Recent Prisoner Free Exercise Cases

In Brinkman v. Linderman, (9th Cir., Sept. 3, 2015), the 9th Circuit affirmed an Arizona district court's dismissal of complaints by an inmate that he was denied a private worship area and ceremonial foods and was not allowed to use an open flame during certain religious ceremonies.

In Atkins v. Maryland Division of Correction, 2015 U.S. Dist. LEXIS 114932, (D MD, Aug. 24, 2015), a Maryland federal district court permitted an inmate to proceed with his RLUIPA claim for declaratory relief and his free exercise claim against the chaplain for denying him kosher meals for 29 months.

In Twigg v. PrimeCare Medical, Inc., 2015 U.S. Dist. LEXIS 115169 (MD PA, Aug. 31, 2015), a Pennsylvania federal district court dismissed an inmate's claim that inadequate medical treatment violated not just his 8th Amendment rights, but also his free exercise rights when gastrointestinal pain made it impossible for him to attend religious services.

In Clay v. Livingston, 2015 U.S. Dist. LEXIS 115702 (ND CA, Aug. 31, 2015), a California federal magistrate judge dismissed a complaint by a Muslim inmate who wanted lunch each day in addition to the Ramadan menu.  For the first 9 days he was not provided lunch.

In Frazier v. June, 2015 U.S. Dist. LEXIS 116699 (D SC, Sept. 2, 2015), a South Carolina federal district court permitted an inmate to move ahead with his claim that his free exercise rights were infringed when his Bible was confiscated because of a limit on the number of books an inmate may have in his cell.

In Moon v. Samuels, 2015 U.S. Dist. LEXIS 117092 (SD IL, Sept. 2, 2015), an Illinois federal district court permitted a Muslim inmate to move ahead with his complaint that prison officials prohibited Muslim prisoners from engaging in group prayer, while permitting inmates of other faiths to do so.

In Moon v. Walton, 2015 U.S. Dist. LEXIS 117660 (SD IL, Sept. 3, 2015), an Illinois federal district court allowed a Muslim inmate to move ahead with his complaint that prison policy barred Muslim inmates from rolling up or cuffing the legs of their pants as called for by Muslim doctrine.

NY Education Commissioner Grants Religious Exemption From MMR Vaccination Requirement

In Appeal of N.C., (NYSED, Aug. 3, 2015), the New York Commissioner of Education granted a religious exemption from the public school immunization requirement to the son of a woman who had developed religious objections after her son had all of his immunizations except his second dose of the MMR vaccine.  The mother is an immigrant and a member of the Russian Orthodox Church. Her religious objections were formed after a conversation with a friend and research "on a few Bible and Christian blogs."  The Commissioner described petitioner's objections as follows:

Petitioner states that “our fate is in the hands of our Lord, even if He decides that we should have a flu or measles.”  She further states that “mortality is, and should be, in God’s hands” and thus “vaccination intercedes upon God’s rightful realm, as if being in God’s care alone is not assurance enough for us.”  In addition, petitioner states that she objects to vaccinations because they “contain cells of animal origin” which is counter to religious teachings that “blood [is] sacred” and should not be mixed “with foreign blood or any other impure matters.”  Petitioner further states that the “final straw” is that “a number of vaccines contain cells from aborted fetuses” and “abortion is clearly considered a mortal sin and is [an] abhorrent act to any Christian.”

Specifically petitioner alleged that "the MMR vaccine, the only vaccine at issue in this case, does contain human diploid cells that use aborted fetal cell lines."

The Commissioner held:

Based on the record before me, I conclude that the weight of the evidence supports petitioner's contentions that her opposition to the MMR vaccine stems from sincerely held religious beliefs.

New York Post last week reported on the decision.

7th Circuit Again Upholds Contraceptive Mandate Accommodation For Religious Non-Profits

In Grace Schools v. Burwell, (7th Cir., Sept. 4, 2015), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, rejected a RFRA challenge to the Obama administration's accommodation under the Affordable Care Act for religious non-profits that object to furnishing contraceptive coverage under their health insurance policies. The majority, relying to a large extent on the Circuit's recent decisions in Notre Dame and in Wheaton College, held that the accommodation does not impose a substantial burden on the free exercise rights of various Indiana-based Catholic non-profit charitable, educational and health care institutions.  The majority said in part:

The accommodation does not serve as a trigger or a conduit for the provision of contraceptive services.... It is the operation of federal law, not any actions that the plaintiffs must take, that causes the provisions of services that the plaintiffs find morally objectionable. The accommodation has the legal effect of removing from objectors any connection to the provision of contraceptive services. As we noted above, every other circuit court to consider the issue of whether the mandate imposes a substantial burden on religious exercise has come to the same conclusion.

However the majority maintained the district court's injunction in the case for 60 days to give the district court time to consider certain other arguments raised by plaintiffs.

Judge Manion dissented, saying in part:

The HHS accommodation is the long and winding extension cord the government uses to power its contraceptive mandate. It winds through regulations and additions and revisions. The court, through a perfunctory examination, interprets the accommodation’s twisted framework and holds that it frees the religious nonprofits from having to power the mandate themselves and, thus, does not violate the RFRA. The court is wrong: A thorough examination reveals that the accommodation’s tangled mess is hiding the fact that the extension cord gets its power from the nonprofits’ health plans and must be plugged in before it will work. It also exposes the fact that the government is forcing the nonprofits to plug in the accommodation themselves by signing the self‐certification or providing the alternative notice.

Tennessee Judge Says Obergefell Ended State Jurisdiction Over Contested Divorces

A Tennessee Chancery Court Judge, in what can only be described as a fit of judicial pique, last week used a divorce case in which he had substantial doubt about the parties' credibility to launch a verbal attack on the U.S. Supreme Court's same-sex marriage decision and develop a rather far-fetched theory of the decision's impact.  In Bumgardner v. Bumgardner, (TN Chan., Aug. 31, 2015), the court said in part:

With the U.S. Supreme Court having defined what must be recognized as a marriage, it would appear that Tennessee' s judiciary must now await the decision of the U. S. Supreme Court as to what is not a marriage, or better stated, when a marriage is no longer a marriage. The majority' s opinion in Obergefell, regardless of its patronizing and condescending verbiage, is now the law of the land....

Thus, it appears there may now be, at minimum ... concurrent jurisdiction between the state and federal courts with regard to marriage/divorce litigation. Perhaps even more troubling, however, is that there may also now be a new or enhanced field of jurisprudence— federal preemption by " judicial fiat." ...

[R]egardless of the states' traditional regulation of the area of marriage and divorce..., what actually appears to be the intent and ( more importantly) the effect of the Supreme Court ruling is to preempt state courts from addressing marriage/ divorce litigation altogether. ...

The conclusion reached by this Court is that Tennesseans, corporately, have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/ central institutions such as marriage and, thereby, at minimum, contested divorces. Consequently, since only our federal courts are wise enough to address the issues of marriage— and therefore contested divorces— it only follows that this Court' s jurisdiction has been preempted. ...

Although this Court has some vague familiarity with the governmental theories of democracy, republicanism, socialism, communism, fascism, theocracy, and even despotism, implementation of this apparently new "super -federal -judicial" form of benign and benevolent government, termed " krytocracy" by some and " judi-idiocracy" by others, with its iron fist and limp wrist, represents quite a challenge for a state level trial court. In any event, it should be noted that the victory of personal rights and liberty over the intrusion of state government provided by the majority opinion in Obergefell is held by this Court only to have divested subject matter jurisdiction from this Court when a divorce is contested.

Huffington Post reports on the decision.

10th Circuit Denies En Banc Review, Over 5 Dissents, In Contraceptive Mandate Case

As previously reported, in July, without seeking en banc review, a petition for certiorari was filed with the U.S. Supreme Court for review of the 10th Circuit's panel decision upholding application of the Obama Administration's Affordable Care Act accommodation for religious non-profits to Little Sisters of the Poor. Nevertheless, 10th Circuit judges sua sponte called for a vote on whether the panel decision should be reviewed en banc. In Little Sisters of the Poor Home for the Aged v. Burwell, (10th Cir., Sept. 3, 2015), a majority of the judges voted to deny a rehearing, but 5 judges filed a dissent to the denial. Judge Hartz's dissent, joined by Judges Kelly, Tymkovich, Gorsuch and Holmes, calls the 3-judge panel's decision "clearly and gravely wrong." The dissenters say in part:

the panel majority may be saying that it is the court’s prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a “derivative” religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty.

