Ramadan Begins This Evening

Ramadan begins this evening, according to an announcement by Saudi Arabia's Supreme Court. (Al Arabiya). The dawn to dusk fast that begins tomorrow morning is particularly difficult in northern Europe and North America because the holy period based on the lunar calendar falls this year during the long days of summer.The International Business Times reports that Muslim clerics in Britain differ on whether Muslims in Europe can use the fasting hours for Mecca-- 12 to 13 hours per day-- instead of the longer 18 hours that are involved by using actual sunrise and sunset in northern Europe.

Meanwhile PolitiFact discusses the outrage on conservative social media over the decision of the U.S. Embassy in Indonesia to hold its annual 4th of July celebration-- an outreach event aimed at local influentials-- on June 4 since a daytime event during Ramadan would not have been well attended.

Afghan President Appoints First Woman To Supreme Court, But Clerics Object

Afghanistan President Ashraf Ghani has appointed the country's first female Supreme Court judge according to yesterday's Euronews.  Ghani fulfilled an election promise by appointing Anisa Rassouli, former head of the Afghan Women Judges Association.  Rassouli's appointment must still be approved by Parliament. Ghani says he has religious approval for the appointment, but Islamic clerics on the Ulema Council of Afghanistan say that Sharia law prohibits a woman from occupying the position of judge.

Group Challenges Sheriff's Preaching While In Uniform

Lakeland, Florida, which is no stranger to church-state conflicts, is now home to another one. Fox 13 News reports that Polk County Sheriff Grady Judd delivered a sermon last April at the First Baptist Church in Lakeland, wearing his sheriff's uniform. The sermon focused on developing faith based dorms at the Polk County Jail and criminals changing their lives after finding Jesus. The Freedom From Religion Foundation has threatened to sue if Judd continues to wear his official uniform while preaching.

Jordanian Media and Muslims Criticize U.S. Ambassador's Support of LGBT Event

AlMonitor reported yesterday on the strong criticism leveled by Jordan's Islamic Action Front and conservative Jordanian media of U.S. Ambassador Alice Wells' attendance at an event last month in central Amman to mark the International Day Against Homophobia, Transphobia and Biphobia. In a statement, the Islamic Action Front said in part:

such meetings are a form of corruption and deviation. These meetings threaten the security and stability of the country, spreading the taboo and immorality in this conservative society and are also contrary to the constitution.

Suit Claims College Volleyball Coach Required Team Members To Attend Church

The Wilmington News Journal and Courthouse News Service report on a lawsuit filed this week in federal district court in Delaware by a former Delaware Sate University volleyball player who says she lost her scholarship because she objected to the volleyball coach's requirement that players attend church and participate in other religious activities.  The suit filed by Natalia Mendieta, a Catholic, against former coach LaKisya Killingsworth and former athletic director Candy Young claims that in 2013 the coach required players to attend Sunday services with her at Calvary Assembly of God, a Pentecostal church. The coach also had the team pray before each match, distributed Bibles to the team and urged players to join the Fellowship of Christian Athletes. In 2014, the coach made religious activities optional, but still listed church on the team's schedule and favored those who attended.  The suit claims that after plaintiff objected to the church attendance requirement, the coach used plaintiff's violation of a curfew by a few minutes as an excuse for revoking her scholarship for the 2015-16 school year.

Freedom From Religion Foundation Founder Ann Gaylor Dies At 88

Freedom From Religion Foundation announced yesterday that its principal founder Anne Nicol Gaylor died Sunday night. She was 88. Gaylor served as president of FFRF until 2004. According to FFRF:

A master of “sound bites” with media savvy, Anne quickly took FFRF from a tiny organization to the largest association of freethinkers (atheists and agnostics) in North America.

FFRF, founded in 1976, has in recent years developed a major national presence in litigating church-state cases. Gaylor was also a co-founder of the Wisconsin-based Women’s Medical Fund, the oldest continuously operating abortion rights charity in the U.S.

Muslim Woman Sues Over Required Removal of Hijab During Traffic Offense Booking

WZZM reported yesterday on a federal lawsuit filed last month in Grand Rapids, Michigan by a Muslim woman who was forced by Oceana County Sheriff's officials to remove her hijab (religious head covering) while being processed at the county jail for a minor traffic violation.  On May 17, Fatme Dakroub was falsely arrested for driving with an expired license while vacationing with her family at Lake Michigan sand dunes.  Her request to have a female officer handle her booking was denied, and she was forced to sit for 3 hours bare headed in a holding cell in front of male officers and inmates.

Vatican Drops the Other Shoe In Attacking Mishandling of Sex Abuse Claims

Just days after the Vatican announced a new Tribunal to hear cases of bishops who fail to protect children from sexually abusive priests (see prior posting) and the criminal indictment of the St. Paul-Minneapolis Catholic Archdiocese for inadequate responses to reports of sexual abuse (see prior posting), the Archbishop and Auxiliary Bishop of the St. Paul-Minneapolis Archdiocese have resigned. According to the National Catholic Reporter, on Monday the Vatican announced the resignations of both Archbishop John Nienstedt and Auxiliary Bishop Lee Piché. Nienstedt had been charged with mishandling complaints against convicted former priest Curtis Wehmeyer, and later unproven charges were leveled against Nienstedt himself claiming inappropriate sexual contact with adults and a boy. Piché oversaw the investigation of Nienstedt, and for a while headed the Archdiocese.  Newark, New Jersey Coadjutor Archbishop Bernard Hebda has been appointed Apostolic Administrator for the Archdiocese.

AP has a timeline of key events in the Archdiocese scandal. Wall Street Journal points out that all of this is taking place as the Archdiocese is going through a bankruptcy reorganization.

Meanwhile, the Vatican also announced on Monday that former apostolic nuncio to the Dominican Republic, Jozef Wesolowski, will be criminally tried in the Tribunal of the Vatican City State.  Wesolowski is charged with sexual abuse of minors while in the Dominican Republic, and possession of child pornography while in Rome. (See prior posting.)

Muslim Employee Not Constructively Discharged For Refusing Friday Work

In Shah v. IMI's MN, Inc, (MN App, June 15, 2015), a Minnesota appeals court, in a 2-1 decision, agreed with an unemployment law judge that a Muslim employee of an optical store was not forced to resign because of failure to accommodate her need for religious reasons not to work on Fridays. While she was scheduled two different times to work on Fridays, on both times this was changed when she complained.  The majority concluded that her resignation did not result from requiring her to choose between violating her religious beliefs or losing her job. Thus she was not entitled to unemployment compensation benefits.

Judge Minge dissented, arguing that the case should be remanded for the unemployment law judge to determine whether the employer had made a commitment to accommodate the employee's religious beliefs in the future and whether the difficulties experienced by the employee over accommodation were a material cause of the health problems that led her to resign.

Cert. Granted In Prisoner IFP Litigation Fee Case

The U.S. Supreme Court today granted certiorari in Bruce v. Samuels, (Docket No. 14-844, cert. granted 6/15/2015) (Order List), a case that is important for prisoner litigation over religious accommodations-- cases that are often brought by prisoners in forma pauperis. At issue is the interpretation of a provision in the Prison Litigation Reform Act that caps monthly payments by prisoners proceeding in forma pauperis at 20% (28 USC 1915(b)(2)).  At issue in the case is whether a prisoner who files multiple cases or appeals has his monthly payment capped at 20% of his total income, or whether he must pay 20% of his income each month for each pending case. The Circuits are split on the issue.  In the decision below (full text), the D.C. Circuit chose the per-case approach. The SCOTUS blog case page for the case is here.

Recent Articles and Books of Interest

From SSRN:

• Tom Herrenberg, Denouncing Divinity: Blasphemy, Human Rights, and the Struggle of Political Leaders to Defend Freedom of Speech in the Case of Innocence of Muslims, (Ancilla Iuris,(anci.ch) 2015: 1).
• Lucia Ann Silecchia, A Witness First Lives the Life He Proposes: Evangelization and the Catholic Lawyer, (May 21, 2015).
• Kenneth Einar Himma, The Ethics of Subjecting a Child to the Risk of Eternal Torment: A Reply to Shawn Bawulski, (June 10, 2015).
• David B. Schwartz, The NLRA's Religious Exemption in a Post-Hobby Lobby World: Current Status, Future Difficulties, and a Proposed Solution, (30 A.B.A. J. of Lab. and Emp. Law 227 (Winter 2015)).
• Frederick B. Jonassen, 'So Help Me?': Religious Expression and Artifacts in the Oath of Office and the Courtroom Oath, (Cardozo Public Law, Policy and Ethics Journal, Vol. 12, No. 2, Spring 2014).
• Priscilla J. Smith, Contraceptive Comstockery: Reasoning from Immorality to Illness in the Twenty-First Century, (Connecticut Law Review, Vol. 47, No. 4, 2015).
• Danielle Keats Citron, Hate Crimes in Cyberspace - Introduction, (Hate Crimes in Cyberspace, Harvard University Press (2014)).
• Charles R. Calleros, Advocacy for Marriage Equality: The Power of a Broad Historical Narrative During a Transitional Period in Civil Rights, (Forthcoming in 2015, Mich. St. L. Rev. for Symposium on Persuasion in Civil Rights Advocacy).

