Recent Prisoner Free Exercise Cases

In Welch v. Spaulding, (6th Cir., Sept. 30, 2015), the U.S. 6th Circuit Court of Appeals in a 2-1 decision affirmed the district court's denial of qualified immunity to prison food service officials who are being sued by a Muslim inmate who claims that his Ramadan meals lacked sufficient caloric value.

In Merrick v. Ryan, 2015 Ariz. App. Unpub. LEXIS 1173 (AZ App., Sept. 24, 2015), an Arizona appeals court dismissed an inmate's suit claiming he was denied religious materials and practices. The suit asserting state law claims failed to name the state as a defendant.

In Moon v. Garcia, 2015 U.S. Dist. LEXIS 129291 (SD IL, Sept. 25, 2015), an Illinois federal district court permitted plaintiff, a former federal inmate, to proceed with his claim that authorities created a plan to disrupt authorized religious activities of Muslim inmates.

In Grayson v. Goetting, 2015 U.S. Dist. LEXIS 129290 (SD IL, Sept. 25, 2015), an Illinois federal district court permitted an African Hebrew Israelite inmate who had taken the Nazirite vow to proceed with his complaint that he was forced to remove his dreadlocks.

In Hudson v. Spencer, 2015 U.S. Dist. LEXIS 129304 (D MA, Sept. 25, 2015), in a suit by Nation of Islam inmates, a Massachusetts federal district court ordered correctional authorities to  provide plaintiffs access to televised recordings of Jumu'ah services led by an appropriate chaplain whenever an NOI chaplain is unavailable to lead services in person. However the court dismissed complaints about failure to accommodate various other NOI practices relating to fasting and feast sessions, religious attire and "spiritual drilling."

In Dicks v. Shearin, 2015 U.S. Dist. LEXIS 129824 (D MD, Sept. 28, 2015), a Maryland federal district court held that a Muslim inmate's rights may have been infringed when the former warden failed to follow a Department of Corrections policy that assured Muslim inmates fasting during Ramadan received the same caloric intake as non-fasting prisoners.

In Ramadan v. FBOP, 2015 U.S. Dist. LEXIS 129845 (SD WV, Sept. 28, 2015), a West Virginia federal district court rejected a Muslim inmate's challenge to the policy of barring congregational prayer, and his complaint that he was prevented for a period of time from bringing a copy of the Noble Quran into the chapel.

In Johnson v. Swibas, 2015 U.S. Dist. LEXIS 130379 (D CO, Sept. 28, 2015), a Colorado federal district court adopted a magistrate's recommendations and allowed an inmate to move ahead certain of the defendants with his complaint that he was denied access to kosher meals to which he is not allergic.

In Woodward v. Ali, 2015 U.S. Dist. LEXIS 130687 (ND NY, Sept. 29, 2015), a New York federal district court adopted a magistrate's recommendations and denied summary judgment to a Muslim inmate on his complaint that he was removed from the Ramadan meal list.

In Elmore v. Herring, 2015 U.S. Dist. LEXIS 131348 (ED NC, Sept. 29, 2015), a North Carolina federal district court dismissed complaints by a Muslim inmate regarding a prison's post-chapel strip-search policy, his allegations that Christian inmates are allowed more services and furnished more resources than Muslim inmates, and his complaint regarding the absence of a Halal diet.

Police Departments Adding "In God We Trust" To Patrol Cars

The New York Times, in an article posted yesterday, reviews the growing trend among law enforcement agencies in the South and Midwest to place the national motto "In God We Trust" on their squad cars. The Times reports:

“With the dark cloud that law enforcement has been under recently, I think that we need to have a human persona on law enforcement,” said Sheriff Brian Duke of Henderson County, Tenn. “It gave us an opportunity to put something on our cars that said: ‘We are you. We’re not the big, bad police.’ ”

But critics worry that displays of “In God We Trust” on taxpayer-funded vehicles cross the threshold of constitutionality, even though the courts have repeatedly brushed aside challenges to the motto, which Congress enshrined in 1956. Explanations like the one Sheriff Duke offered have not curbed those frustrations.

“This motto has nothing to do with the problem of police forces’ shooting people, but it’s a great way to divert attention away from that and wrap yourself in a mantle of piety so that you’re above criticism,” said Annie Laurie Gaylor, a co-president of the Freedom From Religion Foundation, a Wisconsin-based group that has demanded that law enforcement officials stop exhibiting the motto. “The idea of aligning the police force with God is kind of scary. That’s the first thing you’d expect to see in a theocracy.”

Class Action Filed Against Burma's President By Persecuted Rohingyas

As reported by Reuters and Courthouse News Service, this week a coalition of 19 Muslim American organizations and a Rohingya Muslim who previously lived in the State of Rakhine in Myanmar filed a class action lawsuit against the President of Burma (Myanmar) and several other current or former government officials of Myanmar or Rakhine state.  The complaint (full text) in Burma Task Force v. Sein, (SD NY, filed 10/1/2015), filed in federal district court in New York, alleges that defendants violated the Torture Victims Protection Act and the Alien Tort Claims Act, contending:

The Rohingya people numbering over 1.3 million is a Muslim minority living in western Myanmar. Although they are living in the country for generations they are denied citizenship and basic necessities including basic healthcare, work and schooling. They are  primary targets of hate crimes and discrimination amounting to genocide fueled by extremist nationalist Buddhist monks and Thein Sein government....

In 1982, the Burman supremacist government stripped most Rohingya of their citizenship. They were re-named “Bengalis,” and reclassified as foreign to Myanmar. Rohingya speak a different language and are not “Bengalis,” a different ethnic group that lives mostly in Bangladesh. Their only common identity is that both groups are Muslim.

Carson Want IRS To Penalize CAIR Over Its Call For Him To Leave Presidential Race

As previously reported, last month the Council on American-Islamic Relations called for Dr. Ben Carson to withdraw from the Republican Presidential contest after Carson told an interviewer that a Muslim should not be made President and that Islam is inconsistent with the U.S. Constitution.  Now, as reported by today's Washington Times, Dr. Carson is urging the Internal Revenue Service to immediately revoke CAIR's tax-exempt status.  Carson has posted a petition on his campaign website saying in part:

The Council on Islamic-American Relations (CAIR), a U.S. Muslim group, recently demanded that I withdraw as candidate for the 2016 presidential race. By doing so, the organization has brazenly violated IRS rules prohibiting tax-exempt nonprofits like CAIR to intervene in a political campaign on behalf of—or in opposition to—a candidate. 

5th Circuit (With Dissents) Denies En Banc Rehearing In Non-Profit Contraceptive Mandate Cases

In East Texas Baptist University v. Burwell, (5th Cir., Sept. 30, 2015), the U.S. 5th Circuit Court of Appeals denied a panel rehearing and, by a vote of 4-11, denied an en banc rehearing in three related cases, all raising challenges to the Obama administration's accommodation for religious non-profits that object to the Affordable Care Act requirement that their health insurance policies cover contraceptive services. The 3-judge panel held that plaintiffs had not shown a substantial burden on their religious exercise. (See prior posting.) Judge Jones, joined by Judges Clement and Owen filed a dissent from the denial of the en banc rehearing, saying in part:

This case goes to the heart of religious liberty protected by the Religious Freedom Restoration Act (“RFRA”).... How ironic that this most consequential claim of religious free exercise, with literally millions of dollars in fines and immortal souls on the line, should be denied when nearly every other individual religious freedom claim has been upheld by this court. How tragic to see the humiliation of sincere religious practitioners, which, coming from the federal government and its courts, implicitly denigrates the orthodoxy to which their lives bear testament. And both ironic and tragic is the harm to the JudeoChristian heritage whose practitioners brought religious toleration to full fruition in this nation. Undermine this heritage, as our founders knew, and the props of morality and civic virtue will be destroyed.

Austin American-Statesman reports on the rehearing denial.

Britain Exempts Sikhs From Safety Helmet Requirements

Britain's Department for Work and Pensions issued a press release yesterday announcing that Sikhs who wear turbans for religious reasons are now exempt in almost all workplaces from safety helmet rules.  Previously, an exemption was available only for Sikhs working in the construction industry.  Parliament in enacting the Deregulation Act 2015 extended the exemption to all industries.  Under Sections 6 and 7 of the Act, however, safety helmets may still be required for Sikh first responders and those in the military. Law & Religion UK blog reports on the changes.

