Recent Prisoner Free Exercise Cases

In Williams v. Trueblood, 2015 U.S. Dist. LEXIS 100636 (WD AR, July 31, 2015), an Arkansas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 30546, Feb. 9, 2015) and dismissed the complaint of an inmate whose faith was black magic Voodoo that when Christian preachers from the community periodically visited the jail, they would conduct worship services and play recordings of Christian music in the prisoner pod, and his complaint that the chaplain refused to put books about death on the book cart.

In Hulbert v. Robinson, 2015 U.S. Dist. LEXIS 100700 (WD VA, July 31, 2015), a Virginia federal magistrate judge recommended dismissing a Wiccan inmate's complaint that the prison's single-vendor policy and ban on direct in-kind donations denied him access to items he needed for Wiccan rituals.

In Evans v. Muniz, 2015 U.S. Dist. LEXIS 101207 (ND CA, July 31, 2015), a California federal district court allowed a Muslim inmate to move ahead with his complaint that he was not provided with Halal food for a period of 16 months.

In Abdullah v. Cruzen, 2015 U.S. Dist. LEXIS 101191 and in Alim v. Cruzen, 2015 U.S. Dist. LEXIS 101205 (ND CA, July 31, 2015), a California federal district court allowed a Muslim inmate to move ahead with his claim that correctional officers had created an "underground rule" prohibiting SQSP Muslim prisoners from congregating in groups of more than four for daily prayers, and retaliated against him for filing a complaint about it.

In Al-Azim v. Everett, 2015 U.S. Dist. LEXIS 101292 (ED VA, Aug. 3, 2015), a Virginia federal district court permitted various of the inmate plaintiffs to move ahead with complaints regarding refusal to provide a diet consistent with Nation of Islam teachings, refusing sufficient time of NOI prayer and classes and refusal to allow plaintiffs to purchase CDs of weekly sermons by Louis Farrakhan.

In Lilly v. Texas Department of Criminal Justice, 2015 Tex. App. LEXIS 8142 (TX App., Aug. 4, 2015), a Texas state appeals court in a 2-1 decision affirmed the dismissal on statute of limitations grounds of a suit by an inmate who is a member of the House of Yahweh who was refused kosher meals.

In Quinn v. Management & Training Corp., 2015 U.S. Dist. LEXIS 101924 (SD MS, Aug. 4, 2015) a Mississippi federal district court reinstated an inmate's complaint that officers would not allow him to claim Voodoo as his religion on prison paperwork.

In Larios v. United States Gov't & His Religion, 2015 U.S. Dist. LEXIS 103205 (ED NY, Aug. 5, 2015), a New York federal district court dismissed with leave to amend an inmate's complaint that  that his placement among the general prison population violated his rights under RFRA.

Oklahoma Supreme Court Denies Rehearing In 10 Commandments Case, With Lengthy Opinions

In an Order dated July 27, 2015, the Oklahoma Supreme Court by a 7-2 vote denied a rehearing in Prescott v. Oklahoma Capitol Preservation Commission, in which the court in June held that a Ten Commandments monument must be removed from the statehouse grounds. (See prior posting.)  The Order denying a rehearing was accompanied by 4 separate concurring opinions and one dissenting opinion (full text), which are much lengthier than the original opinion.

2nd Circuit Withdraws Earlier License Plate Opinion In Light of Supreme Court's Walker Decision

In May in Children First Foundation, Inc. v. Fiala (full text), the U.S. 2nd Circuit Court of Appeals upheld a decision by the New York Department of Motor Vehicles to refuse to issue custom license plates carrying the slogan "Choose Life."  In reaching its conclusion the court held that custom license plates constitute private speech. Subsequently the U.S. Supreme Court in the Walker case held that specialty license plates are government speech. (See prior posting.) Now in Children First Foundation, Inc. v. Fiala, (2d Cir., Aug. 5, 2015), the 2nd Circuit granted a petition for rehearing, withdrew portions of its earlier opinion, vacated the district court's opinion and remanded the case to the district court for further proceedings n light of the Walker decision. New York Law Journal reports on the court's latest action.

2nd Circuit Upholds ACA Contraceptive Mandate Accommodation For Religious Non-Profits

Yesterday the U.S. 2nd Circuit Court of Appeals joined six other Circuits in upholding the Obama Administration’s accommodation for religious non-profits that object to the requirement under the Affordable Care Act to furnish their employees health insurance that includes contraceptive coverage.  In Catholic Health Care System v. Burwell, (2d Cir., Aug. 7, 2015), the court rejected plaintiffs’ RFRA challenges, holding that it must apply an objective test in deciding whether a “substantial burden” has been place on plaintiffs’ religious exercise.  It is not enough that plaintiffs sincerely believe that a substantial burden has been imposed. It is up to the court to determine the magnitude of the burden.  The court said in part:

Plaintiffs ... argue that the objectively insubstantial burden of filing either the opt-out form or the letter to HHS is substantial because it renders them complicit in bringing about consequences forbidden by their religion, namely the provision of contraceptive coverage by the government and third parties. Although third parties ultimately bear the burden of providing contraceptive coverage, Plaintiffs contend that their participation is essential to this coverage…..

When third parties step in and provide contraceptive coverage after Plaintiffs opt out, they do so not because Plaintiffs have opted out, but rather because federal law requires or incentivizes them to provide such coverage. The accommodation functions not as a “trigger,” but rather as a means of identifying and exempting those employers with religious objections. Once Plaintiffs indicate their desire to have no involvement in the provision of contraceptive coverage, the government steps in and acts to ensure contraceptive coverage without any participation by Plaintiffs. Thus, Plaintiffs’ decision to opt out is not the cause of the ultimate 3 contraceptive coverage; rather this coverage happens in spite of them....

Plaintiffs may certainly object to this subsequent action by the government and third parties based on their sincere religious beliefs, and we reiterate that we do not doubt the sincerity or rationality of Plaintiffs’ beliefs. But just because Plaintiffs feel complicit in these third party actions does not mean that the regulations impose a “burden” on their religious practice, much less a burden that is “substantial” under RFRA. While a plaintiff’s “religious views may not accept [the] distinction between individual and governmental conduct,” the law does.

New York Times reports on the decision.

Do State RFRAs Apply To Eminent Domain Proceedings?

The Daily Signal this week reports on a lawsuit in Houston, Texas making innovative use of the state's Religious Freedom Restoration Act to challenge an eminent domain proceeding.  The Houston Housing Authority is seeking to take two empty parcels of land belonging to the Latter Day Deliverance Revival Center as part of an urban renewal project.  The church says it acquired the parcels as part of a future expansion plan for the church, and that it uses the land for ministry activities. The church filed suit arguing that the Housing Authority must meet the compelling interest/ least restrictive means tests of RFRA before it may take the property which the church refuses to sell. Applying RFRA standards would make its acquisition extremely difficult.

11th Circuit Upholds Alabama's Prison Grooming Rules Despite Supreme Court's Remand After Holt v. Hobbs Decision

After the U.S. Supreme Court earlier this year decided Holt v. Hobbs, concluding that RLUIPA invalidated the Arkansas prison system's grooming requirements as applied to a Muslim inmate seeking to grow a one-half inch beard, it remanded for further consideration an Alabama case in which Native American inmates challenged grooming requirements banning their long hair. (See prior posting.) Deciding the case on remand, in Knight v. Thompson, (11th Cir., Aug. 5, 2015), the U.S. 11th Circuit Court of Appeals held that despite Holt, the Alabama grooming requirements are valid. The 11th Circuit distinguished Holt:

While Holt sought to grow a ½-inch beard, such that the Department had to show how denying him a ½-inch beard actually furthered its compelling interests, the Plaintiffs here request a complete exemption of long, unshorn hair from the ADOC’s short-hair policy....

[T]he “detailed record developed” below distinguishes this case from Holt, where the lower courts gave “unquestioning deference” to prison officials’ conclusory and speculative assertions. As we stated in our previous opinion, the ADOC has “shown that Plaintiffs’ requested exemption poses actual security, discipline, hygiene, and safety risks” and neither we nor Plaintiffs can “point to a less restrictive alternative that accomplishes the ADOC’s compelling goals.”

The 11th Circuit reinstated its prior opinion in the case, with modifications in Section 3(b)(ii) of the opinion. (Full text of modified opinion.) AP reports on the decision.

