Ecclesiastical Abstention Doctrine Does Not Require Dismissal of Breach of Contract Claim

In Shannon v. Memorial Drive Presbyterian Church U.S., (TX App., July 21,2015), a Texas state appeals court held that the ecclesiastical abstention doctrine is not applicable to a claim by former Church Elementary Ministries Director Jessica Shannon that the Church breached a confidential separation agreement she had signed. The agreement involved payment to her of $25,000 to settle her claim that she had been dismissed for making sexual harassment allegations against a Church elder. As part of the agreement, the Church and Shannon each agreed not to "disparage" the other. After Shannon was hired by the Austin Presbyterian Theological Seminary as a development officer, it called the Church for references and was told by officials that the Church would not rehire Shannon and that she would not be able to raise funds anywhere in Houston. This led the Seminary to fire Shannon on the grounds that she had misrepresented the circumstances surrounding her departure from the Church.

Shannon sued the Church, claiming among other things that it violated the non-disparagement provision. The court held in part:

We may interpret a contract in a civil law controversy in purely secular terms when doing so does not require us to rely on religious precepts or resolve a religious controversy.... Making the determination of whether the Church disparaged Shannon merely involves interpreting the contract as a matter of law and applying the facts as found by the fact finder. Moreover, under these circumstances, we are not required to intervene in the hiring, firing, discipline, or administration of the Church’s clergy, address the Church’s standards of morality, or address any other matters traditionally held to involve religious doctrine.... We conclude that this lawsuit, revolving around the Church’s purported disparagement of Shannon in violation of the Agreement, is a civil law controversy in which Church officials happen to be involved.... Accordingly, the ecclesiastical abstention doctrine does not apply.

The court also concluded that the trial court had erred in invoking several other grounds for dismissing Shannon's claims. It affirmed only the trial court's dismissal of Shannon's intentional infliction of emotional distress claim.

UPDATE: On Sept. 1, 2015, the court denied a motion for rehearing and filed a Substitute Opinion: 2015 Tex. App. LEXIS 9312.

British House of Lords Debates Resolution On Religious Freedom

Law & Religion UK blog reports on the debate last week in the House of Lords (full text of July 16 debate) on a motion to:

[take] note of worldwide violations of Article 18 of the 1948 Universal Declaration of Human Rights and the case for greater priority to be given by the United Kingdom and the international community to upholding freedom of religion and belief.

Introducing the debate, Lord Alton said in part:

The four great murderers of the 20th century—Mao, Stalin, Hitler and Pol Pot—were united by their hatred of religious faith. Seventy years later, all over the world, from North Korea to Syria, Article 18 is honoured daily in its breach, evident in new concentration camps, abductions, rape, imprisonment, persecution, public flogging, mass murder, beheadings and the mass displacement of millions of people. Not surprisingly, the All-Party Group on International Freedom of Religion or Belief, in the title of its influential report, described Article 18 as “an orphaned right”....

New Jersey Archdiocese Sues Challenging Restrictions On Its Cemeteries Selling Headstones

According to the New York Times, the Catholic Archdiocese of Newark filed a federal lawsuit yesterday challenging the constitutionality of a New Jersey law (see prior posting) that bars religious groups which operate cemeteries from also selling headstones or offering various other kinds of funeral services.  The law, which takes effect next year, was enacted earlier this year in response to pressure from the trade association representing small independent companies that produce monuments and private mausoleums. Yesterday's lawsuit was filed on the Archdiocese's behalf by the Institute for Justice, a libertarian public interest law firm that pursues cases defending economic liberty.

8th Circuit: Parents Have Standing To Challenge ACA Contraceptive Coverage Requirement For Family Policy

Yesterday the U.S. 8th Circuit Court of Appeals handed down a decision that could be the precursor to a new round of challenges to the Affordable Care Act's contraceptive coverage mandate. In Wieland v. U.S. Department of Health and Human Services, (8th Cir., July 20, 2015), the court held that parents have standing to challenge provisions preventing them from obtaining insurance coverage for their daughters under a policy that excludes coverage for contraceptives.  Prior to the Affordable Care Act, Missouri law required that health insurers offer an employer a health care plan that excludes contraceptive coverage if coverage violates the employer’s religious beliefs. Also individual enrollees were permitted to opt out of contraceptive coverage based on religious objections. In a suit brought by insurance companies, a federal district court held that these provisions were pre-empted by the Affordable Care Act.

Plaintiffs in this suit are a Missouri legislator and his wife who receive family health coverage through the state of Missouri's health plan for its employees. According to the court:

The Wielands, parents of three daughters, are committed to the health and well being of their children and thus seek to ensure that their daughters have comprehensive healthcare coverage. As devout Roman Catholics, they believe that they cannot pay for or participate in a healthcare plan that includes coverage for contraceptives or provide such coverage to their daughters without violating their sincerely held religious beliefs.

National Law Journal reports on the decision.

6th Circuit: School Had Non-Retaliatory Reason To Fire Imam From Instructional Assistant Job

In Haji v. Columbus City Schools, (6th Cir., July 16, 2015), the U.S. 6th Circuit Court of Appeals held that while a prima facie case of First Amendment retaliation was made out by a Somali Muslim imam who was fired from his position as an instructional assistant in the Columbus, Ohio public schools, his suit should be dismissed because the school system showed a non-retaliatory reason for his termination. Plaintiff Abdurahman Haji claims that he was dismissed because of remarks he made at his mosque-- captured on a YouTube video-- criticizing the school system for exposing Muslim students to the polytheistic belief system of Greek mythology.  However the court found that the dismissal was justified because of Haji's leaving early on Friday's to attend mosque services, in violation of the school's attendance policy which was enforced against Haji after the controversial video was discovered.  The court also rejected Haji's Title VII religious discrimination claim growing out of his termination and earlier disciplinary action taken against him for his criticism of actions by students that he considered inconsistent with Islam. Middle East Forum blog discussed the decision.

Religion In Schools Lawsuit Settled

The American Humanist Association announced yesterday that it has reached a settlement with the Hall County, Georgia school system in a suit that sought to enjoin prayers and religious activities that are part of the District's football and other athletic programs. (See prior posting.)  According to the AHA:

Under the settlement, the school superintendent will issue a memorandum detailing the standards for religious neutrality required by the Establishment Clause of the First Amendment and the Equal Access Act to the principals in all of its 36 schools. The district will host a training session before the start of the school year for administrators, who will educate staff and coaches on their constitutional duties. The district also agrees to pay the American Humanist Association’s legal fees of $22,500.

The school district also posted an announcement of the settlement, saying in part:

All parties agree it is paramount that the Constitution of the United States is protected and upheld. Furthermore, in a manner similar to the routine training provided to staff in areas such as child abuse reporting and the security of personal records, we agree that routine professional training for staff should include the legal rights and responsibilities of individuals regarding issues related to religion in the public school setting.  While public school students are guaranteed wide-ranging religious freedoms, employees’ rights are more limited when in their work settings.

The Hall County School District admits to no violations of state or federal laws. The district will continue to hold the expectation that individuals within our organization abide by the laws of our land. The Hall County School District will make no monetary compensation to the plaintiffs. Insurance carriers are negotiating all questions regarding legal fees.

Recent Articles of Interest

From SSRN:

• Michael I. Meyerson, The Original Meaning of 'God': Using the Language of the Framing Generation to Create a Coherent Establishment Clause Jurisprudence, (Marquette Law Review, Vol. 98, No. 3, Spring 2015, pp. 1035-1102).
• Oliver Le Bot, Limitation of Animal Protection for Religious and Cultural Reasons, (July 14, 2014).
• Tariq Modood, Multiculturalism and Moderate Secularism, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2015/47, July 2015).
• Marc Greendorfer, Final Affordable Care Act Regulations, (July 14, 2015).
• Dallan F. Flake, After Abercrombie: Religious Discrimination Based on Employer Misperception, (July 16, 2015).
• Eli Wald, The Jewish Law Firm: Past and Present, (Jews in the Legal Profession, 65-124, Marc Galanter, et al eds., New Orleans: Quid Pro Press, 2014).
• Douglas NeJaime, Marriage Equality and the New Parenthood, (Harvard Law Review, Forthcoming).
• Arolda Elbasani, The Revival of Islam in the Post-Communist Balkans: Coercive Nationalisms and New Pathways to God, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2015/28, April 2015).

From SmartCILP:

• Hon. Deborah Sweet Eylar, The Early Female Jewish Members of the Maryland Bar: 1920-1929, 74 Maryland Law Review 545-582 (2015).
• Bruce Friedrich, The Church of Animal Liberation: Animal Rights as 'Religion' Under the Free Exercise Clause, 21 Animal Law 65-119 (2014).

