8th Circuit Invalidates Missouri House of Worship Protection Act

In Survivors Network of Those Abused By Priests, Inc. v. Joyce,  (8th Cir., March 9, 2015), the U.S. 8th Circuit Court of Appeals held that Missouri's House of Worship Protection Act violates the 1st Amendment's free speech protections.  The statute, which prohibits "using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services," was challenged by groups and individuals who picket Catholic Churches over clergy sexual abuse and other issues.  The court concluded that the statute is a content-based restriction on speech and is thus subject to strict scrutiny.  The court added:

The broad sweep of the Worship Protection Act's ban ... can prevent significant messages from being publicly expressed, solely because they are offensive or disagreeable to some. Such risks are heightened near the places regulated by the Act—churches and buildings used for religious purposes. These locations are the most likely places for appellants to find their intended audience, including individuals who have personally been affected or victimized by instances of clerical sexual abuse and church employees with knowledge or information about abusive acts.

Kansas City Star reports on the decision.

Supreme Court GVRs Notre Dame's Appeal In Contraceptive Mandate Challenge

As previously reported, in October Notre Dame University filed a petition for certiorari with the U.S. Supreme Court in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits.  However instead of seeking full review of the 7th Circuit's decision, the petition asked the Court to issue a so-called GVR order. Today the Supreme Court did just that.  In University of Notre Dame v. Burwell, (Docket No. 14-392) (Order List), the Court issued the following order:

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 Seventh Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014). 

[Thanks to Marty Lederman vial Religionlaw for the lead.]

Israel's Rabbinate Loosens Religious Constraints On Hotels

In Israel, the chief rabbinate, under pressure from the organization Hiddush that promotes freedom of religion, has lifted a number of non-food related requirements that were in the past imposed on hotels in order for them to have their food and restaurants certified as kosher.  Haaretz reports that the Chief Rabbinate announced last Thursday that it has suspended former requirements that prohibited hotels from displaying Christmas trees, that prohibited Jewish employees from accepting money on the Sabbath and barred filming events on hotel premises on the Sabbath.

State RFRA Legislation Tracker Created

As a number of states consider new or amended religious freedom statutes, Don Byrd at the Baptist Joint Committee's Blog From the Capital has created an extremely useful State RFRA Bill Tracker. The Tracker, posted last week, follows both newly proposed RFRA laws as well as proposed amendments to existing ones-- with links to the bills.  It also links to all state RFRA laws that have already been enacted.  The page will follow the progress of the bills and highlight the key language at the core of each proposal.

Recent Articles of Interest

From SSRN:

• Zvi H. Triger, 'A Jewish and Democratic State:' Reflections on the Fragility of Israeli Secularism, (41 Pepperdine Law Review 1091 (2014)).
• Luke Beck, The Establishment Clause of the Australian Constitution: Three Propositions and a Case Study, (Adelaide Law Review, Vol. 35, No. 2, 2014, pp. 225-250).
• Rebecca Gould, Everyday Violence, Quotidian Grief: Patriarchal Bargains in Georgia’s Pankisi Gorge, (Women Living Under Muslim Laws Dossier 32-33: Sexualities, Culture and Society in Muslim Contexts, ed. Anissa Hélie 123-135).
• Sean McDivitt, Striking the Harmonious Chord for Corporate Social Responsibility and Individuals: Affirming Closely Held Corporations’ Religious Objections to the HHS Mandate, (Oklahoma City University Law Review, Vol. 39, No. 3, 2014).
• Paul Andrew Gwaza, Addressing the Boko Haram Insurgency in Nigeria: The Effectiveness or Otherwise for the Application of the Alternative Dispute Resolution (ADR) Techniques, (March 5, 2015).
• Lindsey H. Emerson, An Artifact or a Memorial: The Latin Cross and the Establishment Clause, (March 5, 2015).
• Caroline Mala Corbin, Exploiting Mixed Speech, (California Law Review Circuit, Vol. 103, 2015, Forthcoming).
• Julia Guenther, Gender and Globalization: Power Relations at India's Margins, (Journal of Developing Societies March 2015 31: 1-7).
• Seth Barrett Tillman, Letter from Seth Barrett Tillman to Ukip in Regard to Ukip's Supporting the British Veterinary Association (“BVA”) and Royal Society for the Prevention of Cruelty to Animals (“RSPCA”) in Calling for a Ban on Non-Stun Slaughter, (March 7, 2015).

From SmartCILP:

• Vicenc Feliu, Corporate "Soul": Legal Incorporation of Catholic Ecclesiastical Property in the United States: A Historical Perspective, 40 Ohio Northern University Law Review 441-465 (2014).
• Louis W. Hensler III, Flexible Interpretations of "The Powers That Be" From Constantine to Mandela and Beyond, 27 Regent University Law Review 43-102 (2014-2015).
• The Travels of Law: Indian Ocean Itineraries. Introduction by Renisa Mawani and Iza Hussin; articles by Julia Stephens, Iza Hussin, Fahad Ahmad Bishara, Rohit De and Riyad Sadiq Koya; afterword by Engseng Ho. 32 Law & History Review 733-889 (2014). 

Recent Prisoner Free Exercise Cases

In Spence v. Nelson, (5th Cir., March 5. 2015), the 5th Circuit affirmed the dismissal of a Shia Muslim inmate's complaint regarding an alleged unpublished prison mail room policy that prohibited inmates from receiving literature from Iran.  The court concluded that the named plaintiffs were not the policy makers responsible.

In Triplett v. LeBlanc, 2015 U.S. Dist. LEXIS 24468 (MD LA, March 2, 2015), a Louisiana federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 24663, Feb. 5, 2015) and dismissed an inmate's complaint that his free exercise and equal protection rights were infringed when he was reassigned and disciplined for not attending a scheduled church call-out for inmate ministers.

In Addis v. Arizona Department of Corrections, 2015 U.S. Dist. LEXIS 25519 (D AZ, March 2, 2015), an Arizona federal district court dismissed with leave to amend an inmate's complaint that trash, contraband or notes were sometimes placed in kosher meals.

In Hammer v. Keeling, 2015 U.S. Dist. LEXIS 25641 (ED VA, March 3, 2015), a Virginia federal district court dismissed an inmate's complaint over being temporarily removed from the Common Fare religious diet because he was found concealing a bell pepper in the front of his pants.

In Mitchell v. Cox, 2015 U.S. Dist. LEXIS 25871 (D NV, March 2, 2015), a Nevada federal district court permitted an inmate who identified as Jewish and Hebrew-Israelite to move ahead with complaints regarding kosher meals, denial of attendance at Sabbath services and restrictions on leaving his cell to observe Passover.

In Sutton v. VanLeeuwen, 2015 U.S. Dist. LEXIS 26367 (D CO, Feb. 25, 2015), a Colorado federal district court dismissed an inmate's complaint that his free exercise rights were infringed when he was forced to eat meat.

In Cullen v. Saddler, 2015 U.S. Dist. LEXIS 27459 (CD IL, March 6, 2015), an Illinois federal district court granted summary judgment to a pro se plaintiff who objected that while in prison he was required to participate in a religious 12-step program in order to be considered for additional good time credit. The court suggested that if further proceedings were necessary to decide whether plaintiff in fact suffered the $350 damages he claimed, that the parties should waive a jury trial.

In Adams v. Woodall, 2015 U.S. Dist. LEXIS 27719 (MD TN, March 4, 2015), a Tennessee federal magistrate judge recommended dismissing complaints of a Muslim inmate's complaints regarding denial of religious jewelry, denial of access to religious vendors and denial of a religious diet.

In Smith v. United States Congress, 2015 U.S. Dist. LEXIS 27818 (ED VA, March 6, 2015), a Virginia federal district court dismissed a complaint by a Nation of Islam inmate that Virginia state prison rules prevented him from purchasing CDs of sermons of Minister Farrakhan directly from The Final Call and barred Arabic language CDs.

In Lucas v. Director of Department of Corrections, 2015 U.S. Dist. LEXIS 27957 (ED CA, March 5, 2015), a California federal magistrate judge dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint that he has not received a religious diet.  The court held that an amended complaint filed after administrative remedies are exhausted cannot cure a prematurely filed original complaint.

Applying Holt v. Hobbs To A Complex Case-- The Demands of a Transgender Native American Inmate

A fascinating decision handed down by an Idaho federal district court last week shows the complexity faced by prisons in attempting to applying the U.S. Supreme Court's January RLUIPA decision in Holt v. Hobbs.  In Stover v. Corrections Corporation of America, (D ID, Feb. 27, 2015), the court was faced with demands by a Native American male-to-female transgender prisoner for use of the prison's sweat lodge for religious purposes.  According to the court:

Although Plaintiff receives female hormone therapy and has developed feminine characteristics such as breasts, she is incarcerated in a men’s prison because she remains anatomically male—she has not had sex reassignment surgery.

