Religion Clause

Friday, June 26, 2015

2nd Grade Teacher Sued For Intimidating Student Who Said He Did Not Believe In God

Yesterday's Fort Wayne (IN) Journal Gazette reported on a federal lawsuit filed last week by the Indiana ACLU on behalf of a 2nd grade student and his mother against the boy's teacher at Fort Wayne's Forest Park Elementary School. According to the complaint, after the boy, identified only as A.B., had a playground discussion with a classmate whom he told he did not go to church or believe in God, the classmate complained to the teacher, Michelle Meyer. The teacher told A.B. she was very concerned about what he had done, and for three days required him to sit by himself at lunch and not talk to other students because he had offended them. A.B. is now anxious and fearful about school, believing many teachers and students hate him, even though teachers subsequently told him he could believe what he wants.

The lawsuit only names the teacher personally as defendant, and not the school district. According to WTHR News, the district released a statement saying that "It is clear that it is not the province of a public school to advance or inhibit religious beliefs or practices...."

Thursday, June 25, 2015

Supreme Court Holds Fair Housing Act Supports Disparate-Impact Claims

Today in a 5-4 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., (Sup. Ct., June 25, 2015), the U.S. Supreme Court held that disparate-impact claims, not just intentional discrimination claims, are cognizable under the federal Fair Housing Act. In an opinion by Justice Kennedy, joined by Justices Ginsberg, Breyer, Sotomayor and Kagan, the court held that while the statute which bars discrimination in the sale or rental of housing because of race, color, religion, sex, handicap, familial status, or national origin supports challenges to policies that cause racial or other disparities, there are significant limitations on such claims, saying:

If the specter of disparate-impact litigation causes private developers to no longer construct or renovate housing units for low-income individuals, then the FHA would have undermined its own purpose as well as the free-market system.

Justice Kennedy went on for 5 pages discussing the required safeguards against inappropriate disparate-impact claims, saying in part:

An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest served by their policies. This step of the analysis is analogous to the business necessity standard under Title VII and provides a defense against disparate-impact liability....

It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapidated housing in our Nation’s cities merely because some other priority might seem preferable. Entrepreneurs must be given latitude to consider market factors. Zoning officials, moreover, must often make decisions based on a mix of factors.... The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in suburban communities.

Justice Alito wrote a dissenting opinon joined by Chief Justice Roberts and Justices Scalia and Thomas. Justice Thomas also filed a separate dissent.

Case Challenging Library Conference Room Policy Settled

On Tuesday, a North Carolina federal district court entered a Stipulated Final Judgment (full text) in Liberty Counsel, Inc. v. County of Wake, North Carolina (ED NC, June 23, 2015) after the parties agreed to settle the case. In the case, plaintiff challenged the county library's conference room policy that permitted non-profit groups to use library conference rooms for cultural, civic and informal educational purposes, but not for religious instruction, religious services or religious ceremonies. (See prior posting.) According to Liberty Counsel's press release, in the settlement "the library agreed to remove all offending bans on religion." The court's order also awarded nominal damages of $100 to plaintiff, and retained jurisdiction to enforce other parts of the settlement agreement if necessary.

Religious Discrimination Claim Moves Ahead Against Loan Company Denying Entry To Woman Wearing Hijab

In Ali v. Advance America Cash Advance Centers Inc., (ED MI, June 24, 2015), a Muslim woman brought a discrimination lawsuit against an Inkster, Michigan financial services outlet that refused her entry under its policy that customers must remove sunglasses and hats before entering. Plaintiff, who wanted to purchase a money order, was wearing a hijab. A Michigan federal district court held that plaintiff's complaint did not allege racial discrimination under 42 USC 1981, nor did it allege national origin discrimination under Michigan's Elliott-Larsen Civil Rights Act. However it did allege religious discrimination under the Michigan statute. The court refused to grant defendants summary judgment on this claim, holding that there remains a factual question regarding reasons for the policy. Defendants claimed that it is a safety policy designed to deter criminal behavior and advance employee safety. The policy only applies in the company's branches that lack bullet-resistant glass. Plaintiff claims that this reason is pretextual.