Recent Prisoner Free Exercise Cases

In Wilkinson v. Secretary, Florida Department of Corrections, (11th Cir., July 15, 2015), the 11th Circuit vacated the district court's dismissal of an inmate's complaint that he was not permitted to observe two Santeria holy days.

In Moffat v. Department of Corrections, 2015 U.S. Dist. LEXIS 90549 (D MA, July 13, 2015), a Massachusetts federal district court dismissed a Rastafarian inmate's complaint that he was removed from the special religious diet list on two occasions after he failed to sign for his meals, but then was reinstated.

In Greene v. Cabral, 2015 U.S. Dist. LEXIS 90548 (D MA, July 13, 2015), a Massachusetts federal district court permitted an Orthodox Jewish inmate to move ahead with his claim that prison authorities regularly fail to comply with kosher standards in the kosher meals they provide inmates.

In Fonseca v. California Department of Corrections and Rehabilitation, 2015 U.S. Dist. LEXIS 90644 (SD CA, July 10, 2015), a California federal district court dismissed a Jewish inmate's complaint that his kosher meals do not contain sufficient meat.  The magistrate's recommendation in the case is at 2015 U.S. Dist. LEXIS 90668, June 10, 2015.

In Muhammad v. Mathena, 2015 U.S. Dist. LEXIS 91081 (WD VA, July 14, 2015), a Virginia federal district court dismissed an inmate's complaint that he did not receive certain of his issues of the weekly religious periodical "Final Call," and that other issues were delayed or delivered out of order.

In Abpikar v. Martin, 2015 U.S. Dist. LEXIS 93431 (ED CA, July 17, 2015), a California federal magistrate judge recommended dismissing an inmate's complaint that while in administrative segregation, he was denied group daily worship with other Muslim inmates.

Court Allows Enforcement of New Contraceptive Coverage Accommodation Rules For Closely Held Companies

In Tyndale House Publishers, Inc. v. Burwell, (D DC, July 15, 2015), the federal district court for the District of Columbia issued an order consistent with the U.S. Supreme Court's Hobby Lobby decision barring the federal government from enforcing the Affordable Care Act contraceptive coverage requirement as it existed in June 2014 against a for-profit Bible publishing company to the extent that the company has religious objections to providing coverage. However the order permits the government to enforce its newly adopted accommodation for closely held companies which allows an opt-out on religious grounds with contraceptive coverage then being furnished directly by the insurance company. The court's order though adds that nothing prevents plaintiffs from filing a new civil action challenging the accommodation rules. In a press release, Alliance Defending Freedom describes the court's order as a "victory" for the Bible publisher.

Minister's Challenge To Applying Building Code To Home Bible Study Group Is Dismissed

In Salman v. Phoenix, City of, (D AZ, July 14, 2015), an Arizona federal district court dismissed a 42 USC Sec. 1983 suit by a minister and his wife seeking to enjoin the city from applying its building code to weekly bible studies held in a 2000 square foot game room built in their backyard. The minister had already been convicted criminally in state court for building code violations. The court dismissed the claim on the basis that a federal habeas corpus action is the only federal court route available to bring a suit that would necessarily challenge the validity of a state criminal conviction. The court said:

A § 1983 plaintiff’s request that a federal court declare unconstitutional the very statute (or its application to the plaintiff) under which he was convicted in state court is no different than a request that a federal court invalidate the conviction itself.

The court also dismissed plaintiffs' RLUIPA and state law claims.

EEOC Holds That Sexual Orientation Discrimination Is Covered Under Title VII

In a July 15 decision (full text), the Equal Employment Opportunity Commission reversed and remanded the Federal Aviation Administration's rejection of an employment discrimination complaint by an FAA employee who claimed he was denied a promotion because he is gay.  In a precedent setting opinion, the EEOC held that:

allegations of discrimination on the basis of his sexual orientation state a claim of discrimination on the basis of sex within the meaning of Title VII.

In reaching its conclusion, the EEOC drew analogies to cases in which courts have held that discrimination on the basis of an employee's association with persons of another race amounts to racial discrimination. It added that sexual orientation discrimination is necessarily based on gender stereotypes. The EEOC also rejected the argument that unsuccessful efforts to obtain passage of legislation in Congress explicitly adding sexual orientation to Title VII should lead it to reject the discrimination claim here. The Washington Blade and Dale Carpenter at Volokh Conspiracy have more on the decision.

Meanwhile the EEOC features a posting on its website titled What You Should Know About EEOC and the Enforcement Protections for LGBT Workers. 

Marriage Equality Group Will Celebrate Victory By Going Out of Business

The advocacy group Freedom To Marry, founded in 2001 to push for legalization of same-sex marriage, is taking the rare step of going out of business now that its goal has been accomplished.  Wednesday's Wall Street Journal reported that unlike many other non-profits that find a new cause to promote, Freedom To Marry will help its staff find other positions, will make certain that its records are archived, and then will close down completely by February. [Thanks to How Appealing for the lead.]

President Sends Eid-ul-Fitr Greetings

Yesterday President Obama issued a statement (full text) extending warmest wishes to Muslims in the United States and around the world celebrating Eid-ul-Fitr-- the end of Ramadan. He said in part:

As Muslim Americans celebrate Eid across America, the holiday is a reminder to every American of the importance of respecting those of all faiths and beliefs. This past year New York City Public Schools announced adding Eid to their official school calendars alongside Christmas, Hanukkah and other holidays – an acknowledgement of the great diversity and inclusiveness that adds to the richness of our nation....

Michelle and I hope today brings joy to all of your homes, both here in the U.S. and around the world. From my family to yours, Eid Mubarak! 

The Eid is celebrated today in the United States.

Kansas Trial Court Applies Neutral Principles Approach In Suit Over Presbyterian Church Property

KCTV News reports on a decision handed down this week by the Kansas 10th Judicial District trial court in a dispute between two factions of the Presbyterian Church of Stanley over ownership of church property. Last year, the pastor and 300 parishioners of the Overland Park, Kansas congregation broke away from the Presbyterian Church (USA) and affiliated with the more conservative Evangelical Covenant Order of Presbyterians. The parent body, Heartland Presbytery, filed suit over ownership. The court ordered the two factions to pray in separate rooms in the church while the case was in litigation. Wednesday the court issued a ruling, holding that the property does not belong to the Presbytery, but does belong to the local congregation that remains with the PCUSA. The court used a "neutral principles" approach, even though traditionally Kansas courts have deferred to the decision of the parent body in churches with a hierarchical structure.

In its decision, the court rejected the argument that under church law the property is held in trust for the regional Presbytery.  Because the deed and mortgages are in the name of the local congregation, it is the owner. However on the question of which faction constitutes the local congregation, the court deferred to the PCUSA Constitution finding that the faction remaining loyal to it was entitled to ownership rights. The court gave the parties ten days to work out building occupancy arrangements.

Russia's Constitutional Court: Russian Constitution Supreme Over European Human Rights Court Orders

RT reports on a decision handed down Tuesday by Russia's Constitutional Court holding that decisions of the European Court of Human Rights do not take precedence over the Russian Constitution. The decision came in a suit filed by a group of State Duma deputies, representing all four parliamentary caucuses. They challenged Russian laws that appear to require Russian courts and state agencies to carry out all orders of the European Court. In its decision, Russian court said in part:

The European Convention for the Protection of Human Rights and Fundamental Freedoms as well as legal positions of the ECHR that are based on it cannot cancel the priority of the Constitution. All decisions of the ECHR must be executed only with consideration to the Russian Constitution’s supremacy. As an exception, Russia can refuse to fulfill the imposed obligations when such a refusal is the only way to prevent the violation of the basic law.

It is expected that the decision may be used as a basis for challenging a European Court decision last year that ordered Russia to pay $2.5 billion in compensation for dissolving the Yukos Oil Co.

Seattle Mayor Recommends Increasing Access To Sharia-Compliant Housing Loans

According to yesterday's Puget Sound Business Journal, a committee appointed by Seattle (WA) Mayor Ed Murray to come up with recommendations for increasing housing in Seattle has released its report. One of its recommendations is to find ways to increase access to Sharia-compliant housing loans. It is estimated that some 200 people are not borrowing to buy houses because of the unavailability of loans structured to avoid the interest prohibitions of Islamic law.

