Settlement Reached In Challenge To Terms of Indiana County's Open Forum Ordinance

On Friday the Thomas More Society announced that a settlement agreement (full text) has been reached in Freedom From Religion Foundation v. Franklin County, Indiana.  The suit followed the adoption of a county ordinance that, in order to insulate from challenge the display of a nativity scene, made the county courthouse a public forum for all types of expressive activities. In the suit, FFRF and the Satanic Temple objected to a provision in the ordinance that limits the open forum to county residents. (See prior posting.) Under the settlement agreement, the ordinance will be amended to merely require a local contact who works or resides in either Franklin county or an adjacent Indiana county for any unattended display.

Majority of Texas City Council Resign Over Holding of Forum Sponsored By FFRF

12 News this week reports that three members of the China, Texas City Council have resigned over the last month, apparently primarily because the mayor permitted the Freedom From Religion Foundation to hold a public panel discussion in city hall in October.  According to the Facebook page for the panel discussion:

The purpose of this event is to dispel misconceptions, gain accurate information about FFRF's ongoing involvement in SETX [Southeast Texas] school districts, and to discuss local and legal policies surrounding religion in public schools.

The resignations leave city council without a quorum to transact business. The Agenda for the Dec. 22 Council Meeting includes "Nominations for Vacant Council Seats."  Friendly Atheist blog has more on the controversy and a link to a video of the FFRF panel discussion.

New Appropriations Bill Includes Extensions of Charitable Contribution Tax Incentives

Yesterday President Obama signed into law the 887-page Consolidated Appropriations Act 2016.  Division Q of the bill is the "Protecting Americans From Tax Hikes Act" which made permanent a number of tax provisions that create incentives for charitable giving [scroll to pg. 805 of the bill]:

Sec. 111. Extension and modification of special rule for contributions of capital gain real property made for conservation purposes.

Sec. 112. Extension of tax-free distributions from individual retirement plans for charitable purposes.

Sec. 113. Extension and modification of charitable deduction for contributions of food inventory.

Sec. 114. Extension of modification of tax treatment of certain payments to controlling exempt organizations.

Sec. 115. Extension of basis adjustment to stock of S corporations making charitable contributions of property.

Calligraphy Assignment Involving Shahada Leads To Early Winter Break For Virginia Students

As reported by CNN, on Thursday afternoon Augusta County, Virginia school officials shut down all the schools a day early for winter break after information about a World Religion assignment handed out a week earlier received broad coverage and triggered threats to the school system.  At issue was an assignment in a high school world geography course-- taken from a standard workbook, World Religions, first published in 1995-- that was designed to acquaint students with Arabic calligraphy. The workbook assignment said:

Since Islam forbids idolatry, mosques are decorated with calligraphy rather than human or animal figures.... Here is the shahada, the Islamic statement of faith, written in Arabic.  In the space below, try copying it by hand.  This should give you an idea of the artistic complexity of calligraphy.

On Tuesday, the Augusta County School superintendent issued a press release explaining the assignment after some parents expressed concern to him.  As reported by Al Jazeera, high school parent Kimberly Herndon, one of the main objectors, posted a call on her Facebook page for the teacher involved to be fired because "she had [students] write an abomination to their faith and causes a little girl to cry herself to sleep because she was worried she had denounced her God."  Herndon accused the teacher of attempting to indoctrinate students "into a religion of hate."  In a press release on Thursday, the school superintendent announced:

Following parental objections to the World Geography curriculum and ensuing related media coverage, the school division began receiving voluminous phone calls and electronic mail locally and from outside the area. As a result of those communications, the Sheriff’s Office and the school division coordinated to increase police presence at Augusta County schools and to monitor those communications. The communications have significantly increased in volume today and based on concerns regarding the tone and content of those communications, Sheriff Fisher and Dr. Bond mutually decided schools and school offices will be closed on Friday, December 18, 2015.

This was followed up by an additional press release yesterday. Perhaps ironically, the early closure of schools apparently resulted in the cancellation of a number of Christmas programs, including choir and band concerts, scheduled for yesterday which students had been preparing for some time.

White House Convenes Forum on America's Religious Pluralism

As reported by Religion News Service, yesterday the White House convened a forum titled Celebrating and Protecting America’s Tradition of Religious Pluralism. Invited participants included secularists.  The program began with remarks by Melissa Rogers, head of the White House Office of Faith-based and Neighborhood Partnerships, who emphasized that "there are no second-class faiths" in the United States. A video of the entire forum is available on YouTube.  The Department of Justice has posted the full text of remarks at the forum by Vanita Gupta, head of the Civil Rights Division.

Britain's Law Commission Studies Possible Reform of Marriage Laws

Yesterday Britain's Law Commission published a 97-page background paper that lays the groundwork for possible reform of the country's marriage laws.  The publication, Getting Married: A Scoping Paper, highlighted two key policy areas that need examination in any reform: (1) whether non-religious organizations or independent celebrants should be able to conduct marriage ceremonies; and (2) how far the rules for entering civil partnerships should mirror the rules for marriage. Law & Religion UK has more on the Law Commission's report.

India's Supreme Court Balances Religious Rights Against Social Reform

In Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu, (India Sup. Ct., Dec. 16, 2015), the Supreme Court of India came down with a complicated holding on the constitutionality of an administrative order ("GO") adopted by the State of Tamil Nadu that attempts to eliminate the hereditary priesthood in Hindu temples.  It provides instead that "any person who is a Hindu and  possessing the requisite qualification and training" is eligible for appointment.  This was challenged by an association representing Hindu priests as well as by individual priests as infringing Constitutional rights of freedom of religion and of religious denominations to manage their own affairs.  India's First Post describes the Supreme Court's holding:

[T]he crucial purpose of the GO was to eliminate the monopoly of Brahmins as priests in the temples of Tamil Nadu. The idea was to open these positions to all suitable candidates from all castes who had obtained the appropriate training in the centres set up by the government.

The petitioners on the other hand contended that this GO went against the fundamental tenets of the Hindu religion, represented here by the agama shastras which prescribed how the rituals were to be carried out and who could be appointed as priests to Hindu temples. It was argued that following the agama shastras were “essential religious practices” protected under Article 26 of the Constitution which if deviated from on the basis of a GO, would amount to an invasion of the right of a denomination to carry out its religious practices.