Islamic State Militants Destroy Two Historic Tombs In Palmyra, Syria

AP reported yesterday that in Syria, Islamic State militants have destroyed two historic mausoleums in or near their recently-captured historic city of Palmyra. One was the grave of Shiite saint Mohammad Bin Ali, a descendant of Imam Ali who was the cousin of the Prophet Muhammad. The second was the grave of Sufi scholar Nizar Abu Bahaa Eddine. IS radicals are Sunnis who view Shiites as heretics and who believe that visiting tombs and religious shrines amounts to idol worship. Syria's Ministry of Culture posted photos of the destruction. CNN has additional details.

Ohio Police Department Will Continue Hijab Ban

The Columbus, Ohio Police Division has decided to continue its ban on officers wearing headscarves, despite publicity earlier this year about a Somali-American Muslim recruit who dropped out of the department's police academy because of the ban on her wearing a hijab. According to yesterday's Columbus Dispatch, Deputy Police Chief Michael Woods explained the decision:

We want to interact with all members of the community without a preconceived notion of who we are. We strive to be a nonpolitical, nonreligious organization.

The assistant city attorney representing the Police Division says that case law supports the continued headscarf ban, pointing to the 2007 Pennsylvania federal district court decision in Webb v. City of Philadelphia. (See prior posting).

Wednesday, June 24, 2015

California AG Need Not Process Unconstitutional Anti-Gay Ballot Proposal

In Harris v. McLaughlin, (CA Super. Ct., June 22, 2015), a California trial court judge entered a default judgment allowing California's attorney general to ignore the statutory requirement to prepare a circulating title and summary for a proposed anti-gay ballot measure that had been filed. These steps are required before the proponent can attempt to obtain the required number of signatures. The measure, the so-called Sodomite Suppression Act, would have barred "sodomistic propaganda" and called for the killing of anyone who "willingly touches another person of the same gender for purposes of sexual gratification" (see prior posting). The court held that the proposal "is patently unconstitutional on its face" and that any action by the attorney general moving ahead with the proposal "would be inappropriate, waste public resources, generate unnecessary divisions among the public, and tend to mislead the electorate." Huntington Beach Independent reports on the decision.

Taxi Commission Rule Requiring Black Pants Violates Muslim Driver's Religious Freedom

In Naeem v. Metropolitan Taxicab Commission, (MO Cir. Ct., June 22, 2015), a Missouri trial court reversed a license suspension (which had previously been stayed by the court pending litigation) and fines that the St.Louis area taxicab commission had imposed on Muslim taxicab driver Raja Naeem who violated the commission's regulation requiring drivers to wear white shirts and black pants. Naeem believes that his religion requires him to wear certain clothing, including white pants. The court held that the commission rule violates Naeem's religious liberty. As reported by the St. Louis Post-Dispatch, the Taxicab Commission had granted Naeem a compromise. He could wear a loose-fitting kurta instead of a shirt, if it was white and did not go below his thighs. However his pants or shalwar had to be black. The court held:

In the case at bar, Mr. Naeem's right to express his religious beliefs by his mode of dress is directly infringed by the Commission's dress code. The Missouri Constitution clearly prohibits such infringement. Further commentary would be superfluous.

The court also held that the regulation, even though a generally applicable rule, violates Naeem's First Amendment rights:

No interest other than esthetics is served by the uniform code.... Even under the reasoning of Smith... the regulation must fail. Wearing particular clothing as part of the practice of one's religion also implicates the First Amendment guaranty of freedom of speech. When both speech and religion are affected by a regulation, there must be a compelling justification.

Obama Hosts White House Iftar Dinner

On Monday night, President Obama hosted the White House's annual Iftar dinner recognizing the importance of Ramadan to Muslims around the world. In his remarks (full text), the President gave special recognition to one guest, Samantha Elauf, the successful complainant in the U.S. Supreme Court's recent Abercrombie & Fitch decision on the right to wear a hijab at work. (See prior posting.) Speaking to the guests that included members of the diplomatic corps and Congress, government officials and invited young people, Obama also said in part:

So tonight, we keep in our prayers those who are suffering around the world, including those marking Ramadan in areas of conflict and deprivation and hunger. The people of Iraq and Syria as they push back on the barbarity of ISIL. The people of Yemen and Libya, who are seeking an end to ongoing violence and instability. Those fleeing war and hardship in boats across the Mediterranean. The people of Gaza, still recovering from last year’s conflict. The Rohingya in Myanmar, including migrants at sea, whose human rights must be upheld.