Senate Lacks Votes To Adopt LGBT School Anti-Bullying Amendment

As reported by the Washington Post, the U.S. Senate yesterday failed to pass an anti-bullying amendment (details) offered by Sen. Al Franken to the Every Child Achieves Act of 2015. The amendment would have prohibited discrimination and bullying on the basis of perceived sexual orientation or gender identity in K-12 public schools. While the vote (details) in favor of the amendment was 52-45, the Senate needed 60 votes to approve it. Sen. Lamar Alexander, chairman of the Senate Committee on Health, Education, Labor and Pensions, who is also a former education secretary, urged his colleagues to vote against the amendment because it was an issue better handled at the local level.

EEOC Files One, Settles One, Religious Discrimination Suit

The EEOC yesterday filed a lawsuit against UPS, the nation's largest parcel delivery service charging religious discrimination.  According to the EEOC press release:

United Parcel Service, Inc. prohibits male employees in customer contact or supervisory positions from wearing beards or growing their hair below collar length. According to EEOC's complaint, since at least 2004, UPS has failed to hire or promote individuals whose religious practices conflict with its appearance policy and has failed to provide religious accommodations to its appearance policy at facilities throughout the United States.

Also yesterday, the EEOC announced the settlement of a lawsuit brought against a Dunkin' Donut franchisee in Asheville, North Carolina. The company's plant manager offered a donut maker position to Darrell Littrell, a Seventh-Day Adventist, but then withdrew the offer when Littrell told the manager that he could not begin work on Friday afternoon because it conflicted with his Sabbath. Under the settlement, the company will pay Littrell $22,000 in damages, and will enter a 5-year consent decree barring religious discrimination and requiring policy changes, employee training and reporting.

Suit Alleges Discrimination Against Same-Sex Spouse Constitutes "Sex" Discrimination

Following the Supreme Court's recent decision legalizing same-sex marriage throughout the United States, many commentators noted that same-sex couples may still face discrimination because sexual orientation discrimination is not explicitly prohibited under federal law nor under the law of a number of states.  Yesterday in a class action lawsuit filed in federal district court in Massachusetts, a Wal-Mart employee is seeking a ruling that discrimination against a same-sex spouse is discrimination on the basis of "sex", a classification that is covered by state and federal anti-discrimination laws. At issue is Wal-Mart's policy of denying spousal health insurance benefits to same-sex spouses of eligible employees.  If the theory is successful, it could lay the groundwork for public accommodation suits, as well as employment discrimination ones.

The complaint (full text) in Cote v. Wal-Mart Stores, Inc., (D MA, filed 7/14/2015), alleges that the EEOC issued a right to sue letter, finding that the refusal to add plaintiff's same-sex spouse to her health insurance policy constituted discrimination on the basis of sex since such coverage would have been provided if she were married to a man rather than another woman. The suit alleges that denial of benefits violates Title VII of the 1964 Civil Rights Act, the Equal Pay Act and the Massachusetts Fair Employment Practices Law because benefits would have been provided if plaintiff were married to someone of the opposite sex or if she were a different sex than her spouse. National Law Journal reports on the lawsuit.

IRS Seeks Comments On Form 990 Used By Non-Profits

In a July 14 Notice and Request for Comments published in the Federal Register, the IRS has asked for comments concerning Form 990, Return of Organization Exempt From Income Tax Under Section 501(c), 527, or 4947(a)(1) of the Internal Revenue Code, and on Schedules A and B of Form 990. Comments are due by Sept. 14.

Rights Group Urges Burma's President To Reject Parliament's Buddhist Women's Marriage Law

In a July 9 statement, Human Rights Watch called on Burma's President Thein Sein to refuse to sign the Myanmar Buddhist Women’s Special Marriage Law. The law was passed by Burma's Parliament in a joint session on July 7 by a vote of 524 to 44, with 8 abstentions.  The final version of the bill has not been made public, but an English translation of a 2014 draft of the bill is available online. According to Human Rights Watch:

The bill targets Buddhist women who marry – or seek to marry – non-Buddhist men and introduces vaguely defined acts against Buddhism as grounds for divorce, forfeiture of custody and matrimonial property, and potential criminal penalties....

The law permits the township (district level) registrar to publicly display a couple’s application for marriage for 14 days, and permits any objections to the marriage to be taken to local court....

The law also requires a non-Buddhist husband to respect the free practice of his spouse’s Buddhist religion, including displaying Buddhist imagery and statues, and engaging in Buddhist ceremonies. He must refrain from “committing deliberate and malicious acts, such as writing, or speaking, or behaving or gesturing with intent to outrage feelings of Buddhists.” Violations of these provisions are grounds for divorce, and in such a case the non-Buddhist husband would be forced to give up his share of jointly owned property, owe his wife compensation, and be denied custody of the children.

10th Circuit Upholds ACA Non-Profit Contraceptive Coverage Accommodation

In Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Burwell, (10th Cir., July 14, 2015), the U.S. 10th Circuit Court of Appeals upheld the Obama Administration's Affordable Care Act accommodation for religious non-profits that object to furnishing contraceptive coverage.  Plaintiffs asserted RFRA, free exercise, Establishment Clause and free speech challenges to the rules that allow an opt-out with contraceptive coverage then being furnished directly by the insurer or third party administrator.  The 98-page majority opinion, written by Judge Matheson who began it with a Glossary of Legal and Regulatory Terms, particularly focused on the arguments under RFRA.  Here are a few excerpts:

Before we present our analysis of the issues, we wish to highlight the unusual nature of Plaintiffs’ central claim, which attacks the Government’s attempt to accommodate religious exercise by providing a means to opt out of compliance with a generally applicable law....  Plaintiffs not only challenge a law that requires them to provide contraceptive coverage against their religious beliefs, they challenge the exception that the law affords to them....

We conclude the accommodation does not substantially burden Plaintiffs’ religious exercise. The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity. Furthermore, these de minimis administrative tasks do not substantially burden religious exercise for the purposes of RFRA. 

Judge Baldock dissented in part, arguing that applying the accommodation to self-insured plans using Third Party Administrators violates RFRA.  He said in part:

Under the ACA accommodation scheme, in the insured health plan context, “a health insurance issuer . . . would be obligated to provide contraceptive coverage under the ACA whether or not [the insured non-profit] delivered the Form or notification to HHS.” ... But in the self-insured context, a TPA would be “authorized and obligated to provide the coverage . . . only if the religious non-profit . . . opts out.”

AP reports on the decision which dealt with appeals in cases from Oklahoma and Colorado.

Pentagon Changing Ban On Service By Transgender Individuals

In a statement (full text) yesterday, Secretary of Defense Ash Carter announced that the military is changing its policy that currently bans service by transgender men and women.  He said in part:

The Defense Department's current regulations regarding transgender service members are outdated and are causing uncertainty that distracts commanders from our core missions.... Today, I am issuing two directives to deal with this matter. First, DoD will create a working group to study over the next six months the policy and readiness implications of welcoming transgender persons to serve openly.... At my direction, the working group will start with the presumption that transgender persons can serve openly without adverse impact on military effectiveness and readiness, unless and except where objective, practical impediments are identified. Second, I am directing that decision authority in all administrative discharges for those diagnosed with gender dysphoria or who identify themselves as transgender be elevated to Under Secretary Carson, who will make determinations on all potential separations.

Time reporting on the Pentagon's decision says that it is estimated that 15,500 transgender individuals are currently serving.  In his statement, Secretary Carter said: "transgender men and women in uniform have been there with us, even as they often had to serve in silence alongside their fellow comrades in arms." [Thanks to Mark Goldman for the lead.]

Religious Discrimination Suit Filed After Engineer Fired For Anti-Gay Comment on Company's Intranet

In a federal lawsuit filed last week, a fired Ford Motor Co. engineer, claiming religious discrimination and retaliation, sued for violations of Title VII of the 1964 Civil Rights Act and Michigan's Elliott-Larsen Civil Rights Act. The complaint (full text) in Banks v. Rapid Global Business Solutions Inc., (ED MI, filed 7/10/2015) alleges that Banks, a Christian, who was working on assignment from Ford to RGBSI, Inc., was fired because of a critical comment he posted to an article on Ford's Intranet. The Intranet article celebrated an organization of Ford's LGBT employees. The offending comment said:

For this Ford Motor Company should be thoroughly ashamed.  Endorsing and promoting sodomy is of benefit of no one.  This topic is disruptive to the workplace and is an assault on Christians and morality, as well as antithetical to our design and survival. Immoral sexual conduct should not be a topic for an automotive manufacturer to endorse or promote.  And yes-- this is historic-- but not in a good way.  Never in the history of mankind has a culture survived that promotes sodomy.  Heterosexual behavior creates life-- homosexual behavior leads to death.

