Alabama Same-Sex Marriage Developments: A Second Decision and Defiance

As previously reported, on Jan. 23 an Alabama federal district court invalidated Alabama statutory and constitutional provisions that bar recognition of same-sex marriages. The court however imposed a 14-day stay on its order to allow an appeal. (See prior posting),  Three days later, the same judge decided a second case, Strawser v. Strange, (SD AL, Jan. 26, 2015), reaching the same result, this time in a suit by plaintiffs seeking to marry in Alabama, rather than have their out-of-state marriage recognized in the state. The court again granted a 14-day stay to give an opportunity for an appeal.

Meanwhile, on Jan. 27 Alabama Supreme Court Chief Justice Roy Moore sent a letter to the state's governor urging defiance of the federal court's decisions. In his letter (full text) to Gov. Robert Bentley, Moore said in part:

I am dismayed by those judges in our state who have stated they will recognize and unilaterally enforce a federal court decision which does not bind them.  I would advise them that the issuance of such licenses would be in defiance of the laws and Constitution of Alabama.  Moreover, I note that "United States district court decisions are not controlling authority in this Court."...  As Chief Justice of the Alabama Supreme Court, I will continue to recognize the Alabama Constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment.

... Be advised that I stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority.

According to AL.com, the governor issued a statement after the release of Moore's letter, saying in part:

The people of Alabama voted in a constitutional amendment to define marriage as being between man and woman. As governor, I must uphold the Constitution. I am disappointed in Friday's ruling, and I will continue to oppose this ruling. The Federal government must not infringe on the rights of states.

In 2003, Roy Moore ,in his first term as Alabama Chief Justice, gained national attention by his fight against removal of a large Ten Commandments monument that he had place in the Alabama Judicial Building.

Suit Challenges Dismissal For Praying At Work By Speaking In Tongues

The New York Daily News reports on a federal lawsuit filed in Brooklyn yesterday by a former New York Department of Environmental Protection police officer.  Plaintiff Jerome Boswell was taken in handcuffs to a hospital for psychiatric evaluation and dismissed from his position after he began to pray by "speaking in tongues."  Boswell, a Pentecostal Christian, was discussing with a fellow employee their lack of a labor contract.  Boswell said he was leaving the issue to God, and his co-worker responded that they had no contract because God is not powerful.  Boswell took this as blasphemy, told his co-worker to repent and began the prayer in question. Boswell's lawsuit asks for back pay and $2 million in punitive damages for religious and perceived mental illness discrimination.

Facebook Complies With Turkish Court Order To Block Pages Insulting To Prophet

Jurist reports that on Sunday, a court in Turkey ordered a ban on Facebook pages containing material insulting to the Prophet Muhammad. The Golbasi Duty Magistrate Court sent to the Presidency of Telecommunication and Communication and to the Access Provider Association its order calling for Facebook to be totally blocked in the country if the offending pages are not removed. The New York Times reported yesterday that Facebook has complied with the court order and blocked Turkish users' access to the pages authorities specified as offensive.

Female GITMO Guards File Discrimination Complaints After Judges Grant Prisoners' Accommodation Requests

Muslim defendants in two cases before military commissions at Guantanamo Bay have been objecting to the military's assigning female guards to transfer them to meetings with their attorneys and to hearings.  The transfers result in physical contact between guards and the prisoners.  Military judges have issued at least interim orders barring the practice which violates defendants' religious beliefs. (See prior related postings 1, 2). Now AP reports that female guards at Guantanamo have filed complaints with the Defense Department's Office of Diversity Management and Equal Opportunity claiming that the orders amount to gender discrimination.

Today Is International Holocaust Remembrance Day

Today is the International Day of Commemoration in memory of the victims of the Holocaust as designated by a United Nations Resolution (full text) adopted five years ago. The date-- Jan. 27-- is the anniversary of the liberation of the Auschwitz-Birkenau extermination camp by the Soviet army. (Background.) This year is the 70th anniversary of that liberation. The ceremony scheduled at United Nations headquarters for today has been postponed until Wednesday because of the snow storm forecast for New York.

Sundance Film Festival Features Documentaries on Controversial Religious Groups

This year's Sundance Film Festival began on Jan. 22 and runs until Feb. 1 in Park City, Utah.  Among the Documentary Premieres are two films that deal with controversial religious groups:

• Going Clear: Scientology and the Prison of Belief (reviewed by AP )
• Prophet's Prey (reviewed by Variety)

Supreme Court Remands Native American Prisoner Free Exercise Case

In the wake of its decision on allowing prisoners to wear beards for religious reasons, the U.S. Supreme Court today sent a prisoner religious free exercise case back to the 11th Circuit for reconsideration.  In Knight v. Thompson, (Docket No. 13-955, vac. and remanded 1/26/2015) (Order List) the Court held:

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of Holt v. Hobbs, 574 U. S. ___ (2015).

In the case the 11th Circuit rejected several Native American inmates' RLUIPA challenges to Alabama prison system grooming rules that prohibit them from wearing long hair as required by their religion. (See prior posting.)

British Court Says Male Circumcision Cannot Be Equated With Female Genital Mutilation

A decision by a Family Court judge in Britain earlier this month tackled directly the argument that male circumcision should be equated with female genital mutilation and be banned just as female genital mutilation is.  In Matter of B and G (Children), (Family Ct., Jan. 14, 2015), the court found significant differences between the two procedures, saying:

in 2015 the law generally, and family law in particular, is still prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its form....

FGM has no basis in any religion; male circumcision is often performed for religious reasons. FGM has no medical justification and confers no health benefits; male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, "reasonable" parenting is treated as permitting male circumcision.

UK Human Rights Blog has more on the decision. [Thanks to Law & Religion UK for the lead.]

Israeli Court Orders City To Remove Signs Telling Women To Dress Modestly

In Israel yesterday, the Magistrate's Court in the city of Beit Shemesh ordered the  municipality to remove signs that had been put up by haredi (ultra-Orthodox) synagogues and organizations instructing women to dress modestly in the areas of the city where the signs are posted, and not to stand outside certain synagogues. According to the Jerusalem Post, the ruling came in a lawsuit brought by four modern Orthodox women after women suffered repeated harassment and attacks by haredi youths.  Judge David Gidoni wrote:

The signs were designed to restrict women from using public spaces simply because they were women... and constitute a severe injury to the rights of women to equality and respect....  The signs create the expectation that they should be adhered and are likely to create the expectation or understanding that the area where the sign is placed belongs, in effect, to one specific population group in which its norms are applicable.

