Louisiana Governor Issues Executive Order Protecting Traditional Marriage Advocates

After a committee of the Louisiana House of Representatives effectively killed the proposed Marriage and Conscience Act yesterday (New Orleans Times Picayune), Governor Bobby Jindal issued Executive Order BJ 15-8  (May 19, 2015) designed to accomplish the same thing. Its key provision prohibits government departments, commissions, boards, agencies and local governments from denying various benefits because a person acts in accordance with his religious belief that marriage should be only between one man and one woman.  Specifically government is not to deny or revoke a tax exemption, disallow deduction of a charitable contribution, or exclude a person from receiving any state grant, contract licensure, accreditation or employment on this basis.

7th Circuit Denies Notre Dame Preliminary Injunction In Its Contraceptive Mandate Challenge

Deciding the case on remand from the Supreme Court (see prior posting), the U.S. 7th Circuit Court of Appeals in a 2-1 decision in University of Notre Dame v. Burwell, (7th Cir., May 19, 2015), refused to grant a preliminary injunction to Notre Dame University in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits.  Federal regulations allow religious non-profits to file a form notifying their insurer or plan administrator of their objection to providing contraceptive coverage.  When that is done, the insurer or administrator must provide coverage directly.  Judge Posner's majority opinion says in part:

Notre Dame claims to be complicit in the sin of contraception. It wants to dissolve that complicity by forbidding Aetna and Meritain ... to provide any contraceptive coverage to Notre Dame students or staff.... It regards its contractual relationship with those companies as making the university a conduit between the suppliers of the coverage and the university’s students and employees.... 

Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs. As far as we can determine from the very limited record, the only “conduit” is between the companies and Notre Dame students and staff; the university has stepped aside. 

Judge Hamilton wrote a concurring opinion focusing on the Supreme Court's favorable discussion of the accommodation for religious non-profits in its Hobby Lobby opinion. Judge Flaum wrote a dissenting opinion arguing that "the law turns Notre Dame into a conduit for the provision of cost-free contraception." Wall Street Journal reports on the decision.

Northern Ireland Court Says Bakery Violated Anti-Discrimination Laws In Refusing Cake Promoting Gay Marriage

As reported by the New York Times,  yesterday in a widely followed case a court in Northern Ireland held that owners of a Belfast bakery chain illegally discriminated on the basis of sexual orientation when they refused on religious grounds to provide a customer with a cake featuring the Sesame Street characters Bert and Ernie and the inscription "Support gay marriage."  In Lee v. Ashers Baking Co. Ltd, (County Ct. N. Ireland, May 19, 2015), the court said:

Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted.  The law requires them to do just that...

The court observed that a different result "would allow a religious belief to dictate what the law is."  The widely followed case grew out of a cake order placed by a gay man who planned to attend a private event marking the end of Northern Ireland anti-homophobia week.

A Graduation Prayer Decision Worth Reading At Length

Constitutional doctrine surrounding the issue of student-led prayer at elementary school graduation is sufficiently well settled that one would expect an opinion on the issue to be rather routine.  Those expectations are upset by the literate opinion handed down Monday by South Carolina federal district court Judge Bruce Howe Hendricks.  American Humanist Association v. South Carolina Department of Education, (D SC, May 18, 2015) involves a challenge to policies of the Greenville County School District.  Initially many schools in the district selected 5th grade students to deliver an opening and closing prayer at graduation ceremonies.  The content of each prayer-- consistently Christian-- was reviewed in advance and approved by school officials.

After suit was filed, the school district admitted the problems with its practices and switched to a neutral policy.  If a student is selected to speak at graduation on the basis of neutral criteria such as class rank or academic merit, the student may decide on the content of the speech, which can be a religious message or prayer or can be a secular inspirational message.  The court issued an injunction against the school district's original policy, but refused to enjoin its more recent neutral approach, saying in part:

To the undersigned there is no more sacred liberty than an individual’s personal view of his or her cosmological origin – divine or chance, intentional or naturally selective. And, cultures have developed various names for the posture we assume in the direction of our creative source, most notably, prayer. But, also meditation and pilgrimage. Namaste. Surfing. Fly fishing. Science. The citizens of this country have the privilege of electing between the innumerable alternatives in religious practice. Our constitution has established but one caveat: “The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State.” ...

The Christian community, in certain parts, feels besieged. This sense has two sources. The first is the view that people of faith cannot practice their religion and its tenets as they wish. The second is a genuine compassion for this country -- that it know a redeeming faith. To certain parts of Western Christianity, the lack of prayer in the public sector is not only a symptom of declining religiosity and moralism but is, in part, the cause itself.

In contrast, those of different faith or no religious faith at all are exhausted of this historical conflation of judeo-christianism and public ceremony persistent even to now and our exceedingly modern and pluralistic times. Those that oppose religious practice in schools are exasperated.

The Court has sympathy for both views, indeed, relates. But, the undersigned’s most overwhelming rhetorical reaction to all of this is how in 2015 is there still any debate or legal nuance to hash over prayers at graduation? One side insists on securing every slight remaining loophole of religious demonstration in school and the other is chasing to the ends of the earth the last pitiful vestiges of these practices that have been essentially neutered of all possible eternal meaning and effect....  It is conceivable, however, that, in this war over the private conscious made public, the better strategy is arms laid down in recognition of the human psychology that we are always made more in our submission than our entitlement....

Moving to examine the school district's modified policy, the court said in part:

[P]recisely because of the historical inclusion of prayer and religious speech at graduations, in this school district and State, it is conceivable that the cultural residue of prior practices might continue to color and confuse the application and invitation of, even now, constitutionally neutral practices. The undersigned is vigilant to identify any kind of wink and nod maneuvering.

But, the plaintiffs now have a serious kind of evidentiary problem. The impropriety of the old practice having been entirely confessed, the majority of the plaintiffs’ legal precedent and factual history are neutralized.....

What is continuously confused by the proponents of prayer in school or public forum is that these affirmative attempts to invite or measure the “voluntary choice” of students to pray, in the very same moment, renders that choice less than wholly voluntary. The very act of raising the issue alters the degree of its voluntariness. It is like the Observer Effect. In the moment we measure it, it is changed. So, when the decisions talk of private speech, in this perilous hybrid of public ceremony conducted by actual individuals and citizens, the expectation, if it means anything, is that the religiosity, if any at all, must spring forth from the imagination solely of the speaker and not as the result of expectations and pressures attributable, or historic, to, state action in the graduation or event itself. Moved in the spirit, so to speak....

This Court sits in one of the great parts of the world, in people and heritage. There are many in our city and county and State who are the inheritance of a meaningful practice of various religion, maybe Christianity most predominately. Their tenets and freedom to live them matter. But, there is a new and growing richness of population, here, in culture and background, that is transforming the complexion of mores and discourse and daily experience, in both public and private ways. The new practice of the defendant is constitutional. But, plaintiffs are affirmed. Not in their full request for legal remedy but in their aspiration for equal liberty. For too long school districts have cleverly resisted, with every manner of contortion, the force of Establishment jurisprudence to justifiably eliminate all state-sponsored rite. At least one has gotten it exactly right.

Concomitant to the effectiveness of the defendant’s new practice is the need that it be effectively communicated. The legacy of the historic inclusion of such prayers at graduation might still be coercively operative on contributing students.... Without affirmative instruction that prayer and religious messaging are no longer required, there is some risk that a student may yet still feel compelled. The defendant school district must, therefore, reasonably publicize the new practice to students participating in any graduations.

The American Humanist Association announced that it would appeal the decision.  Last week in a separate opinion (full text), the district court dismissed on mootness and standing grounds a challenge in the same case to the school district's policy of holding some graduation ceremonies at a religious chapel on a local college campus.

Challenge To Florida Tax Credit Scholarship Program Dismissed

A Florida state trial court judge has dismissed a constitutional challenge to the state's Tax Credit Scholarship Program.  In McCall v. Scott, (FL Cir. Ct., May 18, 2015), the court held that plaintiffs lack taxpayer standing because they are not challenging an appropriation. The court held that they also fail to allege a special injury that would give them standing on other grounds, saying:

whether any diminution of public school resources resulting from the Tax Credit Program will actually take place is speculative, as is any claim that any such diminution would result in reduced per-pupil spending or on any adverse impact on the quality of education.