[The Supreme Court] ... upheld the [GO] but with a rider that appointments made under it can be challenged on a case-by-case basis, as being contrary to the agama sastras or customs. But crucially, the agama sastras or customs may themselves be subject to scrutiny by the court to see if they are contrary to the provisions of the Constitution of India. The court has thus tried to strike a balance between two very contradictory impulses in our polity: The right to practice one’s religion and the social reform of religious practices.

Suit Challenges New Rule Excluding Religious Schools From Montana Scholarship Tax Credit Law

The Montana Department of Revenue in a notice (full text) certified to the Secretary of State on Dec. 14 that it has adopted, as proposed, Rule 1 (full text) that excludes religiously affiliated schools from participating in the state's new School Contributions Tax Credit law. (See prior posting.)  On Dec. 16. three mothers sued the state challenging the new rule.  The complaint (full text) in Espinoza v. Montana Department of Revenue, (MT Dist. Ct., filed 12/16/2015) claims that the exclusion of religiously affiliated schools is inconsistent with the intent of the legislature in enacting the scholarship tax credit law, and contends that the exclusion violates the free exercise, establishment and equal protection clauses of the Montana and U.S. Constitutions.  Institute for Justice announced the filing of the lawsuit.

Montana has a procedure for committees of the state legislature to weigh in on whether they believe that a particular proposed rule is consistent with legislative intent.  Using that procedure, the relevant committees of the Montana House and Senate voted that the proposed rule is inconsistent with legislative intent. (Notice of Legislative Poll).  The results of this legislative poll are admissible in evidence in the suit challenging the new rule.

The Great Falls Tribune reported yesterday:

Montana Solicitor General Dale Schowengerdt submitted comments while the rule was still in draft form that said a judge would likely decide it is unconstitutional to categorically exclude religious entities from a neutral benefits program without reason.

“The Attorney General believes that it would not be defensible,” Schowengerdt wrote of Montana Attorney General Tim Fox.

But Fox will have to defend the rule in the lawsuit and another expected to be filed in federal court. The Department of Justice is the attorney for the state when an agency is sued.

Catholic School Violates Mass. Law By Refusing To Hire Applicant Who Is In A Same-Sex Marriage

In Barrett v. Fontbonne Academy, (MA Super. Ct., Dec. 16, 2015), a Massachusetts state trial court held that a Catholic women's preparatory school unlawfully discriminated on the basis of sexual orientation and gender in violation of 21 MGL Chap. 151B when it withdrew an offer of employment as Food Services Director to Matthew Barrett after it discovered he was a spouse in a same-sex marriage.  The school said that same-sex marriage is inconsistent with the teachings of the Catholic Church.  In finding a statutory violation, the court rejected the school's argument that it came within the statutory exemption for religious organizations in Sec. 1(5) of the statute, because that exemption is limited to organizations that limit membership, enrollment, admission, or participation to members of the same religion. The court held that this limitation takes precedence over seemingly broader exemptive language for religious organizations in Sec. 4(18).  It also held that imposing these anti-discrimination provisions on the school did not violate the school's right of expressive association.  Finally the court rejected the school's reliance on the "ministerial exception" doctrine, concluding that Barrett would not be considered a minister "under any version of this doctrine." The Advocate reports on the decision.

DOE Exemptions From Title IX For Religious Colleges Is Growing

Earlier this month, The Column reported that in the last 18 months, the Department of Education has granted waivers to 27 religious colleges and universities in 17 states from the Department's interpretation of Title IX that bars schools receiving federal funds from discriminating against transgender students.  (See prior related posting.) Nine other schools have exemption applications pending. A number of these schools have sought and received even broader exemptions from Title IX based on the school's religious tenets.  For example in February the Department of Education granted a broad waiver to Anderson University:

The University is exempt from these provisions to the extent that they prohibit discrimination on the basis of marital status, sex outside of marriage, sexual orientation, gender identity, pregnancy, or abortion and compliance would conflict with the controlling organization’s religious tenets.

Christian advocacy groups are providing training and sample documents for schools to use in applying for exemptions. [Thanks to Religion Dispatches for the lead.]

Wheaton College Suspends Prof Over Statement In Solidarity With Muslims

Religion News Service yesterday reported on the controversy at Christian-affiliated Wheaton College which has placed political science professor Larycia Hawkins on administrative leave for a statement she made expressing solidarity with Muslims.  Hawkins, an Episcopalian, decided to wear a hijab during the Advent season leading up to Christmas as a statement of solidarity.  But the statement that potentially placed her job in jeopardy was a Facebook post reading:

I stand in religious solidarity with Muslims because they, like me, a Christian, are people of the book. And as Pope Francis stated last week, we worship the same God.

In a press release Tuesday, the Wheaton College administration said:

In response to significant questions regarding the theological implications of statements that Associate Professor of Political Science Dr. Larycia Hawkins has made about the relationship of Christianity to Islam, Wheaton College has placed her on administrative leave, pending the full review to which she is entitled as a tenured faculty member.

Wheaton College faculty and staff make a commitment to accept and model our institution's faith foundations with integrity, compassion and theological clarity. As they participate in various causes, it is essential that faculty and staff engage in and speak about public issues in ways that faithfully represent the College's evangelical Statement of Faith.

Historically Wheaton College, located in Illinois, while evangelical has not been fundamentalist in its outlook.  However the school has been one of the religious institutions at the center of the Affordable Care Act's contraceptive mandate controversy. (See prior posting.)

Fired Atlanta Fire Chief Can Move Ahead With Retaliation and Religious Freedom Claims

In Cochran v. City of Atlanta, (ND GA, Dec. 16, 2015), a Georgia federal district court allowed the city of Atlanta's former fire chief, Kelvin Cochran-- who was also a deacon at his Baptist church-- to move ahead on many of his claims growing out of his termination after he self-published book which included statements that God intended marriage to exist exclusively between a man and a woman, and that homosexual conduct is immoral.  The court allowed Cochran to move ahead against the City of Atlanta on claims for retaliation, viewpoint discrimination, and freedom of expressive association. He was also permitted to move ahead against the city on his overbreadth and prior restraint challenge to a city ordinance requiring approval of the city's Board of Ethics before department heads may provide private services for remuneration. The court found that Mayor Kasim Reed, who was also a defendant, had qualified immunity as to these claims.  The court went on to permit plaintiff to proceed against the city and the Mayor on claims of denial of procedural due process, violation of his 1st Amendment free exercise and expressive association rights and of the Article VI ban on religious tests for office. The court dismissed Cochran's Establishment Clause claim, with leave to amend.  The court also dismissed his equal protection claims and his claims of vagueness and reputational injury.