USCIRF Extended To December 11 As Part of Congressional Continuing Resolution

The U.S. Commission on International Religious Freedom has received at least a temporary reprieve.  On Wednesday President Obama signed the Continuing Appropriations Act that funds the government until December 11.  The funding provisions are a rider to HR 719, the TSA Office of Inspection Accountability Act of 2015. (Full text of Act.)  In addition, Sec. 147 of the Act extends the life of the U.S. Commission on International Religious Freedom to December 11.  Without this extension, USCIRF would have ceased to exist on Sept. 30.

School Sued Over Refusal To Allow Religious Allusion On Donor's Plaque

A lawsuit was filed Wednesday against the Colorado School of Mines by an alumnus (a former member of the school's football team) because the school rejected an inscription he chose for his donor plaque.  The complaint (full text) in Lucas v. Johnson, (D CO, filed 9/30/2015), contends that as part of the school's fundraising campaign for a new Athletic Complex, donors could purchase a personalized nameplate to be placed in the new football locker room.  The donor could place a 3-line quote, along with certain other information, on his or her nameplate.  Alumnus Michael Lucas submitted only one line for his quote: "Colossians 3:23 & Micah 5:9."  The school rejected the quote because if one went to the text of the Colossians reference, it included mention of "the Lord." A school faculty member soliciting contributions told Lucas that his nameplate could not use a quote that contained the words God, Lord, or Jesus, but he could choose another Bible verse that did not contain those words.  Plaintiff contends this policy violates his 1st and 14th Amendment rights.  Alliance Defending Freedom issued a press release announcing the filing of the lawsuit.

Most of Rabbinical College's Challenges To Land Use Restrictions Are To Proceed To Trial

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, (SD NY, Sept. 29, 2015), a New York federal district court ruled on various motions in challenges to the land use ordinances of the Village of Pomona, New York that allegedly were adopted to prevent plaintiffs from constructing a planned rabbinical college. (See prior related posting.)  In a 145-page opinion, the court imposed limited sanctions on defendants for their destruction of a relevant Facebook posting:

Because Defendants concealed—and failed to disclose—the relevant Facebook post and potentially a portion of the accompanying text messages, the jury will be instructed that it may infer that the contents of the Facebook Post indicated discriminatory animus towards the Hasidic Jewish population. Defendants also will be precluded from offering evidence to rebut that specific inference, though they can still present evidence to indicate that the Challenged Laws were not adopted for discriminatory reasons.

The court went on to allow plaintiffs to proceed on their equal protection, free exercise, freedom of association, RLUIPA, Fair Housing Act and various state law challenges, denying motions by both parties for summary judgment.  However the court dismissed plaintiffs' free speech challenge, holding that "the fact that building a rabbinical college might enable religious speech does not render its construction speech itself."

Respondents In Oregon Wedding Cake Case Refuse To Post Bond For Their Appeal

As previously reported, in July the Oregon Bureau of Labor and Industries, as part of a cease and desist order, levied $135,000 in damages against the owners of Sweet Cakes by Melissa Bakery for their refusal to provide a wedding cake to a same-sex couple. Instead of paying the damages the owners have filed an appeal with the state court of appeals, but, according to yesterday's Oregonian, they refuse to provide the bond or irrevocable letter of credit that is required to pursue the appeal. Aaron and Melissa Klein apparently claim financial hardship even though crowdfunding sites set up to support them have raised some $515,000. State officials have now filed in court seeking a judgment that will allow them to attach assets belonging to the Kleins. [Thanks to Scott Mange for the lead.]

Anchorage, Alaska Passes LGBT Anti-Discrimination Law Over Religious Objections

Late Tuesday night, the Anchorage, Alaska Assembly by a vote of  9-2 enacted amendments to the city's equal rights ordinance barring discrimination on the basis of sexual orientation and gender identity in housing, employment, public accommodations and education. (Full text of Ordinance as proposed.) Alaska Dispatch News reporting on the Assembly's actions says that the ordinance will take effect when signed by Assembly Chair Dick Traini, expected on Friday. Mayor Ethan Berkowitz does not plan to veto the ordinance. A package of 17 proposed amendments (full text) were largely rejected. They focused on expanding religious exemptions and rules for gender-segregated restrooms.  According to the Dispatch News:

In the end, only two were approved: a Flynn amendment stating that nothing in the law would trump state and federal First Amendment rights, and an Evans amendment adding a reference to a Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church and School vs. EOCC, to define a “ministerial exemption.”

The Assembly narrowly rejected Assembly Chair Dick Traini's proposals to extend the city’s existing religious preference law to “nonprofit affiliates,” such as Providence Alaska Medical Center, and to add language that would prevent employers from firing employees for expressing religious views.

Opponents of the law, who argue that it infringes religious liberty, plan to seek a referendum to repeal it. The Assembly rejected a proposal to require a public advisory vote on the measure.  Alaska Public Media reported:

Opposition to the bill came primarily from two socially conservative Assembly Members from the Eagle River Chugiak area, Amy Demboski and Bill Starr, both of whom say it infringes on residents’ religious and free speech rights. Much of the audience was wearing red–a sign of opposition to the measure, called for by a coalition of conservative faith groups. After hours of impassioned testimony that often addressed the crowd instead of fellow Assembly Members, Starr left his seat behind the dais to speak from the floor as a citizen rather than official.

“I buy into that Bible, that book, that says homosexuality and that type of deviant behavior is wrong.”

He then slipped on a red vest before receiving the night’s only standing ovation.

“And I’ll tell you what red is–somebody said ‘well what what are you wearing red for?’ It’s the blood of Jesus Christ folks, that’s what it represents.”

CNN Says Warren Jeffs Still Directs FLDS Church From Prison

In a long investigative report on convicted sexual offender and FLDS Church leader Warren Jeffs, CNN quotes a private investigator who says that while day-to-day matters are run Jeffs' brother, Jeffs himself still "actively directs church matters from prison." CNN produced an hour-long special last night on Jeffs and life inside the polygamous FLDS Church.

DOJ Files RLUIPA Suit Against Illinois City Over Mosque Rezoning

The U.S. Department of Justice announced yesterday that it has filed suit against the city of Des Plaines, Illinois alleging that the city violated RLUIPA when it refused to rezone a vacant office building to allow the American Islamic Center to operate a place of worship there. The complaint (full text) in United States v. City of Des Plaines, Illinois, (ND IL, filed 9/30/2015) alleges the city violated the substantial burden, equal terms and discrimination provisions of RLUIPA. As summarized in the press release:

The complaint alleges that the city imposed parking standards and other zoning criteria that were not supported under its zoning ordinance and that it had never imposed on non-Muslim places of worship.

Chicago Tribune reports on the lawsuit.

Pope Francis Met With Kim Davis; Supports Conscientious Objection

In a press release issued yesterday, Liberty Counsel disclosed that Rowan County, Kentucky Clerk Kim Davis met with Pope Francis at the Vatican Embassy in Washington last Thursday. Davis' husband was also at the private meeting during which the Pope, speaking in English, thanked Davis for her courage and presented her with rosaries for her parents who are Catholic. Davis has refused to issue marriage licences to same-sex couples, and was jailed for contempt for several days as a result. (See prior posting.) In a press conference on his plane back to Rome (before the meeting with Davis was announced publicly), the Pope told reporters that conscientious objection is a human right. When asked whether that applies to government officials, the Pope responded: "It is a human right and if a government official is a human person, he has that right."

Archdiocese Must Go To Trial On Teacher's Hostile Work Environment Claims

In Bohnert v. Roman Catholic Archbishop of San Francisco, (ND CA, Sept. 25, 2015), a California federal district court refused to dismiss a hostile work environment and emotional distress suit by by a former biology teacher in a boys' Catholic high school.  As described by the court, male students at the school sexually harassed the teacher, including disseminating several "upskirt" photos and videos of her.  In a 38-page opinion, the court rejected the Archdiocese's  motion for summary judgment on its "ministerial exception" and "church autonomy" defenses, finding that numerous factual issues remain.

Recent Articles of Interest

From SSRN:

• Meital Pinto, The Absence of the Right to Culture of Minorities Within Minorities in Israel: A Tale of a Cultural Dissent Case, (4 Laws 579–601 (2015)).
• Janne Elisabeth Nijman, Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium, (Martti Koskenniemi, Monica García-Salmones, and Paolo Amoroso (Eds.), International law and Religion (Forthcoming)).
• Eric Heinze, Hate Speech and Democratic Citizenship, (in Hate Speech and Democratic Citizenship, Oxford University Press, February 2016).
• Darryl Li, Jihad in a World of Sovereigns: Law, Violence, and Islam in the Bosnia Crisis, (Law and Social Inquiry, 2015).
• Christopher R. Hoyt, Income Tax Deductions for Charitable Bequests of IRD, (September 24, 2015).