From elsewhere:

• Symposium: Polygamous Unions? Charting the Contours of Marriage Law's Frontier, 64 Emory Law Journal, Issue 6 (2015).

New Books:

• Anna Su, Exporting Freedom: Religious Liberty and American Power, (Harvard University Press, Jan. 2016).
• Mary Ziegler, After Roe: The Lost History of the Abortion Debate, (Harvard University Press, June 2015).
• Jeanette S. Jouili, Pious Practice and Secular Constraints: Women in the Islamic Revival in Europe, (Stanford University Press, 2015).

800th Anniversary of the Magna Carta; What Did It Have To Do With Religious Freedom?

Today is widely celebrated as the 800th anniversary of King John's placing his seal on the Magna Carta (full text) at the demand of rebellious barons. (Background  from the National Archives). However it is actually a revised version agreed to 4 days later that laid the foundation for the rule of law and due process for all freemen.  That is the text that has survived. As recounted by the National Archives in an article titled Magna Carta and Its American Legacy:

Of great significance to future generations was a minor wording change, the replacement of the term "any baron" with "any freeman" in stipulating to whom the provisions applied. Over time, it would help justify the application of the Charter's provisions to a greater part of the population....

What is largely forgotten, however, is that the very first of the protections set out in the Magna Carta was for the English Church (which at this pre-Reformation time still acknowledged the authority of the Pope [background]):

Know that we, at the prompting of God and for the health of our soul and the souls of our ancestors and successors, for the glory of holy Church and the improvement of our realm, freely and out of our good will have given and granted to the archbishops, bishops, abbots, priors, earls, barons and all of our realm these liberties written below to hold in our realm of England in perpetuity.

In the first place we grant to God and confirm by this our present charter for ourselves and our heirs in perpetuity that the English Church is to be free and to have all its rights fully and its liberties entirely.

This was far from the final chapter in King John's relationship with the Church.  As recounted in Meeting at Runnymede from the Constitutional Rights Foundation:

King John ... secretly wrote the Pope asking him to cancel Magna Carta on the grounds that he signed it against his will. At the same time he continued to build up his mercenary army. Not trusting John's intentions, the rebel barons held on to London and maintained their own army.

Pope Innocent III replied favorably to King John's appeal. He condemned Magna Carta and declared it null and void.... The barons charged that King John had defaulted on his agreement with them and they were justified in removing him from the throne. They offered the throne to the son of the French king, if he would aid their rebellion.

A long and bloody civil war loomed across England, when suddenly, King John died....Ten days later John's nine-year-old son, Henry, was crowned as the new king of England. With John out of the way, the conflict gradually ceased. Less than a month after Henry was crowned, his supporters confirmed Magna Carta in his name. This time it received the approval of the Pope.

Recent Prisoner Free Exercise Cases

In Rowell v. Cox, 2015 Nev. App. Unpub. LEXIS 243 (NV App., , May 27, 2015), a Nevada appeals court affirmed dismissal of an inmate's complaint that his free exercise rights under the state and federal constitutions were infringed when prison authorities refused to furnish him a low-sodium, soybean-free, kosher diet so he could meet both his health and religious needs.

In Womack v. Cross, 2015 U.S. Dist. LEXIS 73884 (SD IL, June 8, 2015), an Illinois federal district court permitted a Native American inmate to proceed with his free exercise and equal protection challenge to the prison chaplain's hostile impediments to Native American ceremonies and worship.

In Young v. Biter, 2015 U.S. Dist. LEXIS 73944 (ED CA, June 8, 2015), a California federal magistrate judge dismissed, with leave to amend, a Messianic Jewish inmate's 200-page complaint alleging, among other things, denial of a kosher diet and denial of inmate minister status.

In Anderson v. United States, 2015 U.S. Dist. LEXIS 74249 (ED MO, June 9, 2015), a Missouri federal district court dismissed a suit by a prisoner awaiting trial on possession and distribution of heroin charges seeking a declaration that the government's decision to indict him and hold him for trial violates his free exercise rights.  He claims that he "is a student of Esoteric and Mysticism studies" and that he distributes heroin to "the sick, lost, blind, lame, deaf, and dead members of Gods' Kingdom" to save their souls.

In Ramrattan v. Fischer, 2015 U.S. Dist. LEXIS 74510 (SD NY, June 9, 2015), a New York federal district court dismissed, with leave to amend, a Hindu inmate's complaint regarding failure to hire a Hindu chaplain and failure to provide him with a religious diet.

In Garcia v. Godinez, 2015 U.S. Dist. LEXIS 75125 (SD IL, June 10, 2015), an Illinois federal district court permitted an inmate who had changed his faith from Hebrew Israelite to Orthodox Jewish to move ahead with his complaint that he was being denied use of tefillin because the Department of Corrections contracted rabbi refused to instruct him in their use since he did not consider him Jewish.

In Wright v. Lassiter, 2015 U.S. Dist. LEXIS 75838 (ED NC, June 10, 2015), a North Carolina federal district court dismissed a Rastafarian inmate's complaint that prison authorities refused to recognize certain holidays he sought to observe.

Michigan Governor Signs Bills Protecting Faith-Based Adoption Agencies; ACLU Vows Challenge

On Thursday, Michigan Governor Rick Snyder signed (press release) three companion bills assuring that faith-based agencies providing foster care and adoption services are protected in refusing to place children under circumstances that conflict with the agency's sincerely held religious beliefs contained in a written policy, statement or faith, or other document adhered to by the agency. Under the bills, the state may not refuse funds for services to agencies that refuse such placements.  If an agency refuses to provide services on religious grounds, it must either refer the applicant to another agency or to a website listing other child placement agencies.  In signing HB 4188, 4189 and 4190, the governor said that the bills "do not change current practices in Michigan, but prevent faith-based agencies from having policies forced on them that violate their religious beliefs, which have resulted in agencies closing in Massachusetts, Illinois, California, and Washington, D.C."

Responding to the Governor's action, the ACLU on Thursday issued a statement (full text) reading in part:

We’re deeply disappointed that Governor Snyder signed this dangerous legislation. We are developing a lawsuit with our Muslim, Jewish, Christian and LGBTQ partners. We encourage any family looking to adopt or foster children who believe they will be adversely affected by this law to contact us immediately.

MLive reporting on developments says that together Catholic Charities and Bethany Christian Services together provide 25% to 30% of foster care adoptions in the state.

Court Orders Religious Accommodation For Sikh Student Seeking To Enter ROTC Program

In Singh v. McHugh, (D DC, June 12, 2015), the D.C. federal district court ordered the Army to grant a religious accommodation to dress and grooming requirements to allow a Sikh college student to enroll in the ROTC program at Hofstra University.  The court relied heavily on the Supreme Court's decision this term in Holt v. Hobbs in refusing to completely defer to military judgment, saying in part:

The Court finds that defendants have failed to show that the application of the Army’s regulations to this plaintiff and the denial of the particular religious accommodation he seeks further a compelling government interest by the least restrictive means. Therefore ... judgment will be entered in favor of the plaintiff. The Court accords substantial deference to the Army’s judgments concerning the essential role that uniformity plays in military training and effectiveness. But given the tens of thousands of exceptions the Army has already made to its grooming and uniform policies, its successful accommodation of observant Sikhs in the past, and the fact that, at this time, plaintiff is seeking only to enroll in the ROTC program, the Army’s refusal to permit him to do so while adhering to his faith cannot survive the strict scrutiny that RFRA demands. This decision is limited to the narrow issue presently before the Court – plaintiff’s ability to enroll in ROTC with his turban, unshorn hair, and beard – and it does not address plaintiff’s eventual receipt of a contract or an Army commission.