Suit In Israeli Court Charges Administration of Temple Mount Violates Religious Discrimination Ban

Arutz Sheva and JNS reported yesterday on an interesting lawsuit filed this week in Israel in Jerusalem's District Court.  Jewish activist and attorney Baruch Ben-Yosef has sued the Palestinian Authority, Jordan and the Islamic Movement group in Israel, essentially claiming that they are violating Israel's equivalent of a public accommodation law by limiting Jewish access to the Temple Mount.

The suit alleges violation of an Israeli law enacted in 2000 that prohibits operators of public sites from barring admission on the basis of religion, race, nationality, gender or political affiliation. The suit charges defendants with discriminatory practices against Jews on the Temple Mount. Jewish access is limited to certain times, and Jewish prayer on the Mount is banned. The suit charges that inciting of violence on the Temple Mount is aimed at decreasing Jewish visitors.  The suit also challenges Jordan's claim of sovereignty over the Temple Mount in light of Israel's control over the site taken in the 1967 Six Day War. The Temple Mount is currently administered by the  Islamic Waqf that is controlled by Jordan.  However security is handled by Israeli police.

Kentucky County Clerk Files Third-Party Complaint Against Governor In Battle Over Same-Sex Marriage Licenses

As previously reported, in July 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. On Tuesday, Davis responded by filing a third-party complaint in the suit against Kentucky Governor Steven Beshear as well as the state official responsible for marriage license forms.  Her third-party complaint (full text) in Miller v. Davis, (ED KY, filed 8/4/2015) alleges in part:

The Commonwealth of Kentucky, acting through Governor Beshear, has deprived Davis of her religious conscience rights guaranteed by the United States and Kentucky Constitutions and laws, by insisting that Davis issue marriage licenses to same-sex couples contrary to her conscience, based on her sincerely held religious beliefs. Because of Governor Beshear’s open declaration that Davis has no such rights, Governor Beshear has exposed Davis to the Plaintiffs’ underlying lawsuit, in which the Plaintiffs claim a constitutional right to a Kentucky marriage license issued specifically by Davis. Governor Beshear is not only liable to Davis for Plaintiffs’ claims, but is also obligated to effect Kentucky marriage licensing policies that uphold Davis’s rights of religious conscience.

Liberty Counsel issued a press release announcing the filing of the complaint. AP reports on the filing.

Suit Challenges Prof's Firing For Becoming Pregnant Out of Wedlock

A former Assistant Professor of Exercise Science at Northwest Christian University in Eugene, Oregon filed a discrimination suit this week after she was fired for becoming pregnant out of wedlock.  The complaint (full text) in Richardson v. Northwest Christian University, (OR Cir. Ct., filed 8/4/2015), contends that when plaintiff Coty Richardson became pregnant by her partner with whom she has had a 12 year relationship. the University gave her an ultimatum:

she had to either (1) proclaim the pregnancy a mistake and dissociate with the father of her child or (2) marry him immediately and provide proof of their union. Dr. Lindsay [Vice President for Academic Affairs] told Ms. Richardson that having a child out of wedlock while still continuing a relationship with the father was inconsistent with the University’s core values and mission and set a “bad example” for the students. When Ms. Richardson refused the University’s demands and requested privacy in her personal life, she was locked out of the University and her employment was terminated.

Among other things, the suit claims violations of Oregon's ban on employment discrimination on the basis of  pregnancy, gender and marital status. It also claims discrimination on the basis of religion, i.e. her belief that it is appropriate for her, as a Christian, to wait until she and her partner are financially, practically, and emotionally ready for marriage. Wall Street Journal reports on the lawsuit.

9 Federal Agencies Propose Rules On Grants To Faith-Based Organizations

Yesterday nine federal agencies issued Notices of Proposed Rulemaking (NPRMs) to implement many of the recommendations made in 2010 by President Obama's  Advisory Council for Faith-Based and Neighborhood Partnerships. (See prior posting.) In November 2010 President Obama signed Executive Order 13559 approving a number of the recommendations.  Yesterday's actions constitute the next step in assuring that agencies providing grants to faith-based organizations implement these recommendations.  As described by the White House in a blog post from the Office of Faith-based and Neighborhood Partnerships:

The proposed rules clarify the principle that organizations offering explicitly religious activities may not subsidize those activities with direct federal financial assistance and must separate such activities in time or location from programs supported with direct federal financial assistance.  For example, if a faith-based provider offers a Bible study as well as a federally supported job training program, the Bible study must be privately funded and separated in time or location from the job training program. 

The NPRMs also propose new protections for beneficiaries or prospective beneficiaries of social service programs that are supported by direct federal financial assistance.  In the proposed rules, the agencies set forth a notice to beneficiaries and prospective beneficiaries that informs them of these protections.  These notices would make it clear, for example, that beneficiaries may not be discriminated against on the basis of religion or religious belief or be required to participate in any religious activities and advises beneficiaries that they may request an alternative provider if they object to the religious character of their current provider.

At the same time, the NPRMs assure religious providers of their equal ability to compete for government funds and of continuing protections for their religious identity like the ability of providers to use religious terms in their organizational names and to include religious references in mission statements and in other organizational documents. ...

Links to the proposals from each agency can be found at the end of the White House blog post.  Both Americans United and the ADL issued statements welcoming yesterday's developments, but expressed concern that the proposed rules do not bar faith-based groups from hiring on the basis of religion in federally funded programs.

County Will Consider Moving Memorial Containing Ichthus

At its meeting today, the Boone County, Missouri Commission will hear the first reading of a proposal to recommend moving of a monument, now on the county courthouse grounds, to the Columbia City Cemetery to alleviate church-sate concerns. (News Release.) As reported by the Columbia Daily Tribune, the monument, erected with private funds in 1992, is a tribute to two Boone County men killed in Operation Desert Storm. At the bottom of the monument is an Ichthus (Christian fish) symbol.  In 2014, after a complaint about the monument from Americans United, the County Commission ordered the Ichthus symbol covered with a plaque reading "Dedicated in 1992."  Now the County Commission has obtained a lengthy opinion of counsel (full text) concluding that continued location and maintenance with public funds of the memorial on the courthouse grounds would likely be found by a court to violate the Establishment Clause and church-state separation requirements of the Missouri Constitution.  Today's resolution will propose moving the monument and removing the plaque covering the Ichthus symbol. It will also consider a policy on future monuments.

Iowa State School Board Will Consider Challenge To Religious Choral Music In High Schools

At its meeting tomorrow, the Iowa Board of Education will consider the recommendation of an administrative law judge rejecting a family's challenge to the religious nature of music performed by the high school choirs in the New Hampton Community School District.  According to yesterday's Des Moines Register, the parents particularly pointed to the choirs' closing with the hymn In This Very Room which they perform holding hands and encircling the audience. The choirs also conduct a "Church Tour," performing in various churches in the community.  The school board says that a large percentage of choral music that has been written is religious, so it would be difficult to limit choirs to secular pieces. It said the church tours allowed students to experience different acoustics and blending of sounds, and that students did not attend religious services while performing.  The state school board's decision can be appealed to the courts.

Milwaukee Archdiocese Settles Remaining Abuse Claims In Bankruptcy Reorganization

The Archdiocese of Milwaukee announced yesterday that it has reached a collective settlement with survivors of clergy sexual abuse that will permit it to complete its four-and-one-half year old Chapter 11 Bankruptcy Reorganization. Key details of the settlement are set out in a summary posted on the Archdiocese's website. Under the settlement, 330 survivors will share $21 million. In addition a $500,000 therapy fund will be set up. 92 additional claimants whose claims were not substantiated will receive $2000 each. The funds for the settlement will come from various sources, including parishes and insurers.  The Cemetery Perpetual Care Trust whose liability has been the subject of extensive litigation will lend the Archdiocese $3 million; reimburse the Archdiocese for $5 million of past cemetery care expenses; and contribute $8 million to settle all claims against its assets.

Attorneys' fees so far have totaled $18.5 million, with additional fees capped at $1.25 million.  Fox 6 News reports that the settlement will be submitted to the bankruptcy court in an Aug. 24 filing, with a hearing scheduled for Nov. 9.  The article also carries the negative reaction to the settlement by advocates for abuse victims, as well as Archbishop Jerome Listecki's favorable reaction to the settlement.