Cert. Petition Filed In Challenge To Differential NY Child Protection Safeguards For Private Schools

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in U.L. v. New York State Assembly. In the case, the U.S. Second Circuit Court of Appeals rejected 1st and 14th Amendment challenges to New York's statutory exclusion of private schools (including religious schools) from some of the state child protection requirements that are mandatory in public schools. (See prior posting.) [Thanks to Elliot Pasik for the lead.]

Tuesday, June 23, 2015

British Court Holds Jehovah's Witness Parent Body Vicariously Liable In Clergy Sex Abuse Case

A v. Trustees of the Watchtower Bible and Tract Society, (EWHC, June 19, 2015), involves claims against a Jehovah's Witness congregation (actually its successors) and the Jehovah's Witness parent body by a 29-year old woman who between the ages of 4 and 9 was sexually abused by Peter Stewart, a Jehovah's Witness ministerial servant. A judge on England's High Court (Queen's Bench) held the Watchtower Bible and Tract Society vicariously liable for the failure of the Elders in the congregation to take reasonable steps to protect claimant from Peter Stewart after they became aware in 1990 that he had sexually assaulted another child in the congregation. The court also held defendants vicariously liable for the sexual assault itself, saying:

Whether the abuse took place at or after book study at whoever's home, on field service, at Kingdom Hall or at the Convention, he was ostensibly performing his duties as a Jehovah's Witness ministerial servant. I am satisfied that the progressive acts of intimacy were only possible because he had the actual or ostensible status of a ministerial servant that meant no one who saw him questioned his being alone with the claimant.

Law & Religion UK has more on the decision.

Zoroastrians In Kurdistan Threaten To Sue Company Over Use of Sacred Text Name For Diapers

In the Kurdistan Region of Iraq, members of the Zoroastrian religious minority are threatening to bring a lawsuit against the Avesta Baby Diaper company. Rudaw reported yesterday that "Avesta" is the name of Zoroastrian sacred scriptures and the word is holy to Zoroastrians. The owner of the diaper company says he did not know of the religious connection; he chose the Kurdish name as a courtesy to Kurds. But now, he says, the brand name is popular with customers, and changing it would cause a major financial loss. He adds that he would consider changing the name if he were compensated for the losses involved. The head of a Zoroastrian advocacy group says he believes the owner of the diaper company, a Muslim, chose the name deliberately.

5th Circuit Rejects RFRA Challenge To Contraceptive Mandate Accommodation For Religious Non-Profits

In East Texas Baptist University v. Burwell, (5th Cir., June 22,2015), the U.S. 5th Circuit Court of Appeals upheld the Obama administration's rules that allow religious non-profits to opt out of the Affordable Care Act's contraceptive coverage mandate by certifying their religious opposition and either notifying their insurer or plan administrator of their opposition, or furnishing the Department of Health and Human Services with the name and contact information for their insurer or administrator. In either case, the insurer or administrator must then offer coverage directly. Plaintiffs argued that this accommodation still violates their religious freedom rights under RFRA. The court disagreed, saying in part:

Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith are those of third parties. Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise.

Slate reports on the decision.

Monday, June 22, 2015

SEC Interprets Terms In Securities Laws To Include Same-Sex Marriages

The Securities and Exchange Commission on June 19 issued Release No. 33-9850 (full text) formally interpreting the terms "spouse" and "marriage" in the federal securities laws and rules to include same-sex spouses and same-sex marriages where the couple is lawfully married under state law, regardless of their domicile.

After Policy Change, Court Dissolves Injunction Forcing Carrying of Anti-Islam Bus Ads

As previously reported, in April a New York federal district court granted a preliminary injunction to a pro-Israel advocacy group requiring the New York Metropolitan Transit Authority to accept the group's anti-Islam ad for display on the back of New York City buses. The controversial ad declared that "killing Jews" draws Muslims closer to Allah. The MTA responded to the court order by changing its policy and barring all ads of a political nature. Now in American Freedom Defense Initiative v. Metropolitan Transit Authority, (SD NY, June 19, 2015), the federal district court granted the MTA's motion to vacate the preliminary injunction, finding that the new policy has rendered the preliminary injunction moot. The court said in part:

In this case, the only conduct that the Court previously enjoined as unconstitutional was the defendants’ exclusion of the Killing Jews ad under the “incitement of violence” standard. The defendants are now only excluding the Killing Jews ad under the New Policy banning political ads, a policy they assert that they have no plans of revising.... Thus, the defendants have ceased the conduct that the Court identified as unconstitutional....