Defendants conceded that under RLUIPA barring plaintiff from engaging in a sweating ceremony is a substantial burden on the exercise of her Native American religious beliefs. According to the court:

Defendants offer two explanations for their decision to prohibit Plaintiff from using the sweat lodge to practice her religion. First, they argue that prohibiting Plaintiff from using the lodge is necessary to ensure her safety. The Court does not doubt that prohibiting Plaintiff from using the sweat lodge in the company of male inmates is justified by the compelling governmental interest of keeping Plaintiff safe from physical or sexual assault..... [I]nmates are generally not fully clothed in the sweat lodge, and prison staff cannot observe the inside of the lodge. Plaintiff has already been a victim of several sexual assaults in prison. As a transgender prisoner with feminine characteristics such as breasts, Plaintiff would be in serious and immediate danger if she were to sweat with the male inmates in the sweat lodge at the men’s prison in which she is confined. Ensuring a vulnerable prisoner’s safety is obviously a compelling governmental interest.

However the court was not convinced that prison authorities had satisfied the least-restictive-alternative test as interpreted by the Supreme Court. A volunteer chaplain had apparently offered to escort Plaintiff to the sweat lodge when it was not in use by others so she could carry out the ritual.  While that may well seem to be the kind of less restrictive alternative that the Supreme Court required in Holt, here there was another complexity:

[Defendants] argue that the religious beliefs of the other inmates, who use the only sweat lodge... would be violated by allowing Plaintiff to enter the sweat lodge at any time, even by herself.... "[S]ome Native American tribes believe that allowing a two-spirited person (an individual suffering from gender identify disorder or gender dysphoria) to enter a sweat lodge utilized by single-spirited individuals would desecrate the religious sanctity of the lodge." ... 

After careful consideration, the Court concludes that Defendants have not establish[ed] that burdening one individual’s religious practice in an attempt to avoid burdening another’s religious practice is a compelling governmental interest under RLUIPA. .... The Court is persuaded that government officials cannot avoid Plaintiff’s RLUIPA claim merely by citing other inmates’ religious concerns, particularly where, as here, the asserted justification is based on mere speculation as to what some other inmates might find religiously objectionable. 

UCLA Incident Highlights Campus Anti-Semitism

An article posted yesterday, the New York Times explores anti-Semitism on American university campuses.  The article focuses primarily on an incident last month at UCLA involving a meeting on the nomination of a Jewish student to the student Judicial Council. A student member of the Undergraduate Association Student Council began the question period by asking nominee Rachel Beyda: "Given that you are a Jewish student and very active in the Jewish community, how do you see yourself being able to maintain an unbiased view?" This led to a 40 minute debate by Council members, with Beyda sent out of the room. Eventually she was approved, but only after an initial split vote against her. The president of the UCLA Hillel chapter says that this anti-Semitism is a carryover from anti-Israel activity: "The problem is the anti-Israel culture in which we are singling out only the Jewish state creates an environment where it’s O.K. to single out Jewish students."

Indian Court Says Child Marriage Act Trumps Muslim Personal Law

Z News reports that in India, the Madras High Court has held that the Prohibition of Child Marriage Act 2006 takes precedence over the Muslim Personal Law (Shariat) Application Act 1937, upholding an order of a district child welfare officer preventing the marriage of a 17-year old girl.  The judge rejected the argument that Muslim personal law could be applied.  Under Shariat law, a girl may marry at age 15 when she is presumed to attain puberty. Meanwhile, a hearing is scheduled today in a public interest lawsuit filed in the Madras High Court in which petitioner is seeking an order to prevent state government officials from interfering in the marriage of Muslim girls.

Cardinal Edward Egan Dies At Age 82

Cardinal Edward M. Egan, former head of the Catholic Archdiocese of New York, died yesterday at the age of 82.  As reported by the New York Times, Egan was "a stern defender of Roman Catholic orthodoxy." For example, Egan argued that former New York Mayor Rudy Giuliani should not have received Holy Communion during Pope Benedict XVI's 2008 visit to the U.S. because of Giuliani's support of abortion rights. (See prior posting.) The Times summarized Egan's years in New York:

His tenure in New York had mixed reviews. His priority was to restore financial stability to the deficit-ridden archdiocese, and he did it by closing or merging parishes and schools and by raising millions from corporations and wealthy laymen. But he also drew bitter complaints from affected parishioners and priests. He tried to recruit more priests, but with little success.

Suit Challenges Quote From British Jurist Posted In Rhode Island's High Court

A Rhode Island lawyer this week filed a federal lawsuit challenging a quotation from British jurist Sir Edward Coke inscribed above the bench of the Rhode Island Supreme Court. The complaint (full text) in Gelfuso v. Suttell, (D RI, filed 3/4/2015) alleges in part:

6. Inscribed above the bench of the Rhode Island Supreme Court are the words "Non Sub Homine Sed Sub Deo Et Lege" ....

7. On information and belief, this is a phrase which translates as "Not under man, but under God and law."

8. Plaintiff considers this inscription as conveying a government endorsement of religion and a particular religious viewpoint with which Plaintiff does not agree.

Plaintiff not only seeks an injunction against displaying the inscription, but also an injunction against the court's continued distribution of an allegedly misleading publication that describes the quote's history and Lord Coke's relationship with Rhode Island's founder Roger Williams. The complaint alleges:

15. Though the publication portrays Lord Coke as a defender of freedom and equality defying a tyrannical king, Coke had actually been a persecutor of religious and political dissidents in England who had supported the ecclesiastical court of the High Commission and its counterpart the Star Chamber.

16. While Coke had mentored Roger Williams as a youth, Roger Williams later denounced Coke's views regarding religious persecution, the separation of church and state, and the Church of England, which eventually led to his own religious persecution and the founding of Rhode Island.

The full complaint makes fascinating reading for fans of English legal history. GoLocalProv carries a lengthy story on the lawsuit.

Alabama Supreme Court Upholds State's Tuition and Scholarship Tax Credit Law

In Magee v. Boyd, (AL Sup. Ct., March 2, 2015), the Alabama Supreme Court upheld the constitutionality under the state constitution of Alabama's law creating a refundable income tax credit to parent of students in failing schools to be used to pay to transfer them to other public or private schools. It also upheld tax credits for contributions to scholarship organizations that grant opportunity scholarships to students in failing schools.  In a 145-page opinion, the majority rejected procedural challenges to the law's enactment.  It rejected challenges under Alabama's Blaine amendments, finding that tax credits do not amount to appropriations for purposes of the state constitution's limits on appropriation to schools not under state control (Sec. 73) or to sectarian or denominational schools (Sec. 263).  It also concluded that the law does not violate Sec. 3, the religion clauses of the state constitution.  Six justices joined the majority opinion. Two justices concurred in part, and one justice dissented. AP reported on the decision.

District Court Invalidates Nebraska Bans on Same-Sex Marriages

In Waters v. Ricketts, (D NE, March 2, 2015), a Nebraska federal district court issued a preliminary injunction, effective March 9, prohibiting enforcement of the state's laws that bar same-sex marriage and recognition of same-sex marriages performed elsewhere, saying:

Under existing precedent, Nebraska's same-sex marriage ban is at least deserving of heightened scrutiny because the challenged amendment proceeds "along suspect lines," as either gender-based or gender-stereotype-based discrimination.

The court's order implementing its decision requires state officials:

to treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.

ACLU issued a statement announcing the decision.  According to AP, Nebraska Attorney General Doug Peterson plans to ask the 8th Circuit Court of Appeals for an order barring county officials from issuing same-sex marriage licences while the district court opinion is appealed. 

6th Circuit En Banc Hears Arguments In Arab Festival Proselytization Case

Yesterday the U.S. 6th Circuit Court of Appeals, sitting en banc, heard oral arguments in Bible Believers vs Wayne County. (Audio of full oral arguments.)  In the case, a 3-judge panel last year, in a 2-1 decision, affirmed the district court's dismissal of civil rights claims by Christian evangelists who engaged in aggressive preaching at the 2012 Arab International Festival in Dearborn, Michigan. Police insisted that they leave when the crowd turned hostile. (See prior posting.) The Grosse Point Patch has more background on the case.

New York City Schools Will Close On Two Muslim Holidays

NBC News reports that yesterday New York City Mayor Bill de Blasio, fulfilling a campaign promise, announced that two Muslim holidays would be recognized on the city's school calendar.  Schools will be closed on Eid al-Adha and Eid al-Fitr.  It is estimated that 10% of the students in the New York City public schools are Muslim.  City schools are already closed on major Christian and Jewish holidays. (School year calendar.)  [Thanks to Scott Mange for the lead.]