Christian Post reports on the court's decision.

Oregon Judge Creates Legal Defense Fund After Refusal To Perform Same-Sex Marriages

In Marion County, Oregon, Circuit Judge Vance Day, former chairman of the state Republican Party, has apparently decided for religious reasons not to perform same-sex marriage ceremonies.  This has led to inquiries by the Oregon Commission on Judicial Fitness and Disability as to whether Day has violated the Oregon Code of Judicial Conduct or the Oregon Constitution.  The Oregonian reports that yesterday the Oregon Government Ethics Commission voted unanimously to approve Day's request to establish a legal defense fund in connection with these inquiries.

No Damage Remedy Available To Muslims Placed On No-Fly List For Retaliatory Reasons

In Tanvir v. Lynch, (SD NY, Sept. 3, 2015), Muslim plaintiffs sued claiming that when they refused to become FBI informants, partly because doing so would violate their religious beliefs, the government retaliated by placing them on the No-Fly List.  Subsequently they were removed from the list, but continued to pursue claims for damages.  The court held that it will not extend a Bivens  damage remedy to this new context, and that RFRA does not provide for money damages against federal officers in their personal capacities. The Center for Constitutional Rights issued a press release reacting to the decision.

Constable Applicant Can Sue Over Religious and Ideological Questions In Job Interview

In Texas, County Constable is an elected position, but where a sitting Constable resigns more than a year before the next scheduled election county commissioners may appoint a new constable to serve until the next election.  In Lloyd v. Birkman, (WD TX, Sept. 2, 2015), a Texas federal district court in a 106-page opinion held that one of the unsuccessful candidates for appointment as County Constable in Williamson County, Texas could pursue various claims against the county and individual commissioners because of the questions asked during the interview process for the position. According to the court:

During the interviews, the candidates received questions on their positions on abortion and same-sex marriage, their political affiliations, the churches that they attended, and their political ideology.

While dismissing some of plaintiff's claims, the court permitted plaintiff to move ahead with his claim that the County committed an unlawful employment practice under Title VII and Texas Commission on Human Rights Act by refusing to hire him because of his religious association, moral views, and ethical beliefs. The court held that the "elected official" exemption does not apply. The court also permitted plaintiff to move ahead against the county and individual defendants on his First Amendment retaliation, freedom of expression and association claims; his 14th Amendment Equal Protection claims; and Texas Constitutional claims. The court rejected plaintiff's violation of privacy claims.

Suit Seeks Halal Meals In Florida Jails

Yesterday in Florida, the ACLU and CAIR filed a class action lawsuit seeking to require Miami-Dade County jails to serve Halal meals to Muslim inmates. (ACLU press release). The complaint (full text) in CAIR Florida, Inc. v. Miami-Dade County, (SD FL, filed 9/3/2015), contends that denying Halal meals to Muslim inmates while furnishing kosher meals to Jewish inmates violates RLUIPA, and the free exercise and equal protection clauses of the U.S. and Florida constitutions. Prior to October 2014, Muslim inmates could obtain the kosher diet; since then they are required to eat the from the general population menu. Miami Herald reports on the lawsuit.

Recalcitrant Kentucky County Clerk Jailed For Contempt; Deputies Will Issue Marriage Licenses

In Ashland, Kentucky today, federal district judge David Bunning ordered Rowan County Clerk Kim Davis to be remanded to the custody of U.S. Marshals after she told the court that her religious objections to same-sex marriage prevent her from complying with the court's preliminary injunction ordering her to end her office's refusal to issue marriage licences. (See prior posting.)  According to the ACLU, the court also granted its motion and clarified that the preliminary injunction requires Davis' office to issue marriage licenses to all eligible couples in Rowan County, and not just to the four couples named as plaintiffs in the case.  [UPDATE: Full text of order.] The Lexington Herald-Leader reports on what happened then:

After U.S. marshals took Davis into custody, where she is expected to remain until she agrees to comply with Bunning's order, the judge ordered her six deputy clerks to stand and tell him if they would comply with his order to issue marriage licenses, at the risk of facing their own contempt penalties.

All but one of the deputies — Nathan Davis, Kim Davis' son — said they would obey the judge, some more reluctantly than others..... Bunning said he would not hold the younger Davis in contempt since the rest of his colleagues are willing to obey the law.

So on Friday, the Rowan County clerk's office is set to open without its clerk, for the first time recognizing the Supreme Court's landmark gay marriage decision....

Later in the day, after Bunning established that five of Davis' deputy clerks were willing to issue marriage licenses, Davis' lawyers asked the judge to reconsider sending her to jail. If the people of Rowan County can get a marriage license from the clerk's office, even if it's over Davis' objections, then surely the judge's order is satisfied, the lawyers said.

But Davis scotched that effort by informing Bunning, from a courthouse holding cell, that she would not agree to let her deputies obey the judge's order if she is released. With a shrug, Bunning said Davis will remain incarcerated for at least a week, until he can review how her office operates in her absence. She was taken to the Carter County jail but can free herself by agreeing to comply with his order, Bunning said.

Davis' lawyers released a statement today, saying in part:

All [Davis] asks is to be true to God and her conscience. And the tragedy is that there are simple ways to accommodate her convictions. Just remove her name from the marriage licenses. That’s all she has asked from the beginning. Today’s events will escalate this debate to a new level. This is not the kind of America the Founders envisioned or that most Americans want.”

According to the Louisville Courier-Journal, there remains a question of whether licenses issued by deputy clerks are legally valid under Kentucky law if issued without Davis' consent. Judge Bunning said that couples would need to assess that risk on their own.

EEOC Complaint Alleges Failure To Accommodate Muslim Flight Attendant

According to Michigan Radio, a complaint was filed this week with the EEOC by  Charee Stanley, a Muslim flight attendant now on unpaid leave from ExpressJet.  When Stanley converted to Islam two years ago, she arranged for fellow flight attendants to serve alcohol on her behalf.  However last month another employee filed a complaint that this arrangement required the employee to perform extra work. This led to the airline placing Stanley on leave. The same person allegedly made comments to Stanley about her head covering and expressed anti-Muslim sentiments to her. Stanley seeks reasonable accommodation of her religious beliefs.

Case Again Examines NLRB Jurisdiction Over Religious Colleges

Last year in the Pacific Lutheran University case, the National Labor Relations Board developed a new test for when it will assert jurisdiction over a religiously-affiliated college. Even if the college holds itself out as providing a religious educational environment, the NLRB will assert jurisdiction unless the faculty members seeking to organize are themselves held out as performing a specific role in maintaining the college's religious character. (See prior posting.) Last March, applying that test, an NLRB Regional Director held that it had jurisdiction over a faculty union election at Seattle University. (See prior posting.) The University appealed to the full NLRB, and in June it ordered the Regional Director to reopen the record so the parties could introduce additional evidence relevant to the NLRB's new Pacific Lutheran test. (Docket).

In an August 17, 2015 opinion (full text), the Regional Director examined at length that additional evidence relating to how the faculty is held out and again concluded that the NLRB has jurisdiction over them.  Lexology analyzes that decision. On August 31, the University filed a 50-page request for review of the Regional Director's latest decision (full text), arguing not just that the Pacific Lutheran test was misapplied, but arguing also:

The new test under PLU  contravenes the United States Supreme Court’s holding in  National Labor Relations Board v. Catholic Bishop of Chicago ... which held that Congress did not intend to bring teachers at church-operated schools within the  jurisdiction of the Act. The PLU  test contains the same constitutional infirmities as existed in the Board’s former “substantial religious character” test, which caused the D.C. Circuit Court of Appeals to require a simple, “bright line” test to determine Board jurisdiction over religiously-affiliated colleges and universities..... 

Suit Charges Pet Store Chain With Discrimination Against Persians

Courthouse News Service reports on a discrimination lawsuit filed against Petco Animal Supplies Stores for refusing to sell goldfish to individuals of Persian descent who want to use the fish to celebrate Nowruz, the Persian New Year.  Nowruz  is a secular holiday with roots in Zoroastrianism.  It appears that Petco may have incorrectly believed that the fish would be killed as part of the celebration. The suit was filed in state court in Los Angeles on Aug. 28.

Kentucky County Clerk Continues To Refuse To Issue Marriage Licences; Contempt Motion Filed

As reported by the New York Times, Rowan County, Kentucky Clerk Kim Davis yesterday continued to refuse to allow her office to issue marriage licenses because of her religious objections to same-sex marriage, even though the U.S. Supreme Court refused to extend the stay of a district court's ruling against Davis. She told protesters that in refusing to issue licences, she was acting "under God's authority."  In a statement (full text) issued through her lawyers, Davis explained:

To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s word.