[I]t is likely that the MTA’s exclusion of all political ads has converted its advertising space from a designated public forum to a limited public forum or a nonpublic forum.

Raw Story reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Sunday, June 21, 2015

Senate Version of Defense Authorization Act Passes--Several Provisions On Religion In the Military

As reported by U.S. News, last Thursday the U.S. Senate by a vote of 71-25 passed its version of H.R.1735, the National Defense Authorization Act for Fiscal Year 2016 (full text). The bill now goes to conference with the House that passed its own version last month. The Senate bill includes several provisions relating to religion in the armed forces:

Section 505: (a) AUTHORITY.—Section 1253 of title 10, United States Code, is amended by adding at the end the following new subsection:
‘‘(c) EXCEPTION FOR CHIEFS OF CHAPLAINS AND DEPUTY CHIEFS OF CHAPLAINS.—The Secretary of the military department concerned may defer the retirement under subsection (a) of an officer serving in a general or flag officer grade who is the Chief of Chaplains or Deputy Chief of Chaplains of that officer’s armed force. Such a deferment may not extend beyond the first day of the month following the month in which the officer becomes 68 years of age.’’.
Section 524: (a) FINDINGS.—Congress finds the following:
(1) The United States military includes individuals with a variety of national, ethnic, and cultural backgrounds that have roots all over the world.
(2) In addition to diverse backgrounds, members of the Armed Forces come from numerous religious traditions, including Christian, Hindu, Jewish, Muslim, Sikh, non-denominational, nonpracticing, and many more.
(3) Members of the Armed Forces from diverse backgrounds and religious traditions have lost their lives or been injured defending the national security of the United States.
(4) Diversity contributes to the strength of the Armed Forces, and service members from different backgrounds and religious traditions share the same goal of defending the United States.
(5) The unity of the Armed Forces reflects the strength in diversity that makes the United States a great Nation.

(b) SENSE OF CONGRESS.—It is the sense of Congress that the United States should—
(1) continue to recognize and promote diversity in the Armed Forces; and
(2) honor those from all diverse backgrounds and religious traditions who have made sacrifices in serving the United States through the Armed Forces.

Section 829: The Department of Defense may not preclude a non-profit organization from competing for a contract for religious related services on a United States military installation.

Recent Prisoner Free Exercise Cases

In Robinson v. Jackson, (6th Cir., June 15, 2015), the 6th Circuit held that vegetarian meals satisfied an inmate's need for a Halal diet.

In Mauwee v. Palmer, 2015 U.S. Dist. LEXIS 77830 (D NV, June 16, 2015), a Nevada federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 77833, May 26, 2015) and dismissed a complaint by a Native American inmate that his eagle talon-- a sacred object-- was confiscated and destroyed before he completed the grievance process.

In Cohee v. Coupe, 2015 U.S. Dist. LEXIS 77940 (D DE, June 16, 2015, a Delaware federal district court permitted plaintiff, who is a Thelemite, to proceed with his complaint that when he was transferred to the hole he was denied access to his religious book and was advised that he could only have a Bible or the Qur'an. He did not have a constitutional claim regarding theft of several of his religious books.

In Rogers v. Molina, 2015 U.S. Dist. LEXIS 78010 (ND CA, June 15, 2015), a California federal magistrate judge held that a nursing home resident can proceed with his complaint that while in the emergency room, sheriff's deputies instead of providing him a wheelchair, a threw him to the ground and, among other things, seized blessing oil that he uses to practice his religion.

In O'Neal v. Amah, 2015 U.S. Dist. LEXIS 78716 (ED CA, June 16, 2015, a California federal magistrate judge allowed an inmate to move ahead with his complaint that when he was moved to a new facility he was denied a religious diet for over 60 days. He was given leave to amend his complaint to more clearly allege facts regarding denial of access to weekly church services much of the time.

In Nance v. Miser, 2015 U.S. Dist. LEXIS 79136 (D AZ, June 16, 2015), an Arizona federal district court dismissed a Muslim inmate's complaint that a Halal diet with meat was unavailable, but permitted him to move ahead with his 1st Amendment damage claim for denial of a shaving waiver for 7 months.