The court also awarded each plaintiff damages equivalent to $3700 (US). Responding to the court order, the city said that it had repeatedly taken down the signs, only to see them replaced, and that taking them down had led to riots.  The city added that the court did not understand the "complicated reality" of relations between different population groups in the city. [Thanks to Vos iz Neias for the lead.]

Recent Articles and Book of Interest

From SSRN:

• SpearIt, Religion in Prison, (Religion and American Cultures, p. 1154, Gary Laderman & Luis Leon, eds., ABC-CLIO, 2014).
• Andrew Koppelman, 'Religion' as a Bundle of Legal Proxies: Reply to Micah Schwartzman , 51 San Diego L. Rev. 1079 (2014),
• Susan Azyndar, Review of 'Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes' by Ruthann Robson, (Law Library Journal, Vol. 106, No. 3, pp. 464-65 (2014)).
• Michael Heise, Education Rights and Wrongs: Publicly Funded Vouchers, State Constitutions, and Education Death Spirals, (November 1, 2014).
• Richard W. Garnett, The Worms and the Octopus: Religious Freedom, Pluralism, and Conservatism, (in NOMOS: American Conservatism, ed. Sanford V. Levinson, Joel Parker, and Melissa S. Williams (New York: NYU Press, Forthcoming)).
• Jennifer Anglim Kreder, The 'Public Trust', (January 23, 2015).
• Sarah Lambrecht, Bringing Rights More Home: Can a Home-Grown UK Bill of Rights Lessen the Influence of the European Court of Human Rights?, (15 German Law Journal (2014)).
• Richard Moon, Demonstrations on Campus and the Case of Israeli Apartheid Week, (in James L. Turk ed., Academic Freedom in Conflict: The Struggle Over Free Speech Rights in the University (Lorimer, 2014) c. 9).

From SSRN (Christianity and Law):

• Archana Mishra, Adopted and Illegitimate Child Under Indian Christian Law: Revisiting Inheritance Rights, (January 17, 2015).
• Thomas R. Young, Durkheim's Theory of Triangular Force Relations and Its Application to Christian Collegia in the Roman Empire, (January 20, 2015).

From SSRN (Islamic Law and Society):

• Arno Tausch, Further Insight into Global and Arab Muslim Opinion Structures: Statistical Reflections on the 2013 Pew Report 'The World’s Muslims', (Middle East Review of International Affairs, Vol. 18, No. 1 (Spring 2014)).
• Imelda Deinla & Veronica Taylor, Towards Peace: Rethinking Justice and Legal Pluralism in the Bangsamoro, (RegNet Research Paper No. 2015/63)).
• Imelda Deinla & Veronica Taylor, An Annotated Bibliography on Justice and Legal Pluralism in Mindanao-- Briefing Paper No. 1: Ways for Women to Participate in Peacebuilding (Philippines), (RegNet Research Paper No. 2015/64).
• Murat Çokgezen & Timur Kuran, Between Consumer Demand and Islamic Law: The Evolution of Islamic Credit Cards in Turkey, (Economic Research Initiatives at Duke (ERID) Working Paper No. 182, 2015).

From SmartCILP and elsewhere:

• Kathryn E. Kovacs, Eagles, Indian Tribes, and the Free Exercise of Religion, 47 Loyola Los Angeles Law Review 53-116 (2013). 
• The Eighth Annual John F. Scarpa Conference on Law, Politics, and Culture. Exploring and Celebrating the Legacy of the Honorable John T. Noonan, Jr., Introductions by Patrick McKinley Brennan and William Card. Levada; articles by Hon. John T. Noonan, Jr., Richard W. Painter, Kenneth Pennington, Rev. Michael Sweeney and Joseph Vining. 59 Villanova Law Review 649-727 (2014).
• James M. Oleske, Jr., The Born-Again Champion of Conscience, (Harvard Law Review Forum, Jan. 22, 2015).

Recent Book:

• Lawrence H. Winer & Nina J. Crimm, God, Schools, and Government Funding: First Amendment Conundrums, (Ashgate, Jan. 2015). 

Recent Prisoner Free Exercise Cases

In Davila v. Marshall, 2015 U.S. Dist. LEXIS 6167 (SD GA, Jan. 20, 2014), a Georgia federal magistrate judge dismissed on mootness and qualified immunity grounds an inmate's complaint that he was denied a Santeria bead necklace and his bible.

In Greybuffalo v. Wall, 2015 U.S. Dist. LEXIS 6566 (WD WI, Jan. 21, 2015), a Wisconsin federal district court dismissed, with leave to amend, an inmate's complaint that prison authorities refused to recognize the Native American Church as an umbrella religious group.

In Sims v. Biter, 2015 U.S. Dist. LEXIS 6779 (ED CA, Jan. 21, 2015), a California federal magistrate judge dismissed on qualified immunity grounds a warden's denial of a legal religious name change to an inmate where the change could interfere with sex offender registration requirements.

In Planker v. Christie, 2015 U.S. Dist. LEXIS 6804 (D NJ, Jan. 20, 2014), a New Jersey federal district court dismissed without prejudice an "Organic Odian" inmate's complaints about scheduling and access to religious services and ritual items, about a required TB test, and about racist and pro-Islamic comments made to him.

In Furnace v. Gipson, 2015 U.S. Dist. LEXIS 6879 (ED CA, Jan. 20, 2015), a California federal magistrate judge dismissed with leave to amend claims by an inmate that authorities restricted his ability to practice Shetaut Neter in the prison's Special Housing Unit by preventing a name change and ordering of spiritual items, and by denying communal worship, observance of Neterian holidays and access to a Neterian chaplain.

In Gee v. Sabol, 2015 U.S. Dist. LEXIS 6891 (MD PA, Jan. 21, 2015), a Pennsylvania federal district court denied a temporary restraining order to an inmate who was refused kosher meals because. while claiming he is Jewish, at other times had stated that he was Muslim or had no faith.

In Dennison v. Ryan, 2015 U.S. Dist. LEXIS 7334 (D AZ, Jan. 16, 2015), an Arizona federal magistrate judge passed on a number of discovery requests by an inmate suing to obtain a diet consistent with his Seventh Day Adventist faith.

In Muhammad v. Mathena, 2015 U.S. Dist. LEXIS 7330 (WD VA, Jan. 22, 2015), a Virginia federal district court held that the prison's Common Fare diet substantially accommodates the religious dietary needs a Nation of Islam inmate.