Alliance Defending Freedom issued a press release announcing the decision. Washington Times reports on the decision.

Groups Question Walgreen's Project With Catholic Health Care Clinics

On Monday, a group of 19 advocacy organizations sent a letter (full text) to Walgreen Co. questioning the announced plans of Walgreen to partner with a Catholic health care system in opening clinics in 25 Walgreen's drug stores in Washington and Oregon. The letter, signed by groups such as the ACLU, Lambda Legal, NARAL and Planned Parenthood affiliates, said in part:

We appreciate Walgreens’s objective to provide customers with convenient access to basic health services. However, as Providence is a religious health system, we are very concerned that these clinics will limit patients’ access to important health services. Customers or patients who request services at these clinics or at Walgreens’s pharmacies are entitled to assurances that the services, information, and referrals they receive will not be restricted by religious doctrine.

As you are likely aware, Providence is a Catholic health care system that is required to follow the Ethical and Religious Directives (“ERDs”) promulgated by the United States Conference of Catholic Bishops. These directives forbid or severely restrict critical reproductive and end-of-life health care services at Catholic health facilities, including contraception, abortions, fertility treatments, vasectomies, tubal ligations, aid in dying,  and advance directives that are contrary to Catholic teachings. Some religious health systems also restrict the information and referrals that their health providers are allowed to give to patients. Adherence to the ERDs also increases the likelihood that LGBTQ individuals and their families will face discrimination in seeking to access health care services consistent with their medical needs.

Think Progress reported on the letter.

Supreme Court Stays Alabama Refusal To Recognize Georgia Adoption

On Monday in V.L. v. E.L., (Docket No. 15-648) the U.S. Supreme Court issued a stay of an Alabama Supreme Court decision while it considers whether to grant certiorari in the case. (Order List, 12/14/2015.)  At issue is the Alabama Supreme Court's refusal to grant full faith and credit to a 2007 Georgia adoption decision involving a lesbian couple who were living together in Alabama as partners since 1995.  As reported by the Washington Post, one of the women, E.L., had three children conceived in 2002 and 2004 through donor insemination. The couple moved briefly to Georgia so that V.L. could obtain parental rights.  They then moved back to Alabama.  When the couple broke up in 2011, V.L. sought joint custody or visitation rights, but the Alabama Supreme Court refused holding that Georgia had violated its own laws in granting the initial adoption.  It held it need not recognize the adoption because the Georgia court lacked subject matter jurisdiction when it granted it.

Le Pen Acquitted On Hate Speech Charges

France 24 reports that Marie Le Pen, leader of France's far right National Front Party had hate speech charges against her dropped yesterday.  Le Pen was charged with "inciting discrimination, violence or hatred toward a group of people based on their religious beliefs" for the comments, which she made at a campaign rally in 2010.  The local prosecutor though asked for charges to be dropped because her comments "did not target all of the Muslim community."  At issue were Le Pen's remarks calling street prayers by Muslims in three French cities an "occupation of territory." The presiding judge said that Le Pen's comments, while shocking, were protected as freedom of expression-- a position supported by the French State Prosecutor. (See prior posting.)

Trial Court Rules In Factional Dispute In California Church

In a long-running case on remand from a California appellate court (see prior posting), a Los Angeles trial court judge yesterday entered a final judgment giving possession of the church and a commercial building it owns to one of the two competing factions in the St. Mary of the Angels Church in Los Feliz, California.  The Los Feliz Register reports that the court ruled in favor of Father Christopher Kelley and his followers.  An earlier Los Feliz Register report provided background:

Father Christopher Kelley—the rector from 2007 until his firing in 2012—and his supporters took sanctuary in the basement and celebrated mass, while the anti-Kelley faction used the church’s regular first floor offices and held mass in its tiny, but lovely chancel.

After three years and reams of legal documents filed by both sides with allegations hurled both ways, if you attended a mass today at weary St. Mary’s, you would be among only a dozen or so parishioners left from its once healthy congregation.

The dispute was complicated by the vote of the congregation's parishioners in 2012 to end affiliation with the Anglican Church and join the Catholic Church.  The losing faction in yesterday's decision said an appeal will be filed.

Cincinnati Enacts Conversion Therapy Ban

Last Wednesday, Cincinnati, Ohio followed four states and the District of Columbia in passing a ban on providing conversion therapy aimed at changing the sexual orientation of young people who are gay or lesbian. Cincinnati Enquirer reports that the new law imposes a $200 per day fine on violators. City Council passed the ordinance by a vote of 7-2 in the wake of the suicide death a year ago of a transgender teen who cited the conversion therapy she had been subjected to in her suicide note. During the comment period on the proposed ordinance, 21 people spoke against the bill on religious and free speech grounds.  One Baptist clergyman said: "This Council will create another another type of bondage for something people themselves have a right to seek liberty from."

Convicted Rabbi In "Coerced Get" Case Sentenced To 10 Years

In April, three defendants were convicted in federal district court in New Jersey on charges growing out of arrangements to abduct, beat and torture recalcitrant Jewish husbands who refused to give their civilly divorced wives a religious divorce document (get). (See prior posting.)  Yesterday the most prominent of those defendants, 70-year old Rabbi Mendel Epstein, was sentenced to ten years in prison for conspiracy to commit kidnapping.  A second defendant, Rabbi Binyamin Stimler, was sentenced to 39 months. As reported by AP, Rabbi Epstein told the sentencing judge: "Over the years, I guess, I got caught up in my tough-guy image. Truthfully, it helped me — the reputation — convince many of these reprobates to do the right thing."

Suit Seeks To Enjoin Enforcement of Noise Law Against Church

As reported by the New Orleans Advocate and a Liberty Institute press release , a lawsuit was filed last Thursday on behalf of Vintage Church in Metairie, Louisiana seeking a temporary restraining order to prevent enforcement of the Jefferson Parish Noise Ordinance against the church.  The suit claims that enforcement violates the church's rights under the Louisiana Preservation of Religious Freedom Act.  The church is meeting on Sundays in an outdoor tent while one of its buildings is undergoing expansion. After neighbors-- one in particular-- complained that the services were too loud, enforcement authorities monitored sound levels and issued two criminal summons to the executive pastor.  The lawsuit charges that it is discriminatory to limit the church's services to 60 decibels while allowing louder noise from power tools, lawn mowers and demolition activities.