Miami Herald reports on the decision.

9th Circuit En Banc Reverses Injunction Agaianst "Innocence of Muslims" On YouTube

In an en banc opinion in Garcia v. Google, Inc., (9th Cir., May 18, 2015), an 11-judge panel of the 9th Circuit dissolved a 3-judge panel's preliminary injunction (see prior posting) that had required Google to take down from YouTube all versions of the controversial video Innocence of Muslims that included the performance of misled actress Cindy Lee Garcia.  The injunction was sought by Garcia after she received death threats because her dubbed-over performance appeared to be criticizing the Prophet Muhammad.  Garcia claimed a copyright interest in the performance. The en banc majority held that the law and facts do not clearly favor her claim to a copyright in her acting performance, saying in part:

As Garcia characterizes it, “the main issue in this case involves the vicious frenzy against Ms. Garcia that the Film caused among certain radical elements of the Muslim community.” We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression. Garcia’s theory can be likened to “copyright cherry picking,” which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act

Judge Watford issued a concurring opinion and Judge Kozinski dissented. Electronic Frontier Foundation has further analysis of the decision.

Texas Judge Disciplined For Religious-Cultural Bias

The Texas State Commission on Judicial Conduct last week issued a Public Admonition (full text) against Texas state trial court judge Carter Tinsley Schildknecht, finding in part that she:

manifested a religious and/or cultural bias by describing District Attorney Munk as a “New York Jew” and by criticizing a prosecutor’s beard because it made him look like a “Muslim.”

Other charges involved a court session that lasted until 4:00 AM without breaks and an order refusing to allow the District Attorney to enter the court room. Besides the admonition, the judge was ordered to complete an additional four hours of education with a mentor on open courts and eliminating bias. Texas Lawyer reports on the Commission's action.

Irish Referendum On Same-Sex Marriage Will Be Held Friday

In Ireland on Friday voters will cast ballots in a referendum to approve same-sex marriage. (Referendum Commission Voters Guide). Voters will be asked to approve a Constitutional amendment which reads:

Marriage may be contracted in accordance with law by two persons without distinction as to their sex.

Sunday's Globe and Mail reports that polls show 70% favor the proposal, even though it is strongly opposed by the Catholic Church. 84% of Irish identify ans Catholic, and almost half go to mass every Sunday. According to yesterday's Irish Independent, Irish bishops are warning that passage of the amendment could threaten the Church's ability to teach children about traditional marriage. However Communications Minister Alex White rejected that claim, saying: "There is absolutely no basis whatsoever for any suggestion that the Church ...would be constricted or constrained in any way,... A specific provision in the legislation we're going to bring in if and when the referendum is passed would mean a Catholic priest, for example, will not be required to solemnise for example, the marriage of a same-sex couple."

Meanwhile, each side in the referendum issue is accusing the other of accepting improper campaign donations.  According to Saturday's Guardian, supporters of the referendum accuse opponents of receiving funding from conservative Christian groups in the United States. Ireland’s Standards in Public Office Commission rules bar foreign donations in the campaign.  A website operated by the US-based National Organization for Marriage is campaigning for a "no" vote, but NOM says it has not funneled any money to groups in Ireland.  Some on the "no" side claim that supporters have been funded by Irish-American multimillionaire Chuck Feeney and his Atlantic Philanthropies agency

School Board Sued Over Invocation Policy

The American Humanist Association announced yesterday that it has filed a lawsuit against a Texas school district on behalf of a former student challenging the school board's invocation policy.  The complaint (full text) in American Humanist Association v. Birdville Independent School District, (ND TX, filed 5/18/2015) alleges that the school board and its members violate the Establishment Clause by selecting elementary and middle school students, and occasionally high school students, from District schools to deliver prayers as part of the regular School Board meetings. Often the prayers are Christian and make specific reference to Jesus. The suit seeks an injunction and punitive damages.

Supreme Court Interprets Indigent Prisoner Litigation Statute

The U.S. Supreme Court today in Coleman v. Tollefson, (Sup. Ct., May 18, 2015), gave a literal interpretation to the "three strikes" provision of 28 USC Sec. 1915(g) that restricts the ability of inmates to bring multiple challenges to prison conditions without paying the required filing fees.  The section, which qualifies the right of indigent inmates to file federal lawsuits in forma pauperis, provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

In an opinion by Justice Breyer, the Court held unanimously that a dismissal which is under appeal still counts as one of the "three strikes" to prevent an additional lawsuit from being filed.  The Court left open the question of whether this interpretation also would preclude an appeal of a trial court decision that was itself the third strike. Today's decision upholds the view of the 6th Circuit below, and rejects a contrary interpretation by a number of other Circuits.  The decision will particularly impact inmates seeking religious accommodations from prison systems, since these cases rarely if ever will fall within the "imminent danger of serious physical injury" exception.

New Zealand Think Tank Suggests Limiting Charitable Status of Some Religious Institutions

The New Zealand Initiative, a public policy think tank supported by chief executives of major New Zealand businesses, yesterday issued a new report titled Giving Charities A Helping Hand. Among the Report's recommendations was a review of the Charities Act's definition of charitable purpose, and thus of which organizations qualify for tax exemptions.  The Report went on:

In addition, the review might usefully examine whether religious and cultural institutions should continue to qualify for charitable status simply because they pursue the goal of promoting religion and culture. This is not to say that such institutions should not be considered, but the assessment criteria should be the same for all organisations seeking the status of registered charities.

Minnesota Legislature Passes Bill Providing For Religious Objection To Autopsy

The Minnesota legislature last Saturday gave final passage to SF 1694 (full text) providing a right to object on religious grounds a medical examiner or coroner conducting an autopsy.  The bill provides:

If the representative of the decedent objects to the autopsy on religious grounds, an autopsy must not be performed unless the coroner or medical examiner determines that there is a compelling state interest to perform the autopsy.

However the bill lists 13 specific situations which will be considered to be compelling, and even if one of those is not present the state may counter a religious objection by showing a court in a summary proceeding that the autopsy is necessary and that need outweighs the state's interest in observing the decedent's religious beliefs. If an autopsy is carried out after a religious objection has been made, it must be performed by the least intrusive procedure consistent with the state's compelling interest. As reported by Bring Me The News, the bill now goes to Gov. Mark Dayton for his signature.

Recent Articles of Interest

From SSRN:

• Steven H. Resnicoff, Jewish Identity's Impact in a Nutshell, (Rutgers Journal of Law and Religion, Forthcoming).
• Mohamed Abdelaal, Leadership Accountability in Islam: Islamic Standards for Holding the Executive Accountable for Official Misconduct, (Global Journal of Comparative Law, Forthcoming).
• Frederick Mark Gedicks & Rebecca G. Van Tassell, Of Burdens and Baselines: Hobby Lobby's Puzzling Footnote 37, (in The Rise of Corporate Religious Liberty, Oxford University Press, Chad Flanders, Zoe Robinson & Micah Schwartzman, eds. 2015, Forthcoming).
• Nahshon Perez, Lautsi vs. Italy: Questioning the Majoritarian Premise, (May 14, 2015).
• Yuval Jobani & Nahshon Perez, Women of the Wall: A Normative Analysis of the Place of Religion in the Public Sphere, (Forthcoming: Oxford Journal of Law and Religion).
• Paul T. Babie, Religion and Constitutionalism: Oscillations Along a Continuum, (Journal of Religious History Vol. 39, No. 1, March 2015).
• Linda C. McClain, The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether 'Stateways' Can Change 'Folkways', (95 Boston University Law Review 891 (2015)).
• Ahmad T. Alharbi, Islamic Law and Banking: An Overview, (May 5, 2015).

From SmartCILP:

• Kenneth K. Ching, Would Jesus Kill Hitler?: Bonhoeffer, Church, and State, 11 Georgetown Journal of Law & Public Policy 529-576 (2013).
• Matthew A. Melone, Corporations and Religious Freedom: Hobby Lobby Stores--A Missed Opportunity to Reconcile a Flawed Law with a Flawed Health Care System. 48 Indiana Law Review 461-508 (2015).
• Jonathan S. Sussman, Prayer for Relief: Considering the Limits of Religious Practices in the Military, 20 Roger Williams University Law Review 75-118 (2015).