Law Student Religious Liberty Writing Contest Announced

The D.C. Mid-Atlantic Chapter of the J. Reuben Clark Law Society has announced its 6th Annual "Founding Fathers Religious Liberty Writing Contest."  The contest is open to law students and recent law graduates who are in clerkship and similar positions. Deadline for submissions is Aug. 1

Court Applies Title VII Religious Institution Exemption

In Newbrough v. Bishop Heelan Catholic Schools, (ND IA, Feb. 23, 2015), an Iowa federal magistrate judge held that the provision in Section 702 of the 1964 Civil Right Act that exempts religious institutions from Title VII's religious discrimination provisions applies to the termination of the chief financial officer of the Sioux City Catholic schools in an administrative restructuring.  The school system replaced the CFO, a Lutheran, with a newly-hired Catholic employee to fill the downgraded position. The court held that the religious institution exemption applies even though the CFO's duties were not religious in nature.  The court refused to exercise supplemental jurisdiction over plaintiff's state law religious discrimination claim. The Sioux City Journal reports on the decision.

Alabama Supreme Court Orders Probate Judges To Stop Issuing Same-Sex Marriage Licenses

Yesterday, in a 134-page per curiam opinion, the Alabama Supreme Court by a 7-1 vote issued a writ of mandamus ordering Probate Court judges around the state to discontinue the issuance of marriage licenses to same-sex couples. In Ex parte State of Alabama ex rel. Alabama Policy Institute, (AL Sup. Ct., March 3, 2015), those probate judges not specifically named as relators in the mandamus action were joined as defendants and given 5 days to show why they should not be bound by the order. In the meantime they were temporarily enjoined from issuing marriage licences to same-sex couples. The court dealt at length with procedural issues and went on to reject in a lengthy argument the rationale in federal district court cases that have held Alabama's ban on same-sex marriages unconstitutional. Justice Main filed a brief concurring opinion. Justice Shaw dissented.  Chief Justice Roy Moore did not participate in the decision.  Liberty Counsel issued a press release announcing the decision. New York Times  and Reuters report on the court's action.

Dallas Sues Synagogue For Failing To Obtain Certificate of Occupancy

Last month, a Homeowners Association lost its attempt to enforce deed restrictions barring use of a north Dallas, Texas home by Congregation Toras Chaim, a group of 30 Orthodox Jewish families, for daily prayer services. (See prior posting.)  This week, however, the city of Dallas filed suit against the congregation claiming that it needs to obtain a certificate of occupancy to use the home for non-residential purposes. The complaint (full text) in City of Dallas v. Gothelf, (TX Dist. Ct., filed 3/2/2015), says that the congregation filed an incomplete application for a certificate last year.  It needs to comply with handicap accessibility, fire safety and parking regulations. The synagogue claims it is shielded from compliance by RLUIPA and the Texas Religious Freedom Restoration Act.  According to the Dallas Morning News, the synagogue says there is no way it can afford to make the changes the city has demanded.

Disability Discrimination Suit Dismissed Under Ecclesiastical Abstention Doctrine

In Beth Yeshua Hamashiach v. Adan, (TX App., March 3, 2015), a Texas state appeals court, invoking the ecclesiastical abstention doctrine, dismissed for lack of jurisdiction a lawsuit seeking damages and injunctive relief against a Messianic synagogue for discrimination on the basis of disability.  Plaintiff, Malaika Adan, was a synagogue member who is confined to a wheelchair.  She complained that a restroom in the Baptist Church building where the synagogue rented space was not ADA compliant. She sent a letter to the pastor of the Baptist Church, quoting scripture at length and threatening to sue.  The rabbi of the Messianic Congregation, along with some of its leaders, unhappy about plaintiff's threat to sue, wrote plaintiff, citing Biblical verses, and imposed a 6 week ban from the premises on her.  She sued alleging that she was denied admittance to the church building because of her disability. The court said:

The pleadings and relevant jurisdictional evidence demonstrate that this was a religious dispute between a congregant and one of its members. Although Adan initially complained to Pastor Jeter about the restroom, she unilaterally injected religious issues into a secular controversy.

Amish Beard-Cutting Attackers Resentenced After Reversal of Hate Crimes Convictions

Last August, the U.S. 6th Circuit Court of Appeals reversed the hate crimes convictions of 16 members of the Bergholz Amish community who had been charged in beard and hair-cutting attacks on other Amish men and women. The court found that jury instructions on motivation were erroneous. (See prior posting.)  As reported by AP, on Monday the judge who had tried the case resentenced the defendants on the remaining convictions-- primarily conspiracy to obstruct justice. The leader, Sam Mullett, Sr. had his sentence reduced from 15 years to 10 years and 9 months.  Other defendants had up to two years taken off their sentences so that they will serve either 3 and one-half or 5 years. Eight of the defendants have already completed their original sentences.

Following the resentencing, federal prosecutors notified the court that they will not retry defendants on the hate crimes offenses. Northeast Ohio Media Group reports on this development in an article that includes the full text of the notice filed with the court by the U.S. Attorneys Office.

Idaho State Senator Objects To Hindu Invocation

Hindu cleric Rajan Zed of Reno, Nevada is scheduled to open this morning's session of the Idaho state Senate with an invocation.  Zed has offered invocations in a number of state legislatures and the U.S. Senate.  The Spokane (WA)  Spokesman-Review, however, reports that Idaho state Senator Steve Vik is raising objections to invocations not in the Judeo-Christian tradition.  Speaking of Hindus, he said: "They have a caste system. They worship cows."

Wearing Hijab In Canadian Courtroom Stirs Controversy

Wearing of the hijab (Muslim head scarf) in the courtroom has become an issue of controversy in the Canadian province of Quebec.  CBC News reports that when Montreal area resident Rania El-Alloul appeared in court on Feb. 24 in an attempt to recover her auto which had been seized by the Quebec automobile insurance board, Judge Eliana Marengo refused to hear her testimony unless she would remove her hijab.  The judge's action stirred widespread criticism, and those sympathizing with El-Alloul even began on online crowdfunding effort to raise funds for a new car for her. While the effort has raised nearly $44,000, El-Alloul may not be able to take the funds or the car it will buy without losing her entitlement to welfare.  Meanwhile, another Montreal resident has filed a complaint about Judge Marengo's action with the Conseil de la magistrature du Québec (the Quebec Judicial Council) which has the authority to investigate and impose sanctions on provincial judges.

Supreme Court Denies California Prop 8 Backers Review of Contribution Disclosure Law

The U.S. Supreme Court today denied certiorari in ProtectMarriage.com v. Padilla, (Docket No. 14-434, cert. denied 3/2/2015) (Order List).  In the case, the 9th Circuit in a 2-1 decision (full text) rejected a challenge by backers of California's Proposition 8 to the state's campaign contribution disclosure requirements. Challengers had argued that contributors to the campaign against same-sex marriage had been harassed.

Recent Prisoner Free Exercise Cases-- Installment #2 For The Week

In Jack-Bey v. Tribley, 2015 U.S. Dist. LEXIS 23161 (WD MI, Feb. 26, 2015), a Michigan federal district court refused to dismiss a claim by an inmate who was a member of the Moorish Science Temple of America that the 1st Amendment protects his right to study religious materials in the prison library.

In Allen v. Virga, 2015 U.S. Dist. LEXIS 23585 (ED CA, Feb. 25, 2015), a California federal magistrate judge recommended that an inmate who is a follower of Yahweh (HOYY) be permitted to move ahead with his complaint that he was denied a kosher diet.

In Hoye v. Clarke, 2015 U.S. Dist. LEXIS 23775 (WD VA, Feb. 27, 2015) a Virginia federal magistrate judge recommended dismissing claims of an inmate described as a "practicing Traditional and Messianic Jew" who objected to policies that precluded those on the Common Fare meal plan for religious diets from getting extra food on special meal days, and objected to the lack of a Common Fare diabetic option.  Plaintiff claimed these policies violated the free exercise, due process and equal protection clauses.

In Grayson v. Goetting, 2015 U.S. Dist. LEXIS 23984 (SD IL, Feb. 27, 2015), an Illinois federal district court allowed an African Hebrew-Israelite inmate to proceed with his free exercise, RLUIPA and equal protection challenges to the requirement that he remove his dreadlocks (which requires cutting his hair) to periodically have his identification photo taken.

In Miles v. Guice, 2015 U.S. Dist. LEXIS 24014 (ED NC, Feb. 26, 2015), a North Carolina federal district court refused to dismiss a challenge by an inmate to prison officials' refusal to recognize Nations of Gods and Earths as a religion and their classification of it as a security threat group. The court allowed plaintiff to move ahead with his claim that restrictions on his ability to practice various aspects of NGE violates his free exercise, RLUIPA and 8th Amendment rights.

