ADL Releases 2014 Audit of Anti-Semitic Incidents

Earlier this week, the ADL released its 2014 Audit of Anti-Semitic Incidents in the United States. It found that the total number of incidents rose by 21% last year. According to the Report:

In 2014, anti-Semitic incidents were reported in a total of 38 states and the District of Columbia.  Those incidents are categorized in the ADL Audit as follows: Assaults: 36 incidents in 2014, compared with 31 in 2013; Vandalism: 363 incidents in 2014, compared with 315 in 2013; Harassment, threats and events: 513 incidents in 2014, compared with 405 in 2013.

Placing those numbers in perspective, however, the Report said:

Despite the increase in incidents, the total number of anti-Semitic acts still represents one of the lowest totals of anti-Semitic acts reported by ADL since it started keeping records in 1979.  Still, the Audit has also identified new trends in anti-Semitic incidents, including the phenomenon of hacking attacks on community and synagogue websites by overseas hackers, which multiplied in 2014.

Magazine Interviews ADF Head

Yesterday's World Magazine carries an interview with Alan Sears, president and general counsel for Alliance Defending Freedom, a leading conservative Christian legal advocacy group. Among other things, Sears discusses his recruitment of ADF volunteer lawyers and use of the Internet to reach out to donors.

Arkansas Legislature Passes Ten Commandments Monument Bill

The Arkansas legislature on Wednesday gave final passage to SB 939, The Ten Commandments Monument Display Act (full text) which directs the secretary of state to arrange for private groups to place a Ten Commandments monument on the State Capitol grounds. The bill has been sent to Governor Asa Hutchinson for his signature.

The bill begins with a series of findings emphasizing the importance of the Ten Commandments as a foundation of the U.S. and Arkansas legal systems. One of the findings reads:

The Ten Commandments represent a philosophy of government held by many of the founders of this nation and by many Arkansans and other Americans today, that God has ordained civil government and has delegated limited authority to civil government, that God has limited the authority of civil government, and that God has endowed people with certain unalienable rights, including life, liberty, and the pursuit of happiness.

The bill also sets out the specific text of the Ten Commandments that is to appear on the monument. The bill authorizes the Attorney General to defend against any legal challenge to the monument, or to request Liberty Legal Institute to prepare and present a defense.  Northwest Arkansas Democrate Gazette reports on the legislature's action.

Citizens Suit Challenges City's Removal of Cross From Dunes Area

A group of Grand Haven, Michigan residents filed suit on Wednesday in state court seeking to force the city to rescind a resolution it adopted in January to remove a 48-foot tall cross from Dewey Hill-- a critical dune. The complaint (full text) in Citizens of Grand Haven v. City of Grand Haven, (MI Cir. Ct., filed 4/1/2015), contends that the city's action violates the free speech and equal protection clauses of the Michigan Constitution.

According to a Nov. 2014 MLive article:

The cross first was erected on Dewey Hill in December 1964 and now only is raised 10 times a year with sponsorship from Grand Haven's First Reformed Church for Worship on the Waterfront. 

During the Grand Haven Coast Guard Festival, the cross is converted to an anchor.

The most recent series of events was triggered by a letter from Americans United which, under the public forum status of Dewey Hill, asked to put up a series of displays marking Festivus, promoting LBGT pride and marriage equality, promoting atheist rights, and promoting reproductive choice.

This led city council in January to pass a resolution to limit access to Dewey Hill and convert the cross into an anchor. (Jan. 6, 2015 MLive article).

The lawsuit filed this week contends:

Defendant's actions in singling out the Dewey Hill Cross, the target of the anti-religious group, and keeping the Coast Guard Anchor, the non-religious part of the monument, constitutes an action regulating speech in a traditional public free speech forum and discrimination on the sole basis of religion, in violation of the Michigan Constitution and Civil Rights Act.

The Grand Haven Tribune has more on the lawsuit.

Hasidic Jewish Property Owners State Claim Against City For Discriminatory Decision To Condemn Buildings

In Shkedi v. City of Scranton, (MD PA, April 1, 2015),  a Pennsylvania federal district court rejected a motion by the city of Scranton and its housing officials to dismiss a civil rights suit filed against them.  Plaintiffs who are the trustees of two trusts that own apartment buildings allege that the city's decision to condemn their buildings for code violations was motivated in part by the fact that defendants are practicing Hasidic Jews.  In concluding that plaintiffs had adequately stated a substantive due process claim, the court said that if defendants' action was motivated by plaintiffs' religion and ethnicity, this would amount to "conscience-shocking behavior." The court also concluded that plaintiffs had stated procedural due process, equal protection and retaliation claims.

Arkansas Quickly Enacts Narrower Version of RFRA Than Originally Passed

Heeding Governor Asa Hutchinson's request (see prior posting), the Arkansas state legislature today gave final passage to a narrower version of the Religious Freedom Restoration Act than the one it had passed earlier this week.  Senate Bill 975 (full text) now more closely mirrors the federal RFRA and is limited to claims or defenses against the government.  The ability to use the law in suits involving private parties was removed. The new version also eliminates a number of the broad definitional sections in the earlier bill. The law specifically provides that it is to be interpreted consistent with the federal RFRA and case law under it. As reported by USA Today,  Governor Hutchinson signed the bill  into law 30 minutes after the House completed passage of it.

Indiana Enacts Anti-Discrimination Fix To Its Controversial RFRA

Acting with lightning speed, the Indiana General Assembly today used a pending bill on an unrelated matter as the vehicle to enact a so-called "fix" to the state's recently enacted and controversial Religious Freedom Restoration Act. (See prior posting.) Governor Pence immediately signed the measure (signing statement).  The new law adds language to RFRA that provides it may not be used as a justification for discrimination.  Senate Act No. 50 (full text) provides in part:

This chapter does not:

(1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service;

(2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service....

The law excludes from its anti-discrimination provisions any tax-exempt church or other nonprofit religious organization, including an affiliated school, as well as any member of the clergy when engaged in a religious or affiliated educational function.

Since Indiana does not have statewide legislation barring LGBT discrimination, the practical effect of the new amendments would appear to be primarily on local anti-discrimination laws, including one enacted by Indianapolis.  As reported by CNN and Huffington Post, neither side was satisfied with the fix. LGBT groups want full repeal of RFRA and the addition of sexual orientation and gender identity as protected classes under Indiana's civil rights law.  Social conservatives want protection for Christian businesses that refuse to provide goods and services to same-sex weddings.

Presidential Candidate Ted Cruz Praises Indiana RFRA, Says SCOTUS Ruling Upholding Marriage Equality Would Be Illegitimate

Sen. Ted Cruz, the only formally announced candidate so far for the 2016 Presidential race, spoke at Morningside College in Sioux City, Iowa yesterday, focusing on religious liberty and same-sex marriage. According to the Dallas Morning News, Cruz told his audience: "Religious liberty is not some fringe view. It is the basis of this country,"  He praised the recent action of the Indiana legislature in enacting its controversial Religious Freedom Restoration Act, saying:

We’re seeing in the news right now a lot of noise because the state of Indiana bravely stood up and passed a law defending religious liberty.

Criticizing Democrats and gay-rights activists, he added:

Because of their partisan desire to mandate gay marriage everywhere in this country, they also want to persecute anyone who has a good faith religious belief that marriage is a holy sacrament, the union of one man and one woman and ordained as a covenant by God.

Expressing concern over what the Supreme Court might rule this June in the same-sex marriage cases before it, he told his audience:

The first thing and I think the most important thing every one of us can do, is pray. Lift up in prayer.

Cruz said that if the Court legalizes same-sex marriage, he will urge Congress to pass legislation stripping courts of jurisdiction over the issue. He said that a ruling by the Court legalizing same-sex marriage would be "fundamentally illegitimate."  Cruz favors a Constitutional amendment that would leave the issue to the states.

Arkansas Governor Tells Legislature To Revise RFRA Bill Sent To Him

Arkansas Governor Asa Hutchinson yesterday, facing pressure from businesses in the state, asked the state legislature to recall from his desk the Religious Freedom Restoration Act that it passed on Tuesday (see prior posting) and amend it or pass a revised version of it.  AP reports that the state's largest employer, Wal-Mart, asked for the governor to veto the bill as did the governor's own son.  The legislature must act quickly since the version of the bill already formally sent to the governor becomes law automatically in five days if he does not veto it.  By last night, the state Senate passed a revised version that apparently limits the bill's use to actions in which the government is a party. The House of Representatives is expected to vote on the revised version today.

