Defamation Suit Between Ukrainian Orthodox Church Factions Dismissed

In Nykoriak v. Bilinski, (MI App., March 17, 2015), a Michigan appeals court dismissed a suit that apparently grew out of the rivalry in a Michigan parish between the Ukrainian Orthodox Church controlled by Moscow, and the Ukrainian Orthodox Church-Kyiv Patriarchate that was created to be independent of Moscow. [See prior posting for background]. The suit was brought by Bishop Paisiy and a deacon who apparently decided to embrace the Moscow Patriarchate.  They sued the Kyiv Patriarchate in the United States and Canada and its leaders.  Bishop Paisiy asserted that the defendants

released a press release on March 23, 2013, which falsely alleged that plaintiff Bishop Paisiy resigned as bishop; he transferred to the Moscow Patriarchate; he could no longer serve as bishop; ... and that ... St. Andrew Church [in  Hamtramck, Michigan] was placed under the direction of the [Kyiv] Vicariate. Plaintiffs also alleged that on March 24, 2013, ... defendants arrived at St. Andrew and behaved in an unruly manner, used profanity, interrupted services, took pictures of plaintiffs, called them, "The Devil, Criminal Thief, and other inappropriate, immoral and unlawful terms," and then distributed the [Kyiv] Vicariate's press release to the congregation.

The court held first that defendants' alleged conduct did not rise to the level of intentional infliction of emotional distress. As to the defamation claim, the heckling in which plaintiffs were called devil and criminal could not reasonably be understood a stating actual facts.  The remaining defamation claims, the court held, are barred by the ecclesiastical abstention doctrine:

In order to adjudicate plaintiffs’ claims, a court would have to engage in an impermissible excursion into their religious doctrine pertaining to ordination, the religious authority needed for succession of their church leaders, and the organization and form of their church government.

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

In Hall v. Martin, 2015 U.S. Dist. LEXIS 29585 (WD MI, March 11, 2015), a Michigan federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 30572, Feb. 18, 2015) and denied summary judgment to a Messianic Jewish inmate who was suing because he was denied a strict vegetarian diet.

In Haynes v. Hedgpeth, 2015 U.S. Dist. LEXIS 30673 (ND CA, March 12, 2015), a California federal district court refused to dismiss some of the claims by a Muslim inmate complaining that he was denied access to group Jumu'ah prayer. The court referred the case for settlement proceedings.

In Chaparro v. Ducart, 2015 U.S. Dist. LEXIS 30912 (ND CA, March 9, 2015), a California federal district court permitted a Jehovah's Witness inmate to proceed with his complaint that under prison policy he was not permitted to attend religious services for 30 days because he failed to attend a service that he had been authorized to attend.

In Fluker v. Davis, 2015 U.S. Dist. LEXIS 31140 (SD MS, March 13, 2015), a Mississippi federal magistrate judge dismissed a Muslim inmate's complaint that while in restrictive custody he could not attend Jumu'ah services outside of his unit.

In Williams v. Miller, 2015 U.S. Dist. LEXIS 31296 (WD OK, March 12, 2015), and Oklahoma federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 30419, Jan. 27, 2015) and dismissed a Muslim inmate's complaint that he lacked access to a Qur'an during Ramadan and that prison officials failed to remove from Ramadan participation inmates that failed to honor the Ramadan fast.

Suit Over Mismanagement of Maryland Church Dismissed

A Maryland federal district court has dismissed a lawsuit growing out of a longstanding dispute over control and operation of the Landover County, Maryland-based Jericho Baptist Church Ministries.  Most of plaintiff's claims were brought as a derivative suit alleging mismanagement and breach of fiduciary duty that caused congregational membership to drop from 15,000 to 30. The suit also alleges that defendants hired themselves at high salaries to operate the church.  In Franklin v. Jackson, (D MD, March 13, 2015), the court held that the derivative claims should be dismissed because plaintiffs failed to make demand on the board to take corrective action before filing the suit in the name of the corporate entity.  The sole non-derivative claim-- an asserted vested right to vote for trustees-- was dismissed on the merits.

