South African Court Awards Maintence and Child Support To Woman Divorced Only Under Islamic Law

A South African court has issued a precedent-setting ruling by awarding interim maintenance to a woman who was married and divorced under Islamic religious law, but without precedures required by South African civil law. Her husband divorced her by pronouncing a single valid talaq.   IOL News reports that in a ruling from the bench, a Durban High Court judge ruled that the cournty's Marriage Act applies.  Judge Fikile Mokgohloa awarded the woman the equivalent of $1650 (US) per month as maintenance for her and the two children and ordered the husband to pay reasonable education cost for the children not to exceed $400(US) per child per month.  The husband was also ordered to pay the equivalent of $1225(US) toward the wife's legal costs. The husband argued that under Islamic law, he was only required to pay maintenance for the wife, and then only for approximately three months (the mandatory waiting period of iddah).  The wife is now proceeding with a full civil divorce action.

Supreme Court Denies Review In RLUIPA Land Use Case

The U.S. Supreme Court today denied review in Lichtfield Historic District Commission v. Chabad Lubavitch of Litchfield County, Inc., (Docket No. 14-1001, cert. denied 4/20/2015) .(Order List). In the case, the Second Circuit Court of Appeals held that the district court had applied erroneous legal standards in deciding whether a refusal to allow a Jewish group to expand a building in Lichtfield's Historic District violates RLUIPA’s substantial burden and nondiscrimination provisions. (See prior posting.) AP reports on the Supreme Court's denial of review.

Utah Law Creates Uncertainty In Protections For County Clerks Refusing To Officiate At Same-Sex Marriages

Yesterday's Deseret News reports that in Utah, county clerks are closely examining one provision included in SB 297 titled "Protections for Religious Expression and Beliefs about Marriage, Family, or Sexuality." The law, signed by the governor last month and effective May 12, generally protects religious officials and religious organizations from being required to participate in, or furnish goods or services to, marriage ceremonies that violate their religious beliefs. (The 10th Circuit struck down Utah's ban on same-sex marriages last year. See prior posting.) SB 297 also protects individuals holding business or professional licenses from sanctions for expressing their religious views about marriage or sexuality in a nonprofessional setting. However amendments in SB 297 to Utah Code Sec. 17-20-4 for the first time require county clerks to assure a civil marriage official is available. It provides that county clerks shall

establish policies to ensure that the county clerk, or a designee of the county clerk who is willing, is available during business hours to solemnize a legal marriage for which a marriage license has been issued.

Designees do not need to be employees of the clerk's office.  It can be anyone in the county.  According to the Deseret News:

 Offering couples a list of designees seems to be the route many county clerks are going, though the definition of "designee" might be open to interpretation.

Some county officials believe it would allow them to delegate a person of their choosing such as a family member or friend to perform the ceremony on a one-time basis, something county clerks could do until the Legislature took that authority from them 10 years ago.

But that also raises the possibility that if a grandfather, for example, were designated to marry his granddaughter and her fiancé, he would be obligated to marry any couple who asks from then on.   

Recent Articles of Interest

From SSRN:

• Tadeusz Kugler, State-Sponsored Religion as Impediment To Assimilation and Immigration: A Look at Europe, (In Narratives and Negotiation: Agency, Religion and the State, edited by Autumn Quezada-Grant and Sargon Donabed. New York, NY: Lexington Books, 2015).
• Doulas Laycock & Thomas C. Berg, Brief of Douglas Laycock, Thomas Berg, David Blankenhorn, Marie Failinger, and Edward Gaffney as Amici Curiae in Support of Petitioners in Same-Sex Marriage Cases (Obergefell v. Hodges etc.), (April 12, 2015).
• Lucia Ann Silecchia, The Call to Stewardship: A Catholic Perspective on Environmental Responsibility, (Chapter 17 of American Law from a Catholic Perspective, Edited by Ronald J. Rychlak, 2015).
• Robert A. Kahn, The Overlapping of Fools? Drawing the Line between Anti-Semitism and Anti-Zionism in Wake of the 2014 Gaza Protests, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 15-11, 2015).
• Pamela Foohey, Secured Credit in Religious Institutions' Reorganizations, (2015 U Ill L Rev Slip Opinions 1).
• Daniel Ortner, The Terrorist's Veto: Why the First Amendment Must Protect Provocative Portrayals of the Prophet Muhammad, (April 8, 2015).
• J. Stephen Clark, But for Sex: Equal Protection and the Individual Opportunity to Marry One's Chosen Partner Without Regard to Sex, (South Dakota Law Review, Forthcoming).

From SmartCILP and elsewhere:

• Robin Fretwell Wilson, When Governments Insulate Dissenters From Social Change: What Hobby Lobby and Abortion Conscience Clauses Teach About Specific Exemptions,48 UC Davis Law Review 703-790 (2014).
• Is Religion Outdated (As A Constitutional Category)?, Introduction by Steven D. Smith and Larry Alexander; articles by Christopher J. Eberle, Stanley Fish, William A. Galston, Larry Alexander, Frederick Mark Gedicks, Micah Schwartzman, Maimon Schwarzschild and Winnifred Fallers Sullivan; reply by Andrew Koppelman. 51 San Diego L. Rev. 971-1142 (2014). 
• Tengku Ahmad Hazri, Constitutional Governance and the Future of Islamic Civilisation, Islam and Civilisational Renewal (from Academia.edu).

NYT Op-Ed On Increased Ban On Cattle Slaughter In India

Today's New York Times carries an interesting Opinion piece by University of Maryland Mathematics Professor Manil Suri criticizing steps taken last month by the Indian state of Maharashtra (which includes Mumbai) to expand the ban on slaughter of cows. The ban was extended to slaughter of bulls and oxen and the sale of beef was made punishable by up to five years in prison. He says in part:

The laws have affected more than just restaurants. Thousands of butchers and vendors, their livelihood abruptly suspended, have protested in Mumbai. The leather industry is in turmoil. Beef is consumed not only by Indian Muslims and Christians, but also by many low-caste Hindus, for whom it is an essential source of affordable protein. The poorest waste nothing, from beef innards to coagulated blood, while their religion pragmatically turns a blind eye. Low-caste Dalit Hindu students, and others, have organized beef-eating festivals to protest the infringement on their culture and identity.

With the recent re-criminalization of gay sex, bans on controversial books and films and even an injunction against the use of the colonial-era name “Bombay” instead of “Mumbai” in a Bollywood song, the new laws join a growing list of restrictions on personal freedom in India. Already, the police in the city of Malegaon have arrested three Muslim men accused of calf slaughter, and ordered livestock owners to submit mug shots of cows and bulls to a cattle registry, to create a record in case any of them go missing.