In Thompson v. Boldt, 2015 U.S. Dist. LEXIS 7349 (CD CA, Jan. 21, 2015), on remand from the 9th Circuit, a California federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 180795, Aug. 22, 2014) and dismissed a complaint by a pre-trial detainee who had become and adherent of Assemblies of Yahweh that he was denied a religious diet, access to a religious leader, service and other religious items, as well as the ability to observe holy days and feasts.

In Hammond v. Department of Corrections, 2015 Mich. App. LEXIS 105 (MI App., Jan, 22, 2015), a Michigan state appellate court dismissed for failure to exhaust administrative remedies an inmate's objections to a policy change that called for prisoners seeking a kosher diet to receive vegan meals.

New Report On Antisemitism Presented To Israeli Government

Jerusalem Post reports that the Coordination Forum For Countering Antisemitism today presented to the Israeli government its 2014 Report on antisemitism. (Full text of report.) Here is an excerpt from the Report's Overview:

2014 was marked by an alarming rise in antisemitic incidents, acts of terrorism and attempted attacks against Jewish targets, primarily by parties identifying with extremist Islamic movements or with the radical right. At the same time, there was worsening trend in street harassment toward Jews, and verbal and physical violence, a phenomena which increased mainly in Western Europe, in proximity to synagogues and Jewish schools. An increase of 400% in the number of antisemitic incidents of was recorded in July-August 2014, compared to the previous year, following the Israel–Gaza conflict in Operation Protective Edge.

District Court Invalidates Alabama Same-Sex Marriage Bans

In Searcy v. Strange, (SD AL, Jan. 23, 2015), an Alabama federal district court invalidated Alabama statutory and constitutonal provisions that bar same-sex marriage.  The court found that the provisions are unconstitutional under the 14th Amendment's Due Process and Equal Protection clauses.  This makes Alabama the 37th state in which same-sex marriage is legal.  According to the Christian Science Monitor, Alabama's Attorney General has filed a motion asking the court to stay its ruling until the U.S. Supreme Court decides cases it has agreed to review on same-sex marraige.

UPDATE: In an opinion (full text) issued on Jan. 25, the district court denied an indefinite stay of its ruling, but granted a 14-day stay so the 11th Circuit can decide if a further stay is warranted. The court also said that before the expiration of its 14-day stay, it will issue an additional order addressing plaintiffs' request for a clarification of its injunction order.

California Judicial Ethics Code Changed To Bar Judges From Membership In Boy Scouts

As reported by the Los Angeles Times, on Wednesday, the California Supreme Court approved a recommendation of an ethics advisory committee to strengthen the prohibition in California Code of Judicial Ethics, Sec. 2.C. that prohibits judges from holding membership in any organization that discriminates on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. Previous exceptions for membership in military organizations or nonprofit youth organizations (such as the Boy Scouts) were eliminated in the recently approved change. However an exception for membership in discriminatory religious organizations remains in the Code. Here is the full text of the ethics code as amended.

Police Sued For Requiring Muslim Woman To Remove Hijab While Being Booked

The Detroit News reports on a lawsuit filed Thursday in a Michigan federal district court by a Muslim woman who was required by Dearborn Heights (MI) police to remove her hijab while she was being booked on a traffic misdemeanor charge.  Malak Kazan was charged with driving with an expired license.  Her Muslim religion requires her to have her head covered when she is in public and when she is in the presence of men outside her immediate family.  Police officers also denied Kazan's request for assistance from a female police officer.  The suit seeks an injunction and damages.

Judge Pressures Husband To Give Jewish Divorce Document

A New York trial court judge has again raised the issue of how far a civil court may go in pressuring parties in a divorce action to perform a religious act.  Yesterday's New York Post reports that Brooklyn judge  Esther Morgenstern, in divorce proceedings of a Jewish couple, has told the husband that unless he gives his wife a get (Jewish religious divorce document), she will order him to pay alimony for life.  The wife's attorney says this is justified because without a get it will be almost impossible for the wife to remarry and receive financial support.  Adding complexity to the case is the fact that Judge Morgenstern herself some 25 years ago was involved in a divorce where her husband resisted giving her a get.

USCIRF Criticizes Pending Legislation In Burma

The U.S. Commission on International Religious Freedom in a press release yesterday strongly condemned a package of race and religion bills being considered by Burma's Parliament. USCIRF argued that the bills restrict religious freedom and discriminate against non-Buddhists, saying:

The Religious Conversion Bill would force those seeking to convert to give to the newly created Registration Boards an extensive list of personal information, answer intrusive questions, and wait 90 days for approval.

The Interfaith Marriage Bill imposes restrictions on marriages between non-Buddhist men and Buddhist women, including a 14-day waiting period during which time anyone can object to the marriage, and the court reviewing the objections has the power to deny the marriage.  Non-Buddhist men are denied numerous rights in the case of divorce and face criminal penalties if they ask their Buddhist wife to convert.  Under the bill, non-Buddhist men also bear most of the financial and/or criminal penalties, including prison sentences.  

Legal Documents In Eruv Litigation Now Available Online

Beginning in 2011, individuals and groups opposed to Jewish organizations placing eruvs in three Long Island, New York towns have been involved in litigation attempting to prevent their creation.  Now O'Dwyers has created a page with links to all the legal documents and related media coverage of the lawsuits.

Proposed Oklahoma Bill Would Eliminate Marriage Licenses

Oklahoma State Representative Todd Russ has introduced a bill into the Oklahoma legislature that would create a unique response to federal decisions requiring the issuance of marriage licenses to same-sex couples.  As reported by KSWO News, his bill would do away with marriage licenses.  Instead, under HB 1125 couples may be married in a religious ceremony, after which the member of the clergy performing the ceremony would file a "certificate of marriage" with the clerk of court.  Individuals who do not want to be married in a religious ceremony could file an "affidavit of common law marriage" with the clerk of court. Under the bill, judges would no longer be able to perform marriage ceremonies. The bill retains current language limiting marriage to opposite-sex couples, even though the 10th Circuit has invalidated that limitation. (See prior posting.)  Rep. Russ sees the bill as restoring marriage "to what it was supposed to be and was originally a holy matrimony and a very solemn and spiritual vow."  Any progress of the bill through the legislature may be followed here.