So, as announced by the ACLU, yesterday same-sex couples filed a motion (full text) asking the federal district court to hold Davis in contempt.  Plaintiffs also filed a second motion (full text) asking the district court to clarify that its original preliminary injunction requires Davis to issue marriage licenses not just to the named plaintiffs in the lawsuit, but to all individuals who are legally eligible to marry in Kentucky.  The district court has scheduled a contempt hearing for Thursday.

UPDATE: Here is Davis' formal court filing responding to the motion to hold her in contempt.

Pope's Upcoming Visit To U.S. Generates Church-State Concerns

With Pope Francis' visit to the United States now less than a month away (see prior posting), church-state questions are beginning to surface as they have with all recent Papal visits to the U.S.  Americans United announced Monday that it had sent a letter (full text) to officials in the cities the Pope will be visiting--Philadelphia, New York and Washington, D.C.-- as well as to federal officials expressing Establishment Clause concerns.  Citing reported extensive hosting plans by Philadelphia, the letter cautions:

government bodies must not provide any aid to a Pope’s religious activities that goes beyond the provision of services — such as police, safety, and security — that are regularly given for comparable public events of a similar size. 

Factional Disputes In Houses of Worship Are Increasingly Ending Up In Court

An article posted Monday by Reveal reports that increasingly factional disputes over control of mosques in the United States are ending up in civil courts.  The lengthy article discusses several such cases, saying in part:

Historically, the Muslim American community has kept its disputes private, sometimes turning to faith-based mediation. But as the number of mosques increases and Muslims integrate with mainstream America, conflicts involving clerics, congregations and mosques are seeping into secular courts from California to Texas and Florida.

Intergenerational friction offers significant fodder for legal actions. U.S. mosques are evolving from traditional institutions run by the eldest community members to democratized nonprofits with bylaws and elections, even women in positions of power. Oral traditions have become written.

However it is not just Muslims that are turning to civil courts.  Last Sunday in San Jose, California, over 5,000  members of a Sikh gurdwara cast ballots in a court-ordered election of officers.  The San Jose Mercury News reports that all 21 incumbents were re-elected, ending extensive litigation between a reformist faction and existing leaders who raised millions of dollars in the 1980's to build the gurdwara. Insurgents say that merely having an election was a victory.

5th Circuit Hears Oral Arguments In Prison Worship Case

On Monday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Brown v. Livingston. (Audio of full arguments.) In the case, a Texas federal district court held that requiring staff or volunteers for group religious services violates RLUIPA rights of Muslim inmates. (See prior posting.)

India's Supreme Court Suspends and Grants Review of State Court Decision Outlawing Santhara

BBC reports that yesterday India's Supreme Court agreed to review a decision of the Rajasthan High Court that held Santhara, a traditional Jain practice of starving oneself to death to attain salvation, is suicide under India's Penal Code. (See prior posting.) The Supreme Court suspended the Rajasthan court's judgment while the appeal is in process.

District Court Expands Contraceptive Coverage Exemption To Secular Pro-Life Employers and Employees With Religious Objections

In March for Life v. Burwell, (D DC, Aug. 31, 2015), the D.C. federal district court held that the Affordable Care Act contraceptive coverage mandate violates equal protection principles of the Fifth Amendment insofar as it grants an exemption to houses of worship and their integrated auxiliaries, but not to a secular anti-abortion organization such as March for Life.  It went on to hold that for employees of March for Life who hold religious objections to participating in an insurance plan that covers contraceptives, the Religious Freedom Restoration Act requires the government to allow third-party insurers to offer the employees insurance plans consistent with their religious beliefs. The court enjoined the government from enforcing the contraceptive coverage mandate against March for Life, its health insurance issuer and the insurance issuer of the employee plaintiffs in the case. New York Times reports on the decision.

Suit Challenges Fayetteville, Arkansas Anti-Discrimination Ordinance

In Fayetteville, Arkansas, a group known as Protect Fayetteville filed suit yesterday challenging the city's Uniform Civil Rights Protection Ordinance 5781 which voters are casting ballots on in a referendum this month.  The Ordinance expands civil rights protections to include bans on discrimination on the basis of sexual orientation and gender identity, and creates a city Civil Rights Commission.  The Ordinance contains an exemption for churches, religious schools and daycare facilities, and religious organizations. Opponents, however, complain that there is no exemption for individual clergy. The Ordinance was enacted after voters repealed an earlier anti-discrimination law last year.  (See prior posting.) According to KFSM News, the lawsuit claims that the Ordinance violates Arkansas' recently enacted Intrastate Commerce Improvement Act that bars counties, municipalities and other political subdivisions from expanding civil rights protections beyond those found in state law. The lawsuit also claims the Ordinance violates freedom of religion and speech.

European Court Upholds Italy's Ban On Donation of IVF Embryos For Scientific Research

In Parrillo v. Italy, (ECHR, Aug. 27, 2015), the European Court of Human Rights in a Grand Chamber judgment held 16-1 that Italy did not violate the European Convention on Human Rights when it banned donating for scientific research unimplanted embryos created in carrying out in vitro fertilization. The Court's accompanying press release summarizes the majority opinion:

For the first time, the Court was called upon to rule on the question whether the “right to respect for private life” could encompass the right to make use of embryos obtained from IVF for the purposes of donating them to scientific research. The “family life” aspect of Article 8 was not in issue here, since Ms Parrillo had chosen not to go ahead with a pregnancy with the embryos in question.

The Court, noting that the embryos obtained through IVF contained the genetic material of the person in question and accordingly represented a constituent part of his or her identity, concluded that Ms Parrillo’s ability to exercise a choice regarding the fate of her embryos concerned an intimate aspect of her personal life and accordingly related to her right to self-determination. The Court also took into account the importance attached by the domestic legal system to the freedom of choice of parents regarding the fate of embryos not destined for implantation. It therefore concluded that Article 8 was applicable in this case.....

The Court concluded that Italy had not overstepped the wide margin of appreciation enjoyed by it in this case and that the ban in question had been “necessary in a democratic society”. In consequence, there had been no violation of Article 8.

Six separate partly or fully concurring and dissenting opinions were also filed. As reported by the Times of Malta, a partly dissenting opinion of 5 judges said in part:

 Unlike the majority, we do not consider that embryos can be reduced to constituent parts of anyone else’s identity—biological or otherwise. Whilst sharing the genetic make-up of its biological ‘parents’, an embryo is, at the same time, a separate and distinct entity albeit at the very earliest stages of human development.

Supreme Court Refuses To Stay Order Requiring Kentucky Clerk To Issue Same-Sex Marriage Licenses

The U.S. Supreme Court yesterday in Davis v. Miller denied an application (full text of order) to stay pending appeal a district court decision requiring a Kentucky count clerk to issue marriage licenses to same-sex couples.  The clerk, Kim Davis, has religious objections to same-sex marriage. The application made to Justice Kagan was referred by her to the full Court which denied the stay. New York Times reports on the Supreme Court's decision.

9th Circuit Rejects Challenge To Big Mountain Jesus Statue

In Freedom From Religion Foundation v. Weber, (9th Cir., Aug. 31, 2015), the U.S. 9th Circuit Court of Appeals in a fragmented decision upheld the district court's rejection of a challenge to the Jesus statue on Montana's Big Mountain.  Judge Owens' opinion concluded that the Forest Service's renewal of the special use permit allowing the statue to remain on federal land did not violate the Establishment Clause.  The decision to renew reflected primarily a secular purpose and did not constitute an endorsement of religion.  Judge Owens said in part:

besides the statue’s likeness, there is nothing in the display or setting to suggest a religious message.... the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures....

Judge Smith, concurring, said in part:

Given the assumption made by both the majority and the dissent—that the Forest Service’s action (the renewal of a special use permit) constituted government action that could violate the Establishment Clause—I agree with the majority..... However, I write separately, because the assumption is incorrect. The Forest Service’s renewal of a special use permit for an existing monument does not constitute government speech.

Judge Pregerson dissenting said in part:

First, despite arguments to the contrary, a twelve-foot tall statue of Jesus situated on government-leased land cannot realistically be looked upon as “predominantly secular in nature.”... Second ... I submit that a “reasonable observer would perceive” the statue situated on government land “as projecting a message of religious endorsement.”