In Adams v. Woodall, 2015 U.S. Dist. LEXIS 24046 (MD TN, Feb. 26, 2015), a Tennessee federal magistrate judge recommended denial of a preliminary injunction in a suit by a Muslim inmate who sought to order religious items and Halal meals from an outside vendor other than the prison's approved vendor.

In Brown v. Adams, 2015 U.S. Dist. LEXIS 24170 (ED WA, Feb. 27, 2015), a Washington federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 24169, Feb. 3, 2015) and dismissed a complaint by an Orthodox Jewish inmate that he was not allowed to have his religious texts while he was housed in a 4-man cell. He subsequently received his texts and the policy was revised.

In Douglas v. Clarke, 2015 U.S. Dist. LEXIS 24184 (ED VA, Feb. 27, 2015), a Virginia federal district court dismissed an inmate's complaint that he is not allowed to possess prayer oil while in segregation.

In Oliver v. Harrison, 2015 U.S. Dist. LEXIS 24317 (ED NC, Feb. 26, 2015), a North Carolina federal district court dismissed complaints by an inmate who had most recently described himself as of the Orthodox Jewish faith that before he was transferred to a different facility he did not receive a kosher diet.

Military Judge Lifts Order Accommodating Religious Concern of GITMO Detainee

The Miami Herald reported yesterday that a military judge, Navy Capt. J.K. Waits, has lifted his prior restraining order that had barred women guards from being used at Guantanamo Bay to transfer former al Quaida commander Abd al Hadi al Iraqi to and from meetings with his lawyers. Hadi had objected on religious grounds to the physical contact with female guards that necessarily occurs during the transfers. However, female guards then filed complaints with the Defense Department's Office of Diversity Management and Equal Opportunity claiming that the orders amount to gender discrimination. (See prior posting.) While the Feb. 24 decision lifting the restraining order is still under seal for security review, lawyers who have seen it say it is not based on the Religious Freedom Restoration Act, but instead on a strict line of case law.  When released, the opinion will be available at the Office of Military Commissions website.

In response to the decision lifting the restraining order, al Hadi's lawyer issued a statement saying:

We respect the decision by the Commission, but believe that Judge Waits and JTF GTMO misunderstand how important Hadi al-Iraqi's religion is to him. Again, we are asking for a very simple accommodation so a devout Muslim, pending trial, can continue to practice his religion without restriction and being subjected to a violent force cell extraction before attending mandatory medical appointments, legal meetings, court sessions and all other essential visits.

Recent Articles of Interest

From SSRN:

• Laura R. Ford, Prerogative, Nationalized: The Social Formation of Intellectual Property, (February 23, 2015).
• Steven G. Calabresi & Justin R. Braga, The Jurisprudence of Justice Antonin Scalia: A Response to Professor Bruce Allen Murphy and Professor Justin Driver, (Northwestern Law & Econ Research Paper No. 15-05 (2015)).
• Steven Douglas Smith, Situating Ourselves in History, (Pepperdine Law Review, Vol. 41, 2014).
• Richard B. Collins, Too Strict?, (First Amendment Law Review, Forthcoming).
• Ruth Fletcher, Conscientious Objection and Harm Reduction in Europe, (Conscientious Objection and Abortion: A Global Perspective on the Colombian Experience (Women's Link Worldwide and O'Neill Institute for National and Global Health Law, 123-146, 2014)). 
• Edward A. Zelinsky, The Aftermath of Hobby Lobby: HSAs and HRAs as the Least Restrictive Means, (Rutgers Law Record, Vol. 42, 2014/15, pp. 109-25).
• David M. Shapiro, Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny, (Northwestern Public Law Research Paper No. 15-08 (21015)).
• William N. Eskridge, Original Meaning and Marriage Equality, (Houston Law Review, Vol. 52, 2015).

From SSRN: Religious Accommodation:

• Richard W. Garnett, Religious Accommodations And — And Among — Civil Rights: Separation, Toleration, and Accommodation, (Southern California Law Review, Vol. 88, 2015, Forthcoming).
• Marci A. Hamilton, The Case for Evidence-Based Free Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy, (Harvard Law & Policy Review, Vol. 9, 2015).
• Matthew Wright, Stuart N. Soroka, Jack Citrin & Richard Johnston, Multiculturalism and Muslim Accommodation: What Reaction Among the Mainstream?, (Paper presented at "Causes and Consequences of Immigration and Citizenship Policies" conference, Berlin, 2014).
• Andrew Koppelman, Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law, (Southern California Law Review, Forthcoming).

From SSRN: Religious Law:

• Michael A. Helfand, Introduction: Religious Law in the 21st Century, (Pepperdine Law Review, Vol. 41, No. 991, 2014).
• Timothy Lubin, Hinduism and Law, (Hinduism in India: Modern and Contemporary Movements, eds. Will Sweetman and Aditya Malik (Sage Publications, 2015)).
• Magomet Yandiev, Absence of Interbank Loan Market and Banking Short-Term Liquidity Management Mechanisms: The Most Pressing Problems of the Islamic Finance Model, (February 15, 2015).

From SmartCILP:

• Neville Cox, Blasphemy, Holocaust Denial and the Control of Profoundly Unacceptable Speech, [Abstract], 62 American Journal of Comparative Law 739-774 (2014).
• Marvin Lim, Just War and the Roman Catholic Life Ethic, 26 Florida Journal of International Law 151-196 (2014).
• Mark Tushnet, Liberals, Litigants, and the Disappearance of Consensus About the Religion Clauses. (Reviewing Steven D. Smith, The Rise and Decline of American Religious Freedom), 93 Texas Law Review 207-217 (2014).

IRS New Form For Small Non-Profit Applications Has Eliminated Backlog

BNA Daily Report for Executives [subscription required] reported on Feb. 27 that an IRS official recently told a conference that the IRS new streamlined Form 1023-EZ for small entities has been successful in getting rid of the backlog of 75,000 applications for tax exempt status under Section 501(c)(3). The IRS has approved 18,169 of the 20,123 applications for tax exempt status it has received in the last six months. (Churches and other houses of worship, and church associations, do not need to file in order to obtain exemptions.)

Recent Prisoner Free Exercise Cases

In Pfeil v. Lampert, (10th Cir., Feb. 20, 2015), the 10th Circuit upheld dismissal of an inmate's complaint that on one occasion a volunteer Catholic minister was not allowed to enter to provide services, and that a prison policy banning hardbound books led to confiscation of his religious books which he could not afford to replace or get with the large type font he needs in softbound form.

In Blair v. California Department of Corrections and Rehabilitation, 2015 U.S. Dist. LEXIS 20751 (ED CA, Feb. 20, 2015), a California federal magistrate judge dismissed (with leave to amend) a Jewish inmate's claim that his temporary placement with a Muslim cellmate violated his free exercise and RLUIPA rights.

In Harris v. Arpaio, 2015 U.S. Dist. LEXIS 21802 (D AZ, Feb. 23, 2015), an Arizona federal district court dismissed an inmate's complaint that his Bible was confiscated and not replaced and that his request for baptismal services, marriage services and weekly religious services was refused.

In Pevia v. Shearin, 2015 U.S. Dist. LEXIS 21805 (D MD, Feb. 24, 2015), a Maryland federal district court refused to dismiss a complaint by an inmate that Native American religious services were not regularly scheduled and that he was not permitted to participate or have the services broadcast to him when they did take place.

In Johnson v. Pritchard, 2015 U.S. Dist. LEXIS 22921 (MD TN, Feb. 24, 2015), a Tennessee federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 21879, Jan 29, 2015) and allowed plaintiff to proceed with his claims for equitable relief to end a prison policy that precludes indigent inmates from attending Muslim religious feasts when they cannot pay the cost from their personal inmate trust fund accounts.

In Shabazz v. Johnson, 2015 U.S. Dist. LEXIS 21995 (ED VA, Feb. 24, 2015), a Virginia federal district court ordered further briefing on a claim by a Nation of Islam inmate that he has not received a diet consistent with his religious beliefs, but dismissed his complaints of insufficient NOI religious services, not being able to wear bow ties to religious services and being unable to watch Farrakhan sermons on cable television.

In Hodges v. Brown, 2015 U.S. Dist. LEXIS 22199 (ED NC, Feb. 20, 2015), a North Carolina federal district court dismissed a complaint by an Orthodox Messianic Jewish inmate regarding the kosher diet policy and practices, but permitted him to move ahead with his complaint regarding outside volunteer requirement for leading congregate worship services.