German Catholic Church Threatens To Sue Famous Footballer Over Church Taxes

Catholic Herald reported this week that the German Catholic Church is threatening to take famous Italian footballer Luca Toni to court over unpaid German church taxes.  The Church claims that Toni failed to pay the Kirchensteuer (church tax) while playing for Bayern Munich from 2007 to 2010.  The Church claims that Toni owes 1.5 million Euros in back taxes plus 200,000 Euros in interest.  A proposed settlement that would have had his team paying 700,000 Euros toward the arrearages was rejected by the team.

A Backgrounder On RFRA In Indiana and Arkansas

For those who may be interested in a general backgrounder on the Indiana and Arkansas RFRAs, I just published a piece in the Washington Post titled 10 things you need to know to really understand RFRA in Indiana and Arkansas.

Court Says Sun Worshipping Atheism Is Not A "Religion"

In Copple v. California Department of Corrections and Rehabilitation, (CA App., March 24, 2015), a California appeals court affirmed a trial court decision holding that Sun Worshipping Atheism is not a "religion" for purposes of California's Fair Employment and Housing Act.  Plaintiff Marshel Copple who had been hired as a correctional officer claimed that the California Department of Corrections and Rehabilitation’s requirement that he work overtime violated a tenet of his belief system that he sleep at least eight hours per day.  He sued for religious discrimination and harassment, failure to accommodate religious practices, retaliation based on his religion, and constructive discharge for his religious practices. The court held that Sun Worshipping Atheism, which Copple created and of which he is the only member does not address fundamental and ultimate questions. Instead it merely deals with living a healthy lifestyle. Raw Story last week reported on the decision.

4th Circuit Vacates Trial Court's Abstention In South Carolina Episcopal Diocese Trademark Litigation

In vonRosenberg v. Lawrence, (4th Cir., March 31, 2015), the U.S. 4th Circuit Court of Appeals vacated a federal district court's decision that declined to exercise jurisdiction over a trademark infringement case growing out of the ongoing controversy between a large break-away portion of the Episcopal Diocese of South Carolina and the smaller number of parishes that remain loyal to The Episcopal Church.  The district court held that the trademark dispute is part of a larger dispute over ownership of the Diocese's property which is being litigated in state court and concluded that it is "judicially impractical to retain jurisdiction over a fragmented claim that has been separated from the larger controversy." (See prior posting.)  The 4th Circuit held that the district court had applied precedents that apply to abstention when a plaintiff is seeking only declaratory relief.  Instead, where as here the plaintiff seeks an injuction as well as a declaratory judgment, the district court should have applied precedent that allows abstention only if "exceptional circumstances" justify the surrender of federal jurisdiction. The 4th Circuit remanded to case for the district court to determine whether exceptional circumstances are present. [Thanks to Will Esser via Religionlaw for the lead.]

Arkansas Legislature Passes RFRA Law That Is Broader Than Indiana's

The Arkansas General Assembly today gave final passage to HB 1228, the Arkansas Religious Freedom Restoration Act (full text) and sent it to Gov. Asa Hutchinson for his signature.  The bill's passage comes as growing controversy surrounds a religious freedom bill that became law in Indiana last week. (See prior posting.)  While a number of national media are describing the Arkansas law as similar to Indiana's (Huffington Post, Slate), a close examination of the Arkansas bill reveals that in a number of ways is is significantly broader than the Indiana law.  Here are some examples:

The definitional section in the Arkansas bill defines a "person" protected by the Act as including a corporation. Arkansas, however, does not include the language in Indiana's law that limits coverage of business entities to those where the protected beliefs are held by individuals who have control and substantial ownership of the entity.

The Arkansas law requires that in order to justify a substantial burden, the state must show that it has a compelling interest "in this particular instance."  That language does not appear in the Indiana law.

The Arkansas law defines "compelling governmental interest" to mean "a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion."

The Arkansas law permits a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, to assert the violation or impending violation as a "claim or defense" even when the state is not a party to the proceeding.  The Indiana law only allows assertion of a RFRA violation against a private party as a "defense."  That is, unlike Indiana, it appears that the Arkansas law would permit a plaintiff to recover damages against a private party for a violation of religious rights by the government.  In that regard, the Arkansas bill provides that it does not create a right of action by an employee against a private employer.  Unlike Indiana, it does not similarly exclude an action by an applicant for employment or a former employee.

According to the Arkansas Democrat-Gazette, Gov. Hutcheson has in the past repeatedly said he would sign the legislation. However some business and political leaders have called for Hutchinson to veto the bill.

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

In Epps v. Grannis, (9th Cir., March 27, 2015), the 9th Circuit upheld the district court's dismissal of a Muslim inmate's complaints regarding lack of a kosher diet, the prison's package policy, lack of a Muslim chaplain, failure to allow him to worship in a group setting following a prison riot in 2008; failure to deliver his Ramadan package in 2008; and confiscation of his religious books in 2010, which were returned in 2012.

In Williams v. GEO Group, 2015 U.S. Dist. LEXIS 37094 (MD GA, March 25, 2015), a Georgia federal magistrate judge recommended permitting a Rastafarian inmate to proceed with his free exercise and RLUIPA complaints that he was required to shave in violation of his Nazerite vow.

In Altman v. Palmer, 2015 U.S. Dist. LEXIS 37555 (ND IA, March 25, 2015), an Iowa federal district court rejected a claim by a civilly committed sex offender that his free exercise rights were infringed when he was not permitted to travel to attend the church in the town in which his family resided.

In Spigelman v. Samuels, 2015 U.S. Dist. LEXIS 38147 (ED KY, March 26, 2015), a Kentucky federal district court dismissed a Jewish inmate's complaint that his use of tefillin was restricted while he was in the prison's special housing unit.

In Hart v. Shearin, 2015 U.S. Dist. LEXIS 38189 (D MD, March 26, 2015), a Maryland federal district court upheld a prison's policy of limiting or cancelling religious services for problem inmates during a period of institutional lock-down. Inmates could have access to a chaplain and a religious TV video. Plaintiff's motion to file an amended complaint indicating that he had no TV and needed to see a chaplain was granted.

In Freeman v. Budnick, 2015 U.S. Dist. LEXIS 38613 (ED AR, March 26, 2015), an Arkansas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 38618, March 4, 2015) and dismissed a complaint by an Odinist inmate that while in punitive isolation he was denied various items needed to practice his religion such as a Thor's hammer, a set of runes and rune cloth, an Odinist text, an altar and altar cloth and a wooden statue.

In Scott v. Erdogan, 2015 U.S. Dist. LEXIS 38739, (M.D. Pa. Mar. 25, 2015), a Pennsylvania federal district court concluded that factual issues for trial exist as to a Sunni Muslim inmate's complaint that there were only Wahhabi/Salafi services conducted and his RLUIPA complaint about the timing of Ramadan prayer.  A number of other complaints about infringements of his religious practices were dismissed.

In Cox v. Stephens, 2015 U.S. Dist. LEXIS 39051 (SD TX, March 27, 2015), a Texas federal district court dismissed a Native American inmate's challenge to the Texas grooming policy that prohibits him from growing his hair, the religious objects policy that prohibits him from wearing his medicine bag at all times, and the pipe policy prohibiting him from partaking in the communal pipe. They were found to be the least restrictive means of furthering a compelling interest.

Interim Arrangement Gives Rhode Island Teachers Good Friday Off This Year As Lawsuit Advances

The Providence Journal reported ysterday the Cranston, Rhode Island School Department has reached a short-term settlement with the Cranston Teachers' Alliance in a lawsuit over teachers' right under the collective bargaining contract to take off for Good Friday. (See prior posting.) Teachers who put in their requests by Wednesday can take Good Friday off this year.  When the court ultimately interprets the collective barganing contract, teachers could be forced to pay the district back for the day off.

Supreme Court Denies Cert. In Bronx Household of Faith Case

The U.S. Supreme Court yesterday denied certiorari in Bronx Household of Faith v. Board of Education of the City of New York, (Docket No. 14-354, cert. denied 3/30/2015). (Order List).  In the widely watched case, the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision held that the Board of Education of the City of New York did not violate the free exercise clause when in 2007 it changed its rules to bar the use of school facilities by churches for religious worship services. (See prior posting.)  The New York Times, reporting on the denial of review, says:

The decision permits Mayor Bill de Blasio to expel immediately dozens of religious organizations that have been holding worship services in city school buildings after hours and on weekends. But consistent with a pledge the mayor made during his campaign to lift the prohibition, a spokesman said on Monday that the city remained committed to allowing churches to use the schools on the same grounds as other organizations.