Suit Seeks To Require Foreign Terrorist Designation For Hindu Nationalist Group

The Hindu reports that Sikhs for Justice filed a declaratory judgment action in a New York federal district court last week seeking to require Secretary of State John Kerry to designate an Indian Hindu nationalist group as a "foreign terrorist organization."  The lawsuit claims that Rashtriya Swayamsevak Sangh (RSS) has targeted Muslim, Sikh and Christian minorities in an attempt to turn India into a homogeneous Hindu nation. Prime Minister Narendra Modi's Bharatiya Janata Party has ties to RSS. Last week a New York federal district court dismissed on immunity grounds a suit brought directly against Modi for his alleged role in Gujarat anti-Muslim rioting in 2002. (See prior posting.)

Civil Rights Complaint With A Twist-- Baker Refuses To Add Anti-Gay Message To Cake

AP today reports on a complaint filed with the Colorado Civil Rights Division against bakery owner Marjorie Silva by a customer who wanted her to create a cake with an anti-gay marriage message on it.  Silva agreed to bake a Bible-shaped cake for customer Bill Jack, but refused his request to put hateful anti-gay words on the cake along with two men holding hands with an X over them. Silva told Jack that she would give him icing and a pastry bag so he could write the words himself.  This did not satisfy Jack, and he filed a complaint alleging that he was discriminated against based on his creed. The complaint comes as Republicans in the Colorado legislature are looking at legislative changes to protect business owners who refuse to provide services for same-sex weddings. [Thanks to Tom Rutledge for the lead.]

Company Settles EEOC Suit; Rejected Rastafarian Applicant Gets $50K In Damages

The EEOC announced Tuesday that Mims Distributing Co., a Colorado-based beer distributor, has agreed to settle an EEOC suit filed against it on behalf of a Rastafarian applicant for employment.  Mims refused to hire Christopher Alston as a delivery driver unless he would cut his hair.  Under a consent decree, Mims will pay $50,000 in damages, adopt a formal religious accommodation policy and conduct annual anti-discrimination training.

Custody Provisions Did Not Violate Father's Free Exercise Rights

In Roderick v. Lynn, (WA App., Jan 20, 2015), a Washington state appeals court rejected a father's contention that provisions of a parenting plan ordered in a child custody suit violated his free exercise rights. The mother was given sole decision-making authority as to the child's religious upbringing, and the father was prohibited from moving with the child to Israel.  The appeals court said that no free exercise problem arises so long as the father is not prohibited from sharing his faith with the child. It added that the trial court's order limiting the father's contact with the child was not an attempt to abridge the father's religious freedom, but was based on the trial court's finding that he had an untreated mental health condition that endangered the child.

FLDS Members Continue To Resist DOL Subpoenas On Religious Grounds

Since 2013, the U.S. Department of Labor has been investigating whether federal child labor and wage and hour laws were violated in the 2012 harvest at the  Southern Utah Pecan Ranch. According to a Salt Lake Tribune report last September, Paragon Contractors was paid to furnish labor for the harvest, and the Labor Department suspects that FLDS Church members-- schoolchildren and their parents-- were deployed to take part in the harvest without pay.  Instead they merely got to keep half of the pecans they harvested. Paragon is owned by Brian Jessop, an FLDS Church leader, and apparently he turned over amounts the company was paid for the harvest to the Church.  In an opinion last September (see prior posting), a Utah federal district court ruled that under RFRA, church member Vergel Steed did not have to respond to a Department of Labor subpoena seeking information about the internal affairs and organization of the Church. Steed claimed that he believes the identity of Church leaders, the Church's organization and its internal affairs are sacred matters and he has vowed not to discuss them.

The Labor Department has also subpoenaed other FLDS Church members.  AP and the Salt Lake Tribune report that yesterday the same Utah federal judge handed down a ruling that may be the first step toward excusing two brothers of former FLDS Church leader Warren Jeffs from responding to subpoenas seeking information about working conditions on the farm as well as FLDS Church structure and leadership.  Judge David Sam ruled that Lyle and Nephi Jeffs have sincere religious beliefs that prevent them from answering questions by outsiders about the FLDS Church's labor practices, but they must answer questions about phone calls allegedly telling children to take off from school to work and telling parents to work without pay. The judge however heard arguments later yesterday on whether the government has a compelling interest in obtaining the Jeffs' testimony beyond this.  All of this came only a day after the ruling by the U.S. Supreme Court in Holt v. Hobbs giving a broad reading to religious liberty protections in federal law. (See prior posting.)

Supreme Court Hears Arguments In Fair Housing Act Disparate-Impact Case

The U.S. Supreme Court heard oral arguments today in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.  At issue in the case is whether disparate-impact claims are cognizable under the Fair Housing Act, or whether there must be a showing of intentional discrimination.  While this case involves claims of racially discriminatory impact, the Court's decision will apply to cases involving religious discrimination as well.  The transcript of full oral arguments is available from the Supreme Court's website. SCOTUSblog's case page contains links to all the briefs in the case as well as to the 5th Circuit's decision below.  SCOTUSblog also reports on today's arguments.

Cert. Denied In Dispute Over Characterization of Communications With Priest

The U.S. Supreme Court yesterday denied certiorari in Roman Catholic Church of the Diocese of Baton Rouge v. Mayeux, (Docket No. 14-220, cert. denied 1/20/2015) (Order List). In the case, the Louisiana Supreme Court held that a trial court could decide whether a communication between a teenager and a priest over the 14-year old's romantic relationship with a parishioner amounted to a confession regardless of the Church's characterization of the communication. (See prior posting.) The Baton Rouge Advocate reports on the denial of review.

Some Thoughts On Today's Supreme Court Decision In Holt v. Hobbs

Today's Supreme Court decision in Holt v. Hobbs (see prior posting) is likely to lead to a dramatic increase in resources that federal district courts must devote to the dozens-- if not hundreds-- of prisoner RLUIPA cases that are filed each year.  Federal courts, under 28 USC Sec. 1915A, are required to conduct an early preliminary screening of prisoner lawsuits in order to dismiss those that have no chance of success.  It has been common for district courts to dismiss cases at this preliminary stage on the ground that the inmate has failed to show a "substantial burden" on his or her religious exercise.  Often courts have reached that conclusion on the basis that, while an inmate was denied the ability to carry out some particular religious ritual or requirement, the inmate had a number of other ways to practice his or her faith.  Today the Supreme Court rejected that approach, saying:

[T]he District Court erred by concluding that the grooming policy did not substantially burden petitioner’s religious exercise because “he had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays.”... In taking this approach, the District Court improperly imported a strand of reasoning from cases involving prisoners’ First Amendment rights. See, e.g., O’Lone v. Estate of Shabazz, 482 U. S. 342, 351–352 (1987); see also Turner v. Safley, 482 U. S. 78, 90 (1987). Under those cases, the availability of alternative means of practicing religion is a relevant consideration, but RLUIPA provides greater protection. RLUIPA’s “substantial burden” inquiry asks whether the government has substantially burdened religious exercise (here, the growing of a 1⁄2-inch beard), not whether the RLUIPA claimant is able to engage in other forms of religious exercise.