Atheist Activist Will Use RFRA To Challenge "In God We Trust" On Money

Atheist activist Michael Newdow is looking for individuals who will act as plaintiffs in a new set of challenges to "In God We Trust" on U.S. coins and currency.  For the first time, the suits will rely primarily on the Religious Freedom Restoration Act.  In a post last Friday on Friendly Atheist, Newdow says suits are being prepared in states in the seven federal circuits that have not already upheld the constitutionality of the national motto on coins and currency. The cases will argue that being forced to carry a message that violates one's religious ideals is substantially burdensome, and that the government has no compelling interest in having the motto on coins and currency. As pointed out by Inquisitr,  this is the latest recent attempt to turn state and federal RFRA's-- which have been strongly supported by conservative Christian groups-- into tools to oppose the conservative Christian agenda.

Russia Increases Fines For Organizations Disseminating "Extremist" Materials

Forum 18 reported Friday that amendments to Russia's Code of Administrative Offenses, Sec. 20.29, that became effective May 6 have sharply increased the fines imposed on "juridical persons" for mass dissemination of extremist materials on the Federal List.  Juridical persons include commercial, publishing, media and registered religious organisations. Fines for legal entities under the section previously were 50,000 to 100,000 roubles. The amendments increase the fines to 100,000 to 1 million roubles. Sanctions for individuals and other sanctions applicable to organizations did not change. This section of the Administrative Code has often been used in connection with materials confiscated from Muslims and Jehovah's Witnesses. According to Forum 18: "The Federal List now runs to over 2,500 items, often does not include full bibliographical details, and is irregularly updated, making it difficult for anyone to keep abreast of recent bans..."

D.C. Rabbi Sentenced To Over 6 Years On Voyeurism Charges

A Washington, D.C. Superior Court judge on Friday sentenced Rabbi Barry Freundel to nearly six and one-half years in prison after Freundel plead guilty to 52 counts of voyeurism (see prior posting).  Freundel secretly videotaped 150 women in the changing room of the mikveh (ritual bath) at Washington's Kesher Israel Synagogue.  AP reports that after a 3-hour sentencing hearing at which 16 of his victims testified, Freundel was sentenced to 45 days in prison on each of the 52 counts (a total of 2,340 days). (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Quezada v. Long, 2015 U.S. Dist. LEXIS 61753 (CD CA, May 11, 2015), a California federal magistrate judge dismissed, with leave to amend, a complaint by an Orthodox Jewish inmate that he was not allowed to take his religious meals out of the dining hall to his cell, so that he could perform ritual washing of hands and recitation of prayers before eating.

In Strickland v. Godinez, 2015 U.S. Dist. LEXIS 62179 (SD IL, May 12, 2015), an Illinois federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 62176, April 20, 2015) and denied a preliminary injunction to an inmate who practices Asatruar who sought protection from retaliation, participation in worship, ownership of various ritual items and setting aside of sacred land where rituals could be performed.

In Porter v. Wegman, 2015 U.S. Dist. LEXIS 63573 (ED CA, May 15, 2015), a California federal magistrate judge recommended dismissing a House of Yahweh inmate's complaint over lack of accommodation of his Passover observance and denial of participation in the Jewish kosher diet program.

Suit Charges Mall With Rejecting Christian Bookstore

In Missoula, Montana this week business owner Michael Burks filed suit against a local mall because it refused to allow him to open a Christian bookstore in retail space he was leasing. The complaint (full text) in Missoula Maulers, Inc. v. Southgate Mall Associates, (MT Dist. Ct., filed 5/11/2015), alleges that Burks became concerned about the profitability of a retail hockey store he was operating in the mall, and proposed replacing it with another of his businesses, a Christian bookstore. The mall refused.  The complaint alleges that the refusal was based on the store's status as a Christian bookstore, or "for some other malicious reason."  Helena Independent Record reports on the lawsuit.

Head of Jewish Public Policy Organization Is Stepping Down

The Forward reports today that Rabbi Steve Gutow is stepping down as head of the Jewish Council for Public Affairs where he has served for ten years.  Gutow and JCPA have been a leading voice for the American Jewish community on domestic and international public policy issues, including church-state concerns.  JCPA is the umbrella organization for 125 local Jewish Community Relations Councils and 14 national Jewish organizations. Gutow's resignation takes effect Dec. 31.  He will continue to be active on interfaith, environmental and anti-poverty issues, but will give up direction of the organization's day-to-day operations sooner.

Cannabis Advocate Will Be First To Test Indiana's RFRA

Indiana's controversial Religious Freedom Restoration Act goes into effect on July 1.  Bill Levin, a life-long advocate of legalizing marijuana, says he will be the first to test the law by holding the initial service of his newly created First Church of Cannabis that day.  WTHR News reported yesterday that Levin is looking for space to rent for holding the service, which he expects will attract 1000 people. Levin says: "We'll say a short prayer and go 'poof',"

Court Orders Parishioners To End 10+ Year Vigil Protesting Church Closure

A Massachusetts trial court yesterday granted the Boston Catholic Archdiocese an injunction to end the ten and one-half year vigil that parishioners of the now-closed St. Frances X. Cabrini Church in Scituate (MA) have been maintaining inside the church.  On the website of the Friends organization supporting the vigil, parishioners say:

The members of St. Frances believe that we have been unjustly shuttered via the flawed process of reconfiguration introduced by the Archdiocese of Boston and that this misguided decision was based solely on the value of our parish property - 30.3 acres of prime coastal real estate.

In Roman Catholic Archbishop of Boston v. Rogers, (MA Super. Ct., May 14, 2015), the court held that the former parishioners "are unlawfully and intentionally committing a trespass by the continuation of the protest vigil on the premises of the church."  The court rejected defendants' arguments that it lacks jurisdiction over the suit because the claims require the interpretation of ecclesiastical principles. saying:

defendants' argument conflates the issues of whether the parish may be closed (an eccleisastical question) with whether an owner in control of property may determine when individuals may be on property (a civil law question).  Because the latter may be decided by neutral principles of property law, this court may proceed to hear the facts and decide whether defendants' vigil is a trespass and whether an injunction should issue.

The court also rejected parishioners' defense of laches, and their $37,000 counterclaim for amount spent on upkeep and maintenance during the vigil. AP reports on the decision.  The Quincy Patriot Ledger reports that defendants plan an appeal and plan to ask the trial court to suspend the injunction pending appeal.  Otherwise it will take effect on May 29.

Bilateral Commission of Holy See and State of Palestine Draft Comprehensive Agreement

In 2000, the Vatican reached a preliminary agreement (full text) with the Palestinian Liberation Organization on freedom of religion and the status of Christian holy places.  Yesterday the Bilateral Commission of the Holy See and the State of Palestine issued a joint statement (full text) saying that the text of a Comprehensive Agreement has now been concluded and it will be submitted to the respective authorities for approval before a date for signing in the near future is set.  While the general news media are emphasizing that the agreement's references to the "state of Palestine" are seen as lending weight to Palestinian efforts for recognition as a sovereign nation (New York Times),  different emphasis was displayed in coverage by Catholic News Agency which says that the Vatican has been referring to the "State of Palestine" at least since January 2013.  CNA sets out more detailed information on the substance of the Comprehensive Agreement:

The Vatican-Palestinian agreement recognizes freedom of religion in Palestine, and outlines the rights and obligations of the Church, its agencies, and its personnel in the territory....

The treaty, Msgr. Camilleri [leader of the Vatican delegation to the bilateral commission] said, “backs a resolution of the Palestinian issue and of the conflict between Israelis and Palestinians within the Two-State Solution and the resolution of the international community.”

But the bulk of the agreement regards freedom of religion and conscience, as well as the Church's freedom of action, its staff and jurisdiction, legal status, places of worship, social and charitable activity, and use of communications media.

Msgr. Camilleri added that a final chapter of the agreement regards issues of a fiscal and proprietary nature.