Recent Prisoner Free Exercise Cases

In Adams v. Scott, 2015 U.S. Dist. LEXIS 47928 (CD IL, April 10, 015), an Illinois federal district court permitted five non-denominational civil detainees to move ahead with their complaint that their RLUIPA and free exercise rights were infringed by refusal to create non-denominational religious services and by a policy that requires them to declare an affiliation with a denomination in order to attend services.

In Prim v. Jackson, 2015 U.S. Dist. LEXIS 48970 (SD OH, April 14, 2015), an Ohio federal magistrate judge recommended dismissing a number of complaints by an inmate, including his request that Natsarim be recognized as a subcategory under the Messianic Jewish faith and access to religious instructional videos.  However he recommended that plaintiff be permitted to proceed to an evdentiary hearing on his request for a preliminary injunction regarding Sabbath services, recognition of plaintiff's religious calendar, sack meals on Friday night for the Sabbath and retaliation for filing grievances.

In Clark v. Davis, 2015 U.S. Dist. LEXIS 4975 (ND CA, April 15, 2015), a California federal district court allowed a Messianic Jewish death row in mate to proceed with his challenge to a policy that limits his access to clergy.

In Masas v. Conte, 2015 U.S. Dist. LEXIS 50009 (ND NY, April 16, 2015) a New York federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 50527, March 25, 2015) and dismissed for failure to exhaust administrative remedies an inmate's complaint that correction officers threatened to assault him if he did not shave his beard that he wore because of his Muslim religious faith.

In Gomez v. Chill, 2015 U.S. Dist. LEXIS 50800 (SD NY, April 17, 2015), a New York federal magistrate judge recommended on various procedural and substantive grounds dismissing the complaint by a Messianic Jewish inmate that he was denied kosher food and the right to attend Jewish religious services.

In Moore v. Hartley, 2015 U.S. Dist. LEXIS 50904 (D CO, April 17, 2015), a Colorado federal district court dismissed an inmate's complaint that while at a private correctional re-entry center his free exercise, RLUIPA and Establishment Clause rights were infringed by the requirement that each morning, inmates stand and recite the correctional center's "Credo", "Attitude", and "Choices."

Cranston Schools Go Back To Calendar With Religious Holdiays Off

As previously reported, this current year the Cranston, Rhode Island School Committee changed their traditional calendar that had school off for Rosh Hashanah, Yom Kippur and Good Friday. This generated a lawsuit by teachers who, under the revised policy, did not qualify for taking Good Friday off with pay.  On Friday, the Providence Journal reported that the Cranston School Committee has now decided to reinstate its traditional policy. It adopted a 2015-16 school calendar that again has Rosh Hashanah, Yom Kippur and Good Friday as school holidays.

Suit Filed Over Sale of Lower East Side Synagogue To Developer

The New York Post reported on April 10 that congregants at the Home of the Sages synagogue of the Ger Hasidic sect on New York City's Lower East Side are suing to invalidate the $13 million sale of their building to developer Peter Fine.  $10 million from the sale will be used to build a Ger synagogue in Israel, while the other $3 million will go to the synagogue's president, Rabbi Samuel Ashkenazi. The April 16 Jewish Business News has more on the story:

[S]ince the synagogue is a non-profit a court must sign off its sale. The sale price is well below market value for the area which set off a lot of red flags.... The synagogue allegedly had a member meeting to pass this deal — even though the ‘members’ were people from Queens who had never stepped foot in the synagogue to worship there.”...

Now here’s where things get complicated. Rabbi Ashkenazi has also been accused by ... [the congregants' lawyer] of using funds from the sale to in effect pay himself $45,000 a year to lease space in his Queens home to the congregation. Apparently, Ashkenazi’s wife was the one who signed the new lease with the synagogue.

In another strange twist the judge, Arthur Engoron, who was set to preside over the preliminary court hearing in New York yesterday, recused himself from the case without saying why.

RLUIPA Lawsuit Settled By California City

The Long Beach Press Telegram reports that the Bellflower, California city council agreed last Monday to settle a RLUIPA lawsuit filed against it by Glory Tabernacle Christian Center, a church that welcomes members of the LGBT community.  The church claims discrimination. The city refused to issue it a use permit because of insufficient parking, even though a similar requirement was not imposed on a nearby mortuary and fire museum.  The city will grant the church a permit to hold Sunday services for up to 150 people and hold week day meetings for up to 50 people.  It will also pay the church $1.775 million in damages. If Council approves the use permit at its May meeting, the church will dismiss its suit 90 days later and notify the Justice Department of the settlement.

Evangelist Blocked From Festival Sues

St. Paul Pioneer Press reports on a lawsuit filed April 3 by the Center for Religious Expression (press release) on behalf of evangelist David Miller who was prevented by police from preaching at the 2014 Irish Fair-- an annual event on the Mississippi River near downtown St. Paul.  Miller and a group of friends, wearing expressive T-shirts, were about to enter the fair grounds to preach and hand out literature when they were told by police that the Irish Fair had a special-event permit, so it could make the rules (including banning protests). The lawsuit contends that the total ban on preaching at the festival being held on public property violates Miller's free speech rights.

Tennessee Senate Kills Bill To Make Bible the Official State Book

According to The Tennessean, the Tennessee state Senate yesterday effectively killed the controversial bill, passed by the House a day earlier, that would have made the Bible the state's official book. The Senate voted 22-9 to send the bill back to the Judiciary Committee for study in light of the state attorney general's opinion concluding that the bill was unconstitutional. (See prior posting.) Republican Senate Majority Leader Mark Norris, who led the effort to send the bill back to committee, said:

All I know is that I hear Satan snickering. He loves this kind of mischief. You just dumb the good book down far enough to make it whatever it takes to make it a state symbol, and you're on your way to where he wants you.

 Lt. Gov. Ron Ramsey, another critic of the bill, said:

We don't need to put the Bible beside salamanders, tulip poplars and 'Rocky Top' in the Tennessee Blue Book to appreciate its importance to our state.

[Thanks to Blog From the Capital for the lead.] 

Justice Alito Stays 3rd Circuit's Non-Profit Contraceptive Mandate Decision

Late on Wednesday, U.S. Supreme Court Justice Samuel Alito issued an order (full text) temporarily staying the Third Circuit's mandate in Zubik v. Buwell. In the case, the 3rd Circuit upheld the Obama Administration's rules accommodating the Affordable Care Act contraceptive coverage mandate to religious non-profits. (See prior posting.)  Religious non-profits contend that the accommodation is inadequate. A response by the government is due to Justice Alito by April 20.  The 3rd Circuit opinion covered four separate lawsuits involving a variety of claimants, both for-profit and non-profit.  Justice Alito's order applies only to two of the cases that involve the Catholic Diocese of Erie and the Catholic Diocese of Pittsburgh along with affiliated charities and schools in the two dioceses. National Law Journal reports on the decision.