9th Circuit Hears Oral Arguments In Tribe's Attempt To Protect Medicine Lake Highlands

On March 12, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full oral arguments) in Pit River Tribe v. Bureau of Land Management, (Case No.13-16961).  Appellants' brief in the case asserts:

This case may well decide the fate of the Medicine Lake Highlands, a place of deep religious significance and spiritual renewal for countless generations of Native Americans. This remote forested landscape is tucked into the far northeastern corner of California just south of Lava Beds National Monument....

Among the issues raised on appeal is whether tribal members' spiritual, environmental, recreational, and economic interests in protecting the Medicine Lake Highlands give plaintiffs standing to assert claims under the Geothermal Steam Act. Counter Punch has more on the arguments and the background of the case.

5th Circuit Affirms School's Rejection of Jesus Tattooed Jumbotron Ad

In a brief opinion in Little Pencil, L.L.C. v. Lubbock Independent School District, (5th Cir., March 13, 2015), the U.S. 5th Circuit Court of Appeals affirmed a Texas federal district court's dismissal (see prior posting) of free speech and free exercise claims by an organization that unsuccessfully sought to display a religious ad on a high  school football field jumbotron. The ad depicted a tattooed Jesus and a website URL, and was part of a marketing concept using a new way to share the Bible's teachings.  KAMC News reports on the decision.

Suit Challenges School System's Refusal To Give Teachers Good Friday Off

In Cranston, Rhode Island, this year for the first time the school committee eliminated Yom Kippur, Rosh Hashanah and Good Friday as school holidays.  Instead, it negotiated a collective bargaining agreement that allows teachers to take up to two days off each school year if they are required to attend religious services during the school day.  AP reports that on Monday the union filed suit because the school system has denied requests from some 200 teachers to take Good Friday off, even though they allowed teachers who requested it to take Rosh Hashanah off last fall. School Superintendent Judith Lundsten  says that the Good Friday requests are not covered by the collective bargaining agreement because Good Friday does not require attendance at religious services during school hours.  According to the Cranston Patch, the suit claims that the discriminatory denial of religious leave here is a breach of the collective bargaining agreement and a violation of the state Religious Freedom Restoration Act.  [Thanks to Tom Rutledge for the lead.]

Burmese Court Gives 30 Month Sentences To Bar Owner and Manager For Buddha Facebook Ad

BBC News reported yesterday that a court in Myanmar has found the manager of the upscale VGastro Bar in Yangon (a New Zealander), along with the bar's owner and a colleague (both Burmese), guilty of intentionally plotting to insult religious belief by uploading to Facebook an ad that depicted a psychedelic mock-up of the Buddha wearing DJ headphones.  The ad promoted a cheap drinks night. The bar owner claimed the posting was the responsibility of the bar manager. The three men have been in jail since they were denied bail last December. (See prior posting.)  Each was now sentenced to two-and-one-half years in prison, apparently 6 months longer than the prescribed maximum sentence under Myanmar Penal Code Sec. 295A. [Thanks to Scott Mange for the lead.]

In Latest Installment, Alabama Federal District Court Refuses To Stay Same-Sex Marriage Order

In the latest episode of dueling orders, the Alabama federal district court in Strawser v. Strange. (SD AL, March 16, 2015), has denied a motion by Probate Judge Don Davis to stay its preliminary injunction finding Alabama's laws banning same-sex marriage unconstitutional. Davis argued that he has been placed in a potential conflict between the district court's injunction and orders of the Alabama Supreme Court. (See prior posting.) The district court said:

Judge Davis states that he complied with this court’s preliminary injunction order and that all of the current plaintiffs in this case have received marriage licenses. Judge Davis points to rulings by the Alabama Supreme Court ordering Alabama Probate Judges not to issue marriage licenses to same-sex couples. However, Davis has not shown how this court’s preliminary injunction results in irreparable harm to him.

Reuters reports on the decision.

Brazilian Court Affirms Right of Adventist To Close His Service Station For Sabbath

Adventist Review reported yesterday that a court in Brazil has issued an injunction upholding the right of a Seventh Day Adventist to keep his service station closed from sunset Friday to sunset Saturday, despite a rule promulgated by the Brazilian oil industry regulator ANP that gas stations must be open Monday through Saturday for 14 hours per day. João Francisco do Nascimento began his gas station business in the city of Lagarto some six months before ANP adopted the rule he is contesting.