In Rossi v. Fishcer, 2015 U.S. Dist. LEXIS 22348 (SD NY, Feb. 24, 2015), a New York federal district court permitted a Nyahbinghi Rastafarian inmate to proceed with claims regarding recognition of four holy days, scheduling services on the correct day and wearing of a turban.  It dismissed claims regarding family events, holy day menus, spiritual advisers, fundraising proceeds, and reporting of plaintiff's marijuana use.

In Sims v. Wegman, 2015 U.S. Dist. LEXIS 22765 (ED CA, Feb. 24, 2015), a California federal magistrate judge dismissed, with leave to amend, a Nation of Islam inmate's complaint that he was denied kosher meals.

In Baumgarten v. Howard County Department of Corrections, 2015 U.S. Dist. LEXIS 23112  (D MD, Feb. 25, 2015), a Maryland federal district court dismissed a Jewish inmate's claim that while he was at a detention center his kosher meal requests were inadequately accommodated.

Court Martial Conviction For Refusal To Remove Biblical Quotes From Desk Upheld

In United States v. Sterling, 2015 CCA LEXIS 65 (NMCCA, Feb. 26, 2015), the U.S. Navy-Marine Corps Court of Criminal Appeals upheld a court martial conviction of a marine corps member for disobeying a lawful order to remove signs containing Biblical verses that she had taped up around her desk.  According to the court;

appellant's duties included sitting at a desk and utilizing a computer to assist Marines experiencing issues with their Common Access Cards. The appellant printed three copies of the biblical quote "no weapon formed against me shall prosper" on paper in 28 point font or smaller. The appellant then cut the quotes to size and taped one along the top of the computer tower, one above the computer monitor on the desk, and one above the in-box. The appellant testified that she is a Christian and that she posted the quotation in three places to represent the Christian trinity.

The court rejected defendant's free exercise and RFRA defenses, holding:

the definition of a "religious exercise"[in RFRA]  requires the practice be "part of a system of religious belief." ...  Personal beliefs, grounded solely upon subjective ideas about religious practices, "will not suffice" because courts need some reference point to assess whether the practice is indeed religious.... For these reasons, we reject the appellant's invitation to define "religious exercise" as any action subjectively believed by the appellant to be "religious in nature.

Here, the appellant taped a biblical quotation in three places around her workstation, organized in a fashion to "represent the trinity." While her explanation at trial may invoke religion, there is no evidence that posting signs at her workstation was an "exercise" of that religion in the sense that such action was "part of a system of religious belief." 

Court Says Religiously-Affiliated Hospital's Plan Is Exempt From ERISA

Another federal district court has weighed in on whether retirement plans created and maintained by religiously-affiliated hospitals qualify for the "Church Plan" exemption from ERISA.  At issue is statutory language that is ambiguous as to whether a plan must have been created by a church itself in order to qualify for the exemption.  In Lann v. Trinity Health Corp., (D MD, Feb. 24, 2015), a Maryland federal district court resolved the issue in a brief written order referring to reasons the judge stated orally on the record in the case.  The court held that the plan qualifies for the exemption. BNA's Daily Report for Executives [subscription required] says that with this decision, district courts are split 3-3 on the issue. Several of the cases are on appeal.

Study Released On Religious Restrictions and Hostilities

The Pew Research Center on Thursday issued its annual report for 2013 on the extent to which governments around the world restrict religious minorities and the extent to which non-governmental actors engage in social hostillity toward religion.  The report titled Latest Trends in Religious Restrictions and Hostilities finds that:

the share of countries with high or very high levels of social hostilities involving religion dropped from 33% in 2012 to 27% in 2013, the most recent year for which data are available. These types of hostilities run the gamut from vandalism of religious property and desecration of sacred texts to violent assaults resulting in deaths and injuries.

By contrast, the share of countries with high or very high government restrictions on religion stayed roughly the same from 2012 to 2013. The share of countries in this category was 27% in 2013, compared with 29% in 2012. Government restrictions on religion ... [range] from registration requirements to discriminatory policies and outright bans on certain faiths....

As in previous years, Christians and Muslims – who together make up more than half of the global population – faced harassment in the largest number of countries. Christians were harassed, either by government or social groups, in 102 of the 198 countries included in the study (52%), while Muslims were harassed in 99 countries (50%).

In recent years, there has been a marked increase in the number of countries where Jews were harassed. In 2013, harassment of Jews, either by government or social groups, was found in 77 countries (39%)– a seven-year high. Jews are much more likely to be harassed by individuals or groups in society than by governments.

(See prior related posting.)

Secularist Blogger Hacked To Death By Islamists In Bangladesh

In Dhaka, Bangladesh on Thursday night, the Bangladeshi-American blogger Avijit Roy was hacked to death by machetes and meat cleavers in an attack by an Islamist group that objects to his secularist postings on science, religion and LGBT issues on his blog Mukto-Mona (Free-mind).  Roy's wife, Rafida Ahmed, was also attacked and lost a finger.  The Guardian reports that Roy, a Hindu and a strong voice against religious fanaticism, had been receiving threats for some time and that a Facebook posting warned that he would be killed once he arrived in Bangladesh from the United States. After the attack, a group identifying itself as Ansar Bangla 7 Tweeted: "Anti-Islamic blogger US-Bengali citizen Avijit Roy is assassinated in capital #Dhaka due to his crime against #Islam." Several hundred people joined a rally yesterday near the site of the attack carrying banners reading: "We want justice" and "Down with fundamentalism."

3 Senior Faculty Attack Notre Dame's Granting of Benefits To Same-Sex Couples

Three senior faculty members at the University of Notre Dame earlier this week published an interesting attack on the decision by Notre Dame University and some other Catholic institutions to grant same-sex couples who are legally married the same employee benefits available to married heterosexual couples.  The statement (full text) by law professors Gerard V. Bradley and John Finnis and political science professor Daniel Philpott, published on the blog site Public Discourse, says in part:

[W]hen a university’s administration, knowing that “same-sex marriages” are in a Catholic understanding not truly marriages at all, nonetheless gives without legal coercion many signs and solid tokens of approving such commitments to non-marital sex acts, everyone can readily infer that the university actually does not regard any kind of sex acts between adults as grave matter, provided that these acts are consensual and, perhaps, linked to some notion of commitment. This inference and its logic apply to the vast majority of its students whose inclinations are heterosexual, and whose temptations—enhanced by the perceived indifference of the university—are rather to fornication (and pornography and self-abuse) than to sodomy....

The baneful effects of this structure of sin will be difficult to contain. It will be reinforced, for instance, if and when such a university accepts that an open commitment to an unchristian kind of sexual relationship is little or no impediment to being appointed to holding high office and high academic posts in it....

[B]y extending marriage benefits to same-sex couples, a university would directly cooperate in, encourage, and promote the grave injustices committed by those of its employees who, deeming themselves (and being legally deemed) married, will—usually in circumstances utterly remote from emergency rescue of orphans—adopt children. Even worse, some couples may use third-party reproduction to create children with the intent to bring them up motherless (if the couple is male) or fatherless (if the couple is female) and in a domestic educational context of active approval of intrinsically immoral sex. No Christian institution should ever cooperate with such gratuitous wronging of children....

Finally, institutions that assimilate civil same-sex “marriage” into the category of true marriage will lose their credibility in the fight to defend religious freedom against the federal judiciary, powerful currents of influence, and coercive laws.

[Thanks to Mirror of Justice for the lead.]

South Korea's Constitutional Court Invalidates Criminal Adultery Law

By a vote of 7-2 yesterday, South Korea's Constitutional Court struck down the country's 1953 law criminalizing adultery.  The New York Times reports that an opinion joined by 5 of the Justices said that the law has often been misused to force a divorce or blackmail married women. Under the law, cases could be brought under the law only if a spouse brought a complaint, and prosecutors could not continue the case if a spouse chose to drop it. In four previous challenges to the law between 1990 and 2008, the Court had upheld it. Sungkyunkwan, a Confucianist organization, called yesterday's decision deplorable.

ISIS Destroys Ancient Museum and Library Collections In Iraq To Purge Non-Islamic Content

According to a report yesterday from the Daily Mail, in the northern Iraqi city of Mosul ISIS followers have wreaked widespread destruction at museums and libraries to rid them of all non-Islamic content.  Video recently posted on a Twitter account used by ISIS shows extremists using sledge hammers and power drills to destroy priceless ancient statues at the Nineveh Museum, including a winged-bull Assyrian protective deity from the 9th century BCE. On the video, one of the men involved says these were destroyed because they promote idolatry:

The Prophet ordered us to get rid of statues and relics, and his companions did the same when they conquered countries after him.

