Supreme Court Denies Stay Of Alabama Same-Sex Marriage Decision

The U.S. Supreme Court today in Strange v. Searcy refused to grant a stay of an Alabama federal district court order invalidating Alabama's ban on same-sex marriage, allowing same-sex marriages to begin in the state today. (See prior related posting.) Justice Thomas, joined by Justice Scalia, dissented from the denial of a stay, saying in part:

Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds.... It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.

Reuters reports on the Court's action.

Free Exercise Challenge To Marijuana Seizure Rejected

In Jenkins v. Micks, (ND CA, Feb. 5, 2014), a California federal magistrate judge dismissed a civil rights action alleging that plaintiff's free exercise rights were infringed when Del Norte, California sheriff's officers seized marijuana allegedly authorized for medical use.  The court said:

Plaintiff provides a discussion of the use of cannabis by different cultures and religions, including the Native American Church. He states that he believes that for him, "Cannabis enhances the truth of the universe," that this plant is a "beneficial and life sustaining herb," and that "by consuming Cannabis [he] is communing with nature."... He also expresses his views regarding the regulation of Cannabis by governmental entities, and some of his political and religious beliefs. No where, however, does Plaintiff allege that he has a central religious belief or practice that is burdened by the criminalization of marijuana. The court finds, therefore, that Plaintiff has failed to state a free exercise of religion claim under the First Amendment. 

Bitter Legal Dispute Continues Over Colorado Land For Jewish Retreat Center

The Denver Post reported yesterday on a long-running and bitter legal dispute over 22 acres of desert land in Gardner, Colorado that Gary Lensky, an Orthodox Jew who is also versed in Eastern religions, is attempting to develop as a Jewish spiritual retreat center. In 1997, Lensky purchased a small home in the center of Gardner for $29,000.  He then discovered that adjacent structures used by the house's former owners were on property technically owned by an individual who had died decades ago.  Lensky paid the back taxes on 17 acres of the land, planning to build a religious retreat on it that he would call Camp D'ORvid at Casa D'el Arroyo.  Claiming under the doctrine of adverse possession, Lensky then proceeded to file a suit to quiet title not just on the 17 acres, but on 5 additional adjoining acres that other neighbors were using as well.  Initially the court granted his quiet title request, but reversed itself seven years later. Lensky has spent nearly $200,000 in legal fees to try to get title to the 22 acres that have an assessed value of $13,450.  There have also been physical confrontations, harassment and ethnic slurs, with Lensky charging anti-Semitism.  The neighbors say Lensky is trying to steal their land.  A non-binding mediation of the dispute is scheduled for March 20.

Catholic and Conservative Christian Groups Urge Congressional Disapproval of Two D.C. Ordinances

Under Title VI of the District of Columbia Home Rule Act, Congress may disapprove laws enacted by the D.C. City Council.  Last week, fifteen Catholic and conservative Christian organizations sent a letter (full text) to members of Congress urging disapproval of two recently enacted D.C. laws-- the Reproductive Health Non-Discrimination Amendment Act of 2014 and Human Rights Amendment Act of 2014 (see prior posting). According to the U.S. Conference of Catholic Bishops press release:

The Reproductive Health Non-Discrimination Amendment Act of 2014 prevents religious institutions, faith-based employers, and pro-life advocacy organizations in the city from making employment decisions consistent with their sincerely held religious beliefs or moral convictions about the sanctity of human life.  

For example, the law requires “organizations to hire or retain individuals whose speech or public conduct contradicts the organizations’ missions,” the letter stated. “The law plainly violates the First Amendment, the federal Religious Freedom Restoration Act of 1993 (RFRA), and possibly other federal laws and clearly contradicts the Supreme Court’s recent, unanimous ruling in Hosanna-Tabor Evangelical Church and School v. EEOC.”  

Another law enacted by the Council of the District of Columbia, the Human Rights Amendment Act of 2014, requires religiously affiliated educational institutions to endorse, sponsor, and provide school resources to persons or groups that oppose the institutions’ religious teachings regarding human sexuality. 

“In doing so, the law violates the First Amendment and RFRA on similar grounds”....

Recent Articles of Interest

From SSRN:

• Jordan Mathews, State RFRAs: Trust Judges to Strike the Proper Balance Between Religious Freedom and Anti-Discrimination Law, (February 1, 2015).
• Leah Achor, A Historical Defense of State Protection of Private Conscience, (December 13, 2014).
• Douglas NeJaime & Reva Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, (Yale Law Journal, Vol. 124, 2015 Forthcoming).
• Brandon Harvard Riches, Codifying Commonsense: Religious Viewpoint Antidiscrimination Acts and the Free Speech Rights They Protect, (February 3, 2015).
• Howard Kislowicz, Law, Religion, and Feeling Included/Excluded: Case Studies in Canadian Religious Freedom Litigation, (Canadian Journal of Law and Society (Forthcoming 2015)).
• Nelson Tebbe, The End of Religious Freedom: What Is at Stake?, (Pepperdine Law Review, Vol. 41, No. 963, 2014).
• Clayton Douglas Adams, Personal Foul, Roughing the Speaker: The Illusory War between the Establishment Clause & College Football, (February 4, 2015).
• Jennifer Ann Drobac & Jill L. Wesley, Religion and Employment Antidiscrimination Law: Past, Present, and Post Hosanna-Tabor, (NYU Annual Survey of American Law, Vol. 69, p. 761, 2014).
• Khaled A. Beydoun, Facing Mecca from Prison: Religious Accommodation of Muslim Prisoners Before Holt v. Hobbs, (February 7, 2015).
• Derek Joseph Goff, New Life in the First Amendment: Funeral Protest Statutes after McCullen v. Coakley, (January 31, 2015).
• Ellis Goldberg, Territorial States: Monopolies in the Market for Justice, (January 30, 2015).
• Alice Ristroph, Just Violence, (Arizona Law Review, Vol. 56, 2014).

From SmartCILP:

• Antony Barone Kolenc. Not "For God and Country": Atheist Military Chaplains and the Free Exercise Clause, 48 University of San Francisco Law Review 395-456 (2014).
• Inaugural Themed Issue: Faith-Based Legal Systems. Articles by Mohamed A. Arafa and David L. Johnston. 24 Indiana International & Comparative Law Review 859-920 (2014).