So courts will now need to concentrate on the "compelling interest" and "least restrictive means" prongs of RLUIPA in initial screening of complaints.  More cases are likely to survive initial screening when those elements are the focus.  In prison contexts, generally one of two sorts of compelling interests are asserted-- (1) prison security or (2) budgetary concerns in accommodating prisoner religious practices.  In Holt, security and safety were asserted, and the Court conceded that those are compelling interests. However it suggested that budgetary concerns (such as those asserted when inmates seek religious diets) pose a more difficult question, saying:

Congress stated that RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” §2000cc–3(c). See Hobby Lobby.... 

When it comes to evaluating whether the government has shown that its restriction on religious exercise is the least restrictive means of furthering a compelling governmental interest, the Court emphasized that the inquiry must be narrowly focused:

The Department argues that its grooming policy represents the least restrictive means of furthering a “‘broadly formulated interes[t],’” ... namely, the Department’s compelling interest in prison safety and security. But RLUIPA, like RFRA, contemplates a “‘more focused’” inquiry and “‘requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”––the particular claimant whose sincere exercise of religion is being substantially burdened.’”... RLUIPA requires us to “‘scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants’” and “to look to the marginal interest in enforcing” the challenged government action in that particular context....

How far must this individualization go?  Must authorities consider how likely it is that the particular claimant will create a security risk?  Should the evaluation of alternatives depend, for example, on whether the particular inmate seeking to grow a beard has a history of attempting to smuggle contraband? The more individualized the determination must be, the fewer cases that will be able to be disposed of at the preliminary screening stage.

Finally one additional portion of the Court's opinion adds complexity to the question of when a religious exemption from a prison rule must be granted. The Court said:

[T]he District Court went astray when it relied on petitioner’s testimony that not all Muslims believe that men must grow beards. Petitioner’s belief is by no means idiosyncratic....  But even if it were, the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is “not limited to beliefs which are shared by all of the members of a religious sect.”

Those who follow Religion Clause's weekly summary of prisoner free exercise cases know that inmates professing a wide variety of religious beliefs seek religious accommodations relating to grooming, clothing, possession of religious items, worship space, congregate religious services, religious dietary restrictions, and more.  The Supreme Court has now reaffirmed the conclusion of most courts that an inmate may invoke RLUIPA to require accommodation of a totally idiosyncratic belief-- so long as it is sincerely held. Religious visions shared by no one else apparently still qualify.

Supreme Court Unanimously Upholds Muslim Inmate's Right To Grow Half-Inch Beard

Today in Holt v. Hobbs, (Sup. Ct., Jan 20, 2015), the U.S. Supreme Court unanimously held that the Arkansas Department of Corrections policy that prevents a Muslim inmate from growing a one-half inch beard for religious reasons violates the Religious Land Use and Institutionalized Persons Act.  In an opinion by Justice Alito the court held that it is irrelevant for purposes of RLUIPA that an inmate has other means of practicing his religion. While cases invovling prisoners' First Amendment rights invoke that reasoning, RLUIPA provides greater protection.  The court went on to reject the state's contention that its no-beard policy is the least restictive means of furthering a compelling state interest. It found unpersuasive the state's arguments regarding contraband and identification of inmates. The Court added that prison officials still have ample ways to maintain security, saying that "in applying RLUIPA’s statutory standard, courts should not blind themselves to the fact that the analysis is conducted in the prison setting."

Justice Ginsburg filed a short concurring opinion, joined by Justice Sotomayor, emphasizing that here, unlike in the Hobby Lobby case, accommodating petitioner's religious beliefs would not detrimentally affect third parties who do not share his beliefs. Justice Sotomayor filed a separate concurring opinion saying: "I do not understand the Court’s opinion to preclude deferring to prison officials’ reasoning when that deference is due—that is, when prison officials offer a plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them."

Indiana County Fights Creche Suit By Enacting Open Forum Law

The Batesville (IN) Herald-Tribune reports that last week the Franklin County, Indiana Commissioners passed Ordinance 2015-02 to create a public forum on the county courthouse grounds permitting displays, demonstrations, exhibits, rallies and other expressive activities without regard to viewpoint under a neutral permit process.  The action was taken in response to a lawsuit filed against the county last month challenging the constitutionality of a life size Nativity Scene displayed on the courthouse lawn. (See prior posting.)

UPDATE: According to WLWT, on Feb. 10 plaintiffs dropped the lawsuit.

St. Paul-Minneapolis Archdiocese Files For Bankruptcy Reorganization

On Friday, the Catholic Archdiocese of Saint Paul and Minneapolis filed for Chapter 11 Bankruptcy Reorganization. In a letter (full text) announcing the decision, Archbishop John Nienstedt said it "will allow the finite resources of the Archdiocese to be distributed equitably among all victims/ survivors [of clergy sexual abuse].  It will also permit the Archdiocese to provide essential services required to continue its mission within this 12-county district." The Archdiocese has posted the full text of the Voluntary Petition and other legal and financial documents in the case. Reporting on the filing, MPR News points out that it will stop civil trials that were set to begin on Jan. 26.

