Suit Claims High School Extensively Promotes Evangelical Christianity Through Activities With Church

A Jewish teacher in a southern Colorado school district filed suit yesterday in federal district court alleging that the Florence, Colorado High School extensively promotes evangelical Christian activities through arrangements with a church, The Cowboy Church at Crossroads. The complaint (full text) in Basevitz v. Fremont RE-2 Schol District, (D CO, filed 5/26/2015), alleges in part:

The Cowboy Church at Crossroads is lead by Pastor Randy Pfaff, and meets every Sunday in the cafeteria of the School. The Church is advertised by two large signs that are hung on school property and are clearly visible to motorists.... 

The cornerstone of Pastor Pfaff and the Church’s “mission work” at the School is daily morning prayer in front of the School, at the flagpole.  Either Pastor Pfaff or another member of the Church has been present for this ceremony every day for the last three years. With the School’s support, Pastor Pfaff has led these services, ministering to the School’s students and staff while holding a bible and using a public address system to preach his evangelical Christian messages.... Numerous faculty members, in including Principal Schipper, participate in services.....

... Pastor Pfaff and the Church, with the support of the School’s administration, routinely minister to staff and students through the distribution of flyers promoting their evangelical Christian views...

Through the Fellowship’s front group, Pastor Pfaff and the Church also hold weekly lunches at the School. The students refer to this event as “Jesus Pizza.” This meeting is promoted to the School’s students and staff through the presence of a large sign in the hallway that reads “God loves you and has a plan for your life. Jeremiah 29:11.” ....  During these “Jesus Pizza” sessions, which are led by Pastor Pfaff, he preaches to and prays with Florence students....

Denver Post reports on the lawsuit.

Court Defers To Ecclesiastical Decision In Church Control Lawsuit

Kim v. The True Church Members of the Holy Hill Community Church, (Cal. App., May 21, 2015), involves a dispute between two factions of a Los Angeles congregation that was part of a presbytery of the Korean American Presbytery Church.  The congregation owns valuable property on Los Angeles' Sunset Boulevard.  The dispute involved attempts by one faction to excommunicate members of the other and an attempt to withdraw the congregation from the parent church body.  The California state appeals court affirmed the trial court's decision deferring to the determination by the parent body of the congregation.

Legalization of Same-Sex Marriage Complicates Prior Estate Planning Devices

A New York Times article six years ago reported on the use of adult adoption as an estate planning tool for same-sex couples who were prohibited by law from marrying.  The technique allows a same-sex partner to share as a beneficiary in a family trust to which the person would not be entitled if not a family member. Last week the Doylestown-Buckingham-New Britain Patch reported on how this kind of arrangement has fared as same-sex marriage becomes legal in many states. Bill Novak and Norman MacArthur are a same-sex couple who have been together for more than 50 years and were registered as domestic partners in New York City. When they moved to Pennsylvania, their lawyer advised them to use the adoption strategy for estate planning purposes.  So in 2000, Novak adopted MacArthur.  But now that same-sex marriage is permitted in Pennsylvania, the two would like to marry.  However this required vacating the adoption decree.  In a precedent-setting decision on May 14, the Orphans Court of Bucks County  granted their Petition to Vacate, and the couple applied for and received a marriage license the same day.  They expect to actually marry soon.

Another Decision Invalidating Alabama's Same-Sex Marriage Ban

In Alabama last week, a federal district court took another step toward requiring all counties to issue licenses for same-sex marriages.  A federal district court had already issued an injunction against the attorney general and one state probate judge requiring them to issue marriage licenses to same sex-couples. (See prior posting.) Now in Strawser v. Strange (Doc. 122), (SD AL, May 21, 2015), the same federal district court permitted plaintiffs to turn the case into a class action against "all Alabama county probate judges who are enforcing or in the future may enforce Alabama’s laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages."  It also certified as a plaintiff class "all persons in  Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages."

Then in a second opinion the same day, Strawser v. Strange (Doc. 123), (SD AL, May 21, 2015), the court again held that Alabama's marriage laws that prohibit and refuse to recognize same-sex marriages violated the equal protection and due process clauses of the 14th Amendment. It granted plaintiffs' motion for a preliminary injunction, but stayed it until the U.S. Supreme Court issues its opinion in Obergefell v. Hodges, expected within the next several weeks.  Christian Science Monitor reports on the decision.