From SSRN (Same-Sex Marriage):

• James M. Donovan, Half-Baked: The Demand by For-Profit Businesses for Religious Exemptions from Selling to Same-Sex Couples, (Loyola of Los Angeles Law Review, Vol. 49, 2015).
• Patrick Talbot, Same-Sex Marriage and Religious Liberty Clashes in the U.S., After Obergefell v. Hodges: (An American Constitutional Challenge), (Anthology on Religious Freedom by Center of Ethics and Socio-Religiosity Studies Petra Christian University (PCU), Forthcoming).
• Anthony C. Infanti, Victims of Our Own Success: The Perils of Obergefell and Windsor, (Ohio State Law Journal Furthermore, Forthcoming).
• Peter Nicolas, Obergefell's Squandered Potential, (California Law Review Circuit, 2015 Forthcoming).

Malaysia's Federal Court Upholds State Ban On Producing Book Contrary To Islamic Law

As reported by Bernama and Malaysian Insider, Malaysia's Federal Court yesterday upheld against freedom of expression and other challenges Section 16 of the Selangor Syariah Law which criminalizes producing, disseminating or possessing for sale any book or document that is contrary to Islamic law.  ZI Publications and its director Mohd Ezra Mohd Zaid were charged by Selangore state authorities with violating Section 16 by publishing a book titled "Allah, Love and Liberty" written by a Canadian author and Muslim reformer Irshad Manji. ZI and Zaid challenged the validity of the state law in the Federal Court.  But Justice Raus, writing for a 5-judge panel, said that the constitutional protections for freedom of expression must be read together with provisions declaring Islam as the country's religion and giving states the power to control or restrict propagation of any religious doctrine or belief among persons professing the religion of Islam.

Estate Loses Income Tax Deduction For Large Contributions To Churches Because of Will Challenges

In Estate of DiMarco v. Commissioner, (T.C., Sept. 21, 2015), the U.S. Tax Court denied the estate of John DiMarco a deduction on its 2010 income tax return for a $314,942 contribution to two churches.  DiMarco's will left his residuary estate to the churches he attended regularly at the time of his death. The Tax Court held that because of various challenges to the will, it was not clear until 2013 that the churches would receive the contributions.  Thus presumably any deduction would have to be taken in that year, if income was available to offset against the deduction. The court affirmed the tax commissioner's assessment of a $108,588 deficiency for 2010.

5th Circuit's Revised Opinion Again Allows School To Reject Jumbotron Ad of Tattooed Jesus

Last week in Little Pencil, LLC v. Lubbock Independent School District, (5th Cir., Sept. 23, 2015), the U.S. 5th Circuit Court of Appeals denied an en banc rehearing, but granted a panel rehearing, in a religious free speech case.  The panel withdrew its earlier brief opinion that merely adopted the reasoning of the district court and substituted an opinion that reached the same result-- dismissing the complaint-- but on somewhat narrower grounds.  At issue was a high school's refusal to display on its football field jumbotron an ad depicting a tattooed Jesus and a website URL, as part of a marketing concept using a new way to share the Bible's teachings. In its new opinion, the court s

We hold that the football field was a limited public forum and LISD’s content-based, viewpoint-neutral limitations were reasonable in the light of a Texas law against tattoo parlors serving minors and LISD policies against visible tattoos.... The plaintiffs' Establishment Clause claim fails because LISD may legitimately exclude the ad for its tattoo content without a "risk [of] fostering a pervasive bias or hostility to religion..."

The court also rejected due process, equal protection and free exercise claims.

USCIRF Sunsets Sept. 30 If New Legislation Is Not Passed

While most of the Congressional attention to Sept. 30 has focused on the broad expiration of government funding on that date if a Continuing Resolution is not passed (background), less noticed is the fact that authorization for the U.S. Commission on International Religious Freedom also sunsets on that date.  Not surprisingly, last week USCIRF attempted to call attention to the problem by issuing a press release.  In Congress, S. 2078 has been introduced to extend the Commission for another four years, but so far it has only been reported out of committee in the Senate.

Recent Prisoner Free Exercise Cases

In Thomas v. Morris, 2015 U.S. Dist. LEXIS 125911 (ED WI, Sept. 21, 2015), a Wisconsin federal district court allowed an inmate to move ahead with his complaint that certain jail officials refused to honor his food requests relating to Passover 2015.

In Thomas v. Lawler, 2015 U.S. Dist. LEXIS 126135 (MD PA Sept. 22, 2015), a Pennsylvania federal district court dismissed a Muslim inmate's complaints that the multi-faith chapel contains offensive religious iconography; he is unable to pray shoulder to shoulder with other Muslims due to inadequate space; he is unable clean himself prior to religious services; and the chapel's location up 4 flights of steps often means he cannot attend prayer services because his health prevents his climbing stairs,

In Gee v. Sabol, 2015 U.S. Dist. LEXIS 126872 (MD PA, Sept 22, 2015), a Pennsylvania federal district court rejected an inmate's complaint that he was denied kosher meals, finding he had not established that he has a sincere religious belief in Judaism.

In Denegal v. Brazelton, 2015 U.S. Dist. LEXIS 126982 (ED CA, Sept. 22, 2015), a California federal magistrate judge recommended that an inmate be allowed to move ahead against one of the defendants on his complaint that he was denied his right to a name change for religious reasons.

In Karafili v. Cruzen, 2015 U.S. Dist. LEXIS 127094 (ND CA, Sept. 22, 2015), a California federal district court permitted a Muslim inmate to move ahead with his complaint that Muslim group prayer was disrupted one day even though Muslim inmates had received permission to pray in groups of up to 15.

In Bouman v. Broome, 2015 U.S. Dist. LEXIS 127555 (SD MS, Sept. 23, 2015), a Mississippi federal district court adopted a magistrate's recommendations and dismissed a Jewish inmate's complaint seeking $9 million in damages for violation of  his free exercise rights when he was disciplined for taking his Passover meal out of the dining area into his cell.

In Stinski v. Chatman, 2015 U.S. Dist. LEXIS 128061 (MD GA, Sept. 24, 2015), a Georgia federal district court, adopting in part a magistrate's recommendations, allowed a Wiccan inmate to move forward against various defendants with complaints involving denial of religious items and observances, and complaints as to forced shaving and haircut.

In Begnoche v. DeRose, 2015 U.S. Dist. LEXIS 128633 (MD PA, Sept. 24, 2015), a Pennsylvania federal district court dismissed complaints by a Native American inmate regarding availability of a Native American spiritual adviser and celebration of the Green Corn Feast.

In Webb v. Broyles, 2015 U.S. Dist. LEXIS 128784 (WD VA, Sept. 24, 2015), a Virginia federal magistrate judge recommended dismissing an inmate's complaint that he was wrongly removed from the Common Fare diet.

Pope Francis Addresses Clergy Sex Abuse and New Definitions of Marriage

As reported by Vatican Radio, Pope Francis today in Philadelphia held a private meeting with victims of clergy sexual abuse. He then addressed a meeting of bishops and departed from his prepared remarks to begin as follows:

I hold the stories and the suffering and the sorrow of children who were sexually abused by priests deep in my heart.  I remain overwhelmed with shame that men entrusted with the tender care of children violated these little ones and caused grievous harm.  I am profoundly sorry. God weeps.

The crimes and sins of the sexual abuse of children must no longer be held in secret.  I pledge the zealous vigilance of the Church to protect children and the promise of accountability for all.

They, the survivors of abuse, have become true heralds of hope and ministers of mercy. We humbly owe each one of them and their families our gratitude for their immense courage to shine the light of Christ on the evil of the sexual abuse of children.

I’m telling you this because I’ve just met with a group of sex abuse victims who are being helped and accompanied here in Philadelphia.

The remainder of his remarks to the bishops are also carried in the same Vatican Radio coverage. Those remarks included the following, which appears to be a reference to the legal recognition of same-sex marriage:

Needless to say, our understanding, shaped by the interplay of ecclesial faith and the conjugal experience of sacramental grace, must not lead us to disregard the unprecedented changes taking place in contemporary society, with their social, cultural – and now juridical – effects on family bonds.  These changes affect all of us, believers and non-believers alike.  Christians are not “immune” to the changes of their times.  This concrete world, with all its many problems and possibilities, is where we must live, believe and proclaim.

Until recently, we lived in a social context where the similarities between the civil institution of marriage and the Christian sacrament were considerable and shared.  The two were interrelated and mutually supportive.  This is no longer the case. 