Recent Prisoner Free Exercise Cases

In Patterson v. Linderman, (9th Cir., Feb. 3, 2015), the 9th Circuit upheld an inmate's suspension from the kosher meal plan for sharing or trading of food with other inmates.

In Karsjens v. Jesson, 2015 U.S. Dist. LEXIS 11779 (D MN, Feb. 2, 2015), a Minnesota federal district court, in a suit challenging many aspects of the Minnesota Sexual Offender Program, permitted plaintiffs to move ahead with their claim that MSOP's policies and practices restrict when and where plaintiffs may worship and limit their ability to practice their sincerely held religious beliefs.

In Stemple v. Shearin, 2015 U.S. Dist. LEXIS 12253 (D MD, Feb. 2, 2015), a Maryland federal district court dismissed a Wiccan inmate's complaints regarding the inadequacy of the previous location of Wiccan services and his 6-month suspension from congregate worship opportunities for rule violations.

In Woodstock v. Shaffer, 2015 U.S. Dist. LEXIS 13158 (D CO, Feb. 4, 2015), a Colorado federal magistrate judge ordered plaintiff, a Messianic Jewish inmate, to file an amended complaint setting out the personal involvement of each defendant in the alleged failure to provide a kosher diet

In Trice v. Shearin, 2015 U.S. Dist. LEXIS 13653 (D MD, Feb. 4, 2015), a Maryland federal district court permitted a Native American inmate to move ahead with his complaint that he was not permitted to attend congregate services and that Cherokee Native American religious services were not permitted in an outside grassy area as religiously required.

In Jackson v. Crawford, 2015 U.S. Dist. LEXIS 14222 (WD NO, Feb. 6, 2015), a Missouri federal district court permitted an inmate to proceed with his complaint that his religious exercise was substantially burdened by the inability to list atheism as his religion.

Challenge To "Under God" In Pledge Rejected

In American Humanist Association v. Matawan-Aberdeen Regional School District, (NJ Super. Ct., Feb. 4, 2015), a New Jersey state trial court dismissed a lawsuit that claimed the daily recitation of the pledge of allegiance in public schools violates the equal protection guaranties of the New Jersey constitution to atheist and humanist students, even when they are not required to participate in the pledge.  The court said in part:

the court is not insensitive to the Does and Doechild's claim that they feel marginalized by the inclusion of the words "under God" in the text of the Pledge.  Subjective feelings, however, do not and cannot serve as a constitutional litmus test for equal protection in the absence of some invidious classification because potentially anything offensive to one's subjective sensibilities could be struck down as unconstitutional.

The Becket Fund issued a press release announcing the court's decision.

UPDATE: Here is a link to the full opinion and court's order.

2nd Circuit OK's Differential Child Protection Requirements In Public and Private Schools

In U.L. v. New York State Assembly, (2d Cir., Feb. 5, 2015), the U.S. 2nd Circuit Court of Appeals affirmed the district court's dismissal of a lawsuit brought by a minor student enrolled in a Nassau county yeshiva and by her father claiming that students' equal protection, due process and free exercise rights are violated  by the state legislature's exclusion of private schools (including religious schools) from some of the state child protection requirements that are mandatory in public schools. (See prior posting). The district court dismissed on sovereign and legislative immunity grounds.  The 2nd Circuit in affirming and refusing to allow plaintiffs to replead the case said:

Assuming U.L. could successfully plead around the immunity doctrines, his claims would still fail as a matter of law. The challenged child-protection laws, which are unquestionably secular, are equally inapplicable to all private schools, religious and secular. Nothing about them offends the Establishment or Free Exercise Clauses of the First Amendment....

U.L.’s claims under the Equal Protection and Due Process Clauses of the Fourteenth Amendment likewise fail, because the laws neither target a suspect class nor impair the exercise of a fundamental right, and easily pass muster under rational basis review.

[Thanks to Elliot Pasik for the lead.]

New Poll Shows Americans Favor Same-Sex Marriages, But Want To Protect Religious Objectors

Yesterday AP-GfK announced the release of their latest poll (full poll results) which asks respondents about their views on same-sex marriage and abortion rights. In the poll, 35% favor same-sex marriage, while 31% oppose. Respondents are divided 48% to 48% on how the Supreme Court should rule in its pending same-sex marriage cases. By 50% to 46%, respondents favor religious exemptions to the requirement to issue same-sex marriage licences for officials who object to doing so.  By 57% to 39%, respondents favor exemptions for wedding related businesses who object to providing services for same-sex couples. Finally poll showed a 51% to 45% margin favoring legalized abortion in most or all cases.

Newly Added Religious Items Must Be Covered Before Hernandez Jury Visit

Jurors in the murder trial of former New England Patriots player Aaron Hernandez are scheduled to visit Hernandez's home today. Hernandez is charged in the 2013 murder of Odin Lloyd.  AP reports that when the prosecutor took a tour through the house yesterday ahead of the jury visit, he found that religious items (as well as career memorabilia) had been added in several rooms, along with furniture to hold them.  Bristol County Superior Court Judge Susan Garsh ruled yesterday that anything added to the house since 2013 must be removed or covered before the jury's visit which is designed to see the house as it existed at the time of the killing. The defense has agreed to remove or cover the new items.

Court Refuses To Defer To Ecclesiastical Determination In Church Embezzlement Prosecution

Chicago Tribune reports that a Wisconsin state trial court has refused to apply the ecclesiastical abstention doctrine to a criminal prosecution of a Greek Orthodox priest charged with embezzling trust funds from the church where he served for many years.  James Dokos was trustee of a $1.1 million trust benefiting Annunciation Greek Orthodox Church in Milwaukee. The indictment (full text) alleges that Dokos wrote checks for $110,000 outside the terms of the trust, and mostly for his personal benefit. Before going to civil authorities, leaders of Annunciation complained to its parent body, the Metropolis of Chicago, which investigated and concluded that Dokos had done nothing wrong.

Dokos claimed that the case involves a dispute between a priest and a parish council over the use of church funds, and should be decided by the Greek Orthodox Church's internal dispute resolution process. The court disagreed, holding:

Determining whether or not the defendant embezzled money does not require this court to appoint religious ministers, decide tenets of faith (or) interpret church doctrine.