Recent Articles of Interest

From SSRN:

• Steven H. Resnicoff, J. David Bleich: An Intellectual Portrait, (in Hava Tirosh-Samuelson and Aaron W. Hughes (eds), J. David Bleich: Where Halakhah and Philsophy Meet (Brill Academic Publishers, Forthcoming).
• Carl H. Esbeck, Third-Party Harms, Congressional Statutes Accommodating Religion, and the Establishment Clause, (University of Missouri School of Law Legal Studies Research Paper No. 2015-10, May 2015).
• Natasha Bakht & Jordan Palmer, Modern Law, Modern Hammers: Canada's Witchcraft Provision as an Image of Persecution, ((2015) 35 Windsor Review of Legal and Social Issues 123).
• Eliav Lieblich, Assimilation Through Law: Hans Kelsen and the Jewish Experience, (The Law of Strangers: Critical Perspectives on Jewish Lawyering and International Legal Thought (James Loeffler & Moria Paz eds., Cambridge University Press, Forthcoming)).
• Michael Heise, Lost Ground: Catholic Schools, the Future of Urban School Reform, and Empirical Legal Scholarship, (Texas Law Review, Vol. 93, 2015).
• Antonios E. Kouroutakis, Islamic Terrorism: The Legal Impact on the US and Europe, (Boston University International Law Journal, Vol. 34, 2016 Forthcoming).
• Elizabeth Sepper, Healthcare Exemptions and the Future of Corporate Religious Liberty, (The Rise of Corporate Religious Liberty (Oxford University Press, Chad Flanders, Zoe Robinson & Micah Schwartzman, eds. 2015, Forthcoming)).
• Elizabeth Deutsch, Expanding Conscience, Shrinking Care: The Crisis in Access to Reproductive Care and the Affordable Care Act's Nondiscrimination Mandate, (Yale Law Journal, Vol. 124, No. 7, 2015).

From SSRN (Rutgers Journal of Law and Religion Symposium, Vol. 16, 2015).

• Roberta Rosenthal Kwall, Introduction - People of the Book: Judaism's Influence on American Legal Scholarship.
• Margo Schlanger, Against Solitary Confinement: Jonah's Redemption and Our Need for Mercy. 
• Susan A. Bandes, Civil Liberties and the 'Imaginative Sustenance' of Jewish Culture.
• Roberta Rosenthal Kwall, Reinvention with Authenticity: A New Journey on a Familiar Road.

From SSRN (Marriage):

• Kevin H. Govern, Fidelity and Fairness in Marital Commitments, Covenants, and Contractual Relationships: Mulieris Dignitatem's Wisdom, (in American Law from a Catholic Perspective: Through a Clearer Lens, Ronald Rychlak Ed., Rowman & Littlefield (April 2015)).
• Mae Kuykendall, Marriage Goals and Government Interests: Handling Complexity, Apportioning Expertise, Using Federalism, (May 20, 2015).
• R. Anthony Reese, Be Careful Where You Live When You Die: Termination of Copyright Transfers and the Road to Marriage Equality, (IP Theory, Forthcoming, 2015).

From SmartCILP and elsewhere:

• Jeremy A. Rovinsky, The Cutting Edge: The Debate Over Regulation of Ritual Slaughter in the Western World, [Abstract], 45 California Western International Law Journal 79-107 (2014).
• Politics of Religious Freedom. Introduction by Peter Danchin, Winnifred Fallers Sullivan, Saba Mahmood and Elizabeth Shakman Hurd; articles by Ratna Kapur, Heather Miller Rubens, Peter Danchin, Louis Blond, Tamir Moustafa, Waheeda Amien and Annie Leatt (Dhammamegha). 29 Maryland Journal of International Law 293-547 (2014).
• Philip C. Aka, Shaping Their Better Character: Religion In African American Politics In the Age of Obama, 16 Rutgers Journal of Law & Religion 1-70 (2014).
• Mairaj Syed, Compulsion in Islamic Law, Entry in Oxford Encyclopedia of Islamic Law, Academia.edu 2015.