10th Circuit: Oklahoma's License Plate Design Survives Compelled Speech Challenge

In Cressman v. Thompson, (10th Cir., Aug. 4, 2015), the U.S. 10th Circuit Court of Appeals rejected a compelled speech challenge to Oklahoma's standard vehicle license plates that depict a Native American shooting an arrow towards the sky. Plaintiff claims that the depiction is based on a sculpture derived from a Native American legend, and that, in violation of his Christian beliefs, it teaches there are multiple gods and the arrow is an intermediary for prayer.

Judge Holmes' majority opinion held that even though the U.S. Supreme Court's recent Walker decision held that license plates are government speech, that does not settle the question of whether plaintiff has been compelled to appear to endorse the government's message. He went on:

at bottom, Mr. Cressman’s claim fails because he cannot demonstrate that the Native American image is, in fact, speech to which he objects. At least in the context of its mass reproduction on Oklahoma’s standard vehicle license plate, the Native American image is not an exercise of self-expression entitled to pure-speech protection. The image may constitute symbolic speech, but the only conceivable message a reasonable observer would glean from the license plate is one to which Mr. Cressman emphatically does not object—namely, a message that communicates Oklahoma’s Native American culture and heritage.

Judge McHugh concurring objected to the majority's focus on whether the depiction involved pure speech or symbolic expression. She said in part:

[O]nce it is determined the license plate is speech, the restrictions on the Oklahoma government’s right to compel a private individual to carry its message apply equally, irrespective of whether the individual is compelled to speak through words, actions, symbols, or gestures....

As the majority has explained in detail, Mr. Cressman does not disagree with the message Oklahoma intended to convey with its standard license plate.... And he has directed us to no evidence supporting his assertion that third parties would interpret the graphic as a message promoting pantheism, the message with which he disagrees.

AP reports on the decision.

Federal Disabilities Education Act Does Not Require Plan Tailored To Student's Religious Needs

In M.L. ex rel Leiman v. Starr, (D MD, Aug. 3, 2015), a Maryland federal district court held that the Individuals with Disabilities Education Improvement Act (IDEA) does not require a public school system to take account of a student's religious and cultural needs in designing an individualized education program (IEP) for him. Under 20 USC 1412, federal assistance is available to states that make free appropriate public education available to all children with disabilities.  However, IDEA

does not require a local educational agency to pay for the cost of education ... of a child with a disability at a private school ... if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school....

In this case, the court rejected the claim by an Orthodox rabbi and his wife that a public school system did not make a free appropriate public education available to their Down syndrome son when his IEP was not geared to his religious and cultural identity as an Orthodox Jew.  According to the court, a student's program is to be individualized considering the student's cognitive and developmental capabilities and needs.  It does not need to be "specifically tailored to the religious and cultural enclave in which the student lives."

Egypt Will Close Down Restaurants That Prohibit Women From Wearing Hijabs

According to Egyptian Streets yesterday, Egypt’s Minister of Tourism Khaled Abbas Rami says he will close down any restaurants or tourism facilities that refuse service to women wearing hijabs (Muslim headscarves). Apparently a number of restaurants, bars and high-end resorts have barred veiled women.  Women have increasingly taken to social media to complain about the discrimination.

Sportscaster Sues Fox Sports Claiming Religious Discrimination

Yesterday former NFL player and sportscaster Craig James filed suit in a Texas state court against Fox Sports and various of its affiliates claiming religious discrimination in violation of the Texas Commission on Human Rights Act and breach of contract.  The complaint (redacted full text) in James v. Fox Sports, Inc., (TX Dist. Ct., filed 8/3/2015), claims that James' firing in September 2013, just days after he was hired by Fox, was "due to a short Christianity-focused statement" opposing same-sex marriage on Biblical grounds that he made during a political debate when he ran unsuccessfully for United States Senate some 18 months earlier. Liberty Institute has more information on the case along with links to depositions, the demand letter and media coverage.  According to The Wrap yesterday, Fox Sports issued a statement saying in part:

... Craig James is a polarizing figure in the college sports community and the decision not to use him in our college football coverage was based on the perception that he abused a previous on-air position to further a personal agenda.  The decision had nothing to do with Mr. James’ religious beliefs and we did not discriminate against Mr. James in any way.

James, in 2009 while at ESPN, was involved in a controversy stemming from his comments about the Texas Tech coach Mike Leach's treatment of James' son. (Background.) James resigned from ESPN in Dec. 2011 to run for the U.S. Senate. [This paragraph has been corrected. An earlier more cryptic version gave an incorrect impression.]

Orthodox Jewish Tenants Sue Over Electronic Keys In Building Renovations

The New York Daily News reports on a class action religious discrimination lawsuit filed in federal district court in New York last month by Orthodox Jewish tenants in LeFrak City, a 20-building housing complex in Queens.  The case is Ibragimov v. Lefrak Organization, Inc., (ED NY, filed 7/23/2015).  The Fair Housing Act suit claims that an electronic key system that has been installed in the renovations of the buildings creates Sabbath observance problems. The change means that  Orthodox Jews who will not create or break an electrical circuit on the Sabbath have to wait outside until someone else is entering the building. The lawsuit seeks to require installation of one door in each building that opens with a conventional key and also the installation of a chip that allows an elevator in each building to operate as a Sabbath elevator-- stopping automatically at every floor without riders needing to press buttons.

Court Refuses To Reduce Sentence of Rabbi Convicted of Voyeurism

According to the Washington Post, a D.C Superior Court judge on Friday denied a motion to reduce the six-and-one-half year prison sentence of Barry Freundel, former rabbi of Washington, D.C.'s Kesher Israel Synagogue who plead guilty in May to 52 counts of voyeurism. Freundel's attorneys argued that he should have been sentenced only for one act of videotaping women preparing to use a mikveh, instead of 45 days for each of the 52 incidents. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Armin Steinbach, Burqas and Bans: The Wearing of Religious Symbols Under the European Convention of Human Rights, (Cambridge Journal of International and Comparative Law, Volume 4, Issue 1, 2015).
• Kenneth Einar Himma, Why Religious Freedom Does Not Warrant Protection by a Special Right, ( Kenneth Einar Himma, Miodrag Jovanović, and Bojan Spaic (eds.), Fundamental Rights: Justification and Interpretation (The Hague: Eleven International Publishing) 2015, Forthcoming).
• Sarah Barringer Gordon, The African Supplement: Religion, Race, and Corporate Law in Early National America, (William & Mary Quarterly, Vol. 72, No. 3, Pg. 385, 2015).
• Howard M. Wasserman, Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace, (Northwestern University Law Review Online, Vol. 110, p. 201, 2015).

From SmartCILP:

• J. Benjamin Hurlbut, Religion and Public Reason in the Politics of Biotechnology, 29 Notre Dame Journal of Law, Ethics & Public Policy 423-452 (2015).
• Symposium. The Scholarship and Teaching of Jack Sammons. Remarks by Timothy W. Floyd, Daisy Hurst Floyd, Harold S. Lewis, Jr. and Jack L. Sammons; articles by Gary J. Simson, Timothy W. Floyd, James Boyd White, Joseph Vining, Eugene Garver, Robert Audi, Richard Dawson, Linda H. Edwards, David T. Ritchie, Linda L. Berger, Mark L. Jones and Patrick Emery Longan. 66 Mercer Law Review 265-555 (2015).

IRS Commissioner Says No Non-Profit Revocations In His Term For Colleges That Oppose Gay Marriage

At a July 29 hearing conducted by the Senate Judiciary Committee's Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts (video and testimony at hearing), Sen. Mike Lee (R-UT) had a lengthy exchange with IRS Commissioner John Koskinen over whether the IRS would revoke the tax-exempt status of Christian colleges and universities that remain opposed to same-sex marriage.  According to the Christian Post, Koskinen pledged:

that he will commit to making sure that the IRS does not punish religious schools for not adopting policies to accommodate gay marriage — such as allowing married same-sex couples to live in married student housing — as long as he is in charge of the IRS..... However, Koskinen did leave the door wide open for tax-exempt statuses to be a problem for Christian schools in the future....

All we do is follow whatever the public policy is that is set by other organizations," Koskinen argued. "At this point other actions would have to take place before the IRS can consider issuing a regulation, which would give people notices to what we think the public policy was and then cases and exams would be conducted under that.

[Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Shaw v. Toole, 2015 U.S. Dist. LEXIS 97667 (SD GA, July 27, 2015), a Georgia federal magistrate judge recommended that a Muslim inmate's complaint that he was denied a vegan diet be dismissed without prejudice for failure to exhaust administrative remedies before filing suit. UPDATE: The magistrate's recommendation was adopted by the court at 2015 U.S. Dist. LEXIS 111856 (Aug. 24, 2015).