“Now that litigation has concluded, the city will develop rules of the road that respect the rights of both religious groups and nonparticipants,” the spokesman, Wiley Norvell, said in a statement. “While we review and revise the rules, groups currently permitted to use schools for worship will continue to be able to worship on school premises.”

Why Is Indiana's RFRA So Controversial? This Blogger's Analysis.

Since Indiana's passage of its Religious Freedom Restoration Act earlier this week (see prior posting), there has been a flood of commentary on what the Act really means and its true impact.  The commentary, some from those with a political agenda and some from those without one, ranges from the assertion that IRFRA does little to change current law to the assertion that it creates a license to discriminate against the LGBT community.  So here is my attempt to suggest some perspective on the statute.

(1)  The heart of the statute-- the substantial burden/ compelling interest/ least restrictive means requirement-- is similar to that in the federal RFRA and those of numerous other states.  What makes these tests stand out is the U.S. Supreme Court's recent decisions that give the tests new salience.  With Hobby Lobby and Holt v. Hobbs, the Supreme Court has transformed the substantial burden and least restrictive means tests into geometrically more powerful tools to use to challenge refusals to provide religious exemptions.

(2)  Traditionally it was assumed that the federal RFRA would be used by minority religions to fend off broad regulations that might be enacted without a careful weighing of idiosyncratic religious practices that are important to often discrete and insular groups with comparatively small numbers of adherents.  Since Hobby Lobby and the explosion of same-sex marriage cases, it is largely the Christian majority (or a segment of it) that asserts it is the victim of the majoritarian process, seeking exemptions that have a negative impact on minority groups that have broadly been the victims of past governmental discrimination.

(3)  Since Hobby Lobby. the power of RFRA exemptions has been magnified because they can be asserted by fairly large economic enterprises whose owners have religious reservations about a regulatory requirement.  Indiana's RFRA may have expanded the reach of RFRA exemptions beyond those contemplated by Hobby Lobby.  In defining the persons protected by the law, it enumerates all sorts of business entities, including "a corporation."  It does not limit this to a "closely-held corporation" as the Supreme Court did in Hobby Lobby.  It may be that a separate clause in the Indiana law has that effect, but that is unclear.  Under Sec. 7, a business entity is covered if it

exercises practices that are compelled or limited by a system of religious belief held by ... the individuals who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

It can be argued that only a closely held corporation would be controlled and substantially owned by the same individuals.  But this depends on whether "substantial ownership" means a substantial percentage of the business or merely that the person has a substantial amount of money invested in the company.  CEO's of publicly held corporations often own millions of dollars of the company's stock, but still own only a small percentage of the company.

(4)  Enacted as the Supreme Court is about to hear oral arguments in same-sex marriage cases, and in the wake of numerous high-profile cases on religious refusals by businesses to furnish goods and services to same-sex couples, the law has become a symbol of the clash between conservative Christian views on sexuality and the movement of expanded LGBT rights.  Some have pointed out, accurately, that Indiana's statewide public accommodation law does not include a ban on sexual orientation discrimination.  So business that wish to discriminate on that basis do not need an exemption. [corrected]

However, Indiana's statute also applies to local governmental entities in the state.  According to the Indiana ACLU, four localities have ordinances that provide enforceable protections against discrimination on the basis of sexual orientation and gender identity-- Indianapolis, Lafayette, New Albany and Tippecanoe County.  The new IRFRA will be able to be invoked as a defense in proceedings charging discrimination under these local laws.  This aspect of the law creates particular political and economic problems for the city of Indianapolis that hosts numerous national conventions and sporting events.

(5)  Indiana's new law makes it clear that IRFRA defenses can be asserted in lawsuits between private parties; not just in suits in which the government is a party.  Thus a same-sex couple suing for breach of contract when goods are initially promised and then refused might be met by a religious freedom defense. The sale of goods provisions of the Uniform Commercial Code arguably imposes a substantial burden on religious exercise of the business that discovers it has agreed to violate its own religious principles by facilitating a same-sex wedding.  (This argument is more difficult when services rather than goods are the subject of the contract, and the plaintiff relies on the common law of contracts for enforceability.  Although the statute covers not just statutes, but also "customs" and "usages" of any governmental entity.)

Affirmative relief (damages or an injunction) is only available however against a governmental entity.  And the statute specifically provides that it does not create a cause of action against a private employer by any applicant, employee or former employee.

For other commentaries on IRFRA, see Josh Blackman's Blog and the postings to which he links. And the Washington Post reports today that Indiana lawmakers now say they will act to amend IRFRA to make it clear that it does not permit discrimination against gays.

Recent Articles of Interest

From SSRN:

• Daniel Ortner, Conscientious Offenders: Russia's Ban on 'Extremist' Religious Literature, and the European Court of Human Rights, (Virginia Journal of International Law, Forthcoming).
• Karin Beatrix Calitz, The Liability of Churches for the Historical Sexual Assault of Children by Priests, (Potchefstroom Electronic Law Journal, Vol. 17, No. 6, 2014).
• Rowena Bronwen Bernard, Reasonable Accommodation in the Workplace: To Be or Not to Be?, (Potchefstroom Electronic Law Journal, Vol. 17, No. 6, 2014).
• Shivam Goel, Concept of Rights in Islam, (in Concept of Rights in Islam; Lambert Academic Publication, 2014).
• Neil James Foster, Vicarious Liability and Non-Delegable Duty in Common Law Actions Based on Institutional Child Abuse, (March 20, 2015).
• Brian M. Murray, A Tale of Two Inquiries: The Ministerial Exception After Hosanna-Tabor, (Southern Methodist University Law Review, Vol. 68, No. 4, 2015).
• Caroline Mala Corbin, Intentional Discrimination in Establishment Clause Jurisprudence, (Alabama Law Review, Forthcoming).
• Gerard J. Clark, Hobby Lobby and Galloway: The Expansion of the Role of Religion in American Governance, (Suffolk University Law School Research Paper No. 15-15 (2015)).
• Zoe Robinson, Lobbying in the Shadows: Religious Interest Groups in the Legislative Process, (Emory Law Journal, Vol. 64, 2015).
• David Glasgow, Making Room at the Inn: Protecting the Expression of Sexual Identity in Anti-Discrimination Law, (Alternative Law Journal 40(1) (2015)).

From SSRN (Marriage and Family issues):

• Joan Heifetz Hollinger & Courtney G. Joslin, Amici Curiae Brief of Family Law Professors in Obergefell v. Hodges (U.S. 2014, Nos. 14-556, 14-562, 14-571 and 14-574), (March 6, 2015).
• Laurence H. Tribe & Michael C. Dorf, Brief of Amici Curiae Professors Laurence H. Tribe and Michael C. Dorf in Support of Petitioners: Obergefell v. Hodges; DeBoer v. Snyder, (March 25, 2015).
• Linda C. McClain, Is There a Way Forward in the 'War Over the Family'?, 93 Texas Law Review 705 (2015).
• David Bleich, A Proposal to Withhold Divorce Decrees on Grounds of Equity, (International Journal of the Jurisprudence of the Family, Forthcoming).

From SmartCILP:

• Nathan A. Berkeley, Religious Freedom and LGBT Rights: Trading Zero Sum Approaches for Careful Distinctions and Genuine Pluralism, 50 Gonzaga Law Review 1-28 (2014/2015).
• R. George Wright, Religion without God and the Future of Free Exercise, 63 Cleveland State Law Review 147-161 (2014).

Ramapo Villages Officials Cleared of Discrimination Claims Growing Out of Zoning Fight

In Bernstein v. Village of Wesley Hills, (SD NY, March 27, 2015), a New York federal district court rejected religious discrimination claims growing out of a chapter in the long battle between Hasidic residents and others in parts of Rockland County, New York. As recounted by the court:

Plaintiffs are religious corporations and individuals affiliated with the Chofetz Chaim sect of Orthodox Judaism, and they allege an interest in the operation of Kiryas Radin, a religious educational institution and center for religious activity and prayer, located on 4.7 acres of unincorporated land in the Town of Ramapo....