Church Official's Defamation Suit Dismissed On Ecclesiastical Abstention Grounds

In Dermody v. Presbyterian Church (USA), (KY Cir. Ct., Sept. 21, 2015), a Kentucky trial court dismissed on ecclesiastical abstention grounds a defamation suit by PCUSA's former Deputy Executive Director of Mission against PCUSA.  Plaintiff Roger Dermody based his claim on PCUSA's informing people outside the governing body of the church that Dermody had violated PCUSA's ethics policies, apparently by allowing pastors under his supervision to set up a new non-profit organization to support the creation of new worship communities. The court concluded that if it were to adjudicate the defamation claim and the defense of truthfulness, it would have to determine whether Dermody had in fact committed ethics violations, which would require it to interpret church doctrine and policies. [Thanks to Tom Rutledge for the lead.]

Iran Says It Will Sue Saudis Over Hajj Deaths

According to the Straits Times, Iran's Attorney-General Ibrahim Raeesi yesterday said that his country will file a lawsuit in international legal bodies against Saudi Arabia over the death of at least 769 people in a stampede during the  Hajj pilgrimage last week. (See prior posting.)  Some 130 of the dead were pilgrims from Iran, and another 340 Iranian nationals remain missing. Iran says Saudi authorities had inadequate safety measures at the symbolic stoning of the devil ritual.  The Saudi's say the stampede was beyond human control.

Pope Francis Speaks On Religious Liberty At Independence Hall

Pope Francis today during his visit to Philadelphia, delivered an address in front of Independence Hall.  The talk (full text) billed as the Address of Pope Francis at the Meeting for Religious Liberty was delivered to an audience comprised of many representatives of the immigrant community in the United States.  The Pope said in part:

Religious freedom certainly means the right to worship God, individually and in community, as our consciences dictate.  But religious liberty, by its nature, transcends places of worship and the private sphere of individuals and families. 

Our various religious traditions serve society primarily by the message they proclaim.  They call individuals and communities to worship God, the source of all life, liberty and happiness.  They remind us of the transcendent dimension of human existence and our irreducible freedom in the face of every claim to absolute power.  We need but look at history, especially the history of the last century, to see the atrocities perpetrated by systems which claimed to build one or another “earthly paradise” by dominating peoples, subjecting them to apparently indisputable principles and denying them any kind of rights.... 

In a world where various forms of modern tyranny seek to suppress religious freedom, or try to reduce it to a subculture without right to a voice in the public square, or to use religion as a pretext for hatred and brutality, it is imperative that the followers of the various religions join their voices in calling for peace, tolerance and respect for the dignity and rights of others.

CNN reported on the Pope's remarks, pointing out that Francis made "no explicit references to any of the U.S. Catholic bishops' recent battles over religious rights."

Nativity Scene Challenge Dismissed After New Law Creates Neutral Forum

In Freedom From Religion Foundation, Inc. v. Franklin County, Indiana, (SD IN, Sept. 23, 2015), an Indiana federal district court dismissed a suit challenging the annual display of a nativity scene on the lawn of the Franklin County courthouse.  After the suit was filed, the county enacted a new ordinance providing a content neutral system for erecting private displays on the courthouse lawn.  The court held that this eliminated plaintiffs' claim for injunctive relief.  While plaintiffs still sought nominal damages, the court held:

By seeking only nominal damages, plaintiffs concede ... that they suffered no actual injury, or at least that the injury they claim cannot be redressed by an award of actual damages; thus appearing to have no standing.

Thomas More Society issued a press release announcing the decision.

Obama Exchanges Views With China's President On Human Rights and Religious Freedom

China's President Xi Jinping is on a state visit to the United States. (Background).  The two leaders held a joint news conference yesterday (full text) covering a wide range of topics.  Among the topics addressed were human rights and religious freedom in China:

President Obama: ... [W]e had a frank discussion about human rights, as we have in the past.  And I again affirmed America’s unwavering support for the human rights and fundamental freedoms of all people, including freedom of assembly and expression, freedom of the press and freedom of religion.  And I expressed in candid terms our strong view that preventing journalists, lawyers, NGOs and civil society groups from operating freely, or closing churches and denying ethnic minorities equal treatment are all problematic, in our view, and actually prevent China and its people from realizing its full potential.  

Obviously, we recognize that there are real differences there.  And President Xi shared his views in terms of how he can move forward in a step-by-step way that preserves Chinese unity. So we expect that we’re going to continue to consult in these areas.  

Even as we recognize Tibet as part of the People’s Republic of China, we continue to encourage Chinese authorities to preserve the religious and cultural identity of the Tibetan people, and to engage the Dalai Lama or his representatives....

President Xi: ... Democracy and human rights are the common pursuit of mankind.  At the same time, we must recognize that countries have different historical processes and realities, and we need to respect people of all countries in the right to choose their own development path independently. 

The Chinese people are seeking to realize the great renew of the Chinese nation, which is the Chinese history.  This process in essence is a process to achieve social equity and justice and advancing human rights.  China stands ready to, in the spirit of equality and mutual respect, conduct human rights dialogue with the United States, expand consensus, reduce differences, learn from each other, and progress together.

White House Announces New Appointments To Faith-Based Advisory Council

In a press release yesterday, the White House announced the names of 18 individuals whom President Obama will appoint to his third Advisory Council on Faith-Based and Neighborhood Partnerships. Additional appointments will be announced at a later date.  According to the press release:

The charge for this Council focuses on steps the government should take to reduce poverty and inequality and create opportunity for all, including changes in policies, programs, and practices that affect the delivery of services by faith-based and community organizations and the needs of low-income and other underserved persons.

Challenge To City Council Invocation Policy Is Moot

In Beaton v. City of Eureka, (CA App, Sept. 21, 2015), a California Court of Appeals dismissed as moot a state constitutional challenge to the city of Eureka's Invocation Policy adopted in 2012.  That policy required invocations at city council meetings to be non-sectarian.  In 2014, after a 9th Circuit opinion holding that sectarian prayers at city council meetings do not violate the Establishment Clause of the California or federal constitutions, Eureka adopted a revised Invocation Policy.  The challenge to the original policy is moot and the court refused to rule on the broader question of whether legislative prayer in all forms violates the California constitution.

At St. Patrick's, Pope Francis Talks of Muslims, Sex Abuse Scandal and Liberal Nuns

Arriving in New York City, the second leg of his trip to the United States, Pope Francis last night delivered a homily during vespers at St. Patrick's Cathedral. Speaking in Spanish, the Pope again dealt with topics that touched political chords in the United States. New York Times has the translation of his remarks in the form they were prepared for delivery. ABC News has a translation that includes a preliminary paragraph the Pope added extending greetings to "my Muslim brothers and sisters ... as they celebrate the feast of the sacrifice."  He also extended his "sentiments of closeness" to Muslims on the deaths of hundreds in the crush of Hajj crowds near Mecca yesterday. (See prior posting.)

In remarks that are likely to be criticized by victim advocates, the Pope gave support to American priests in the wake of Church sex abuse scandals:

I know that, as a presbyterate in the midst of God’s people, you suffered greatly in the not distant past by having to bear the shame of some of your brothers who harmed and scandalized the Church in the most vulnerable of her members… In the words of the Book of Revelation, I know well that you “have come forth from the great tribulation” (Rev 7:14). I accompany you at this time of pain and difficulty, and I thank God for your faithful service to his people.

During his remarks, the Pope also gave a particularly strong shout out to American nuns, who had been the subject of criticism during Pope Benedict XVI's tenure for their not hewing closely enough to conservative positions of the American bishops. (See prior posting.)  Pope Francis said:

In a special way I would like to express my esteem and gratitude to the religious women of the United States. What would the Church be without you? Women of strength, fighters, with that spirit of courage which puts you in the front lines in the proclamation of the Gospel. To you, religious women, sisters and mothers of this people, I wish to say “thank you”, a big thank you… and to tell you that I love you very much.

I know that many of you are in the front lines in meeting the challenges of adapting to an evolving pastoral landscape. Whatever difficulties and trials you face, I ask you, like Saint Peter, to be at peace and to respond to them as Christ did: he thanked the Father, took up his cross and looked forward!

USA Today reports that the Pope was twice interrupted by applause during his remarks praising American nuns.