Spain's Parliament Passes Law Allowing Non-Resident Sephardic Jews To Apply For Citizenship

The Wall Street Journal  and AP report that Spain's legislature yesterday gave final approval to a bill that will allow Sephardic Jews-- descendants of those expelled in 1492-- to apply for Spanish citizenship without requiring they live in Spain or give up their current citizenship elsewhere.  This follows a similar step by Portugal earlier this year.  Under Spain's new law, applicants will be required to show basic Spanish language ability, pass the same test on current events and Spanish culture as other citizenship applicants, and prove a current link to Spain such as donating to a Spanish charity or owning Spanish property. Sephardic Jews will have a 3-year window beginning in October to apply for a Spanish passport.  This will give them the right to live and work anywhere in the 28-nation European Union.  While the bill was debated in Parliament, two small leftist parties offered an amendment that would have extended it to Moriscos-- descendants of the Muslim Moors who were forced to convert to Christianity in 1502 under threat of exile or death and who were then expelled from Spain in 1609. (Background.) That amendment was defeated. [Thanks to Tom Rutledge for the lead.]

North Carolina Legislature Overrides Veto Of Magistrates Recusal Bill

The North Carolina General Assembly yesterday overrode Governor Pat McCrory's veto of Senate Bill 2, Magistrate's Recusal For Civil Ceremonies.  The Senate vote to override, cast June 1, was 32-16. The House vote  yesterday was 69-41. (Vote history).  The bill provides that individual magistrates have the right to recuse themselves from performing all lawful marriages based on any sincerely held religious beliefs and that individual register of deeds personnel similarly may opt out of issuing marriage licenses. (See prior posting.) Raleigh News & Observer reports on the General Assembly's action.

Settling Factional Dispute Would Involve Civil Court In Religious Matters

In Samuel v. Lakew, (DC Ct. App., June 11, 2015), the District of Columbia Court of Appeals affirmed the Superior Court's dismissal of a lawsuit between two factions of the Kedus Gabriel Parish (located in D.C.) of the Ethiopian Orthodox Tewahedo Church in the Diaspora.  The parent church's Holy Synod had ruled that the president of the local church and the head of the Parish Administrative Council should surrender all keys and property of the Parish to the Archbishop of the Washington Metropolitan area.  They refused to do so, and the Archbishop sued seeking an injunction requiring them to comply with the Holy Synod's ruling.  The DC court held that the true dispute was over whether a clause in Kedus Gabriel's bylaws giving the  Holy Synod responsibility for the congregation's "spiritual and religious matters" gives the Holy Synod authority to remove Kedus Gabriel’s elected officers here.  Deciding whether the Holy Synod's decision here involved spiritual or religious matters would involve the court in an impermissible inquiry into religious doctrine and practice in violation of the First Amendment. The court concluded:

Informed by both parties’ summary judgment papers that the dispute here at bottom is about which clergy have the right to control Kedus Gabriel, Judge Kravitz properly denied relief, on the ground that “the First Amendment does not permit a civil court to determine the religious leader of a religious institution[.]”

International Travel Limits In Custody Order Did Not Violate Rastafarian Parent's Rights

In In re the Paternity of Y.K.S., (WI Ct. App., June 11, 2015), a Wisconsin appeals court upheld a provision in a joint custody order barring Jesse Schwork from traveling internationally with his son to any country that is not a signatory to the Hague Abduction Convention.  Schwork, a practicing Rastafarian, argued that this would prevent him from taking his son to religiously significant sites.  The court rejected his argument, saying in part:

Schworck’s argument that the circuit court should have granted him a hearing and that it was required to apply strict scrutiny in crafting the travel restriction is premised on his assertion that the travel restriction infringes on his right to provide religious instruction to Y.S. We see no such infringement because the travel restriction does not prohibit Schworck from raising Y.S. in the Rastafarian faith....

Assuming, without deciding, that travel to Kenya and Ethiopia would be beneficial to raising Y.S. in the Rastafarian faith, we reject the proposition that the circuit court was required to hold a hearing to determine whether the travel restriction infringed on Schworck’s First Amendment right to the free exercise of his religion. Both the United States Supreme Court and our supreme court ... have recognized that the First Amendment does not protect an individual’s right to act in conformity with his or her religion in all circumstances.

6th Circuit: County's Use of Religiously Sponsored School For Alternative Program Did Not Violate Establishment Clause

In Smith v. Jefferson County Board of School Commissioners, (6th Cir., June 11, 2015), the U.S. 6th Circuit Court of Appeals, reversing the trial court, held that a Tennessee school board did not violate the Establishment Clause when, in the context of a budgetary crisis, it contracted with Kingswood, a private Christian school, to provide a state-mandated alternative program.  District students who had been suspended or expelled from their regular middle- or high-school were enrolled in Kingswood's "day" (as opposed to its more religious "residential") program. In a suit brought by two teachers who lost their jobs when the prior the board-run alternative school closed, the court said in part:

Here, a reasonable observer would not interpret the School Board’s relationship with Kingswood as a governmental endorsement of religion. Parents and students, for example, encountered only de minimis religious references in Kingswood’s day program. The evidence indicates that students in the day program were not exposed to any religious instruction, prayer, or any mentions of religion at all. Their school building was devoid of any religious imagery. Their assemblies in the chapel were as close as the day students came to religious exposure, and yet those assemblies were completely secular activities.

Perhaps the most overt religious references were the Biblical quotes on the report cards, family-feedback forms and—for those who sought them out—the annual report and school improvement plan.   But a reasonable observer would view all of these in the specific context of the arrangement that Kingswood had with Jefferson County. A budgetary crisis forced the Board to close its alternative school and, needing to accommodate the alternative-school students on short notice, the Board selected a high-performing, state-certified alternative school...

An ACLJ press release discusses the decision.

UPDATE: In the case, Judge Batchelder filed an opinion concurring in part and concurring in the result, but saying: "I cannot agree with the lead opinion’s dismissing as irrelevant last year’s Supreme Court opinion in Town of Greece." She said that while lower courts are required to follow Supreme Court decisions invoking the "endorsement" test until the Court explicitly overrules them, the Supreme Court appears to have rejected that test in favor of the historical "coercion" test.

Pope Approves New Tribunal For Charges Against Bishops In Sex Abuse Cases

Vatican Radio yesterday reported that Pope Francis has approved a recommendation by the Pontifical Commission for the Protection of Minors for creation a new Vatican tribunal to hear cases of bishops who fail to protect children from sexually abusive priests. The tribunal will be set up as a judicial section within the Congregation for the Doctrine of the Faith.

More Messy Procedural Decisions In Arkansas Same-Sex Marriage Litigation

The procedural messiness that has surrounded much of the litigation over same-sex marriage manifested itself again in two recent judicial decisions in Arkansas.  In Henson v. Walther, (AR Cir. Ct., June 9, 2015), an Arkansas trial court judge held that marriages of same-sex couples performed in the state between May 9 and May 16 are valid.  Here is the background:

On May 9, a state trial court held that the state's constitutional ban, and two statutory provisions making same-sex marriages void violate the 14th Amendment's equal protection and due process clauses. However on May 14, the Arkansas Supreme Court pointed out that the trial court had not invalidated a third provision in Arkansas law prohibiting the issuance of marriage licenses to same-sex couples, and had not included language actually enjoining enforcement of the bans on same-sex marriage that it declared unconstitutional.  The trial court responded on May 15 by issuing an order nunc pro tunc granting an injunction and including the omitted third statutory provision. The trial court made it all retroactive to May 9, indicating that this had been the original intent in issuing the May 9 decision. (See prior posting.) On May 16, the Arkansas Supreme Court issued an order staying the trial court's order pending appeal.

The Director of the Arkansas Department of Finance and Administration has refused to recognize the validity of same-sex marriages performed between May 9 and May 16, arguing that the trial court lacked authority to make its May 15 ruling retroactive. He directed same-sex couples married during that period to file separate rather than joint tax returns, and refused to permit same-sex spouses to enroll in the state employee health insurance plan. In Henson the trial court judge disagreed, asserting that the state Finance Director was acting with "shameless disrespect for fundamental fairness and equality." AP reports on the decision.

Meanwhile an appeal of the underlying same-sex marriage challenge has been pending in the Arkansas Supreme Court for over a year-- bogged down in part by an unusual dispute over who are the proper Supreme Court justices to decide the case.  In September 2014, Justice Cliff Hoofman recused himself and the governor appointed Robert W. McCorkindale to serve as special justice in place of Hoofman. The case was briefed and argued before the end of 2014, but the state Supreme Court ended its term without handing down a decision. When the new term began, two new justices had been elected, one of whom was Justice Rhonda Wood who replaced Justice Hoofman.  She insisted she had a right to participate in deciding the appeal.  In Smith v. Wright, (AR Sup. Ct., May 7, 2015), with Jutice Wood and two other justices recusing themselves and replaced by 3 special justices, the Court held that newly-elected Justice Wood, not the holdover special justice, should participate in deciding the appeal.

