New Supreme Court Decisions Change Free Exercise Conclusions In Indian Case

In Northern Arapaho Tribe v. Ashe, (D WY, March 12, 2015) a Wyoming federal district court held that the U.S. Supreme Court's recent decisions in Hobby Lobby and Holt v. Hobbs require the district court to depart from an earlier decision in a dispute between two Indian tribes on the taking of bald eagles for religious ceremonial purposes. In a November 2012 decision (see prior posting) the district court rejected a challenge under RFRA by the Northern Arapaho Tribe to a limitation in a Fish and Wildlife Service permit that allowed them to take two bald eagles for religious purposes in Wyoming, but not on the Wind River Reservation that they share with the Eastern Shoshone tribe. The Eastern Shoshones oppose the taking of bald eagles on the reservation because they consider the eagles sacred.

Now, in a decision on a First Amendment challenge to this limitation, the court, finding that the permit decision is not a neutral law of general applicability, applied the compelling interesst- least restrictive alternative test to invalidate the limitation on the Northern Arapaho's rights. The court said in part:

The real dispute in this case is the question of whether Defendants' decision to restrict the Northern Arapaho Tribe from taking up to two bald eagles per year within the Wind River Reservation is justified by a compelling governmental interest in fostering and protecting the Eastern Shoshone Tribe's culture and religion....

Following the Supreme Court's recent guidance in Hobby Lobby and Holt, when determining whether Defendants' decision is justified by a compelling interest, the Court must look beyond the broadly formulated interest and ... ask whether Defendants' decision to restrict the Northern Arapaho Tribe from taking up to two bald eagles per year within the Wind River Reservation is justified by a compelling governmental interest in fostering and protecting the Eastern Shoshone Tribe's culture and religion.

The Court concludes that it is not. The asserted harm to the culture and religion of the Eastern Shoshone Tribe if the Northern Arapaho Tribe were to take up to two bald eagles per year within the Wind River Reservation is miniscule. There is no doubt that the federal government has "general interests in preserving Native American culture and religion in-and-of themselves and in fulfilling trust obligations to Native Americans."... But the argument that taking up to two bald eagles per year within the Wind River Reservation would seriously compromise the federal government's general interest in protecting and fostering the Eastern Shoshone Tribe's culture and religion is unavailing. See Holt, 135 S.Ct. at 863.....

AP reports on the decision.

Recent Prisoner Free Exercise Cases

In Abernathy v. Strada, 2015 U.S. Dist. LEXIS 28041 (ED NY, March 6, 2015), a New York federal district court dismissed, primarily for failure to exhaust administrative remedies, a complaint by a former Native American inmate that he was refused a transfer to a correctional facility in which he could have access to a sweat lodge, tobacco for pipe ceremonies, musical instruments and religious literature.

In Rountree v. Clarke, 2015 U.S. Dist. LEXIS 28511 (WD VA, March 9, 2015), a Virginia federal district court dismissed an inmate's claim that religious books sent to her were improperly confiscated, but allowed her to move ahead with her claim for injunctive relief growing out of her complaint that she has been prohibited from standing on her prayer rug during count procedures as required by her Buddhist faith.

In Smith v. Cruzen, 2015 U.S. Dist. LEXIS 28604 (ND C, Feb. 24, 2015), a California federal district court permitted a Muslim inmate to proceed with his complaint that a correctional officer stopped Muslims from engaging in previously-approved group prayer.  A second pro se plaintiff who had filed jointly was dismissed without prejudice, allowing him if he wishes to file a separate action.

In Harris v. Gipson, 2015 U.S. Dist. LEXIS 28609 (ED CA, March 6, 2015), a California federal magistrate judge dismissed a Muslim inmate's complaint that the prison's Religious Meat Alternative Program offers halal meat for diner, but only a vegetarian diet for breakfast and lunch.

In Williams v. DeJesus, 2015 U.S. Dist. LEXIS 29164 (ED VA, March 9, 2015), a Virginia federal district court upheld a prison's decision to ban an inmate from possessing The Satanic Bible.