Over 140 Amicus Briefs Filed In Upcoming SCOTUS Same-Sex Marriage Cases

Oral arguments before the U.S. Supreme Cout in the same-sex marriage cases are scheduled for April 28.  The Court has received over 140 amicus briefs in the cases-- with slightly more supporting petitioners than respondents.  Links to the full text of almost all the amicus briefs are available here from SCOTUSblog.

Tennessee AG Says Bill To Make Bible the State Book Is Unconstitutional; House Passes It Anyway

On Monday, Tennessee Attorney General Herbert Slatery issued Opinion No. 15-34 concluding that pending Tennessee legislation that would designate The Holy Bible as the official state book violates the federal Establishment Clause as well as Tennessee  Constitution Art. I, Sec. 3 barring preference to any religious establishment or mode of worship. The Opinion says in part:

Irrespective of the legislation’s actual purpose, common sense compels the conclusion that designation of the Bible as the official state book in practice and effect conveys a message of endorsement.

AP reported that following the issuance of the AG's Opinion, Tuesday saw "a sometimes raucous floor debate" on HB615/ SB1108, with the bill's sponsor arguing that it does not violate the Establishment Clause. On Tuesday, the House adopted an amendment (full text) to the bill setting out in a preamble over a dozen secular justifications for naming the Bible as the state book. Here are two of them:

WHEREAS, printing the Bible is a multimillion dollar industry for the state with many top Bible publishers headquartered in Nashville, including Thomas Nelson, Gideons International, and United Methodist Publishing House;...

WHEREAS, the tulip poplar was chosen as the state tree because, according to the Blue Book, “it grows from one end of the state to the other” and was “extensively used by the pioneers of the state” for practical purposes such as the construction of “houses, barns, and other necessary farm buildings”, similar to how the Holy Bible is found in homes across the state and has been “used” for practical purposes such as recording family histories; 

On Wednesday, the Tennessee House of Representatives passed the bill as amended by a vote of 55-38, and sent it to the Senate for its consideration. [Thanks to Tom Rutledge for the lead].

Canadian Supreme Court Rejects Prayer At City Council Meetings

In an important church-state decision, the Supreme Court of Canada yesterday held that a facially non-sectarian prayer prescribed by a municipal by-law to be said before the start of City Council meetings violates the duty of religious neutrality imposed by the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms.  At each Council meeting, the mayor would recite the prayer, while at the beginning and end of the prayer he and other Council members would make the sign of the cross and say "in the name of the Father, the Son and the Holy Spirit".  In Mouvement laïque québécois v. Saguenay (City), (SCC, April 15, 2015), the recitation of the prayer was challenged by an atheist who attended Council meetings. The Court said in part:

Neither the Quebec Charter nor the Canadian Charter  expressly imposes a duty of religious neutrality on the state. This duty results from an evolving interpretation of freedom of conscience and religion....

By expressing no preference, the state ensures that it preserves a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally. I note that a neutral public space does not mean the homogenization of private players in that space. Neutrality is required of institutions and the state, not individuals.... On the contrary, a neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity. The neutrality of the public space therefore helps preserve and promote the multicultural nature of Canadian society enshrined in s. 27  of the Canadian Charter.

UPI reports on the decision. [Thanks to Scott Mange for the lead.]

California Appeals Court: No Duty To Warn Congregants of Child Molester

In Conti v. Watchtower Bible & Tract Society of New York, Inc., (CA App., April 13, 2015), a California state appeals court held that elders of a Jehovah's Witness congregation had no duty to warn the congregation in general, or parents, that another member of the congregation had previously molested a child.  In the case, Candace Conti who as a child was subsequently molested by the same fellow Church member (Jonathan Kendrick), sued the Congregation and its national Church body. The court concluded that a duty to warn arises only where there is a special relationship with the injured party:

While it is readily foreseeable that someone who has molested a child may do so again, the burden the duty to warn would create and the adverse social consequences the duty would produce outweigh its imposition. The burden would be considerable because the precedent could require a church to intervene whenever it has reason to believe that a congregation member is capable of doing harm, and the scope of that duty could not be limited with any precision..... Child molestation is a particularly heinous evil, but which other potential harms would the church have a duty to avert?... Imposition of a duty to warn would also have detrimental social consequences. It would discourage wrongdoers from seeking potentially beneficial intervention, and contravene the public policy against disclosure of penitential communications....

However the court upheld the jury's finding that the Church was negligent in failing to prevent Kendrick from performing church-sponsored field service-- door-to-door preaching-- alone with a minor. That gave Kendrick particular opportunity to molest Conti.

Based on these conclusions, the appeals court, as reported by the San Francisco Chronicle, reversed the $8.6 million punitive damage award against the national Watchtower Society, but affirmed damages for negligence awarded against the defendants for $2.8 million.

Oklahoma AG Promotes Right of Schools To Have Neutral Policy Allowing Bible Distribution

As reported by Raw Story, on Friday attorneys for the Duncan, Oklahoma Public Schools responded (full text of letter) to an earlier letter from the Appignani Humanist Legal Center complaining that an elementary school teacher had offered Bibles to her students. The school system will advise teachers and administrators not to hand out Bibles or other religious material and not encourage students during class time to take religious materials from others.  It will stop any distributions of Bibles at elementary schools during school hours or immediately before or after, though reserves the right to permit distributions at high schools.

Meanwhile yesterday Oklahoma's Attorney General Scott Pruitt announced a new program "to defend religious freedom and provide support to Oklahoma schools facing intimidation. The assistance includes creating a statewide training program to equip superintendents, teachers, parents, school board members, and others to know their rights."  In a letter to school superintendents (full text) that focuses on complaints that had been made by the Freedom From Religion Foundation, Pruitt said in part:

Oklahomans do not need to live in fear that their government has become hostile to religion. Schools have a right to enact neutral policies that allow all viewpoints on religion to thrive. As the Attorney General of Oklahoma, I will not stand idly by while out-of-state organizations bully you or any other official in this State into restricting the religious freedom the Founders of this country held dear. 