UPDATE: The New Orleans Times-Picayune reports that on Dec. 22, the trial court denied the church's request for injunctive relief.

Cosmetologist Sues After Company Insists That In Training Class He Wear Women's Cosmetics

The Detroit Free Press reported yesterday on an unusual Title VII religious accommodation lawsuit filed Monday in a Michigan federal district court.  Barry Jones is an ordained elder in the Church of God in Christ where he has been preaching for 19 years. He is also trained in cosmetology and licensed by the Michigan Department of Licensing as an esthetician. In 2014 he took a position with an M.A.C. Cosmetics store in a now-closed Detroit area mall and began its training to become a full-time makeup artist.  As part of the training the company insisted that students apply makeup to each other, including blush, eye-shadow, lipstick and false eyelashes, so that they would know how those products feel when they apply them to customers.  Jones refused on religious grounds, quoting Deuteronomy 22:5 that prohibits a man from wearing women's clothing. He said that doing anything that makes him look like a woman would undermine his integrity as a preacher.  The company demoted Jones to be a freelance makeup artist, and he could not find work.  After obtaining a right to sue letter from the EEOC, Jones filed suit.

NYC Municipal Judge Sworn In On Qur'an

Geo TV and ABNA report that last Thursday in New York City, a Muslim woman, Carolyn Walker-Diallo, was sworn in as a civil court judge of the 7th Municipal District in Brooklyn, using a Qur'an instead of a Bible for the ceremony.  Walker-Diallo who has been active in local politics and community development, wore a headscarf during the ceremony. Coming at a time of heightened anti-Muslim rhetoric from some quarters in the U.S., social media reaction to the swearing-in was mixed.

Jonathan Pollard Claims Parole Conditions Violate His Rights Under RFRA

Convicted Israeli spy Jonathan Pollard who recently completed a 30-year federal prison term is now seeking to have a New York federal district judge ease three of the conditions imposed as part of his additional one-year of parole.  As reported by today's Jerusalem Post, Pollard objects to required monitoring of his home and work computers; tracking of his location by an electronic GPS ankle bracelet; and a 7 am to 7 pm curfew.  Part of Pollard's argument is that the ankle bracelet and curfew violate his rights under the Religious Freedom Restoration Act. The monitoring anklet's batteries will not last 25-hours, and thus Pollard will be required to charge the battery during the Sabbath, a violation of Jewish religious law.  Also the curfew interferes with his ability to attend synagogue services.  The U.S. Attorney's Office concedes that it can accommodate Pollard's concerns with the ankle bracelet by providing one with longer battery life. The court ordered the parole commission to furnish further information, in particular whether it believes Pollard has information that is still confidential.

Magistrate Holds Plaintiffs Lack Standing To Challenge Montana's Polygamy Ban

In Collier v. Fox, (D MT, Dec. 8, 2015), a Montana federal magistrate judge recommended dismissing a lawsuit asserting a pre-enforcement challenge to the state's bigamy statutes.  The suit was filed after a county clerk refused to issue a marriage license for Christine Collier Parkinson to legally marry Nathan Collier who is already legally married to Victoria Collier.  In the letter denying the license, the county clerk told the applicants that  obtaining a second marriage license would be considered bigamy.  However the letter did not explicitly threaten prosecution.  The court concluded that plaintiffs lack standing to bring the challenge because they have not been threatened with prosecution.  Plaintiffs say that the state might use its common law marriage statute to claim that the plaintiffs are already in violation.  The court said, however, that there is no history of prosecution of polygamists under this theory. Life Site News reports on the decision.

Suit Says Faculty Applicant Was Blindsided By Religious Affiliation Requirement

AP reported yesterday on a lawsuit filed in state court in Portland, Oregon by a Jewish man who was ultimately not hired as an adjunct professor of psychology at the Christian-based Warner Pacific College.  While Oregon law allows a religious institution to hire on the basis of religion, applicant Noel M. King says that the school's job posting only said that applicants had to agree to respect Christ-centered values and Christian faith.  It did not say they had to be members of the Christian faith.  King says he went through a 4-month application process, three interviews and a teaching demonstration, and was recommended by the hiring committee who knew he was Jewish, before the school's president vetoed his hiring because of his religious affiliation. He asks for $268,000 in damages, claiming that he missed out on applying for other jobs while Warner Pacific strung him along.

Confirmation of Tax Division Chief Delayed Over Past Position On ADF's Pulpit Initiative

The Chicago Tribune last week reported that President Obama's nomination of Cono Namorato to be Assistant Attorney General for the Tax Division of the Department of Justice, is being held up in the Senate Judiciary Committee because of the position he took in the past on church involvement in partisan political activity. In 2008, while a lawyer at the Washington firm of Kaplan & Drysdale, Namorato along with two other attorneys wrote the Internal Revenue Service's Office of Professional Responsibility complaining about the Pulpit Initiative being promoted by Alliance Defense Fund (now known as Alliance Defending Freedom). The letter urged an investigation of ADF's lawyers for "explicitly soliciting churches across America to violate Federal law" that bars partisan political participation by tax-exempt organizations.

Army Grants Accommodation For Sikh Combat Soldier To Wear Beard

According to a New York Times report yesterday, the U.S. military for the first time has granted a Sikh combat soldier a religious accommodation to allow him to grow a beard and serve with uncut hair under his turban.  Captain  Simratpal Singh, a West Point graduate and Bronze Star winner who led a platoon of combat engineers in clearing roadside bombs in Afghanistan, previously reluctantly shed his beard and long hair.  But recently while on leave he stopped shaving.  Now the Army has granted him (with certain conditions) a one-month temporary exemption (full text of Army memo) while it considers whether to make the accommodation permanent.  Since 2009, three other Sikhs, two Muslims and a Jewish rabbi have been granted religious accommodations to wear beards, but none of them were in combat units.  They were either chaplains or specialized medical personnel.  Some believe that Capt. Singh's case could serve as precedent for other Sikhs, Muslims and others who wish to adhere to their religious traditions while in the Army.