Atheists Can Now Perform Marriages In Minnesota County; Challenge Is Moot

In Atheists for Human Rights v. County of Washington, Minnesota, (D MN, May 13, 2015), a Minnesota federal district court dismissed as moot a constitutional challenge to Washington County's refusal to accept marriage celebrant credentials issued by Atheists for Human Rights to Rodney Michael Rogers because AFHR did not profess to be a religion. The court said in part:

Washington County has clearly and unequivocally changed its allegedly wrongful practice. The County has not gone through a formal amending process because there was no formal written policy in place. Rather, Washington County’s prior practice was based on the advice of Washington County’s legal counsel. The County’s legal counsel has clearly and definitely changed that advice.

According to a report on the decision by the Minneapolis Star Tribune:

The county’s change in policy came four days after the Star Tribune published an article about the suit and reported that Hennepin, Ramsey and Anoka counties certified atheists to conduct weddings. Meanwhile, the county had registered people belonging to groups with tongue-in-cheek names, including, “The Church of the Latter Day Dude” and the “Church of the Flying Spaghetti Monster.”

FLDS Church and Others Fined $1.96 Million In Wage and Hour Case

The Salt Lake Tribune reported yesterday that the U.S. Department of Labor's Wage and Hour Division has fined the Fundamentalist Church of Jesus Christ of Latter-Day Saints, its operating head Lyle Jeffs, the affiliated Paragon Contractors Corp. and its officers Brian Jessop and Dale Barlow for violating the wage and hour laws in using FLDS school children and their parents to work a pecan ranch harvest. The church received the amounts paid to Paragon.  (See prior related posting.) The Department of Labor imposed a $1.96 million in civil penalties jointly against the respondents.

Challenge To Refusal of "8THEIST" Vanity Plate May Proceed

In Morgan v. Martinez, (D NJ, May 12, 2015), an atheist seeking to express her beliefs sued the head of the New Jersey's Motor Vehicle Commission challenging provisions in state regulations barring issuance of personalized license plates with letters or numbers"that may carry connotations offensive to good taste and decency."  Until plaintiff Shannon Morgan filed suit, the VMC refused to issue her a plate with the characters "8THEIST". The court held that Morgan has standing to bring the suit and refused to dismiss on the merits, concluding that she Morgan adequately stated claims of facial overbreadth, vagueness that encourages arbitrary and discriminatory enforcement, and prior restraint.

Employers Pressing For Same-Sex Employees To Marry In Order To Retain Partner Benefits

The Wall Street Journal reports today that as same-sex marriage becomes legal in more states, increasingly employers who had offered health benefits to domestic partners are telling same-sex couples that they must marry in order to retain their partner benefits. However some say that this may pose a problem for same-sex couples.  Because marriage licenses are public, this may end up "outing" an employee who has not publicly disclosed his or her sexual orientation.  Also, because there are no anti-discrimination protections for the LGBT community in the majority of states, "outing" could lead to discriminatory actions against the employee or the partner. Employers say they are trying to treat everyone equally. A few large companies have taken an opposite approach and are offering domestic partner benefits to both same-sex and opposite-sex couples.

President Obama Speaks Out On Poverty At Catholic-Evangelical Panel Discussion

As reported by Religion News Service, President Obama yesterday engaged in a fascinating 75-minute panel discussion at Georgetown University's Catholic-Evangelical Leadership Summit on Overcoming Poverty.  Labeled "Conversation on Poverty" (full text), the panel, moderated by journalist E.J.Dionne, also included Harvard professor Robert Putnam and American Enterprise Institute President Arthur Brooks. The President said in part:

I think it would be powerful for our faith-based organizations to speak out on this in a more forceful fashion. 

This may sound self-interested because there have been -- these are areas where I agree with the evangelical community and faith-based groups, and then there are issues where we have had disagreements around reproductive issues, or same-sex marriage, or what have you.  And so maybe it appears advantageous for me to want to focus on these issues of poverty, and not as much on these other issues....

There is great caring and great concern, but when it comes to what are you really going to the mat for, what’s the defining issue, when you're talking in your congregations, what’s the thing that is really going to capture the essence of who we are as Christians, or as Catholics, or what have you, that this is oftentimes viewed as a “nice to have” relative to an issue like abortion.  That's not across the board, but there sometimes has been that view, and certainly that's how it’s perceived in our political circles....

And there’s noise out there, and there’s arguments, and there’s contention.  And so people withdraw and they restrict themselves to, what can I do in my church, or what can I do in my community?  And that's important.  But our faith-based groups I think have the capacity to frame this -- and nobody has shown that better than Pope Francis, who I think has been transformative just through the sincerity and insistence that he’s had that this is vital to who we are.  This is vital to following what Jesus Christ, our Savior, talked about.

First Preliminary Settlement Reached In ERISA "Church Plan" Case

A series of cases filed around the country has challenged the treatment of Catholic hospital system pension plans as "church plans" exempt from ERISA. In Overall v. Ascension, a Michigan federal district court ruled in favor of the hospitals finding that the plans did not need to have been "established by" a church.  It is enough they were created by a church-affiliated organization. (See prior posting.)  Plaintiffs appealed the decision, and the U.S. 6th Circuit Court of Appeals appointed a mediator to try to settle the case. BenefitsPro reported yesterday that now, after 6 months of negotiations, the parties have agreed to a settlement that will give Ascension plan participants "ERISA-like" protections for the next seven and one-half years, but the plans will retain their "church plan" status. Plaintiffs in the case claimed that Ascension's plans were underfunded by $440 million.  The preliminary settlement would require Ascension to contribute an additional $8 million in funding. The proposed settlement still requires court approval.

Some State Legislators Plan Strategies To Counter Any SCOTUS Marriage Equality Ruling

Religion News Service reported yesterday that as the Supreme Court's decision on same-sex marriage nears, legislation has been introduced in several states to block the effect of a ruling in favor of marriage equality. For example, a Texas bill would prohibit the use of public funds to license or recognize same-sex marriages.  A proposed Louisiana law would permit employers to deny same-sex spouses marriage benefits and would give state contractors the right to refuse to hire gays and lesbians who marry.

Convoluted Rabbinical Court Politics In Israel

Jerusalem Post reported yesterday on the complex and convoluted politics surrounding decisions on the appointment of Rabbinical Court judges under Israel's newly formed coalition government. At the center of the controversy is the question of how Rabbinical Courts, that are responsible for various personal status matters, will treat women seeking divorces.  That will be affected by who sits on the Appointments Committee for Rabbinical Judges, and the judges they select.

Bayit Yehudi, a religious Zionist party that is one of the coalition partners, does not want to see a change in the current composition. In the last government it succeeded in getting 4 of the 11 seats on the Appointments Committee for women. However, United Torah Judaism, another coalition partner, wants to expand the Appointments Committee in order to water down the influence of the women members, and will introduce legislation to do so.  Bayit Yehudi, in its coalition agreement with Benjamin Netanyahu's Likud Party has obtained the right to oppose UTJ's bill-- which likely will assure it will not pass the Knesset. Currently nearly 30% of the positions on Rabbinical Courts are vacant.  A further complication is that the Chairman of the Appointments Committee can block judicial appointments by refusing to convene the Committee.  Divorce rights advocates are criticizing Bayit Yehudi for giving up the Chairmanship to Likud, which will more likely side with the haredi (ultra-Orthodox) parties on appointments.

New Report Finds Percentage of Christians In U.S. Declining; Unaffiliateds Increase

The Pew Research Center today released a new report titled America's Changing Religious Landscape. The report finds that Christians have declined from 78.4% to 70.8% of the population between 2007 and 2014.  In the same period, the unaffiliated have increased from 16.1% to 22.8%. Non-Christian faiths are up from 4.7% to 5.9% of the population.

Ministerial Exception Bars Discrimination Claims Against Salvation Army

In Rogers v. Salvation Army, (ED MI, May 11, 2015), a Michigan federal district court held that the ministerial exception doctrine bars race and age discrimination claims against The Salvation Army ("TSA") by plaintiff who, when terminated, was employed as a Spiritual Counselor by TSA. The court also rejected plaintiff's discrimination and harassment claims on the merits.

Alabama Governor Signs Student Religious Liberties Act

Last Thursday (coinciding with the National Day of Prayer), Alabama Governor Robert Bentley signed into law the Alabama Student Religious Liberties Act of 2015 (full text).  It prohibits discrimination against students or parents on the basis of religious viewpoint or religious expression.  It provides in part:

Students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions. Homework and classroom assignments shall be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns....