USCIRF Press Release On Yom Hashoah

The U.S. Commission on International Religious Freedom yesterday issued a press release noting:

April 15 is Yom Hashoah, Holocaust and Heroism Remembrance Day, an international day commemorating the six million Jews murdered by Nazi Germany and her allies.  It is a solemn day of remembrance, recalling those who suffered and died and those who fought against this evil.  

“As we honor the memory of the victims of the Holocaust and those who fought against the Nazis and their sympathizers, we must go beyond remembering and condemn the torrent of virulent anti-Semitism that has been unleashed seventy years after the Holocaust’s end.  We also must condemn the continued existence and growth of Holocaust denial, an especially solemn responsibility given the gradual disappearance of the generations who witnessed the Nazi evil," said Dr. Katrina Lantos Swett, Chair of the U.S. Commission on International Religious Freedom (USCIRF). 

Florida Lawsuit Claims Court Enforcement of Parenting Plan For Circumicison of 4+ Year Old Boy Is Unconstitutional

In Florida, a dispute between the father and mother of a now four-and-one-half year old boy has led to the filing of a federal lawsuit challenging the constitutionality of a state trial court order enforcing a parenting plan provision  calling for the boy's circumcision.  The complaint (full text) in C.R.N.H. v. Nebus, (SD FL, filed 4/13/2015), filed by the mother on her own behalf and on behalf of the child, names the boy's father, Dennis Nebus, as well as all judges and sheriffs in Florida, as defendants.  As reported by the Palm Beach Sun Sentinel and AP, the boy was born in October 2010.  In 2012, his parents who were never married agreed to a parenting plan which was approved by a Florida trial court.  The plan called for the father to arrange for the son's circumcision.  Subsequently the mother changed her mind about allowing the procedure and went into hiding at a battered women's shelter with the boy.  The father has no religious reasons for desiring the boy's circumcision. It is disputed whether he has a medical reason.

The complaint contends that under the circumstances of this case, forcing circumcision of the boy amounts to assault and battery and would impair the parents relationship with their son. It also claims that the child has been denied procedural due process. the right to privacy and bodily integrity, equal protection, and free exercise of religion. Explaining the free exercise argument, the complaint contends: "C.R.N.H. is Christian and the New Testament affirmative [sic] discourages of the practice of circumcision." The complaint stresses numerous times that its arguments are made in light of the child's current age and the lack of any religious reason for the circumcision request.

Vatican Delays Approval of France's Gay Nominee As Ambassador

Reuters reported yesterday that the Vatican has still not approved the Jan. 5 nomination of Laurent Stefanini as France's new ambassador to the Holy See. Stefanini who once served as the number two person in France's Vatican Embassy has more recently been President Francois Hollande’s head of protocol.  According to Reuters:

French Catholic daily La Croix cited an unnamed source as saying the Vatican considered it “provocation” that France’s Socialist government, which in 2013 passed a law permitting gay marriages, had proposed a homosexual for the post.

Suit Challenges Guam's Ban On Same-Sex Marriage

Yesterday a suit was filed in federal district court in Guam challenging the constitutionality of Guam's ban on same-sex marriage.  The complaint (full text) in Aquero v. Calvo, (D Guam, filed 4/13/2015) was brought by a lesbian couple who wish to marry on Guam where they live.  The complaint points out the distance plaintiffs would need to travel to go to a state where they could now legally marry. The 9th Circuit Court of Appeals that includes Guam has already held other states' same-sex marriage bans unconstitutional. (See prior posting,) Pacific News Center reports on the lawsuit.

3rd Circuit Again Rejects Challenge To New Jersey Reparative Therapy Ban

The U.S. 3rd Circuit Court of Appeals yesterday, for a second time, rejected a constitutional challenge to a New Jersey statute (A3371) that prohibits providing "sexual orientation change efforts" counseling to minors.  Last September, in King v. Governor of New Jersey, the 3rd Circuit rejected free speech and free exercise challenges to the law brought by counselors offering the therapy. (See prior posting.) Now in Doe v. Governor of the State of New Jersey, (3d Cir., April 13, 2015), the 3rd Circuit also rejected challenges brought by a minor and his parents who claim the law abridges their free exercise rights, their right to receive information and their parental rights to control the upbringing of their children. The Court relied on its King opinion in dealing with the free exorcise challenge.  There the Court had found the law to be neutral and of general applicability. It held that the right to receive information is not broader than the right to disseminate it.  Finally, rejecting the parents' due process argument, the Court held that parental rights do not include the right to choose a specific medical or mental health treatment that the state has reasonably concluded is harmful. Reuters reports on the decision.

White House Will Host "The Gospel Tradition: In Performance"

As part of the "In Performance At the White House" series, tomorrow night President and Mrs. Obama will host a program on The Gospel Tradition. According to the White House announcement last week,:

The event will pay tribute to the fundamental role gospel music has played in the American musical tradition and the important artists and repertoire that have marked its vibrant history. The program will include performances by Bishop Rance Allen, Pastor Shirley Caesar, Aretha Franklin, Rodney Crowell, Rhiannon Giddens, Emmylou Harris, Darlene Love, Lyle Lovett, Tamela Mann, the Morgan State University Choir, and Michelle Williams — with T Bone Burnett as executive music director and Billy Maxwell as music director.

The program will be streamed live a 7 pm ET at  https://www.whitehouse.gov/live , and will be broadcast by PBS at 9 pm ET on June 26. Tomorrow during the day the First Lady will host a workshop for middle school, high school and college students on The History of Gospel Music.

Recent Articles of Interest

From SSRN:

• Paul Horwitz, The Religious Geography of Town of Greece v. Galloway, (Supreme Court Review, Forthcoming).
• Leonid Sykiainen, Is Sharia Compatible with Contemporary Russian Law?, (Higher School of Economics Research Paper No. WP BRP 49/LAW/2015, April 2015).
• Leslie C. Griffin, A Word of Warning from a Woman: Arbitrary, Categorical and Hidden Religious Exemptions Threaten LGBT Rights, (LGBT Antidiscrimination Law and Policy After Hobby Lobby Symposium, March 2015).
• Naheed Ghauri, Domestic Violence (Q.4:34) and the Qur’Ānic Model: Q.4:34 – Hermeneutical Analysis of Verse 34 and the Surrounding Controversy, (March 9, 2015).
• Amna A. Akbar, National Security's Broken Windows, (UCLA Law Review, Forthcoming).
• Danieli Evans, Commercial Religious Exercise: Translating the Commercial Speech Doctrine to the Free Exercise Clause, (Georgetown Law Journal, Vol. 103, No. 50, 2014).
• Gary J. Simson, Religious Arguments by Citizens to Influence Public Policy: The Lessons of the Establishment Clause, (Mercer Law Review, Vol. 66, p. 273, 2015).
• Carlos A. Ball, Obsecenity, Morality, and the First Amendment: The First LGBT Rights Cases Before the Supreme Court, (Columbia Journal of Gender and Law, Vol. 28, No. 2, 2015).
• Christopher R. Leslie, Justice Alito's Dissent in Loving v. Virginia, (Boston College Law Review, Vol. 55, 2014).