British Court of Appeals Says Muslim Prison Chaplains Did Not Suffer Pay Discrimination

In Naeem v The Secretary of State for Justice, (EWCA, Dec. 9, 2015) , the England and Wales Court of Appeal held that discrimination was not the cause of the average pay of Muslim prison chaplains in British prisons being lower on average than that of Christian chaplains. Instead it was caused by the fact that the Prison Service only began employing Muslim chaplains in 2002.  Before that there were not enough Muslim prisoners to call for employing full-time Muslim chaplains.  Thus the average length of service for Muslim chaplains is less than for Christian chaplains.  Chaplains get pay raises based on length of service.

Petitioners, who originally brought their cases before an Employment Tribunal, argued that they were the victims of "indirect discrimination"-- which is defined in British law as a practice that operates with a disparate impact on a protected class.  The appeals court, relying on earlier precedent, held: "an employer can rebut a claim of indirect discrimination by showing that an apparent disparate impact is the result of non-discriminatory factors." Law & Religion UK reports further on the decision.

Recent Articles and Books of Interest

From SSRN:

• Barry McDonald, Democracy's Religion: Religious Liberty in the Rehnquist Court and into the Roberts Court, (University of Illinois Law Review, Forthcoming).
• Josh Blackman & Howard M. Wasserman, The Process of Marriage Equality, (Hastings Constitutional Law Quarterly, Vol. 43, No. 2, pp. 243-335, 2016 Forthcoming).
• Anthony C. Infanti, Comments on Proposed Treasury Regulations Defining Terms Relating to Marital Status, (December 3, 2015).
• Suzanne B. Goldberg, Obergefell at the Intersection of Civil Rights and Social Movements, (California Law Review Circuit, Vol 6., p. 157, 2015).
• William A. Edmundson, Charlie Hebdo Meets Utility Monster, (The Critique, forthcoming).
• Mirko Daniel Garasic & Shay Keinan, Boycotting Israeli Academia: Is Its Implementation Anti-Semitic?, (International Journal of Discrimination and the Law, Vol. 15, Iss. 3 pp. 189-199, 2015).
• Pamela Foohey, Lender Discrimination, Black Churches, and Bankruptcy,(December 7, 2015).

From SSRN (Issues from Commonwealth countries):

• Justin H. Dabner, Multiculturalism and Legal Plurality in Australia, (December 8, 2015).
• Megan Pearson, Moderation and Equality Law Disputes, (Aug 7, 2014).
• Victor M. Muniz-Fraticelli & Lawrence David, Religious Institutionalism in a Canadian Context, (Osgoode Hall Law Journal (Forthcoming)).
• Christopher Nyinevi & Edmund Amasah, The Separation of Church and State Under Ghana's Fourth Republic, (Journal of Politics and Law; Vol. 8, No. 4; 2015).
• Muhammad Asif Khan & Farooq Muhammad Hayat, Pakistan's Vulnerable Minorities and the Anti-Blasphemy Laws: Is There a Way Out?, (Europa Ethnica, Vol 1, No. 2, 2015, p. 49-54).

From SSRN (Issues in Islamic Law):

• Haroun Rahimi, Applicability of Church Autonomy and Religious Question Doctrines to the Shari’Ah Board in Islamic Financial Institutions, (December 8, 2014).
• Hdeel Abdelhady, Specialized Insolvency Regimes for Islamic Banks: Regulatory Prerogative and Process Design, (The World Bank Legal Review, Volume 5: Fostering Development through Opportunity, Inclusion, and Equity, 2014).
• Tipu Salman Makhdoom, Shufa: A Dead Law Walking, (December 4, 2015).
• Justin H. Dabner, Islamic Finance in Australia: Interest or Not Interest, that is the Question?, (December 8, 2015).

From elsewhere:

• Samuel V. Bruton, Looks‐Based Hiring and Wrongful Discrimination, [Abstract], 120 Business and Society Review 607-35 (Winter 2015).
• The 2015 update of Steven H. Sholk, A Guide To Election Year Activities of Section 501(c)(3) Organizations is now available.

Recent Books:

• Micah Schwartzman, Chad Flanders, and Zoë Robinson (eds.), The Rise of Corporate Religious Liberty, (Oxford Univ. Press, Jan. 2016).
• François-Xavier Licari, Le Droit Talmudiqe, (Dalloz, Nov. 2015).

Recent Prisoner Free Exercise Cases

In Milum v. State, 2015 Tex. App. LEXIS 12571 (TX App., Dec. 10, 2015), a Texas state appeals court rejected a claim by a defendant in a child sexual assault case that he had ineffective assistance of counsel when his lawyer failed to object to a condition of community supervision that allowed him to enter a church, synagogue or other house of worship only to attend a public service.

In Hughes v. Godinez, 2015 U.S. Dist. LEXIS 165938 (ND IL, Dec. 11, 2015), an Illinois federal district court allowed an inmate to proceed against prison officials on his claim that restrictions on religious exercise imposed while he was in segregated housing for possessing contraband violated his free exercise rights.  While in segregated housing, he was not permitted to attend religious services in person or visit with clergy, and was allowed to view only one denomination's services on closed circuit television.

In Alderson v. Kelley, 2015 U.S. Dist. LEXIS 166272 (ED AR, Dec. 11, 2015), an Arkansas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 166274, Nov. 17, 2015) and allowed an inmate to move ahead on his complaint that the prison warden is not properly implementing the Department of Corrections grooming policy that allows a prisoner to wear a beard where required by the inmate's sincerely held religious belief.

In Isaac v. Pruette, 2015 U.S. Dist. LEXIS 166432 (ED VA, Dec. 10, 2015), a Virginia federal district court dismissed a Muslim inmate's complaint that he was initially not added to the list for attending Jummah services, that two Jummah services were canceled, and that he was not furnished a religious diet.

Gambia's President Declares It an Islamic State

On Friday, the President of the West African nation of Gambia proclaimed the largely Muslim country to be an Islamic state.  According to Al Jazeera, Gambia's President Yahya Jammeh said that his country "cannot afford to continue the colonial legacy." However Jammeh pledged to protect the rights of Gambia's Christian community-- about 8% of its population, and said there will be no mandates as to dress.  Opposition politicians say that the Constitution provides that Gambia is a secular state. Some commentators suggest that Jammeh's move is an attempt to create closer relations with the Arab world after losing Western support because of the country's dismal human rights record and rampant corruption.