In Hailes v. Free, 2015 U.S. Dist. LEXIS 29409 (SD OH, March 10, 2015), an Ohio federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 76127, June 3, 2014) and dismissed a Seventh Day Adventist inmate's complaint that he was ordered to report for snow duty even though he had religious accommodation papers excusing him.  When he refused, he was placed in segregation.

In Hayles v. Taylor, 2015 U.S. Dist. LEXIS 29558 (MD GA, March 11, 2015) a Georgia federal magistrate judge dismissed without prejudice an inmate's conclusory allegation that while in disciplinary segregation he was denied access to religious services.

In Carmichael v. Aguilar, 2015 U.S. Dist. LEXIS 29990 (ED CA, March 11, 2015), a California federal magistrate judge dismissed a Muslim inmate's complaint over delays in implementing a prison halal diet.

Amicus Brief Targets Scalia and Thomas In Linking Same-Sex Marriage and Campaign Finance Equality

Dozens of amicus briefs have been filed in Obergefell v. Hodges and its companion cases-- the same-sex marriage cases that are set for oral argument before the U.S. Supreme Court on April 28. (Links to all briefs from SCOTUS blog). One of the most interesting (full text) is the brief of the Liberty Education Forum (a non-profit organization with ties to the Log Cabin Republicans), filed March 6, which focuses on the special treatment that contributions by married couples receive under state campaign finance laws. For example, each spouse can make campaign contributions up to the individual limit, even though only one of them brings income into the household.  The brief argues:

Respondents’ same-sex marriage prohibitions, when viewed together with their campaign finance laws, result in similarly situated couples having unequal rights to engage in the political process through political contributions. A state’s differential treatment with regard to core First Amendment rights violates the Fourteenth Amendment.

In a press release, Liberty Education Forum says that the brief is

targeted specifically at Justices Antonin Scalia and Clarence Thomas.... No two Justices on the Supreme Court have been more vocal about their opposition to curtailments of the First Amendment that exist because of restrictions on campaign contributions than Justices Scalia and Thomas.

BNA Daily Report for Executives (subscription required) reports on the brief.

Role of Rabbis In Israel Army Ceremonies Is In Dispute

Times of Israel reported yesterday on a controversy within the Israeli army over the role of rabbis at the swearing-in ceremony for new recruits.  Currently the ceremony, held at the Western Wall, features the unit commanders, the military rabbi and the rabbi of the unit.  However, the IDF's chief education officer Avner Paz-Tzuk has written the Manpower Directorate saying that a number of soldiers-- presumably secular ones-- have expressed “resentment” over “the centrality of military rabbis” in the ceremony.  Paz-Tzuk recommended that a commander, rather than a rabbi, read portions of the Bible at the swearing-in ceremony.  Defense Minister Moshe Ya’alon disagrees with the recommendation that reflects long-standing tensions between the Education Corps and the IDF rabbinate over educational roles in the military.

Germany's Constitutional Court Invalidates Blanket Ban On Teachers' Wearing Hijabs

Germany's Federal Constitutional Court today invalidated a blanket ban on Muslim teachers wearing the hijab (head scarf) while teaching.  Here is Deutsche Welle's summary of the decision in a suit brought by two teachers:

State authorities had decided that the teachers were violating the law, which in North Rhine-Westphalia forbids any religious symbols or actions that are considered a threat to harmonious co-existence at schools. One of the teachers had been dismissed from her job, while the other received a written warning.

The high court ... has now decided that any such symbol or action must pose a "concrete danger" to be forbidden under the law, saying that the ban was an intrusion on the teachers' self-identity.  The ruling means, however, that headscarves could theoretically still be banned in certain individual cases where such a "concrete" danger is considered to exist. This could occur, for example, if a Muslim teacher wearing a headscarf were to cause frequent altercations among pupils...

The ruling on Friday also overturned another clause in North Rhine-Westphalian law that excepted manifestations "of Christian and Western educational and cultural values or traditions" at schools from the otherwise complete ban on blatant demonstrations of religious affiliation.

The court decided that this exception constituted a privileging of Christian symbols over those of other religions, which would go against the ban on discrimination on religious grounds that is enshrined in the German constitution.