In Sokolsky v. California, 2015 U.S. Dist. LEXIS 97738 (ED CA, July 25, 2015), a California federal magistrate judge held that a Jewish civil detainee held as a sexually violent predator can proceed on his complaint against certain defendants regarding the lack of kosher food and religious discrimination if he files an amended complaint or notifies the court that he is willing to proceed on his cognizable claims. UPDATE: The court ordered the case to proceed on the cognizable claims at 2015 U.S. Dist. LEXIS 122292, Sept. 12, 2015.

In Pickering v. California Department of Corrections, 2015 U.S. Dist. LEXIS 99137 (ED CA, July 28, 2015), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that the Astru/Odinic religious group was not treated equally with other religious groups.

In Berry v. Hershberger, 2015 U.S. Dist. LEXIS 99327 (D MD, July 30, 2015), a Maryland federal district court dismissed a Muslim inmate's complaint that he was not permitted to participate in the Ramadan fast, and was denied access to religious articles, based on his status as a pretrial detainee.

In Washington v. Ohio Department of Rehabilitation & Corrections, 2015 Ohio Misc. LEXIS 79 (OH Ct. Cl., July 14, 2015), the Ohio Court of Claims held that it does not have jurisdiction over an inmate's complaint that he was denied halal/ kosher food.

In Williams v. Delaware, 2015 U.S. Dist. LEXIS 99927 (D DE, July 30, 2015), a Delaware federal district court dismissed plaintiff's complaint that while held for four days before posting bond-- a period during Ramadan-- he was not permitted to fast.

Russian Culture Ministry Takes Over Crimean Historic Religious Site

AP reports that Russia's President Vladimir Putin today placed an important archaeological site in the Crimea under control of the Russian Culture Ministry.  The site, the ancient city of Chersonesus, is near Sevastopol, the main port city in the Crimea which Russia annexed from Ukraine last year. Chersonesus is important as the place where the Kievan Rus ruler, Prince Vladimir, was baptized in 988 before bringing Christianity to the region.  Putin's move comes after the Governor of Sevastopol was widely criticized for his decision last month to appoint a Russian Orthodox priest as director of the Chersonesus museum.  The priest was seen as lacking the education and experience for the position, and Sevastopol's governor was mocked on Russian social media for his explanation that "religion has always dealt with science."

Report on Tax Implications of Same-Sex Marriage

On July 30, the Congressional Research Service issued a report titled The Federal Tax Treatment of Married Same-Sex Couples. The report details the various tax code provisions that will lead to tax differences between filing as two single taxpayers and filing as a married couple.  The report concluded that while for some same-sex couples, federal recognition of their marriage will lead to lower taxes, for other it will lead to taxes higher than if filing as two single individuals. Several studies have reached different estimates on the overall impact on tax revenues.

Sixth Cert. Petition On Contraceptive Coverage Accommodation For Religious Non-Profits Filed

Last week yet another petition for certiorari was filed with the U.S. Supreme Court in a case challenging the government's accommodation for religious non-profits who object to the Affordable Care Act's required contraceptive coverage.  This is the sixth certiorari petition raising the issue that has been filed. (Becket Fund's tabulation of cases.)  This petition (full text) was in Southern Nazarene University v. Burwell.  In the case, the 10th Circuit (in an opinion covering appeals in three cases) upheld the accommodation, finding that it does not substantially burden the non-profits' religious exercise. (See prior posting.) [Thanks to Marty Lederman via Religionlaw for the lead.]

Sympathetic Court Nevertheless Rejects Claim That Chimpanzees Are "Persons" Entitled To Habeas Relief

A New York state trial court judge yesterday in a 33-page opinion sympathetic to plaintiffs' claims nevertheless rejected attempts by animal rights activists to obtain a writ of habeas corpus on behalf of two chimpanzees used in scientific studies at State University of New York at Stony Brook.  In Nonhuman Rights Project, Inc. v. Stanley, (NY Cty. Sup. Ct., July 30, 2015), after dealing with a number of procedural and jurisdictional issues, the court moved to the central question in the case: "whether a chimpanzee is a legal person entitled to bring  writ of habeas corpus." The court pointed out that "'legal personhood' is not necessarily synonymous with being human..."  Courts use the legal fiction of personhood to treat corporations as persons. However the court decided it was bound by appellate precedent to reject the claim of personhood here. The opinion concluded:

The similarities between chimpanzees and humans inspire the empathy felt for a beloved pet.  Efforts to extend legal rights to chimpanzees are thus understandable; some day they may even succeed.  Courts, however, are slow to embrace change, and occasionally seem reluctant to engage in broader, more inclusive interpretations of law, if only to the modest extent of affording them greater consideration.  As Justice Kennedy aptly observed in Lawrence v. Texas, albeit in a different context, "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress."... The pace may now be accelerating. (See Obergefell v. Hodges....)

In a press release on the decision, the Nonhuman Rights Project said it will promptly appeal the decision to the Appellate Division.  New York Times reports on the decision.

Judge Acquits Hasidic Rabbi Accused of Sexually Molesting A Boy

In Rockland County, New York yesterday, a state trial court judge, after a bench trial, found Hasidic Rabbi Moshe Taubenfeld not guilty on charges of sexually abusing a minor from 2001 to 2006.  The Lower Hudson Journal News reports that the young man accusing Taubenfeld said that the abuse began when he was 8 years old and contnued until he moved out of the village of New Square at age 13,  The judge said there was reasonable doubt after hearing the evidence in the multi-week trial. But supporters of the boy charge that Judge Rolf Thorsen's decision was political because he owes his recent election to the judiciary to the New Square Hasidic community.  The defendant, father of 20, is well respected tutor and marriage counselor in the New Square community; his wife and a young daughter were killed in a terrorist attack on a bus in Israel.

Inspector General Issues Report On Protection of Conscience Rights In the Military

Last week (July 22), the U.S. Department of Defense Inspector General issued a report on Rights of Conscience Protections for Armed Forces Service Members and Their Chaplains.  The 2014 Defense Authorization Act called for the report, which was to focus on the extent to which the Armed Forces are complying with regulations designed to protect the conscience, moral principles and religious beliefs of members of the military and military chaplains.  In a posting earlier this week, God and Country Blog is critical of the report for looking too narrowly at issues regarding negative consequences short of formal reprimands flowing from religious expression.

Religious Order Sued By Two Victims For Sex Abuse From 35 Years Ago

As reported in a press release on Tuesday from Jeff Anderson & Associates, two new clergy abuse lawsuits were filed this week in state court in Minnesota:

Civil lawsuits were filed today by two men who were sexually abused as minors by clergy at Crosier Seminary in Onamia, Minn. Doe 51 and Doe 56 were molested by multiple priests and brothers of the Canons Regular of the Order of the Holy Cross (“Crosier”) religious order. Several of the clergy named in the complaints also interacted with and sexually abused children throughout Minnesota, including at parishes and schools in the Archdiocese of St. Paul and Minneapolis, and the Diocese of St. Cloud.

Doe 51 was sexually abused from approximately 1979-81 by Father Gerald Funcheon, Brother Gabriel Guerrero and Brother Roman Fleischhacker, when Doe 51 was approximately 15-17 years old. Doe 56 was sexually abused in approximately 1979-80 by Funcheon, Brother Wendell Mohs and Father Roger Vaughn, when Doe 56 was approximately 14-15 years old. The perpetrators were assigned to Crosier Seminary at the time they abused Doe 51 and Doe 56, who attended the seminary.

The complaint (full text) in Doe 56 v. Canons Regular of the Order of the Holy Cross and (full text) in Doe 51 v. Canons Regular of the Order of the Holy Cross, (MN Dist. Ct., filed 7/28/2015) charge defendant religious order with negligence, negligent supervision and negligent retention of the offending clergy. The Minnesota Child Victim Act enacted in 2013 extended the statute of limitations in child sex abuse cases, including creating a retroactive 3-year window for victims whose claims were previously barred.

Pennsylvania Court Retroactively Validates Same-Sex Marriage After Death of One Spouse

In what is apparently the first case of its kind, on Wednesday a Bucks County, Pennsylvania trial court retroactively validated a same-sex common law marriage.  As reported by the Doylestown Intelligencer, the decision allows the widowed Dr. Sabrina Maurer to recover spousal survivor benefits under two separate insurance policies, and allows her an inheritance tax refund.  Maurer and Dr. Kimberly Underwood were married in a 2001 Episcopal religious ceremony, even though same-sex marriages were not then recognized in Pennsylvania.  However common law marriages were recognized if they took place before 2005. Underwood died in 2013.  Same-sex marriages became legal in Pennsylvania in 2014.