Huffington Post reports on the lawsuit.

Mississippi School District Held In Contempt Of Decree On Religion In Schools

In M.B. v. Rankin County School District, (SD MS, July 10, 2015), a Mississippi federal district court held that the Rankin County, Mississippi, School District has willfully violated a 2013 consent decree in which it was ordered to comply with a newly adopted policy on Religion in Public Schools. (See prior posting.) The consent decree was entered in response to complaints about school assemblies that promoted Christianity. The current finding of a violation of the decree was triggered by a district-wide awards ceremony honoring students who did well on their ACT test at which a Christian minister offered a sectarian prayer as part of the ceremonies. The school in another violation assisted the Gideons in distributing Bibles to elementary school students. Finding the district in contempt, the court ordered it to pay $7500 in damages to the student filing the contempt petition, and ordered a fine of $10,000 per infraction for any future violations. American Humanist Association issued a press release announcing the decision and linking to its Memorandum of Law that was filed in support of plaintiff's motion for civil contempt.

Second Suit Filed Against Kentucky Clerk Who Is Refusing To Issue Marriage Licenses

As previously reported, earlier this month the ACLU filed a class action lawsuit in federal court against  Rowan County, Kentucky, Clerk Kim Davis who is refusing to issue marriage licences to anyone because of her religious objections to issuing them to same-sex couples. According to the Lexington Herald-Leader, Davis, who is represented by by the advocacy group Liberty Counsel, did not appear in court at yesterday's scheduled hearing because she has not yet been served with a summons.  Meanwhile a second suit was filed against Davis last Friday by a same-sex couple who were denied a marriage license.  The complaint (full text) in Ermold v. Davis, (ED KY, filed 7/10/2015), alleges that plaintiffs were denied a marriage license  by Davis' office based upon Davis' "understanding of Adam, Eve, and the origins of man as set forth in the Old Testament." The couple's video of their attempt to apply for a license, posted on YouTube, has been viewed over 1.7 million times. The suit has been assigned to U.S. District Judge David Bunning who is also hearing the ACLU challenge.  Bunning says he will probably consolidate the two cases. [Thanks to Tom Rutledge for the lead.]

Alabama Supreme Court Upholds Preliminary Injunction In Church Election Case

Ex parte Cornell L. Tatum, Sr.,  (AL Sup. Ct., July 10, 2015), is a mandamus action-- essentially an interlocutory appeal-- in a suit in which members of a Baptist Church sued seeking an order to require deacons of the church to abide by a vote of church members ousting them from their positions. The trial court issued a preliminary injunction barring the deacons from "undertaking any act as a member of [the board] of [the church] including any participation in Deacon
meetings or performing any duties or responsibilities of a deacon while this order is in effect." The deacons petitioned the Alabama Supreme Court for a writ of mandamus ordering the trial court to vacate its order for lack of subject-matter jurisdiction. The Alabama Supreme Court in a summary order denied the petition.

While there was no opinion for the court, Justice Parker wrote an opinion concurring specially, saying in part:

I write specially to emphasize that a circuit court lacks subject matter jurisdiction to apply judicial notions of due process to church proceedings when the highest adjudicatory body of a church decides a purely ecclesiastical matter.  Additionally, I write to note that a circuit court may recognize a decision by the highest adjudicatory body of a church concerning a purely ecclesiastical matter and, based on that decision, enjoin persons from taking unauthorized actions on behalf of the church....

Admittedly, however, it is unclear whether the April 20, 2014, vote constituted a decision by the highest adjudicatory body of the church. In a Baptist church, the majority of the congregation is the highest adjudicatory body, unless the church bylaws provide otherwise.... This lack of clarity, however, does not require that this Court grant the petitioners' petition..... The petitioners have not demonstrated that the April 20, 2014, meeting was not a decision by the highest adjudicatory body of the church. Accordingly, the petitioners have failed to demonstrate a clear legal right to the relief sought.

Chief Justice Moore filed a dissenting opinion, arguing in part that "any decision by the circuit court regarding the ability of the petitioners to serve as deacons in the church necessarily requires the court to resolve a number of antecedent issues that are inextricably intertwined with church governance." He added:

A court's involvement in a religious matter is not sanitized merely because the court purports to ratify, rather than annul, a church's decision. What violates church autonomy is not the substance of the court's ultimate determination, but the judiciary's very participation in the intra-church conflict.

Justice Murdock filed a brief dissent based on failure to join necessary parties. 

Recent Articles of Interest

From SSRN:

• Rhona Schuz, The Dangers of Children’s Rights’ Discourse in the Political Arena: The Issue of Religious Male Circumcision as a Test Case, (Cardozo Journal of Law and Gender Vol. 21:347, 2015).
• Rivka Weill, The Power of Understatement in Judicial Decisions, (Annuaire international de justice constitutionnelle (2015, Forthcoming)).
• Kerstin Steiner, Governing Islam: The State, the Administration of Muslim Law Act (AMLA) and Islam in Singapore, (Australian Journal of Asian Law, Vol. 16, No. 1, article 6, 2015).
• Jodok Troy, The Catholic Church and International Relations, (Oxford Handbooks Online, Forthcoming).
• Lloyd Hitoshi Mayer, Limits on State Regulation of Religious Organizations: Where We Are and Where We Are Going, (Notre Dame Legal Studies Paper No. 1521, July 2015).
• Adam J. Fenton & David Price, Breaking ISIS: Indonesia's Legal Position on the 'Foreign Terrorist Fighters' Threat, (Australian Journal of Asian Law, Vol. 16, No. 1, Article 2, 2015).
• Jeremy K. Kessler, A War for Liberty: On the Law of Conscientious Objection, (The Cambridge History of World War II, Vol. 3 (Michael Geyer & Adam Tooze eds. 2015).

From SSRN (European law):

• Jonathan Rose, Clergy and the Abuse of Legal Procedure in Medieval England, (July 4, 2015).
• Nicole Martin, Are British Muslims Alienated from Mainstream Politics by Islamophobia And British Foreign Policy?, (July 1, 2015).
• Myriam Hunter-Henin, Living Together in an Age of Religious Diversity: Lessons from Baby Loup and SAS, Oxford Journal of Law and Religion 2015, 1-25.
• Myriam Hunter-Henin, Religion, Children and Employment: The Baby Loup Case, (International Comparative Law Quarterly, July 2015).

From SSRN (Marriage):

• Joshua White, Here Comes the Groom...(s)?. (June 19, 2015).
• Charles R. Calleros, Marriage Equality on the Arc of Civil Rights History: A Broad Historical Narrative, (Michigan State Law Review, Forthcoming).
• Catherine E. Smith, Lauren Fontana, Susannah William Pollvogt & Tanya Washington, Brief of Amici Curiae Scholars of the Constitutional Rights of Children in Support of Petitioners in Obergefell v. Hodges, (March 9, 2015).

From SmartCILP:

• Mahmood Chandia & Kartina A. Choong, The Conflation of Ethnicity and Religion in Malaysia: A Reflection, [Abstract], 23 Cardozo Journal of International & Comparative Law 353-376 (2015).
• Umar F. Moghul &Samir H.K. Safar-Aly,  Green Sukuk: The Introduction of Islam's Environmental Ethics to Contemporary Islamic Finance, 27 Georgetown International Environmental Law Review 1-60 (2014).
• Intisar A. Rabb, "Reasonable Doubt" in Islamic Law, 40 Yale Journal of International Law 41-94 (2015).

Recent Prisoner Free Exercise Cases

In Jehovah v. Clarke, (4th Cir., July 9, 2014), the 4th Circuit reversed a Virginia federal district court's dismissal of free exercise and RLUIPA claims by an inmate who had a sincere belief in his own version of Christianity based on a version of the Bible he had written. He complained about policies banning consumption of wine during communion, inability to obtain a job that allows him to observe his "Old Jewish" and "New Christic" Sabbaths, and his cell assignment with anti-Christians and unbelievers.

In Harris v. State, 2015 Nev. App. Unpub. LEXIS 282 (NV App., June 2, 2015), a Nevada appeals court affirmed the dismissal of an inmate's complaint that he was required to give up his medically-necessary low-sodium diet during Ramadan in order to receive Ramadan meals.

In Robinson v. Landry, 2015 U.S. Dist. LEXIS 87025 (D ME, July 6, 2015), a Maine federal district court dismissed because of mootness and unavailability of damages as relief, a Native American inmate's complaint growing out of failure to return his medicine bag, denial of smudge materials, and lack of access to Native American services.