[Thanks to Tom Rutledge and Claudia Haupt for the lead.]

Navy May Remove Christian Chaplain For Inapproriate Counseling On Sexuality

Military Times reported Wednesday on the Navy's threat to remove Pentecostal chaplain Lt. Cmdr. Wesley Modder from the service because of inappropriate counseling he offered to sailors on issues of sexuality. After a number of sailors filed equal opportunity complaints against Modder, on Feb. 17 he was issued a "detachment for cause" letter.  His commanders charge that Modder is intolerant and unable to function in a diverse and pluralistic environment. Assigned to the Nuclear Power Training Command in South Carolina, Modder had criticized female sailors for pre-marital sex and told students that homosexuality is wrong. When told of complaints against him, Modder responded that he will not follow Navy policy that conflicts with his religious beliefs. Modder has been temporarily reassigned, while it is determined whether a board of inquiry to officially separate him from the Navy will be convened.  He has less than a year to serve in order to qualify for 20-year retirement benefits.

Philadelphia Transit System Must Accept Anti-Muslim Ad

In American Freedom Defense Initiative ("AFDI") v. Southeastern Pennsylvania Transportation Authority, (ED PA, March 11, 2015), a Pennsylvania federal district court granted a preliminary injunction requiring Philadelphia's transit system to accept a controversial anti-Muslim ad on its buses.  AFDI sought to purchase space for an ad that reads in part: "Islamic Jew-Hatred: It’s in the Quran." The ad pictures Adolph Hitler meeting with an Arab leader.  SEPTA had rejected the ad under its policy to prohibit: "Advertising that tends to disparage or ridicule any person or group of persons on the basis of race, religious belief, age, sex, alienage, national origin, sickness or disability." The court held, however, that this is an unconstitutional content-based restriction on speech in a designated public forum. It added:

[I]t is clear that the anti-disparagement standard promulgated by SEPTA was a principled attempt to limit hurtful, disparaging advertisements. While certainly laudable, such aspirations do not, unfortunately, cure First Amendment violations.

AP reports on the decision.

9th Circuit: Anti-Injunction Act Bars Suit Seeking New IRS Procedures For Religious Objectors

In Boardman v. Commissioner of Internal Revenue, (9th Cir., March 12, 2015), the U.S. 9th Circuit Court of Appeals held that the Anti-Injunction Act requires dismissal of a suit seeking to prevent the Intenal Revenue Service from using expedited procedures to resolve frivolous assertions of religious objections to paying income taxes.  Plaintiff had asked for an injunction ordering the IRS to adopt "procedures for processing disputes, claims, collections and litigation adverse to taxpayers who refuse to pay taxes because of conscience or religion that are respectful, efficient, transparent and minimally burdensome and that lead to Tax Court determinations upon taxpayer request."

Britain's Equality Commission Reports On Religion In the Workplace and Service Delivery

Yesterday Britain's Equality and Human Rights Commission released a report on its Consultation launched last year seeking evidence on religious discrimination and accommodation in Britain. The 218-page report, titled Religion or Belief in the Workplace and Service Delivery, reports on information received from nearly 2500 individuals and organizations. Here is an excerpt from the Commission's summary of key findings:

Some employees or service users stated that they had experienced no or few negative issues in their workplace or in receiving a service which they attributed to the view of employers or service providers that religion or belief was a private matter and should not be discussed in the workplace or the service.

Some employees and students stated that they had encountered hostile and unwelcoming environments.... The issues raised concerned the recruitment process, working conditions, including the wearing of religious clothing or symbols, promotion and progression, and time off work for religious holidays and holy days. Some reported that particular beliefs were mocked or dismissed in the workplace or classroom, or criticised unwelcome 'preaching' or proselytising, or the expression of hurtful or derogatory remarks aimed at particular groups....

Many participants were concerned about the right balance between the freedom to express religious views and the right of others to be free from discrimination or harassment. Specific issues raised included conscientious objection in relation to marriage of same sex couples and how to protect employees from harassment and discrimination by staff, customers or service users with a religion. There was a marked divergence of opinion about when it was desirable and appropriate to discuss religious beliefs with service users during the delivery of a service.