6th Circuit: Ministerial Exception Is Non-Waivable

In Conlon v. InterVarsity Christian Fellowship/ USA, (6th Cir., Feb. 5, 2015), the U.S. 6th Circuit Court of Appeals faced its first "ministerial exception" case since the Supreme Court's 2012 Hosanna-Tabor decision.  In the case, InterVarsity Christian Fellowship, a Christian campus organization, asserted a "ministerial exception" defense in a sex discrimination suit against it by its former spiritual director who claimed that her firing because her marriage was heading toward divorce violated Title VII of the 1964 Civil Rights Act and Michigan's Elliot-Larsen Act.  The 3-judge panel's majority opinion held first that IVCF, while not a church, is still a religious organization that can claim the ministerial exception for a ministerial employee such as plaintiff.

Conlon claimed that IVCF had waived the ministerial exception, but the majority held:

The ministerial exception is a structural limitation imposed on the government by the Religion Clauses, a limitation that can never be waived....

Finally the majority held that the First Amendment's ministerial exception can be asserted as a defense against state law claims, and can be raised by individuals when they are personally sued for discrimination as the agents of a religious employer.

Judge Rogers concurred in the result, but contended that the majority went further than necessary in reaching its conclusion.  He said:

Our decision today does not require us to decide whether a religious employer could enter into a judicially-enforceable employment contract with a ministerial employee not to fire that employee on certain grounds (such as pregnancy). Judicial enforcement of such a contract might unduly interfere with the independence of religious institutions, but barring religious institutions from offering such a legally binding guarantee might make it harder for some religious institutions to hire the people they want. Conlon in this case now disavows any contractual argument. Thus, to the extent that any analysis in the majority opinion might be read to govern non-Title VII employer obligations, such analysis is not necessary to our judgment. 

Acton Institute Power Blog reports on the decision. [Thanks to Paul deMello Jr. for the lead.] 

President Delivers Important Address To National Prayer Breakfast

President Obama delivered an important address (full text) at today's annual National Prayer Breakfast in Washington, D.C.  First, in a gesture defying China's objections, the President warmly welcomed the Dalai Lama, saying:

I want to offer a special welcome to a good friend, His Holiness the Dalai Lama -- who is a powerful example of what it means to practice compassion, who inspires us to speak up for the freedom and dignity of all human beings.  (Applause.)  I’ve been pleased to welcome him to the White House on many occasions, and we’re grateful that he’s able to join us here today.  (Applause.) 

As reported by the Washington Post:

Obama bowed his head and brought his hands together in a Namaste gesture when the Dalai Lama was introduced at the beginning of the breakfast. The Dalai Lama was seated at a table with top Obama adviser Valerie Jarrett. She was dispatched to Dharamsala, India, where the Dalai Lama lives in exile, after the White House canceled a meeting with the leader ahead of Obama's first visit to Beijing in 2009.

Chinese leaders sharply criticized the presence of the Dalai Lama at the Prayer Breakfast -- as Beijing did the previous three times the two men met in the past. This time, the White House stressed they did not invite the Dalai Lama and that he and Obama had no plans to meet.

Second, the President spelled out at length his views on the complex relationship of religion and world affairs, and emphasized the U.S. view on the relationship of religious liberty and freedom of expression.  These portions of his remarks are sufficiently important to be set out at  length:

 [P]art of what I want to touch on today is the degree to which we've seen professions of faith used both as an instrument of great good, but also twisted and misused in the name of evil. 

As we speak, around the world, we see faith inspiring people to lift up one another -- to feed the hungry and care for the poor, and comfort the afflicted and make peace where there is strife....

But we also see faith being twisted and distorted, used as a wedge -- or, worse, sometimes used as a weapon.  From a school in Pakistan to the streets of Paris, we have seen violence and terror perpetrated by those who profess to stand up for faith, their faith, professed to stand up for Islam, but, in fact, are betraying it.  We see ISIL, a brutal, vicious death cult that, in the name of religion, carries out unspeakable acts of barbarism  -- terrorizing religious minorities like the Yezidis, subjecting women to rape as a weapon of war, and claiming the mantle of religious authority for such actions. 

We see sectarian war in Syria, the murder of Muslims and Christians in Nigeria, religious war in the Central African Republic, a rising tide of anti-Semitism and hate crimes in Europe, so often perpetrated in the name of religion.

So how do we, as people of faith, reconcile these realities -- the profound good, the strength, the tenacity, the compassion and love that can flow from all of our faiths, operating alongside those who seek to hijack religious for their own murderous ends? 

Humanity has been grappling with these questions throughout human history.  And lest we get on our high horse and think this is unique to some other place, remember that during the Crusades and the Inquisition, people committed terrible deeds in the name of Christ.  In our home country, slavery and Jim Crow all too often was justified in the name of Christ.  Michelle and I returned from India -- an incredible, beautiful country, full of magnificent diversity -- but a place where, in past years, religious faiths of all types have, on occasion, been targeted by other peoples of faith, simply due to their heritage and their beliefs -- acts of intolerance that would have shocked Gandhiji, the person who helped to liberate that nation. 

So this is not unique to one group or one religion.  There is a tendency in us, a sinful tendency that can pervert and distort our faith.  In today’s world, when hate groups have their own Twitter accounts and bigotry can fester in hidden places in cyberspace, it can be even harder to counteract such intolerance. But God compels us to try.  And in this mission, I believe there are a few principles that can guide us, particularly those of us who profess to believe. 

And, first, we should start with some basic humility.  I believe that the starting point of faith is some doubt -- not being so full of yourself and so confident that you are right and that God speaks only to us, and doesn’t speak to others, that God only cares about us and doesn’t care about others, that somehow we alone are in possession of the truth. 

Our job is not to ask that God respond to our notion of truth -- our job is to be true to Him, His word, and His commandments.  And we should assume humbly that we’re confused and don’t always know what we’re doing and we’re staggering and stumbling towards Him, and have some humility in that process.  And that means we have to speak up against those who would misuse His name to justify oppression, or violence, or hatred with that fierce certainty.  No God condones terror.  No grievance justifies the taking of innocent lives, or the oppression of those who are weaker or fewer in number.

And so, as people of faith, we are summoned to push back against those who try to distort our religion -- any religion -- for their own nihilistic ends.  And here at home and around the world, we will constantly reaffirm that fundamental freedom -- freedom of religion -- the right to practice our faith how we choose, to change our faith if we choose, to practice no faith at all if we choose, and to do so free of persecution and fear and discrimination.