Cert Filed and Stay Issued In Priests For Life Challenge To Contraceptive Coverage Accommodation

On June 9, a petition for certiorari (full text) was filed with the Supreme Court in Priests For Life v. U.S. Department of Health and Human Services.  In the case, a 3-judge panel of the D.C. Circuit upheld the Obama administration's compromise for religious non-profits that object to furnishing contraceptive coverage under the Affordable Care Act.  The D.C. Circuit denied an en banc rehearing, but with 3 judges writing a dissent from the denial and 3 others responding. (See prior posting.)  Then on June 10, the D.C. Circuit issued an Order (full text) staying its decision pending final disposition of the case by the Supreme Court. In a June 10 press release, Priests For Life announced the stay and added: "no matter what happens, we will not obey the mandate, nor will we pay fines to the government."

First U.S. - Vatican Intergovernmental Agreement Signed-- To Prevent Tax Evasion

Yesterday the United States signed its first formal inter-governmental agreement with the Holy See-- an agreement to prevent tax evasion by U.S. citizens who conduct financial activities in the Vatican City State. Zenit reports that the agreement, also signed by the Holy See acting in the name and on behalf of the Vatican City State, implements requirements of the U.S. Foreign Account Tax Compliance Act (FATCA) [background].

Local Board Loses Suit Against NY Education Department Over Placement of Jewish Special Needs Students

As reported by yesterday's Lower Hudson Journal News, the East Ramapo, New York school board's battle with  the state Education Department continues as the local school board loses a lawsuit challenging state interference in its placement of special education students.  Last year a state-appointed monitor filed report critical of the East Ramapo board whose Orthodox Jewish majority has been charged with aiding yeshivas at the expense of public schools. (See prior posting). The latest round involves intervention by the state challenging the East Ramapo board's practice of paying for special needs students from ultra-Orthodox families to go to private Yiddish-speaking schools when placements were available in public schools. (Background.) The district had argued that the cost of placing students in private schools that accommodate their cultural and language preferences is no more than placement in public schools, and fighting parental requests would have cost the district tens of thousands of dollars.  In Matter of East Ramapo School District v. King, (App. Div., June 4, 2015), a New York appellate court held that the federal Individuals With Disabilities Education Act does not grant the local school board a right of action to challenge the state's enforcement of federal law assuring students with disabilities a free appropriate public education.

Suit Challenging Prayer During School Free Time Dismissed By Parties

As reported today by the Colorado Springs Gazette, a Colorado federal district court on June 3, upon motion by plaintiffs (full text), dismissed a lawsuit (see prior posting) against Colorado Spring's Academy School District #20.  At issue was students' rights to gather together for prayer and religious discussion during free periods. The parties disagree however over how to characterize the events leading up to the dismissal.  Alliance Defending Freedom in a press release says the school backed off its policy of barring prayer and religious discussion during lunch periods, allowing it only before and after school.  The school says that the issue was never lunchtime, but instead whether students could gather during so-called Seminar period, an open period during the day when students could engage in other activities. For the last three years, student Chase Windebank who recently graduated has been leading an informal religious gathering during Seminar time and attendance had increased to over 90 students. The school district has now cancelled the Seminar period entirely for the upcoming school year, essentially eliminating the issue of whether religious activities are permitted during that time.

New Manual Suggests Strategies For Churches To Fend Off LGBT Lawsuits

Baptist Press reported yesterday:

The Ethics & Religious Liberty Commission (ERLC) and Alliance Defending Freedom (ADF) have published "Protecting Your Ministry," a legal manual for Southern Baptist churches, schools and ministries. The 44-page booklet is designed to equip SBC and other evangelical churches and institutions with legal protection against sexual orientation and gender identity lawsuits.

The manual includes checklists to guide Christian institutions on maximizing their religious liberty protections under the law and maintaining their freedom to proclaim the Gospel of Jesus. It also provides sample documents -- such as a membership agreement, facility use policy and article for a statement of faith -- to assist churches and other ministries.

The manual is available as an e-book free of charge from the ERLC website.

Plaintiffs May Proceed On Some Claims Charging Anti-Hasidic Motivation In Obstructing Construction

In Bloomingburg Jewish Educational Center v. Village of Bloomingburg, New York, (SD NY, June 9, 2015), a New York federal district court allowed plaintiffs to move ahead with some of their claims that local governments and public officials of the Village of Bloomingburg and the Town of Mamakating took various actions to prevent Hasidic Jews from moving into the area.  The court held that two of the plaintiffs

have stated plausible claims for relief under 42 U.S.C. § 1983 and 42 U.S.C. § 1985 against [various] defendants ... based on these defendants’ alleged roles in stymying the conversion of a property in Bloomingburg into a mikvah, a bath used by Hasidic Jews for ritual immersion and purification.  Plaintiff Sullivan Farms II, Inc. has stated plausible claims for relief under § 1983, § 1985, and the FHA ...  against [certain] defendants based on these defendants’ alleged roles in obstructing the completion of a housing development project known as Chestnut Ridge.

A number of other of plaintiffs' claims were dismissed.  AP reports on the decision.

Challenge To City's Removal of Cross Dismissed Because of Improper Plaintiffs

In Citizens of Grand Haven v. City of Grand Haven, (MI Cir. Ct., June 9, 2015), a Michigan trial court dismissed a suit that was seeking to require city council to reverse its earlier decision to limit access to Dewey Hill and convert the 48-foot cross on it into a Coast Guard anchor. (See prior posting.) Without getting to the merits of plaintiffs' free speech and religious discrimination claims, the court found that none of the plaintiffs, as named, were proper.  It held that plaintiff "Citizens of Grand Haven" did not qualify as an unincorporated voluntary association since it had no organizational form or decision-making process.  It was merely the group of people who had signed a petition.  The court went on to hold that the individual "John Doe" plaintiffs were not entitled to proceed anonymously.  The court applied a 5-factor test that had previously been developed by the courts for determining when proceeding under a pseudonym is appropriate. MLive reports on the decision.

UPDATE: On June 12, the lawsuit was refiled with named plaintiffs. (MLive 6/15).

FFRF Objects To Town Sign Reading "Jesus Welcomes You"

KETK News reports today that Freedom From Religion Foundation has written the Hawkins, Texas City Council objecting to a large sign apparently put up by the city on city land reading "Jesus Welcomes You To Hawkins." FFRF says the sign violates the Establishment Clause, and that even if the city leases out  the land on which the sign sits, this will not cure the violation. Hawkins, located in east Texas, has a population of 1,278.

Muslim Leaders In India Object To Required Yoga Sun Salutation In Schools

The Wall Street Journal reports today that Muslim leaders in India are complaining that schools in the states of Rajasthan and Madhya Pradesh are requiring students to learn yoga, including "surya namaskar"-- the sun salutation. Students are also required to chant "Om" or other Sanskrit verses that the All India Muslim Personal Law Board says are connected to the Hindu religion. Islamic law prohibits Muslims from bending before anyone other than Allah or God. The controversy comes as India prepares to celebrate the world's first International Day of Yoga next week. The All India Imam Organization says that yoga connected to  health rather than religion is fine so long as the sun salutation is not required.

Supreme Court GVR's Title VII Nursing Home Case After Abercrombie

Yesterday the U.S. Supreme Court remanded for reconsideration an employment discrimination case whose result may be impacted by the court's recent decision in EEOC v. Abercrombie & Fitch Stores.  In Norbach v. Woodland Village Nursing Center, Inc., (Sup. Ct. June 8, 2015), (order list). the Supreme Court granted certiorari, summarily vacated the 5th Circuit's judgment and remanded.  In the case, the 5th Circuit had dismissed a Title VII religious discrimination suit brought by a nursing home activities aide who was fired by the nursing home after she refused to pray the Rosary with a patient.  The court held that no evidence had been presented to the jury showing that the employer knew or reasonably should have known that her refusal was based on the aide's Jehovah's Witness religious beliefs. (See prior posting.)