In Ryidu-X v. Maryland Division of Corrections, 2015 U.S. Dist. LEXIS 87683 (D MD, July 6, 2015), a Maryland federal district court held that the brief inability of an inmate to access the prison commissary using his religious name despite a settlement agreement allowing him to do so did not amount to a violation of constitutional magnitude.

In Daywitt v. Minnesota, 2015 U.S. Dist. LEXIS 87552 (D MN, July 6, 2015), a Minnesota federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 87951, June 17, 2015) and permitted plaintiff, an Orthodox Jew who was civilly committed in the Minnesota Sex Offender Program to move ahead with his suit for injunctive and declaratory relief regarding the ban on his wearing a suit coat as required by his religious beliefs. His complaint regarding a ban on wearing a yarmulke was dismissed as moot since the policy had been changed. Damage claims against officials were dismissed on qualified immunity grounds.

In Trotter v. Ramsey, 2015 U.S. Dist. LEXIS 89106 (WD TN, July 9, 2015), a Tennessee federal district court upheld the requirement that all inmate religious services be supervised by an outside religious leader or staff and dismissed a complaint by an inmate who was an approved group Bible study leader that on two occasions he was not allowed to hold Sabbath/Advent Bible study.

Final Accommodation Rules Adopted For Religious Objectors To ACA Contraceptive Coverage

The Obama Administration on Friday released final rules on accommodating religious objections to the Affordable Care Act requirement for health insurance coverage of contraceptive services. (Full text of Rules and accompanying release). The final rules, which provide for the insurer or policy administrator to provide contraceptive coverage directly when the employer objects to providing coverage, apply to any non-profit that holds itself out as a religious organization and has religious objections to covering some or all contraceptive items or services.

The accommodation also applies to any closely-held for-profit business entity where "the organization’s highest governing body (such as its board of directors...) has adopted a resolution or similar action, under the organization’s applicable rules of governance and consistent with state law, establishing that it objects to covering some or all of the contraceptive services on account of the owners’ sincerely held religious beliefs." The final rules define a closely-held entity as one whose shares or ownership interests are not publicly traded and where more than 50% in value of its ownership interests is owned directly or indirectly (e.g. through a corporation or trust) by 5 or fewer individuals or families.

On the important question of the type of notice an objecting non-profit or closely-held business must furnish, the final rules carry forward the procedures currently in place. As summarized by the adopting Release:

These final regulations continue to allow eligible organizations to choose between using EBSA Form 700 [and furnishing it directly to the insurer or third party administrator] or the alternative process consistent with the Wheaton interim order. The alternative process provides that an eligible organization may notify HHS in writing of its religious objection to covering all or a subset of contraceptive services. The notice must include the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on sincerely held religious beliefs....; the plan name and type...; and the name and contact information for any of the plan’s third party administrators and health insurance issuers.

Health Affairs Blog has more on the new rules. A Friday press release from the Becket Fund continues to express strong opposition to the Final Rules. [Thanks to Mark Scarberry via Religionlaw for the lead.]

Pope In Bolivia Calls For Dramatic Economic and Social Reform

Yesterday, in a speech that CBS News called "one of the most significant ... of his papacy," Pope Francis called for dramatic economic and social change.  Addressing the 2nd World Meeting of Popular Movements (full text of remarks) in Bolivia, he said in part:

Do we realize that something is wrong in a world where there are so many farmworkers without land, so many families without a home, so many laborers without rights, so many persons whose dignity is not respected?

Do we realize that something is wrong where so many senseless wars are being fought and acts of fratricidal violence are taking place on our very doorstep? Do we realize something is wrong when the soil, water, air and living creatures of our world are under constant threat? 

So let’s not be afraid to say it: we need change; we want change. In your letters and in our meetings, you have mentioned the many forms of exclusion and injustice which you experience in the workplace, in neighborhoods and throughout the land..... Yet there is an invisible thread joining every one of those forms of exclusion: can we recognize it? These are not isolated issues. I wonder whether we can see that these destructive realities are part of a system which has become global. Do we realize that that system has imposed the mentality of profit at any price, with no concern for social exclusion or the destruction of nature?....

Time, my brothers and sisters, seems to be running out.... Today, the scientific community realizes what the poor have long told us: harm, perhaps irreversible harm, is being done to the ecosystem. The earth, entire peoples and individual persons are being brutally punished. And behind all this pain, death and destruction there is the stench of what [one of the first theologians of the Church,] Basil of Caesarea, called “the dung of the devil”. An unfettered pursuit of money rules.... The service of the common good is left behind. Once capital becomes an idol and guides people’s decisions, once greed for money presides over the entire socioeconomic system, it ruins society, it condemns and enslaves men and women, it destroys human fraternity, it sets people against one another and, as we clearly see, it even puts at risk our common home. [Sister and mother earth.]

AG Says U.S. Government Benefit Programs Will Recognize Same-Sex Spouses In All States

U.S. Attorney General Loretta Lynch announced yesterday that the Supreme Court's marriage equality decision will be applied across the federal government.  She said in part:

[C]ritical programs for veterans and elderly and disabled Americans, which previously could not give effect to the marriages of couples living in states that did not recognize those marriages, will now provide federal recognition for all marriages nationwide....  Just over a year ago, Attorney General Holder announced that agencies across the federal government had implemented the Supreme Court’s Windsor decision by treating married same-sex couples the same as married opposite-sex couples to the greatest extent possible under the law as it then stood.  With the Supreme Court’s new ruling that the Constitution requires marriage equality, we have now taken the further step of ensuring that all federal benefits will be available equally to married couples in all 50 states, the District of Columbia and the US Territorie

Ontario Court Upholds Law Society's Refusal To Accredit Christian Law School

In Trinity Western University v. Law Society of Upper Canada, (ON Super. Ct., July 2, 2015), a 3-judge panel of the Ontario Superior Court of Justice upheld the decision of the Law Society of Upper Canada to deny accreditation to the law school which Trinity Western University (TWU)-- an evangelical Christian school-- plans to open.  The Law Society's denial was based on TWU's Community Covenant that all students are required to sign, and in particular the Covenant's ban on "sexual intimacy that violates the sacredness of marriage between a man and a woman."

According to the court, the Law Society "was essentially asked to approve and accept students from an institution that engaged in discrimination against persons
who did not share the religious beliefs that were held by TWU, and the student body that it prefers to have at its institution." The court went on:

In exercising its mandate to advance the cause of justice, to maintain the rule of law, and to act in the public interest, the [Law Society] was entitled to balance the applicants’ rights to freedom of religion with the equality rights of its future members, who include members from two historically disadvantaged minorities (LGBTQ persons and women). It was entitled to consider the impact on those equality rights of accrediting TWU’s law school, and thereby appear to give recognition and approval to institutional discrimination against those same minorities. Condoning discrimination can be ever much as harmful as the act of discrimination itself.

Mondaq summarizes the decision.

Employee Who Refused Work In Unit Performing Abortions Loses Title VII Suit

In Montgomery v. Cook County, (ND IL, July 1, 2015), an Illinois federal district court dismissed a Title VII religious discrimination and retaliation lawsuit brought by a medical center employee who was fired after she refused an assignment change that would require her to spend half her time in the reproductive health unit of the Planned Parenthood facility at which she was employed.  She objected on religious grounds to work in the unit that performed abortions, and said she understood from the time she was hired that this concern would be respected. The court held that plaintiff had not alleged facts showing that she was fired "because of" her religious beliefs.  The court conceded that "even if an employer does not intentionally discriminate against an employee, an employer may still be liable under Title VII for failure to accommodate the religious needs of its employees." However here, according to the court:

[Plaintiff] failed to allege any facts regarding whether a request to accommodate [her] beliefs was made... and whether Defendants tried to accommodate [them].... Based on these allegations, I cannot reasonably infer that Defendants failed to try to accommodate Plaintiff's religious beliefs to keep her employed.

It thus dismissed the discrimination claim without prejudice.

The court also rejected Plaintiff's retaliation claim, holding: "Plaintiff has neither plead that she engaged in protected activity nor alleged a substantial link between any protected expression and her termination."

Decision Is Step Toward Success For Group Seeking To Erect Eruv In The Hamptons

In Suffolk County, New York, a Jewish group seeking to construct an eruv in parts of three towns in the Hamptons moved a step closer to succeeding when a state trial court judge ruled last week that the Town of Southampton Zoning Board of Appeals improperly invoked the local sign ordinance to prevent the construction.  New York Jewish Week reports:

Acting Suffolk County Supreme Court Justice Joseph Farneti ruled June 30 that the board was wrong when it affirmed a town inspector’s opinion that lechis are signs that fall within the town’s sign ordinance. Lechis are wooden or plastic strips affixed to telephone and utility poles to form the boundaries of an eruv, within which observant Jews may carry items on the Sabbath. The association had sought to put 28 of them on 15 poles.

