting.)  One motion (full text) contended that the state attorney general lacked authority to bring a Consumer Protection Act case without the discrimination charges first going through the state Human Rights Commission administratively.  The second motion (full text) that was denied contended that the owner-officer of the incorporated flower shop could not be held liable personally. Additional motions to dismiss for failure to state a claim are still pending. ADF has links to other pleadings in the case.

Florida Extends Health and Retirement Benefits To Same-Sex Spouses of State Employees

The Miami Herald reports that Florida officials have decided same-sex spouses of state employees will now be eligible for health insurance and retirement benefits. The rulings in memos from the Department of Management Services and from the State Retirement Director come after court decisions resulted in the legal recognition of same-sex marriage in Florida as of January 6. (See prior posting.)

City Settles Suit Challenging Christian Symbols At Veterans' Memorial

The King, North Carolina city council voted 3-2 on Tuesday to settle a federal lawsuit that had been filed against it in 2012 claiming that the design and flag policy of a Veterans' Memorial built by the city unconstitutionally advanced Christianity. (See prior posting.)  According to Stokes News, under the settlement the city will repeal a policy which resulted in a Christian flag often being flown on one of the flag poles at the memorial.  Under the settlement, the city has also already removed the statute of a soldier kneeling before a cross that was part of the memorial. The city will also pay $500,000 in legal fees to Americans United, and $1 in nominal damages to the plaintiff in Hewett vs. City of King.  The city agreed to the settlement when it became clear that the cost of going to trial might reach $2 million and greatly exceed the city's insurance policy limits, and that the city might lose its insurance coverage.  Councilman Brian Carico, one of the two voting against the settlement, said:

... before I am a council member, before I am a husband, before I am a father or a brother or a son, ... I am a Christian.... Every word and deed I do is supposed to be in the name of Jesus Christ.... I can’t vote to remove anything from that memorial because the intent is not there for anyone to be offended. Every veteran that memorial honors took an oath of God and country and they knew what God they were speaking of.

Israelis Bar Transgender Woman From Western Wall

YNet News  and Jerusalem Post  report that in Israel on Tuesday a transgender woman was turned away from the women's section of the Western Wall in Jerusalem. When Kay Long, who no longer identifies or dresses as a male, approached the women's section, she was turned away by an Orthodox Jewish woman patrolling the section who told her the section was for women only. When Long approached the men's section, Orthodox men yelled at her pointing her toward the women's section.

Synagogue Board Improperly Denied Congregational Vote On Rabbi's Retention

In Kamchi v. Weissman, (NY App., Dec. 31, 2014), a New York state appellate court interpreted the provisions of New York's Religious Corporation Law that apply to synagogues as giving wide authority to the congregational membership.  At issue was the synagogue Board of Trustee's refusal to permit a congregation-wide vote on renewal or extension of the rabbi's employment contract after the Board decided not to extend or renew it.  Members of the congregation and its ousted rabbi sued seeking a declaratory judgement that their rights had been violated and damages for tortious interference with prospective economic relations and defamation. The court held that the the congregation's authority is governed by NYRCL Sec. 200 that provides:

A corporate meeting of an incorporated church, whose trustees are elective as such, may give directions, not inconsistent with law, as to the manner in which any of the temporal affairs of the church shall be administered by the trustees thereof; and such directions shall be followed by the trustees. The trustees of an incorporated church to which this article is applicable, shall have no power to settle or remove or fix the salary of the minister....

The court held that the Board,  by refusing to allow the Congregation to act, usurped the Congregation’s authority. It also held that the trial court should not have dismissed the rabbi's defamation claim. [Thanks to Jeff Pasek for the lead.]

Egyptian President Calls For Unity and Islamic Reform As Coptic Christmas Is Celebrated

Today is the date on which Coptic Christians celebrate Christmas.  Egyptian Streets reports that President Abdel Fattah al-Sisi has become the first Egyptian President to attend Christmas Mass. In an unannounced visit to Cairo's Abbasiya Cathedral, al-Sisi extended Christmas greetings and urged Egyptians to remain united. His appearance comes after masked gunmen yesterday shot and killed two policemen guarding a Coptic Christian church in the southern Egyptian city of Minya. (Al Ahram)

Meanwhile, Middle East Forum reports on a speech made by al-Sisi on New Year's Day before Al-Azhar and the Awqaf Ministry calling for a different vision for Islam. Al-Sisi said in part:

It's inconceivable that the thinking that we hold most sacred should cause the entire umma [Islamic world] to be a source of anxiety, danger, killing and destruction for the rest of the world. Impossible!

... [T]hat corpus of texts and ideas that we have sacralized over the years... is antagonizing the entire world.... Is it possible that 1.6 billion people [Muslims] should want to kill the rest of the world's inhabitants—that is 7 billion—so that they themselves may live? Impossible!

... I say and repeat again that we are in need of a religious revolution. You, imams, are responsible before Allah. The entire world, I say it again, the entire world is waiting for your next move… because this umma is being torn, it is being destroyed, it is being lost—and it is being lost by our own hands.

[Thanks to Geoff Rapp for the leaad.]