There’s wisdom in our founders writing in those documents that help found this nation the notion of freedom of religion, because they understood the need for humility.  They also understood the need to uphold freedom of speech, that there was a connection between freedom of speech and freedom of religion.  For to infringe on one right under the pretext of protecting another is a betrayal of both. 

But part of humility is also recognizing in modern, complicated, diverse societies, the functioning of these rights, the concern for the protection of these rights calls for each of us to exercise civility and restraint and judgment.  And if, in fact, we defend the legal right of a person to insult another’s religion, we’re equally obligated to use our free speech to condemn such insults -- (applause) -- and stand shoulder-to-shoulder with religious communities, particularly religious minorities who are the targets of such attacks.  Just because you have the right to say something doesn’t mean the rest of us shouldn’t question those who would insult others in the name of free speech.  Because we know that our nations are stronger when people of all faiths feel that they are welcome, that they, too, are full and equal members of our countries.

So humility I think is needed.  And the second thing we need is to uphold the distinction between our faith and our governments.  Between church and between state.  The United States is one of the most religious countries in the world -- far more religious than most Western developed countries.  And one of the reasons is that our founders wisely embraced the separation of church and state.  Our government does not sponsor a religion, nor does it pressure anyone to practice a particular faith, or any faith at all.  And the result is a culture where people of all backgrounds and beliefs can freely and proudly worship, without fear, or coercion....   

That’s not the case in theocracies that restrict people’s choice of faith.  It's not the case in authoritarian governments that elevate an individual leader or a political party above the people, or in some cases, above the concept of God Himself.  So the freedom of religion is a value we will continue to protect here at home and stand up for around the world, and is one that we guard vigilantly here in the United States.

Alabama Asks Supreme Court For Stay of Same-Sex Marriage Injunction

As reported by Jurist, Tuesday the U.S. 11th Circuit Court of Appeals refused to grant a stay beyond the current Feb. 9 effective date of a district court order in Searcy v. Strange invalidating Alabama's bans on same-sex marriage. (See prior posting.)  The state immediately filed an application for a stay of the injunction (full text) with Supreme Court Justice Clarence Thomas, who has the option of ruling on the application himself or referring it to the full court. SCOTUSblog also reports on developments.

Court Says Religious Non-Profits Need Not Identify Their Insurers To HHS

In Christian and Missionary Alliance Foundation, Inc. v. Burwell, (MD FL, Feb. 3, 2015), a Florida federal district court granted a preliminary injunction barring enforcement of part of the latest rules accommodating religious non-profits' objections to the Affordable Care Act contraceptive coverage mandate:

The Court finds that the portion of the accommodation process which requires plaintiffs to self-certify their eligibility for the accommodation and provide that written self-certification to the HHS does not substantially burden plaintiffs’ exercise of religion.... This notification need not be on a government-issued form.

... [However] the Court reaches the opposite conclusion as to the portion of the government form which requires identification of and the contact information for plaintiffs’ insurance carrier and/or third party administrator.... Compelling plaintiffs to identify their providers or administrators to the HHS clearly facilitates the government’s ability to implement contraceptive coverage for plaintiffs’ female employees. While plaintiffs cannot preclude the government from such implementation, the identification requirement compels plaintiffs to become excessively entangled in the process of providing coverage for services which their sincerely held religious beliefs prohibit....

AP reports on the decision.

California Legislators Urge End To Vaccination Exemptions For Religious and Personal Beliefs

With the number of measles cases in California since December reaching 99, California's two U.S. Senators-- Barbara Boxer and Dianne Feinstein-- yesterday sent a letter (full text) to the state's Health and Human Services Secretary urging that state religious and personal belief exemptions to vaccination requirements be eliminated.  The letter reads in part:

California’s current law allows two options for parents to opt out of vaccine requirements for school and daycare: they must either make this decision with the aid of a health professional, or they can simply check a box claiming that they have religious objections to medical care. We think both options are flawed, and oppose even the notion of a medical professional assisting to waive a vaccine requirement unless there is a medical reason, such as an immune deficiency.

The Wall Street Journal reported yesterday that State Sen. Richard Pan, a pediatrician, plans to introduce legislation to end these exemptions, though he is open to discussion about keeping the religious exemption.

EEOC Releases 2014 Data

The Equal Employment Opportunity Commission yesterday released fiscal year 2014 private sector data tables providing detailed breakdowns for the 88,778 charges of workplace discrimination filed with the agency.  During the year, the EEOC received 3549 complaints alleging religious discrimination (4% of all complaints), and it resolved 3575 religious discrimination cases.  In 65.1% of the cases resolved, the agency found no reasonable cause. 19.2% of the complaints were administratively closed.  268 cases were settled.  In cases not settled or withdrawn, the EEOC found reasonable cause to believe that religious discrimination occurred in 116 cases.  Successful conciliation was reached in 34 of those cases.  Settlements and conciliations of religious discrimination complaints resulted in complainants receiving $8.7 million in benefits. This does not include additional amounts that may have been recovered in litigation. Wall Street Journal reports on other data released.

Biblical Theme Park To Sue Over Denial of Tax Rebates

Answers in Genesis announced this week that it plans to file a federal lawsuit challenging Kentucky's refusal to allow its planned Ark Encounter theme park to participate in the state's tax rebate incentive program. In December, the state reversed an earlier preliminary decision to allow the Noah's Ark theme park some $18 million in sales tax rebates in a program designed to promote Kentucky tourism. The state said that the park had evolved from a tourist attraction into a project to promote a literal reading of the Biblical book of Genesis. It also objects to the park's plan to hire only Christians. (See prior posting.) The lawsuit will contend that the state's action amounts to unconstitutional viewpoint discrimination.

Religious Freedom Laws Limit Reach of Homeowners Association Rules

A state court judge in Collin County, Texas yesterday ruled that the Texas Religious Freedom Restoration Act and the federal Religious Land Use and Institutionalized Persons Act trump Home Owners' Association rules. According to the Dallas Morning News, a neighbor, joined later by the property owners association, sued to enforce deed restrictions barring use of a north Dallas home by Congregation Toras Chaim, a group of 30 Orthodox Jewish families, for daily prayer services.  Plaintiffs argued unsuccessfully that the state and federal religious freedom statutes apply only to action by governmental entities. [Thanks to Steven H. Sholk for the lead.]