Such a finding is “irrational and unreasonable in that it does not comport with the sign ordinance’s intent,” the judge wrote. “The Court finds that the boundaries are invisible as the lechis are not discernable. … Neither drivers nor casual observers would be able to differentiate the poles which have lechis attached from the other poles.”

Farneti added: “It is well-settled that, while religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for a religious use and every effort to accommodate the religious use must be made.”

The East End Eruv Association has been litigating in state and federal courts since 2011 in an attempt to get approval. (See prior posting.)

Negligent Supervision Claim Against Diocese By Sex-Abuse Victim Can Proceed

In John Doe 200 v. Diocese of Raleigh, (NC App., July 7, 2015), a North Carolina appellate court held that the ecclesiastical abstention doctrine does not require dismissal of a sex-abuse victim's negligent supervision claims against the Catholic Diocese of Raleigh. The court held:

Were we to adopt the Diocese Defendants’ argument ..., then the First Amendment would, as a practical matter, serve as a complete shield to tort liability for religious organizations in the sexual abuse context except in those cases in which the plaintiff specifically alleged prior sexual assaults by the cleric at issue. We do not believe the First Amendment requires such a result.... Neutral principles of law allow a civil court to adjudicate Plaintiff’s claim that the Diocese Defendants knew or should have known of the danger posed by Sepulveda [a priest] to Plaintiff because of his sexual attraction to minors.

The court however reached a different conclusion on plaintiff's claim that the Diocese should have required the offending priest to undergo STD testing and should have provided the results to plaintiff:

This claim seeks to impose liability based on the Diocese Defendants’ alleged failure to exercise their authority over a priest stemming from an oath of obedience taken by him pursuant to the church’s canon law. As such, this claim directly “challenges church actions involving religious doctrine and practice” and cannot be adjudicated without entangling a secular court in ecclesiastical matters. 

St. Paul-Minneapolis Archdiocese Victims Want Bankruptcy Court To Order Distribution of Video Urging Claimants To File

In the bankruptcy reorganization proceedings of the Catholic Archdiocese of St. Paul and Minneapolis, August 3 is the deadline for sex abuse victims to file claims.  Yesterday's Wall Street Journal reports that in a motion filed June 29 (full text), the Official Committee of Unsecured Creditors (representing victim claimants) presented the bankruptcy court with a seven-minute video urging victims to come forward before the deadline. The motion asks the court to order the Archdiocese to deliver written notice to each parish asking it to play the video after each Mass on the July 11-12 weekend, requesting each parish to post the video (or a link to it) on its website, and ordering the Archdiocese to post the video on its own website. The Archdiocese in its response to the motion (full text) says there has already been adequate notice and the video has already received extensive distribution by the media. The response (full text) of the committee representing individual parishes adds that "Parishes could view the
order and request as implicating First Amendment rights under the U.S. Constitution, " The bankruptcy court will hold a hearing on the motion today.

Cert. Filed In Religious Non-Profit Contraceptive Coverage Compromise

A petition for certiorari to the U.S. Supreme Court (full text) was filed yesterday in Houston Baptist University v. Burwell.  In the case, brought by three religiously affiliated colleges, 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 government with the name and contact information for their insurer or administrator. (See prior posting.) A Becket Fund press release announcing the filing of the petition says that three other petitions challenging the non-profit accommodation have already been filed with the Court.

Cannabis Church Sues Under Indiana's New RFRA

In a move foreshadowed two months ago (see prior posting), in Indiana the First Church of Cannabis has filed suit invoking the state's recently-enacted RFRA in an attempt to shield the Church, its founder and two of its members from prosecution for possession of marijuana.  The complaint (full text) in First Church of Cannabis, Inc. v. State of Indiana, (IN Cir. Ct., filed 7/8/2015), alleges that cannabis is the sacrament of the Church, and laws punishing possession of marijuana and visiting a place where marijuana is used substantially burden plaintiffs' exercise of religion. The Indianapolis Star reports that more than 100 people attended the Church's second service yesterday evening, but because of prosecution threats it is not using cannabis at its services until it is successful in its lawsuit. According to WTHR News, Marion County Prosecutor Terry Curry complained:

Our office and police agencies have serious public safety issues we have to address every single day. I am beyond frustrated that we are having to devote valuable time and resources to this matter solely because of an ill-advised and unnecessary law enacted by our legislature, The act serves no purpose, no purpose whatsoever, other than political posturing.

Oklahoma Governor Opposes 10 Commandments Holding

As previously reported, last week the Oklahoma Supreme Court held that a controversial Ten Commandments monument on the statehouse grounds violates the state constitution.  Yesterday, in response, Oklahoma Gov. Mary Fallin issued a statement (full text) resisting the holding. She said:

The Ten Commandments monument was built to recognize and honor the historical significance of the Commandments in our state’s and nation’s systems of laws. The monument was built and maintained with private dollars. It is virtually identical to a monument on the grounds of the Texas State Capitol which the United States Supreme Court ruled to be permissible.  It is a privately funded tribute to historical events, not a taxpayer funded endorsement of any religion, as some have alleged.

Nevertheless, last week the Oklahoma Supreme Court ruled Oklahoma’s Ten Commandments monument was impermissible. Their decision was deeply disturbing to many in our Legislature, many in the general public, and to me.

Oklahoma is a state where we respect the rule of law, and we will not ignore the state courts or their decisions. However, we are also a state with three co-equal branches of government. At this time, Attorney General Scott Pruitt, with my support, has filed a petition requesting a rehearing of the Ten Commandments case. Additionally, our Legislature has signaled its support for pursuing changes to our state Constitution that will make it clear the Ten Commandments monument is legally permissible. If legislative efforts are successful, the people of Oklahoma will get to vote on the issue. 

During this process, which will involve both legal appeals and potential legislative and constitutional changes, the Ten Commandments monument will remain on the Capitol grounds.

Kansas Governor Shields Clergy and Religious Social Service Groups That Object To Same-Sex Marriage

Yesterday Kansas Governor Sam Brownback issued Executive Order 15-05 (full text) protecting clergy, religious leaders and religious organizations that have moral objections to same-sex marriage from adverse action by the state. It prohibits the state government from taking any discriminatory action against any individual clergy or religious leader who declines on religious or moral grounds to perform, solemnize, or facilitate a same-sex marriage.  It similarly bars discriminatory action against any religious organization that refuses to provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration or recognition of any same-sex marriage.

Finally the Executive Order provides that the state may not take discriminatory action against a religious organization that provides social services or charitable services because the organization acts upon sincerely held religious belief or moral conviction that marriage is between one man and one woman. Discriminatory action includes denial of tax exemptions or benefits, denial of state grants or contracts, and denial of licensing or accreditation.

The governor issued a press release announcing the Executive Order. Washington Post reports on the governor's action. [Thanks to Scott Mange for the lead.]

NY Lawsuit Seeks To End Pre-Yom Kippur Practice of Kaparot

Monday's New York Daily News reported on a state court lawsuit filed by a group of Brooklyn residents against four rabbis, a number of Hasidic congregations and the city of New York seeking to stop the annual pre-Yom Kippur practice of Kaparot.  The ritual practice that involves the slaughter of chickens has become common in recent years in Hasidic neighborhoods in Crown Heights and Boro Park. A group called Alliance to End Chickens as Kaporos says the practice involves both animal cruelty and substantial public health risks.  Plaintiffs charge that New York authorities are not only not enforcing health and animal cruelty laws, but are abetting violations by blocking off streets and sidewalks so the ritual can take place. An affidavit filed by lawyers in the case says in part:

Ten years ago, Kaporos only occurred in several small alleys and a handful of synagogue parking lots. However, every year it has increased in size and scope. Today, Kaporos has become an overwhelming event that has spiraled out of control. .. (into) a carnival like atmosphere of bloody violence. Clearly this event is now motivated by money and profits, and not by religious redemption.

According to Courthouse News Service:

The complaint alleges that kaporos violates six sections of New York City health codes, four sections of New York state agricultural statutes, and various other laws and regulations. The 19-count complaint names New York City, the NYPD, and nearly 20 other religious leaders and congregations as defendants.

 Brooklyn Assemblyman Dov Hikind says that plaintiffs' depictions of the ritual are inaccurate.