Supreme Court Says Congress Overstepped Its Power In Enacting Jerusalem Passport Designation Law

Today the U.S. Supreme Court in Zivtofsky v. Kerry, (Sup. Ct., June 8, 2015), held 6-3 that Congress infringed on the President's power to recognize foreign countries when it enacted a law giving U.S. citizens born in Jerusalem the right to have "Israel" rather than Jerusalem listed in their passports as their place of birth. The majority, in an opinion by Justice Kennedy, held that the statute infringes the President's exclusive power to recognize foreign governments, saying in part:

Although the statement required by §214(d) would not itself constitute a formal act of recognition, it is a mandate that the Executive contradict his prior recognition determination in an official document issued by the Secretary of State.... As a result, it is unconstitutional. This is all the more clear in light of the longstanding treatment of a passport’s place-of-birth section as an official executive statement implicating recognition.

Justice Breyer filed a concurring opinion in which he said that he also believed that this posed a political question inappropriate for judicial resolution. Justice Thomas concurred in part and dissented in part, arguing that the statute "can be constitutionally applied to consular reports of birth abroad, but not passports."

Chief Justice Roberts, joined by Justice Alito, dissented arguing that the statute does not implicate the President's power to recognize foreign governments.  Chief Justice Roberts and Justice Alito also joined a dissent filed by Justice Scalia which argues that: "Under the Constitution ... Congress may require Zivotofsky’s passport and birth report to record his birthplace as Israel, even if that requirement clashes with the President’s preference for neutrality about the status of Jerusalem."

JTA points out that the three Jewish justices joined Kennedy's majority opinion. Times of Israel carries the reaction of various Israeli officials to the decision.

Obama Appoints Rabbi To Vacancy On Commission For Preservation of America's Heritage Abroad

Last Friday, President Obama announced his intention to appoint Rabbi Abba Cohen to the 21-member U.S. Commission for the Preservation of America’s Heritage Abroad.  One of the more obscure federal agencies, the Commission, which began operations in 1990, is tasked by the legislation creating it to identify and encourage the preservation of "those cemeteries, monuments,  and historic buildings located abroad which are associated with the  foreign heritage of United States citizens from eastern and central Europe, particularly those cemeteries, monuments, and buildings  which are in danger of deterioration or destruction..."  Rabbi Cohen is the Washington Director and Counsel for Agudath Israel of America,

British Employment Tribunal Vindicates Christian Woman Fired For Comments About Homosexuality

In Mbuyi v. Newpark Childcare (Shepherds Bush) Ltd., (Empl. Trib., June 4, 2015), a British Employment Tribunal in Watford held that Sarah Mbuyi, a 31-year old nursery assistant who was a Belgian national and and evangelical Christian, was the victim of religious discrimination when she was fired because of a conversation she had with a lesbian co-worker who was in a civil partnership. In the course of the conversation, Mbuyi told her co-worker that she believes homosexuality is a sin.  The conversation upset the co-worker sufficiently that she asked to be transferred to a different room where she would not be working with Mbuyi. The Tribunal concluded that under the circumstances the firing of Mbuyi was a disproportionate response.  The Tribunal said in part:

The respondent was not anti-Christian.... The issues in this case arose out of the claimant's belief that homosexuality is a sin.... It is a belief worthy of respect in a democratic society, is not incompatible with human dignity and is not in conflict with the fundamental rights of others.  Whilst some may dispute those propositions, we are considering here the belief itself.  When, whether and how such belief maybe manifested, however, is one of the issues in this case, given the inherent interplay with the right not to be discriminated against because of sexual orientation.

The decision has been widely reported in the British media. (The Guardian, Mirror, Christian Concern, Christianity Today, National Secular Society).

Recent Articles of Interest

From SSRN:

• Danielle Weatherby, The Arkansas 'Mini-RFRA' is Bad Policy, (May 21, 2015).
• Tipu Salman Makhdoom, Politics of Religion: Ahmadis of Pakistan, (May 23, 2015).
• Jennifer Taub, Is Hobby Lobby a Tool for Limiting Corporate Constitutional Rights?, (Constitutional Commentary, Forthcoming).
• Masua Sagiv, Cultural Bias in Judicial Decision Making, (35(2) Boston College Journal of Law & Social Justice 229 (2015)).
• Eric Alan Isaacson, Free Exercise for Whom? -- Could the Religious-Liberty Principle that Catholics Established in Perez v. Sharp Also Protect Same-Sex Couples' Right to Marry?, (University of Detroit Mercy Law Review, Vol. 92, No. 1, 2015).
• Surabhi Chopra & Prita Jha, Front Matter for: On Their Watch: Mass Violence and State Apathy in India, (S. Chopra & P. Jha, eds, Three Essays Collective, 2014).
• Sherry F. Colb, Decoding 'Never Again', (Rutgers Journal of Law and Religion, Vol. 16, Spring 2015).
• Susannah William Pollvogt, Cleburne Not Romer: Objective versus Subjective Theories of Animus, (June 5, 2015).
• Joseph William Singer, We Don't Serve Your Kind Here: Public Accommodations and the Mark of Sodom, (Boston University Law Review, Vol. 95, p. 929, 2015).

From SSRN (Religious Law):

• Daniel Pascoe, Is Diya a Form of Clemency?, (Boston University International Law Journal, 2016).
• Levi Cooper, Jewish Law, Hasidic Lore, and Hollywood Legend: The Cantor, the Mystic, and the Jurist, (Critical Analysis of Law 2, no. 2 (Fall 2015)).
• Hershey H. Friedman, ‘Let Justice Pierce the Mountain’: Morality, Ethics, and Law in the Talmud, (June 2, 2015).

From SmartCILP and elsewhere:

• Richard Chused, Dream Vignettes, 59 New York Law School Law Review 111-142 (2014/15).
• David A. Grenardo, Improving the Law School Classroom and Experience Through Prayer: An Empirical Study, 13 Ave Maria Law Review 71-120 (2015).
• Lee B. Burgunder, Can the PTO Find Its Way with Jesus?, 19 Marquette Intellectual Property Law Review 63-97 (2015).
• Rosalie Berger Levinson, Gender Equality vs. Religious Autonomy: Suing Religious Employers for Sexual Harassment After Hosanna-Tabor, 11 Stanford Journal of Civil Rights and Civil Liberties 89-119 (2015).
• Symposium. Religious Accommodation in the Age of Civil Rights. Introduction by Nomi Maya Stolzenberg and Douglas NeJaime; articles by Mark Tushnet, Ira C. Lupu, Thomas C. Berg, Frederick Mark Gedicks, Louise Melling and Elizabeth Sepper. 38 Harvard Journal of Law & Gender 1-233 (2015).
• Marta Kolankiewicz, Anti-Muslim Violence and the Possibility of Justice, (2015), (Dissertation from academia.edu)

Alabama Bill To Eliminate Marriage Licenses Dies In House Judiciary Committee

The Daily Caller reported yesterday that in Alabama SB 377 previously passed by the Alabama state Senate to eliminate marriage licenses died in the House Judiciary Committee last week. As previously reported, the bill which would have replaced issuance of licenses with marriage contracts entered into and recorded by the couple was seen in part as a way of dealing with religious objections by some probate court employees to issuing licenses to same-sex couples. One Republican member of the House Judiciary Committee who voted against the bill explained: "It didn’t make sense to me to make such a sweeping change about how we do marriage, just because of concern about some probate judges in a bit of a spot."

Recent Prisoner Free Exercise Cases

In Howard v. Joyce Meyer Ministries, 2015 U.S. Dist. LEXIS 70768 (ED WI, June 1, 2015), a Wisconsin federal district court allowed a Therevedan Buddhist inmate to move ahead with complaints that a picture of Jesus was displayed on the library wall; gift bags containing hygiene products included Bible passages; the TV channel carrying inmate announcements had Christian radio audio; and a religious necklace he ordered was classified as contraband.

In Williams v. Leonard, 2015 U.S. Dist. LEXIS 72070 (ND NY, June 4, 2015), a New York federal district court permitted an inmate to move ahead with RLUIPA claims for injunctive relief regarding length of pants and family participation in Eid el-Adha, but dismissed his equal protection and damages claims.

In Anderson v. Olson, 2015 U.S. Dist. LEXIS 72595 (WD WI, June 4, 2015), a Wisconsin federal district court dismissed a Nation of Islam inmate's claim that his free exercise rights were infringed when officials threw out his copy of the Qur'an along with other books of his that were over the limit for the number of allowable books, rather than mailing them out to his family. However he was allowed to proceed on his due process claim.