Suit Against Synagogue Alleges Pregnancy Discrimination

New York Post reports on a pregnancy/ gender discrimination lawsuit filed in New York federal district court against the elite Upper-West Side Orthodox Jewish congregation, Shearith Israel, by its long-time program director, Alana Shultz. According to the complaint (full text) in Shultz v. Congregation Shearith Israel of the City of New York, (SD NY, filed 9/22/2015), the congregation fired Shultz (under the pretext of a staff restructuring) after she informed her supervisor that she was 19 weeks pregnant when her Orthodox Jewish wedding ceremony was performed.  The dismissal took place when Shultz returned from her honeymoon 23 weeks pregnant.  After Shultz hired counsel, the synagogue offered to hire her back, but Shultz refused. The complaint alleges violations of New York city and state anti-discrimination laws and the federal Family Medical Leave Act.  The suit does not allege violations of the federal Pregnancy Discrimination Act, presumably because of the exemption for religious institutions.

UPDATE: Congregation Shearith Israel denies the allegations in the complaint and says Shultz is still employed, receiving the same compensation and benefits, even though she has not bee at work since Aug. 14. (Forward, 9/27).

Suit Against Former Pastor For Financial Misdeeds Dismissed On Church Autonomy Grounds

In Trustees of the Alpine Methodist Episcopal Church v. New Jersey United Methodist Church, (NJ Super., Sept. 22, 2015), a New Jersey trial court dismissed on church autonomy and hierarchical deference grounds a suit by the trustees of a Methodist congregation  against its former pastor for misuse of church funds. The court said in part:

Here, Plaintiff alleges that Rev. Kim misused or misappropriated church funds and property in a variety of ways, including forging checks, paying his personal utility bills with Church funds, and utilizing Tipton [the financial secretary] as a means to convert church donations.... 

Before the Court can determine whether Rev. Kim is liable to Plaintiff under any claim, it would first have to determine whether Rev. Kim violated the rules set forth in The Book of Discipline and whether the [United Methodist Church's] policy and polity permitted Rev. Kim to engage in certain financial and managerial practices....

Moreover, Plaintiff’s sought relief through the UMC’s process, wherein Plaintiff’s representatives at the Church met with Superintendent Plumstead.... Plumstead met with the Church’s Staff Parish Relations Committee and advised the Committee that they had several options. The Committee could “move on”, i.e., accepting that grievances were duly lodged, or pursue internal church or legal action by filing a formal complaint with the bishop’s office... The Committee did not take any further internal church or legal action. In response, Plaintiff, by and through new representatives, did not accept this decision and decided to separate from the UMC.... Plaintiff believes that the hierarchical bodies of the UMC did not reach a just resolution of their claims and therefore, seeks relief in a secular court. Plaintiff’s recent disenchantment with the UMC does not warrant secular court review in contravention of the longstanding jurisprudence of this state’s Appellate Division, its sister states, and the Supreme Court of the United States

Mosque Can Proceed With RLUIPA Challenge To Denial of Use Variance

Bensalem Masjid, Inc. v. Bensalem Township, Pennsylvania, (ED PA, Sept. 22, 2015), is a suit by an Islamic religious organization that was denied a use variance to allow it to build a mosque on a split-zoned parcel of property.  Plaintiff alleges that its application was scrutinized much more harshly than those from other groups. Here a Pennsylvania federal district court held that plaintiff can proceed on its substantial burden, non-discrimination, unreasonable limitation and equal terms claims under RLUIPA, its free exercise and equal protection claims, and its state Religious Freedom Protection Act claim.

South Carolina Supreme Court Hears Oral Arguments In Episcopal Church Split

Yesterday, the South Carolina Supreme Court heard oral arguments in Protestant Episcopal Church In The Diocese of South Carolina v. Episcopal Church.  In the case, a state trial court held that 38 break-away Episcopal parishes in South Carolina retain ownership of their real, personal and intellectual property. It rejected claims by The Episcopal Church that an express or a constructive trust existed under which it could claim the property. (See prior posting.)  Both The State and the Post and Courier have reports on the arguments.  Also available online are the Appellants' Brief and Respondents' Brief to the state Supreme Court.  A related case is winding its way through federal courts. (See prior posting.)

Pope Francis Addresses Joint Session of Congress

Pope Francis this morning became the first Pope to address a joint session of Congress. He delivered an hour-long speech (full text) filled with appeals, often framed in subtle and sophisticated nuance, appealing to Congress and Americans to realize their own potential on a wide range of issues-- many of them politically charged.  Here are some of the more memorable quotes:

All of us are quite aware of, and deeply worried by, the disturbing social and political situation of the world today.  Our world is increasingly a place of violent conflict, hatred and brutal atrocities, committed even in the name of God and of religion.  We know that no religion is immune from forms of individual delusion or ideological extremism.  This means that we must be especially attentive to every type of fundamentalism, whether religious or of any other kind.  A delicate balance is required to combat violence perpetrated in the name of a religion, an ideology or an economic system, while also safeguarding religious freedom, intellectual freedom and individual freedoms.  But there is another temptation which we must especially guard against: the simplistic reductionism which sees only good or evil; or, if you will, the righteous and sinners.  The contemporary world, with its open wounds which affect so many of our brothers and sisters, demands that we confront every form of polarization which would divide it into these two camps.  We know that in the attempt to be freed of the enemy without, we can be tempted to feed the enemy within.  To imitate the hatred and violence of tyrants and murderers is the best way to take their place.  That is something which you, as a people, reject..... 

In recent centuries, millions of people came to this land to pursue their dream of building a future in freedom.  We, the people of this continent, are not fearful of foreigners, because most of us were once foreigners.  I say this to you as the son of immigrants, knowing that so many of you are also descended from immigrants.  Tragically, the rights of those who were here long before us were not always respected.  For those peoples and their nations, from the heart of American democracy, I wish to reaffirm my highest esteem and appreciation.  Those first contacts were often turbulent and violent, but it is difficult to judge the past by the criteria of the present.  Nonetheless, when the stranger in our midst appeals to us, we must not repeat the sins and the errors of the past.  We must resolve now to live as nobly and as justly as possible, as we educate new generations not to turn their back on our “neighbors” and everything around us.  Building a nation calls us to recognize that we must constantly relate to others, rejecting a mindset of hostility in order to adopt one of reciprocal subsidiarity, in a constant effort to do our best.  I am confident that we can do this.....

The fight against poverty and hunger must be fought constantly and on many fronts, especially in its causes.  I know that many Americans today, as in the past, are working to deal with this problem.

It goes without saying that part of this great effort is the creation and distribution of wealth.  The right use of natural resources, the proper application of technology and the harnessing of the spirit of enterprise are essential elements of an economy which seeks to be modern, inclusive and sustainable.  “Business is a noble vocation, directed to producing wealth and improving the world.  It can be a fruitful source of prosperity for the area in which it operates, especially if it sees the creation of jobs as an essential part of its service to the common good” (Laudato Si’, 129).  This common good also includes the earth, a central theme of the encyclical which I recently wrote in order to “enter into dialogue with all people about our common home” (ibid., 3).  “We need a conversation which includes everyone, since the environmental challenge we are undergoing, and its human roots, concern and affect us all” (ibid., 14).

 Washington Post has additional reporting on the speech.

Over 700 Killed In Hajj Crush of Pilgrims

Reuters reports that at least 717 Hajj pilgrims were killed and 805 others injured in a stampede outside Mecca today.  The crush occurred when two large groups of pilgrims arrived at the same time at a crossroads on the way to performing the "stoning the devil" ceremony at Jamarat. 4,000 rescue workers have been sent to the location of the accident.

In Unscheduled Stop, Pope Supports Challenge To ACA Contraceptive Mandate Accommodation

According to the Washington Post, Pope Francis as part of his visit to Washington yesterday made an unscheduled stop at the convent of the Little Sisters of the Poor.  The Little Sisters, who operate homes for the elderly in cities across the country, is involved in a high profile court case challenging the Obama Administration's accommodation for religious non-profits that object to making contraceptive coverage available to their employees. Vatican Radio reports today:

This is a sign, obviously of support for them [in their court case]” said Father Federico Lombardi, SJ, the head of the Holy See Press Office.

“In this sense it is connected also to the words that the Pope has said in support of the Bishops of the United States in the speech to President Obama,” Father Lombardi continued.

“This was a little addition to the programme, but I think it has an important meaning in this moment,” he said.

Presumably Father Lombardi's reference to the Pope's talk at the White House (see prior posting) were to this portion of the Pope's remarks:

[American Catholics are] concerned that efforts to build a just and wisely ordered society respect their deepest concerns and their right to religious liberty.  That freedom remains one of America’s most precious possessions.  And, as my brothers, the United States Bishops, have reminded us, all are called to be vigilant, precisely as good citizens, to preserve and defend that freedom from everything that would threaten or compromise it.

Little Sisters of the Poor have filed a petition for certiorari asking the U.S. Supreme Court to review the 10th Circuit's decision upholding the Obama Administration's contraceptive coverage accommodation for religious non-profits. (See prior posting.)