Terrorists Attack French Satirical Magazine

In a still developing story from France, at least 12 people were killed and 4 others critically wounded today in a terrorist attack by two heavily armed gunmen at the Paris offices of the satirical magazine Charlie Hebdo.  The magazine has been a target in the past because of its publishing of cartoons depicting the Prophet Muhammad or satirizing Islamic law.  The magazine has also satirized other religious groups. CNN reports on today's attack in a post that is being updated on a continuous basis.

Indiana Supreme Court Interprets Civil Rights Commission Jurisdiction Over Educational Matters Narrowly

In Fishers Adolescent Catholic Enrichment Society, Inc. v. Bridgewater, (IN Sup. Ct., Jan. 6, 2015), the Indiana Supreme Court held that the state's Civil Rights Commission exceeded its authority when it adjudicated disability discrimination and retaliation claims growing out of a dispute between members of a group ("FACES") created to provide homeschool high schoolers with Catholic educational, spiritual, and social enrichment. A family filed a discrimination complaint with the Civil Rights Commission when FACES refused to make health-related dietary accommodations for their daughter at an "All Souls' Day Masquerade Ball" dinner-dance. The complaint led to the family's being expelled from FACES.

The Indiana Civil Rights Law, Sec. 22-9-1-3(l), bars discriminatory practices only when they relate to "the acquisition or sale of real estate, education, public accommodations, employment, or the extending of credit." The Supreme Court said:

The dinner-dance at which Mrs. Bridgewater contends that FACES failed to accommodate her daughter's food allergy furthered ... Catholic spiritual and social enrichment. It was not an occasion for the teaching of academic subjects as part of the student's curriculum.... The alleged disability discrimination thus occurred at a quasi-religious social function, not an educational one. To expansively interpret "relating to . . . education," ... to apply to this dinner would convert almost every occasion of parental guidance and training into an activity "related to education." This would eviscerate the function of "related to education" as a legislative prerequisite for the Commission's enforcement powers.

Justice Rucker dissented.

Thomas More Society issued a press release announcing the decision.

2nd Circuit Upholds Eruv Against Establishment Clause Attack

In Jewish People for the Betterment of Westhampton Beach v. Village of Westhampton Beach, (2d Cir., Jan. 6, 2015), the U.S. Second Circuit Court of Appeals held that the Long Island Power Authority did not violate the Establishment Clause when it entered a licensing agreement permitting a Jewish organization to attach inconspicuous staves (known as lechis) to utility poles in order to create an eruv. Applying the Lemon test, the court said in part:

Neutral accommodation of religious practice qualifies as a secular purpose under Lemon.... No reasonable observer who notices the strips on LIPA utility poles would draw the conclusion that a state actor is thereby endorsing religion.

Newsday reports on the decision.

Injunction Issued In Contraceptive Mandate Case On Remand From Supreme Court

On remand from the U.S. Supreme Court after its Hobby Lobby decision (see prior posting), in Autocam Corp. v. Burwell, (WD MI, Jan. 5, 2014), a Michigan federal district court issued a permanent injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate against Autocam Medical, LLC. Members of a Catholic family were the CEO and controlling owners of Autocam. The injunction covered:

those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require plaintiff Autocam Medical, LLC, to  provide its employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which  plaintiff objects on religious grounds.

Thomas More Society issued a press release announcing the decision.

Study Provides Religious Affiliation of Members of Incoming Congress

Pew Forum yesterday published its study of The Religious Composition of the 114th Congress which is sworn in today. It is 57.2% Protestant; 30.7% Catholic; 5.2% Jewish; 3% Mormon.  Other faiths represented include Orthodox Christian, Buddhist, Muslim, Hindu and Unitarian-Universalist. Only 1 member of the incoming Congress is listed as Unaffiliated, while 20% of American adults say they are unaffiliated.  The full report has additional details on members' religious affiliations.

Religious School Exempt From Arizona Unemployment Insurance Tax

In Above and Beyond Child Care Inc. v. State of Arizona, (App. Bd., Dec. 19, 2014), the Arizona Department of Economic Security Appeals Board held that a church-affiliated pre-school and K-6 elementary school is exempt from the state unemployment insurance law.  The state had contended that the exemption for organizations operated primarily for religious purposes does not apply because the school's primary purposes are child care and teaching of secular subjects. The appeals board disagreed, holding that the school's teaching personnel are not covered by unemployment insurance.  It emphasized that the school's curriculum and class operations are infused with religious faith. An ADF press release last month announced the decision.

5 Church Members Indicted For Assault and Kidnapping In Efforts To Cure Teen of Homosexuality

The Shelby (NC) Star reported yesterday on the kidnapping and assault indictments last month of five members of a North Carolina church growing out of their attempts to break a 19-year old young man free of homosexual "demons."  Matt Fenner, who had joined the World of Faith Fellowship Church in Spindale, NC, says some 20 church members joined 3 others that had taken him to the back of the sanctuary.  Begining with "blasting"-- a high-pitched screaming prayer--, the groups's efforts at eliminating Fenner's homosexuality  led to their pushing, hitting and screaming at him for two hours in January 2013. Fenner says he had to press authorities to investigate.  The church's attorneys say that the charges are "an absolute complete fabrication." Apparently the 750-member church that operates a 35-acre complex in Spindale has been accused for years of exerting excessive control over its members. The church has also posted a denial on its website, saying "it is clear that [Fenner] has been influenced by several individuals who have vowed to destroy our church."

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.