It also provides that:

Students in public schools may pray or engage in religious activities or religious expression before, during, and after the school day in the same manner and to the same extent that students may engage in nonreligious activities or expression.

AL.com reports on the enactment of the new law. [Thanks to Blog From the Capital for the lead.]

Jeb Bush Appeals To Conservative Christians At Liberty University

On Saturday, likely Presidential contender Jeb Bush delivered the commencement address at Liberty University. (Video of full remarks). As reported by AP, Bush, a convert to Catholicism, used the speech to make a vigorous defense of Christianity and of religious freedom to religious conservatives, saying in part: "How strange, in our own time, to hear Christianity spoken of as some sort of backward and oppressive force."

Recent Articles of Interest

From SSRN:

• Meital Pinto, The Right to Culture, the Right to Dispute and the Right to Exclude: A New Perspective on Minorities within Minorities, (Ratio Juris, 2015 Forthcoming).
• Ira C. Lupu, Moving Targets: Religious Freedom, Hobby Lobby, and the Future of LGBT Rights, (Alabama Civil Rights & Civil Liberties Law Review (Vol. 7, Issue #1, Fall, 2015)).
• Brandon L. Paradise, How Critical Race Theory Marginalizes the African-American Christian Tradition, (Michigan Journal of Race & Law, Vol. 20, No. 117, Fall 2014).
• Adam Lamparello, A Fourth Amendment Framework for the Free Exercise Clause, (May 5, 2015).
• Michele Goodwin & Allison M. Whelan, Law, Bioethics, and Biotechnology, (International Encyclopedia of the Social & Behavioral Sciences, 2nd ed., Vol. 13, James D. Wright, Editor, 2015, Forthcoming).
• William C. Bradford, Trahison Des Professeurs: The Critical Law of Armed Conflict Academy as an Islamist Fifth Column, (3 National Security Law Journal __ (2015 Forthcoming)).
• Gwendolyn Gordon, Culture in Corporate Law, or: A Black Corporation, a Christian Corporation, and a Maori Corporation Walk into a Bar... , (May 7, 2015).
• Deborah A. Widiss, Non-Marital Families and (Or After?) Marriage Equality, (Florida State University Law Review, Vol. 42, 2015).
• Iginio Gagliardone, Mapping and Analysing Hate Speech Online, (May 1, 2014).

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

• Shabnam Haji, Public Involvement and Constitutional Theocracy in Iran,(September 11, 2014).
• Riaz Tejani, 'A Logic of Camps': French Antiracism as Competitive Nationalism, (Political and Legal Anthropology Review 38:1, 2015).
• Haider Ala Hamoudi, The Political Codification of Islamic Law: A Closer Look at the Draft Shi’I Personal Status Code of Iraq, (Arizona Journal of International and Comparative Law, Vol. 32, No. 2, 2015).

From SmartCILP and elsewhere:

• Mark W. Cordes, Schools, Worship, and the First Amendment, 48 Suffolk University Law Review 9-65 (2015).
• Hon. Kermit V. Lipez, Is There a Place for Religion in Judicial Decision-Making?, 31 Touro Law Review 133-148 (2014).
• ABA Business Law Section, Adoption of Changes to the Model Nonprofit Corporation Act-- Miscellaneous and Technical Amendments, 70 Business Lawyer 467-487 (Spring 2015).

Recent Prisoner Fre Exercise Casess

In Ajala v. West, 2015 U.S. Dist. LEXIS 57944 (WD WI, May 4, 2015), a Wisconsin federal district court held that the state had not shown as a matter of law that banning a Muslim inmate from wearing a kufi outside his cell and group worship is the least restrictive means of furthering a compelling government interest. It ordered the case to trial on injunctive and declaratory relief, but found qualified immunity as to damages.

In Cauthen v. Rivera, 2015 U.S. Dist. LEXIS 58244 (ED CA, May 4, 2015), a California federal magistrate judge recommended dismissing a complaint by a Rastafarian inmate about a body cavity search.  Plaintiff objected on religious grounds that it would be indecent to expose his naked body to people that don't "look like" him, such as females or homosexuals.

In Mallory v. Stanitis, 2015 Pa. Commw. Unpub. LEXIS 312 (PA Commnw. Ct., May 5, 2015), a 3-judge panel of the Pennsylvania Commonwealth Court affirmed a trial court's dismissal of a Muslim inmate's retaliation and free exercise claims growing out of plaintiff's insistence on wearing his pants legs rolled up to the middle of his shins for religious reasons.

In Pabon v. Cheshire County Department of Corrections, 2015 U.S. Dist. LEXIS 58717 (D NH, May 1, 2015), a New Hampshire federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 183796, April 17, 2014), and allowed an inmate to proceed with his constitutional, but not his RLUIPA, claims for damages based on allegations that he was denied access to religious items and prevented from practicing his religion.

In Rinaldi v. United States, 2015 U.S. Dist. LEXIS 59579 (MD PA, May 7, 2015), a Pennsylvania federal district court dismissed a Muslim inmate's complaint that he was denied the opportunity to engage in congregate Friday Jumuah prayers with other Muslims. While issues of fact remained as to plaintiff's claim under RFRA, he failed to allege personal involvement of any of the defendants.

In Fox v. Heyns, 2015 U.S. Dist. LEXIS 60247 (WD MI, May 7, 2015), a Michigan federal magistrate judge recommended dismissing as moot, as well as for failure to exhaust, complaints by two inmates seeking recognition of the Christian Identity Faith and its holy days as well as of full-body immersion.

In Wilson-El v. Mutayoba, 2015 U.S. Dist. LEXIS 60688 (SD IL, May 8, 2015), an Illinois federal district court upheld $10,100 punitive damage verdict a jury had awarded against a prison chaplain who had denied a Moorish Science Temple member a vegan diet.

In Oliver v. Adams, 2015 U.S. Dist. LEXIS 60859 (ED CA, May 7, 2015), a California federal magistrate judge recommended allowing a Shetaut Neter inmate to move ahead with his First Amendment, RLUIPA and equal protection claims asserting favoritism to conventional Western world religions and denials of a religious diet, prayer rug, religious materials, worship services, and other programming. UPDATE: The court adopted the magistrate's recommendations at 2015 U.S. Dist. LEXIS 126886 (Sept. 21, 2015).

Satanic Temple Member Files Suit Challenging Missouri's Abortion Restrictions Under State's RFRA

On Friday, after submitting a demand letter (full text), a member of the Satanic Temple filed a lawsuit in state court in Missouri challenging as a violation of Missouri's Religious Freedom Restoration Act the state's waiting period and informed consent requirements imposed before a woman may obtain an abortion. (See prior related posting.)  The complaint (full text) in Doe v. Nixon, (MO Cir. Ct., filed 5/8/2015), alleges that plaintiff has deeply held religious beliefs that her body is inviolable and subject to her will alone and that she alone decides whether to remove a non-viable fetus.  It contends that conditioning her decision to have an abortion on presenting her written materials prepared by the state that outline gestational development and the possibility of the abortion causing pain to the unborn child, the requirement that she view an ultrasound, and the statutory 72 and 24-hour waiting periods contitute restrictions on her free exercise of religion because they are contrary to her beliefs and unduly restrictive of her freedom of choice. Plaintiff also filed a Memorandum of Law in Support of a Temporary Restraining Order (full text).   Orlando Weekly reports on the lawsuit.

Egypt Holds 4 Coptic High Schoolers On Blasphemy Charges

Fox News reported yesterday on four 15 to 16 year old Coptic Christian boys being held by authorities in Egypt on blasphemy charges, apparently because of a 32-second video clip they made mocking an ISIS beheading. The video was made on their teacher's cell phone while the boys were on a school-related religious excursion. In early April, Muslim residents of the boys' village of Al-Nasriyah filed a complaint and their teacher was arrested. Negotiations between Christians and Muslims in the community led to the Copts banning the teacher from the community. Meanwhile marches and attacks on homes and businesses by local Muslims forced parents of the four boys to turn them over to authorities. (A fifth boy escaped the village.) Last week a judge refused to release the four boys so they could take their year-end exams, holding them for two more weeks while the investigation continues.