Consent Decree Bars Religious Activities By Colorado School District

Denver 7 News reports that a consent decree (full text) was filed this week in Basevitz v. Fremont RE-2 School District, (D CO, July 28, 2015).  The lawsuit, filed in May by a high school teacher in the district, claimed that Florence, Colorado High School extensively promotes evangelical Christian activities through arrangements with a church, The Cowboy Church at Crossroads. (See prior posting.)  Under the settlement, school district employees may not in their official capacities engage in religious activities with students; and the district will ban all school-sponsored prayers or other religious expression before school-related captive audiences. Also the school district will ban school sponsorship of religious groups and religious activities, distribution of religious literature by district employees, and school-sponsored prayer request boxes.

CAIR Files Suit Against Gun Store That Declared Itself a "Muslim-Free Zone"

CAIR Florida announced yesterday that it has filed suit in federal district court against a Florida gun store that earlier this month declared itself a "Muslim-free zone." The complaint (full text) in CAIR Florida, Inc. v. Teotwawki Investments, LLC (SD FL, filed 7/29/2015), alleges that the store, Florida Gun Supply, is a place of entertainment and of exhibition and is thus covered by the public accommodation provisions of the 1964 Civil Rights Act.  42 U.S.C. § 2000a bars discrimination on the basis of race, color, religion or national origin in places of public accommodation. According to USA Today, the gun store's attorney says that no Muslim is being discriminated against because of religion, and if anyone is being turned away it is because of public safety.

Meanwhile, as reported by ABC News, on Tuesday an honorably discharged Desert Storm veteran who later became a Muslim traveled from California to Florida to test the gun store's policy by signing up for one of its gun training classes. However he was told by ATF agents that the gun store was closed for the day.

ABA Opens Nominations In This Year's Blawg 100 Competition

The ABA Journal yesterday opened nominations for this year's Blawg 100-- its annual listing of the best legal blogs.  Last year Religion Clause was added by the ABA to the Blawg 100 Hall of Fame and so is not eligible for nomination.  However there are many great legal blogs out there-- so take a minute and go to the ABA's Blawg 100 Amici page to make the case for your favorite.  The winners will appreciate this recognition of the time and energy they devote to keeping you informed.

NY May Require Charities To File Information on Major Donors

In Citizens United v. Schneiderman, (SD NY, July 27, 2015), a New York federal district court held that the New York Attorney General can constitutionally require registered charities to file a copy of their federal Form 990, Schedule B disclosing the names, addresses, and contributions of their major donors in order to solicit funds in the state. According to the court:

On this record, the Court is satisfied that the Schedule B policy bears a substantial relation to the important governmental interests of enforcing charitable solicitation laws and protecting New York residents from illegitimate charities.... In light of the important governmental interests that the Schedule B policy serves, the Court cannot find on this record that it places unjustified burdens on charities' rights of speech and association.

The court also rejected prior restraint and due process arguments. Reuters reports on the decision.  In May, the 9th Circuit reached a similar result. (See prior posting.)

Ten Commandments Challenge Dismissed On Standing Grounds

In Freedom From Religion Foundation, Inc. v. New Kensington-Arnold School District, (WD PA, July 27, 2015), a Pennsylvania federal district court dismissed a challenge to a 6-foot tall Ten Commandments monument on the lawn of a Pennsylvania high school, finding that plaintiffs lacked standing because they have not been injured by the presence of the monument.  They had only a few contacts with it, and there is no evidence that in the future they will be required to visit the high school as part of their ordinary routines. TribLive reports on the decision.  Freedom From Religion Foundation in its press release on the case points out that a companion challenge to a similar monument in Pennsylvania's Connellsville Area School District is still ongoing.

Wheaton College Ends Student Health Insurance In Response To Contraceptive Coverage Rules

Chicago Tribune reported yesterday that Wheaton College has made a last-minute decision to stop offering its students health insurance policies in order to protect its position in ongoing litigation. The College is in the midst of a high-profile challenge to the Obama Administration's rules accommodating non-profits that object to providing insurance coverage for contraceptive services.  Earlier this month, the 7th Circuit denied the college a preliminary injunction (see prior posting). Central to Wheaton's challenge is its argument that the accommodation which allows it to opt out of furnishing coverage directly still requires it to furnish information that triggers the objectionable coverage then being furnished by the insurer to its plan beneficiaries.  Wheaton has now posted a page on its website linking to a nearly hour-long video giving students who had expected to enroll in the student plan information on obtaining health insurance from other sources and announcing financial assistance for students who find their insurance costs increased.

British Judge Says Coroner Must Try To Accommodate Religious Objection To Invasive Autopsy

In Britain yesterday, a High Court judge ruled that a coroner acted improperly in rejecting a request by a Jewish family that a non-invasive alternative to an autopsy (such as a CT scan) be used in determining the cause of death of an 86-year old woman who died in a London hospital shortly after she was admitted.  According to the Jewish Chronicle:

[Justice Mitting] said a non-invasive procedure should be considered when the family requested it on religious grounds if there were a “reasonable possibility” that it could establish the cause of death; if there were “no good reason” to order an invasive autopsy; and if it would not impair the findings of an invasive autopsy should that subsequently prove necessary.

The non-invasive procedure should also be done “without imposing an additional cost burden on the coroner,” the judge said.

The ruling will impact both Jewish and Muslim families.

In India, Sikh Group Plans Suit Against Educational Board Over Dress Code For Test

In India, a Sikh organization (the Shiromani Gurdwara Parbandhak Committee) is planning to file suit against the Central Board of Secondary Education challenging the strict dress code it imposed on those taking the All India Pre-Medical Entrance Test.  As reported yesterday by Sikh24, the dress code was drawn up after India's Supreme Court ordered the test re-administered because some students allegedly used electronic devices to cheat on the original exam. In some test centers, Sikh students were required to remove certain of the five sacred symbols ( Panj Kakaars ) that Sikhs are required to wear. Apparently authorities were concerned that items such as the krirpan  or the kara could conceal electronic devices.

50 Islamic Texts Finally Removed From Russia's Federal List of Extremist Materials

Forum 18 reported yesterday on the difficulty of getting Russian authorities to remove books from the Federal List of Extremist Materials, once they have been placed on the list. In mid-July, Russia's Justice Ministry did delete 50 of the 68 Islamic texts banned by a local court in 2012.  Even after successful appeals, it took authorities at least four months to remove the titles. According to the report:

... 11 of the 50 works are already banned in different editions. Of ten other religious texts removed from the Federal List after difficult and protracted efforts, seven (Muslim and Falun Gong) were soon re-banned. Three Jehovah's Witness brochures removed from the List in 2014 and 2015 have not been re-banned. 

Court Refuses To Dismiss EEOC's Suit Against Meat Plant Alleging Failure To Accommodate Muslim Employees

In Equal Employment Opportunity Commission v. JBS USA, LLC, (D CO, July 17, 2015), a Colorado federal district court refused to dismiss a suit brought by the EEOC charging that a Swift & Co. beef processing plant in Colorado failed to reasonably accommodate Muslim employees' need to leave the production line to pray at or near sundown. A large number of Muslim employees were terminated in 2008 after they and the company could not reach agreement for accommodations during Ramadan. The suit also charged a pattern of retaliation, discriminatory discipline and discharge.The EEOC previously lost a similar suit involving the same company's processing plant in Nebraska. The court held that the EEOC is not collaterally estopped by that case. Moving to the substantive issues, the court concluded that genuine issues of material fact remain both as to the reasonableness of the company's and the EEOC's proposed accommodations and as to whether the EEOC's proposal imposes an undue hardship on the company. Similarly disputes of fact remain as to the EEOC's discrimination and retaliation claims-- including issues of whether a one-time layoff of numerous employees amounts to a pattern or practice of discrimination. An EEOC press release summarizes the decision which is discussed at greater length at Workplace Class Action Blog.

Boy Scouts End Ban on Gay Adult Leaders and Employees, But Allow Church-Sponsored Troops To Refuse Gay Leaders

In a press release yesterday, the Boy Scouts of America announced:

On Monday, July 27, the National Executive Board ratified a resolution that removes the national restriction on openly gay adult leaders and employees. Of those present and voting, 79 percent voted in favor of the resolution. The resolution was recommended for ratification by the Executive Committee earlier this month. The resolution is effective immediately.