Suit Against Legion of Christ Over Bequest Settled

According to Monday's Providence Journal, a Rhode Island federal district court lawsuit against the scandal-ridden Catholic order, the Legion of Christ, has been settled out of court. The suit was brought by Paul Chu as executor of his father's estate. (See prior related posting.) His father, James Boa-Teh Chu, a former Brown University mechanical engineering professor who died in 2009, left annuities worth between $1 and $2 million to the Legion. The suit claimed that the Legion used undue influence on the elder Chu in his last years in order to obtain the bequest. The terms of the out-of-court settlement were not disclosed.

Break-Away S.C. Episcopal Churches Win Right To Real, Personal and Intellectual Property

In Protestant Episcopal Church In The Diocese of South Carolina v. Episcopal Church, (SC Cir. Ct., Feb. 3, 2015), a South Carolina state trial court held that 38 break-away Episcopal parishes in South Carolina retain ownership of their real, personal and intellectual property. It rejected claims by The Episcopal Church that an express or a constructive trust existed under which it could claim the property. Finally the court enjoined The Episcopal Church from using the names or seals of the break-away churches and their Diocese. FITS News reports on the decision.

New Islamic Tribunal Is Set Up In Texas

What is perhaps the first Islamic Tribunal in the United States has been set up in Dallas, Texas.  The Tribunal offers to the Muslim community mediation and non-binding arbitration that follows Islamic principles. CBS 11 News reports on the new Tribunal. Breibart last week carried a rather unsympathetic article on the Tribunal

International Court of Justice Clears Both Serbia and Croatia of Genocide Charges

Yesterday the International Court of Justice at The Hague handed down a 145-page opinion rejecting both Croatia's claim of genocide against Serbia (vote of 15-2) and Serbia's claim of genocide against Croatia (unanimous decision) growing out of the 1991-2001 War in the Balkans. Twelve judges filed separate opinions.   The Telegraph has an excellent summary of the decision:

Croatia’s case turned on the fate of the city of Vukovar, which endured three months of bombardment by Serbian irregular forces and the Yugoslav national army in 1991.... Croatia argued that the “attacks on Vukovar were directed not simply against an opposing military force, but also against the civilian population”.... But the ICJ rejected Croatia’s case, concluding that the crucial element of an intention to destroy a specific ethnic group had not been proved....

Serbia, for its part, accused Croatia of committing genocide by launching “Operation Storm” in 1995. During this military offensive, Croatia recaptured a Serb-inhabited region of its territory known as Krajina. In the process, about 200,000 Serbs were driven from their homes.

The crucial evidence was a meeting held on the Croatian island of Brioni between Franjo Tudjman, then president, and the country’s military leaders. Serbia argued that the full transcript of this conversation showed the aim of Operation Storm was the elimination of the Serbs of Krajina.  But the ICJ rejected this interpretation.... The “specific intent to destroy which characterises genocide” was missing from the Krajina offensive, found the ICJ.

All the pleadings and records of proceedings in the case are available from the Court's website. The Court also issued its own press release summarizing the decision.

Administrative Law Judge Finds Bakery's Refusal To Furnish Same-Sex Wedding Cake Violates Anti-Discrimination Law

In In re Melissa Klein, (OR BOLI, Jan. 29, 2015), an Oregon Bureau of Labor and Industries Administrative Law Judge, in a 52-page opinion, held that Aaron Klein, a co-owner of the bakery "Sweetcakes by Melissa", discriminated on the basis of sexual orientation, in violation of the public accommodation provisions of ORS 695A.403.  The case grew out of the refusal on religious grounds to provide a wedding cake for a same-sex couple.  The court held that co-owner Melissa Klein will be jointly and severally liable for any damages awarded. The ALJ rejected free exercise and compelled speech defenses put forward by respondents, concluding that the state's anti-discrimination law is a neutral law of general applicability.

The administrative agency issued a press release announcing the Interim Order, saying:

The Interim Order finds that the undisputed material facts support charges of unlawful discrimination under the Oregon Equality Act. An administrative hearing scheduled for March will focus on damages for the same-sex couple.

The Oregonian reports on the decision. [Thanks to Joel Sogol via Religionlaw for the lead.]

Summum Loses Monument Bid Again-- This Time In Utah Supreme Court

Since 2003, Summum has been attempting to require Pleasant Grove City, Utah to accept a "Seven Aphorisms" monument to be placed in a city park where a Ten Commandments monument already stands.  In litigation, part of which went to the U.S. Supreme Court, federal courts held that the city had violated neither the 1st Amendment's free speech or Establishment clause in refusing the monument.  Summum then filed suit in state court contending that the Utah Constitution's religious liberty clause requires the city to erect the Seven Aphorisms monument.  In Summum v. Pleasant Grove City, (UT Sup. Ct., Jan. 30, 2015). the Utah Supreme Court rejected Summum's contention. The Court, emphasizing that Summum had not asked for it to order the removal of the Ten Commandments monument, held that monuments are different than sectarian prayers before city council. The neutrality test the Court had developed in the context of legislative prayer does not apply to public monuments:

[R]equiring Pleasant Grove to erect a second religious monument would not render the allocation of public property and money to the two monuments neutral. The citizens of Pleasant Grove, and Utah in general, undoubtedly espouse a broad variety of religious views.... Displaying monuments that communicate the beliefs of only two of these viewpoints would not amount to an impartial distribution of public property.... And because there is a finite amount of space in Pioneer Park, allowing all interested groups to install their own religious or antireligious monuments in the park would be unworkable.... 

Because the government property at issue in this case is itself the message, it cannot be allocated in an impartial manner.... Summum attempts to use the neutrality test as a tool to facilitate the placement of its own proposed monument in Pioneer Park. It argues that the district court should order the installation of a Seven Aphorisms monument in order to establish an impartial allocation of public property towards religious expression in the park. But because the neutrality test does not apply in the context of public monuments, this tool is unavailable to Summum.

Justice Lee filed an opinion concurring in part and concurring in the judgment.

No Title VII Liability For Refusing To Hire Applicant Who Will Not Furnish Social Security Number

In Yeager v. FirstEnergy Generation Corp., (6th Cir., Jan. 28, 2015), the U.S. 6th Circuit Court of Appeals held that an employer is not liable under Title VII or Ohio's anti-discrimination law when the employer refuses to hire an applicant because the applicant has not furnished a social security number.  The Internal Revenue Code requires employers to collect and provide employees' social security numbers.  Plaintiff Donald Yeager disavowed his social security number for religious reasons-- he believes it is the "mark of the beast" referred to in the Book of Revelation. The court said:

Title VII does not require an employer to reasonably accommodate an employee’s religious beliefs if such accommodation would violate a federal statute.