Conscience Rights of Clerks and Judges Become An Issue After Supreme Court's Marriage Equality Ruling

In the wake of the U.S. Supreme Court's ruling on same-sex marriage, issues continue to arise regarding the right of state and county officials to refuse on personal religious grounds to issue licenses or perform weddings.

The Christian Science Monitor reports that in Hood County, Texas, County Clerk Katie Lang last week initially refused to issue a marriage license to Joe Stapleton and Jim Cato. On Monday the couple filed a federal lawsuit and less than two hours later Lang's office agreed to issue the couple a marriage license.  However the couple's lawyer says the lawsuit will proceed unless Lang agrees to issue licenses in the future to all couples, gay and straight.

According to the Toledo Blade, in Toledo, Ohio on Monday a same-sex couple who were issued a marriage license ran into delays when they went to the office of the judge on duty to perform marriages for that day.  Municipal Court Judge C. Allen McConnell's bailiff told them that McConnell does not do "these types of marriages." However, after a 45-minute wait, another judge, William M. Connelly, Jr., performed the ceremony for them.

In Kentucky, court clerk Casey Davis who objects on religious grounds to issuing marriage licenses to same-sex couples has come up with a creative suggestion. Davis wants state law amended so couples can obtain marriage licenses online.  AP reports that Davis has asked Gov. Steve Beshear to call a special session of the legislature to amend the law to allow the online procedure.  According to the Lexington Herald-Leader, Beshear for cost reasons has rejected the idea of a special legislative session on marriage issues, even though House Speaker Greg Stumbo favors it.

Milwaukee Archdiocese Seeks Supreme Court Review In Bankruptcy Decision

According to the Milwaukee Journal-Sentinel, yesterday a petition for certiorari was filed with the U.S. Supreme Court in Listecki v. Official Committee of Unsecured Creditors.  In the case, the U.S. 7th Circuit Court of Appeals ruled that $55 million held by the Archdiocese of Milwaukee in a perpetual care trust fund for maintaining Catholic cemeteries is potentially available in the Archdiocese's bankruptcy to satisfy claims of clergy sex abuse victims. (See prior posting.)

9th Circuit Hears Oral Arguments In Challenge To Big Mountain Jesus Statue

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments (video of full arguments) in Freedom From Religion Foundation v. Weber. In the case, a Montana federal district court rejected an Establishment Clause challenge to the U.S. Forest Service's renewal of  of a Special Use Permit issued to the Knights of Columbus to allow the organization to continue to maintain a statue of Jesus near a ski slope on Montana's Big Mountain. The trial court found that the statue has lost its religious connotation. (See prior posting.) AP reports on yesterday's arguments.

Suit Challenges County's Refusal To Allow Invocations By Theists or Humanists

The ACLU, Americans United and the Freedom From Religion Foundation filed suit in federal district court yesterday challenging Brevard County, Florida's policy of rejecting or ignoring requests by atheists and Humanists to deliver invocations at meetings of the Brevard County Board of Commissioners during the regular pre-meeting invocation period. Nontheists were allowed to make presentations only during the public comment period of the meeting. The complaint (full text) in Williamson v. Brevard County, (MD FL, filed 7/7/2015), contends that this policy violates the 1st and 14th Amendments as well as provisions of the Florida Constitution. It emphasizes that the County's policy is not the nondiscriminatory access envisioned by the Supreme Court in its Town of Greece decision permitting sectarian invocations. An ACLU press release announced the filing of the lawsuit, and  Florida Today reports on it.

James Dunn, Religious Liberty Advocate, Dies At 83

The Baptist Joint Committee for Religious Liberty announced that religious liberty advocate James M. Dunn, who led the organization for nearly 20 years, died on July 4 at age 83.  Religion News Service describes Dunn as "a religious liberty advocate who worked the corridors of Washington power for two decades to defend the separation of church and state."

In India, Rapper, Singer and YouTube Sued For Insulting Zoroastrianism

According to yesterday's Los Angeles Times, in India a Parsi civic organization has filed a public interest lawsuit against rapper Snoop Dogg, Iranian pop singer Amitis Moghaddam, YouTube and other defendants for insulting their Zoroastrian religion.  The suit, filed in a court in the city of Kolkata, seeks to have a musical video featuring the celebrities banned because of its use of a giant gold Faravahar, the winged disc that is a respected symbol of Zoroastrianism.  The three-and-a-half minute video for the song King shows Snoop Dog on a throne under the Farvahar smoking weed, and shows Moghaddam dressed as a Persian queen lying under the Farvahar being fanned by  two scantily clothed men.

Israel's Cabinet Strengthens Ultra-Orthodox Control of Religious Status Matters

Times of Israel reports that Israel's Cabinet on Sunday took two steps that place personal status matters of Israeli Jews more firmly under control of the ultra-Orthodox rabbinate.  First the Cabinet withdrew a measure that made its way through the Knesset's Law Committee last year that would have expanded from four to thirty the number of religious courts that could conduct conversions to Judaism.  The new courts made up of municipal rabbis would have loosened somewhat the tight restrictions on conversion presently in effect.  The second Cabinet vote placed rabbinical courts under the jurisdiction of the Ministry of Religious Services instead of the Justice Ministry which oversees Christian and Muslim religious courts.  The change places rabbinical courts-- with their authority over marriage and divorce-- under the authority of Religious Affairs Minister David Azoulay who belongs to the ultra-Orthodox Shas Party. These steps resulted from the coalition agreements negotiated between political parties after the most recent Knesset election. (See prior posting.)

Recent Articles and Books of Interest

From SSRN:

• Randall Lesaffer, The Nature and Sources of Europe's Classical Law of Nations,(June 25, 2015).
• Asim Jusic, Actionable Pluralism and Toleration in Religiously Diverse Societies: For Whom and for What?, (CEDAR Occasional Paper No.7, 2014).
• Matthew S. Erie, Muslim Mandarins in Chinese Courts: Dispute Resolution, Islamic Law, and the Secular State in Northwest China, (Law and Social Inquiry, Forthcoming).
• Dr. Harunrashid Kadri, Rights of Muslim Woman with Special Reference to Matrimonial Causes - A Human Rights Perspective, (Fiat Justicia, Volume No.: 3, April, 2015).
• Jennifer Carr, Complicity and Collection: Religious Freedom and Tax, (University of St. Thomas Law Journal, Vol. 11, No. 2, p. 183, Spring 2014).
• Robert D. Goldstein, The Structural Wall of Separation and the Erroneous Claim of Anti-Catholic Discrimination, (13 Cardozo Public Law, Policy & Ethics Journal 173 (2014)).
• Ronnie Lippens, Escape from Evil? Notes on Capacity, Tragedy, Coding and Non-Destructive Immortality Projects, (Oñati Socio-Legal Series, Vol. 5, No. 3, 2015).

From SSRN (Same-sex marriage):

• Michael J. Perry, Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment, (Emory Legal Studies Research Paper No. 15-356 (June 27, 2015)).
• Adam Lamparello, Justice Kennedy's Decision in Obergefell: A Sad Day for the Judiciary, (July 2, 2015).
• Susannah William Pollvogt,  Obergefell v. Hodges: Framing Fundamental Rights, (June 29, 2015).

New Books:

• Kevin Vallier, Liberal Politics and Public Faith--Beyond Separation,  (Routledge, June 2014), (podcast with author).
• Anthony M. Petro, After the Wrath of God-- AIDS, Sexuality, and American Religion, (Oxford Univ. Press, July 2015).
• Jean L. Cohen and Cécile Laborde (eds.), Religion, Secularism, and Constitutional Democracy, (Columbia University Press, Jam. 2016).

Court Dismisses Native American Challenge To San Antonio Revitalization Efforts

In Rocha v. City of San Antonio, (WD TX, July 2, 2015), a Texas federal district court rejected a vast variety of statutory and constitutional challenges to San Antonio's redevelopment efforts at several historical sites including the Hemisfair Historical Park, Alamo Plaza, the Alamo and La Villita.  Plaintiff, who claims to be a direct lineal descendant of the Yanaguana tribes, claims that the city is desecrating historical archaeological sites and Native American burial grounds.  Plaintiff's original complaint, dismissed by the court in this decision, alleged that the city was violating the U.S. Constitution, the Native American Graves Protection and Repatriation Act,  the Archaeological Resources Protection Act, the American Indian Religious Freedom Act, the Texas Parks and Wildlife Code, and San Antonio’s Unified Development Code.  The court also refused to permit plaintiff to amend his complaint to add free exercise claims, claims under eleven sections of the Texas Constitution, and under Title II of the federal Civil Rights Act.