The heart of Plaintiffs’ case is their allegation that Defendants [village officials] colluded to file the Chestnut Ridge Action—which claimed, in relevant part, that Ramapo’s environmental review of Kiryas Radin prior to its approval was insufficient under state law—for discriminatory reasons. Plaintiffs allege that Defendants, “[h]iding behind a false façade as protectors of the environment . . . utilized municipal government authority to advance their campaign against the spread of Orthodox Jewery in the Town of Ramapo.” ...

By Plaintiffs’ own admission, their claims at this stage of the litigation are dependent on their allegation that Defendants did not bring legal challenges against development projects that were, other than not being run by members of the Hasidic community, similar to Kiryas Radin in all material respects.

The court however concluded that the non-Hasidic development projects which were not challenged were not similar to Kiryas Radin. It also concluded that plaintiffs had not shown discriminatory intent on the part of the defendants:

Having lived and worked with residents and officials from the Villages during these many years, Plaintiffs firmly believe that they have been targeted because of their religious beliefs, even if they cannot point to discriminatory statements by Defendants. The Court is sympathetic: who would know better than the Parties in this case whether the current dispute is a product of the decades-long tension between the Hasidic community and the Villages of Ramapo? However ... [b]ecause Plaintiffs have offered almost no evidence in support of their claims, and certainly not enough to raise a contested issue of material fact, the Court must grant summary judgment in favor of Defendants.

Recent Prisoner Free Exercise Cases

In Stavenjord v. Schmimdt, (AK Sup. Ct., March 20, 2015), the Alaska Supreme Court held that a trial court was incorrect in dismissing a RLUIPA claim by a Buddhist prisoner who wanted to receive a kosher diet and to purchase a prayer shawl.

In Lewis v. Godinez, 2015 U.S. Dist. LEXIS 34839 (ND IL, March 20, 2015), an Illinois federal district court allowed a Rastafarian inmate to proceed with his complaints that he was forced to cut his dreadlocks, denied access to religious literature, and that the prison refused to hire a Rastafarian religious leader or provide Rastafarian services.

In Lagar v. Tegels, 2015 U.S. Dist. LEXIS 34842 (WD WI, March 20, 2015), a Wisconsin federal district court dismissed an inmate's claim that his religious freedom was infringed when he was denied the right to wear a Rosicrucian emblem.

In Campbell v. Greeley, 2015 U.S. Dist. LEXIS 34967 (WD AR, March 20, 2015), an Arkansas federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 34980, Feb. 27, 2015) and dismissed an inmate's complaint that the detention center in which he was housed did not provide religious services.

In Browning v. Seifert, 2015 U.S. Dist. LEXIS 35079 (ND WV, March 20, 2015), a West Virginia federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 35075, Feb. 11, 2015) and allowed an Orthodox Jewish inmate to move ahead with his suit seeking various accommodations for kosher food, wearing of religious clothing, celebration of various holidays and permission to refrain from shaving and cutting his hair.  Numerous other claims were dismissed.

In Hughes v. Heimgartner, 2015 U.S. Dist. LEXIS 35642 (D KS, March 23, 2015), a Kansas federal district court refused to grant summary judgment to defendants on complaints by a Muslim inmate that he was denied access to an Eid ul Fitr meal because he was in disciplinary segregation.

In Banks v. NYPD, 2015 U.S. Dist. LEXIS 35129 (WD PA, March 20, 2015), a Pennsylvania federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 35770, Feb. 26, 2015) and dismissed an inmate's claim that Defendants conspired to keep him confined in a halfway house and to require him to apply for funds through two Christian organizations because of his status as a Wiccan, Warlock and Witch.

In McDonald v. West Contra Costa Narcotics Enforcement Team, 2015 U.S. Dist. LEXIS 36125 (ND CA, March 20, 2015), a California federal district court permitted an inmate to proceed with his complaint that his request for vegetarian meals was denied. Plaintiff was an adherent of "Evenism," a "religious and spiritual worldview" that "eating the flesh of land-based animals is no different than eating human flesh."

In Bell v. Scott, 2015 U.S. Dist. LEXIS 36262 (CD IL, March 24, 2015), an Illinois federal district court permitted a Seventh Day Adventist civil detainee to proceed with his complaint that authorities have refused to allow religious leaders to bring in a portable pool to baptize him.

In Jones v. Federal Bureau of Prisons, 2015 U.S. Dist. LEXIS 37080 (WD TN, March 24, 2015), a Tennessee federal district court permitted an inmate to proceed with his claim that he was denied equal protection when he was terminated from his prison job because of his religion.

Injunction, Civil Penalty Imposed On Florist That Refused To Sell For Same-Sex Wedding

As previously reported, last month a Washington state trial court held that a florist shop and its owner violated the Washington Law Against Discrimination and the state's Consumer Protection Act when the shop's owner advised a customer that for religious reasons she could not provide flower arrangements for his same-sex wedding ceremony. Now in State of Washington v. Arlene's Flowers Inc., (WA Super. Ct., March 27, 2015), the trial court entered an injunction against defendants prohibiting them from discriminating against anyone on the basis of sexual orientation in the furnishing of goods, merchandise and services.  In addition, the court imposed a civil penalty of $1000 and a nominal $1 for costs and attorneys' fees. Washington's Attorney General issued a press release announcing the decision. [Thanks to Tom Rutledge for the lead.]

Alaska Free Exercise Clause Defense To Illegal Salmon Fishing Is Rejected

In Phillip v. State of Alaska, (AK Ct. App., March 27, 2015), an Alaska court of appeals refused to dismiss criminal charges against 13 Yup'ik Eskimo fishermen charged with violating the Alaska Department of Fish and Game’s emergency orders restricting king salmon fishing on the Kuskokwim River.  The Yup'ik claimed that their conduct is protected by the free exercise clause of the Alaska Constitution. The Alaska Supreme Court has held that the test under the state Constitution for whether an individual is entitled to a religious exemption from a facially neutral law requires assessing the validity of the individual's religious interest and then determining whether the State can prove a compelling interest that would justify curtailing the religiously-based practice.  Applying that test here, the appeals court said:

[I]t would seriously hamper the Department’s ability to manage the fishery for sustained yield if courts required the State to show that each emergency action it took was the least restrictive alternative available. ... Instead, we agree with the district court that the question ... is whether the State can meet its burden of proving that its compelling interest in maintaining a healthy and sustainable king salmon population would be harmed if the court granted the religious exemption sought by the defendants.... [T]he State met that burden here.

AP reports on the decision.

Preliminary Injunction Bars Extension of FMLA To Same-Sex Couples

In State of Texas v. United States, (ND TX, March 26, 2015), a Texas federal district court granted a preliminary injunction ordering the Department of Labor to stay application of a rule amendment that extends the Family and Medical Leave Act to same-sex married couples even in states that do not recognize sane-sex marriage. The court asserted that Congress does not have unlimited power to impose its definition of marriage on the states and that Congress did not authorize the Department of Labor to regulate spousal benefits to do so. Houston Chronicle reports on the decision.

California AG Asks Court To Allow Her To Reject Virulently Anti-Gay Initiative Measure

Religion News Service reports that California Attorney General Kamala Harris this week asked a state court to allow her to refuse to process a virulently anti-gay (and likely unconstitutional) initiative petition filed in proper form last month with the Attorney General's office.  Harris asked for an order so that she will not be required to issue a title and ballot summary for the proposal which could get on the ballot only if the sponsors were able to collect over 365,000 valid signatures. The initiative measure (full text) is titled the "Sodomite Suppression Act."  It begins by describing sodomy as "a monstrous evil that Almighty God ...commands us to suppress...." Not only would the Act outlaw "sodomistic propaganda" and bar "sodomites" from public office and public employment, but it also calls for "death by bullets to the head or by any other convenient method" for anyone who "willingly touches another person of the same gender for purposes of sexual gratification." The punishment for distributing sodomistic propaganda would be a $1 million fine, 10 years in prison, and/ or expulsion from the state of California.