Ex-Scientologists Must Submit Fraud Claims To Internal Arbitration

A Florida federal district court last Friday ruled that two former members of the Church of Scientology who are suing for return of over $400,000 in donations and deposits for services they made to the Church are bound by the arbitration clause in some 40 Enrollment Applications they signed.  In Garcia v. Church of Scientology Flag Service Organization, Inc., (MD FL, March 13, 2015), plaintiffs claimed they were fraudulently induced into contributing substantial sums and that they paid some $69,000 in deposits toward services that were never provided. (See prior posting.) The court held that neutral principles of Florida law can be applied to determine the enforceability of the arbitration clause without impermissibly deciding religious doctrine.

The court rejected plaintiffs' claim that the arbitration clauses that relegated plaintiffs' to the Church's internal arbitration procedures are procedurally unconscionable. It held that even though the Church did not have detailed arbitration rules, the procedures in the Enrollment Applications are minimally adequate. It also concluded that the clauses are broad enough to cover all disputes, not just those related to the Enrollment Applications.

Finally the court held that the First Amendment precludes it from considering plaintiffs' claim that they cannot receive a fair hearing because they have been declared "suppressive" by the Church, and Scientologists in good standing are prohibited by Church doctrine from communicating with suppressive individuals. The court said:

As compelling as Plaintiffs' argument might otherwise be, the First Amendment prohibits consideration of this contention, since it necessarily would require an analysis and interpretation of Scientology doctrine. That would constitute a prohibited intrusion into religious doctrine, discipline, faith, and ecclesiastical rule, custom or law by the court....

Tampa Bay Times and The Underground Bunker report on the decision.

Arizona Says Judges Cannot Refuse To Perform Same-Sex Marriages If They Perform Others

The Arizona Supreme Court Judicial Ethics Advisory Committee has issued Revised Advisory Opinion 15-01 (March 9, 2015), Judicial Obligation To Perform Same-Sex Marriages. It provides in part that:

a judge who chooses to perform marriages may not discriminate between marriages based on the judge’s opposition to the concept of same-sex marriage.

Rule 2.3(B) of the Arizona Code of Judicial Conduct provides that a judge shall not, "in the performance of judicial duties," manifest bias or prejudice based upon sexual orientation....

Refusing to perform same-sex marriages, while agreeing to perform opposite sex marriages, also violates Rule 2.2 of the Code which provides that "[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially."

...  The JEAC concludes that a judge may choose for various reasons not to conduct any marriages at all because performing marriages is a discretionary, not mandatory, function. A judge may also choose to conduct marriages only for friends and relatives to the exclusion of all others. Such a choice would not run afoul of Rule 2.3(B) because it is not based on sexual orientation. Of course, a judge who performs marriages only for friends and relatives would violate Rule 2.3(B) if the judge refuses to perform marriages for same sex friends and relatives.

AP reports on reactions to the ruling.

Israeli Court Tells Ultra-Orthodox Paper To Publish Ad By Party Running Women Candidates- UPDATE- Order Reversed

In Israel on Friday, a district court in the city of Lod ordered Yated Ne'eman, the largest haredi (ultra-Orthodox)  newspaper to publish at least one election ad by U’bezchutan,  a political party seeking votes of haredi women.  Jerusalem Post reports that a number of haredi media outlets have rejected ads from  U’bezchutan, the only haredi party that has women candidates on its list. Publication of print ads in the haredi community is particularly important because many ultra-Orthodox women do not have access to the Internet. The court rejected the argument of the newspaper that the ad would offend the feelings of the paper's readers. The newspaper however has appealed the ruling, so the issue may not be finally decided before tomorrow's election.

UPDATE: On Sunday night, Israel's Supreme Court reversed the district court's judgment. (Report from Yeshiva World).