The Helena Independent Record reports on the decision.

US and Saudis Furnish Hajj Travel Information To Americans

The Hajj will take place this year approximately from Sept. 21 - 26. The U.S. State Department has posted a Hajj Fact Sheet on its website.  It reviews health, travel and safety considerations for U.S. citizens planning a trip to Saudi Arabia for the event. The Saudi Arabian embassy in Washington, D.C. has also posted a webpage titled Hajj Requirements, focusing on visas, travel and guidelines.

Recent Articles of Interest

From SSRN:

• Frederick Mark Gedicks, Public, Private, Religious? Religious Freedom Restoration Acts in the U.S. States, (Quaderni Costituzionali, No. 3 (Bologna: Il Mulino, 2015 Forthcoming).
• Alagi Yorro Jallow, Freedom of Expression and Human Rights in Islamic Perspective, (August 15, 2015).
• Colin A. Devine, A Critique of the Secular Exceptions Approach to Religious Exemptions, (UCLA Law Review, Vol. 62, No. 1348, 2015).
• Tom Hickey, Judges as God's Philosophers: Re-Thinking 'Principle' in Constitutional Adjudication, (in L. Cahillane, J. Gallen and T. Hickey (eds), Judges, Politics and the Irish Constitution (Manchester University Press, 2016).
• Asifa Quraishi-Landes, The Sharia Problem with Sharia Legislation, (Ohio North University Law Review, Vol. 41, No. 545, 2015).
• Leonore Carpenter & David S. Cohen, A Union Unlike Any Other: Obergefell and the Doctrine of Marital Superiority, (August 28, 2015).
• Dorit Rubinstein Reiss, Vaccines, School Mandates, and California's Right to Education, (August 21, 2015).
• Jack B. Harrison, At Long Last Marriage, (American University Journal of Gender, Social Policy & the Law, Vol. 24, No. 1, 2015).

From SmartCILP:

• Christopher Ogolla, Public Health Implication of Religious Exemptions: A Balance Between Public Safety and Personal Choice, or Religion Gone Too Far?, 25 Health Matrix 257-307 (2015).

Recent Prisoner Free Exercise Cases

In Aziz v. Cruzen, 2015 U.S. Dist. LEXIS 111862 (ND CA, Aug. 21, 2015), a California federal district court permitted inmates to move ahead with their complaint that correctional officers would not allow Muslim inmates to pray in groups larger than four, despite a contrary ruling by the Religious Review Committee.

In Sioleski v. Sullivan, 2015 U.S. Dist. LEXIS 111827 (WD NY, Aug. 24, 2015), a New York federal district court denied an inmate's motion for reconsideration of his previously dismissed complaint that on one occasion officials harassed him about his Native American hairstyle and placed him in keeplock for an hour while they decided whether his hairstyle complied with Department of Corrections rules.

In Peters v. Clarke, 2015 U.S. Dist. LEXIS 113380, Charles v. Clarke, 2015 U.S. Dist. LEXIS 113378, Cascen v. Clarke, 2015 U.S. Dist. LEXIS 113379, and Blyden v. Clarke, 2015 U.S. Dist. LEXIS 113377, (WD VA, Aug. 26, 2015), a Virginia federal district court dismissed complaints by Rastafarian inmates who were housed in the Violators Housing Unit for violating grooming regulations that they was not allowed to participate in Rastafarian group religious services outside the VHU pod.  In Blyden the court dismissed the additional complaint that while Rastafarian services are now available in the VHU, they lack a spiritual leader or reading material.

In Salyers v. Blue, 2015 U.S. Dist. LEXIS 114243 (WD KY, Aug. 27, 2015), a Kentucky federal district court dismissed an Orthodox Christian inmate's complaint that while in isolation for protective custody, he was not allowed to participate in group religious functions with other inmates.

In Greybuffalo v. Wall, 2015 U.S. Dist. LEXIS 114381 (WD WI, Aug. 28, 2015), a Wisconsin federal district court dismissed without prejudice for failure to exhaust administrative remedies a Native American inmate's request to have religious feasts at the conclusion religious ceremonies.

In Bargo v. Kelley, 2015 U.S. Dist. LEXIS 114610 (ED AR, Aug. 28, 2015), an Arkansas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 114614, Aug. 5, 2015) and permitted an inmate who is a practitioner of the Hindu Kriya/Raja Yoga to move ahead with his claim for injunctive relief. He is seeking use of the barracks day room and chapel, and a Yoga mat, to practice Yoga.

Court Rejects Second Amended Complaint In RLUIPA Land Use Case

In Salman v. City of Phoenix, (D AZ, Aug. 27, 2015), an Arizona federal district court denied plaintiffs' motion for leave to file a Second Amended Complaint after dismissing plaintiffs' RLUIPA and state Free Exercise of Religion Act claims. At issue is the city's application of its building code to plaintiffs' use of their home for weekly Bible studies for 35 people. (See prior posting.) The court however gave plaintiffs two weeks to file another amended complaint curing prior pleading defects.

Tax Court Upholds Penalties Against Promoters of Evasionary "Corporation Sole" Tax Scheme

In Gardner v. Commissioner of Internal Revenue, (USTC, Aug. 26, 2015), the U.S. Tax Court upheld $47,000 in penalties assessed by the Internal Revenue Service against a husband and wife who marketed to more than 300 people a tax evasion scheme involving the creation of a purported religious entity -- a "corporation sole."  Defendants claimed that taxpayers could turn otherwise taxable income into tax free income by assigning it to the corporation sole they create and control. BNA Daily Report for Executives [subscription required] reports on the decision.

Securities Fraud Defendant Gets Bail Because of Religious Affiliations

A major defendant in a massive securities fraud and money laundering case has been granted bail by a Brooklyn federal judge in large part because of the defendant's religious ties and credentials. The Wall Street Journal and Bloomberg News report details.  Vitaly Korchevsky is both a former Morgan Stanley Vice President and for decades has been a Baptist pastor.  He is charged with making more than $17 million in profits in an elaborate international scheme in which hackers broke into the computers of financial news disseminators and stole some 150,000 press releases.  They then passed information from the still confidential press releases to traders in the United States and Ukraine who realized $100 million profit in total from them. Korchevsky was born in Kazakhstan, and lived while young in the former Soviet Union, where he was beaten for keeping Bibles.  He is a prominent figure in the Slavic Baptist Church in the U.S. and elsewhere and serves as chairman of an association of 28 churches. 80 to 90 of his supporters showed up at his bail hearing.  In granting release on $2 million bond, Judge Raymond Dearie cited  "the faith that hundreds of people have put in [Korchevsky]."

Illinois Milk Law Change Was Pushed By Orthodox Jewish Group

Earlier this month (Aug. 6), Illinois Governor Bruce Rauner signed into law (effective next January) Illinois S.B. 1228 (full text) amending the state's Grade A Pasteurized Milk and Milk Products Act.  The new law requires milk in the state to be labeled in accordance with the federal Model Grade "A" Pasteurized Milk Ordinance.  The major change this makes stems from the provision in the federal model ordinance stating: "The common name of the hooved mammal producing the milk shall precede the name of the milk or milk product when the product is or is made from other than cattle's milk."  It turns out, according to a JTA report this week, that the primary proponent of this change was the Chicago Rabbinical Council, an Orthodox rabbinical and kosher certification organization.  Under Illinois' prior law, products sold as milk could have contained non-kosher milk from pigs or camels without the consumer being aware of that fact.

Kentucky Clerk Seeks Supreme Court Stay of Order Requiring Her To Issue Same-Sex Marriage Licenses

Today, Kim Davis, the Rowan County, Kentucky court clerk who has been refusing to allow her office to issue marriage licenses because of her religious objections to same-sex marriage, filed with the U.S. Supreme Court an Emergency Application (full text) to stay the district court's order against her while she appeals to the 6th Circuit.  The application, filed with Justice Kagan who is Circuit Justice for the 6th Circuit, includes a 40-page memorandum of law supporting the request for a stay.  The 6th Circuit has already refused a stay pending appeal. (See prior posting.)  A Liberty Counsel press release reported on the filing.