DC Circuit: Anti-Injunction Act Does Not Bar Suit Challenging Alleged Special IRS Review of Zionist Groups

In Z Street v. Koskinen, (DC Cir., June 19, 2015), the D.C. Circuit Court of Appeals held that the Anti-Injunction Act, which prohibits suits to restrain the assessment or collection of any tax, does not bar a suit by a pro-Israel non-profit organization that sued to prevent allegedly unconstitutional delay in processing its application for non-profit status. Z Street claimed that the IRS has a special Israel policy that results in special scrutiny, and thus delay, of applications by groups holding political views on the Middle East inconsistent with those of the Obama administration. Jewish Press reports on the decision.

Saturday, June 20, 2015

Texas Supreme Court: State Lacks Standing To Appeal Trial Court's Grant of Same-Sex Divorce

In a 5-3 decision, the Texas Supreme Court yesterday in State of Texas v. Naylor (TX Sup. Ct., June 19, 2015), held that the state lacks standing to appeal a divorce decree of sorts that had been granted by a trial court to a lesbian couple. In the case, the couple had been legally married in Massachusetts, but were now Texas residents. The trial court recognized the problem of issuing a decree since under Texas law the couple's marriage was not recognized. Instead it issued an order-- pursuant to an agreement of the parties-- which was "intended to be a substitute for ... a valid and subsisting divorce... and is intended to dispose of all economic issues and liabilities as between the parties whether they [are] divorced or not." After the order was entered, the state of Texas filed a motion to intervene to defend the Texas law that limits divorce actions to opposite-sex couples who are married to one another.

The Supreme Court's majority opinion by Justice Brown held that the state was too late in attempting to intervene as a party since it did not try to do so until after a decree was entered. It also held that the state did not show grounds to maintain a third-party appeal of the trial court's decision. Justice Boyd filed a concurring opinion emphasizing that the state is in no way bound by the trial court's decree.

Justice Willett delivered a dissenting opinion (which was joined by Justices Guzman and Devine) concluding:

In my view, the attorney general—constitutionally bound to “represent the State in all suits” has an interest sufficient to intervene to defend Texas law against perceived constitutional attack. His arguments may not prevail, but he should be allowed to make them.

Justice Devine also filed a separate dissent reaching the merits and concluding that the Texas ban on same-sex marriages is constitutional. Thus, since the parties were not married, the trial court lacked jurisdiction over the divorce action. Dallas Morning News reports on the decision. [Thanks to How Appealing for the lead.]

Friday, June 19, 2015

9th Circuit Rejects Inmate's RLUIPA Claim For Racially Segregated Cell

In Walker v. Beard, (9th Cir., June 18, 2015), the U.S. 9th Circuit Court of Appeals rejected an Aryan Christian Odinist prison inmate's claim that under RLUIPA he should be exempt from being classified as eligible for placement in a racially mixed cell-- just as inmates who have a history of perpetrating or being victimized by racial violence are exempted. Here inmate Dennis Walker claimed that part of his Odinist religious practice is "the spiritual circle of Odinist Warding" ritual. The presence of a non-Aryan in his cell during the ritual would pollute the spiritual circle. The court held that even though "the racially eligible classification under the Housing Policy substantially burdens his religious exercise," the state has a compelling interest in complying with constitutional requirements barring racial segregation in prisons, and its actions were the least restrictive means to further this compelling interest. The court added:

it is possible to imagine how the State might have maintained its race-neutral celling policy and offered an accommodation to Walker – for example, by giving him time outside his cell to perform the warding ritual by himself. But Walker never asked for such relief, nor has he given any indication that he would accept anything short of being assigned a white cellmate. The State has no additional obligation under RLUIPA independently to research and propose every possible way of mitigating that practice’s negative effects.... If Walker wants time outside his cell to perform the ritual, he needs to ask for it. If the State were to refuse him, that might be the basis for a separate RLUIPA challenge, but it does not bear on the challenge here, which is to the application of the Housing Policy to him without an exemption.

The court also rejected Walker's 1st Amendment free exercise argument. Sacramento Bee reports on the decision.

Suit Challenges Union's Application of Religious Exemption To Fair Share Fee Requirement

Under Pennsylvania's Public Employee Fair Share Fee Law, public employee unions may enter collective bargaining agreements that require non-union members to pay a fair share fee instead of dues. However for employees who object on religious grounds, the law permits the employee to pay an equivalent amount to a nonreligious charity agreed upon by the employee and the union. This week, a teacher in a high school near Pittsburgh has filed suit in federal district court claiming her due process and free speech rights have been infringed by the union's refusing to accept the charities to which she wants to send her fair share fee.