Florida City Ends Invocations After Satanist Demands Participation

The Coral Springs, Florida City Council has decided to end its practice of offering an invocation to open council meetings.  According to a report this week from Christian News Network, the decision came after a Satanist requested to lead an invocation.  Bowing to the campaign by Satanist Chaz Stevens to force an end to city council prayers by "mak[ing] a fiasco out of it," Coal Gables Mayor Skip Campbell said he did not want to spend thousands of dollars on lawyers fees to fight Stevens' invocation request.

Pope Addresses Politically Sensitive Topics In First U.S. Speeches

In his first full day in the United States, Pope Francis today waded into the politically sensitive topics of immigration, climate change and the Church's sex abuse scandals.  He gave two major addresses one at the White House this morning (full text) and a second (full text) to the U.S. Catholic Bishops at a mass at the Cathedral of St. Matthew the Apostle, close to the White House. Here are some excerpts:

On immigration:

As the son of an immigrant family, I am happy to be a guest in this country, which was largely built by such families. (White House speech).

My second recommendation has to do with immigrants.  I ask you to excuse me if in some way I am pleading my own case.  The Church in the United States knows like few others the hopes present in the hearts of these “pilgrims”.  From the beginning you have learned their languages, promoted their cause, made their contributions your own, defended their rights, helped them to prosper, and kept alive the flame of their faith.  Even today, no American institution does more for immigrants than your Christian communities.  Now you are facing this stream of Latin immigration which affects many of your dioceses.  Not only as the Bishop of Rome, but also as a pastor from the South, I feel the need to thank and encourage you.  Perhaps it will not be easy for you to look into their soul; perhaps you will be challenged by their diversity.  But know that they also possess resources meant to be shared.  So do not be afraid to welcome them.  Offer them the warmth of the love of Christ and you will unlock the mystery of their heart.  I am certain that, as so often in the past, these people will enrich America and its Church. (Speech at St. Matthew's').

On Church sex abuse scandals:

I am also conscious of the courage with which you have faced difficult moments in the recent history of the Church in this country without fear of self-criticism and at the cost of mortification and great sacrifice.  Nor have you been afraid to divest whatever is unessential in order to regain the authority and trust which is demanded of ministers of Christ and rightly expected by the faithful.  I realize how much the pain of recent years has weighed upon you and I have supported your generous commitment to bring healing to victims – in the knowledge that in healing we too are healed – and to work to ensure that such crimes will never be repeated. (Speech at St. Matthew's)

On climate change:

Mr. President, I find it encouraging that you are proposing an initiative for reducing air pollution.  Accepting the urgency, it seems clear to me also that climate change is a problem which can no longer be left to a future generation.  When it comes to the care of our “common home”, we are living at a critical moment of history.  We still have time to make the changes needed to bring about “a sustainable and integral development, for we know that things can change” (Laudato Si’, 13).  Such change demands on our part a serious and responsible recognition not only of the kind of world we may be leaving to our children, but also to the millions of people living under a system which has overlooked them.  Our common home has been part of this group of the excluded which cries out to heaven and which today powerfully strikes our homes, our cities and our societies.  To use a telling phrase of the Reverend Martin Luther King, we can say that we have defaulted on a promissory note and now is the time to honor it. (Speech at White House).

Parties Dismiss Suit That Claimed Teacher Punished Student For Nonbelief

WANE News reports that yesterday an Indiana federal district court dismissed, upon agreement of the parties, a suit that was filed in June claiming that a Fort Wayne (IN) elementary school teacher punished a second grade student who allegedly upset classmates by telling them that he did not go to church or believe in God. (See prior posting.)  The case is A.B. v. Meyer, (ND IN). An internal school investigation found that teacher Michelle Meyer acted appropriately and that the complaint in the lawsuit did not accurately reflect what had happened.  The teacher said her concern was that the student did not care about the impact of his words on a fellow student.

Pope Francis Visit To U.S. Begins Today-- How To Follow The Events

The White House has posted a page on its website captioned Pope Francis Is Coming To Washington.  It sets out the Pope's schedule for his visits to D.C., New York and Philadelphia, and other basic information about the visit.  It also provides a form to sign up for e-mail alerts during the Pope's visit.  He arrives from Cuba at Andrews Air Force Base today at 4:00 p.m.  Coverage of the visit will be streamed live online by the U.S. Conference of Catholic Bishops here.  EWTN is also providing live streaming of both the Cuba and U.S. portions of the visit. Of course, the Vatican News Portal also has extensive coverage.  A private Catholic evangelization website, Pope Francis Visit 2015, has extensive background material and coverage as well.  It even offers extensive Pope Francis merchandise and memorabilia for sale.

More On Rowan County, Kentucky, and Marriage Licenses

When Kentucky federal district court Judge David Bunning released Rowan County Clerk Kim Davis from jail where she had been placed for refusing to comply with a court order to issue same-sex marriage licenses (see prior posting), he also ordered the five deputy clerks who agreed to comply with the order to file a status report every 14 days. (Full text of order). The first of the ordered reports (full text) was filed on Sept. 18 on behalf of Deputy Brian Mason, the Deputy Clerk who, by mutual agreement, is actually issuing the licenses.  He reports in detail on language changes Kim Davis made in the forms. These include elimination of references to Davis in the form. The other Deputy Clerks filed their first status reports yesterday (Sept. 21).  Perhaps the most interesting (full text) is the one filed on behalf of Deputy Clerk Kristy Plank, which says in part:

As of this filing, Mrs. Plank reports that, to the best of her knowledge, all requests for marriage licenses requested by legally qualified couples have been issued.  The only denial of a marriage license application that has occurred within the last two weeks was to a gentleman who stated that he wanted a license that would permit him to marry “Jesus”. When it was explained to the individual that both parties had to be present, he stated, “Jesus is always present”. After being denied, the gentleman returned later and presented a type of Power of Attorney document issued by his church granting him authority to sign “Jesus’” name. Since both parties were not present these requests were denied.

For those who want to follow all the filings in this case (and in other cases involving LGBT rights), a comprehensive source is the non-profit organization Equality Case Files which posts these primary source materials online.  They are most easily accessed through the group's Twitter feed, its Facebook page or its library on Scribd. [Thanks to Marty Lederman via Religionlaw for the lead.]

UPDATE: On Sept. 21, the ACLU filed a motion (full text) with the court asking it to issue an order requiring marriage licences issued by the Rowan County Clerk's Office to be in the form that was used prior to Sept. 8, and not in the altered form that Davis has imposed. The motion argues that the changes-- especially listing the person signing it as "Notary Public" rather than "Deputy Clerk"-- cast question on the validity of the license and casts "a stamp of animus against the LGBT community."

CAIR Calls For Carson To Withdraw From Presidential Race Because of His Comments About Muslims

As reported by the Wall Street Journal, yesterday CAIR-- the Council on American-Islamic Relations-- called for Dr. Ben Carson to withdraw from the contest for the Republican Presidential nomination, saying that Carson "is unfit to lead and because his views are inconsistent with the United States Constitution."  The call comes after Carson, who identifies as a Seventh Day Adventist, said on Sunday's Meet the Press that a Muslim should not be made President and that Islam is inconsistent with the U.S. Constitution. (See prior posting.)  In an interview with The Hill on Sunday, Carson expanded on  his views:

I do not believe Sharia is consistent with the Constitution of this country.  Muslims feel that their religion is very much a part of your public life and what you do as a public official, and that’s inconsistent with our principles and our Constitution.

According to The Hill:

Carson said that the only exception he’d make would be if the Muslim running for office “publicly rejected all the tenants of Sharia and lived a life consistent with that.”

...  However, on several occasions Carson mentioned "Taqiyya," a practice in the Shia Islam denomination in which a Muslim can mislead nonbelievers about the nature of their faith to avoid religious persecution. “Taqiyya is a component of Shia that allows, and even encourages you to lie to achieve your goals,” Carson said.

CAIR says it will send each candidate in the primaries a copy of the Koran, and will send a copy to any American who requests it and pays the cost of shipping.