North Carolina County Commission Chairman Says He Will Only Allow Christian Invocations

Reacting to a recent federal district court decision invalidating the invocation practices in a nearby county (see prior posting), Lincoln County, North Carolina, Board of Commissioners Chairman Carrol Mitchem told WBTV News last week that only Christian prayers would be permitted at Council meetings. He said in part:

Other religions, or whatever, are in the minority. The U.S. was founded on Christianity.  I don’t believe we need to be bowing to the minorities. The U.S. and the Constitution were founded on Christianity. This is what the majority of people believe in, and it’s what I'm standing up for....

I don’t need no Arab or Muslim or whoever telling me what to do or us here in the county what to do about praying. If they don’t like it, stay the hell away.... I ain’t gonna have no new religion or pray to Allah or nothing like that.... 

We’re fighting Muslims every day. I'm not saying they’re all bad.  They believe in a different God than I do. If that’s what they want to do, that’s fine. But, they don't need to be telling us, as Christians, what we need to be doing. They don't need to be rubbing our faces in it.

Another Commission member, Alex Patton, disagreed with Mitchem saying that the country was founded on freedom of religion and complained that Mitchem had "just exposed our county to potential litigation, which was needless."

Norway Repeals Its Blasphemy Law

According to Sputnik News, this week the Norwegian Parliament officially repealed the country's blasphemy law.  Section 142 of Norway's General Civil Penal Code had provided:

Any person who by word or deed publicly insults or in an offensive or injurious manner shows contempt for any creed whose practice is permitted in the realm or for the doctrines or worship of any religious community lawfully existing here, or who aids and abets thereto, shall be liable to fines or to detention or imprisonment for a term not exceeding six months. A prosecution will only be instituted when it is required in the public interest.

While attempts at repeal have been made since 2009, the repeal now came to support free speech after the Charlie Hebdo massacre in Paris in February.  Sponsors of the repeal argued that the blasphemy law created a perception that religious expression was entitled to special protection. Repeal was opposed by some Christian spokesmen.  The last time anyone was actually charged under the Norwegian law was in 1933. Writer Arnulf Øverland was acquitted of charges growing out of his lecture titled "Christianity, the tenth plague." [Thanks to Center for Inquiry for the lead.]

In Israel, Coalition Agreements Promise To Roll Back Recent Anti-Haredi Religious Changes

JWeekly reported yesterday that in Israel the coalition agreements signed by Benjamin Netanyahu in order to create a parliamentary majority in the newly-elected Knesset will roll back anti-haredi religious reforms enacted by the last government:

A coalition agreement signed last week between the Likud Party led by Prime Minister Benjamin Netanyahu and the haredi Orthodox United Torah Judaism faction promises to dismantle a raft of legislation enacted in the last two years that chipped away at several longstanding entitlements enjoyed by the haredi, or ultra-Orthodox, community. Shas, the Sephardic haredi party, signed its own coalition agreement with Likud this week that will cement the power of religious parties in the next government.

Led by the Yesh Atid party, the last government passed laws to include haredim in Israel’s mandatory military draft and encourage the teaching of math and English in government-funded haredi schools. The government, which did not include the haredi parties, also allowed dozens of municipal Orthodox rabbis to perform conversions, vastly increasing the number of conversion courts from the four controlled by the haredim. Other laws cut subsidies to haredi yeshivas and large families, many of whom are haredi.

The Likud-UTJ agreement promises to repeal the conversion decision, increase subsidies to yeshivas and large families, and relieve haredi schools of the obligation to teach secular subjects. The agreement also gives the incoming defense minister sole authority to decide whether to implement the draft law, effectively allowing him to choose not to enforce it. A UTJ lawmaker will head the powerful Knesset Finance Committee, while Shas will control the Religious Services Ministry, which handles most religion-state policies.

However earlier this week, ahead of the new Knesset taking over, Israel's Attorney General Yehuda Weinstein told the High Court of Justice that the government will no longer fine restaurant owners who display religious certification from private organizations rather than from the Chief Rabbinate. Times of Israel reported yesterday that the move comes in a case brought on behalf of two Jerusalem restaurants by the Reform Movement's Center for Religious Action.  The restaurants will still not be able to advertise themselves as "kosher," but only as having a private certification.

Faith Healer Sues Atheist Activist Claiming Misuse of YouTube Video

In Arizona last week, Adam Miller, a "spiritual transformational healer," filed a federal lawsuit against Joel Guttormson, an activist in the atheist and transgender communities, who allegedly obtained and misused Miller's promotional video by hacking into a private YouTube account.  The complaint (full text) in Miller v. Guttormson, (D AZ, filed 4/28/2015), alleges that Guttormson misappropriated a video titled "Healer Adam Miller – Explanation of the Healing Work," inserted into it allegations attacking the truthfulness of statements in it, and uploaded it to Guttormson's own publicly available YouTube channel under the title "Adam Miller: Con Artist." At the end of the doctored video, Guttormson promotes a website and an online atheist audio bookstore. The doctored video then appeared at the top of any Google search for Adam Miller. Guttormson subsequently uploaded two additional videos attacking Miller to YouTube. The complaint alleges copyright infringement, intentional interference with business expectancies and defamation. Techdirt blog criticizes the lawsuit at length.

Suit Seeking Declaration That Homsexuality Is Sinful Receives Quick Dismissal

With the leading academic law-and-religion listserv filled with suggestions for grounds on which the lawsuit might be dismissed, a Nebraska federal district judge has, only six days after the suit was filed, dismissed for lack of subject matter jurisdiction a suit purportedly brought as ambassador of God and Jesus against "Homosexuals" apparently seeking to have the court declare that homosexuality is a sin.  In Driskell v. Homosexuals, (D NE, May 6, 2015), the court began by stating: "A federal court is not a forum for debate or discourse on theological matters." The court went on to find that plaintiff has not complied with the general rules of pleading, plaintiff lacks standing and plaintiff has not set forth a factual or legal basis for a claim under the Constitution, laws, or treaties of the United States.  Advocate reports on the decision.

Today Is the Official National Day of Prayer

A federal statute, 36 USC Sec. 119, requires the President to issue a Proclamation each year designating the first Thursday in May as "a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals."  This year's Proclamation (full text) which this morning is on the National Day of Prayer Task Force website, but not yet on the White House website, reads in part:

When women and men of all backgrounds and beliefs are free to practice their faiths without fear or coercion, it bolsters our religious communities and helps to lift up diverse and vibrant societies throughout our world. In America, our Nation is stronger because we welcome and respect people of all faiths, and because we protect the fundamental right of all peoples to practice their faith how they choose, to change their faith, or to practice no faith at all, and to do so free from persecution and discrimination. Today, as we pause in solemn reflection, we celebrate the religious liberty we cherish here at home, and we recommit to standing up for religious freedom around the world.

In recent years, the National Day of Prayer has become increasingly controversial as the private National Day of Prayer Task Force has emphasized a Christian-themed program and the White House, particularly under Barack Obama, has attempted to make the event more inclusive. (See prior posting.) The Washington Post carried an opinion piece yesterday making a similar point titled Let’s stop pretending we’re being inclusive on the National Day of Prayer. This year's National Observance planned by the Task Force will be held this morning on Capitol Hill at the Cannon House Office Building and will be llive streamed here beginning at 9:00 am. This year's honorary chair is Dr. Jack Graham. The listed speakers include at least one non-Christian, the politically conservative Rabbi Daniel Lapin who heads the American Alliance of Jews and Christians. Lapin's Message on that organizaion's website reads in part: "I realized that Jews lived more benignly, more tranquilly and more prosperously today in the United States than anywhere else in the world during the past two thousand years.  It was clear to me that this was precisely because America is a Christian country."

UPDATE: The Presidential Proclamation is now also on the White House website.

Former Town Marshal Outlines FLDS Control of Two Towns

Sunday's Salt Lake Tribune carried an article titled A Polygamous Community’s Cop is Spilling its Secrets. reporting on an interview with Helaman Barlow, a former marshal in the twin towns of Colorado City, Arizona and Hildale, Utah. Barlow said that the community has always been a theocracy run by the FLDS church.  Barlow cited examples of his accommodating FLDS leadership:

He knew men who took 16-year-old girls as plural wives. The marriages were sanctioned by the Fundamentalist Church of Jesus Christ of Latter-Day Saints, so Barlow didn't report them.