The complaint (full text) in Misja v. Pennsylvania State Education Association, (MD PA, filed 6/18/2015), says that teacher Linda Misja initially requested that her payment be sent to People Concerned for the Unborn Child, but the union refused insisting that this would be sending the fees to an organization that furthers plaintiff's religious beliefs, instead of to a nonreligious charity as required by law. Misja then requested that her fees be sent to the National Rifle Association Foundation. The union rejected this choice because it has a policy of not agreeing to the charitable subsidiaries of political organizations. According to the complaint:

Ms. Misja seeks a declaratory judgment that the PSEA cannot maintain its practice of withholding her funds indefinitely, without access to an independent decision-making process to resolve the disputed application thereof, and cannot engage in pernicious viewpoint discrimination by restricting her choice of charity simply because Ms. Misja’s chosen charity takes positions with which the PSEA does not agree.

The Fairness Center has issued a press release and a legal backgrounder on the case.

Suit By U.S. Against FLDS Towns Moves Ahead

United States v. Town of Colorado City, Arizona, (D AZ, June 17, 2015), is a decision in a civil suit by the Untied States against the twin towns of Colorado City, Arizona and Hilldale, Utah, and against utility companies serving the towns alleging a pattern of discrimination against residents who are not members of the polygamous FLDS Church, denying them housing, police protection and access to public services. (See prior posting.) The court refused to dismiss claims that defendants violated Violent Crime Control and Law Enforcement Act of 1994 by denying plaintiffs their constitutional rights, saying that there are material questions of fact as to whether there have been violations. The court also allowed the United States to move ahead with its claims of violations of the Fair Housing Act, though found that plaintiff could not recover damages on behalf of certain individuals. It also held that a prior civil suit by a private party could not be relied on by the government to assert non-mutual collateral estoppel. AP reporting on the decision calls it a loss for the Justice Department.

Thursday, June 18, 2015

Supreme Court Unanimously Upholds Church's Challenge To Restrictive Sign Ordinance

Today in Reed v. Town of Gilbert, Arizona, (Sup. Ct., June 18, 2015), the U.S. Supreme Court unanimously held that an Arizona town's sign ordinance that placed greater restrictions on temporary directional signs than on other signs violates the First Amendment. The challenge to the ordinance was brought by a local church whose Sunday services are held at various temporary locations and which posted signs each weekend displaying the Church name and the time and location of the next service. Justice Thomas' majority opinion (joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito and Sotomayor) concluded that the provisions placing greater restrictions on temporary directional signs than on signs conveying other messages (such as ideological and political signs) "are content-based regulations of speech that cannot survive strict scrutiny." It emphasizes:

Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.

It added:

a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.

Justice Alito, joined by Justices Kennedy and Sotomayor, filed a short concurring opinion setting out examples of content-neutral alternatives.

Justice Breyer filed a separate opinion concurring in the judgment saying that while the regulation here does not warrant strict scrutiny, it is nevertheless invalid. He explains:

The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification.

Justice Kagan (joined by Justices Ginsburg and Breyer) also filed an opinion concurring in the judgment, saying in part:

The Town of Gilbert’s defense of its sign ordinance—most notably, the law’s distinctions between directional signs and others—does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test.... The absence of any sensible basis for these and other distinctions dooms the Town’s ordinance under even the intermediate scrutiny that the Court typically applies to “time, place, or manner” speech regulations. Accordingly, there is no need to decide in this case whether strict scrutiny applies to every sign ordinance in every town across this country containing a subject-matter exemption.

I suspect this Court and others will regret the majority’s insistence today on answering that question in the affirmative. As the years go by, courts will discover that thousands of towns have such ordinances, many of them “entirely reasonable.”

Supreme Court Holds Specialty License Plates Are "Government Speech"

Today in Walker v. Texas Division. Sons of Confederate Veterans, Inc., (Sup. Ct., June 18, 2015), the U.S. Supreme Court in a 5-4 decision upheld a decision by the Texas Department of Motor Vehicles Board to reject an application by Sons of Confederate Veterans for the issuance of a specialty license plate design featuring a Confederate battle flag. The majority in an opinion by Justice Breyer (joined by Justices Thomas, Ginsburg, Sotomayor and Kagan) held the specialty plates are government speech, and that "when government speaks, it is not barred by the Free Speech Clause from determining the content of what it says." The majority, relying largely on its 2009 Summum decision, said the history of license plates show that they have largely communicated state messages and their design is controlled by and closely identified in the public mind with the state. The majority added:

Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech.... And the Free Speech Clause itself may constrain the government’s speech if, for example, the government seeks to compel private persons to convey the government’s speech. But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.