Recent Articles of Interest

From SSRN:

• Amélie Barras & Dia Dabby, Only Skin Deep? Revising the Secular Narrative Through Circumcision, (Heather Shipley (ed.), Globalized Religion and Sexual Identity: Contexts, Contestations, Voices (Brill Academic Publishing, 2014), 86-106).
• Ifzal Mehmood, Siddiq Ali Chishti & Muhammad Hassan, Right of Women to Divorce: Adjudication of Redemption (Khul‘) in Islamic Law and Pakistani Law, a Critical Analysis of the Orthodox Islamic Scholars and Recommendations of Pakistani Courts on the Basis of Legal Opinion (Ijtihad), (Australian Journal of Basic and Applied Sciences, 2015).
• Kathryn Chan, The Advancement of Religion as a Charitable Purpose in an Age of Religious Neutrality, (September 12, 2015).
• Lynne Marie Kohm, The Unspoken Consequences of Obergefell: Calling Convictional Christian Scholars, (September 15, 2015).
• Steve Sanders, RFRAs and Reasonableness, (Indiana Law Journal, Forthcoming).
• Kellen R. Funk, Shall These Bones Live? Property, Pluralism, and the Constitution of Evangelical Reform, (Law and Social Inquiry, Forthcoming).
• Kari E. Hong, Obergefell's Sword: The Liberal State Interest in Marriage, (University of Illinois Law Review, Forthcoming).

From SmartCILP:

• Sonu Bedi, The Horizontal Effect of a Right to Non-Discrimination in Employment: Religious Autonomy Under the U.S. Constiution and the Constitution of South Africa, 95 Boston University Law Review 1181-1204 (2015).
• Robin Fretwell Wilson, Bargaining for Civil Rights: Lessons From Mrs. Murphy for Same-Sex Marriage and LGBT Rights, 95 Boston University Law Review 951-993 (2015).
• Michelle Kundmueller, The Devil Is In All the Details (Not Just In Georgia), [LEXIS link], 13 First Amendment Law Review 221-261 (2014).

Church Denied Injunction Against Noise From Downtown Festival

A Nevada federal district court last week refused to grant a preliminary injunction to a downtown Las Vegas church that fears noise and road closings from the annual Life Is Beautiful festival will interfere with its ability to hold its regular weekend services.  The festival is scheduled for this coming weekend.  While the parties worked out some compromises, the festival would not agree to cancel concerts on two stages near the church on Saturday and Sunday nights. The church refused suggestions to move its services elsewhere.  In Amistad Christiana Church v. Life Is Beautiful, LLC, (D NV, Sept. 18, 2015), the court rejected the argument that the grant of the special use permit to the festival violates the church's free exercise rights. The permit does not selectively burden the church.  The court relied heavily on the U.S. Supreme Court's statement in its 1988 Lyng case that: "The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens." The court also rejected the church's private nuisance claim.

Paper Profiles Mat Staver and His Organzation Liberty Counsel

The Orlando Sentinel this weekend carries a lengthy profile of Mat Staver and his and his Christian conservative legal organization, Liberty Counsel.  Staver has recently been in the news because of his high profile representation or Rowan County, Kentucky Clerk Kim Davis who refuses to issue marriage licenses to same-sex couples.  Here is an excerpt from the article:

The maelstrom that formed earlier this month around Davis — an Apostolic Christian who said she was acting on her faith — involves factions Staver knows well. Liberty Counsel, a Maitland-based legal organization he founded, has spent decades representing the conservative vanguard in debates over abortion, gay marriage and religion's place in the public sphere.

In the process, the nonprofit has ballooned from a tiny venture collecting less than $200,000 in yearly donations to a multipronged organization that hauled in more than $4 million in the 2013 tax year, employs 10 staff attorneys, runs an outreach to Israel and even released its own feature film last year.

Presidential Hopeful Ben Carson Says Islam Is Not Consistent With U.S. Constitution

In an interview today on Meet the Press (video excerpt), Dr. Ben Carson-- currently one of the leading contenders (latest CNN poll) for the Republican Presidential nomination-- asserted that Islam is inconsistent with the U.S. Constitution. Politico reports on Carson's responses to a series of questions from moderator Chuck Todd triggered by Donald Trump's silence last week on an audience member's assertions about Islam and President Obama:

Asked whether his faith or the faith of a president should matter, Carson said, "It depends on what that faith is."

"If it's inconsistent with the values and principles of America, then of course it should matter. But if it fits within the realm of America and consistent with the constitution, no problem," he explained, according to a transcript.

Todd then asked Carson, whose rise in the polls has been powered in large part by Christian conservatives, if he believed that "Islam is consistent with the Constitution."

"No, I don't, I do not," he responded, adding, "I would not advocate that we put a Muslim in charge of this nation. I absolutely would not agree with that."

Carson said he would not necessarily have the same view about voting for a Muslim for Congress.

Recent Prisoner Free Exercise Cases

In Finley v. Nevada ex rel. Nevada Department of Corrections, 2015 U.S. Dist. LEXIS 122165 (D NV, Sept. 14, 2015), a Nevada federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 122167, (May 27, 2015), and dismissed complaints by African American Hebrew Israelite inmates that they were switched from the pre-packaged kosher meal program to the kosher common fare diet.

In Cole v. Danberg, 2015 U.S. Dist. LEXIS 122373 (D DE, Sept. 15, 2015) a Delaware federal district court dismissed a Muslim inmate's objections to a ban on charitable fundraising and institutional accounts; his claim that Muslim inmates are prevented from attending Friday services at the proper time and are not given equal time as other religious groups to conduct services; and the failure to furnish a Muslim inmate clerk and a typewriter. However the court permitted plaintiff to move ahead with has complaint that congregational prayer was banned and a Halal diet was not available.

In Walker v. Scott, 2015 U.S. Dist. LEXIS 122467 (CD IL, Sept. 15, 2015), an Illinois federal district court allowed a civilly committed Muslim inmate to move to trial on his complaint that he was denied a Halal or kosher diet and required to choose either the standard or vegetarian diet.

In Ellis v. Avery Mitchell Correctional, 2015 U.S. Dist. LEXIS 122679 (WD NC, Sept. 15, 2015), a North Carolina federal district court gave plaintiff inmate 20 days to submit evidence that he exhausted administrative remedies in seeking a vegan diet for religious reasons.

In Watkins v. Jones, 2015 U.S. Dist. LEXIS 123648 (ND FL, Sept. 15, 2015), a Florida federal district court adopted in part a magistrate's recommendations (2015 U.S. Dist. LEXIS 123647, Aug. 28, 2015) in a suit by a Muslim inmate and ordered prison officials to make kosher or other religiously acceptable meals available to plaintiff. The court dismissed as moot plaintiff's objection to prior rules barring his quarter-inch beard and dismissed his complaint that there were not separate Sunni Muslim services.

In Munic v. Langan, 2015 U.S. Dist. LEXIS 124662 (MD PA, Sept. 18, 2015), a Pennsylvania federal district court permitted a Jewish inmate to move ahead with is damage claims for denial of kosher meals, denial of visits with his rabbi, and denial of drug and alcohol treatment because of his religious beliefs.

In Damon v. Masters, 2015 U.S. Dist. LEXIS 124754 (SD WV, Sept. 18, 2015), a West Virginia federal district court adopted a magistrate's recommendations and dismissed a complaint by a Nation of Islam inmate that his free exercise rights were infringed when kidney beans were substituted for navy beans at a religious ceremonial meal. UPDATE: The magistrate's recommendation is at  2015 U.S. Dist. LEXIS 125757 (Aug. 25, 2015).

In Harvey v. Segura, 2015 U.S. Dist. LEXIS 124998 (D CO, Sept. 17, 2015), a Muslim inmate complained that authorities confiscated his only kufi, while prison officials contended that they took a second kufi which he was not entitled to keep under prison regulations.  A Colorado federal district court, adopting a magistrate's recommendation, dismissed the suit, but ordered officials to conduct a search of plaintiff's personal property. If he has no kufi, one must be furnished to him. If he does have one, this is to be reported to the court so it can consider sanctions for frivolous litigation.

Proposed Legislation Would Exempt Christian Scientists From ACA Individual Mandate

On Thursday, the House Ways and Means Committee voted (legislative history)  to forward on to the full House of Representatives H.R. 2061, the Equitable Access to Care and Health ("EACH") Act (full text). The proposed bill would extend the current religious conscience exemption in the Affordable Care Act that applies to Amish and Old Order Mennonites to also include Christian Scientists. (Background). The bipartisan bill currently has 170 co-sponsors in the House.  An identical Senate Bill (S. 352) has 30 co-sponsors.  The bill is still in committee in the Senate.

Top Massachusetts Court Hears Arguments On Whether Religiously-Motivated Corporal Punishment Disqualifies Foster Parents

Last week (Sept. 10), the Massachusetts Supreme Judicial Court heard oral arguments (video of full arguments) in Magazu v. Department of Children and Families (docket and links to briefs). As summarized by the Court at issue is:

Whether it was proper for the Department of Children and Families to deny the plaintiffs' request to become foster parents on the basis of the parents' religiously motivated use of corporal punishment on their biological children.