Chartered organizations will continue to select their adult leaders and religious chartered organizations may continue to use religious beliefs as criteria for selecting adult leaders, including matters of sexuality. This change allows Scouting’s members and parents to select local units, chartered to organizations with similar beliefs, that best meet the needs of their families. This change also respects the right of religious chartered organizations to choose adult volunteer leaders whose beliefs are consistent with their own.

Religion News Service yesterday reported on the 14-page Legal Memo (full text) that the Scouts received from their outside counsel titled Effect of Changes in Adult Leader Standard on Religious Chartered Organizations. The memo reads in part:

The change in the BSA policy would still allow units chartered by religious organizations that as a matter of religious belief consider homosexual conduct inconsistent with their religion to limit adult leadership in accordance with that belief. Units not chartered by religious organizations could not exclude homosexuals who otherwise meet the BSA’s high adult leader standards and the chartered organization’s standards.

All other leader requirements, including “duty to God,” would remain in effect for all chartered organizations....

We understand that some religious organizations are concerned that if they exclude homosexuals from leadership in Scouting units that they charter after the BSA changes its policy they will be vulnerable to lawsuits from the potential leaders they exclude. Those concerns should be allayed by the legal defenses that religious organizations have under place of public accommodation statutes and the First Amendment to the Constitution of the United States.

 The Boy Scouts removed restrictions on gays becoming scout members in 2013. (See prior posting.)

Federal Prison System Agrees To Recognize Humanism As A Religious Belief

The American Humanist Association announced yesterday that it has entered an Enforceable Settlement Agreement (full text) with the Federal Bureau of Prisons in a suit brought by a federal prisoner in Oregon who sought to form a Humanist study group and have Humanism recognized as his religious affiliation. (See prior related posting.) The settlement agreement, applicable to the entire federal prison system, is summarized by the AHA in its press release:

Under the terms of the enforceable settlement, the Federal Bureau of Prisons will acknowledge humanism as a worldview that deserves the same recognition as theistic religious beliefs. The Manual on Inmate Beliefs and Practices will include a section on humanism, and inmates may identify as humanists for official assignment purposes. The prison will also authorize humanist study groups and permit humanist inmates to annually observe Darwin Day.

North Carolina Supreme Court Upholds School Voucher Program

In Hart v. State of North Carolina, (NC Sup. Ct., July 23, 2015), the North Carolina Supreme Court in a 4-3 decision reversed the trial court and upheld against constitutional attack the state's Opportunity Scholarship Program which offers some low-income students scholarships to attend private schools. The majority held that the state constitutional provision on the state school fund was intended "to protect the 'State school fund' in order to preserve and support the public school system, not to limit the State’s ability to spend on education generally." The provision requiring "a general and uniform system of free public schools" also does not bar the state's voucher program:

The uniformity clause applies exclusively to the public school system and does not prohibit the General Assembly from funding educational initiatives outside of that system.

The majority went on to hold that the appropriations for vouchers satisfy the public purpose requirement, and that taxpayer plaintiffs lack standing to  assert religious discrimination claims on behalf of students. Justices Hudson, Easley and Ervin dissented. AP reports on the decision.

The court also issued a short opinion in a companion case, Richardson v. State, relying on its holding in Hart.

Suit Threatened Over Kentucky Juvenile Prison Rule Limiting Counselors' Statements About Homosexuality

Liberty Counsel is threatening a lawsuit against the Kentucky Department of Juvenile Justice (DJJ) over its policy that provides:

DJJ staff, volunteers, interns, and contractors, in the course of their work, shall not refer to juveniles by using derogatory language in a manner that conveys bias towards or hatred of the LGBTQI community. DJJ staff, volunteers, interns, and contractors shall not imply or tell LGBTQI juveniles that they are abnormal, deviant, sinful, or that they can or should change their sexual orientation or gender identity.

In its press release last Friday, Liberty Counsel indicated that it has sent a demand letter (full text) to DJJ insisting on the reinstatement of a counselor and mentor, Christian pastor David Wells, who apparently had his volunteer prison minister status revoked when he refused to sign a form promising to refrain from telling any juvenile inmates that homosexuality was sinful. The demand letter argues in part:

DJJ 912 violates the First Amendment by prescribing an official state religious “orthodoxy:” now, only a religious belief that homosexuality is not “sinful” may be expressed in DJJ facilities, 

Recent Articles of Interest

From SSRN:

• John R. Morss, The International Legal Status of the Vatican/Holy See Complex, (Forthcoming, European Journal of International Law).
• Rex Ahdar, Solemnisation of Same-Sex Marriage and Religious Freedom, (Ecclesiastical Law Journal / Volume 16 / Issue 03 / September 2014, pp 283 - 305).
• Richard Moon, Conscientious Objections by Civil Servants: The Case of Marriage Commissioners and Same Sex Civil Marriages, (June 30, 2015).
• Stephen D, Sugarman, Is It Unconstitutional to Prohibit Faith-Based Schools from Becoming Charter Schools?, (July 21, 2015).
• Geoffrey Brahm Levey, Secularism as Proto-Multiculturalism: The Case of Australia, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2015/56, July 2015).
• Nadia N. Sawicki, Mandating Disclosure of Religious Limitations on Medical Practice, (Loyola University Chicago School of Law Research Paper No. 2015-016 (July 2015)).
• Harlan Grant Cohen, Zivotofsky II's Two Visions for Foreign Relations Law, (109 AJIL Unbound 10 (2015)).
• C. Christine Fair, Sharia, Piety and Maslak: Support for Sectarian Violence in Pakistan, (July 20, 2015).

Michigan Supreme Court: Wrong Oath For Jurors In Murder Case Does Not Require New Trial

An interesting decision from the Michigan Supreme Court last week illustrates the distance we have moved from the original conception of oaths as invocations of Divine retribution for straying from that which was promised.  In People v. Cain, (MI Sup. Ct., July 23, 2015), the jury in defendant's murder trial were sworn in with the wrong oath, though no one noticed at the time.  The Clerk swore them in using the oath given at voir dire -- to truly answer questions relating to their qualifications to serve as jurors-- instead of the oath to return a true and just verdict based only on the evidence and the judge's instructions. In a 5-2 decision, the majority held that:

the jurors were conscious of the gravity of the task before them and the manner in which that task was to be carried out, the two primary purposes served by the juror’s oath. Thus, we cannot say that the error here of failing to properly swear the jury seriously affected the fairness, integrity, or public reputation of the judicial proceedings.

Justice Viviano (joined by Justice McCormack) dissented, saying in part:

the oath was, and has always been, a defining criterion of “jury.” In light of this deep etymological pedigree, it seems quite implausible that the Framers, who lived in a time in which society placed great emphasis on oaths, intended anything other than a sworn jury when they drafted the Sixth Amendment. 

Recent Prisoner Free Exercise Cases

In Littell v. Kennell, 2015 U.S. Dist. LEXIS 93757 (CD IL, July 20, 2015), an Illinois federal district court held that a Muslim inmate stated a valid First Amendment claim alleging that Muslims were not permitted to congregate for prayer, but because he is no longer held by the Illinois Department of Corrections injunctive relief is not available; only nominal (and possibly punitive) damages are.

In Snodgrass v. Robinson, 2015 U.S. Dist. LEXIS 95026 (WD VA, July 21, 2015), a Virginia federal magistrate judge recommended that a Muslim inmate be permitted to proceed against various defendants on his RLUIPA, free exercise and due process challenges to a policy that denied inmates the right to participate in the Ramadan fast if they had missed more than three consecutive religious services.

In Aragon v. Erlanger, 2015 U.S. Dist. LEXIS 96185 (D CO, July 23, 2015), a Colorado federal magistrate judge recommended that a Messianic Jewish inmate be permitted to proceed against the food services supervisor on his complaint that Passover meals and messianic Jewish diets were prepared without special preparation cleaning of the kitchen area and equipment to meet kosher requirements. A claim against the outside rabbi who advised on kosher standards was dismissed,as was a complaint that Messianic Jews should have been permitted to celebrate Passover on a different date than Jewish inmates.

In Dearwester v. Sacramento County Sheriff's Department, 2015 U.S. Dist. LEXIS 96413 (ED CA, July 22, 2015), a California federal magistrate judge recommended that  plaintiff,a Christian inmate who believed that the New Testament required his eating a kosher diet, be permitted to move forward with his First Amendment damage claim based on denial of kosher meals.