The Commission's press release on the report emphasized some of the concerns expressed by respondents. The report is discussed further at Law & Religion UK blog.

NLRB Asserts Jurisdiction Over Faculty Election At Jesuit College

In Seattle University v. Service Employees International Union, (NLRB Reg. Dir., March 3, 2015), an NLRB Regional Director Supplemental Decision, the Regional Director applied the NLRB's new standard  for religious colleges to hold that the NLRB has jurisdiction over a faculty union election at Seattle University. The Director held that while the University holds itself out as a Jesuit Catholic institution, it does not hold faculty members out as performing a religious function.

First Lady Hosts Nowruz Reception

Yesterday, First Lady Michelle Obama hosted a reception in the East Room of the White House to mark Nowruz.  The holiday, with roots in Zoroastrianism, celebrates the start of the new year in the Persian calendar. In her remarks (full text), Mrs. Obama said in part:

I think it’s so fitting that we’re holding this celebration here today because one of my favorite things about the White House is how it is truly the People’s House –- a house that reflects the diversity of culture and traditions that make us who we are as a country.  And Nowruz is one of those traditions.

For more than 3,000 years, families and communities in the Middle East, Asia, and all around the world, including here in the United States, have celebrated this holiday to mark the renewal of the earth in springtime....

The GW Hatchet reports in more detail on the reception.

Alabama Supreme Court Subjects Remaining Probate Judge To Its Order Banning Issuance of Same-Sex Marriage Licenses

On Tuesday the Alabama Supreme Court followed up its March 3 decision that ordered all Probate Court judges around the state to discontinue the issuance of marriage licenses to same-sex couples. (See prior posting.)  In that earlier decision, Mobile County Probate Judge Don Davis asked to be excluded as a respondent on the ground that he was subject to a conflicting federal court order in Strawser v. Strange. (See prior posting.)  In Ex parte State of Alabama ex. rel. Alabama Policy Institute, (AL Sup. Ct., March 10, 2015), in a 6-1 decision, the Alabama Supreme Court concluded that Davis is not subject to a conflicting order because the federal court had only granted injunctive relief requiring him to issue marriage licenses to the four couples who were plaintiffs in the Strawser case. Those license have now already been issued. The Supreme Court thus added Davis as a respondent who is bound by its March 3 order. AL.com reports on the decision.

Fired Employee Claims HIs Religious Objections To Direct Pay Deposit Should Have Been Accommodated

According to Northwest Ohio Media Group, an employment discrimination lawsuit was filed last week in an Ohio federal district court by a man who has a history of filing religious discrimination lawsuits against large companies.  Plaintiff Lee Yeager says that his Christian fundamentalist beliefs prohibit him from having a bank account because he believes banks engage in Biblically prohibited usury. Yeager was terminated from the internship program at FirstEnergy Generation Corp. after he refused to agree to have his pay directly deposited into a bank account.  The complaint (full text) in Yeager v. FirstEnergy Generation Corp., (ND OH, filed 3/3/2015) contends that the company could have reasonably accommodated plaintiff's religious beliefs without undue hardship. In January the Ohio Civil Rights Commission ruled in Yeager's favor on the direct deposit claim, but the company is appealing the ruling.

Suit Charges Religious Discirmination In Cancellation of Hasidic Jews' Voter Registration

A class action lawsuit was filed yesterday in a New York federal district court by a group of Hasidic Jews against the Sullivan County Board of Elections that oversees voting in the small Village of Bloomingburg, New York.  According to Newsweek, in January the Board of Elections sent notices to 184 of the Village's 285 registered voters to show cause why the Board should not cancel their voter registrations. More than 160 of the voters receiving the notices are Hasidim.  Last month the Board announced that it would move ahead to cancel registrations of 156 of these voters-- comprising virtually every Hasidic Jewish resident of the Village.  The suit alleges that the voters were singled out only because of their religion.  A lawsuit filed last year charges the Village more generally with acting together with a neighboring town to keep more Hasidic Jews from moving into the area. (See prior posting.)