In Furnace v. Gipson, 2015 U.S. Dist. LEXIS 72570 (ED CA, June 3, 2015), a California federal magistrate judge recommended permitting an inmate who practiced Shetaut Neter to proceed with his claim that his free exercise rights were infringed when he was unable to change his name or obtain items needed to practice his religion, particularly an ankh, a prayer mat, cleansing oil, and various dried fruits.

In Prim v. Jackson, 2015 U.S. Dist. LEXIS 72721 (SD OH, June 4, 2015), an Ohio federal district court adopted a magistrate's recommendation (see prior posting) and permitted a Natsarim (Messianic Jewish) inmate to move to an evidentiary hearing on his request for a preliminary injunction regarding Sabbath services, recognition of plaintiff's religious calendar, sack meals on Friday night for the Sabbath and retaliation for filing grievances.

In Kalican v. Dzurenda, 2015 U.S. Dist. LEXIS 72917 (D CT, June 5, 2015), a Connecticut federal district court denied an inmate's motion for rehearing on his complaint that on one occasion he was barred from carrying his kufi to the dining hall in his pocket.

In Amaker v. Goord, 2015 U.S. Dist. LEXIS 73133 (WD NY, June 5, 2015), a New York federal magistrate judge held that absent accompanying physical injury, under federal statutory law an inmate cannot recover compensatory damages for denial of access to religious services while in special housing unit.  However the court awarded $1 nominal damages. It also granted plaintiff's request for a specific witness on a separate claim for punitive damages.

In Freeman v. Arpaio, 2015 U.S. Dist. LEXIS 71870 (D AZ, June 2, 2015), an Arizona federal district court dismissed with leave to amend using the proper court-approved form an atheist inmate's complaint that the Establishment Clause is violated by patriotic and religious songs that are played every morning and evening on the jail's televisions.

Court's Determination of Church's Voting Membership Upheld

In Fairfield Pentecostal Church v. Johnson, (LA App., June 3, 2015), a Louisiana state appeals court upheld a trial court's decision determining a church's voting membership for purposes of a special vote on whether to dismiss the pastor, saying in part:

The trial court determined at the hearing that none of the members on the original roll had been disfellowshipped; and it allowed another list of members gathered in November 2013 by Reverend Franks, who had kept no roll since his installment in 2010, to be counted toward the membership roll. In order to prevent the solicitation of new members for purposes of litigation, the trial court limited the membership to these two lists. We can think of no more equitable solution. 

Minneapolis Archdiocese Charged Criminally For Inadequate Responses To Priest Abuse

In a 44-page criminal complaint (full text) filed today, the state of Minnesota charged the Catholic Diocese of St. Paul and Minneapolis with contributing to the need for protection or services and contributing to the delinquency or status as a juvenile offender in connection with three separate victims of clergy sexual abuse. A civil complaint was also filed by the state.  As summarized by the Minneapolis Star Tribune:

The charges stem from the archdiocese’s oversight of former priest Curtis Wehmeyer, who is now serving a prison term for abusing two boys while he was pastor of Blessed Sacrament Church in St. Paul.

At a press conference, Ramsey County Attorney John Choi said:

Today we are alleging a disturbing institutional and systemic pattern of behavior committed by the highest levels of leadership of the archdiocese of St. Paul and Minneapolis over the course of decades.

By filing criminal charges and taking civil action, we are holding the archdiocese accountable for its failure to responsibly and meaningfully respond to numerous and repeated reports of troubling conduct by Curtis Wehmeyer.

The New York Times also reported on the filing of the six misdemeanor charges, each of which carries a maximum fine of $3000. By filing charges only against the Archdiocese, and not against individuals, the possibility of imposing the 1 year prison sentence that is also available on each charge disappears.

UPDATE: Here is an audio recording of the news conference in which the County Attorney announced the criminal charges. According to MPR News, he said that the investigation continues, but as of now prosecutors do not have sufficient evidence to charge any individual church officials criminally. [Thanks to Tom Rutledge for the update lead.]

Guam's Same-Sex Marriage Ban Struck Down

Pacific Daily News reports that in a ruling from the bench, Guam's chief federal judge this morning struck down the island's ban on same-sex marriage.  A written opinion is expected on Monday. Guam, a U.S. territory, is part of the 9th Circuit which has already held same-sex marriage bans unconstitutional. (See prior posting.) Guam is the last jurisdiction in the 9th Circuit to have its ban invalidated.

UPDATE: The full opinion in Aguero v. Calvo, (D Guam, June 8, 2015) is now available.

Nevada Enacts Expansive School Choice Legislation

As reported by the Las Vegas Review Journal, on Tuesday, Nevada Governor Brian Sandoval signed SB 302 (full text) creating an extensive school choice program. The legislature gave final passage to the bill last week.  Under the bill, the parents of a child who has attended public school for 100 consecutive days may move the child to a private school (including a religious school), a tutoring facility or to home schooling and have the state pay into an educational savings account for the student an amount equal to 90% (or 100% for low-income and disabled) of the statewide average basic support per pupil. Currently 100% of the statewide average is about $5700.  The funds may be used for tuition, fees, textbooks, tutoring, testing and transportation.  A student may also be moved part-time to another educational facility and spend part-time in public school, receiving a partial grant. The Reno Gazette Journal has more details of the legislation. Payments under the new law will start Jan. 1, 2016.

Opponents of the legislation argued in part that the bill is unconstitutional because it allows taxpayer money to be spent on religiously-oriented private schools. The Nevada Constitution, Art. 11, Sec. 10, provides: "No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose."

9th Circuit: State AG Can Require Disclosure of IRS Form 990 List of Donors

In a decision handed down early last month, the U.S. 9th Circuit Court of Appeals upheld California's requirement that in order to solicit tax deductible contributions in the state, a charity or other non-profit must file an annual report that includes an unredacted IRS Form 990 Schedule B, the names and contributions of significant donors.  In Center for Competitive Politics v. Harris, (9th Cir., May 1, 2015), the court held that the organization challenging the requriement had not shown that its donors would experience threats or harassment because of the disclosure requirement.  It also rejected the argument that Congress had intended to protect the privacy of Schedule B information. BNA Daily Report for Executives (subscription required) reported on the decision this week.

7th Circuit Keeps RLUIPA Suit Against Chicago Alive

In World Outreach Conference v. City of Chicago, (7th Cir., June 1, 2015), the U.S. 7th Circuit Court of Appeals breathed new life into a RLUIPA case that has been in litigation for 9 years. The court reversed the district court's grant of summary judgment to the city of Chicago as to claims against the city for damages because of delays in granting licenses to World Outreach so it could operate a former YMCA building for its religious purposes. World Outreach argued it lost some $591,000 that it could have made by housing Hurricane Katrina evacuees in the building. The court's opinion by Judge Posner included comments about the power of aldermen in Chicago politics.  Judge Cudahy concurred with one of the shortest and most cryptic opinions ever:

Unfortunately; and I think the opinion must be stamped with a large “MAYBE.”

(See prior related posting.) RLUIPA Defense blog reports on the decision.

Connecticut Legislature Makes Religious Exemption From Vaccination Requirements Marginally More Difficult

On Tuesday, the Connecticut General Assembly gave final passage to HB 6949 (full text) and sent it to the governor for his signature.  The bill places additional procedural requirements on parents seeking to exempt their children on religious grounds from vaccination requirements.  As reported by WNPR:

Currently, [parents or guardians] must simply present a statement that the immunization would be contrary to the child's religious beliefs. But under the bill which cleared the Senate Tuesday, such statements must be submitted annually and officially "acknowledged" by a notary public, attorney, judge, family support magistrate, court clerk, deputy clerk or justice of the peace.

However another bill pending in the legislature would, if enacted, require the notarized statements be submitted only when the child enters kindergarten and when he or she enters 7th grade.

European Court Holds Hearing On Alevis' Complaint Against Turkey

The Grand Chamber of the European Court of Human Rights yesterday held a hearing in Doğan and Others v. Turkey. (Webcast of full hearing with English simultaneous translation.) The case, brought by members of Turkey's Alevi community, involves claims of unequal treatment. Daily Sabah, reporting on the hearing, provides more background:

Applicants to the court requested the state provide the same status to cemevis as mosques and offer free public services. Several Alevi citizens had filed a lawsuit against the Prime Ministry in 2005 after their request for cemevis to be granted a new status was rejected. They then took their case to the European Court of Human Rights in 2010. They claim Turkish authorities violated the European Convention on Human Rights concerning freedom of religion and thought and its ban on discrimination. An Alevi foundation had asked the government to implement regulations that would enable the bills of cemevis to be paid through a fund administered by the Presidency of Religious Affairs (DİB) that oversees the operation of mosques. Turkish courts had dismissed the foundation's application, basing their decision on the directorate's opinion that cemevis are not places of worship, but rather places of assembly in which spiritual ceremonies are held.