In Blankenship v. Setzer, 2015 U.S. Dist. LEXIS 96871 (WD NC, July 23, 2015), a North Carolina federal district court permitted to proceed on his complaint that he was not allowed to take his Bible with him when he was being transported to court in another county, and that his Bible was confiscated for not having a cover.

NYT Magazine Chronicles Plight of Christians In the Middle East

Today's New York Times Magazine carries a long article, captioned in its online version: Is This the End of Christianity in the Middle East?,with the subtitle: "ISIS and other extremist movements across the region are enslaving, killing and uprooting Christians, with no aid in sight." The article comments:

It has been nearly impossible for two U.S. presidents — Bush, a conservative evangelical; and Obama, a progressive liberal — to address the plight of Christians explicitly for fear of appearing to play into the crusader and ‘‘clash of civilizations’’ narratives the West is accused of embracing. In 2007, when Al Qaeda was kidnapping and killing priests in Mosul, Nina Shea, who was then a U.S. commissioner for religious freedom, says she approached the secretary of state at the time, Condoleezza Rice, who told her the United States didn’t intervene in ‘‘sectarian’’ issues. Rice now says that protecting religious freedom in Iraq was a priority both for her and for the Bush administration. But the targeted violence and mass Christian exodus remained unaddressed. 

Obama Takes Kenya To Task Over Gay Rights; Kenyan President Responds

At a news conference (full text) yesterday on his visit to Kenya, President Obama criticized Kenya for its treatment of gays and lesbians. Kenyan President Kenyatta responded:

PRESIDENT OBAMA: ... Similarly, with respect to the rights of gays and lesbians, I’ve been consistent all across Africa on this.  I believe in the principle of treating people equally under the law, and that they are deserving of equal protection under the law and that the state should not discriminate against people based on their sexual orientation.  And I say that, recognizing that there may be people who have different religious or cultural beliefs.  But the issue is how does the state operate relative to people.  

If you look at the history of countries around the world, when you start treating people differently -- not because of any harm they’re doing anybody, but because they’re different -- that’s the path whereby freedoms begin to erode and bad things happen.  And when a government gets in the habit of treating people differently, those habits can spread.  

And as an African-American in the United States, I am painfully aware of the history of what happens when people are treated differently, under the law, and there were all sorts of rationalizations that were provided by the power structure for decades in the United States for segregation and Jim Crow and slavery, and they were wrong.  

So I’m unequivocal on this.  If somebody is a law-abiding citizen who is going about their business, and working in a job, an obeying the traffic signs -- (laughter) -- and doing all the other things that good citizens are supposed to do, and not harming anybody -- the idea that they are going to be treated differently or abused because of who they love is wrong.

And the state does not need to weigh in on religious doctrine.  The state just has to say we’re going to treat everybody equally under the law.  And then everybody else can have their own opinions....

PRESIDENT KENYATTA: ... With regard to the second question, just like President Obama, I think we also need to be able to speak frankly about some of these things.  And the fact of the matter is that Kenya and the United States, we share so many values -- our common love for democracy, entrepreneurship, value for families.  These are things that we share.  But there are some things that we must admit we don’t share -- our culture, our societies don’t accept.  It is very difficult for us to be able to impose on people that which they themselves do not accept.  

This is why I repeatedly say that, for Kenyans today, the issue of gay rights is really a non-issue.  We want to focus on other areas that are day-to-day living for our people:  The health issues that we have discussed with President Obama.  These are critical.  Issues of ensuring inclusivity of women, a huge section of society that is normally left out of the mainstream of economic development.  What we can do in terms of infrastructure; what we can do in terms of education; in terms of our roads; in terms of giving our people power, encouraging entrepreneurship.  These are the key focuses.  

Maybe once, like you have overcome some of these challenges, we can begin to look at new ones.  But as of now, the fact remains that this issue is not really an issue that is on the foremost mind of Kenyans, and that is the fact.

Homosexual acts between men are punishable by 14 years (and in some cases 21 years) in prison in Kenya. (Background.)

$1M Gift To Emory Will Support Expanded Religious Freedom Education

Emory Law School's Center for the Study of Law and Religion announced last week that it has received an anonymous $1 million gift for a 4-year project called "Restoring Religious Freedom: Education, Outreach, and Good Citizenship," The fund will support internships and externships for students, lectures, conferences and  will begin a new series of publications on law and religion practice guidelines.

Texas Supreme Court OK's Referendum Petitions On Houston's Equal Rights Ordinance

As previously reported, in May 2014 the Houston, Texas City Council passed an Equal Rights Ordinance that attracted significant opposition because of its ban on discrimination on the basis of sexual orientation or gender identity. Opponents circulated petitions to get a repeal referendum on the ballot.  The City Secretary certified that there were sufficient signatures on the petitions, but the City Attorney disputed that conclusion and City Council refused to move ahead with the reconsideration of the Ordinance that is required when a valid referendum petition is filed. (See prior posting.) Litigation ensued in various courts.  In In re Jared Woodfill, et. al.,  (TX Sup. Ct., July 24, 2015), the Texas Supreme Court conditionally granted a writ of mandamus to proponents of the referendum, holding:

The Charter ... gives the City Council no discretion to reevaluate the petition; instead, it requires “immediate[]” action by the City Council following the City Secretary’s certification....

The City Council is directed to comply with its duties, as specified in the City Charter, that arise when the City Secretary certifies that a referendum petition has a sufficient number of valid signatures. Any enforcement of the ordinance shall be suspended, and the City Council shall reconsider the ordinance. If the City Council does not repeal the ordinance byAugust 24, 2015, then by that date the City Council must order that the ordinance be put to popular vote during the November 2015 election. The writ will issue only if the City Council does not comply.

Josh Blackman's Blog has more on the decision, as does the Houston Chronicle.

Indiana Deputy Clerk, Fired For Refusing To Issue Same-Sex Marriage Licences, Sues [UPDATED]

Linda Summers, a former deputy clerk in the Harrison County, Indiana Superior Court Clerk's Office, last week filed a federal court lawsuit alleging violation of her First Amendment free exercise rights. religious discrimination in employment.  The Louisville Courier Journal reports that after the U.S. Supreme Court denied review of a case from Indiana upholding marriage equality, County Clerk Sally Whitis sent an e-mail to all employees telling them that even if it conflicted with their religious beliefs, they were required to process licenses for same-sex couples. Summers responded with a hand-delivered letter asking that she not be required to do so based on her religious beliefs.  She was fired for insubordination. The lawsuit seeks damages and a change in employment practices.

UPDATE: Despite the Courier Journal's quote from plaintiff's counsel that the lawsuit is "just a generic First Amendment free exercise case", now that I have a copy of the complaint it appears that the suit is based on Title VII of the 1964 Civil Rights Act.  Here is the full text of the complaint in Summers v. Whitis, (SD IN, (filed 7/17/2015).  [Thanks to Greg Lipper for the copy of the complaint.]

Cert. Petition Filed In Challenge To Non-Profit Contraceptive Coverage Accommodataion

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Little Sisters of the Poor Home for the Aged, Denver Colorado v. Burwell.  In the case, the U.S. 10th Circuit Court of Appeals upheld against RFRA and constitutional challenges the Obama Administration's Affordable Care Act accommodation for religious non-profits that object to furnishing contraceptive coverage. (See prior posting.) Becket Fund issued a press release announcing the filing of the petition for review.

Satanic Temple Chooses Detroit To Unveil Statue Aimed At Oklahoma or Arkansas Statehouse Lawns

The Detroit News reports that The Satanic Temple has chosen Detroit as the site to unveil its 9-foot tall bronze statute of the goat headed Baphomet-- a statue that it hopes to place next to an existing Ten Commandments monument on the Oklahoma state capitol grounds in Oklahoma City, or next to one on the Arkansas state capitol grounds in Little Rock.  The original plans for the Oklahoma location have become less certain after the Oklahoma Supreme Court earlier this month ruled that the Ten Commandments monument must be removed. (See prior posting.)  According to an interview with a Satanic Temple leader published in Wednesday's Detroit Metro Times, Detroit was chosen for the unveiling of the $100,000 sculpture because the city has a strong local chapter and is the location of The Satanic Temple's first chapter house.