From SmartCILP:

• Delaram Farzaneh, One Step Forward, Two Steps Back: A Brief History of Legal Discriminations Against Women in Iran and the Violations of International Human Rights. 20 Annual Survey of International & Comparative Law 201-237 (2014).
• Isaac Kfir, Feminist Legal Theory As a Way to Explain the Lack of Progress of Women's Rights in Afghanistan: The Need for a State Strength Approach. 21 William & Mary Journal of Women & Law 87-152 (2014).
• Maita, Aida. Arbitration of Islamic Financial Disputes. 20 Annual Surey of International & Comparative Law 35-71 (2014).
• Shari'a and Halakha in North America. Introduction by Mark D. Rosen; roundtable discussion with Wajahat Ali, Lee Ann Bambach, Samuel Freedman, participants; articles by Charlotte Elisheva Fonrobert, Mustafa R.K. Baig and Michael A. Helfand; keynote addresses by Michael J. Broyde and Mohannad H. Fadel. 90 Chicago-Kent. Law Review 3-181 (2015).

Recent Prisoner Free Exercise Cases

In Wilkinson v. Geo Group, Inc., (11th Cir., April 7, 2015), the 11th Circuit affirmed the dismissal of a Santeria inmate's complaint that during a cell search a Santeria artifact was confiscated and a shrine destroyed. Authorities had offered to reimburse him for the shrine.

In Giorgio v. Jackson, 2015 U.S. Dist. LEXIS 44243 (D MA, April 1, 2015), a Massachusetts federal district court allowed Native American inmates to proceed with their complaint that they were denied access to smudging materials and ceremonies.  Claims regarding denial of feathers, off-site pow-wows and purification lodge ceremonies were dismissed.

In Mitchell v. Mississippi Department of Corrections, 2015 U.S. Dist. LEXIS 43600 (ND MI, April 2. 2015), a Mississippi federal district court dismissed a Muslim inmate's complaint that Friday Jumu'ah services were cancelled for a number of months in one prison unit for security reasons.

In Varsanyi v. Piazza, 2015 U.S. Dist. LEXIS 46473, (MD PA. April 9, 2015), a Pennsylvania federal district court dismissed a complaint by a now-released Jewish inmate that the correctional facility's kosher diet did not meet Orthodox Jewish standards, that he was denied visits by an Orthodox Jewish rabbi and denied religious materials.

In Tamayo v. Fisher, 2015 U.S. Dist. LEXIS 46694 (ED CA, April 9, 2015), a California federal magistrate judge recommended that a Muslim inmate be allowed to proceed with his free exercise and RLUIPA complaint that his request to be placed on the list for Ramadan meals was ignored.

In Porter v. Biter, 2015 U.S. Dist. LEXIS 46725 (ED CA, April 9, 2015), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that he was denied permission to legally change his name to one consistent with his Islamic faith.

Jindal Tells NRA That After Religious Liberty Challenges Comes Challenge To 2nd Amendment Rights

Louisiana Governor Bobby Jindal, a potential Republican candidate for President, is staking out a strong conservative religious liberty position. The Tennessean reports that Jindal, speaking to the National Rifle Association convention in Nashville on Friday, stressed religious liberty concerns for his audience in this way:

Now, I know you did not come here today expecting to hear a speech on religious liberty.  But my friends, if these large forces can conspire to crush the First Amendment, it won't be long before they come after the Second Amendment. Michael Bloomberg is already trying. He's pressuring grocery stores and restaurants to ban guns. Next, he will bully sporting goods stores to quit selling guns and ammo. Bloomberg can not beat Chris Cox and Wayne LaPierre in the elections — so he's trying to beat us in the boardrooms of corporate America.

Long Arm Jurisdiction Upheld Against Churches Using Plaintiff's Men's Ministry Logo

In Mighty Men of God, Inc. v. World Outreach Church of Murfreesboro Tenn., Inc., (MD FL, April 6, 2015), a Florida federal district court ruled that it can exercise personal jurisdiction over two religious organizations in Murfreesboro, Tennessee who were sued by a Florida-based Christian educational service for improperly using its trademark.  Plaintiff offered conferences directed at Christian men using the trademarks "Might Men of God" and "Mighty Men."  Defendants, World Outreach Church and Intend Ministries, organized conferences in Tennessee using the same names. The court held that under Florida's long-arm statute which was used to obtain jurisdiction over defendants, the intentional trademark infringement claims constitute tortious acts within Florida.

European Court Will Hear Case of Greek Muslim Widow Contesting Inheritance Rules

The Guardian yesterday reported on the first case to be taken to the European Court of Human Rights by a Greek Muslim woman who objects to Greece's application of Muslim personal law to her inheritance rights. The 1923 Treaty of Lausanne between Greece and Turkey provides in part:

Article 42. The Turkish Government undertakes to take, as regards non-Moslem minorities, in so far as concerns their family law or personal status, measures permitting the settlement of these questions in accordance with the customs of those minorities....

Article 45.  The rights conferred by the provisions of the present Section on the non-Moslem minorities of Turkey will be similarly conferred by Greece on the Moslem minority in her territory.

In 2013, Greece's Supreme Court, applying Article 45, held that matters of inheritance involving Greece's Muslim minority in Thrace must be resolved by muftis under sharia law.  Chatitze Molla Sali had by will been left all her husband's property. The husband's family contested the will, and a local mufti ruled that under sharia law, Muslims may not make wills. Instead property passes according to sharia rules.

Group Files FOIA Suit Seeking Disclosure of New IRS Church Audit Procedures

Alliance Defending Freedom filed a Freedom of Information Act lawsuit on Thursday seeking IRS documents on changes in  procedures for church tax inquiries or examinations.  The complaint (full text) in Alliance Defending Freedom v. Internal Revenue Service, (D DC, filed 4/9/2015) also asks for all documents that were referred to in a July 2014 press release by Freedom From Religion Foundation. That press release (see prior posting) indicated that FFRF had settled a lawsuit against IRS over non-enforcement of non-profit limits against churches because IRS had now created new procedures for initiating church investigations. One News Now reports on ADF's lawsuit.