Cleveland.com has details of the case beyond those set out by the 6th Circuit in its per curiam opinion.

Recent Articles and Book of Interest

From SSRN:

• Michael Heise, Lost Ground: Catholic Schools, the Future of Urban School Reform, and Empirical Legal Scholarship, (Cornell Legal Studies Research Paper, Jan. 2015).
• Shaun Alberto de Freitas, Proselytism and the Right to Freedom from Improper Irreligious Influence: The Example of Public School Education, (Potchefstroom Electronic Law Journal, Vol. 17, No. 3, 2014).
• Fatima Osman, Legislative Prohibitions on Wearing a Headscarf: Are They Justified?, (Potchefstroom Electronic Law Journal, Vol. 17, No. 4, 2014).
• Vincent Phillip Munoz, Church and State in the Founding-Era State Constitutions, (January 28, 2015).
• Alex Chung, Religion, Pluralism and the Secular State: Commentary on Marriage Equality and Disability Rights, (University of Notre Dame Australia B.A. Honors Thesis, October 31, 2014).
• Leo E. Strine, A Job is Not a Hobby: The Judicial Revival of Corporate Paternalism and its Problematic Implications, (January 26, 2015).
• Tasha Alyssa Hill, Inmates' Need for Federally Funded Lawyers: How the Prison Litigation Reform Act, Casey, and Iqbal Combine with Implicit Bias to Eviscerate Inmate Civil Rights, (62 UCLA Law Review 176 (2015)).
• Michael J. T. McMillen, Islamic Banking: Some Distinguishing Regulatory Considerations, (New York State Bar Association 2015 Annual Meeting Papers).
• Fran Quigley, For Goodness’ Sake: A Two-Part Proposal for Remedying the U.S. Charity/Justice Imbalance, (January 30, 2015). 

Recent Book:

• Karen Armstrong, Fields of Blood: Religion and the History of Violence, (Knopf, Oct. 2014, reviewed by Buffalo News.

Recent Prisoner Free Exercise Cases

In Brooks v. Roy, (8th Cir., Jan. 27, 2015), the 8th Circuit upheld dismissal of an inmate's claims that a chemical-dependency program conflicted with his Native American religious faith. From the complaint, the court could not determine the nature of the prisoner's religious beliefs and thus prison officials were not put on notice of his claims.

In Robertson v. Call, 2015 Kan. App. Unpub. LEXIS 33 (KS App., Jan. 15, 2015), a Kansas state appellate court reversed a trial court's summary dismissal of a Messianic Jewish inmate's claim that allowing his meetings with his rabbi only to be by video link violates the free exercise and establishment clauses.

In Henderson v. Hernandez, 2015 U.S. Dist. LEXIS 8773 (ND CA, Jan. 23, 2015), a California federal district court allowed a Muslim inmate to move ahead with 1st Amendment and RLUIPA claims that he has been denied congregate prayer, appropriate Ramadan and festival meals, a qualified Muslim chaplain and resource group, and various religious items. The court dismissed his claim that Muslim inmates should be housed in the same building.

In Grisham v. Pritcher, 2015 U.S. Dist. LEXIS 9132 (MD TN, Jan. 27, 2015), a Tennessee federal district court permitted an inmate to move ahead with his complaint that authorities refused to provide a room for Hanafi Muslims to meet twice a week for study and prayer.

In Payne v. Gipson, 2015 U.S. Dist. LEXIS 9218 (ED CA, Jan.26, 2015), a California federal district court dismissed with leave to amend a Muslim inmate's claim for damages for denial of a Halal meal. Various other claims for equitable relief involving religious exercise concerns were dismissed as moot.

In Cejas v. Myers, 2015 U.S. Dist. LEXIS 9258 (ED CA, Jan. 27, 2015), a California federal magistrate judge recommended allowing an inmate to move ahead with his free exercise claim alleging that Buddhist inmates were denied unsupervised access to the chapel, while Jewish and Muslim inmates were allowed such access. UPDATE: The court adopted the magistrate's recommendations at 2015 U.S. Dist. LEXIS 46627 (April 9, 2015).

In Mohammed-Bey v. Pool, 2015 U.S. Dist. LEXIS 9348 (ND CA, Jan. 26, 2015), a California federal district court denied a preliminary injunction and TRO to an inmate seeking for religious reasons to change his ethnicity from "negro," or "black" to "Moorish-American."

In Brown v. City of New York, 2015 U.S. Dist. LEXIS 10469 (SD NY, Jan. 29, 2015), a New York federal district court dismissed with leave to amend a Muslim inmate's complaint that he did not have access to an Imam.

In Dixie v. Virga, 2015 U.S. Dist. LEXIS 11429 (ED CA, Jan. 29, 2015), a California federal magistrate judge permitted a Muslim inmate to proceed with his complaint that Enhanced Outpatient Program prisoners were barred from attending Jumu'ah prayer sessions with General Population inmates. The court also ruled on a number of discovery requests.

Luxembourg Revises Support of Religious Communities

Article 106 of the Luxembourg Constitution provides:

The salaries and pensions of ministers of religion shall be borne by the State and regulated by the law

Earlier this week, the government of Luxembourg signed an agreement with the country's faith groups to reallocate and modify the current government funding of religious communities. For the first time funding will be extended to the Muslim community, while funding to the Catholic Church will be severely cut. Over 70% of Luxembourg's population is Catholic. As reported by Law & Religion UK:

The stipends of all those within the faith groups who are currently paid by the state will continue; but those appointed in future will have to be supported by their respective religious communities. There will continue to be some Government subsidy for salaries of those engaged in counselling. The state subsidies currently received by the Roman Catholic Church will be severely reduced; and the agreement also foresees that the Roman Catholic seminary in Weimershof will become an interfaith learning centre, while the Church’s properties will be put into what Luxemburger Wort describes as a “public fund” – presumably something along the lines of a separate charitable trust. In addition, Roman Catholic confessional education in schools is set to be replaced with an ethics and morals course, including units on world religions.

Also the various political parties have agreed that the Constitution should be amended to provide a declaration of separation of church and state.