Ten Commandments Monument At School Unconstitutional, But Claim For Injunction Is Moot

In Freedom From Religion Foundation, Inc. v. Connellsville Area School District, (WD PA, Aut. 28. 2015), a Pennsylvania federal district court held that a granite Ten Commandments monument that has stood outside a Pennsylvania junior high school since 1957 violates the Establishment Clause even though the monument, donated by the Fraternal Order of Eagles, is nearly identical to the one upheld by the U.S. Supreme Court in the Van Orden case.  However, the court said:

there are at least two factors that distinguish this case from Van Orden, such that it does not control the outcome. First, the monument in Van Orden was displayed “in a large park containing 17 monuments and 21 historical markers.”... Conversely, the monument in this case stands alone, prominently displayed outside one of the entrances to the school with a sidewalk just 14 feet away... There has been no effort on the part of the School District to impart “a broader moral and historical message” by displaying the monument alongside or nearby other secular monuments or displays.... Not only does the monument stand alone, but it stands alone “on the grounds of a public school, where,” as Justice Breyer explained, “given the impressionability of the young, government must exercise particular care in separating church and state.”... 

Nevertheless, the relief granted by the court was rather narrow.  Since the plaintiff no longer attends the Junior High School, her claims for injunctive and declaratory relief were denied as moot. Instead the court only granted nominal damages of $1, thus placing the school under no immediate direct order to remove the monument. Pittsburgh Post Gazette reports on the decision.

Suit Challenges Montana's Ban on Polygamy

According to MTN News, a federal court lawsuit was filed yesterday challenging Montana's  ban on polygamous marriages.  Nathan and Vicki Collier were legally married in 2000.  Nathan is now seeking a marriage license to legally marry Christine Parkinson who has also been living as his wife in a polygamous relationship.  The family has a total of eight children.  In July, the Yellowstone County clerk's office denied Nathan a marriage license and asked the county attorney's office for legal advice.  In a letter, the Deputy County Attorney said that the U.S. Supreme Court's same-sex marriage decision does not extend to protect polygamous marriages.  Nathan, Vicki and Christine all filed the lawsuit, representing themselves, arguing that their consensual plural family association is protected by the equal protection, free exercise,  and establishment  clause as well as by the 1st Amendment's protection of speech and association. Montana's bigamy statute imposes a fine of $500 and imprisonment up to 6 months on those convicted.

Suit Challenges Nevada's School Voucher Program

The ACLU yesterday filed suit in state court in Nevada challenging the state's broad school voucher program.  Under the program, parents of a child who has attended public school for 100 consecutive days may move the child to a private school (including a religious school) and have the state pay into an educational savings account for the student an amount equal to at least 90% of the statewide average basic support per pupil. (See prior posting.) The complaint (full text) in Duncan v. State of Nevada, (NV Dist. Ct., filed 8/27/2015), contends that private religious schools constitute the majority of private schools eligible to participate in the educational savings account program. It alleges that the program violates Art. XI, Sec. 10 of the Nevada constitution that prohibits public funds from being used for sectarian purposes, as well as Art. XI Sec. 2 that requires a uniform system of common schools in which no instruction of a sectarian character takes place. AP reports on the lawsuit.

Brief In Polygamy Appeal Garners Attention

In 2013 in Brown v. Buhman, a Utah federal district court  struck down much of Utah's statute which criminalizes polygamy.  The decision limits the statute's applicability to cases in which an individual has multiple marriage licences, concluding that the statute's broader ban on cohabiting while married to another person is unconstitutional. (See prior posting.) The state of Utah filed an appeal with the 10th Circuit in September 2014.  Yesterday, appellees filed their brief with the 10th Circuit. It is gaining particular attention (as in this Fox 13 piece) because of (1) the celebrity status of appellees -- the polygamous family that is the subject of the popular reality television series "The Sister Wives; (2) the high profile counsel who filed the brief-- law professor and frequent legal commentator Jonathan Turley; and (3) the Supreme Court's same-sex marriage decision which was handed down subsequent to the district court's ruling on the anti-polygamy statute.  Some opponents of same-sex marriage argued that its legalization would create a "slippery slope" toward other marital arrangements.  The Supreme Court's Obergefell decision is cited extensively in the brief, but appellees emphasize: "This case is about the criminalization, not recognition, of plural relationships."  The full brief may be read here.

Canadian Court Says Charter Does Not Protect Proselytizing In Primary School During School Hours

In Bonitto v. Halifax Regional School Board, (NS Ct. App., Aug. 26, 2015), the Nova Scotia (Canada) Court of Appeal rejected the claim by Sean Bonitto, a fundamentalist Christian parent of school children, that Secs. 2(a) and (b) of the Canadian Charter of Rights and Freedoms protect his right to hand out religious literature during school hours to elementary school students.  He sought to distribute his literature in a school in which 25% of the students were Muslim.  The court said in part:

Mr. Bonitto’s model envisages a theological midway with rivals beckoning nine year olds walking to their classrooms. The Minister, Board and school would have no control over the messages. That would contradict a basic premise of public schooling under the Education Act – i.e. on school premises during school hours, the inculcated message must pertain to the approved scholastic program.

Mr. Bonitto’s message is that non-Christians will burn in a sea of flames for eternity. The Board’s witnesses held the view that elementary students, especially non-Christians, hearing this on the steps would entertain an unsettling distraction from their classwork. The message would undermine the “orderly and safe learning environment” and the “positive and inclusive school climate” proclaimed by the preamble to the Education Act. That view makes good sense to me.

CBC News reports on the decision.

Hamptons Town Board Drops Opposition To Eruv

Since 2011, a Suffolk County, New York, Jewish organization known as the East End Eruv Association (EEEA) has been attempting to obtain approval to erect an eruv (a symbolic boundary) in three towns in the Hamptons. It has been opposed by a citizens group known as Jewish People Opposed to the Eruv. The clash between groups has spawned extensive state and federal litigation.  According to 27 East, on Tuesday EEEA moved significantly closer to success. The Southampton Town Board voted not to pursue an appeal of an adverse state trial court decision.  That decision held that the town's sign ordinance does not bar construction of the eruv. The town also will drop its federal lawsuit challenging the eruv on Establishment Clause grounds. The Town Board's decision will permit expansion of an eruv currently in  Westhampton Beach Village to also include the hamlets of Quiogue and Westhampton.

Court Upholds City's Decision To End Display of Christian Cross

On Tuesday, an Ottawa County, Michigan trial court judge dismissed a lawsuit seeking to force the city of Grand Haven to resume displaying a 48-foot Christian cross on Dewey Hill, a city-owned sand dune. Plaintiffs object to City Council's decision to turn the cross into a Coast Guard anchor. (See prior posting.) As reported by MLive, a group of seven residents sued the city alleging that the city's decision amounted to unconstitutional regulation of  speech in a traditional public forum and discriminated on the basis of religion. However the court held that the display is governmental speech and "the City has the right to determine what messages it sends through the use of its own governmental property." (See prior related posting.)

6th Circuit Refuses To Stay Injunction Against Recalcitrant Kentucky County Clerk

In Miller v. Davis, (6th Cir., Aug. 26, 2015), the U.S. 6th Circuit Court of Appeals refused to grant a stay pending appeal of a preliminary injunction (see prior posting) issued against a Rowan County, Kentucky, Clerk who has religious objections to issuing marriage licenses to same-sex couples.  The 6th Circuit explains:

As the County Clerk ..., Davis’s official duties include the issuance of marriage licenses. In response to the Supreme Court’s holding in Obergefell v. Hodges ..., Davis unilaterally decided that her office would no longer issue any marriage licenses. According to Davis, the issuance of licenses to same-sex marriage couples infringes on her rights under the United States and Kentucky Constitutions as well as the Kentucky Freedom Restoration Act.... The Rowan County Clerk’s office has since refused to issue marriage licenses to the plaintiffs, and this action ensued.

The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity. The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.....

USA Today reports on the decision. [Thanks to Tom Rutledge for the lead.]

UPDATE: On Thursday, Davis' office continued to refuse to issue a marriage license to a same-sex couple, arguing that the district court's stay remains in effect until Aug. 31.  The district court stayed its preliminary injunction until Aug. 31 or the 6th Circuit issued a ruling. On Thursday afternoon, the clerk's office was temporarily closed for "computer upgrades." Davis is considering filing an appeal with the U.S. Supreme Court. (CBS News).