3rd Circuit Invalidates Portion of Religious Worker Visa Rules

The U.S. Third Circuit Court of Appeals in Shalom Pentecostal Church v. Acting Secretary U.S. Department of Homeland Security, (3d Cir., April 7, 2015), invalidated a provision in Department of Homeland Security regulations on qualification for an I-360 special immigrant religious worker visa.  The court summarized its decision as follows:

The Immigration and Nationality Act (INA) enables an immigrant to obtain a visa as a “special immigrant religious worker” if the immigrant meets certain statutory criteria, including that he has been “carrying on” religious work for at least the two years preceding the filing of the visa petition.  This case presents the question whether a requirement imposed in the relevant regulation [8 CFR 204.5(m)] that this religious work have been carried on “in lawful immigration status” crosses the line from permissible statutory interpretation by the responsible agency to ultra vires regulation contrary to the clear intent of Congress.....  [T]he District Court here concluded that the regulation is ultra vires because it contradicts the plain language of the INA..... For the reasons set forth below, we agree. We therefore will affirm the District Court’s order as to the invalidity of the regulation but will reverse and remand for further fact-finding on the remaining visa criteria.

Courthouse News Service reports on the decision.

Southern Baptist Convention Urges Prayer Sessions On Morning of Same-Sex Marriage Arguments

The U.S. Supreme Court hears oral arguments in the same-sex marriage cases on April 28.  The Ethics & Religious Liberty Commission of the Southern Baptist Convention in a web posting is urging organizations and churches to set aside time that morning "to appeal to God to preserve marriage in our land."  It sets out a sample prayer guide to use.  It adds:

The command to pray for leaders is an appeal to pray for leaders, who in Paul’s time were avowed enemies of Christ and his church. Still, despite their hostility to the burgeoning Christian movement, Paul says that government is a gift from God meant for our good, and that Christians should pray for government officials’ betterment and their wisdom; that they’d execute justice accurately and indiscriminately. So we must....

The outcome of this decision will shape the landscape of the church’s ministry in the United States for generations to come; and it will have significant consequences on the future of religious liberty.

[Thanks to Center for Inquiry for the lead.] 

White House Supports National Ban on LGBTQ Conversion Therapy

The White House has announced that the Administration supports a national ban on sexual orientation conversion therapy for minors.  In an Official White House Response to a petition on We the People website, senior advisor Valerie Jarrett wrote in part:

When assessing the validity of conversion therapy, or other practices that seek to change an individual’s gender identity or sexual orientation, it is as imperative to seek guidance from certified medical experts. The overwhelming scientific evidence demonstrates that conversion therapy, especially when it is practiced on young people, is neither medically nor ethically appropriate and can cause substantial harm.

As part of our dedication to protecting America’s youth, this Administration supports efforts to ban the use of conversion therapy for minors.

New York Times reporting on Jarrett's response also reported that an “all-gender restroom” has been created in the Eisenhower Executive Office Building to provide an additional option for transgender individuals working on the White House staff who are not comfortable using either the men’s or women’s restrooms.

New Employment Discrimination Suits-- Ballpark Ushers and Firefighters

NBC Washington reported yesterday that three ballpark ushers for the Washington Nationals who lost their jobs have sued alleging religious discrimination against Seventh Day Adventists. Plaintiffs claim in the federal court lawsuit that the team recently changed its work policy and schedule for ushers in a way that precludes them from taking off for religious reasons from Friday evening and Saturday afternoon games. There has also been an increase in home games and concert events at the park. During the 2013 season, the team accommodated plaintiffs' Sabbath observance, but at the end of the season fired them because of their need to miss work on their Sabbath.

Connecticut Law Tribune reports on a recent suit in federal district court in Connecticut by a Jehovah's Witness firefighter who contends that there has been a pattern of harassment against him ever since he refused several years ago for religious reasons to march in a Memorial Day Parade. He also refuses to take part in flag-raising ceremonies at the Hamden fire house.

Ministry Can Proceed On RLUIPA Equal Terms Claim Over Transitional Housing

In Holy Ghost Revival Ministries v. City of Marysville, (WD WA, April 7, 2015), pastors who operate a group "Mack houses"-- low-cost transitional housing facilities for released convicts, many of whom are registered sex offenders-- brought suit in federal district court.  They claim that the city has a policy of discriminating against them because of their religion and that city officials promote citizen complaints about Mack houses.  The court concluded that there was not religious discrimination because the city's objections rest on the fact that the housing caters to registered sexual offenders.  However the court did permit plaintiffs to proceed on one of their RLUIPA claims:

Because the complaint alleges that the Mack Houses, which are religious institutions, were singled out by the City for enforcement of the zoning code, the court concludes that Plaintiffs have adequately alleged treatment on a less than equal basis with secular comparators, such as other group housing institutions.

11th Circuit: Moorish Property Owner May Replead Constitutional Claims

In Bey v. City of Tampa Code Enforcement, (11th Cir., April 8, 2015), the U.S. 11th Circuit Court of Appeals dismissed, with leave to amend, a complaint alleging free exercise, RLUIPA and due process violations against a Tampa Code enforcement officer who cited Nura Washington Bey for displaying unpermitted signs, building without a permit, and failing to obtain a special use permit to operate a private recreational facility.  At issue was property Bey owned, known as Al Moroc Humanity Park, which was used each Sunday by Bey and her "fellow Moorish nationals" to practice their Islamic faith.  The court held that while Bey might be able to allege facts to support her First Amendment and RLUIPA claims, she had alleged little in her complaint. Instead she relied primarily on her claim that as a Moorish national she is outside the jurisdiction of the magistrate who presided at the Code enforcement hearing, and that she is entirely exempt from local land use regulations by reason of the First Amendment.

Jewish Prison Chaplaincy In Canada Featured

Canadian Jewish News today carries an in-depth cover story on Jewish prison chaplaincy in Canada.  It focuses particularly on the work of Rabbi Zushe Silberstein, head of Chabad Chabanel in Montreal.  Correctional Service Canada says there are 177 inmates in Canadian prisons who identify as Jewish.

Obama and Biden Speak At White House Easter Prayer Breakfast

Both Vice President Joe Biden and President Obama yesterday addressed the annual Easter Prayer Breakfast at the White House (full text of remarks). While Catholic News Service reported at length on his religious remarks, much of the media gave prime billing to President Obama's three apparently off-script sentences:

On Easter, I do reflect on the fact that as a Christian, I am supposed to love.  And I have to say that sometimes when I listen to less than loving expressions by Christians, I get concerned.  But that's a topic for another day. (Laughter and applause.)

 Christian Post covers the event.