Chile's Parliament Approves Civil Unions

On Wednesday, the National Congress of Chile (Chile's Parliament) gave final approval to the Civil Union Agreement bill.  PanAm Post reports that if, as expected, Chilean President Michelle Bachele signs the bill, this will make Chile the seventh South American country to recognize civil unions. The bill, which applies to both same-sex and opposite-sex civil unions, provides for inheritance, pension and health plan rights.

Muslim Texans Face Hostile Reception At State Capitol

Yesterday CAIR Texas sponsored its annual Texas Muslim Capitol Day, featuring sessions on political activism and meetings with state representatives.  According to the Texas Tribune, participants visiting freshman representative Molly White's office received an unusual greeting.  White was back in her district, but she left an Israeli flag on the reception desk in her office and instructed her staff to ask representatives from the Muslim community "to renounce Islamic terrorist groups and publicly announce allegiance to America and our laws." In her Facebook posting announcing this, she added: "We will see how long they stay in my office."

CAIR responded by sending a letter (full text) raising ethics questions to House Speaker Joe Straus, in part asking:

Has Rep. White violated any House rules in creating such an internal office policy that is selectively being enforced to discriminate against certain religious minorities trying to meet with her or her staff? Are House members prohibited from making constituents take oaths before meeting with their elected representatives or house staff?

Yesterday afternoon White issued a statement backing off somewhat from her earlier comments.

Protesters also interrupted the Muslim group's press conference at the Capitol yesterday. One grabbed the microphone and screamed: "Islam will never dominate the United States and by the grace of God, it will never dominate Texas."  More than 420,000 Muslims live in Texas. [Thanks to Scott Mange for the lead.]

D.C.'s Kesher Israel Wants Religous Court To Force Rabbi Out of Synagogue-Owned House

On Wednesday, Washington D.C.'s Kesher Israel Synagogue and its president instituted a suit in a Jewish religious court-- the Beth Din of America-- against the synagogue's former rabbi, Barry Freundel.  The rabbi was suspended without pay when he was arrested for planting a secret camera in the synagogue's mikveh to view women showering there. (See prior posting.) According to the Washington Post, the synagogue gave Freundel until January 1 to move out of the synagogue-owned house where he and his family had lived for many years.  Freundel however has refused to vacate the house.  His contract with the synagogue calls for any disputes to be resolved through a Beth Din.

Mennonite Couple Stops Hosting All Weddings To Settle Sexual Orientation Discrimination Complaint

As previously reported, last year a Mennonite couple filed suit against the Iowa Civil Rights Commission to prevent it from moving ahead on a complaint that the couple refused to host a same-sex wedding ceremony in their art gallery in violation of the ban on discrimination in public accommodations. AP reported yesterday that the couple-- Betty and Richard Odgaard-- have settled the complaint filed with the Civil Rights Commission by the two men whose wedding was refused.  The Odgaards paid $5000 in damages, dropped their suit against the Commission and agreed not to discriminate in the future on the basis of sexual orientation.  In order to comply with that agreement, the Odgaards have totally stopped hosting wedding ceremonies of any kind at their gallery even though that has been a major part of their business.

Obama Promotes Religious Tolerance In Address To Indian People

On Tuesday, President Obama on his trip to India delivered a 34-minute address to the people of India (full text). His remarks included a lengthy plea for religious tolerance:

Our nations are strongest when we see that we are all God’s children -- all equal in His eyes and worthy of His love.  Across our two great countries we have Hindus and Muslims, Christians and Sikhs, and Jews and Buddhists and Jains and so many faiths.  And we remember the wisdom of Gandhiji, who said, “for me, the different religions are beautiful flowers from the same garden, or they are branches of the same majestic tree.”  (Applause.)    Branches of the same majestic tree.

 Our freedom of religion is written into our founding documents.  It’s part of America’s very first amendment.  Your Article 25 says that all people are “equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”  In both our countries -- in all countries -- upholding this fundamental freedom is the responsibility of government, but it's also the responsibility of every person.

 In our lives, Michelle and I have been strengthened by our Christian faith.  But there have been times where my faith has been questioned -- by people who don’t know me -- or they’ve said that I adhere to a different religion, as if that were somehow a bad thing.  Around the world, we’ve seen intolerance and violence and terror perpetrated by those who profess to be standing up for their faith, but, in fact, are betraying it.  No society is immune from the darkest impulses of man.  And too often religion has been used to tap into those darker impulses as opposed to the light of God.  Three years ago in our state of Wisconsin, back in the United States, a man went to a Sikh temple and, in a terrible act of violence, killed six innocent people -- Americans and Indians.  And in that moment of shared grief, our two countries reaffirmed a basic truth, as we must again today -- that every person has the right to practice their faith how they choose, or to practice no faith at all, and to do so free of persecution and fear and discrimination.  (Applause.) 

 The peace we seek in the world begins in human hearts.  And it finds its glorious expression when we look beyond any differences in religion or tribe, and rejoice in the beauty of every soul.  And nowhere is that more important than India.  Nowhere is it going to be more necessary for that foundational value to be upheld.  India will succeed so long as it is not splintered along the lines of religious faith -- so long as it's not splintered along any lines -- and is unified as one nation.

And it’s when all Indians, whatever your faith, go to the movies and applaud actors like Shah Rukh Khan.  And when you celebrate athletes like Milkha Singh or Mary Kom.  And every Indian can take pride in the courage of a humanitarian who liberates boys and girls from forced labor and exploitation -- who is here today -- Kailash Satyarthi.  (Applause.)  Our most recent winner of the Nobel Prize for Peace.  (Applause.)

 So that's what unifies us:  Do we act with compassion and empathy.  Are we measured by our efforts -- by what Dr. King called “the content of our character” rather than the color of our skin or the manner in which we worship our God.  In both our countries, in India and in America, our diversity is our strength.  And we have to guard against any efforts to divide ourselves along sectarian lines or any other lines.  And if we do that well, if America shows itself as an example of its diversity and yet the capacity to live together and work together in common effort, in common purpose; if India, as massive as it is, with so much diversity, so many differences is able to continually affirm its democracy, that is an example for every other country on Earth.  That's what makes us world leaders -- not just the size of our economy or the number of weapons we have, but our ability to show the way in how we work together, and how much respect we show each other.

DNA India reported on the President's address.