British Parliament Passes Bill Authorizing Invocations At City Council Meetings

Law & Religion UK reports that on Wednesday in Britain the House of Lords gave final Parliamentary approval to the Local Government (Religious etc. Observances) Bill (full text). The bill, which now will be presented for Royal Assent, authorizes local governmental bodies to include in their meetings time for prayers or other religious observance or for observances connected with a religious or philosophical belief. It also provides that local authorities may support, facilitate or make arrangements to be represented at religious events or events connected with a religious or philosophical belief.  Apparently the bill is a reaction to a court ruling that town councils can open with an invocation, but only if it is not part of the formal meeting. (Background) (See prior related posting).  During the debate in the House of Lords (full text), Baroness Turner of Camden said:

A number of us who are secularists feel that our views have been somewhat bypassed. It is one thing to have prayers, but it is quite another thing to have prayers as part of an actual meeting.

Ministerial Exception Prevents Court From Deciding Complaint Over Pastoral Letter Requirement

On Monday, the Ventura County California Superior Court dismissed the complaint in Serrano v. Family Life Faith, a lawsuit by two teachers who were fired for failing to provide a letter from a pastor confirming their membership in a church.  Little Oaks, a for-profit private Christian school which imposed the requirement, is affiliated with the non-profit Calvary Chapel. (See prior posting.)  The court held that the "ministerial exception" doctrine precludes it from adjudicating issues regarding the hiring or firing of ministerial type employees of religious schools, such as these teachers who were introducing students to Christianity. Christian Post reports on the decision.

Groups Challenge Residency Limits In Courthouse Open Forum Law

As previously reported, last December the Freedom From Religion Foundation (FFRF) sued Franklin County, Indiana, challenging a Nativity Scene placed on the Courthouse lawn.  The suit was dropped after the county enacted a law making the county courthouse a public forum for all types of expressive activities. (See prior posting.)  However this week, FFRF and the Satanic Temple have filed a new lawsuit against the county charging that the open forum law still violates their free expression rights.  The complaint (full text) in Freedom From Religion Foundation v. Franklin County, Indiana, (SD IN, filed 3/24/2015), contends that the provision in the open forum law limiting it to Franklin County residents is not narrowly tailored to further a substantial governmental interest.  Both plaintiffs were denied permits for displays. FFRF had applied to place a display of several cut-out figures on the Courthouse lawn from Nov. 29, 2015 to Jan. 6, 2016 to celebrate the December 15th "nativity" of the Bill of Rights. Satanic Temple wanted to erect a three-dimensional sculpture during the same time period.  FFRF issued a press release announcing the filing of the lawsuit.

Mississippi Supreme Court: Courts May Not Rule On Dispute Over Removal of Pastor

In Greater Fairview Missionary Baptist Church v. Hollins, (MS Sup. Ct., March 26, 2015), the Mississippi Supreme Court, relying largely on the U.S. Supreme Court's Hosanna-Tabor decision, held that a trial court lacked jurisdiction to impose procedures for a congregation to use in a vote to remove its pastor.  The pastor had initially been placed on administrative leave after being accused of inappropriate sexual conduct with a minor.  When church members decided to vote on whether to completely remove him, the pastor sued.  In reversing the trial court, the Supreme Court said in part:

In sum, we find that the chancery judge erred when he treated this ecclesiastical controversy as a secular one—a pastor who is unhappy about being terminated by a church simply does not present a secular controversy.

Afghan President To US Congress: Moderate Muslims Must Speak Out

Afghanistan's new President, Ashraf Ghani, in a visit to the United States this week (New York Times), addressed a joint session of Congress yesterday.  In his speech (full text and video), Ghani called for changes within Islam, saying in part:

We are willing to speak truth about terror.  Military fighting may stem the advance of extremism, but it will not put an end to the anger and hatred being promulgated across majority countries from these groups. That hate must be challenged and overcome from within the religion of Islam.  Who is entitled to speak for Islam?  Leaders, intellectuals and those many millions of Muslims who believe that Islam is a religion of tolerance and virtue must find their voice.  Silence is not acceptable.  But silence is not what the world will hear from us.  Afghanistan is joining a new consensus that's emerging in the Muslim world.  A consensus that rejects intolerance, extremism and war...

The Islamic world must understand its own gloriously tolerant and inquisitive past.  It must re-engage with the world openly and without paranoia.  We, the unity government of Afghanistan, know that Islam is a religion of peace.... The Declaration of Human Rights is firmly embedded in our Constitution....

NJ Governor Signs Law Keeping Religious Cemeteries Out of Headstone and Funeral Business

Earlier this week, New Jersey Governor Chris Christie signed A-3840 (full text), a law that bars religious groups that operate cemeteries from also selling headstones or offering various other kinds of funeral services. Religion News Service reports that the immediate effect of the law will be to require  the Catholic Archdiocese of Newark to give up its profitable business of selling headstones and private crypts. According to RNS:

The archdiocese became the first religious group in the state to enter the headstone business two years ago, alarming dozens of small, independent companies that produce monuments and crypts.

The dealers’ trade association, the Monument Builders of New Jersey, waged an 18-month legal fight and lobbying campaign against the move, contending the practice would spread to other dioceses and then to the owners of other religious cemeteries.

The archdiocese returned fire with a lobbying effort of its own, along with a personal appeal from Archbishop John J. Myers, who exhorted Catholics to fight the law.

Satanic Temple Urges "Discrimination Transparency" Amendment To Michigan's Proposed RFRA

Fox News reported earlier this month that in a creative response to Michigan's proposed Religious Freedom Restoration Act, the Detroit Chapter of the Satanic Temple is urging that a "Discrimination Transparency" amendment be added to the bill.  The proposed amendment would legally require businesses that serve the public to post any discrimination policy in effect in a conspicuous location visible to patrons and employees.  The Satanic Temple even furnishes on its website a downloadable sign that could be used by businesses.  It reads: "Due To Sincerely Held Religious Beliefs, Service Is Denied To _______".

Court Says Muslim Surveillance Documents May Not Be Withheld Under FOIA "Law Enforcement" Exemption

In ACLU of North California v. FBI, (ND CA, March 23, 2015), in a Freedom of Information Act suit, a California federal district court held that the FBI cannot use the exemption for records compiled for law enforcement purposes to withhold documents relating to the investigation and surveillance of Muslim communities, and collection of ethnic and racial data, in Northern California. The court said:

In short, the FBI employs many various techniques to combat unlawful activity, some of which, if publicly disclosed, would undermine their effectiveness. 

That this may well be true does not, without more, permit the FBI to apply Exemption 7 [the "law enforcement" exemption] to withhold or redact information about such tactics, however. Neither the Hardy declarations nor the FBI’s pleadings tether the activities the withheld documents concern to the enforcement of any particular law....  Exemption 7 is not the appropriate umbrella under which to shield these documents from public view.

The ACLU's blog has more information on the decision.

Puerto Rico Concedes On Same-Sex Marriage Laws

Last October, a Puerto Rico federal district court gave a rare victory to opponents of same-sex marriage. (See prior posting.)  Plaintiffs appealed the decision to the U.S. 1st Circuit Court of Appeals.  Last week, Puerto Rican officials filed a brief with the 1st Circuit (full text) stating that Puerto Rico would no longer defend the constitutionality of its marriage laws.  Appellanats' brief states in part:

To the extent that Commonwealth law does not afford homosexual couples the same rights and entitlements that heterosexual couples enjoy, the Commonwealth recognizes that equal protection and substantive due process guarantees mandate application of heightened scrutiny in this case. Under said heightened standard, the Commonwealth cannot responsibly advance before this Court any interest sufficiently important or compelling to justify the differentiated treatment afforded so far to Plaintiffs.

Freedom to Marry website has more on the decision.

Bible Quotes In University VP's Presentation To Employees Not Protected By First Amendment

Faulkner v. University of Cincinnati, (SD OH, March 23, 2015), involves a challenge by an Associate Vice President in the University's Department of Internet Technology to disciplinary action taken against him for his use of Biblical quotations in a departmental presentation designed to improve leadership skills of participants. An Ohio federal district court dismissed the major part of plaintiff's claim, but permitted him to move ahead on one portion of his complaint.  The court explained:

The Court concludes that Faulkner was not speaking as a private citizen on a matter of public concern when he gave his presentation to the IT Leadership Academy. Therefore, that speech was not protected by the First Amendment, and he cannot challenge the "discipline" that resulted - his attendance at a "sensitivity" seminar. But this conclusion does not require the dismissal of the entirety of his First Amendment claims. Faulkner is also challenging the University's prohibition on making any biblical quotations in "future lectures or in work related interactions." This broadly worded ban could apply to consensual conversations with colleagues, to religious symbolic speech, and to "interactions" of all sorts that might occur outside of the classroom or officially sanctioned University-sponsored groups.