More Preliminary Details of Pope's September U.S. Visit Emerge

Preliminary details of Pope Francis' itinerary during his September visit to the United States are becoming known.  From a report by CBS/AP on the Pope's news conference yesterday and a report by the Washington Times on details disclosed by Archbishop Bernardito Auza, the Pontiff's likely schedule so far looks like this:

Washington D.C. Sept. 22-24:

• Arrival- evening of  Sept. 22
• Welcoming ceremony at White House- morning of Sept. 23
• Mass at Basilica of the National Shrine of the Immaculate Conception (for bishops, consecrated and religious men and women, seminarians and representatives from humanitarian and Catholic charitable organizations).  At the Mass, the Pope will canonize 17th-century founder of the first Missions in California, Junipero Serra- later on Sept. 23
• Address to Joint Session of Congress- Sept. 23 or 24
• Leave for New York-afternoon of Sept. 24

New York- Sept. 24-26

• Address to United Nations General Assembly (including opening of Post-2015 Sustainable Development Summit, with many heads of state attending)- morning of Sept. 25
• Mass in Madison Square Garden
• Visit to Ground Zero Memorial
• Visit to St. Patrick's Cathedral
• Inter-ethnic meeting
• Leave for Philadelphia- early morning of Sept. 26

Philadelphia (World Meeting of Families)- Sept. 26-27

• Prayer Vigil- Sept. 26
• Visit to a children's hospital or juvenile prison
• Mass- Sept. 27
• Depart for Rome- evening of Sept. 27

Even with this ambitious schedule, there were things that had to be omitted.  The Pope said he would have liked to enter the U.S. through the Mexican border "as a sign of brotehrhood and help to the immigrants." But, he joked: ..."going to Mexico without going to visit the Madonna (of Guadalupe) would be a drama. A war could break out!"

Employee Who Objected To Biometric Scanning As Mark of the Beast Wins $150,000 Verdict

The Clarksburg Exponent Telegram reports that a jury in a West Virginia federal district court last Thursday awarded $150,000 in compensatory damages to a former employee of Consol Energy (the mining operation of Consolidation Coal Co.) in a Title VII suit charging failure to accommodate his Evangelical Christian religious beliefs. Beverly R. Butcher Jr., a laborer at the mine, objected to biometric hand scanning to track time and attendance, believing that it involves the Mark of the Beast forbidden in the Book of Revelation. The company however relied on a letter from the manufacturer of the hand scanner assuring that it does not assign the Mark of the Beast, and suggesting that objecting employees scan their left, instead of their right, hand.  The company refused other accommodations suggested by Butcher, and the EEOC sued on his behalf. (See prior posting.) In addition to the jury's damage award, the judge will still determine back and forward pay. Defendants plan an appeal.

UPDATE: The 4th Circuit affirmed the district court's award of damages in U.S. Equal employment Opportunity Commission v. Consol Energy, Inc., (4th Cir., June 12, 2017).

Today Is Martin Luther King, Jr. Day

Today is Martin Luther King, Jr. Day, celebrating the birthday of the famous civil rights leader. This year is the 50th anniversary of the Selma to Montgomery March and of the resulting 1965 Voting Rights Act.  Dr. King was, of course, a Christian minister as well as a civil right leader.  His 1963 Letter From A Birmingham Jail addressed fellow clergy who criticized his tactics and set out his vision of the role of churches in influencing public policy, saying in part:

I have traveled the length and breadth of Alabama, Mississippi and all the other southern states. On sweltering summer days and crisp autumn mornings I have looked at the South's beautiful churches with their lofty spires pointing heavenward. I have beheld the impressive outlines of her massive religious education buildings. Over and over I have found myself asking: "What kind of people worship here? Who is their God? Where were their voices when the lips of Governor Barnett dripped with words of interposition and nullification? Where were they when Governor Wallace gave a clarion call for defiance and hatred?...

There was a time when the church was very powerful--in the time when the early Christians rejoiced at being deemed worthy to suffer for what they believed. In those days the church was not merely a thermometer that recorded the ideas and principles of popular opinion; it was a thermostat that transformed the mores of society.... By their effort and example they brought an end to such ancient evils as infanticide and gladiatorial contests. Things are different now. So often the contemporary church is a weak, ineffectual voice with an uncertain sound. So often it is an archdefender of the status quo. Far from being disturbed by the presence of the church, the power structure of the average community is consoled by the church's silent--and often even vocal--sanction of things as they are.

Recent Articles of Interest

From SSRN:

• Marie Wicks, Prayer is Prologue: The Impact of Town of Greece on the Constitutionality of Deliberative Public Body Prayer at the Start of School Board Meetings, (January 9, 2015).
• Michael M. Karayanni, Groups in Context: An Ontology of a Muslim Headscarf in a Nazareth Catholic School and a Sephardic Ultra-Orthodox Student in Immanuel, (January 12, 2015).
• P.G. Monateri, Diaspora, the West and the Law. The Birth of Christian Literature Through the Letters of Paul and the End of Diaspora, (January 16, 2015).
• Richard W. Garnett, Chief Justice Rehnquist, Religious Freedom, and the Constitution, (Bradford P. Wilson, ed., The Constitutional Legacy of William H. Rehnquist (West Academic Press, 2015 Forthcoming)).
• Nathan B. Oman, International Legal Experience and the Mormon Theology of the State, 1945-2012, (Iowa Law Review, Vol. 100, 2015).

From SSRN (Islamic Law and Muslim Society):

• Rebecca Gould, Ijtihād Against Madhhab: Legal Hybridity and the Meanings of Modernity in Early Modern Daghestan, (Comparative Studies in Society and History 57(1): 35-66 (2015)).
• Karen Busby & Sara Mahboob, Influences on Young Muslim Women in Winnipeg: Preliminary Report on Key Informant Interviews, (December 9, 2014).
• Mohamed A. Arafa, Whither Egypt? Against Religious Fascism and Legal Authoritarianism: Pure Revolution, Popular Coup, or a Military Coup D’État?, (Indiana International & Comparative Law Review, Vol. 24, No. 4, 2014).
• Sharifah Zubaidah Abdul Kader, The Legal Framework of Waqf in Malaysia,(January 9, 2015).
• Ujala Akram, Freedom of Speech, Freedom of Religion And Islam, (European Journal of Law Reform 2014 (6) 2).
• Armaram Shelke, Revisiting ‘The Muslim Women (Protection of Rights on Divorce) Act, 1986’ in the Light of its Impact Over Legal and Jurisprudential Principles, (Symbiosis Contemporary Law Journal (SCLJ), 2013, Volume-II, Number 1).
• Farinaz Zamani & Paula Gerber, Burqa: Human Right or Human Wrong?, ((2014) 39(4) Alternative Law Journal 231).
• Ahmed E. Souaiaia, Theories and Practices of Islamic Finance and Exchange Laws: Poverty of Interest, (International Journal of Business and Social Science, Vol. 5, No. 12; November 2014).
• Mayada Serageldin, On the Demand to Incorporate Shari'a Law into UK Law,(June 16, 2013).