Appeals Court Affirms Decision On Ownership of Buddhist Pagoda

As reported by the Salt Lake Tribune, in Dao Trang Phap Hoa v. Vietnamese Unified Buddhist Association of Utah, (UT App., May 21, 2015), a Utah state appeals court upheld a trial court's decision that a Salt Lake City Buddhist temple-- the Pho Quang Pagoda-- is owned by a local affiliate of the California-based Vietnamese-American Unified Buddhist Congress.  Some members of the temple claimed that the Congress held the Pagoda in trust for the local Vietnamese Buddhist Alliance Society of Utah.  The appeals court held that even if there were questions of fact on that issue, the plaintiff in this case, the  Vietnamese Unified Buddhist Association of Utah, lacked standing to assert the claim on behalf of the Society because the two groups are separate corporations, even though they have overlapping membership.

Texas Passes Bill To Protect Clergy and Religious Groups That Object To Same-Sex Marriage

Anticipating the U.S. Supreme Court's upcoming decision on marriage equality, the Texas legislature last week gave final passage and sent to the governor for his signature S.B. No. 2065 (full text) to protect clergy and religious groups who object to same-sex marriage.  The bill provides:

A religious organization, an organization supervised or controlled by or in connection with a religious organization, an individual employed by a religious organization while acting in the scope of that employment, or a clergy or minister may not be required to solemnize any marriage or provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, or celebration of any marriage if the action would cause the organization or individual to violate a sincerely held religious belief.

It goes on to provide that this shields the organization and individuals against civil or criminal claims or governmental denial of benefits. Last Friday's Dallas Morning News, reporting on the legislature's action, also reported that a separate bill designed to impede issuance of same-sex marriage licenses by county clerks will not move ahead this session.

UPDATE: Gov. Greg Abbott signed SB 2065 on June 11. (Austin Standard-Times).

Pro Se Plaintiff Challenges Teaching of Evolution In West Virginia Schools

A pro se lawsuit was filed in a West Virginia federal district court earlier this month challenging the teaching of evolution in West Virginia's public schools.  The complaint (full text) in Smith v. Jefferson County Board of Education, (ND WV, filed 5/12/2015) contends that school officials and various federal officials are propagating a religious faith by fostering the teaching evolution in the state's schools. Reporting on the lawsuit, the National Center for Science Education says that plaintiff is the author of a book titled The True Origin of Man.

Court Orders Another Election For Small Church's Board

In Rock Church, Inc. v. Venigalla, (NY York Co. Sup. Ct., May 14, 2015), a New York state trial court rejected a challenge to its jurisdiction over a disputed election in a small church whose some 30 members were split over whether to fire its pastor after his decision to reduce the number of Sunday services from two to one. The court had previously ordered that a meeting be held to elect a full Board.  This suit challenges the validity of that election in which the faction opposing the pastor was voted into office after a third vote at which the pastor's supporters claim numerous non-members voted. The court said in part:

If this matter required the a weighing of an individual's fitness for membership in the Church, and a decision as to whether or not that individual met the criteria for membership, including investigation into the depth of his or her religious convictions, it would be clear that the matter would be beyond this court's subject matter jurisdiction. But, the matter actually turns on a matter of contract. In the present matter, through its by-laws, the Church's contract as to how the Church will conduct its business, the Church has already decided how members are to be determined. Under the Church's by-laws, it is up to the pastor, and only the pastor, to determine who is to be a member of the Church....

Since Pastor Impaglia ... attests that the third vote taken on October 5, 2014, was taken largely among nonmembers, who cannot vote for trustees, it follows that the final vote taken on October 5, 2014, which put respondents in power, was illegal under the Church's By-Laws, and is void. As said, the matter is one of pure contract interpretation, and therefore involves only the application by this court of a "neutral principle of law."

The court held that another vote held the same day purporting to elect the pastor's supporters was also void, and ordered the church to hold another special meeting.

Official Results and Reactions To Ireland's Marriage Equality Referendum

The official results of Ireland's referendum last Friday (see prior posting) that approved same-sex marriage was 62.07% yes and 37.93% no. (60.52% of the voters turned out for the election,) In a speech on Saturday (full text) welcoming the result, Ireland's Prime Minister Enda Kenny said in part:

So – the people went to the polls. It passed. The answer is YES. Yes to their future. Yes to their love. Yes to their equal marriage. That yes is heard loudly across the living world as a sound of pioneering leadership of our people and hopefully across the generations of gay men and women born as we say, before their time.