No Establishment Clause Problem In Indictment of Halal Meat Exporter For False Statements

In United States v. Aossey, (ND IA, Aug. 25, 2015), an Iowa federal district court rejected Establishment Clause and Free Exercise challenges to a 92-count indictment against various affiliated companies and individuals charging them with making false statements on export certificates and on a website regarding Halal-slaughter of meat being exported. The court said in part:

[N]either the court nor the jury will be required to decide what Halal means. The government is not claiming merely that Defendants represented that they were selling Halal products that were not in fact Halal....  Rather, the government is alleging that Defendants made specific, false representations, including: (1) Defendants did not use penetrative captive bolt stunning; (2) all of Defendants’ beef products were hand-slaughtered; (3) a practicing Muslim recited a specific prayer while slaughtering; (4) Defendants did not sell leftover hindquarters from Kosher slaughters as Halal; (5) Defendants’ meat products complied with the laws and requirements of Malaysia, Indonesia, Kuwait and the United Arab Emirates; and (6) the animals slaughtered were vegetarian fed. The government believes that Defendants made these allegedly false representations to convince their customers that their meat products were Halal.

(See prior related posting.)

2nd Circuit Affirms Dismissal of Class Action By Sikh Victims of 1984 Riots In India

In Sikhs for Justice, Inc. v. Gandhi, (2d Cir., Aug. 25, 2015), the U.S. 2nd Circuit Court of Appeals affirmed the district court's dismissal of a putative class action on behalf of victims of 1984 anti-Sikh riots in India brought against Sonia Gandhi, president of India's ruling political party.  Claims under the Alien Tort Statute were dismissed because all relevant conduct took place outside the United States. Torture Victim Protection Act claims were dismissed on standing grounds.  The court added:

Moreover, plaintiffs failed to plausibly allege that defendant is liable for the anti-Sikh riots. At best, the amended complaint alleges that certain attacks were carried out on defendant’s “orders,” and that defendant was present at one of several meetings at which the riots were planned.

Burma's Parliament Passes Controversial Religious Conversion and Monogamy Laws

According to Human Rights Watch, on Aug. 21 Burma's joint parliament passed two bills that violate human rights and threaten to entrench religious discrimination.  The Religious Conversion Bill will require anyone wishing to change religion to be over 18, and then to file an application with a local Religious Conversion Scrutinization and Registration Board.  It is feared that many local boards will be dominated by ethnic Buddhists who will be biased against conversion to other faiths. The second bill, the Monogamy Bill, is seen as targeting religious minorities that practice polygamy. These two laws, along with the Population Control Law which became law in May, and the Interfaith Marriage Law, passed in July but not yet signed into law, were promoted by the Association for Protection of Race and Religion ("Ma Ba Tha"), an organization of Buddhist monks with an anti-Muslim and ultra-nationalist agenda. Human Rights Watch urges Burma's President Thein Sein to refuse to sign the two newly-passed bills.

The U.S. Commission on International Religious Freedom also issued a statement this week condemning Burma's Religious Conversion Bill.

EEOC Sues National Federation of the Blind For Refusing To Accommodate Employee's Sabbath Observance

The EEOC announced last week that it has filed suit in a Maryland federal district court against the National Federation of the Blind for religious discrimination.  The EEOC summarizes the charges:

Joseph R. Massey II is a practicing Hebrew Pentecostal, a Christian denomination, and abstains from working from sunset Friday to sunset Saturday based on his sincerely-held religious beliefs.  The National Federation of the Blind hired Massey for a bookkeeping position at its Baltimore office in November 2013.  In January 2014, the Federation told Massey he had to work certain Saturdays.  Massey explained he could not work Saturdays due to his religious faith and suggested alternatives such as working on Sundays or working late on week nights other than Fridays.  EEOC charged that the Federation refused to provide any reasonable accommodation and instead fired Massey because he could not work Saturdays due to his religious beliefs.

Malaysian Federal Court Upholds Death Sentence of Gardener Who Killed Doctor For Insulting Islam

Yesterday a 5-judge panel of Malaysia's Federal Court upheld the death sentence that had been imposed on a Pakistani Muslim gardener who in 2011 beheaded a doctor for whom he was working. The murder stemmed from a conversation between the two men in which the doctor had insulted the Kaabah, the building at the center of Islam's most sacred mosque. The New Straits Times reports on the decision.

Bankruptcy Code's Automatic Stay Applies To Proceedings In Jewish Religious Court

In In re Congregation Birchos Yosef, (SD NY Bkrptcy, Aug. 24, 2015), a New York federal bankruptcy court held that the statutory automatic stay of proceedings against a debtor that is triggered by the filing of a petition in a bankruptcy reorganization applies to invalidate proceedings against a debtor and its principals in a Jewish religious court (beis din).  In the case, a religious organization in Monsey, New York that had filed for bankruptcy reorganization, as part of the bankruptcy proceedings, instituted suit against a Jewish school, Bais Chinuch L'Bonois, asserting claims for fraud, breach of fiduciary duty and looting of the Debtor’s assets.  In response, Bais Chinuch invoked a beis din which issued a hazmana or summons to individuals controlling Congregation Birchos Yosef inviting them to adjudicate their dispute in the Jewish religious court.  The beis din also issued an ekul or injunction against the parties continuing to pursue the dispute through the Bankruptcy Court.

The Bankruptcy Court held that:

Bais Chinuch and the individuals’ invocation of the beis din proceeding - and the issuance of the beis din's ekul, or injunction - are actually directed at the Debtor through its principals with the intention of wresting control of the Debtor’s adversary proceeding and exerting pressure to have it dismissed....  Because of the principals’ identity of interest here with the Debtor, the automatic stay applies to protect them from the beis din. 

The court went on to hold that enforcement of the automatic stay does not violate the Free Exercise or Establishment Clause of the First Amendment.  It held that RFRA is not applicable, because it does not apply to the Debtor's motion, a private action between private parties.  Even if applicable, application of the automatic stay survives RFRA strict scrutiny.  The court added, "The automatic stay’s enforcement here does not substantially burden the objectors’ free exercise of religion, moreover, when they have invoked a rabbinical court to decide (and interfere with) an essentially commercial dispute."

Proposed Hindu Statue At Arkansas Capitol Turned Down Initially

In Arkansas, a request by the Universal Society of Hinduism to place a privately-financed statute of the Hindu god Lord Hanuman on the grounds of the state Capitol has been rejected by the Secretary of State's office.  Arkansas News Bureau reported last Friday that Chief Deputy Secretary of State Kelly Boyd told the Hindu group that it is the State Capitol Arts and Grounds Commission that is responsible for approving monuments on the Capitol grounds.  The Hindu group's request follows the state legislature's approval in April of a Ten Commandments monument at the Capitol. (See prior posting.) The Secretary of State's office suggested that the Hindu group seek similar legislative approval. The group says it may send its request to the governor.  According to Merinews, Christian, Buddhist, Jewish, Baha'i and other faith leaders have backed the Hindu group's request.  [Thanks to Scott Mange for the lead.]

Mirror of Justice Blogger Robert Araujo Posts Sad Farewell

On Sunday, Loyola University Chicago Law Professor Robert John Araujo, S.J., posted a sad farewell on Mirror of Justice to which he has contributed for ten years.  Mirror of Justice is a wonderful blog dedicated to the development of Catholic legal theory, and Prof. Araujo's posts have been an important part of the blog's contribution to thinking about law and religion.  Prof. Araujo writes that he is now in palliative/hospice care while finishing his final scholarly project -- a book on the Declaration on Religious Liberty and its relevance to the law. We all salute Prof Araujo for his scholarly contributions on Papal diplomacy, religious liberty and Catholic social thought.  Even more so, we salute him for the courageous example he has set in facing impossibly difficult health care decisions.

Judge Preventing Church Leader From Obtaining Unusual Name Change

According to the Rome News-Tribune, in Rome, Georgia an 81-year old resident whose current name apparently is "Serpentfoot" is petitioning a Floyd County (GA) court to change her name to:

Nofoot Allfoot-69-mouth-tail-solids-liquids-gases-animal-vegetable-mineral-going-over-under-around-and-through-Our-Greater-Self-our-habitat-the-cosmos-of-which-we-are-but-part-and-where-all-life-feeds-upon-other-life-from-the-smallest-bacteria-to-the-great-black-holes-and-dog-eat-dog-and-last-suppers-where-we-are-what-we-eat-or-consume-and-each-lives-on-in-the-other … ∞ Serpentfoot.

Serpentfoot who is the leader of her own church, "Our Greater Self Co-op," says that the name change will further her ministry. The court however apparently turned down the request in on Aug. 6 when Serpentfoot was a few minutes late for her 8:30 am hearing. She has now filed a petition asking the judge to reconsider his ruling or else recuse himself.  This is the latest in a series of requests by Serpentfoot to change her name.  Her last request was denied in May by the court when she could not remember her proposed name.