Justice Alito's dissenting opinion (joined by Chief Justice Roberts and Justices Scalia and Kennedy) argued that the 350 varieties of specialty plates issued by the state of Texas are not seen as expressions of state policy:

If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?”

Pope's Encyclical On Environmental Protection Issued; Republican Presidential Candidates May Be Pressed

The Vatican this morning released Pope Francis' much anticipated Encyclical Laudato Si: On Care For Our Common Home, as well as a Press Guide to the lengthy document. The Encyclical begins:

1. “LAUDATO SI’, mi’ Signore” – “Praise be to you, my Lord”. In the words of this beautiful canticle, Saint Francis of Assisi reminds us that our common home is like a sister with whom we share our life and a beautiful mother who opens her arms to embrace us....

2. This sister now cries out to us because of the harm we have inflicted on her by our irresponsible use and abuse of the goods with which God has endowed her. We have come to see ourselves as her lords and masters, entitled to plunder her at will. The violence present in our hearts, wounded by sin, is also reflected in the symptoms of sickness evident in the soil, in the water, in the air and in all forms of life. This is why the earth herself, burdened and laid waste, is among the most abandoned and maltreated of our poor....

In an article earlier this week, the New York Times suggests that the Encyclical will put pressure on Catholic Republican candidates for President who have questioned scientific findings on human causes of climate change and opposed policies to tax or regulate the burning of fossil fuels. These include Jeb Bush and Marco Rubio who "have courted influential and deep-pocketed donors, such as the billionaire brothers Charles G. and David H. Koch, who vehemently oppose such climate policies." Other announced or likely Catholic candidates are Rick Santorum, Bobby Jindal and Chris Christie. AP reports that, speaking to reporters yesterday, Jeb Bush said:

I go to church to have my faith nourished, to have my faith challenged. That's why I go to Mass. I don't go to Mass for economic policy or for things in politics.

2nd Circuit: Post-9-11 Muslim-Arab Alien Detainees Have Due Process-Equal Protection Claims

In Turkmen v. Hasty, (2d Cir., June 17, 2015), the U.S. Second Circuit Court of Appeals in a 2-1 decision held that a group of "out-of-status" aliens rounded up on immigration charges and detained after the 9/11 attacks have substantive due process and equal protection claims under Bivens v. Six Unknown Agents against various defendants including former Attorney General John Ashcroft, former FBI Director Robert Mueller and former INS Commissioner James Ziglar. The court however held that a Bivens remedy is not available for plaintiffs' free exercise claims. The majority concluded that plaintiffs had adequately pleaded that they were being held in punitive conditions only because they were, or were perceived to be, Arab or Muslim. According to the majority, that policy was "built on a perception of a race and faith that has no basis in fact." AP and FDL report further on the 109-page majority opinion and 91-page dissent.

White House, State Department Send Ramadan Greetings

Yesterday the White House issued a press release carrying Ramadan greetings from President Obama and the First Lady "to all those observing the month of fasting in the United States and around the world." The President's statement said in part:

In this month of giving, Muslims around the globe reach out to assist those afflicted by conflict, hunger, poverty and disease. And here in the United States, American Muslims join their fellow citizens to serve the less fortunate, hosting inter-faith activities that build understanding and remind us that we stand together as one American family. The diversity and patriotism of America’s religious communities give strength to all of us, and our freedom to worship reminds us of the values we share.

The press release also indicated that again this year the President will host an iftar dinner at the White House.

Also yesterday the State Department released a press statement from Secretary of State Kerry wishing Muslims "a joyful Ramadan Kareem."

Wednesday, June 17, 2015

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.

Tuesday, June 16, 2015

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.

Monday, June 15, 2015

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.

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.

Sunday, June 14, 2015

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.

Saturday, June 13, 2015

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.

Friday, June 12, 2015

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.

Thursday, June 11, 2015

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].

Wednesday, June 10, 2015

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).

Tuesday, June 09, 2015

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.)

Monday, June 08, 2015

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.