Plans for the unveiling, however, have faced difficulties. The owner of the space in Detroit's Eastern Market district where the unveiling was originally planned backed out after a campaign against the statute by the pastor of Detroit's St. Matthew Baptist Church. Salon Magazine discusses at length the threats to destroy the statue posted on Facebook. So now the unveiling is scheduled for tomorrow at a location that will be revealed only to ticket holders through e-mail on the day of the event. The Satanic Temple's website-- though which tickets may be purchased-- extends an invitation reading in part:

The Satanic Temple invites you to join us for a night of chaos, noise, and debauchery at The Unveiling, a hedonistic celebration introducing the controversial Baphomet monument accompanied by provocative performances and installations.

Never before seen in public, The Satanic Temple Baphomet monument is already the most controversial and politically charged contemporary work of art in the world.... The event will serve as a call-to-arms from which we’ll kick off our largest fight to date in the name of individual rights to free exercise against self-serving theocrats.

9th Circuit Rejects Free Exercise Challenge By Pharmacies To Required Filling of Emergency Contraception RX

In Stormans, Inc. v. Wiesman, (9th Cir., July 23, 2015), the U.S. 9th Circuit Court of Appeals upheld against constitutional challenge rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require a pharmacy to deliver all prescription medications, even if the owner of the pharmacy has a religious objection. An individual pharmacist with religious objections may refuse to fill the prescription if another pharmacist working for the pharmacy does so.

The court held that these rules are both facially and operationally neutral, and are generally applicable, so that  heightened scrutiny need not be applied to plaintiffs' free exercise challenge:

The possibility that pharmacies whose owners object to the distribution of emergency contraception for religious reasons may be burdened disproportionately does not undermine the rules’ neutrality.

The court also rejected plaintiffs' substantive due process challenge, rejecting the argument that there is a fundamental liberty interest in owning, operating or working at a licensed professional business free from regulations requiring activities that one sincerely believes lead to the taking of human life. Alliance Defense Fund immediately announced that it would appeal the court's decision. The Olympian reports on the 9th Circuit's decision.

European Court Holds Italy Gives Inadequate Protection To Same-Sex Couples

In a Chamber judgment in Oliari and Others v. Italy, (ECHR, July 21, 2015), the European Court of Human Rights in a Chamber judgment awarded damages to three same-sex couples whose relationships were not adequately protected by Italian law.  While the award was unanimous, 3 concurring judges thought that the case could be decided on narrower grounds than did the 4-judge majority opinion.  The Court's press release describes the majority opinion in part as follows:

In previous cases, the Court had already found that the relationship of a cohabitating same-sex couple living in a stable de facto partnership fell within the notion of “family life” within the meaning of Article 8. It had also acknowledged that same-sex couples were in need of legal recognition and protection of their relationship....

The Court considered that the legal protection currently available in Italy to same-sex couples ... not only failed to provide for the core needs relevant to a couple in a stable committed relationship, but it was also not sufficiently reliable. Where registration of same-sex unions with the local authorities was possible – only in a small share of municipalities in Italy – this had merely symbolic value, as it did not confer any rights on same-sex couples. 

As regards the possibility, since December 2013, to enter into “cohabitation agreements”, such contracts were limited in scope. They failed to provide for some basic needs ... such as mutual material support, maintenance obligations and inheritance rights. The fact that cohabitation agreements were open to any set of people who were cohabiting, such as friends, flatmates or carers, showed that those agreements did not primarily aim to protect couples. Furthermore, such a contract required the couple concerned to be cohabiting, whereas the Court had already accepted that the existence of a stable union between partners was independent of cohabitation, given that many couples – whether married or in a registered partnership – experienced periods during which they conducted their relationship at long distance, for example for professional reasons.

Among the authorities cited by the majority was the U.S. Supreme Court's recent Obergefell decision. A Chamber judgment may be appealed to the Grand Chamber. Frontiers Media reporting on the decision points out that Italy is the only major Western European country that does not provide either civil partnerships or same-sex marriage.

Anti-Proselytizing Provision In Nepal Draft Constitution Creates Controversy

Reuters reports that on June 30, the government of Nepal released a preliminary draft of its first republican constitution. A new constitution was called for in a 2006 peace agreement with Maoist rebels that ended a 10-year civil war, but the process for producing and approving it has remained controversial. Yesterday's Christianity Daily reports that Christians and Muslims in the largely Hindu country are critical of a provision in the proposed new charter that prohibits religious proselytizing.  The draft provides:

No one shall behave, act, or undertake activities that breach public order or break public peace/peace in the community; and no one shall attempt to change or convert someone from one religion to another, or disturb/jeopardise the religion of others, and such acts/activities shall be punishable by law.

The provision responds in part to charges by the pro-Hindu Rastriya Prajatantra Party-Nepal that Christians have engaged in mass forced conversions.

Sale of Mt. Soledad Memorial Site To Private Organization Completed

The  Mt. Soledad Memorial Association announced this week that it has completed the purchase from the Defense Department of the half-acre parcel on Mt. Soledad in La Jolla, California, on which the Mt. Soledad Veterans Memorial is located. It said in part:

The sales price was $1.4 million with the all-cash transaction completed on Friday, July 17. It follows the passage of the National Defense Authorization Act of 2015, signed into law by Congress and signed by the President of the United States in December 2014, calling for the sale of the property by the federal government to the Association.

The sale apparently ends the dispute-- in litigation for over 25 years-- over the constitutionality of the 43 foot high cross that is the centerpiece of the memorial.

UAE's New Law Bars Discrimination, Hate Speech and Insulting of Religion

The National reports that on Monday the United Arab Emirates adopted the Anti-Discriminatory Law which prohibits discrimination on the basis of religion, caste, creed, doctrine, race, color or ethnic origin. The new law also bans actions that promote religious hatred or insult God, his prophets or apostles or holy books or houses of worship or graveyards. It prohibits hate speech or the promotion of discrimination or violence against others using any form of media.

White House Honors Climate Faith Leaders

RNS reports that on Monday the White House honored 12 "Climate Faith Leaders" as part of its Champions of Change program. The White House website highlights the accomplishments of the twelve leaders-- Christian, Jewish, Muslim and Hindu-- in the environmental area.

9th Circuit: Indian Tribe's Challenge To California Geothermal Leases Can Proceed

In Pit River Tribe v. Bureau of Land Management, (9th Cir., July 20, 2015), the U.S. 9th Circuit Court of Appeals reversed the district court's dismissal of an Indian tribe's challenge to the Bureau of Land Management's extension of 26 unproven geothermal leases in northeastern California’s Medicine Lake Highlands. Several environmental groups were also plaintiffs.  The Pit River Tribe contends that development on geothermal leases will interfere with its members use of the area for spiritual and traditional cultural purposes. The Court held that plaintiffs' claims include a challenge under a provision of the Geothermal Steam Act that requires the BLM to conduct environmental, historical, and cultural review under the National Environmental Policy Act and the National Historic Preservation Act. Sacramento Bee reports on the decision.

Plaintiff Entitled To Accommodation From Affordable Care Act's Hyde Amendment Arrangement

In Howe v. Burwell, (D VT, July 20, 2015), a Vermont federal district court dealt with yet another permutation of religious objections to provisions in the Affordable Care Act.  Under the ACA, health insurers which offer policies through state exchanges may, but are not required to, cover abortion services.  If they do, in order to comply with the Hyde amendment that bars use of federal funds to pay for abortions, the insurance company is required to segregate at least $1 per month of the premium paid by each individual and use those funds to pay for abortion services. All policies offered through the Vermont exchange have this arrangement for abortion services which plaintiff claims, among other things, violates his free exercise rights under RFRA. He objects on religious grounds to funds he is required to pay in as a premium being used to pay for others' abortions.

The court held that most of plaintiff's RFRA claims against the federal government arise out of decisions third parties, such as private insurance companies, have made. However the federal government could accommodate plaintiff by refraining from enforcement actions against any insurance company that agrees not to comply with the segregation requirement for the policy offered to plaintiff. The court went on:

The Federal Defendants have already agreed not to enforce the segregation requirement against any third party health insurer willing to offer Plaintiff health insurance coverage. Notwithstanding that agreement, because the Federal Defendants have not offered this as an accommodation under RFRA on a permanent basis, Plaintiff retains standing to request it in the form of declaratory relief. ...

Plaintiffs request for a declaratory judgment that he is entitled to non-enforcement of the segregation requirement (and the separate payment) is therefore sufficiently plausible to avoid dismissal at this stage in the proceedings.