From SmartCILP and elsewhere:

• F. Russell Hittinger, Natural Law and Public Discourse: The Legacies of Joseph Ratzinger, [LEXIS link] [Video of lecture], 60 Loyola Law Review 241-271 (2014).
• Peter T. Leeson, Vermin Trials, 56 Journal of Law & Economics 811-836 (2013).
• Symposium, Do the Religious Beliefs of Supreme Court Justices Influence Their Decisions?, Moment, Jan.-Feb. 2015.
• USCIRF Factsheet, Religious Freedom and Nigeria’s 2015 Elections, (Jan. 2015).

Welcome To Law and Religion Australia

Join me in welcoming Law and Religion Australia blog to the Religion Clause sidebar. Law and Religion Australia entered the blogosphere on January 1. It is authored by Neil Foster, Associate Professor of Law at the University of Newcastle, who also describes himself as an Evangelical Christian.  The new entry is particularly welcome as several blogs in area of law and religon have gone dormant in recent months.  I have removed from the sidebar those that have no posts for the last 6 months. A few others are coming close to that period of dormancy. So, welcome aboard.

Recent Prisoner Free Exercise Cases

In Jones v. Foster, 2015 U.S. Dist. LEXIS 3289 (D NV, Jan. 12, 2015), a Nevada federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 180081, Dec. 23, 2014) and denied a preliminary injunction to a Muslim inmate who complained that he was receiving the Common Fare Meal instead of a separate halal or kosher diet.

In Thierry v. Maricopa County Sheriff's Office, 2015 U.S. Dist. LEXIS 3726 (D AZ, Jan. 13, 2015), an Arizona federal district court dismissed with leave to amend a complaint by a Jehovah's Witness inmate seeking a New World Holy Scriptures Bible and complaining that there are no Jehovah's Witness bible studies or meetings, and that only six inmates per pod are permitted to attend church.

In Williams v. Cox, 2015 U.S. Dist. LEXIS 4621 (SD GA, Jan. 13, 2015), a Georgia federal magistrate judge allowed an inmate to move ahead with his claim that he was denied a requested work proscription in observance of the Feast of Shavout.

Illinois Bible Colleges Sue Over Rules On Granting Degrees

AP reports that a lawsuit was filed in Illinois federal district court yesterday by the Illinois Bible Colleges Association challenging Illinois Board of Higher Education rules that prevent Bible colleges from awarding full-fledged "degrees" to their graduates.  They can only award "diplomas" or "certificates" since the religious schools do not offer full collegiate curriculums. The schools say that the state is violating their free exercise and speech rights, as well as ignoring the Establishment Clause, by imposing the regulations on them.

Newest Charlie Hebdo Cover Generates Demonstrations-- Some Violent

Voice of America reports that the newest issue of Charlie Hebdo depicting a weeping Muhammad on the cover in  response to the Paris terrorist attacks generated new demonstrations yesterday in much of Muslim Asia, Africa and the Middle East.  The most violent of the demonstrations was in Niger where  four people were killed and demonstrators set fire to a French cultural center and Christian churches, and attacked Christian shops. (Daily Mail reports five were killed.) Violent demonstrations also occurred in Pakistan, while peaceful demonstrations took place in many other countries.  Islamic law prohibits physical representations of the Prophet Muhammad and other prophets as well. (See prior related posting.)

Meanwhile, as reported in Sunday's The Independent, British Prime Minister David Cameron has criticized remarks made made by Pope Francis at a press conference on Thursday (full text of Pope's press conference).  The Pope said that people who make fun of, or make others' religion into toys, provoke and may find that "a punch awaits" them.

Supreme Court Grants Review In 6th Circuit Same-Sex Marriage Cases

The U.S. Supreme Court today granted certiorari in four same-sex marriage cases from the Sixth Circuit: Obergefell v. James (Ohio); Tanco v. Haslam  (Tennessee); DeBoer v. Snyder (Michigan); and Bourke v. Beshear (Kentucky). (Order List). In a consolidated opinion, the 6th Circuit in a 2-1 decision upheld the same-sex marriage bans in the four states. (See prior posting.) In granting review, the Supreme Court defined the questions to be argued:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Carson To Become First Muslim On House Intelligence Committee

According to Politico, House Minority Leader Nancy Pelosi shortly will name Indiana Rep. André Carson to the House Permanent Select Committee on Intelligence. Carson will be the first Muslim to serve on the Intelligence Committee. He currently serves on the House Armed Services Committee and worked for the Department of Homeland Security’s Fusion Center.

Suit Against India's PM Over Role In Anti-Muslim Riots Dismissed

In American Justice Center (AJC), Inc. v. Modi, (SD NY, Jan. 14, 2015), a New York federal district court dismissed on immunity grounds a suit that was brought against the current prime minister of India over his actions as Chief Minister of Gujarat during anti-Muslim rioting in 2002. The suit was brought under the Torture Victim Protection Act and the Alien Tort Statute.  (See prior posting.) The court accepted the U.S. government's contention that Modi enjoys immunity from suit as a sitting head of a foreign government. The Hindu reports on the decision.

Michigan Must Recognize Same-Sex Mariages Entered Before Stay of District Court's Order

In Caspar v. Snyder, (ED MI, Jan 15, 2015), a Michigan federal district court issued a preliminary injunction requiring Michigan to recognize some 300 same-sex marriages of couples who married in the less 24 hours between a district court's striking down of Michigan's same-sex marriage ban and the 6th Circuit's stay of the order. In a 47-page opinion, the court held that:

once a marriage has been solemnized pursuant to a validly issued marriage license, the authorizing state cannot withdraw the status that it has awarded, even if the couples had no right to demand to be married in the first place.

The court however stayed the effectiveness of its injunction for 21 days to allow an appeal to the 6th Circuit. Christian Science Monitor reports on the decision.

Canadian FLDS Leader Agrees To Court Order Barring Use of LDS Name

Last year, the Church of Jesus Christ of Latter Day Saints (the mainline Mormon Church) filed suit in Canada against Winston Blackmore, leader of a polygamous Mormon sect headquartered in Bountiful, British Columbia for misappropriation of the trademarked name, identity and reputation of the mainline Church. (See prior posting.) The National Post now reports that earlier this week Blackmore consented to a decree enjoining him from using any variation of the name "Church of Jesus Christ of Latter-day Saints" for his organization and from interfering with the mainline Church's use of the word Mormon. Under the order he is also to change the corporate name of his Canadian branch of the FLDS to "Church of Jesus Christ (Original Doctrine) Inc."