He looked up license plates for church security so they could track dissenters and their families. He obstructed the FBI when it came to town.

Church Attendance Did Not Violate Sex Offender's Probation Terms

Bangor Daily News reports that a Maine state trial court judge ruled yesterday that convicted sex offender Jason Simpson did not violate the terms of his probation by attending a church service where children were present.  Simpson was convicted in 2007 on 8 counts of gross sexual assault involving a 5-year old boy and 7-year old girl. Conditions of his probation included no contact with children.  Simpson did not speak to any child at the March 22 church service in Augusta that he attended, but a woman whose grandchildren were in church reported Simpson to his probation officer.

Afgahn Court Sentences Men Charged In Mob Killing Of Woman Falsely Accused of Burning Quran

Yesterday Afghanistan's Primary Court in Kabul sentenced four men to death by hanging for the mob killing of a 27-year old woman who was falsely accused of burning the Qur'an.  Eight others were sentenced to 16 years in prison, while charges were dropped against 18 men for lack of evidence.  Nineteen police officers charged in the case with neglect of duty and failure to stop the attacks will be sentenced on Saturday. AP reports:

On March 19, a mob attacked Farkhunda after an amulet peddler accused her of burning a Quran after she challenged him over selling his wares to women desperate to have children. Chilling mobile phone videos recorded the horror of the last moments of Farkhunda's life, as she was punched, kicked, beaten with wooden planks, thrown off a roof, run over by a car and ultimately set afire on the banks of Kabul River.

The two full days of hearings in Farkhunda's trial were broadcast live across the country.

Pro Se Plaintiff Asks Court To Declare Homosexuality A Sin

As reported by the Lincoln Journal Star, a 66-year old Nebraska woman last week filed a 7-page handwritten complaint (full text) captioned Sylvia Ann Driskell, Ambassador for Plaintiffs God, and His Son, Jesus Christ vs. Homosexuals, Their Given Name Homosexuals, Their, Alis Gay, (D NE, filed 5/1/2015). The somewhat incoherent complaint, citing Biblical verses, apparently seeks to have the court declare that homosexuality is a sin. [Thanks to Friendly Atheist for the link to the complaint.]

Suit Claims Drug Treatment Center Uses Scientology Rituals

Yesterday's Santa Cruz Sentinel reports on a lawsuit filed last month in a California federal district court against Narconon drug rehabilitation centers (and related entities) alleging that they falsely represent their success rate and are used to recruit people into the Church of Scientology. The class action complaint (full text) in Burgoon v. Narconon of Northern California, (ND CA, filed 3.25/2015), alleges false advertising, deceptive trade practices, negligent misrepresentations and breach of contract.  Among the key allegations in the complaint is:

Defendants represented, through their advertising and other express representations, that the drug rehabilitation services they offered were “secular” and not associated with any religion when, in fact, their treatment program required the Plaintiff and Class Members to study Scientology and engage in Scientology religious rituals as “treatment.”

A similar lawsuit was filed in Michigan in January against a Narconon Center there. (See prior posting.)

6th Circuit Rejects Free Exercise Claim By Christian Militia Member Over Seizure of Bibles

In Meeks v. Larsen, (6th Cir., May 5, 2015), the U.S. 6th Circuit Court of Appeals dismissed the civil rights complaints brought by a Michigan militia group against federal law enforcement officials.  Plaintiffs claimed that search warrants and the resulting searches violated their 1st, 2nd, 4th and 5th Amendment rights. As reported by WLS-TV News:

The Hutaree Militia formed in 2006, preparing for the apocalyptic end of time with commando exercises and live ammunition training....

For years the Hutaree Christian Warriors enjoyed playing war games in the woods of Northwest Indiana and Southern Michigan. But in 2010, federal authorities said the Hutaree Games had given way to a violent plot aimed at killing police and overthrowing the government.

Nine militia members were arrested, but the charges ended up being dismissed, and some members sued federal authorities for violating their rights.

Among the claims unsuccessfully asserted by the Hutaree was that the free exercise rights of one of their members were infringed by the seizure of copies of the Bible during the search.  The 6th Circuit held that it is questionable whether a cause of action for damages for violation of the Free Exercise Clause exists, but even if it does, plaintiff had not plead violation of a clearly-established right sufficient to overcome defendants' qualified immunity, nor had plaintiff plead that the seizure placed a substantial burden on his practice of religion.

A Bit of Humor On A Serious Topic...

For those who have been promising themselves that they will listen to the full Supreme Court oral arguments in Obergefell v. Hodges, the same-sex marriage cases argued last week, but have not gotten around to it, the task has now perhaps become more inviting with the posting on YouTube of the arguments synchronized with John Oliver dog clips:

Madison, Wisconsin Bars Discrimination Against Atheists, Agnostics, and Nonbelievers

As reported recently by AP, last month the city of Madison, Wisconsin enacted amendments (full text) to its Equal Opportunities Ordinance adding "nonreligion"  to the protected classes covered by its employment, housing and public accommodation anti-discrimination law (final action 3/31, enactment date 4/9). The ordinance defines "nonreligion" as "atheism, agnosticism, or other disbelief or lack of belief in the existence of God or gods."  Under the ordinance, non-profit religious organizations can still give preference to members of their own, or similar, denominations in hiring for instructional or policy-making positions, including hiring chaplains or counselors. According to a Freedom From Religion Foundation attorney, one of the reasons for enactment of the amendments is the recent increase in Madison of religiously-owned housing.

Cert Denied In Challenge To New Jersey's Reparative Therapy Ban

Yesterday the U.S. Supreme Court denied review in King v. Christie, (Docket No. 14-672, cert. denied 5/4/2015) (Order List).  In the case, the 3rd Circuit upheld against 1st Amendment challenges New Jersey's statute barring professional counselors from engaging in sexual orientation change therapy with minors. (See prior posting.)  The Hill reports on the Supreme Court's denial of certiorari.

District Court Invalidates Invocations Delivered By County Commissioners Instead of Invited Clergy

In Lund v. Rowan County, North Carolina, (MD NC May 4, 2015), a North Carolina federal district court held that a county Board of Commissioners invocation policy is not constitutionally permissible under the Supreme Court's Town of Greece decision when sectarian invocations are delivered by the county commissioners themselves rather than invited clergy and other prayer-givers.  The court said in part:

Under the Board’s practice, the government is delivering prayers that were exclusively prepared and controlled by the government, constituting a much greater and more intimate government involvement in the prayer practice than that at issue in Town of Greece or Marsh....

Additionally, because of the prayer practice’s exclusive nature, that is, being delivered solely by the Commissioners, the prayer practice cannot be said to be nondiscriminatory....  [T]he present case presents a closed-universe of prayer-givers, that being the Commissioners themselves, who favored religious beliefs believed to be common to the majority of voters in Rowan County. While an all-comers policy is not necessarily required, a nondiscriminatory one is. When all faiths but those of the five elected Commissioners are excluded, the policy inherently discriminates and disfavors religious minorities. That some day a believer in a minority faith could be elected does not remedy that until then, minority faiths have no means of being recognized.

The court also held that the county's prayer practice is unconstitutionally coercive in violation of the Establishment Clause. Charlotte Observer reports on the decision.

Recent Articles and Books of Interest

From SSRN:

• Josh Blackman, Collective Liberty, (Floyd Abrams Freedom of Expression Scholars Conference at Yale Law School, May 2-3, 2015).
• Ioana Cismas & Stacy N. Cammarano, Whose Right and Who's Right? The US Supreme Court v. The European Court of Human Rights on Corporate Exercise of Religion, (Boston University International Law Journal, Vol. 34, No. 1, 2016 Forthcoming).
• Dov Fox, Religion and the Unborn under the First Amendment, (April 27, 2015).
• Alexander Guney, Standing Before the Law: A Perspective on the Intersection of Law and Society, (University of San Francisco Law Review, Vol. 49, No. 161, 2015).
• Perry Dane, Judaism, Pluralism, and Constitutional Glare, (Rutgers Journal of Law and Religion, Forthcoming).
• Robert J. Hunt & James J. Woodruff, God & Man in the Military: Military Commanders and the First Amendment, (The Reporter: Education and Outreach for The Judge Advocate General's Corps, Vol. 42, No. 1, 2015).