U.S.-Based Sikh Group Sues Facebook Over Takedown of Its Page In India

The U.S. based advocacy group Sikhs for Justice (SFJ) this week filed a federal lawsuit against Facebook, Inc. complaining that Facebook has blocked access throughout the country of India to SFJ's Facebook page.  The complaint (full text) in Sikhs For Justice"SFJ", Inc. v. Facebook, Inc., (ND CA, filed 6/2/2015), contends that Facebook is subject to the public accommodation provisions of the federal 1964 Civil Rights Act and California's Unruh Civil Rights Act.  It alleges that Facebook collaborated with the government of India in retaliating against SFJ for its online campaign against  forced conversion of Christians, Muslims and Sikhs to Hinduism; support for a referendum in Punjab for an independent Sikh country; and amendment of the Indian constitution's provision that labels Sikhs as Hindus. The complaint alleges further:

Defendant willfully, intentionally, purposefully, knowingly, recklessly, and/or negligently deprived Plaintiff and its members in the entire India of the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of Defendant’s internet-based social networking service as a place of public accommodation, as defined in 42 USC Section 2000a.

... Defendant did so deprive Plaintiff and its members with discrimination and segregation on the ground of race, religion, ancestry, and national origin.

Times of India reports on the lawsuit.

California School District Settles Allowing Native American Graduate To Wear Eagle Feather

California's Clovis Unified School District reached a settlement yesterday with Christian Titman, a Native American high school senior who had filed suit two days earlier to force the school district to allow him to wear  an eagle feather during graduation ceremonies today.  (ACLU press release.) Titman argued that the refusal to allow him to honor his Native American heritage and family in this way violated his free speech and religious exercise rights.  (Full text of complaint in Titman v. Clovis Unified School District, CA Super. Ct., filed 6/1/2015.)  The settlement agreement (full text) provides in part:

Christian Titman will be permitted to ... wear the agreed upon prepared eagle feather ... in his hair during the graduation ceremony; and ... upon receipt of his diploma ... is permitted to adorn his graduation cap with the agreed upon eagle feather, and to participate in the tassel turn with the eagle feather connected to his tassel....

Under the agreement, the school will issue a statement indicating that while it remains committed to its tradition of decorum at graduation, it is also committed to working with students and families on accommodations for sincerely held religious beliefs.

More Legal Maneuvering Against Same-Sex Marriage In Alabama As U.S. Supreme Court's Decision Nears

With the U.S. Supreme Court less than a month away from finally settling the issue, legal sparring over same-sex marriage continues in Alabama. Two groups that had secured from the Alabama Supreme Court a writ of mandamus ordering Probate Court judges around the state to discontinue the issuance of marriage licenses to same-sex couples (see prior posting) filed a "Motion for Clarification and Reaffirmation of the Court's Orders Upholding and Enforcing Alabama's Marriage Laws".  The motion and supporting memorandum of law (full text) in Ex parte State of Alabama ex rel. Alabama Policy Institute, (AL Sup. Ct., filed 6/2/2015), asked the state Supreme Court to reaffirm its order in light of intervening U.S. federal district court decisions (see prior posting) granting a preliminary injunction (which the district court then stayed pending the U.S. Supreme Court's upcoming decision) barring all Alabama probate judges from refusing to issue marriage licenses to same-sex couples. Liberty Counsel issued a press release announcing the filing of the motion which said in part: "The Alabama Supreme Court’s prior mandamus Order, and perhaps its disposition of this motion, should send a message that any ruling by Judge Granade or even the United States Supreme Court inventing a right to same-sex 'marriage'a under the U.S. Constitution is illegitimate."

Court Allows Student Distribution of Gospel Tracts

In Leal v. Everett Public Schools, (WD WA, May 29, 2015), a Washington federal district court entered an order (full text) expunging the suspensions of high school senior Michael Leal who has been disciplined for insisting on handing out gospel tracts to fellow students.  The court also held that the portion of Everett Public Schools' policies that allow a student to hand out literature only if it is written or produced by the student violates Leal's free speech rights.  However, the court permitted the school to limit the locations and times at which Leal can hand out literature, and limit his preaching to a free speech area.  The court spelled out the reasons for its order in a ruling from the bench. King5 News reports on the decision as does a press release from Pacific Justice Institute.

Oregon Tax Court Says Rectory Not Tax-Exempt

In St. Mary Star of the Sea Catholic Church, Astoria v. Clatsop County Assessor, (OR Tax Ct., May 6, 2015), an Oregon Tax Court magistrate held that a residential structure located 1.5 miles from the church used as a church rectory did not qualify for a property tax exemption "because the evidence shows the rectory is not reasonably necessary to carry out the religious aims of the church..."  The court said in part:

Although [the parish priest] does write sermons and homilies at the rectory, those duties do not require close physical proximity to the church.... The other uses of the rectory have no direct connection to the church; they certainly do not require a rectory in close proximity to the church. There was generalized testimony about the availability of guest bedrooms for visiting priests, deacons, and seminarians, but no specific testimony or other evidence that such officials have stayed at the subject property and, if so, how many and how often they were there....

Forbes reports on the decision.

Cert Petition Filed In Family Dispute Over Repatriation of Athlete Jim Thorpe's Remains To Tribal Cemetery

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Sac and Fox Nation of Oklahoma v. Borough of Jim Thorpe.  In the case, the U.S. 3rd Circuit Court of Appeals in a 2014 decision (full text) held that despite its literal language, Congress did not intend the Native American Graves Protection and Repatriation Act (NAGPRA) to apply to a dispute between the sons of famous Native American Athlete Jim Thorpe who died in 1953 and the Pennsylvania town that renamed itself after Thorpe in an agreement with Thorpe's widow (his third wife) to have his remains buried there. Some of Thorpe's children from prior marriages have insisted that his remains be moved to Sac and Fox tribal land in Oklahoma. Wall Street Journal's Law Blog reports on the cert. petition.

Church Sues To Enforce Bequest

The Tampa Bay Times reported yesterday on a lawsuit filed by Christ the King Catholic Church, one of the Tampa, Florida area's most prominent churches, against Teresa "Terri" Gaffney, a lawyer who is prominent in the Hillsborough County Republican Party.  The church says that Gaffney's father John J. Gaffney who died in 2011 had directed in his will that his house be sold, the proceeds used to pay any remaining expenses for his care, and the remainder be distributed to the Church.  But instead, Theresa Gaffney transferred the house to her daughter.  Gaffney says the house was never willed to the Church, and that the Church is suing her because her children have been raised in the Jewish faith of her husband. The house is valued at $344,000.

Michigan Supreme Court Dismisses Chabad Property Dispute On Statute of Limitations Grounds

In Chabad-Lubavitch of Michigan v. Schuchman, (MI Sup. Ct., May 20, 2015), the Michigan Supreme Court in a brief opinion reversed the state court of appeals in a dispute between Chabad-Lubavitch of Michigan and a local Chabad organization over ownership of a Chabad center in West Bloomfield. The parent organization claimed that the property should have been titled in its name. In the case, the appeals court had rejected defendants' statute of limitations defense, holding that the statute was equitably tolled during the time that the parties were engaged in Chabad's mandatory ecclesiastical dispute resolution process. (See prior posting.)  Reversing, the Michigan Supreme Court said "there are no grounds on which to equitably toll the statute of limitations."

27 Members of Congress Urge New AG To Help Strengthen Anti-Profiling Ban

Yesterday 27 members of Congress sent a letter (full text) to U.S. Attorney General Loretta Lynch urging stronger limits on religious and ethnic profiling than are set out in December 2014 guidelines issued by her predecessor Eric Holder. While the 2014 guidelines for the first time extended anti-profiling restrictions to national origin, gender, gender identity, religion, and sexual orientation (see prior posting), yesterday's letter pointed out a number of weaknesses in those guidelines: they are only advisory and do not offer victims any remedy; they still permit surveillance in order to map and infiltrate Muslim communities based on religious identity; and they do not cover profiling at airports, borders or by state and local officials.  The letter urged Lynch to work with Congress to adopt a comprehensive federal anti-profiling program. [Thanks to Glenn Katon for the lead.]