Wall of Separation blog discusses the case.

Pope Arrives In U.S. Tuesday; White House Guest List Already Raises Controversy

Pope Francis will arrive in the United States on Tuesday afternoon. Here is his official schedule. One event already creating controversy is the reception for the Pope on the South Lawn of the White House on Wednesday morning before his personal meeting with the President. According to Religion News Service today, while it is expected that nearly 15,000 people will attend the reception, conservative Catholics and at least one Vatican official are upset at invitations that have been extended to "a number of gay Catholics and LGBT advocates, an openly gay Episcopal bishop, and to a nun who is a prominent social justice activist." Other officials in the Vatican however apparently have no problem with the guest list.

6th Circuit Denies Kim Davis Stay of Injunction Pending Appeal

Yesterday in Miller v. Davis, (6th Cir., Sept. 17, 2015), the U.S. 6th Circuit Court of Appeals denied a motion by Rowan County, Kentucky Clerk Kim Davis to stay the preliminary injunction against her, pending appeal. The district court had enjoined Davis from refusing to issue marriage licenses to same-sex couples.  The appeals court said that Davis had not sought a stay from the district court, as required by Federal Rules, before asking the Court of Appeals for a stay.  Davis argued that it would have been useless to go to the district court first.

UPDATE: Marty Lederman at Balkinization blog (9/19) has a lengthy discussion of whether Kim Davis or her office is in violation of the federal district court's injunction in the implementation of the issuance by a deputy clerk of marriage licences with modified language.

8th Circuit Creates Circuit Split On ACA Contraceptive Mandate Accommodation For Religious Non-Profits

Disagreeing with the decisions of several other Circuit Courts of Appeal, yesterday the 8th Circuit held that the Obama administration's contraceptive coverage accommodation for religious non-profits violates RFRA.  In Sharpe Holdings, Inc. v. U.S. Department of Health and Human Services, (8th Cir., Sept. 17, 2015), the court held the requirement that CNS International Ministries and Heartland Christian College complete notification forms to opt out of providing coverage imposes a substantial burden on their exercise of religion:

Even if the ACA requires that insurance issuers and group health plans include contraceptive coverage regardless of whether CNS and HCC self-certify, it also compels CNS and HCC to act in a manner that they sincerely believe would make them complicit in a grave moral wrong as the price of avoiding a ruinous financial penalty.... [I]f one sincerely believes that completing Form 700 or HHS Notice will result in conscience-violating consequences, what some might consider an otherwise neutral act is a burden too heavy to bear.... Religious beliefs need not be “acceptable, logical, consistent, or comprehensible to others” to deserve protection.

The court went on to hold that even if the government has a compelling interest here, it has not used the least restrictive means to achieve its goals. Those less restrictive means include requiring the government to identify the third party administrator who will be responsible for furnishing coverage; having the government directly furnish contraceptive coverage to women whose employers object to doing so; or making contraceptive coverage available through insurance exchanges.

In a second opinion issued yesterday, Dordt College v. Burwell, the 8th Circuit applied its Sharpe Holdings precedent to a similar challenge by two religiously affiliated colleges.

In a press release on the decision, Becket Fund says that the split in Circuits created by yesterday's opinions greatly increases the likelihood that the Supreme Court will grant review in one or more cases raising the issue.  Cert petitions have already been filed in seven other cases in which circuit courts upheld the accommodation rules.

Probate Judge Asks Alabama Supreme Court To Protect His Refusal To Issue Same-Sex Marriage Licences

As reported by AL.com, on Wednesday Alabama Probate Judge Nick Williams filed an "Emergency Petition for Declaratory Judgment and/or Protective Order In Light of Jailing of Kentucky Clerk Kim Davis" (full text of petition) and a Memorandum In Support of the motion (full text). Williams objects on religious grounds to issuing marriage licenses to same-sex couples. The petition begins:

The jailing of Kentucky Clerk Kimberly B. Davis puts at immediate risk the liberty interest of all faithful and religiously sincere public officials in Alabama whose office has responsibility for making decisions as to whether to give sanction and honor to homosexual relationships to include the issuance of a license to engage in sodomy.  These officers need this Court's declaration that their sincerely held religious beliefs do not disqualify them from holding their office.

Last March, the Alabama Supreme Court issued a writ of mandamus ordering Probate Court judges around the state to discontinue the issuance of marriage licenses to same-sex couples, (See prior posting.)  Judge Williams emergency motion was technically filed as a motion in that case, captioned in the motion as Ex parte State of Alabama ex rel Alabama Policy Institute v. King (Case No. 1140460). .

Remaining Challenges To California's Ban On Reparative Therapy For Minors Dismissed

In 2013, the 9th Circuit rejected a facial free speech challenge by mental health providers to California's ban on engaging in sexual orientation change efforts with patients under 18. It also rejected a parental rights claim.  (See prior posting.) Now in Pickup v. Brown, (ED CA, Sept. 15, 2015), a California federal district court dismissed remaining challenges to the statute.  Finding the law is neutral and generally applicable, the court dismissed a facial Free Exercise challenge. The court also rejected, with leave to file an amended complaint, plaintiffs' "as applied" free speech challenge.

Court Says Lutheran Synod Dispute Panel's Decision Was Only Advisory

In Hillenbrand v. Christ Lutheran Church of Birch Run, (MI App., Sept. 15, 2015), a Lutheran pastor who was fired by his congregation filed suit after the Lutheran Church- Missouri Synod (LCMS) Dispute Resolution Panel concluded that the decision to terminate the pastor should be revised, and he should be paid his salary and benefits until he takes another position. The court held that LCMS is congregational and not hierarchical, and that the Dispute Resolution Panel's decision was merely advisory, even if the congregation wrongfully attempted to withdraw from the Synod in order to avoid the dispute resolution process.  The court added:

plaintiff is asking this Court to do exactly what the United States Supreme Court [in Hosanna-Tabor] said courts should not, i.e., impose an unwanted minister on a church.

Recent Articles of Interest

From SSRN:

• Deepa Das Acevedo, Divine Sovereignty, Indian Property Law, and the Dispute Over the Padmanabhaswamy Temple, (Modern Asian Studies, 2016).
• Giancarlo Anello, The Islamic Religion in the 'Architecture' of the 2014 Egyptian Constitution, ( Diritto & Questioni pubbliche, Forthcoming (2015)).
• Daniel Augenstein, Freedom of Religion and the Politics of the Liberal Public-Private Divide, (44(1) Netherlands Journal of Legal Philosophy (2015) 8-23).
• J. Patrick Dobel, Ethics: Holy Evil and Theocracy, (Encyclopedia of Public Administration and Public Policy, Third Edition 2015 by Taylor & Francis).
• Frederick Mark Gedicks, 'Substantial' Burdens, (BYU Law Research Paper No. 15‐18, Sept. 2015).
• Eleni Polymenopoulou, A Thousand Ways to Kiss the Earth: Artistic Freedom, Cultural Heritage and Islamic Extremism, (Rutgers Journal of Law and Religion, Volume 17, Fall 2015).
• John W. Ragsdale, Sacred in the City: The Huron Indian Cemetery and the Preservation Laws, (August 20, 2015).
• Nancy J. Knauer, Religious Exemptions, Marriage Equality, and the Establishment of Religion, (University of Missouri-Kansas City Law Review, Vol. 83, No. 1, 2015 Forthcoming).
• Peter Nicolas, Fundamental Rights in a Post-Obergefell World, (Yale Journal of Law & Feminism, Forthcoming.
• Burlette Carter, Brief of Amici Curiae Professor W. Burlette Carter in Support of Neither Party: Obergefell v. Hodges; Deboer v. Snyder; Tango v. Haslam; Bourke v. Beshear,  (GWU Law School Public Law Research Paper No. 2015-32).

From SmartCILP:

• Neil S. Siegel & Reva B. Siegel, Compelling Interests and Contraception, 47 Connecticut Law Review 1025-1043 (2015).

Note also that the various publications listed under "Journals" in the Religion Clause sidebar continue to publish regularly.

IRS Requires Speedier Responses From Applicants for Non-Profit Status

Last week the Internal Revenue Service issued a Memorandum For Exempt Organization Determination Employees (Sept. 8, 2015) giving organizations that apply for tax exempt status less time to submit additional information requested by the IRS. Under the new procedures if an organization does not provide the information by the due date, the case will be closed and fees will not be refunded.  A manager-approved extension of up to 14 days can be granted.  Previously an applicant could get a standard 14 day extension and then its file was held for an additional 90 days before it was closed.