Meanwhile, it was also disclosed this week that terrorists have blown up the Mosul Public Library, with its collection of Iraqi newspapers for the past century and maps and books from the Ottoman Empire. This comes a month after terrorists loaded 2000 secular books from the library on trucks to be burned because the books supposedly promote infidelity and call for disobeying Allah. There has also been destruction at the archives of a Sunni Muslim library, the libraries of the Latin Church and Monastery of the Dominican Fathers and the Mosul Museum Library. ISIS has threatened the death penalty for anyone who tries to hide books or manuscrpts to save them from destruction-- a tactic that saved many items in the aftermath of the U.S.-led invasion of Iraq in 2003.

Teacher Forced Out For Facebook Posting On Religious Objections To School Billboard Can Sue

Knox v. Union Township Board of Education, (D NJ, Feb. 23, 2015), is a suit by a former tenured special education teacher at a public high school in New Jersey who was suspended after a posting comments on her personal Facebook page expressing her religious disapproval of a school billboard that promoted alternative homosexual lifestyles.  When the school board brought charges seeking to strip her of tenure, the teacher entered a settlement agreement under which she resigned and paid back the salary that she had received during her suspension.  However she reserved her right to sue for statutory and constitutional violations. In this opinion, the court permitted her to proceed with her state and federal constitutional claims of religious discrimination, infringement of free exercise and free speech rights, establishment clause violations and denial of due process. Her claims of racial discrimination and intentional infliction of emotional distress were dismissed.

Austrian Parliament Passes Controversial Amendments To Law On Islam

Austria's Parliament yesterday adopted controversial amendments to the country's 1912 Law on Islam.  As reported by AFP, the new law bans foreign financing of mosques and requires imams to be able to speak German. Its goal is to create an Islam with European character. However the law as adopted did not include a previously proposed requirement for the development of an official German version of the Qur'an. (See prior posting.) The law gives Muslims the right to consult Islamic chaplains on the staffs of hospitals, retirement homes, prisons and the armed forces. It also assures Muslims the right to Halal meals in those institutions and in schools, and permits Muslims to take off of work for Muslim holidays. The Islamic Religious Authority of Austria approved the bill, but other Islamic organizations criticized it as discriminatory. On the other hand, Austria's far-right Freedom Party denounced the law as insufficient.

In an interview with NPR, the Austrian Minister for Foreign Affairs further clarified the law's restrictions on foreign funding of mosques:

We have nothing against one time donations. And these are still allowed. But what we want to reduce is the control. If we have this kind of support, our communities do not have the opportunity to develop freely.

He also said:

[O]ur goal is to have our own Austrian imams. It is necessary for us to show young people that it's possible to be a believing Muslim and a proud Austrian at the same time.

Annual White House Easter Egg Roll Announced

The White House this week announced that the 137th annual White House Easter Egg Roll will be held on April 6, hosted by the President and Michelle Obama.  It is expected that 35,000 people will gather on the South Lawn of the White House for the event. The lottery for tickets ends today at noon.

Court Dismisses Religious and Speech Objections To Requirement That Witness Stand To Be Sworn In

In Pellegrino v. Meredith, (ED CA, Feb. 23, 2015), a California federal magistrate judge dismissed, with leave to amend, a suit for damages against a traffic court judge and the county by Anthony Pellegrino who, as defendant in a traffic case, was told that he must stand while being sworn in as a witness.  Pelligrino refused, telling the court: "I only rise before my Lord and Savior Jesus Christ."  At that point the bailiff escorted Pellegrino outside the courtroom for an hour. When Pellegrino returned he was escorted to the bench area and sworn in before he had a chance to sit down.

The court rejected Pellegrino's free exercise claim, saying that at most he suffered an "insubstantial inconvenience" for refusing to stand.  The court also rejected Pellegrino's claim that his refusal to stand was protected expressive conduct.

The opinion recounts numerous incidents in which Pellegrino harassed government officials, raising frivolous arguments, asking government officials to show him their oath of office, refusing to pay filing fees, and the like.  In dismissing Pellegrino's claims, the court said:

Given the context of the situation, it is clear from this Court’s reading of the complaint that Defendant Meredith viewed Plaintiff’s refusal to stand while taking the oath as another incident in a long line of immature, disrespectful and frivolous protests by Plaintiff throughout his court proceedings.

Transcript Available For SCOTUS Arguments In Abercrombie & Fitch

The full transcript of this morning's Supreme Court arguments in EEOC v. Abercrombie & Fitch Stores is now available from the Court's website. AP reports on the oral arguments in the Title VII religious accommodation case, saying that the Justices seemed to support prospective employee Samantha Elauf's position. At issue is the kind of notice that is needed to be given to an employer before its obligation to try to accommodate religious exercise is triggered.

SCOTUS Will Hear Oral Arguments Today In Abercrombie & Fitch Religious Accommodation Case

The U.S. Supreme Court this morning will hear oral arguments in EEOC v. Abercrombie & Fitch Stores, Inc. (Docket No. 14-86).  In the case,  the 10th Circuit held that there is a strict notice requirement before an employer is required under Title VII of the 1964 Civil Rights Act to accommodate religious beliefs. Merely wearing  hijab to an employment interview did not give notice that a job applicant wore it for religious purposes or needed religious accommodation because of its conflict with Abercrombie's clothing policy. (See prior posting.)  More than a dozen amicus briefs have been filed in the case. Links to all the briefs, as well as to a preview of the arguments, are available from SCOTUSblog.

European Court Says Bulgaria Violated Religious Rights of Muslims By Inadequate Response To Mosque Demonstration

The European Court of Human Rights in a Chamber Judgment yesterday held that Bulgarian authorites violated Muslim worshipers' right to practice their religion by the inadequate response to a demonstration in front of a mosque in the center of Sofia in 2011.  In the demonstration, leaders, members and supporters of the Bulgarian political party Ataka clashed with Muslim worshippers who had gathered for Friday prayer. In Karaahmed v. Bulgaria, (ECHR, Feb. 24, 2015), the court said:

the outcome of the police’s response that day was that a large number of demonstrators were able to stand within touching distance of Banya Bashi mosque, to shout insults at praying worshippers, to engage in threating and provocative gestures and actions, and ultimately to gain access to the mosque. They enjoyed a virtually unfettered right to protest at the mosque that day, while the applicant and the other worshippers had their prayers entirely disrupted. It is plain, therefore, the police’s actions were confined simply to limiting the violence which broke out that day and that no proper consideration was given to how to strike the appropriate balance in ensuring respect for the effective exercise of the rights of the demonstrators and the applicant and the other worshippers.

Novinite reports on the decision.

Settlement Agreed To In NYC Circumcision Regulation Challenge

The New York Observer reported yesterday that New York Mayor Bill DeBlasio's administration has reached a settlement agreement with the ultra-Orthodox Jewish community in a lawsuit (see prior posting) challenging the New York City Health Department's regulations requiring mohels to obtain written consent from parents before using the oral suction method (metzitzah b’peh) of performing a ritual circumcision. Under the settlement agreement reached after long negotiations with rabbinic authorities, the city will use local health care providers to educate the community about the risks of herpes infection in infants. Jewish leaders will help the city identify the mohel who performed the circumcision on any infant who becomes infected with HSV1.  If genetic testing shows the mohel was the source of the infection, the Jewish community will permanently remove him as a mohel, and he will be subject to financial penalties if he continues to perform circumcisions.  However the list of those removed will not be made public.  This arrangement will lead to a settlement of the pending litigation and repeal of the informed consent requirements.

Report Finds Increased Hostility To Religion In America

Earlier this month, Liberty Institute released the 2014 Edition of its publication Undeniable: The Survey of Hostility to Religion in America. It concludes that there has been a 133% increase in religious hostility attacks in the U.S.in the past three years.  The 393-page report surveys legal challenges in four areas: attacks on religious liberty in the public arena; attacks on religious liberty in the schoolhouse; attacks on religious liberty of churches and ministries; and attacks on religious liberty in the military.

Arkansas Law Barring Cities From Expanding LGBT Protections Becomes Law Without Governor's Signature

AP reports that yesterday, Arkansas Governor Asa Hutchinson allowed SB 202 to become law without his signature. The legislation bars local governments from adopting or enforcing anti-discrimination laws that protect classes not covered by the state civil rights law.  The bill is aimed at preventing cities from expanding their anti-discrimination laws to cover discrimination on the basis of sexual orientation.  The bill's sponsor, Sen. Bart Hester, said: "To think we could have different civil rights laws in every city is not realistic and not conducive to a good business environment."  The bill does not bar local governments from expanding non-discrimination policies applicable only to their own employees.