Suit Alleges That Drug Treatment Center Is Front For Scientology Indoctrination

MLive reports that a lawsuit was filed in a Michigan federal district court on Wednesday against Narconon Freedom Center in Albion, Michigan, alleging that the Center's drug rehabilitation program is used "to introduce Scientology and L. Ron Hubbard's 'technology' to unwitting patients." The suit, seeking $75,000 in damages, was brought by Lauren Prevec, a former patient at the Center.

Today Is Religious Freedom Day

Today is Religious Freedom Day, the anniversary of the passage of the Virginia Statute for Religious Freedom in 1786.  Each year the President issues a Proclamation marking the day, and presumably this year's Proclamation will appear sometime today on the White House website. Americans United has urged that greater attention be given to the day. UPDATE: Here is the full text of this year's Presidential Proclamation-- Religious Freedom Day 2015.

Meanwhile, according to CNS News, the Orange County, Florida public schools announced that they are suspending, at least temporarily, the traditional passive distribution of Bibles from World Changers of Florida on Religious Freedom Day.  The decision came after last year the Freedom For Religion Foundation won the right to distribute its own atheist litereature, including a pamphlet titled "Sex and Obscenity in the Bible," and this year the Satanic Temple indicated it would distribute material as well. The school district says that it is reworking its policy on outside distribution of materials to students.

8th Circuit Dismisses Factional Dispute Over Control of Hutterite Colony

In Hutterville Hutterian Brethren, Inc. v. Sveen, (8th Cir., Jan. 13, 2015), the U.S. 8th Circuit Court of Appeals dismissed a lawsuit growing out of the long dispute between two factions over control of a South Dakota Hutterite colony. State courts refused to resolve the issue of control, finding that to do so would require civil courts to decide issue of religious doctrine.  A federal court action was then filed on behalf of the colony (a non-profit corporation) by the Waldner faction. The suit was brought against the attorneys representing the colony charging, among other things, breach of fiduciary and ethical duties in creating a sham legal dispute that allowed them to side with the competing Wipf faction. The 8th Circuit held that since the Waldners in the state court proceedings convinced the courts that they should not decide the case because it involved issues of religious doctrine, they are now estopped from claiming that the religious questions involved are a sham.

EEOC Sues Over Refusal To Accommodate Rastafarian Employee's Beliefs

The EEOC has announced that on Tuesday it filed a federal lawsuit against Raleigh, North Carolina-based Triangle Catering, LLC for failing to accommodate a new employee's religious beliefs.  The company refused to permit Michael Reddick, Jr., a practicing Rastafarian, to wear a small cap while working as a delivery truck driver. Reddick was eventually fired for insisting on wearing the religious head covering.

Indian State of Goa Plans Program To "Treat" LGBT Youths

The New York Times reported this week that the Indian state of Goa is planning to set up "camps" to treat gay, bisexual and transgender young people to rid them of their sexual orientations.  Ramesh Tawadkar, the state's Minister for Sports and Youth Affairs, says the program, which will involve a well-known yoga guru, will teach LGBT youths how to experience "the true pleasures and bliss of life." Same-sex relations are illegal in India.

Supreme Court Hears Oral Arguments In Title VII Case

The United States Supreme Court heard oral arguments yesterday in a Title VII employment discrimination case.  The question presented in Mach Mining, LLC v. EEOC is whether and to what extent a court can enforce the EEOC’s statutorily required duty to conciliate discrimination claims before filing suit.  The transcript of the oral arguments is available from the Court's website. SCOTUSBlog's case page containing links to all the briefs in the case as well as to the 7th Circuit's opinion below is here. The Washington Post reports on the oral arguments.  While the case involves charges of gender discrimination, the result will impact religious discrimination cases as well.

Minister Sues Michigan For Right To Perform Same-Sex and Polygamous Marriages

In Michigan, a Detroit minister filed a federal court lawsuit on Monday against the state's governor and attorney general alleging that the state is violating his religious freedom by barring him from performing same-sex and polygamous marriages.  According to the Detroit News, in the suit plaintiff Rev. Neil Patrick Carrick alleges that he has declined requests to perform same-sex marriage ceremonies because under Michigan law it is a crime punishable by up to a $500 fine to knowingly do so.

After Charlie Attack, Media Responsiveness To Religious Sensiivities Is Still An Issue

In the aftermath of last week's terrorist massacre at Charlie Hebdo offices in Paris, it has become clear that the issue of the appropriate media response to religious sensibilities remains unresolved.  Two stories show the ongoing problem. Haaretz yesterday strongly criticized the ultra-Orthodox Israeli paper HaMevaser for publishing only a photoshopped version of the iconic photo of world leaders walking arm-in-arm in the Paris rally for free speech and religious liberty.  Like many ultra-Orthodox papers, HaMevaser will not publish photos of women because of Jewish religious concerns about modesty.  In the photo of the Paris march, German Chancellor Angela Merkel  has been removed, as have other women leaders. [Thanks to Douglas Carver for the lead.]

Meanwhile mainstream news media split over whether to carry a photo of the defiant cover of the post-massacre issue of Charlie Hebdo.  As reported by Malaysia Chronicle, the cover shows Muhammad crying while holding up a "Je suis Charlie" sign. The drawing is captioned "Tout Est Pardonne" (All Is Forgiven). Outlets picturing the cover include the Malaysian Chronicle, Fox News, CBS News, the BBC, Germany's ARD, the Australian Broadcasting Corporation, France's Liberation, Britain's The Guardian, The Wall Street Journal and USA Today. Among those choosing to merely describe the cover are CNN, NBC News, NPR, Britain's Daily Mail, The New York Times and the Associated Press. These media expressed concern not only about offending Muslims, but also about protecting their employees stationed around the world. German investigative journalist Gunter Wallraff said of those not showing the cover: "I don't call that sensitivity, I call it cowardice. If everyone follow that line, they [the Islamists] will have won."

Damage Award Against Diocese Reduced In In Vitro Fertilization Firing

In Herx v. Diocese of Fort Wayne-South Bend, Inc., (ND IN, Jan. 12, 2015), a federal judge reduced a jury's verdict against a Catholic diocese in a Title VII sex discrimination case from $1.95 million to $543,803.  The case, involving a suit by a Catholic school teacher fired for becoming pregnant through in vitro  fertilization, has been widely followed.  The reduction is largely the result of applying a $300,000 statutory cap on punitive and most compensatory damages imposed in employment discrimination cases by 42 USC 1981a(b). Yesterday's Fort Wayne Journal Gazette reports on the decision. (See prior related posting.)

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.