From SSRN (non-US law):

• Alev Dudek, Integration of and the Potential for Islamic Radicalization Among Ethnic Turks in Germany, (June 16, 2014).
• Vanessa Haggie, But Names Will Never Hurt Me: Extending Hate Speech Legislation to Protect Gender and Sexual Minorities in New Zealand, (2013).

From SSRN (Marriage):

• Jack B. Harrison, On Marriage and Polygamy, (Ohio North University Law Review, Vol. XLII, Forthcoming).
• Katie R. Eyer, Brown, Not Loving: Obergefell and the Unfinished Business of Formal Equality, 125 Yale L. J. F. 1 (2015).

From SSRN (Charity law):

• Linda Sugin, Strengthening Charity Law: Replacing Media Oversight with Advance Rulings for Nonprofit Fiduciaries, (Tulane Law Review, Vol. 89, No. 3, 2015).
• Miranda Perry Fleischer, Libertarianism and the Charitable Tax Subsidies, (Boston College Law Review, Vol. 56, September 2015).

New Books:

• Gary Scott Smith, Religion in the Oval Office: The Religious Lives of American Presidents, (Oxford Univ. Press, March 31, 2015), reviewed by Wall of Separation blog.
• Anna Grzymała-Busse, Nations under God: How Churches Use Moral Authority to Influence Policy, (Princeton Univ. Press, April 2015).
• Andrew Hambler, Religious Expression in the Workplace and the Contested Role of Law, (Routledge, 2015).

Muhammad Drawing Exhibit In Texas Ends As 2 Gunmen Attempt Attack and Are Killed

In Garland, Texas Sunday night, a controversial Muhammad Art Exhibit and Contest sponsored by Pamela Geller's American Freedom Defense Initiative ended in violence as two gunmen opened fire outside the event venue, wounded a security guard, and were killed in return fire by police.  According to the Dallas Morning News, the guard who was shot was released from the hospital after being treated for a leg wound. The identities of the two gunmen had not yet been made public late Sunday. According to an earlier report by the Dallas Morning News, the Exhibit was booked at Garland's Curtis Cultural Center after the Center hosted Sound Vision Foundation’s Stand With the Prophet in Honor and Respect event.  The contest offered a top prize of $10,000 for the best drawing, and received around 350 entries. (Depicting Muhammad is seen as offensive by some schools of Muslim thought.) The winner of AFDI's contest was cartoonist Basch Fawstin who has posted his winning cartoon on his website. The keynote speaker at the event was right-wing Dutch politician  Geert Wilders who told the audience: "We are here in defiance of Islam to stand for our rights and freedom of speech."

Recent Prisoner Free Exercise Cases

In Herbert v. Balducci, 2015 U.S. Dist. LEXIS 54866 (WD WA, April 27, 2015), a Washington federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 54945, Jan. 8, 2015) and dismissed an inmate's claim that his free exercise rights were infringed by prison policy that limits reading material to a Bible while serving disciplinary confinement  Plaintiff argued this means he is forced to read a Bible and cannot read his Alcoholics Anonymous Big Book.

In Truidalle v. Godinez, 2015 U.S. Dist. LEXIS 55061 (CD IL, April 28, 2015), an Illinois federal district court dismissed with leave to amend a complaint by a Rastafarian inmate that he was receiving a vegan rather than a kosher diet, and that his religion was wrongly changed on his identification card to "other."

In Walker v. Fasulo, 2015 U.S. Dist. LEXIS 56209 (D NV, April 29, 2015), a Nevada federal magistrate judge permitted a Muslim inmate to move ahead with his complaints that  jail officials prevented him from praying (and threatened to send him to disciplinary housing if he prayed without permission), prevented him from attending Jumua services, and from obtaining Kosher-Halal meals.

In Simmons v. Williams, 2015 U.S. Dist. LEXIS 56134 (SD GA, April 29, 2015), a Georgia federal magistrate judge recommended permitting an inmate to move ahead with his claims that a search resulting in his being undressed in front of other men and having to shave his beard imposed a substantial burden on the exercise of his religion.

In Wilson-El v. Mutayoba, 2015 U.S. Dist. LEXIS 56163 (SD IL, April 29, 2015), an Illinois federal district court held that requiring an inmate who had successfully recovered $10,100 in punitive damages against prison officials who had denied his request for a vegan diet should not be required to pay more than a nominal amount of his $15,000 attorneys fees, with the remainder paid by defendants.

In Kindred v. Allenby, 2015 U.S. Dist. LEXIS 56318 (ED CA, April 29, 2015), a California federal magistrate judge dismissed with leave to amend a complaint by a Native American civil detainee that Native Americans were denied the right to hold Sunrise Prayer Ceremonies, were retaliated against for displaying sacred or spiritual items, and that his spiritual rug was confiscated and his medicine bag desecrated.

Justice Department Wins Its Suit Against Florida To Require a Kosher Meal Program In Prisons

The U.S. Department of Justice has won it long-running lawsuit against the state of Florida over its prisons' kosher meal policy.  In United States v. Secretary, Florida Department of Corrections, (SD FL, April 30, 2015), a Florida federal district court held that the blanket denial of kosher meals violates RLUIPA, and issued a permanent injunction requiring the state to provide kosher meals to those prisoners with a sincere religious belief requiring kosher meals.  The state initially suspended its kosher meal program for budgetary reasons, but reinstituted a program in 2013.  However the state rejects the claim that it is by law required to provide kosher meals. In granting the injunction, the court said in part:

Because neither side disputes that a blanket denial of kosher meals imposes a substantial burden on prisoners' religious exercise for those prisoners that have a sincere religious belief requiring them to eat kosher, the burden is on Defendants to demonstrate that denying such prisoners kosher meals (a) is in furtherance of a compelling state interest and (b) is the least restrictive means of achieving that interest. Throughout this litigation, Defendants have asserted that they have a compelling state interest in cost containment and that not providing a kosher diet is the least restrictive means of achieving cost containment.  Defendants have not met their burden....

As the United States contends, it is hard to understand how Defendants can have a compelling state interest in not spending money that they are already voluntarily spending on the exact thing they claim to have an interest in not providing.

The court also enjoined two other aspects of the religious diet program: the zero tolerance policy on infractions and the rule requiring removal from the program of an inmate who has missed 10% of his meals. However the court refused to enjoin the potential use as one part of its testing of an inmate's religious sincerity a question asking the inmate to identify the religious rules that require him to eat a religious diet. The Justice Department issued a press release announcing the decision. Orlando Sentinel yesterday reported on the decision.

Helena Diocese Posts List of Alleged Abusers As Part of Settlement

As reported by the Ravalli Republic, last Wednesday, as part of the non-monetary terms of the settlement with 362 sex-abuse victims, the Catholic Diocese of Helena, Montana posted on its webiste the names of 80 individuals (priests, sisters and lay persons) who were identified by the victims as sexual abusers betwen the 1930's and the 1970's.  A number of the alleged abusers are identified only by first or last name. Most of those on the list have died.  Under the settlement, the names are to remain posted for at least ten years. The diocese exited bankruptcy in March. (Full text of reorganization plan and confirmation order.)

6th Circuit Hears Oral Arguments In RLUIPA Zoning Case

On Wednesday, the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Tree of Life Christian Schools v City of Upper Arlington, (Docket No. 14-3469, argued 4/29/2015). In the case, an Ohio federal district court dismissed a Christian school's RLUIPA and constitutional challenge to Upper Arlington's refusal to issue a conditional use permit or to rezone for use as a school an existing office building. (See prior posting.)  Upper Arlington News, reporting on the oral arguments, quoted the reaction to the arguments from Erik Stanley who argued the case for Tree of Life:

A few of the judges seemed to key in on the idea the city argued all along that the city needs this property for revenue, but the judges seemed alarmed that some of the uses the city has allowed in the ORD don’t generate a lot of revenue. The city cannot have this zoning district that claims only to allow revenue-generating uses when they’ve allowed uses that don’t generate revenue to the extent Tree of Life would, such as day care centers, charitable hospitals and nonprofit offices.