Settlement Requires Michigan City To Allow "Reason Station" Near "Prayer Sation" In City Hall

Yesterday, a federal district court approved a settlement in a suit brought by an atheist who was refused space for a table in the atrium of Warren, Michigan's city hall for a "reason station,"  even though the city had permitted a local pastor to operate a "prayer station" in the atrium since 2009. (See prior posting.) The court's order (full text) in Marshall v. City of Warren, (ED MI, Feb. 23, 2015) requires the city to allow the Reason Station to operate on terms no less favorable than those granted to the Prayer Station. The city must also pay attorneys' fees of $100,000 to the ACLU of Michigan. The ACLU issued a press release calling the settlement "a complete win for our side and for the First Amendment." The Detroit Free Press had additional background.

Suit Against Gym Alleges Religious Discrimination Against Muslim Athlete

A suit alleging religious discrimination in a place of public accommodation was brought in an Ohio federal district court yesterday against an LA Fitness facility in Cincinnati.  The complaint (full text) in Fall v. LA Fitness, (SD OH, filed 2/23/2015), filed by Mohamed Fall, a 28-year old former college basketball star and a practicing Muslim who regularly works out at LA Fitness, alleges that for over a year, after exercising, Fall "customarily retreats to an empty, obscure corner of the men's locker room, next to an empty coat rack, faces the wall and conducts Salat, or prayer, quietly to himself for approximately 5 to 10 minutes." On January 29, while in the middle of prayer, Fall, an immigrant from Senegal, was surrounded by three LA Fitness employees and told management had decided that he could no longer pray anywhere at the gym.  Fall claims he was singled out because he is a Muslim, saying that he has seen non-Muslims at the gym engage in religious prayer and related activities such as making the sign of the cross. WCPO News reports on the lawsuit.

Australian Court Says Polyamory Is Not "Sexual Orientation" Under Sex Discrimination Act

In Bunning v Centacare, (FCCA, Feb. 11, 2015), an Australian Federal Circuit Court judge dismissed a sexual orientation discrimination complaint filed against a Catholic social service agency by former employee Susan Bunning.  Bunning had worked most recently as the agency's Coordinator of Family Support, but was dismissed after it became known that she led a polyamorous lifestyle. She sued under the Sex Discrimination Act 1984.  The court held that plaintiff has no cause of action because polyamory-- the practice of engaging in multiple sexual relationships with the consent of all the people involved-- is sexual behavior, not sexual orientation. Financial Review reports on the decision.

Recent Articles of Interest

From SSRN:

• Pamela Foohey, When Faith Falls Short: Bankruptcy Decisions of Churches,(February 13, 2015).
• Laura Marie Winocur, Competing Visions of the Modern Secular State in Law and Policy, (February 12, 2015).
• Robert T. Miller, Experience Explained: Review of David Skeel's "True Paradox", (U Iowa Legal Studies Research Paper No. 15-02, Jan. 2015).
• Mattheew P. Cavedon, Mere Ultramontanism, (December 14, 2013).
• Mark Cammack, Adriaan Bedner & Stijn Van Huis, Democracy, Human Rights, and Islamic Family Law in Post-Soeharto Indonesia, (New Middle Eastern Studies, Forthcoming).
• Ronald Turner, Title VII and the Roberts Court's Worldview Supremacy, (65 Labor Law Journal 149 (Fall 2014)).
• Hamed Ghoddusi & Sajjad Khoshroo, Islamic Finance and the Energy Sector,(February 16, 2015).
• Ari Z. Bryen, Martyrdom, Rhetoric, and the Politics of Procedure, (Classical Antiquity, Vol. 33, Issue 2, pp. 243–280 (2014)).

From SmartCILP:

• Zachary R. Calo, Carhart Lecture Series. Christianity, Islam, and Secular Law, 39 Ohio Northern University Law Review 879-900 (2013).
• Michelle A. McKinley, Standing On Shaky Ground: Criminal Jurisdiction and Ecclesiastical Immunity In Seventeenth-Century Lima, 1600-1700, 4 UC Irvine Law Review 141-174 (2014).
• Lena Salaymeh, Every Law Tells A Story: Orthodox Divorce In Jewish and Islamic Legal Histories, 4 UC Irvine Law Review 19-63 (2014).
• Christopher Tomlins, Demonic Ambiguities: Enchantment and Disenchantment in Nat Turner's Virginia, 4 UC Irvine Law Review 175-202 (2014).

Will A Supreme Court Decision Legalizing Same-Sex Marriage Apply To Tribal Governments?

Today's New York Times carries an article titled Among the Navajos, a Renewed Debate About Gay Marriage.  The two largest Indian tribes-- the Navajo Nation and the Cherokee Nation-- ban same sex marriage, though at least ten smaller tribes have legalized same-sex unions.  The national debate on the issue is causing some Navajos to consider repealing a 2005 tribal law--  the Dine Marriage Act-- which prohibits same-sex unions on the Navajo reservation. The Times article quotes an expert as saying that even if the Supreme Court decides that bans on same-sex marriage are unconstitutional, this will not affect tribal bans. That conclusion is based on the principle that tribes were not signatories to the Constitution and are not bound by it. The Times article, however, fails to mention the Indian Civil Rights Act which does bind tribal governments.  25 USC Sec. 1302 provides in part:

No Indian tribe in exercising powers of self-government shall... deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law....

Thus the invalidation of same-sex marriage bans on either 14th Amendment equal protection of due process grounds would appear to demand a similar result under Section 1302.

Recent Prisoner Free Exercise Cases

In Bausman v. California Department of Corrections and Rehabilitation, 2015 U.S. Dist. LEXIS 20213 (ED CA, Feb. 18, 2015), a California federal magistrate judge allowed a Native American inmate to move ahead with his complaint under RLUIPA that a change in regulations prohibiting possession of certain religious artifacts integral to participation in daily Native American cultural, traditional, ceremonial, and spiritual life substantially burdened his religious exercise.

In Blair v. CDCR, 2015 U.S. Dist. LEXIS 20751 (ED CA, Feb. 20, 2015), a California federal magistrate judge dismissed a complaint of a Jewish inmate that his temporary placement with a cellmate who was Muslim violated his free exercise and RLUIPA rights.

Judge Reprimanded For Questioning Defendant Over Religious Head Covering

In In re Ladenburg, (WA Commn. on Judicial Conduct, Feb. 20, 2015), the Washington Commission on Judicial Conduct in a consent order reprimanded municipal court judge David Ladenburg for challenging a criminal defendant wearing a fedora in the courtroom for religious reasons. The facts, as stipulated by the parties, showed that the judge told the defendant who said the hat was worn as part of his Jewish belief that he must bring evidence supporting his decision to wear that particular kind of head covering.  The judge threatened otherwise to have it removed.  In defense of his actions, the judge said he was unfamiliar with wearing of a fedora instead of a yarmulke. In 2006, the same judge had been issued an admonishment by the Commission for requiring a Muslim woman wearing a headscarf for religious reasons to remove it or leave his court room. (See prior posting.) The Tacoma News Tribune reports on yesterday's Commission action.

Saudi Artist Sues Watch Company For Appropriating His Hajj Etching

Luxembourg's i24 News reports today that Saudi artist Ahmed Mater has filed suit in France's Grand Instance Court seeking $1.5 million in damages against the watch company, Omega.  Mater says that Omega used his photogravure "Magnetism (Photograuve) III" without his consent in an ad for the company's new Seamaster Aqua Terra watch.  Mater's etching-- intended to suggest pilgrims on Hajj moving around the Kaaba-- shows a black cubic magnet surrounded by neat steel filings.  Omega says its intent was to advertise the watch's anti-magnetic properties.  Mater's lawyers say Omega has led the public to believe that Mater is mocking religion.

In Second Speech On Terrorism, Obama Again Rejects Idea of War With Islam

For the second time this week (see prior posting), President Obama delivered a major speech (full text) on combating terrorism, with significant attention to the relationship of violent extremism and Islam.  Yesterday, addressing an international Summit on Countering Violent Extremism held at the State Department, the President said in part:

[W]e have to confront the warped ideologies espoused by terrorists like al Qaeda and ISIL, especially their attempt to use Islam to justify their violence.  I discussed this at length yesterday.  These terrorists are desperate for legitimacy.  And all of us have a responsibility to refute the notion that groups like ISIL somehow represent Islam, because that is a falsehood that embraces the terrorist narrative. 

At the same time, we must acknowledge that groups like al Qaeda and ISIL are deliberately targeting their propaganda to Muslim communities, particularly Muslim youth.  And Muslim communities, including scholars and clerics, therefore have a responsibility to push back, not just on twisted interpretations of Islam, but also on the lie that we are somehow engaged in a clash of civilizations; that America and the West are somehow at war with Islam or seek to suppress Muslims; or that we are the cause of every ill in the Middle East....