Recent Prisoner Free Exercise Cases

In Incumaa v. Stirling, (4th Cir., July 1, 2015), the 4th Circuit rejected a claim by an inmate who is a member of Nation of Gods and Earths that his 20 years in solitary confinement following his participation in a 1995 prison riot with other Five Percenters violates his rights under RLUIPA. However the court held that plaintiff may move to trial on his procedural due process challenge to his continuing solitary confinement.

In Beamon v. Dittmann, 2015 U.S. Dist. LEXIS 83982 (ED WI, June 29, 2015), a Wisconsin federal district court refused to allow a Block Muslim inmate to add a RLUIPA claim to his complaint because plaintiff only seeks damages that are unavailable under RLUIPA.

In Gray v. Lewis, 2015 U.S. Dist. LEXIS 84133 (ND CA, June 29, 2015), a California federal district court allowed an inmate to proceed with most of his claims that he was restricted from obtaining a kosher diet and in other ways not provided with the resources to practice his Yahweh religion. The case was referred to the pro-se prisoner mediation program.

In Sessing v. Beard, 2015 U.S. Dist. LEXIS 84194 (ED CA, June 28, 2015), a California federal magistrate judge recommended that an Odinist inmate be allowed to proceed with his equal protection challenge to authorities' denial to him of access to outdoor space and a fire pit for worship since they were permitting Native American inmates access. However plaintiff's RLUIPA and free exercise claims were dismissed.

In Clark v. Anderson, 2015 U.S. Dist. LEXIS 84349 (ND TX, June 29, 2015), a Texas federal district court dismissed an inmate's complaint that one defendant failed to return a spiritual book, requiring him to order another copy from the publisher.

In Sousa v. Wegman, 2015 U.S. Dist. LEXIS 85208 (ED CA, June 29, 2015), a California federal magistrate judge recommended that an inmate be permitted to move ahead with his attempt to obtain recognition of those with Mexican Indian Beliefs as a religious group, and their access to religious services, holiday celebrations and use of a sweat lodge.

In Adler v. Gonzalez, 2015 U.S. Dist. LEXIS 85210 (ED CA, June 30, 2015), in a suit by a Catholic inmate, a California federal magistrate judge recommended a finding that there are still disputed facts that need to go to trial on whether or not Catholic services were available and whether plaintiff made any attempt to participate in them.

In Shabazz v. Johnson, 2015 U.S. Dist. LEXIS 86787 (ED VA, July 2, 2015), a Virginia federal district court rejected a Nation of Islam inmate's claim that requiring him to eat the Common Fare diet rather than a strict Nation of Islam diet violated his rights under RLUIPA.

Final Order Issued In Oregon Same-Sex Wedding Cake Refusal

This week, the Commissioner of the Oregon Bureau of Labor and Industries went beyond the recommendations of the Administrative Law Judge (ALJ) (see prior posting) in finding violations of law by a bakery whose owner refused on religious grounds to provide a wedding cake to a same-sex couple.  In Matter of Melissa Elaine Klein dba Sweetcakes By Melissa, (Bur. Labor & Indus., July 2, 2015), the Commissioner agreed with the ALJ that co-owner Aaron Klein violated ORS 659A.403 that bars discrimination in public accommodations on the basis, among others, of sexual orientation, and that both owners are therefore liable for damages totaling $135,000.  However the Commissioner, rejecting the ALJ's contrary conclusion, held that in addition both co-owners violated ORS 659A.409 that prohibits anyone acting on behalf of a place of public accommodation from issuing any communication that indicates facilities or services will be denied to anyone on account, among others, of sexual orientation.  This finding was based largely on statements in an interview broadcast on radio and television that the bakery would continue to refuse to provide cakes for same-sex weddings, an on a note taped to the bakery door.

Finding the state law provisions constitutional, the Commissioner issued a cease and desist order barring the owners from

publishing, issuing, circulating or displaying ... any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of a place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of sexual orientation.

4th of July-- A Biblical Focus From Israeli Prime Minister

Israeli Prime Minister Benjamin Netanyahu has an interesting U.S. 4th of July narrative, more religious than the Independence Day speeches usually heard in American venues. Speaking (full text) on Tuesday at U.S. Independence Day celebrations at US Ambassador to Israel Daniel Shapiro's residence, Netanyahu said in part:

The Founding Fathers of America were inspired by the Bible, and specifically by the Book of the Exodus, by the dream of building freedom in a new Promised Land. And as you stand in the Chamber of the American Congress, you see right across you the image of one man - Moses, with a quote from the Bible.

And since the establishment of the United States, that's two and a half centuries, the vision of justice and the vision of peace espoused by the Prophets of Israel served as a guiding light for Americans from Thomas Jefferson to Abraham Lincoln to Martin Luther King to many others seeking to form a more perfect union.

Afghan Appeals Court Overturns Death Sentences In Mob Killing of Falsely-Accused Quran Burner

According to CNN, an Afghanistan appellate court in a secret session has overturned the death sentences of four men who were convicted in May in the brutal  mob killing of Farkhunda, a 27-year old woman who was falsely accused of burning the Qur'an.  (See prior posting.) The report which CNN received yesterday from a judge with knowledge of the decision, says that 3 of the men were re-sentenced to 20-year terms and one to 10 years.

ACLU Sues Kentucky Clerk Who Is Refusing To Issue Marriage Licenses

Yesterday the Kentucky ACLU filed a federal class-action lawsuit against Rowan County Clerk Kim Davis who is refusing to issue marriage licences to anyone because of her religious objections to issuing them to same-sex couples. (ACLU press release). The complaint (full text) in Miller v. Davis, (ED KY, filed 7/2/2015) alleges that Davis' refusal "constitutes a substantial, direct and continuous infringement upon Plaintiffs’ fundamental right to marry," as well as amounting to a violation of the Establishment Clause. AP reports on the lawsuit.

ACLU Uses Indiana RFRA In Suit Challenging New Restrictions On Sex Offenders

The ACLU of Indiana filed a lawsuit yesterday challenging the prohibition in a newly enacted state law that keeps certain registered sex offenders from attending religious services. (ACLU press release).  At issue is Indiana Code § 35-42-4-14 (eff. July 1, 2015) that bars certain registered sex offenders from entering school property.  The complaint (full text) in John Doe I v. Allen and Elkhart County Prosecutors, (IN Super. Ct., filed 7/1/2015), alleges in part:

This statute ... [bans serious sex offenders] from going to worship in churches, synagogues, mosques, or other religious buildings that are located on the same as property parochial schools or certain preschool programming. Banning sex offenders from ... church on Sunday, because there are students in a school on the same grounds on Monday, is irrational and violates the due process of law protected by the Fourteenth Amendment.... It also violates Indiana’s newly enacted Religious Freedom Restoration Act, Indiana Code § 34-13-9-0.7, et seq. (eff. July 1, 2015), which prohibits government from imposing a substantial burden on a person’s exercise of religion absent a compelling governmental interest and a showing that the action is the least restrictive means to further that interest.

AP reports on the lawsuit and reactions to it.

Suit Against Navy By Humanist Chaplain Applicant Can Proceed on Two Grounds

Heap v. Carter, (ED VA, July 1, 2015), is a suit brought by Dr. Jason Heap, a certified Humanist Celebrant, and The Humanist Society, his endorsing agency, challenging the U.S. Navy's denial of Heap's application to become a Navy Chaplain. Plaintiffs alleged that the Navy and Department of Defense have an unconstitutional policy of discrimination against Humanism.  In a 75-page opinion, a Virginia federal district court ultimately allowed Dr. Heap to move ahead with his Establishment Clause and Equal Protection/ Substantive Due Process challenges to the Navy and Department of Defense's actions.  However the court dismissed challenges brought under other parts of the 1st Amendment, the No Religious Test clause, and RFRA, dismissed The Humanist Society as a plaintiff for lack of standing and on ripeness grounds, and dismissed claims against the individual defendants.

Inspired By Supreme Court Decision, Montanans Apply For License For Polygamous Marriage

AP reported yesterday that in Billings,. Montana, a man and his two wives, citing the Supreme Court's Obergefell decision, have applied for marriage licenses to legitimize their polygamous marriage. The man, Nathan Collier, a former Mormon who was excommunicated for polygamy, said: "It's about marriage equality, You can't have this without polygamy." Officials in the Yellowstone County clerk's office are consulting with the county attorney's office before giving a final answer.  The county's chief civil litigator says that his research so far shows that  "the law simply doesn't provide for that yet." [Thanks to How Appealing for the lead.]