Group Encourages Conservative Christian Pastors To Run For Public Office

Reuters on Friday reported on new efforts to motivate conservative Christian pastors to run for local public office in the U.S.  The article focuses on "a tactical shift" in the "Christian far right":

Aiming to motivate conservative Christians, they are focusing on smaller political races, local ballot initiatives and community voter registration drives.

At the center of the effort is the American Renewal Project, an umbrella group that says it has a network of 100,000 pastors. It is headed by evangelical Republican political operative David Lane, who wants to recruit 1,000 pastors to run for elected office in 2016.

So far, roughly 500 have committed to running, Lane told Reuters.

District Court Refuses To Extend Exemption From Contraceptive Mandate To Non-Religious Organization and Its Religious Employees

In Real Alternatives, Inc. v. Burwell, (MD PA, Dec. 10, 2015), a Pennsylvania federal district court, in a  76-page opinion, rejected two related challenges to the Affordable Care Act contraceptive coverage mandate.  The first challenge was brought by a non-profit, non-religious, pro-life organization that claimed equal protection principles require that it be extended the same exemption from furnishing its employees contraceptive coverage as is given to religious employers. The court held that the government's interest in protecting religious freedom is a rational basis for distinguishing religious from non-religious groups, and that the group here differs significantly from a religious organization:

Here ... we confront only Real Alternatives’ mission statement – a brief, single sentence explaining that Real Alternatives is a business which “exists to provide life-affirming alternatives to abortion services throughout the nation.”...  Though based on moral beliefs, this single mission statement is not “equivalent to religion.” ... It does not provide a comprehensive code to guide individuals in their day-to-day life challenges. It does not operate to fill the same position in one’s mind that religion can occupy. More akin to a political position with moral underpinnings than a coherent ideology, Real Alternatives’ single mission statement is simply not comparable to a philosophic belief system such as Janism or Buddhism....

The court also held that various provisions in federal law that protect conscience rights of those that object to abortion are inapplicable here:

Though Plaintiffs may believe that certain FDA-approved contraceptives cause abortions, federal law has never equated emergency contraceptives with abortion.

The second challenge was by the three employees of Real Alternatives (all lawyers) who argued that the government violated RFRA by forcing them to obtain insurance that includes coverage for drugs and devices to which they are religiously opposed. The court rejected this contention, finding that the requirement does not impose a "substantial burden" on their religious exercise because it does not cause them to modify their behavior in violation of their beliefs:

[W]e cannot in good conscience find that a burden which ... requires no independent affirmative act on the Plaintiffs’ part, is substantial enough to run afoul of the RFRA.

The court went on to hold that the mandate furthers the government's compelling interests in gender equality and public health.  It added another consideration:

Often, as is the case with Plaintiffs today, entire families are covered by one plan. Health care coverage decisions therefore are not left wholly to the individual but are often made in the context of the family. Yet there is no guarantee that every member of a family covered by a plan feels similarly regarding contraceptive services. If families with religious objections to contraceptive coverage are able to opt out of such coverage, the determination of whether to do so is left to the collective family unit. This collective decision could create untold tension and familial strife should disagreement over contraceptive coverage arise, which is more likely now that children up to the age of twenty-six may be covered by their parents’ plans.

Supreme Court Grants Cert In Prisoner Rights Case

Yesterday the U.S. Supreme Court granted certiorari in a prisoner rights case, Ross v. Blake, (Docket No. 15-339, cert. denied 12/11/2015) (Order List).  While the case does not raise prisoner free exercise issues, its resolution will impact litigation by prisoners claiming failure to accommodate religious beliefs.  In the case, the 4th Circuit in a 2-1 decision (full text) held that the requirement in the Prison Litigation Reform Act that an inmate exhaust administrative remedies before filing suit is satisfied when the inmate reasonably, though erroneously, believed he had exhausted all internal remedies.  SCOTUSblog's case page with links to all the filings in the case is here.

Court Suggests Innovative Interpretation of ERISA "Church Plan" Exemption

A series of cases filed around the country have challenged the treatment of Catholic hospital system pension plans as "church plans" exempt from ERISA. Often challengers are employees who contend that the plans have not been funded in compliance with ERISA or met other ERISA requirements.  The issue has generally been framed as whether it is sufficient that the plans are maintained by the church-affiliated organization that created them, or instead whether the plans must have been established by a "church" for the affiliated medical systems in order to qualify as a "church plan." (See prior posting.)  The statutory language in ERISA is ambiguous.

Now in Medina v. Catholic Health Initiatives, (D CO, Dec. 8, 2015), a Colorado federal district court, while coming down on the side of those courts which have ruled that it is enough that the plan be established and maintained by the affiliated medical system, has also suggested a more direct way to cut the Gordian knot.  It suggests that a Catholic health care system is itself a "church", not just an organization affiliated with a church:

[T]he suggestion that a church is no more than a physical place in which to worship evidences a profound misunderstanding and understatement of the nature of religious devotion and service. At the heart of any church are the religious principles that inform its founding, as animated by the faithful adherents to those principles. Indeed, there would be no need for a house in which to worship if there were no worshipers to gather there. In other words, a church is defined principally by its people – the body of the faithful who profess a similar set of guiding religious principles. Where such people gather to express, in word or deed, the principles and mission of their faith, they are the church.

Under this more resonant definition, the court has little trouble in concluding that CHI is, at the very least, a constituent part of the Catholic Church. 

The court also held that the ERISA church plan exemption does not violate the Establishment Clause. saying "Congress’s expressed purpose in carving out the church plan exemption was precisely to avoid unnecessary entanglement with religion."

Australian Court Finds Anglican Diocese Liable For $40M Bank Loan

In Anglican Development Fund Diocese of Bathurst v. Palmer, (NSW Sup. Ct., Dec. 10, 2015), a trial court in the Australian state of New South Wales held (in a 615 paragraph opinion) that the Anglican Diocese of Bathurst is liable for a $40 million (Aus.) loan (equivalent to $29M US) from the Commonwealth Bank of Australia which the bank extended, under a special policy for loans to certain religious organizations, solely on the basis of "a letter of acknowledgment" from the Bishop of Bathurst. The Diocese's Anglican Development Fund had reloaned $28 million (Aus.) of the funds to two start-up schools that failed.  The Sydney Morning Herald reports on the decision.