And finally, we have to ensure that our diverse societies truly welcome and respect people of all faiths and backgrounds, and leaders set the tone on this issue.

Groups like al Qaeda and ISIL peddle the lie that some of our countries are hostile to Muslims.  Meanwhile, we’ve also seen, most recently in Europe, a rise in inexcusable acts of anti-Semitism, or in some cases, anti-Muslim sentiment or anti-immigrant sentiment.  When people spew hatred towards others -- because of their faith or because they’re immigrants -- it feeds into terrorist narratives.  If entire communities feel they can never become a full part of the society in which they reside, it feeds a cycle of fear and resentment and a sense of injustice upon which extremists prey.  And we can’t allow cycles of suspicions to tear at the fabric of our countries....  

 Violent extremists and terrorists thrive when people of different religions or sects pull away from each other and are able to isolate each other and label them as “they” as opposed to “us;” something separate and apart.  So we need to build and bolster bridges of communication and trust....

I’d like to close by speaking very directly to a painful truth that’s part of the challenge that brings us here today.  In some of our countries, including the United States, Muslim communities are still small, relative to the entire population, and as a result, many people in our countries don’t always know personally of somebody who is Muslim.  So the image they get of Muslims or Islam is in the news.  And given the existing news cycle, that can give a very distorted impression.  A lot of the bad, like terrorists who claim to speak for Islam, that’s absorbed by the general population.  Not enough of the good -- the more than 1 billion people around the world who do represent Islam, and are doctors and lawyers and teachers, and neighbors and friends....

The world hears a lot about the terrorists who attacked Charlie Hebdo in Paris, but the world has to also remember the Paris police officer, a Muslim, who died trying to stop them.  The world knows about the attack on the Jews at the kosher supermarket in Paris; we need to recall the worker at that market, a Muslim, who hid Jewish customers and saved their lives.  And when he was asked why he did it, he said, “We are brothers.  It's not a question of Jews or Christians or Muslims.  We're all in the same boat, and we have to help each other to get out of this crisis.”

Obama Sends Ash Wednesday and Lunar New Year Greetings

This past Wednesday, President Obama took time to send holiday greetings to two faith groups.  First he issued a statement (full text) marking Ash Wednesday, saying in part:

Today, Michelle and I join our fellow Christians across the country and around the world in marking Ash Wednesday. Lent is a season of sacrifice and preparation, repentance and renewal. Through reflection on the teachings that guide us, we reaffirm our commitment to God and one another -- and we remember those who are suffering, including those persecuted for their faith.

On the same day, the White House Initiative on Asian Americans and Pacific Islanders released a video message from the President (video and full transcript) sending Lunar New Year greetings, saying in part:

Michelle and I send our warmest wishes to everyone celebrating the Lunar New Year here in America and all around the world. I’ll always remember the parades, fireworks, and gatherings that surrounded the Lunar New Year when I was growing up in Hawaii. And now as President, this celebration is a perfect reminder of the many cultures and faiths that make us who we are as Americans.

The President used his message to again urge immigration reform.

Suit Challenges County Resolution Recognizing Christian Pregnancy Services Organization

The ACLU of Northern California earlier this week announced the filing of a state court lawsuit against the county of Calaveras, California on behalf of several residents and taxpayers who object to a resolution passed by the county Board of Supervisors.  The Resolution (full text) as passed in July 2014 recognizes the local Door of Hope pregnancy center "for serving the women of Calaveras County and helping to save the lives of our most vulnerable children." The complaint (full text) in Lavagetto v. County of Calaveras, (CA Super. Ct., filed 2/13/2015) objects to language in the resolution recognizing Door of Hope, among other things, for "enlighten[ing] and strengthen[ing]the lives of women and young women in Calaveras County by inviting them to test and see for themselves the many blessings that can come from living the teachings of Christ." Plaintiffs contend that the resolution favors one religon over another in violation of provisions in the California constitution which bar the establishment of religion and the expenditure of public funds to aid any religious sect.

D.C. Rabbi Pleads Guilty To Voyeurism Charges

In Washington, D.C. Superior Court yesterday, Rabbi Barry Freundel pleaded guilty to 52 counts of voyeurism.  AP reports that the rabbi, charged with videotaping women in the changing room of the National Capital Mikvah, admitted as part of the plea agreement that his secret recording of women began in 2009, sometimes utilizing three cameras at the same time.  A sentencing hearing is scheduled for May 15.

In Kidnapping Trial, Rabbi Argues Torture To Extract Divorce Document From Husband Complies With Jewish Law

Yesterday in federal district court in Trenton, New Jersey the trial of respected Orthodox Rabbi Mendel Epstein, along with his son and two other rabbis, on conspiracy and kidnapping charges began.  As reported by NJ Advance Media, the defendants are charged with arranging the kidnapping and beating of recalcitrant Orthodox Jewish husbands to force them to give their wives a get-- a Jewish divorce document. Wives or their families paid tens of thousands of dollars for the document. Defense attorneys argued that the rabbis were merely following Jewish law. In his opening statement, Epstein's attorney argued that the Jewish community views a husband who refuses to grant his wife a get as being consumed by evil. He continued, that under Jewish law "force and torture can be used until evil leaves the husband's body and he does what he's supposed to do." (See prior related posting.)

Texas Probate Court Holds Same-Sex Marriage Ban Unconstitutional

While the U.S. 5th Circuit Court of Appeals considers whether to hold Texas' same-sex marriage bans unconstitutional (see prior posting), Jurist reports that a Travis County, Texas Probate Court judge in Estate of Powell, (Travis Co. Prob. Ct., Feb. 17, 2015), rather summarily held that Texas Family Code Sec. 2.401 limiting common law marriages to  heterosexual couples is unconstitutional, as are Sec. 6.204(b) and Texas Constitution Art. I, Sec. 32 that invalidate same-sex marriages.  The decision dismissed challenges by other relatives of the deceased, Stella Marie Powell, to a claim by her same-sex partner that she is entitled to Powell's estate.

Obama Closes Summit On Violent Extremism By Speaking About Muslims

President Obama yesterday delivered closing remarks (full text) at the White House Summit on Countering Violent Extremism.  He spoke at length on the relationship of the battle against Al Queda and ISIL to the broader Muslim community, saying in part:

Al Qaeda and ISIL and groups like it are desperate for legitimacy.  They try to portray themselves as religious leaders -- holy warriors in defense of Islam.  That’s why ISIL presumes to declare itself the “Islamic State.”  And they propagate the notion that America -- and the West, generally -- is at war with Islam.  That’s how they recruit.  That’s how they try to radicalize young people.  We must never accept the premise that they put forward, because it is a lie.  Nor should we grant these terrorists the religious legitimacy that they seek.  They are not religious leaders -- they’re terrorists.  (Applause.)  And we are not at war with Islam.  We are at war with people who have perverted Islam.  (Applause.)  

Now, just as those of us outside Muslim communities need to reject the terrorist narrative that the West and Islam are in conflict, or modern life and Islam are in conflict, I also believe that Muslim communities have a responsibility as well.  Al Qaeda and ISIL do draw, selectively, from the Islamic texts.  They do depend upon the misperception around the world that they speak in some fashion for people of the Muslim faith, that Islam is somehow inherently violent, that there is some sort of clash of civilizations. ,,,

[I]f we are going to effectively isolate terrorists, if we're going to address the challenge of their efforts to recruit our young people, if we're going to lift up the voices of tolerance and pluralism within the Muslim community, then we've got to acknowledge that their job is made harder by a broader narrative that does exist in many Muslim communities around the world that suggests the West is at odds with Islam in some fashion....

... Muslim leaders need to do more to discredit the notion that our nations are determined to suppress Islam, that there’s an inherent clash in civilizations.  Everybody has to speak up very clearly that no matter what the grievance, violence against innocents doesn't defend Islam or Muslims, it damages Islam and Muslims.

Pediatrician, "After Much Prayer," Refuses To Treat Lesbian Couple's Infant

The Detroit Free Press yesterday reported on a new arena for religious objections to providing services to same-sex couples.  A suburban Detroit lesbian couple were told by a pediatrician that they had chosen that "after much prayer" she decided that she could not provide medical services to their newborn.  The news was given to the couple by a different staff physician as the mothers sat in the exam room waiting for their newborn's first checkup. The two mothers had previously met with Dr. Venesa Roi and chosen her particularly because of her holistic approach to treating children.  In a subsequent letter to the couple, Roi told them she was sorry that her decision hurt them, but she decided she could not develop the proper personal doctor-patient relationship with them.  She added that they were always welcome in the office to be seen by another physician on staff.  Michigan's Elliott-Larsen Civil Rights Act does not ban discrimination on the basis of sexual orientation, though the ethics rules of the AMA and American Academy of Pediatrics do.