Indiana Passes RFRA Law

The Indiana General Assembly yesterday gave final approval to Senate Bill 101, the Indiana Religious Freedom Restoration Act. (full text).  The bill is broader than its Federal counterpart in several ways.  It explicitly protects the exercise of religion by entities as well as individuals.  Its enumeration of entities includes "a corporation", without limiting this to closely-held companies.  The bill's protections may be invoked when a person's exercise of religion is "likely" to be substantially burdened by government action, not just when it has been burdened.  The bill also permits the assertion of free exercise rights as a claim or defense in judicial or administrative proceedings even if the government is not a party to the proceedings. The relevant governmental entity has a right to intervene in such cases to respond to the RFRA claim. A remedy under the bill is only available against the government; suits by employees or applicants invoking the law against private employers are precluded.

In a statement (full text) after the bill passed yesterday, Governor Mike Pence said he strongly supports the bill and will sign it. Meanwhile, Gen Con, a major gaming convention held each year in Indianapolis, wrote the governor (full text) asking him to reconsider, saying that legislation that could lead to discrimination against its attendees will factor into its decision on whether to hold the convention in Indiana in future years.

Ted Cruz Announces Candidacy With Focus On Agenda of Religious Conservatives

Texas Republican Senator Ted Cruz yesterday became the first to officially announce his candidacy for President of the United States in 2016.  In a speech at Liberty University (full text) directed particularly at Christian Conservatives, Cruz enumerated the Conservative agenda and said in part:

Today, roughly half of born again Christians aren’t voting. They’re staying home. Imagine instead millions of people of faith all across America coming out to the polls and voting our values.

CBS News described his speech as "an impassioned appeal to the religious right."

In another move that focuses on concerns of the religious right, Cruz announced last week that he has introduced two joint resolutions in Congress to overturn recently enacted legislation by the D.C. City Council. (S.J. Res. 10;  S.J. Res. 11). As described by Cruz's press release:

In January, the District enacted the Reproductive Health Non-Discrimination Amendment Act of 2014, which could require employers to provide health plans that cover abortion services, and the Human Rights Amendment Act of 2014, which could force religious schools to support activities that violate the tenets of their faith.

Congress has until April 17 to act to prevent the D.C. laws from taking effect. (See prior related posting.)

In Italy, Lawsuit Raises Challenge To Prayer In Schools

New York Times reported yesterday that the continuing controversy over church-state relations in Italy is reflected in a recent lawsuit challenging the decision of a school board in Bologna to allow priests to offer an Easter blessing at three elementary schools.  Previously, a local court had held that an Easter prayer in a classroom during school hours was unconstitutional.  But the current plan is for voluntary prayer on school grounds shortly after the closing bell.  An Italian constitutional law expert commented:

In Italy, it is different. We do not have religion in the state, but we have tradition and relationships that link the Italian Republic with the Catholic Church.

A hearing on the challenge is not scheduled until later this week, and the blessing has already been recited at two of the schools. Prayer scheduled at one school for next Saturday has been canceled.

Trial Judge's Opening With Pledge of Allegiance Does Not Violate Establishment Clause or Due Process

In State of Ohio v. Daniels, (OH App., March 16, 2015), an Ohio appeals court affirmed the drug possession and drug trafficking conviction of Michael Daniels, Jr., who, among other things, argued that the trial court erred when it required the parties and the jury at his trial to recite the Pledge of Allegiance that invokes a Supreme Being in violation of the Establishment Clause. He also urged that the Pledge amounts to a required loyalty oath that violates the due process clause.  The court held that, first, Daniels waived any challenge by failing to object to the Pledge when the court announced that it would be recited. It continued:

[E]ven if the waiver doctrine did not apply herein, appellant provides no definitive case law holding that the use of “under God” in the Pledge of Allegiance, particularly when made part of a customary courtroom recitation, constitutes an impermissible State endorsement of monotheistic religion ..., and he further fails to articulate how an appellate reversal of his conviction would be the proper remedy for such an alleged constitutional violation.

Responding to Daniels' due process argument, the court quoted from a 2004 federal 10th Circuit Court of Appeals opinion:

 "We recognize that trial judges, among their many other responsibilities, should take care not to create the impression that it is appropriate for the judge or the jury to favor the prosecution simply because the court and the prosecution are both institutions of the United States. However, we do not think it reasonable to suppose that the jurors inferred from the Pledge of Allegiance a patriotic obligation to serve as a rubber stamp for the prosecution...."

Supreme Court Hears Oral Arguments On Specialty Plates and Free Speech

The U.S. Supreme Court yesterday heard oral arguments in Walker v. Texas Division, Sons of Confederate Veterans, Inc. (Full transcript of oral arguments).  In the case, the 5th Circuit Court of Appeals held in a 2-1 decision that messages on state specialty license plates are private speech, not government speech.  The 5th Circuit majority also concluded that Texas engaged in unconstitutional viewpoint discrimination when it rejected, as offensive, a specialty plate design that included the Confederate battle flag. (See prior related posting.)  SCOTUSblog reports on the oral arguments, saying in part:

From the moment that a state lawyer stood up in the Supreme Court to argue that messages on license plates are government speech, it seemed that the Justices went forward for the rest of the hour assuming that it was not — at least not always.  A strange hearing thus unfolded on when the First Amendment puts curbs on government regulation of expression, and how tight those curbs can be.

New York Times also reports on the arguments.

Muslim School's Zoning Challenge Dismissed Without Reaching Merits

In Muslim Community Association of Ann Arbor v. Pittsfield Charter Township, (ED MI, March 20, 2015), the Michigan Islamic Academy claimed that Pittsfield Township violated the substantial burden, anti-discrimination and equal terms provisions of RLUIPA, as well as the Establishment Clause and the Equal Protection Clause, in denying it zoning authorization so it could build a Muslim school. The court dismissed the RLUIPA claims on the basis that plaintiff had no legally cognizable interest in the property.  It merely had a promise from the owner to donate 5 acres for the school if zoning approval was obtained. The court went on to hold that plaintiff's RLUIPA and constitutional claims are not ripe because plaintiff never went beyond the Planning Commission and Township Board to the Zoning Administrator and Zoning Board of Appeals. The court held that plaintiff could continue or refile the suit if these defects are cured. (See prior related posting.).

Recent Articles of Interest

From SSRN:

• Andrew Koppelman & Frederick Mark Gedicks, Is Hobby Lobby Worse for Religious Liberty than Smith?, (St. Thomas Journal of Law and Public Policy, Forthcoming).
• Annabelle Lever, Democratic Equality and Freedom of Religion: The Dilemma of Public Service Provision, (Forthcoming in Philosophy and Public Issues (July 2015)).
• James Lindgren, Measuring Diversity: Law Faculties in 1997 and 2013, (March 20, 2015).
• James E. Fleming, Introduction to the Symposium on Ronald Dworkin's Religion Without God, (94 Boston University Law Review 1201 (2014)).
• David S. Cohen & Krysten Connon, Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism, (Oxford University Press, 2015).

From SSRN (LGBT Rights and Same-Sex Marriage):

• Nan D, Hunter, Pluralism and its Perils: Navigating the Tension between Gay Rights and Religious Expression, (2015).
• Nelson Tebbe, Religion and Marriage Equality Statutes, (Harvard Law & Policy Review, Vol. 9, No. 25, 2015).
• Zachary Robert Herz, The Marrying Kind, (Tennessee Law Review, Vol. 82, 2015).
• Suja A. Thomas, Text-Bound Originalism (And Why Originalism Does Not Strictly Govern Same Sex Marriage), (March 16, 2015).

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

• Stephanie Farrior, Equality and Non-Discrimination under International Law, (in Equality and Non-Discrimination Under International Law, Stephanie Farrior, ed., Ashgate Publishing, 2015).
• Zulkarnain Muhamad Sori, Shamsher Mohamad & Mohamed Eskandar Shah, Shariah Governance Practices in Malaysian Islamic Financial Institutions, (March 16, 2015).
• Yinka Olomojobi, Islam: Between Peace and Violence, (March 17, 2015).
• Marc Lane Roark, Retelling English Sovereignty, (British J. Am. Legal Studies, Forthcoming).
• Manjeet Sahu, Preferential Treatment of Hindus Under Indian Tax Law: Emphasizing on Grant of Tax Benefit to Hindu Undivided Family, (April 21, 2014).