In an inteview on Saturday (full text) ith Vatican Insider, Archbishop of Dublin, Diarmuid Martin said in part:

The Church needs to ask itself when this cultural revolution began  and why some of its members refused to see this change. There also needs to be a review of youth pastoral care: the referendum was won with young people’s votes and 90% of young people who voted “yes” to the motion, attended Catholic schools....

An individualistic idea of the family prevails. The concept of marriage as a fundamental element of social cohesion has been lost. A reasoning based on respect for the rights of the individual is more successful than one based on social ethics.

Obama Addresses Synagogue For Jewish American Heritage Month [corrected]

President Obama this morning delivered a 30-minute address (full text) at Adas Israel Congregation in Washington, D.C. to mark Jewish Heritage Month. Here is an excerpt from his wide-ranging speech:

Now, I wanted to come here to celebrate Jewish American Heritage Month because this congregation, like so many around the country, helps us to tell the American story.  And back in 1876, when President Grant helped dedicate Adas Israel, he became the first sitting President in history to attend a synagogue service.  And at the time, it was an extraordinarily symbolic gesture -- not just for America, but for the world. 

And think about the landscape of Jewish history.  Tomorrow night, the holiday of Shavuot marks the moment that Moses received the Torah at Mount Sinai, the first link in a chain of tradition that stretches back thousands of years, and a foundation stone for our civilization.  Yet for most of those years, Jews were persecuted -- not embraced -- by those in power.  Many of your ancestors came here fleeing that persecution. 

The United States could have been merely another destination in that ongoing diaspora.  But those who came here found that America was more than just a country.  America was an idea.  America stood for something.  As George Washington wrote to the Jews of Newport, Rhode Island:  The United States “gives to bigotry no sanction, to persecution no assistance.” 

[Correction: Obama spoke to "mark" the event.  The typo in an earlier version of the post regrettably suggested something else.]

New Orleans Mayor Issues Executive Order In Opposition To Jindahl's

Two days after Louisiana Governor Bobby Jindahl issued an executive order designed to prevent governmental entities from denying benefits to persons who act in accordance with their religious beliefs in opposition to same-sex marriage (see prior posting), New Orleans Mayor Mitch Landrieu yesterday issued a counter-Executive Order (full text).  Landrieu's order was designed to address the backlash to Jindahl's action that threatened tourist, convention and special event business in the state.  The heart of Landrieu's order is the purpose clause in Sec. 1:

The purpose of this Executive Order is to confirm for the residents of the City of New Orleans, its businesses and visitors that religious beliefs are protected from unjustified governmental burden, but that there is no tolerance in the City of New Orleans for discrimination on the basis of race, creed, national origin or ancestry, color, religion, gender or sex, sexual orientation, gender identification, marital or domestic partner status, age, physical condition or disability.

The Advocate reports on Landrieu's action and points out that New Orleans "has a history of embracing gays, lesbians, bisexuals and transgender individuals, not only culturally, through Carnival krewes and the annual Southern Decadence festival, but through its laws."

Zogby Reappoined To USCIRF

Last week, President Obama announced his intention to reappoint Dr. James J. Zogby to another term on the U.S. Commission on International Religious Freedom. Earlier this week, USCIRF issued a press release in which USCIRF Chair Dr. Katrina Lantos Swett welcomed the reappointment.

Court Refuses To Allow High School Senior To Wear Eagle Feather On Cap At Graduation

In Griffith v. Caney Valley Public Schools, (ND OK, May 20, 2015), an Oklahoma federal district court adopted a magistrate's recommendaiton (full text) and refused to grant a preliminary injunction to high school student Hayden Griffith who wanted to wear an eagle feather on her mortar board tassel at her high school graduation last night.  The court rejected Griffith's claim that the school district's ban on cap decorations violates her free speech and free exercise rights and her rights under the Oklahoma Religious Freedom Act (ORFA). Discussing the ORFA claim, the court concluded that Griffith had not shown that the policy substantially burdens her free exercise of religion, saying:

[Griffith] testified that wearing the feather shows her respect for God and for the tribal elder who gave the feather to her, but that failing to attach the feather to her cap would not result in any religious detriment to her. Thus, attaching the feather to her graduation cap would be a personal expression of religious significance to Griffith, but it is not a religiously motivated “practice” ... or an activity that is “fundamental” to her religion.... Nor does the policy prohibiting decorations on graduation caps during the ceremony “meaningfully curtail” her ability to express adherence to her faith..... The policy does not prevent Griffith from attaching the feather to her cap at any time other than the graduation ceremony. She may attach it to her cap it up until she enters the graduation ceremony, and she may affix the feather to her cap immediately after the ceremony. The school superintendent also offered to re-pose for the professional photographer with Griffith wearing her feather on her cap after the ceremony. In sum, Griffith may display the feather as she wishes throughout her celebration of her graduation, other than during the graduation ceremony with her fellow classmates.

Tulsa World reported on the decision.

North Carolina Magistrates Sue Over Requirement They Perform Same-Sex Marriages

Yesterday in North Carolina, a magistrate and a former magistrate (who had not been reappointed after 10 years of service) filed suit challenging a memorandum issued by the Administrative Office of the Courts in October requiring all magistrates to conduct same-sex marriage ceremonies in the same manner as any other marriage ceremony.  The memorandum was issued to implement federal court rulings striking down the state's same-sex marriage ban.  The complaint (full text) in Smoak v. Smith, (NC Super. Ct., filed 5/21/2015) contends that the failure to make exceptions for magistrates with sincerely held religious beliefs opposed to same-sex marriage violates their conscience, religious liberty, free speech, due process and equal protection rights under the North Carolina Constitution. Liberty Counsel issued a press release on the lawsuit.

DC Circuit Denies En Banc Review of Priests For Life ACA Contraceptive Mandate Challenge

Yesterday in Priests for Life v. U.S. Department of Health and Human Services, (DC Cir., May 20, 2015), the D.C. Circuit Court of Appeals denied a petition for rehearing en banc. In the case, a 3-judge panel upheld the Obama administration's compromise for religious non-profits that object to furnishing contraceptive coverage under the Affordable Care Act. (See prior posting.) While the petition for rehearing failed to garner votes of a majority of the Circuit's judges, three separate opinions on behalf of six different judges were filed along with the per curiam denial.

Judge Brown, dissenting from the denial, joined by Judge Henderson argued

The panel conceded Plaintiffs sincerely “believe that the regulatory framework makes them complicit in the provision of contraception,” ... That acknowledgement should end our inquiry into the substance of their beliefs.

Judge Kavanaugh also dissented from the denial of a rehearing, arguing that the government has a still less restrictive alternative available-- a less restrictive notice of an opt out by the non-profit.

Judge Pillard, joined by Judges Rogers and Wilkins defended their 3-judge panel decision:

the dissenters perceive in Hobby Lobby a potentially sweeping, new RFRA prerogative for religious adherents to make substantial-burden claims based on sincere but erroneous assertions about how federal law works....

RFRA protects religious exercise. In no respect do we, nor could we, question Plaintiffs’ sincere beliefs about what their faith permits and forbids of them. But we can and must decide which party is right about how the law works. We concluded that the regulation challenged in this case does not, as a matter of law or fact, give Plaintiffs’ conduct the contraception-facilitating effect of which they complain.

Washington Times reports on the decision.

Some Recent Congressional Actions of Interest

On April 15, the U.S. House of Representatives passed H.R. 1314, a bill that would amend the Internal Revenue Code to assure the right to an administrative appeal for non-profit organizations that are denied tax-exempt status by the IRS.  When the bill went to the Senate, it became the vehicle for the high profile trade promotion authority.  The May 12 substitute amendment (full text) that added the trade authority provisions, however, eliminated the text of the House language regarding non-profits.

A large number of amendments have been offered on the Senate floor to the trade authority bill. One of those amendments (No. 1237), approved in the Seante  on May 18 by a 92-0 vote, adds to the numerous trade negotiating objectives in Sec. 102, the following:

to take into account conditions relating to religious freedom of any party to negotiations for a trade agreement with the United States.

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.