Haredi Rabbis Urge Reporting of Child Abuse To Secular Authorities

Countering what has sometimes been a reluctance in the haredi (ultra-Orthodox) Jewish community to report suspected child abuse to civil authorities, over 100 prominent haredi  rabbis and educators from across the United States have signed a public pronouncement calling for prompt notification to law enforcement. The statement (full text in report from Arutz Sheva) says in part;

We, the undersigned, affirm that any individual with firsthand knowledge or reasonable basis to suspect child abuse has a religious obligation to promptly notify the secular law enforcement of that information. These individuals have the experience, expertise and training to thoroughly and responsibly investigate the matter. Furthermore, those deemed “mandated reporters” under secular law must obey their State’s reporting requirements.

Many more rabbis are expected to sign the statement in coming weeks. (See prior related posting.)

School District Drops Band's Planned Half-Time Show Fearing It Violates Consent Decree

Having been held in contempt last month for violating 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 Rankin County, Mississippi School Board last week told the Brandon High School band that it could not perform its planned half-time show at the season's opening football game.  According to yesterday's Christian News, the band had planned to perform "How Great Thou Art" during half-time. While the song was selected last February with administrative support, the school district more recently said it would risk heavy fines if it were performed and would be required to terminate the employment of anyone connected with the performance.  At last Friday's game, while the band did not perform, dozens of parents and students began singing the song from the stands.

Suit Threatened Against Catholic Hospital For Refusing Sterilization Procedure

The San Francisco Chronicle reported yesterday that the ACLU is threatening to sue a Catholic hospital in Redding, California because it refuses to perform sterilization procedures. Rachel Miller who is scheduled to have her second child in late September wants a tubal ligation performed at the same time.  Her Catholic hospital in Redding, California-- owned by Dignity Health-- refuses to permit the procedure under its Ethical and Religious Directives.  Miller would have to travel 160 miles to find a hospital that will take her insurance and perform the procedure. California law permits Catholic hospitals to refuse to perform abortions, but not other pregnancy-related procedures.  The ACLU contends that the hospital's refusal amounts to sex discrimination and violates California's ban on the corporate practice of medicine by allowing a corporate entity's religious beliefs to override a doctor's medical decision.

UPDATE:  CBS San Francisco reported on Aug. 25 that Mercy Medical Center has now approved the tubal ligation procedure for Rachel Miller.

Recent Articles of Interest

From SSRN:

• Thomas C. Berg, Agape, Gift, and Intellectual Property, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 15-19 (2015)).
• Russell Powell, Does Shari'a Play a Role in Turkey?, (Pepperdine Law Review, Vol. 41, No. Special Issue, 2014).
• Robin L. West, Hobby Lobby, Birth Control and Our Ongoing Cultural Wars: Pleasure and Desire in the Crossfires, (2015).
• Cheryl L. Daytec, Till the Judge Do Them Part: The Prospect of Absolute Divorce in the Philippines, (August 19, 2015).
• Shai Stern, When One's Right to Marry Makes Others 'Unmerry', (Albany Law Review, Forthcoming).
• Alan E. Garfield, And the Wall Comes Tumbling Down: How the Supreme Court Is Striking the Wrong Balance between Majority and Minority Rights in Church and State Cases, Arkansas Law Review, Forthcoming.
• Mark Rahdert, Exceptionalism Unbound: Appraising American Resistance to Foreign Law, (Catholic University Law Review, (Forthcoming)).
• Tessa McKeown, Hate Speech and Holocaust Denial: The Prohibition of False Historical Discourse in Modern Society, (2014).
• Kit Kinports, The Supreme Court's Quiet Expansion of the Qualified Immunity Defense, (Minnesota Law Review Headnotes, Forthcoming).
• Rebecca Eaton, The Legitimacy of Spectral Evidence During the Salem Witchcraft Trials, (2013).

From SmartCILP:

• Winston Bowman, A Civil Death: Mormon Disenfranchisement in the Inter-Mountain West, 27 Western Legal History 1-29 (2014).
• Inna Nam Brady, Religious Freedom in Kazakhstan: Facing the Kazakhstani Law on Religious Activities and Religious Associations, 1 Journal of Global Justice & Public Policy 227-246 (2015).
• Joshua Neoh, The Name of God On Trial: Narratives of Law, Religion and State in Malaysia, 18 Law Text Culture 198-220 (2014).
• Tilhamer Toth,, Is There a Vatican School for Competition Policy?, 46 Loyola University Chicago Law Journal 583-616 (2015).
• James M. Oleske, Jr., The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages, 50 Harvard Civil Rights-Civil Liberties Law Review 99-152 (2015).
• Sahar F Aziz, Coercive Assimilationism: The Perils of Muslim Women's Identity Performance in the Workplace, 20 Michigan Journal of  Race & Law 1-64 (2014). 

Recent Prisoner Free Exercise Cases

In Mitchell v. Daniels, 2015 U.S. Dist. LEXIS 108599 (MD AL, Aug. 18, 2015), an Alabama federal district court adopted a magistrate's recommendation and dismissed an inmate's complaint about inadequate security to prevent desecration of the Native American ceremonial grounds.

In Green v. Fox, 2015 U.S. Dist. LEXIS 109131 (CD CA, Aug. 17, 2015), a California federal district court dismissed without prejudice an inmate's habeas corpus petition seeking release so he could obtain medical treatment from a Christian Science practitioner that he was denied in prison.

In Avery v. Paramo, 2015 U.S. Dist. LEXIS 109127 (SD CA, Aug. 18, 2015), a California federal district court dismissed a Pagan-Wiccan inmate's retaliation claim, but permitted him to proceed with his complaint regarding refusal to accommodate Pagan/ Wiccan/ Asatru practices by providing a fence perimeter, fire pit, water line, and herb cultivation, and by providing him a monthly supply of honey, nuts, dried fruit, trail mix and non-yeast crackers.

In Allah v. Christburg, 2015 U.S. Dist. LEXIS 108590 (MD AL, Aug. 18, 2015), an Alabama federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 109611, July 27, 2015), and dismissed a complaint by an inmate who complained that he was not permitted to observe Ramadan, participate in Muslim prayer services or receive a Qur'an, prayer rug or Islamic literature. The inmate had failed to specify his religious affiliation when he was booked into the facility.

In Hosey-Bey v. Williams, 2015 U.S. Dist. LEXIS 109363 (MD AL, Aug. 19, 2015), an Alabama federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 110146, July 30, 2015) and dismissed an inmate's complaint that defendant ordered the Sunday school service of the Moorish Science Temple of America closed down after only 10 to 13 minutes because of a shortage of officers for security for the chapel.

In Hoeck v. Miklich, 2015 U.S. Dist. LEXIS 110921 (D CO, Aug. 20, 2015), a Colorado federal district court denied injunctive relief to an inmate who complained that he was not permitted to observe the holy days and diet of his Biblical Christian faith.

In Shabazz v. Cruzen, 2015 U.S. Dist. LEXIS 111210 (ND CA, Aug. 21, 2015) and Fadan v. Cruzen, 2015 U.S. Dist. LEXIS 111213 (ND CA, Aug. 21, 2015), a California federal district court permitted inmates to move ahead with their complaint that correctional officers would not allow Muslim inmates to pray in groups larger than four, despite a contrary ruling by the Religious Review Committee.

Church May Continue With Its RLUIPA and State RFRA Claims

In Church of Our Lord and Savior Jesus Christ v. City of Markham, Illinois, (ND IL, Aug. 19, 2015), plaintiff claimed that after it had operated in the same location for ten years without issue, it received a summons telling it to close on safety grounds because it had not received a conditional use permit. An Illinois federal district court allowed plaintiff to proceed with its "substantial burden" claims under RLUIPA and Illinois' RFRA, but dismissed its discrimination claim. It also allowed plaintiff to move ahead with its claim under the state constitution that the city's refusal to amend its zoning ordinance was arbitrary and capricious.

Obergefell Will Be Applied Retroactively To Social Security Claims

42 USC Sec. 416(h)(1)(A)(i) provides that whether a person is the spouse of another for Social Security purposes depends on the law of their state of domicile.  Until now this has led the Social Security Administration to deny benefits to same-sex spouses who moved to or lived in a state which did not recognize their marriage.  However, in an Aug. 20 press release, Lambda Legal reported:

Today, in a status conference with Lambda Legal in federal court in Chicago, the Department of Justice announced that the Social Security Administration (SSA) will apply the U.S. Supreme Court's recent landmark marriage ruling retroactively and process pending spousal benefits claims for same-sex couples who lived in states that did not previously recognize their marriages. According to the Department of Justice, the new policy will apply to previously filed claims still pending in the administrative process or litigation.