USCIRF Condemns Sudan's Prosecution of 2 Pastors

The U.S. Commission on International Religious Freedom issued a press release yesterday condemning the government of Sudan for its continuing prosecution of two Christian clergymen on "baseless charges of undermining Sudan’s constitution and waging war against the state"-- crimes which carry a possible death penalty or life in prison.  USCIRF says:

Revs. [Yat] Michael and [Peter] Reith, both of South Sudanese origin, belong to the Presbyterian Evangelical Church Khartoum Bahri congregation.  The congregation has brought a legal case against Sudanese authorities to stop the illegal sale of church land by Sudanese authorities to a Muslim businessman.  The National Intelligence Security Services (NISS) detained Rev. Michael in December 2014, after recording him urging parishioners at a church service to continue standing firm through the trials they were experiencing.  The same month, authorities partially destroyed the church and arrested 37 congregants.  Rev. Reith was detained in January 2015.  Both pastors were held at an undisclosed location and were not granted access to lawyers and family until March 1.

The defendants are also charged with insulting  religious beliefs, breach of the public peace, arousing feelings of discontent among the regular forces and disclosure of official information.

Church Sues Over Zoning Restrictions That Are Forcing It To Move

The San Diego Reader reports on a lawsuit filed May 28 by the San Diego Christian Worship Center against the city challenging zoning restrictions that will force the church to relocate in September.  The city granted the church a 5-year conditional use permit in 2010, and the church made $700,000 of improvements to its site. In 2014 the city changed the zoning in the area to "prime industrial," which does not allow churches, and the city says it will not renew the conditional use permit. The church lacks the resources to find a new building. Apparently the complaint contends that the new zoning designation, which excludes instructional studios and entertainment venues as well as churches, amounts to a prior restraint on First Amendment expression.  The church also claims-- presumably invoking RLUIPA-- that the cost of preparing an application every 5 years to renew its conditional use permit imposes a substantial burden on its exercise of religion.  It will cost $50,000 to $100,000 to prepare the application, which must include an environmental impact statement.

Supreme Court Rules Against Abercrombie In Title VII Religious Accommodation Case

In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., (Sup. Ct., June 1, 2015), the U.S. Supreme Court today reversed the 10th Circuit's holding on when employers must offer a reasonable accommodation for an employee's religious practices.  The 10th Circuit had held that Abercrombie & Fitch did not violate Title VII of the 1964 Civil Rights Act when it failed to reasonably accommodate Samantha Elauf's need to wear a headscarf because Elauf had not informed the company that she wore the hijab for religious reasons and would need an accommodation. (See prior posting.)  In an opinion by Justice Scalia, 7 justices held:

Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions....

A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability.

Justice Alito concurred only in the judgment, urging a different test for liability.  He concluded that Abercrombie is liable only if it had knowledge that Elauf wore her headscarf for religious reasons, but that there was sufficient evidence that Abercrombie had such knowledge that the court should not have granted summary judgment to defendants.

Justice Thomas dissented, arguing that Abercrombie's actions did not amount to disparate treatment (or intentional discrimination):

Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf.... In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices. To be sure, the effects of Abercrombie’s neutral Look Policy, absent an accommodation, fall more harshly on those who wear headscarves as an aspect of their faith. But that is a classic case of an alleged disparate impact.

Politico reports on the decision.

District Court Applies Hobby Lobby To Auto Dealership

In Holland v. U.S. Department of Health and Human Services, (D WV, May 29, 2015), a West Virginia federal district court, applying the Supreme Court's Hobby Lobby ruling, issued a permanent injunction barring federal authorities from enforcing the Affordable Care Act contraceptive coverage requirement, as in effect June 30, 2014, against a West Virginia auto dealership. The complaint (full text) in the case was brought by Joe Holland Chevrolet, Inc., a closely-held corporation, and its 91% owner who became a born-again Christian in 1996. Joe Holland objects to providing coverage for Plan B and ella, contraceptives that he considers abortifacients. Charleston Daily Mail reports on the decision. Liberty Institute issued a press release on the decision.

Turkey's Constitutional Court Invalidates Ban On Religious Marriage Without Civil Certificate

Anadolu Agency and Hurriyet Daily News report on the May 27 decision by Turkey's Constitutional Court striking down Sec. 230 paragraphs 5 and 6 of the Turkish Criminal Code that prohibit arranging or conducting a religious marriage ceremony without obtaining a civil marriage as well. Four of the 16 judges dissented.  Stressing the constitutional protection for freedom of religion and conscience, the court majority said that since it is legal for couples to live together without being married at all, equal treatment requires allowing couples to live together with only a religious ceremony.  Reacting, officials expressed concern that the decision will encourage the illegal marrying off of children and the erosion of the position of women. The case arose when a lower court in Erzurum province referred a case to the Constitutional Court instead of convicting an imam and the couple he married.

Kansas Catholic School Sued Over Child Neglect Report

Saturday's Kansas City Star reported on a lawsuit filed in Johnson County, Kansas state court last month against the Catholic Archdiocese of Kansas City, Sacred Heart Catholic Church and its school principal.  Plaintiff Melissa Schroeder claims that she told the school her 10-year old daughter was suffering significant health problems from ongoing bullying. Instead of resolving the problem, the suit alleges that school officials filed a false report with the state child welfare agency claiming abuse and neglect, reporting that the child's mother falsified the child's medical documents and had requested an exorcism for her daughter.

Recent Articles of Interest

From SSRN:

• Gabor Halmai, Religion and Constitutionalism, (MTA Working Paper No. 2015/05 (May 2015)).
• Elizabeth Pollman, Corporate Law and Theory in Hobby Lobby, (Forthcoming in The Rise of Corporate Religous Liberty (Zoë Robinson, Chad Flanders & Micah Schwartzman, eds., Oxford University Press 2015)).
• Michael John DeBoer, Legislating Morality Progressively -- The Contraceptive Coverage Mandate, Religious Freedom, and Public Health Policy and Ethics, (Journal of Law and Health, Vol. 28, p. 62, 2015).
• Doug Coulson, British Imperialism, the Indian Independence Movement, and the Racial Eligibility Provisions of the Naturalization Act: United States v. Thind Revisited, (Georgetown Journal of Law & Modern Critical Race Perspectives 7 (2015): 1-42).
• Timothy Zick, First Amendment Cosmopolitanism, Skepticism, and Democracy, (Ohio State Law Journal, Vol. 76, No. 3, 2015).
• Margaret M. Blair & Elizabeth Pollman, The Derivative Nature of Corporate Constitutional Rights, (56 William & Mary Law Review 1563 (2015).
• Noel Cox, Justice, Fairness and the Common Law: The Tort of Misfeasance in Public Office, (May 26, 2015).
• Michael J. Perry, On the Constitutionality and Political Morality of Granting Conscience-Protecting Exemptions Only to Religious Believers, (Emory Public Law Research Paper No. 15-356 (May 2015)).
• John D. Inazu, Introduction: Confident Pluralism: Surviving and Thriving Through Deep Difference, (in J. Inazu, Confident Pluralism: Surviving and Thriving Through Deep Difference, University of Chicago Press, 2016, Forthcoming).
• Ellen D. Katz, Dignity and Discriminatory Intent: What the Marriage Equality Cases Tell Us About Voter ID, (University of Chicago Legal Forum, Forthcoming).

Muslim Interfaith Advocate Charges United Airlines With Discrimination

CNN reports that Tahera Ahmad, the 31-year old Muslim chaplain and director of interfaith engagement at Northwestern University is charging that United Airlines discriminated against her on a flight Friday from Chicago to Washington. Wearing a hijab (headscarf), she was on her way to attend a conference promoting dialogue between Israeli and Palestinian youth. Ahmed asked the flight attendant for an unopened can of Diet Coke, but was told: "We are unauthorized to give unopened cans to people because they may use it as a weapon on the plane." However the flight attendant gave the passenger next to Ahmad an unopened can of beer. As reported by CNN:

When Ahmad told the flight attendant she was being discriminated against, the attendant abruptly opened the beer can.  "It's so you don't use it as a weapon," Ahmad said she was told. Shocked, Ahmad asked other passengers if they had seen what happened. A man sitting across the aisle turned to her and yelled, "You Muslim, you need to shut the f--- up," she said. "What?" The man leaned over, looked her in the eyes and said: "Yes, you know you would use it as a weapon. So shut the f--- up"....

The flight attendant as well as the pilot later apologized.  Ahmed has Premier frequent flier status with United.  United said: "We are ... discussing the matter ... with Shuttle America, our regional partner that operated the flight. We look forward to speaking with Ms. Ahmad and hope to have the opportunity to welcome her back."