From SmartCILP:

• Martin Wishnatsky, The Disincorporation Proclamation: Emancipating the Establishment Clause from the Fourteenth Amendment, 5 Faulkner aw Review 259-307 (2014)

College Admission Denial Because of Religious References In Interview Supports Establishment Clause Claim

In Jenkins v. Kurtinitis, (D MD, March 20, 2015), a Maryland federal district court permitted an unsuccessful applicant to a community college radiation therapy program to move ahead with his Establishment Clause claim, while dismissing his free speech and state free exercise claims. Plaintiff Brandon Jenkins claimed that the program director Adrienne Dougherty denied him admission to the program in part because during his interview in answering a question about the thing most important to him, Jenkins replied "My God."  In an e-mail to Jenkins, Dougherty told him that "this field is not the place for religion."  The court held that:

Jenkins has alleged sufficient facts to state a claim for relief [under the Establishment Clause] because, given the posture of the case, I cannot determine whether defendants acted with an impermissible [religious] purpose.

However, rejecting Jenkins' free expression claim, the court said in part:

the Free Speech Clause does not protect speech expressed in an admissions interview from admissions consequences in a competitive process....

Recent Prisoner Free Exercise Cases

In Bolds v. Cavazos, (9th Cir., March 20, 2015), the 9th Circuit held that the district court properly dismissed an inmate's free exercise claim because he failed to allege facts showing that the confiscation of his television substantially burdened the practice of his religion.

In Rojas v. Heimgartner, (10th Cir., March 20, 2015), the 10th Circuit upheld a prison policy barring Native American inmates from wearing colored bandannas outside of group religious worship services.

In Prim v. Jackson, 2015 U.S. Dist. LEXIS 32004 (SD OH, March 16, 2015), an inmate alleged he was prevented from celebrating the Passover seder, that inadequate security in the Chapel for female staff caused it to be closed from Friday night to Saturday night, and he was denied kosher meals.  A federal magistrate judge recommended dismissing some of the claims against certain of the defendants.

In Marshall v. Pennsylvania Department of Corrections, 2015 U.S. Dist. LEXIS 32773 (MD PA, March 17, 2015), a Pennsylvania federal magistrate judge upheld a prison's refusal to provide separate congregate religious services for Nation of Islam adherents, limiting them to worshiping with Sunni Muslims.

In Brock-Butler v. Parker, 2015 U.S. Dist. LEXIS 33402 (WD KY, March 18, 2015), a Kentucky federal district court, in a case primarily about the use of excessive force against an inmate, permitted plaintiff to also proceed with a free exercise claim that he was forced to shave his head to treat a gash that resulted from his being Tasered.

In Williams v. Wilkinson, 2015 U.S. Dist. LEXIS 34172 (ED OK, March 19, 2015), an Oklahoma federal district court dismissed, for failure to exhaust administrative remedies, an inmate's complaint that Muslim communal religious services were suspended. It dismissed on the merits plaintiff's complaint that he had been denied a kosher diet.

In Shepherd v. Fischer, 2015 U.S. Dist. LEXIS 33110 (ND NY, March 18, 2015), a New York federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 34238, Feb. 23, 2015) and permitted a Rastafarian inmate to proceed against certain defendants on his complaint regarding several interferences with his religious practices.(diet, dreadlocks, religious services).

In Rogers v. Dart, 2015 U.S. Dist. LEXIS 34464 (ND IL, March 19, 2015), an Illinois federal district court permitted an inmate to proceed with his complaints regarding religious diet and auditing of his commissary purchases as retaliation for filing a grievance.

Court Rejects RFRA and Religious Belief Defenses In Forced "Get" Case

In United States v. Epstein, (D NJ, March 19, 2015), a New Jersey federal district court, in a 53-page opinion, explained various rulings the court had made on religious-based defenses raised by defendants who were being tried on charges of kidnapping and conspiracy for using coercive tactics to Force Orthodox Jewish husbands to give their wives divorce documents ("get").  The court rejected defendants' contention that the Religious Freedom Restoration Act required dismissal of the indictment against them.  The court held:

I conclude that the Government’s decision to prosecute Defendants does not constitute a substantial burden on Defendants’ religious exercise. Further, even if a substantial burden does exist, I find that the Government has a compelling interest in preventing crimes of violence, and moreover, the arrest and prosecution of individuals who violate such criminal laws is the least restrictive means of enforcing that interest.

Defendants had argued that freeing an agunah (woman who was refused a get) is a mitzvah in Jewish law. The court responded:

[I]f Defendants had acceptable religious alternatives -- instead of resorting to violating the criminal laws -- I find that the Government’s application of the kidnapping laws to Defendants here does not substantially Defendants’ religious exercise.  Nevertheless, even if Defendants had exhausted all other available non-violent means of coercing a husband to give his wife a get, and the only remaining method of coercion, as argued by Defendants, is through violence or force, i.e., kidnapping, I remain convinced that would not amount to a substantial burden. This Court has not found any authority condoning the use of violence under the guise of religion, and more importantly, no case has found the Government’s application of violent crime laws to certain religious practices is a substantial burden.

The court also ruled that defendants' religious beliefs do not negate the element of specific intent required for a conviction.  The court said in part:

According to Defendants, by signing the ketubah, an Orthodox Jewish husband promises to be bound by the laws of Moses and Israel, both to the authority of the beth din and to the halakhic, or the Jewish religious law, process of the “forced” get as the term is described by Maimonides.  Therefore, taken together, Defendants insist that because of their religious beliefs and because of their beliefs that the victims have consented to the coercive acts, i.e., kidnapping, Defendants lack the intent to commit the crimes as charged. The Court rejects this theory of defense.

Establishment Clause Challenge To Church Directional Sign Moves Ahead

In Tearpock-Martini v. Shickshinny Borough, (MD PA, March 20, 2015), a Pennsylvania federal district court refused to dismiss an Establishment Clause claim against a municipality whose borough council (of which plaintiff was a member) voted to allow a church to install a sign on rights of way bordering plaintiff's property over her objections. Borough street workers and one of the council members installed the sign which read "Bible Baptist Church Welcomes Your" and had a directional arrow with "1 block" written on it. In allowing plaintiff to move ahead, the court said:

The complaint makes sufficient allegations that the government placed the sign on the public right of way. The sign points in the direction of the church and contains a Bible and a cross. The circumstances surrounding the sign are very fact sensitive. For example, according to the plaintiff’s brief, the township does not permit other directional signs and denied the request of the local post office to place a sign. Depending on the facts that are revealed by discovery, a reasonable observer who is familiar with the history and context of the display may perceive a governmental endorsement of religion.

(See prior related posting.) Citizens Voice reports on the decision.

6th Circuit Rejects Good News Club's Fee Waiver Claim

In Child Evangelism Fellowship, Inc. v. Cleveland Metropolitan School District, (6th Cir., March 20, 2015), the U.S. 6th Circuit Court of Appeals in a 2-1 decision affirmed the denial of a preliminary injunction in a suit by Child Evangelism Fellowship (CEF) which had claimed that it was entitled to a waiver of fees for use of school facilities for its Good News Club meetings. CEF claimed that the school system engaged in viewpoint discrimination by waiving fees for the Boy Scouts but not for CEF. The majority said:

As the district court concluded, CEF’s evidence in support of its request for injunctive relief did not adequately show that the District had a fee-waiver policy. To the contrary, at this early juncture, the record supports the District’s position that it merely accepted in-kind payment in lieu of monetary fees.

Judge White dissented, saying that the in-kind contributions by the Boy Scouts to participating students did not amount to compensation to the school district, and thus amounted to a fee waiver.  She said:

I agree that CEF failed to “show[] that a fee-waiver policy even exists.” ... CEF has shown, however, that a fee-waiver practice existed between the District and the Boy Scouts and that despite repeated requests, the District did not provide CEF with a similar arrangement....

(See prior related posting.) [Thanks to Tom Rutledge for the lead.]

Justice Ginsburg Co-Authors A Passover Essay

Religion News Service reported yesterday on the essay written recently by U.S. Supreme Court Justice Ruth Bader Ginsburg along with Washington, D.C. Rabbi Lauren Holtzblatt as part of American Jewish World Service’s Chag v’Chesed (“Celebration and Compassion”) series in anticipation of Passover. Titled The Heroic and Visionary Women of Passover, the essay focuses on several women in the Passover story who defied Pharaoh to save Moses' life as an infant. Rabbi Holtzblatt's husband is one of Justice Ginsburg's law clerks.