British Columbia Court Requires Law Society Approval of Trinity Western Law School

In Trinity Western University v. Law Society of British Columbia, (BC SC, Dec. 10, 2015), a British Columbia trial court reinstated an April 2014 vote by the Benchers of the Law Society of British Columbia approving graduates of Trinity Western University Law School for entry into the Society's bar admissions program.  In October 2014, the benchers had reversed their earlier approval after a referendum of the full membership disapproved of Trinity Western's required community covenant for students and faculty. The covenant includes a prohibition on sexual intimacy outside of a marriage between a man and a woman. (See prior posting.) The court however concluded that the referendum and subsequent October vote of the Benchers were procedurally flawed:

There is no basis upon which a conclusion could be drawn ... that the LSBC’s membership considered, let alone balanced, the petitioners’ Charter rights against the competing rights of the LGBTQ community....

While the Benchers clearly weighed the competing Charter rights of freedom of religion and equality before voting on the April Motion, the record does not permit such a conclusion to be reached with respect to the Benchers’ vote of October 31, 2014. As the respondent had bound itself to accept the referendum results of its members, I am unable to find that the vote of the LSBC’s members or the impugned decision considered, let alone balanced, the two implicated Charter rights. Further support for this conclusion comes from the fact that opposite results were reached by the Benchers’ votes of April 11 and October 31, 2014, despite the October 31, 2014 vote being conducted without any substantive discussion or debate.

CTV News reports on the decision.

Suit Challenges Non-Discrimination Fix To Indiana's RFRA ; Local Anti-Discrimination Laws

In Indiana yesterday, two pro-family advocacy groups filed suit in state court challenging the constitutionality of this year's anti-discrimination "fix" to Indiana's Religious Freedom Restoration Act.  The suit also challenges the legality of two local anti-discrimination ordinances-- one adopted by the city of Carmel and one by Indianapolis-Marion County.  The 178-paragraph complaint (full text) in Indiana Family Institute, Inc. v. City of Carmel, Indiana, (IN Super. Ct., filed 12/10/2015), says that plaintiff organizations believe in the Biblical teaching that marriage must be between one man and one woman, and that sexual relations must be within that marriage context.  They want to follow these teachings in their employment decisions and their programs.  They contend that the challenged laws preclude this, and in doing so violate a variety of state and federal constitutional provisions.  In a press release announcing the filing of the lawsuit, plaintiffs' attorneys said in part:

RFRA originally protected all religious viewpoints and insured a high level of protection for peoples' free exercise of religion.  The 'fix,' however, stripped that protection based on a person's particular religious view, such as, opposition to same-sex marriage.  This pits some religions that the government protects against other religions that will suffer government punishment if they don't fall in line.  We believe this discrimination between religious views is unconstitutional...

Indianapolis Star reports on the lawsuit.

UPDATE: In January 2016 plaintiffs filed an amended complaint adding Bloomington and Columbus, Indiana as defendants.

Suit Against Church Claims Plaintiffs Were Defamed After They Opposed Hiring Openly Gay Pastor

The Fargo Forum in an initial and follow-up article reports on a lawsuit filed this week in Cass County, North Dakota state district court against a Kindred, North Dakota Lutheran church, church leaders and the church's parent bodies.  Plaintiffs Ray and Joan Grabanski who had been church members for 23 years seek damages for defamation and infliction of emotional distress. The Grabanskis opposed the church's hiring of an openly gay pastor. As recounted by the Forum:

The lawsuit says when the Grabanskis made their views known, they were subjected to "public ridicule, scorn, intimidation, isolation" by the church leadership, and were told the congregation was too liberal for them.

Joan Grabanski was asked to stop teaching Sunday school, and the couple was told they could leave or be forced out, with church leaders calling them "a cancer," the lawsuit alleges.

The lawsuit alleges the local synod of the ELCA was aware of the conflict and failed to stop the damaging behavior.

It names the ELCA and the Eastern North Dakota Synod of the ELCA, as well as the church's interim pastor and two other church leaders.

Defendants are seeking dismissal arguing that civil courts lack jurisdiction to adjudicate doctrinal beliefs or interpret a church's constitution. [Thanks to Christopher Dodson for the lead.]

Obama Hosts Two White House Hanukkah Receptions

President Obama yesterday hosted two Hanukkah receptions at the White House-- one at 4 pm and the other at 7:30 pm.  Press coverage has focused on the first at which, as reported by the Times of Israel, visiting Israeli President President Reuven Rivlin lit the Hanukkah candles.  Last month the White House asked the public to suggest special menorahs that might be used at this year's receptions, and yesterday it posted the stories of the two that were chosen plus several runners up.  A 15-minute video of remarks by Obama and Rivlin, as well as by Rabbi Susan Talve, at the first reception has been posted by the White House on YouTube.

Bill In Israel's Knesset Encouraging Female Muslim Judges Draws Orthodox Jewish Opposition

While it is well known that Israel has a system of Jewish religious courts, it is sometimes overlooked that the country also has a system of religious courts for over a dozen other religious communities.  These religious courts deal with personal status family law matters of Israelis who are members of those religious groups. (Background.) Times of Israel reported yesterday on a bill proposed by three members of the Knesset (Israel's Parliament) that would require those appointing judges to Muslim religious courts to include at least one woman on the list of nominees and encourage in other ways election of women to Muslim courts. The bill has the backing of the important Ministerial Committee of Legislation.  However under the coalition agreement between the parties in Prime Minister Netanyahu's government, the ultra-Orthodox United Torah Judaism party has a veto over legislation on religion-state matters.  A party spokesman said it was planning to exercise the veto here because it fears the bill could set a precedent for Jewish religious judges which, under Orthodox Jewish law, are only male.

Alien Tort Suit Focuses On Sectarian Rivalry In Turkey

A suit seeking damages under the Alien Tort Statute was filed in a Pennsylvania federal district court this week against Muhammed Fethullah Gülen, a Turkish cleric who has lived in the United States since 1998. The complaint (full text) in Ates v. Gulen, (MD PA, filed 12/7/2015) was nominally brought by three individuals who are members of the Sunni Muslim Dogan Movement, an Anatolian offshoot of the rival Nur Movement.  However according to BuzzFeed News, the Turkish government is behind the lawsuit because Gulen is now an archrival of President Recep Tayyip Erdogan.