5th Circuit Hears Oral Arguments In ACA Non-Profit Contraceptive Mandate Case

The U.S. 5th Circuit Court of Appeals yesterday heard oral arguments (audio recording of full arguments) in East Texas Baptist University v. Burwell.  In the case, a Texas federal district court enjoined the government from enforcing the Affordable Care Act contraceptive coverage mandate against two Baptist universities and a Presbyterian seminary.  The court concluded that under RFRA the contraceptive mandate accommodation calling for objecting religious non-profits to complete a self-certification form imposes a substantial burden on the schools' free exercise rights. (See prior posting.) Federal agencies have made some changes in the manner in which non-profits may opt out subsequent to the district court decision.  Houston Chronicle reports on the oral arguments.

FOIA Lawsuit Will Seek Documents On Religious Organizations Care For Imigrant Minors

The ACLU announced last Friday that it plans to file a Freedom of Information Act lawsuit to obtain documents relating to HHS Administration for Children and Families' contracts with Catholic Charities and other religious organizations for care of refugee and undocumented minors.  ACLU claims that these organizations are restricting refugee and undocumented immigrant teenagers' access to reproductive health services, including contraception and abortion. An ACLU staff attorney said:

We believe deeply in religious freedom. But religious freedom does not include the right to take a government contract that requires providing access to health care, and then refuse to provide a teen who has been raped the health care she needs.

The ACLU added:

Recently, the federal government released proposed regulations requiring federal contractors who care for unaccompanied minors to provide access to contraception, emergency contraception, and abortion if a teen has been raped. In response, the United States Conference of Catholic Bishops, one of the groups that received a government-funded contract to provide care to these teens, said any requirement that they provide information about contraception or abortion, even a referral or the arrangement for such services, would violate their religious freedom.

[Thanks to Will Esser via Religionlaw for the lead.]

Massachusetts Catholic Bishops Issue Letter Opposing Death Penalty For Marathon Bomber

In Boston, as the jury in the trial of Boston Marathon bomber Dzhokhar Tsarnaev is about to begin its deliberations, the Catholic bishops of Massachusetts issued a letter (full text) setting out the Catholic Church's opposition to the death penalty for Tsarnaev:

The Church has taught that the cases in which the execution of the offender is an absolute necessity are “rare, if not practically nonexistent.”.... The defendant in this case has been neutralized and will never again have the ability to cause harm. Because of this, we, the Catholic Bishops of the Commonwealth of Massachusetts, believe that society can do better than the death penalty.

WCVB News reports on the Bishop's letter. The jurors in the case are not sequestered. (Background).  The letter, dated April 7, was in fact released yesterday ahead of the start of jury deliberations this morning. While the religious make-up of the jury does not appear to have been publicly reported, Massachusetts in almost 45% Catholic. (Background).

Dad Awarded Right To Make Medical Decisions Because Mom Objects To Vaccinations

In Archer v. Cassel, 2015 Conn. Super. LEXIS 515 (CT Super. Ct., March 10, 2015), a Connecticut trial court awarded the father of two children final authority to make health care decisions for them, largely because the mother has religious objections to their being vaccinated.

Tax Court Says Bet Din Arbitration Clause In Demand Trust Does Not Destroy Gift Tax Exclusion

In Mikel v. Commissioner, (USTC April 6, 2015), the U.S. Tax Court held that a clause in a demand trust (a so-called Crummey trust)  providing that any disputes about its interpretation "shall be submitted to arbitration before a panel consisting of three persons of the Orthodox Jewish faith" (a beth din) did not prevent distributions under the trust from qualifying for the annual gift tax exclusion.

Under the trust, 60 children and grandchildren of the husband and wife creating the trust had the right to demand a distribution of $24,000 per year. Trustees could also make additional distributions.  The trust provided that any beneficiary who filed an action in a court of law challenging a distribution would lose his or her benefits under the trust.  The IRS had contended that these provisions prevented the beneficiaries from receiving a "present interest in property"-- the requirement for the gift tax exclusion-- because as a practical matter the right to the distributions were not legally enforceable in court. The Tax Court disagreed concluding first that the right to a distribution would be enforceable before a bet din, and secondly that the clause discouraging court actions applies to discretionary distributions by the trustees, not annual demand amounts. BNA Daily Tax Report (subscription required) reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Webb v. Broyles, 2015 U.S. Dist. LEXIS 39755 (WD VA, March 30, 2015), a Virginia federal district court permitted a Buddhist inmate to move ahead with his claim that the food services manager falsely accused him of violating the religious diet agreement in order to save money by getting him suspended from the Common Fare diet.

In Guillory v. Weber, 2015 U.S. Dist. LEXIS 39127 (ND NY, March 27, 2015), a New York federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 39836, March 6, 2015) and dismissed complaints by a Jewish inmate regarding lack of religious services on one day, no meal for breaking Fast of Tammuz, and lack of a microwave to heat meals to eat in the Sukkah and inability to access the Sukkah on certain days.

In Washington v. Chaboty, 2015 U.S. Dist. LEXIS 40245 (SD NY, March 30, 2015), a New York federal district court refused to dismiss an inmate's complaint that his placement in the special housing unit was was unconstitutionally in retaliation for his giving a copy of the Qur'an with attached material to a corrections officer. The court dismissed his complaint about the lack of religious services and classes in SHU.

In Jenkins v. Stutsman County Correction Center Commissioner Chairman, 2015 U.S. Dist. LEXIS 40614 (D ND, March 30, 2015), a North Dakota federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 40612, March 4, 2015) and dismissed a Muslim inmate's complaint about the food furnished to him during Ramadan.

In Sessing v. Beard, 2015 U.S. Dist. LEXIS 40834 (ED CA, March 30, 2015), a California federal magistrate judge recommended dismissing a complaint by an inmate seeking to have authorities construct an outdoor worship area for the exclusive use of adherents of Asatru/Odinism. A shared pagan grounds area already existed.

In Ealy v. Keen, 2015 U.S. Dist. LEXIS 40883 (MD PA, March 31, 2015), a Pennsylvania federal district court dismissed a Muslim inmate's complaints regarding additional Islamic classes, lack of a separate Halal meal plan, Ramadan arrangements, and rules on prayer oil and religious materials.

In Butts v. Martin, 2015 U.S. Dist. LEXIS 40908 (ED TX, March 30, 2015), a Texas federal district court dismissed a Hasidic Jewish inmate's complaint that on one occasion he was told by a corrections officer that he would either have to remove his yarmulke or leave the chow hall.  He left.