NYC's de Blasio Proposes Compromise On Religious Instruction In Pre-K Programs

AP reported yesterday that in New York City, Mayor Bill de Blasio plans to expand the participation of Jewish, Christian and Muslim schools in his free pre-kindergarten program for 4-year olds by permitting schools to offer religious instruction and prayer during mid-day breaks. This proposal is particularly aimed at increasing the participation of Orthodox Jewish schools in the program. The New York Civil Liberties Union says this is an "end-run" around church-state restrictions.  Meanwhile, this arrangement may still be a problem for many Jewish schools who see the required secular 6 hour and 20 minute day as too long to leave time for additional religious instruction.  The city is proposing to allow schools to remain open 6 days per week, and also on federal holidays such as Christmas, so students can get 31 hours and 40 minutes of secular instruction per week. But a spokesman for Jewish schools says this compromise is still unworkable.

Recent Articles and Book of Interest

From SSRN:

• Daniel Hay, Baptizing O’Brien: Towards Intermediate Protection of Religiously Motivated Expressive Conduct, (Vanderbilt Law Review, Vol. 68, No. 1, 2015).
• Alycia Michelle Wilson, Witches and Guns: The Intersection between Wicca and the Second Amendment, (February 4, 2015).
• Michael Schearer, God, Inc.: Hobby Lobby and Religious Freedom, (January 15, 2015).
• Aaron R. Petty, Accommodating 'Religion', (Tennessee Law Review, Forthcoming).
• Mohammad Fadel, Religious Law, Family Law and Arbitration: Shari'a and Halakha in America, (Chicago-Kent Law Review, Vol. 90, No. 1, 2015).
• Marie Ashe, Hosanna-Tabor, the Ministerial Exemption, and Losses of Equality: Constitutional Law and Religious Privilege in the US, (2 Oxford Journal of Law and Religion (2015)).
• Adam Lamparello, Why Chief Justice Roy Moore and the Alabama Supreme Court Just Made the Case for Same-Sex Marriage, (March 13, 2015).
• Andrew Koppelman & Ilya Somin, Amicus Brief in Obergefell v. Hodges, (Northwestern Public Law Research Paper No. 15-12). 

From SSRN (Non-U.S. Law):

• Roberta Rosenthal Kwall, Living Gardens, Living Art, and Living Tradition, (5 IP Theory Journal 73 (2015)).
• Mark Walters, Succession to the Throne and the Architecture of the Constitution of Canada, (Queen's University Legal Research Paper No. 2015-001 (2014)).
• Lorenzo Zucca, A Secular Manifesto for Europe, (March 5, 2015).
• Anuradha Chadha, A Case for Reservation in Favour of Religious Minorities,(March 6, 2015).
• Mariano Croce, Secularization, Legal Pluralism, and the Question of Relationship-Recognition Regimes, (The European Legacy 20(2) (2015): 151–165).
• Marie Ashe & Anissa Helie, Realities of Religio-Legalism: Religious Courts and Women's Rights in Canada, the United Kingdom, and the United States, (20 U.Cal.-Davis J. International Law & Policy 139 (Spring 2014)).
• Muhammad Munir, Mechanisms for Child Protection with Focus on Child Custody: Islamic Law and Case Studies of Pakistan and Jordan, (March 8, 2015).
• Frank S. Ravitch, The Japanese Prime Minister's Visits to the Yasukuni Shrine Analyzed Under Articles 20 and 89 of the Japanese Constitution, (Michigan State University College of Law Journal of International Law, Vol. 22, No. 3, 2014).
• Tomas Berkmanas, Natural Law and Political Ontology: A Historico-Philosophical Outline of a Major Human Transformation, (Baltic Journal of Law & Politics 7:2 (2014): 119-151).

From SmartCILP:

• Moamen Gouda & Dawood I. Ahmed, Measuring Constitutional Islamization: the Islamic Constitutions Index, 38 Hastings International & Comparative Law Review 1-74 (2015).
• Sonja R. West, First Amendment Neighbors, 66 Alabama Law Review 357-374 (2014).

Recent Book:

• Carol Weisbrod, Kites and the Sabbath: Legal Transplants and Pluralism in Hawaii, (Vanderplas Publishing, Oct. 2014).

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.)