Canada's Supreme Court Says Quebec Catholic School Should Be Allowed Modified Religious Culture Program

In Loyola High School v. Quebec (Attorney General), (Sup Ct Canada, March 19, 2015), Canada's Supreme Court  held that the Quebec Minister of Education's refusal to grant an exemption to allow Loyola, an English-speaking Jesuit high school, to adopt an alternative to the mandated Program on Ethics and Religious Culture (ERC) infringes the school's religious freedom more than is necessary to carry out the objectives of the ERC requirement.  The mandated ERC program has 3 components: religious culture, ethics and dialogue. The government insisted that all these parts be taught from a neutral perspective.  Loyola wanted to offer an alternative course taught from the perspective of Catholic beliefs and ethics. As summarized by the Court, the majority of 4 justices held that the case should be remanded to the Minister of Education in light of the following principles:

In the Quebec context, where private denominational schools are legal, preventing a school like Loyola from teaching and discussing Catholicism from its own perspective does little to further the ERC Program’s objectives while at the same time seriously interfering with religious freedom. The Minister’s decision suggests that engagement with an individual’s own religion on his or her own terms can be presumed to impair respect for others. This assumption led the Minister to a decision that does not, overall, strike a proportionate balance between the Charter  protections and statutory objectives at stake in this case.

That said, the Minister is not required to permit Loyola to teach about the ethics of other religions from a Catholic perspective. The risk of such an approach would be that other religions would necessarily be seen not as differently legitimate belief systems, but as worthy of respect only to the extent that they aligned with the tenets of Catholicism. This contradicts the ERC Program’s goals of ensuring respect for different religious beliefs. In a multicultural society, it is not a breach of anyone’s freedom of religion to be required to learn (or teach) about the doctrines and ethics of other world religions in a neutral and respectful way. In a religious high school, where students are learning about the precepts of one particular faith throughout their education, it is arguably even more important that they learn, in as objective a way as possible, about other belief systems and the reasons underlying those beliefs.

Three justices in a separate opinion argued that the Court should grant the exemption and fashion a remedy, saying:

Loyola’s teachers must be permitted to describe and explain Catholic doctrine and ethical beliefs from the Catholic perspective. Loyola’s teachers must describe and explain the ethical beliefs and doctrines of other religions in an objective and respectful way. Loyola’s teachers must maintain a respectful tone of debate, but where the context of the classroom discussion requires it, they may identify what Catholic beliefs are, why Catholics follow those beliefs, and the ways in which other ethical or doctrinal propositions do not accord with those beliefs.

 Orangeville Banner reports on the decision.

New Resource On Legality of Same-Sex Unions Around The World

American Lawyer reported this week the the Jones Day law firm has launched a new website that provides information on the legal treatment of same-sex relationships in some 300 jurisdictions around the world. The website describes its coverage:

This guide is intended to provide a resource to help answer questions regarding whether particular jurisdictions throughout the world afford legal recognition to same-sex couples. For all U.N. recognized countries, including their constituent parts such as each U.S. State, and Taiwan, the guide answers whether legal recognition of same-sex couples is granted and, if so, provides answers to various follow-up questions, such as whether marriage or some other status is afforded same-sex couples, whether foreign same-sex marriages are recognized in the jurisdiction, and the manner in which same-sex couples may dissolve their relationships.

The website is also now listed under "Resources" in the Religion Clause sidebar.

FBI Approves Revised Hate Crime Data Collection Manual

On Feb. 27, the FBI approved a revised version of its Hate Crime Data Collection Guidelines And Training Manual.  The new version adds definitions and scenarios for categories of hate crimes on which data is to be collected for the first time beginning this year-- anti-Sikh, anti-Hindu and anti-Arab hate crimes. (See prior posting.) [Thanks to Michael Lieberman for the lead.]

Utah Enacts LGBT Anti-Discrimination Law With Extensive Religious Exemptions

As reported by JDSupra, on March 12, Utah Governor Gary Herbert signed S.B. 296,  Antidiscrimination and Religious Freedom Amendments to Utah's laws banning disrimination in employment and housing.  The bill reflected a compromise backed by the Mormon Church, as well as by supporters of LGBT rights, to ban discrimination based on sexual orientation and gender identity while giving broad religious exemptions from the anti-discrimination requirements. (See prior posting.)  Here is the full text of the religious exemptions:

  34A-5-102. Definitions -- Unincorporated entities
(i)(ii) "Employer" does not include:
(A) a religious organization, a religious corporation sole, a religious association, a religious society, a religious educational institution, or a religious leader, when that individual is acting in the capacity of a religious leader;
(B) any corporation or association constituting an affiliate, a wholly owned
subsidiary, or an agency of any religious organization, religious corporation sole, religious association, or religious society; or
(C) the Boy Scouts of America or its councils, chapters, or subsidiaries...

   34A-5-111. Application to the freedom of expressive association and the free exercise of religion.
       This chapter may not be interpreted to infringe upon the freedom of expressive association or the free exercise of religion protected by the First Amendment of the United States Constitution and Article I, Sections 1, 4, and 15 of the Utah Constitution....

    34A-5-112. Religious liberty protections -- Expressing beliefs and commitments in workplace -- Prohibition on employment actions against certain employee speech.

(1) An employee may express the employee's religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on equal terms with similar types of expression of beliefs or commitments allowed by the  employer in the workplace, unless the expression is in direct conflict with the essential business-related interests of the employer.

(2) An employer may not discharge, demote, terminate, or refuse to hire any person, or  retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and conditions of employment against any person otherwise qualified, for lawful expression or  expressive activity outside of the workplace regarding the person's religious, political, or personal convictions, including convictions about marriage, family, or sexuality, unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer....

  57-21-3. Exemptions -- Sale by private individuals -- Nonprofit organizations --Noncommercial transactions....

(2) This chapter does not apply to a dwelling or a temporary or permanent residence  facility if:
(a) the discrimination is by sex, sexual orientation, gender identity, or familial status for reasons of personal modesty or privacy, or in the furtherance of a religious institution's free exercise of religious rights under the First Amendment of the United States Constitution or the Utah Constitution; and
(b) the dwelling or the temporary or permanent residence facility is:
(i) operated by a nonprofit or charitable organization;
(ii) owned by, operated by, or under contract with a religious organization, a religious association, a religious educational institution, or a religious society;
(iii) owned by, operated by, or under contract with an affiliate of an entity described in Subsection (2)(b)(ii); or
(iv) owned by or operated by a person under contract with an entity described in
Subsection (2)(b)(ii).

... (4) (a) (i) Unless membership in a religion is restricted by race, color, sex, or national origin, this chapter does not prohibit an entity described in Subsection (4)(a)(ii) from:
(A) limiting the sale, rental, or occupancy of a dwelling or temporary or permanent residence facility the entity owns or operates for primarily noncommercial purposes to persons of the same religion; or
(B) giving preference to persons of the same religion when selling, renting, or selecting occupants for a dwelling, or a temporary or permanent residence facility, the entity owns or operates for primarily noncommercial purposes.

       (ii) The following entities are entitled to the exemptions described in Subsection (4)(a)(i):
(A) a religious organization, association, or society; or
(B) a nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society.

... (7) This chapter does not prohibit a nonprofit educational institution from:
(a) requiring its single students to live in a dwelling, or a temporary or permanent residence facility, that is owned by, operated by, or under contract with the nonprofit educational institution;
(b) segregating a dwelling, or a temporary or permanent residence facility, that is owned by, operated by, or under contract with the nonprofit educational institution on the basis of sex or familial status or both:
 (i) for reasons of personal modesty or privacy; or
 (ii) in the furtherance of a religious institution's free exercise of religious rights under the First Amendment of the United States Constitution or the Utah Constitution....

Seventh Day Adventist Entitled To Unemployment Benefits After Being Fired For Saturday Absences

In Lester v. Butler, (GA App., March 17, 2015), a Georgia state appeals court held that a Seventh Day Adventist who refused to work on Saturdays for religious reasons cannot be denied unemployment benefits when she was fired for excessive absences.  The fact that she became a Seventh Day Adventist some three months after she took her job does not change the result.