In Thompson v. Holm, 2015 U.S. Dist. LEXIS 42028 (ED WI, March 30, 2015), a Wisconsin federal magistrate judge concluded that an allegedly wrongful removal of a Muslim inmate from the Ramadan participation list, which resulted in him missing two Ramadan meal bags, did not substantially burden his religious exercise.

Study of Projected World Religion Population Growth Shows Muslims Will Almost Equal Christians By 2050

The Pew Forum last week released a study titled The Future of World Religions: Population Growth Projections, 2010-2050. The study shows that Muslims are the only major religious group projected to increase at a faster rate than the wold population as a whole.  According to the report:

by 2050 there will be near parity between Muslims (2.8 billion, or 30% of the population) and Christians (2.9 billion, or 31%), possibly for the first time in history.

Buddhists are the only major religious group that is projected to have a decline in absolute numbers by 2050

Recent Articles of Interest

From SSRN:

• Marc O. DeGirolami, Free Exercise by Moonlight, (San Diego Law Review, Forthcoming).
• Twana A. Hassan, A Historical Analysis of the Development of Free Speech Justifications, (March 28, 2015).
• Frank S. Ravitch, Be Careful What You Wish for: Why Hobby Lobby Weakens Religious Freedom, (Brigham Young University Law Review, Forthcoming).
• Robert L. Howse, Joanna Langille & Katie Sykes, Pluralism in Practice: Moral Legislation and the Law of the WTO After Seal Products, (George Washington International Law Review, (2015 Forthcoming)).
• Mark Tushnet, Civil Rights Policy, (April 2, 2015).
• Marc Greendorfer, Brief of Tri Valley Law as Amicus Curiae in Support of Respondents in Same Sex Marriage Cases Nos. 14-556, 14-562, 14-571 and 14-574, (April 2, 2015).
• Scott D. Gerber, Law and Religion in Colonial Connecticut, (55 Am. J. Legal Hist. 205, (April 2015)).
• Christopher McCrudden, Transnational Culture Wars, (I.CON International Journal of Constitutional Law, Forthcoming).
• James M. Oleske, 'State Inaction,' Equal Protection, and Religious Resistance to LGBT Rights, (University of Colorado Law Review, Vol. 87, 2015, Forthcoming).

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

• Michael Ramsden & Luke Marsh, Same Sex Marriage in Hong Kong: The Case for a Constitutional Right, (The International Journal of Human Rights (Volume 19, Issue 1, January 2015, pages 90-103).
• M.B. Hooker, Succession to Muslim Estates in Singapore: Sources of Law and Choice of Law, (Australian Journal of Asian Law, Vol. 15, No. 2, article 5, 2014).
• Rebecca French, What Is Buddhist Law?, (Buffalo Law Review, Forthcoming).
• Haider Ala Hamoudi, Wasfi H. Al-Sharaa & Aqeel Al-Dahhan, The Resolution of Disputes in State and Tribal Law in the South of Iraq: Toward a Cooperative Model of Pluralism, (in Negotiating State and Nonstate Law: The Challenges of Global and Local Legal Pluralism (Michael A. Helfand, ed. Cambridge University Press 2015)).

From SmartCILP and elsewhere:

• Corri Zoli, Emily Schneider & Courtney Schuster, Armed Conflict and Compliance in Muslim States, 1947-2014: Does Conflict Look Different Under International Humanitarian Law?, 40 North Carolina Journal of International Law & Commercial Regulation 679-738 (2015).
• Church & State, April 2015 Issue.

Bakery's Refusal To Place Anti-Gay Messages on Cakes Is Not Religious Discrimination

Scripps Media reported Friday that the Colorado Civil Rights Division has recently ruled in a Letter of Determination finding No Probable Cause that a Denver bakery did not engage in religious discrimination when it refused to bake and decorate two cakes with anti-gay-marriage messages.  William Jack, a Christian, asked the Azucar Bakery to furnish cakes shaped like a Bible decorated with two groomsmen, a cross with red X over it, and with Biblical verses that deal with sin and homosexuality. The bakery owner told Jack that she would bake the cakes, but not decorate them as requested. Instead she would furnish him with a pastry bag and icing so he could decorate it as he wished.  The Division Director's decision concluded that the bakery owner refused to decorate the cakes because Jack had requested "derogatory language and imagery," and not because of Jack's Christian creed. Jack is filing an appeal with the Civil Rights Division. (See prior related posting.)

School Yoga Program Does Not Violate California Establishment Clause

In Sedlock v. Baird, (CA App., April 3, 2015), a California state appellate court held that the yoga program introduced in California's Encinitas Union School District does not violate the Establishment Clause of the California Constitution.  The court concluded:

While the practice of yoga may be religious in some contexts, yoga classes as taught in the District are, as the trial court determined, "devoid of any religious, mystical, or spiritual trappings." 

AP reports on the decision. [Thanks to Bradford Masters and Tom Rutledge for the lead.]

Easter/ Passover Stories From The Weekend

On Friday, the White House released a statement (full text) from the President sending Good Friday and Easter wishes, and indicating that the President will be hosting the annual Easter prayer breakfast on Tuesday.  The statement reads in part:

Michelle and I join our fellow Christians around the world in observing Good Friday and celebrating Easter this weekend. With humility and awe, we give thanks for the extraordinary sacrifice that Jesus made for our salvation. We rejoice in the triumph of the Resurrection. And we renew our commitment to live as He commanded ...

On Saturday, the White House posted a video message from the President sending Passover and Easter wishes.

On Friday, the White House posted a photo of this year's annual White House Seder along with a detailed menu for the evening.

A traditional Passover ritual is the "selling of chametz"-- a symbolic transfer of ownership of food that does not meet Passover standards so an individual will not own leavened foods during the holiday period. JTA reported Friday:

For the past 15 years [the Israeli government] has been symbolically selling all the chametz from state-owned companies, the prison service and Israel’s national emergency supply to Hussein Jabar, an Arab-Israeli resident of Abu Ghosh. It then buys it all back after the holiday is over. The price tag? $5,000.

Obama To Host Annual White House Seder Tonight

Tonight, the first might of Passover, President Obama will continue his annual tradition of holding a Seder for a small group of family and friends at the White House.  Yesterday's Boston Globe recounts the origins of the White House tradition-- a makeshift Seder held in a hotel basement, put together by campaign staff during the 2008 Pennsylvania Democratic primary campaign. Now-Massachusetts State Senator Eric Lesser was one of those staffers.  He and a number other of those former staffers continue to attend each year.  As reported by The Hill, Obama sees the Seder as a way for his daughters to experience the Exodus story.  Over the years, the reading of the Emancipation Proclamation has been added as part of the White House's ceremony.

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.