Nova Scotia Supreme Court Rules In Favor of Trinity Western Law School

In Trinity Western University v. Nova Scotia Barristers’ Society, (NS SC, Jan. 28, 2015), the Nova Scotia Supreme Court, in a 138-page opinion, held that the Nova Scotia Barristers' Society exceeded its authority when it refused to recognize law degrees of Trinity Western University Law School so long as the Christian school's policy continues to prohibit students from engaging in sexual relations outside of traditional heterosexual marriage. According to the Court, the Society has the authority to deal with the education and qualifications of those who practice law in the province. Its action here however dealt with a University policy that does not affect the quality of its graduates.

The Court went on to hold that even if the Society had authority to refuse to recognize TWU's law degrees, it did not exercise the authority in a way that reasonably respects religious liberty and freedom of conscience:

People have the right to attend a private religious university that imposes a religiously based code of conduct. That is the case even if the effect of that code is to exclude others or offend others who will not or cannot comply with the code of conduct. Learning in an environment with people who promise to comply with the code is a religious practice and an expression of religious faith. There is nothing illegal or even rogue about that. That is a messy and uncomfortable fact of life in a pluralistic society. Requiring a person to give up that right in order to get his or her professional education recognized is an infringement of religious freedom.

The Halifax Herald News reports on the decision.

GITMO Inmate Invoking RFRA Wants Only Male Guards During Transfers

Miami Herald reports that at a pre-trial hearing at Guantanamo Bay yesterday, the defense lawyer for former al Quaida commander Abd al Hadi al Iraqi asked for an expansion of the existing order barring female guards being used to transfer al Hadi to and from court and meetings with his lawyers.  Al Hadi who says that his religion bars touching of males by females who are not close family members wants the order extended to cover his transfers to medical, Red Cross and recreation yard visits.  His lawyers cite the Supreme Court's Hobby Lobby decision to back their request for a religious accommodation.  According to facts that came out in yesterday's hearing, until last October only men were assigned to the elite guard  unit at Guantanamo's Camp 7 that houses 15 prisoners who have been held by the CIA for years.  But then a female lieutenant colonel took charge of Camp 7 and recruited women to do escort duty as well.  Officials say that military morale has suffered since the military judge's order barring women soldiers from touching male prisoners being transferred to meetings with their lawyers. (See prior related posting.)

Trial of Egyptian Poet Over Facebook Posting Begins

Reuters reports that an initial hearing in the trial of poet Fatima Naoot was held yesterday in Egypt. She is charged with contempt of Islam, spreading sectarian strife and disturbing public peace because of a Facebook post criticizing the Muslim practice of slaughtering animals on the Feast of the Sacrifice-- a day celebrating Abraham's willingness to sacrifice his son.  Naoot's post said:

Millions of innocent creatures will be driven to the most horrible massacre committed by humans for ten-and-a-half centuries.A massacre which is repeated every year because of the nightmare of a righteous man about his good son.

If convicted, the poet could receive up to three years in jail.

Orthodox Jewish Group Blasts NYC Universal Pre-K Program

The New York Daily News reported yesterday that the Orthodox Union has taken out ads in a number of publications criticizing New York Mayor Bill de Blasio's free universal pre-K program because its full-day schedule does not leave time for religious studies to be added after the end of school.  The OU wants the city to make more seats available in half-day pre-K programs so a religious component can be added during the other half of the day.  A spokesman for the mayor says they have worked closely with Jewish groups in implementing the program and already have thousands of half-day seats available.

Court Issues Enforcement Orders To Assure Jehovah's Witnesses Access To Puerto Rico Urbanizations

In Watchtower Bible Tract Society of N.Y. Inc. v. Municipality of El Dorado, (D PR, Jan. 26, 2015), a Puerto Rico federal magistrate judge issued broad remedial orders in an attempt to force reluctant gated communities ("urbanizations") in Puerto Rico to comply with prior orders to give Jehovah's Witnesses access so they can engage in door-to-door proselytization. One community in El Dorado allowed Jehovah's Witnesses entry, but barred their knocking on residents' door.  Another community continued to deny entry to Jehovah's Witnesses.  The decision made clear that it is the responsibility of municipalities to ensure compliance by individual neighborhoods.  The court threatened to have the gates of the community forcibly opened if access was not granted.  The magistrate judge also recommended that the municipality be held in contempt and fined $5000.

More Companies Win On Basis of Hobby Lobby Decision

In a brief opinion in Briscoe v. Burwell, (D CO, Jan. 27, 2015), a Colorado federal district court, applying the Supreme Court's Hobby Lobby decision, enjoined enforcement of:

those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require plaintiffs Continuum Health Partnerships, Inc.; Continuum Health Management, LLC; and Mountain States Health Properties, LLC to provide their employees with health coverage for “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” ...to which plaintiffs object on religious grounds.

AP reports on the decision.

Mormon Church Leaders Call For Legislation Protecting LGBT Rights and Religious Liberty

In a News Conference in Salt Lake City, Utah yesterday, leaders of the Mormon Church called for legislation protecting LGBT rights but also protecting religious freedom. (Full text of news conference.) (Summary of key points.) (Press release.)  Speaking at the news conference were Elders Dallin H. Oaks and Jeffrey R. Holland of the Church’s Quorum of the Twelve Apostles and Sister Neill F. Marriott of the Church’s Young Women general presidency. Introducing the news conference, Elder D. Todd Christofferson said:

To those who follow the Church closely and who are familiar with its teachings and positions on various social issues, it will be apparent that we are announcing no change in doctrine or Church teachings today. But we are suggesting a way forward in which those with different views on these complex issues can together seek for solutions that will be fair to everyone.

Oakes said in part:

Accusations of bigotry toward people simply because they are motivated by their religious faith and conscience have a chilling effect on freedom of speech and public debate. When religious people are publicly intimidated, retaliated against, forced from employment or made to suffer personal loss because they have raised their voice in the public square, donated to a cause or participated in an election, our democracy is the loser....

Today, state legislatures across the nation are being asked to strengthen laws related to LGBT issues in the interest of ensuring fair access to housing and employment. The leadership of The Church of Jesus Christ of Latter-day Saints is on record as favoring such measures. At the same time, we urgently need laws that protect faith communities and individuals against discrimination and retaliation for claiming the core rights of free expression and religious practice that are at the heart of our identity as a nation and our legacy as citizens.

The Salt Lake Tribune has more on the press conference.

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.