Muslim Leaders Issue Declaration On Global Climate Change

As reported by the Washington Post, last week Muslim leaders and scholars from 20 countries issued an Islamic Declaration on Global Climate Change. Issued in anticipation of the Conference of the Parties to the United Nations Framework Convention on Climate Change and the Meeting of the Parties to the Kyoto Protocol taking place in Paris this December, 2015, it urges well-off nations and oil-producing states to lead the way in phasing out greenhouse gas emissions.  It calls on governments and business to commit themselves to 100 % renewable energy and/or a zero emissions strategy as early as possible.

10th Circuit Grants Stay In Contraceptive Mandate Case Pending Supreme Court Action On Cert.

As previously reported, in July a petition for certiorari  was filed with the Supreme Court in Little Sisters of the Poor Home for the Aged v. Burwelll.  In the case, the 10th Circuit upheld  the Obama Administration's Affordable Care Act accommodation for religious non-profits that object to furnishing contraceptive coverage. On Friday, the 10th Circuit issued an order (full text) staying issuance of its mandate until the Supreme Court's either denies review or decides the case. Becket Fund issued a press release on the 10th Circuit's action.

6th Circuit Again Upholds ACA Accommodation For Religious Non-Profits

The U.S 6th Circuit Court of Appeals today, deciding a case that had been remanded to it (see prior posting) by the Supreme Court after that Court's Hobby Lobby decision, reaffirmed its earlier decision upholding against a RFRA challenge the Obama administration's Affordable Care Act accommodation for religious non-profits that object to furnishing their employees insurance coverage for contraceptives.  In Michigan Catholic Conference v. Burwell, (6th Cir., Aug. 21, 2015), the 6th Circuit said in part:

Despite our attempts to describe how the accommodation actually works, it is perhaps inevitable that some Plaintiffs will still believe that they are morally complicit in sin, by being a part of a system that provides access to contraceptives.... However, it is not our role to determine a party’s moral complicity; we do not question here Plaintiffs’ “desire not to participate in the provision of contraception.” ... Our role is a more limited one: to determine whether, as a legal matter, the regulation represents a substantial burden to Plaintiffs’ rights under RFRA. That requires us to determine how the law works and what it asks of various actors. On this point, as we held before, “[t]he government’s imposition of an independent obligation on a third party does not impose a substantial burden on the appellants’exercise of religion.”

[Thanks to How Appealing for the lead.]

Illinois Becomes 4th State To Ban Gay Conversion Therapy For Minors

As reported by the Huffington Post, yesterday Illinois became the fourth state to ban gay conversion therapy for minors.  Governor Bruce Rauner signed HB 217 (full text), the Youth Mental Health Protection Act which prohibits any mental health provider from engaging in sexual orientation change efforts with a person under the age of 18. The new law also broadly prohibits misleading advertising of conversion therapy:

No person or entity may, in the conduct of any trade or commerce, use or employ any deception, fraud, false pretense, false promise, misrepresentation, or the concealment, suppression, or omission of any material fact in advertising or otherwise offering conversion therapy services in a manner that represents homosexuality as a mental disease, disorder, or illness, with intent that others rely upon the concealment, suppression, or omission of such material fact. A violation of this Section constitutes an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act.

The new law, which becomes effective Jan. 1, 2016, includes extensive legislative findings supporting the therapy ban.

Illinois Statute Expands Permissible Student Prayer

Yesterday Illinois Governor Bruce Rauner signed HB 165 (full text) amending the Silent Reflection and Student Prayer Act to permit students during non-instructional time before or after school to engage not only in individually initiated prayer, but also "collectively initiated, non-disruptive prayer or religious-based meetings, including without limitation prayer groups, B I B L E (Basic Instruction Before Leaving Earth) clubs, or "meet at the flagpole for prayer" days," However these may not be "sponsored, promoted or endorsed in any  manner by the school or any school employee."

Court Says Sale of Boston Church Was Invalid

In First Bostonview Management, LLC v. Bostonview Corp., (MA App., Aug. 19, 2015), the Massachusetts Appeals Court held the purported sale of the property of Boston's Swedenborgian Church on the Hill invalid.  The court said in part:

[T]he sale of substantially all of the Bostonview church property (consisting of a church sanctuary, a parish meeting hall, a large apartment complex, offices, and parking spaces on prime land on Beacon Hill near the Massachusetts State House) was indisputably an "extraordinary transaction," and, if completed to the end would have stripped Bostonview of the very essence of its existence as a charitable corporation.... We conclude that the authority to make such a divesting asset/property sale contract ... was beyond the power of the charitable corporate board to delegate to two of its officers. The contract was void. The "shady" nature of the underlying prenegotiations to sell the church's very valuable (but sole) asset for $30 million -- including combined cash payments of close to $100,000 to two of the executive officers, and the purchase of the $94,000 luxury car for the church secretary -- only serves to demonstrate why restrictions on "extraordinary transactions" must be closely scrutinized by the charity's corporate board. 

The court also held that: "subsequent approval or other conduct by the board of directors of a charitable corporation will not substitute for prior specific authorization to commit the charity to an extraordinary transaction."

Boston Business Journal gives additional background:

The case centered on developer Michael Perry’s 2004 agreement to pay $30 million to purchase the property....  Perry struck the agreement with Thomas J. Kennedy and Edward J. MacKenzie Jr., who were then officials at Bostonview Corp., the charitable organization that conducted business on behalf of the Swedenborgian church. MacKenzie, who has claimed he was an enforcer for incarcerated mobster Whitey Bulger, was later sentenced to 12 years in prison for allegedly stealing millions from the church.

130 Organizations Urge Obama To Rescind 2007 Justice Department Interpretation of RFRA

Yesterday a coalition of 130 religious, civil rights and advocacy organizations sent a letter (full text) to the President urging that the Justice Department's Office of Legal Counsel reconsider a 2007 Memorandum interpreting the interaction of the Religious Freedom Restoration Act with non-discrimination provisions in federal grant programs.  The letter reads in part:

[T]he OLC Memo relies on flawed legal analysis and wrongly asserts that RFRA is “reasonably construed to require” a federal agency to categorically exempt a religiously affiliated organization from a grant program’s explicit statutory nondiscrimination provision, thus permitting the grantee to discriminate in hiring with taxpayer funds without regard to the government’s compelling interest in prohibiting such discrimination....

...[S]ome have cited the OLC Memo in arguing that RFRA should broadly exempt religiously affiliated contractors from the nondiscrimination requirements in Executive Order 11246, including those you added just last year that bar government contractors from discriminating against LGBT workers. And, some are trying to extend its reach beyond the context of hiring: Several grantees and contractors have cited the OLC Memo to support their arguments that the government should create a blanket exemption that would allow them to refuse to provide services or referrals required under those funding agreements, specifically in the context of medical care for unaccompanied immigrant children who have suffered sexual abuse. 

 ADL and Americans United each issued its own press release on the letter.

Texas Supreme Court Rules On Houston Equal Rights Referendum Ballot Language

In yet another ruling on the referendum calling for the repeal of Houston, Texas' controversial Equal Rights Ordinance, the Texas Supreme Court yesterday in In re Williams and Woodfill, (TX Sup. Ct., Aug. 19, 2015), ruled on proper ballot language. It held that the vote must be on whether or not to approve the Ordinance, not on whether or not to approve its repeal. The Court also held that the city did not abuse its discretion by referring in the ballot language to the "Houston Equal Rights Ordinance." Houston Chronicle reports on the decision. (See prior related posting.)

Report Criticizes Collegiate Football Chaplaincy Programs

On Monday, the Freedom From Religion Foundation released  a report titled Pray to Play: Christian Coaches and Chaplains Are Converting Football Fields Into Mission Fields. According to the Report:

Public universities and their employees cannot endorse, promote, or favor religion. Yet, many football coaches at public universities bring in chaplains—often from their own church or even members of their own family—to prey on and pray with students, with no regard for the rights of those students or the Constitution. These coaches are converting playing fields into mission fields and public universities are doing nothing to halt this breach of trust. They are failing their student athletes.

FFRF sent copies of the Report, which includes a Model Policy On Religion In Athletics, to 15 schools that appear to have the most problematic chaplaincies.