Failed Messiah blog says that the Village has good cause to cancel the voter registrations:

The suit is backed by Shalom Lamm, the Modern Orthodox developer [of a Bloomingburg housing project] who ... deceived (and, some say, bribed) his way past naive locals to get the original go-aheads for the project, which was always meant to be a 396-unit high density Satmar hasidic village but camouflaged as a low density 125-home golf course vacation and retirement community....

The hasidim who were disqualified from voting almost all claimed one of Lamm's private homes in the village as their residence, with more than a dozen adults showing the same single family home as their "official" residence. The property, however, showed no sign of regular habitation....

Challenge To Oklahoma 10 Commandments Monument Dismissed On Standing Grounds

An Oklahoma federal district court yesterday dismissed an Establishment Clause challenge to the Ten Commandments Monument located on the grounds of the Oklahoma State Capitol.  In American Atheists, Inc. v. Thompson, (WD OK, March 10, 2015), the court held that the individual plaintiff in the case lacks standing because she saw the Monument only once before filing suit, and then only because she went looking for it -- apparently in order to create standing to sue. The standing of American Atheists, Inc. depends on the standing of the individual plaintiff who was a member. Reacting to the decision, Oklahoma state Attorney General Scott Pruitt said: "The historical relevance of the Ten Commandments and the role it played in the founding of our nation cannot be disputed. I commend Judge Cauthron’s decision to rule in the state’s favor." AP reports on the decision.

Sheriff Tells Registered Sex Offenders To Attend Church At County Jail

In Graham County, North Carolina, the sheriff last month sent a letter (full text) to the 20 registered sex offenders in his county telling them that a North Carolina law barring offenders from being within 300 feet of premises where minors are supervised means that they may not attend church. The letter continues:

This is an effort to protect the citizens and children of the community.... That is why I am letting you know that if you want to go to a church service you are welcome to come to the Graham Co. Jail on Sunday's to attend church services.

Reporting yesterday, WCNC News  says that Sheriff Danny Millsaps now concedes that his wording may not have been totally correct, but he stands by his interpretation of the law.

7th Circuit: Milwaukee Archdiocese Cannot Protect Cemetery Trust Funds In Bankruptcy

In Listecki v. Official Committee of Unsecured Creditors, (7th Cir., March 9, 2015), the U.S. 7th Circuit Court of Appeals ruled that $55 million held by the Archdiocese of Milwaukee in a perpetual care trust fund for maintaining Catholic cemeteries is potentially available in bankruptcy to satisfy claims of clergy sex abuse victims.  The district court had held that the Archdiocese's free exercise rights under RFRA and the 1st Amendment would be infringed if the trust funds were made available to claimants. (See prior posting.)  The 7th Circuit held, however, that RFRA does not apply unless the government is a party to the suit, and that a creditors' committee in bankruptcy does not act "under color of law" as a governmental instrumentality.  It rejected the Archdiocese's 1st Amendment free exercise assertion, finding that the Bankruptcy Code's fraudulent transfer provisions are neutral and generally applicable. It further held that the Bankruptcy Code reflects a compelling governmental interest in the protection of creditors. AP reports on reactions to the decision.

Orthodox Jewish School Loses RLUIPA Zoning Challenge

In Joan Dachs Bais Yaakov Elementary School v. City of Evanston, (IL App., March 6, 2015), an Illinois appellate court rejected a RLUIPA challenge brought by an Orthodox Jewish elementary school after Evanston City Council refused zoning modifications that would allow the construction of a school on property in an industrial zone that plaintiff had purchased.  Rejecting the school's reliance on RLUIPA's equal terms provision, the court said:

Unlike its nonreligious comparators, the removal of the ... property from the property tax rolls would deprive Evanston of hundreds of thousands of dollars annually in property tax revenue at a time when approximately 40% of its land is already off the tax rolls. The generation of tax revenues is a legitimate concern of land-use regulation.... and, thus, renders JDBY, which is not subject to property taxes, dissimilar to its nonreligious comparators who are subject to such taxes.

The court also upheld a trial court finding that RLUIPA's nondiscrimination provisions had not been violated.  RLUIPA Defense blog has more on the decision.

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.