According to the complaint:

Over the course of the past two decades, Mr. Gülen has implemented a political strategy of encouraging his followers to secure official positions within the official Turkish state apparatus – notably in police, prosecutorial and judicial positions – through whom he is able to exercise a corrupt influence in Turkish society....

Defendant intentionally ordered the coordinated, systematic attack on members of the Doğan Movement because of that group’s religious beliefs and public criticism of Defendant. Defendant ordered his co-conspirators in Turkey to use their high level positions in Turkish law enforcement to identify members of the Doğan Movement, plant evidence, and target them for arrest and incarceration.

 The complaint also alleges:

Mr. Gülen has an international following estimated to approach 10 million people. He has developed a vast network of businesses and non-governmental organizations that supply him with financial support, and he is estimated to control at least $25 billion in assets. In the United States, Mr. Gülen controls dozens of business entities and more than 120 charter schools in various states, many of which are or have been under investigation by state and federal criminal and regulatory authorities.

City Will Sue Church Over Ownership of Land On Which Religious Welcome Sign Stands

In Hawkins, Texas, on a 50' x 45' parcel of land between two roads, visitors are greeted with a sign reading "Jesus welcomes you to Hawkins".  In June, the Freedom From Religion Foundation wrote the city objecting to the sign (see prior posting), and in September city council voted to remove it. Tuesday's Tyler Morning Telegraph recounts what happened next. Almost immediately after the vote, members of the Jesus Christ Open Altar Church cordoned off the site on which the welcome sign stands, and had members guarding the site at all hours of the day and night. The Church then purported to buy the land and sign from two funeral homes.  But the city attorney says that the funeral homes did not own the land, so that their deeds to the church conveyed nothing.  On Tuesday, City Council voted to sue the Church and the funeral homes to establish the city's ownership of the property, even though Hawkins' mayor disagrees with City Council's decision.

Suit Challenges North Carolina Law Allowing Officials To Opt Out of Same-Sex Marriage Duties

As previously reported, last June the North Carolina General Assembly overrode the governor's veto to pass to pass Senate Bill 2 that gives individual magistrates have the right to recuse themselves from performing marriages based on any sincerely held religious belief and gives individual register of deeds personnel the right to opt out of issuing marriage licenses on similar grounds. (See prior related posting.) Yesterday three couples filed suit in federal district court challenging the constitutionality of the new law.  One of the couples is already in a same-sex marriage; a second same-sex couple acting as plaintiffs are engaged to be married; and the third are a blind, heterosexual interracial couple who in 1976 had to sue in order to marry because two North Carolina magistrates refused to perform the ceremony on religious grounds.

The complaint (full text) in Ansley v. State of North Carolina, (WD NC, filed 12/9/2015) contends that Senate Bill 2 violates the Establishment Clause, the Equal Protection Clause, and the Due Process Clause.  WNCN News reports on the filing of the lawsuit.  Rev. Mark Creech of the Christian Action League called the lawsuit "an effort by gay activism to run people of faith completely out of the public sector."  On the other side, Rev. Jamine Beach-Ferrara of the Campaign for Southern Equality argued that the bill "distorts the true meaning of religious freedom."

Federal Court In Habeas Action Finds California Prosecutor's Use of Biblical References Prejudicial

In Roybal v. Davis, (SD CA, Dec. 2, 2015), a California federal district court granted penalty phase habeas corpus relief in a petition brought by a defendant who had been sentenced to death by a California state jury in the robbery and stabbing murder of a 65-year old woman.  The district court found that the California Supreme Court was "objectively unreasonable" in concluding that improper argument by the prosecutor during the penalty phase of the murder trial was harmless error and not prejudicial to the defendant. (People v. Roybal,  (1998)). At issue were Biblical references made by the prosecutor.  The district court, in a very lengthy opinion dealing with numerous other objections as well, said in part:

It is without question that the prosecutor improperly urged the jurors to impose a death sentence on Petitioner based on biblical law.... [T]he prosecutor did not stop with simply drawing parallels between state law and biblical law which, in itself, would have been misconduct. He went on to quote directly from the Bible, asserting that biblical text demanded a specific punishment for murder.... Such argument could only have been meant to urge the jurors to find justification for a death sentence in biblical text, authority well outside the penal code, and to subvert or frustrate their consideration of the proper sentencing factors under state law....

Here, the prosecutor's unambiguous, repeated, and carefully timed improper exhortations to the jury to apply biblical law diminished the jurors' sense of personal decision-making for the imposition of the death penalty. In so many words, the jury was informed that the Bible requires a murderer who kills with iron (i.e. knife) to himself be put to death. The prosecutor's improper argument presented an intolerable danger that the jury minimized its role as factfinder and encouraged jurors to vote for death because it was God's will, and not that the imposition of the death penalty complied with California and federal law.....

As discussed above, the California Supreme Court correctly found that the prosecutor's religious argument was misconduct and fell outside the bounds of both state and federal law, but unreasonably found that the comments were not prejudicial.

San Diego Union Tribune reports on the decision.

9th Circuit Hears Arguments In Suit Over FBI Infiltration of Mosques

Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in Fazaga v. FBI.  The class action lawsuit against the FBI and FBI agents alleges that the government wrongfully spied on mainstream mosques in Southern California and targeted Muslims for surveillance because of their religion. (ACLU case page.)  In the case, a California federal district court dismissed claims against the FBI because of the state secrets privilege, agreeing that national security would be endangered by disclosing targets in counter-terrorism investigations. The court, however, permitted claims under the Foreign Intelligence Surveillance Act against individual FBI agents and supervisors to proceed. (See prior posting.) Politico reports on yesterday's oral arguments, in which all the questions to counsel were asked by Judge Berzon.

Another County Clerk's Religious Response To Issuing Same-Sex Marriage Licenses

The latest kerfuffle over marriage equality has surfaced in Kiowa, Colorado where the Ebert County Clerk-- responsible for marriage licenses-- has hung a controversial poster above the desks where marriage licenses are issued. According to Denver7 News, the poster, made specifically in response to the legalization of same-sex marriage, shows a bride and groom along with a Biblical quotation (I Corinthians 7:2) reading "...each man should have his own wife and each woman her own husband."  County Clerk Dallas Schroeder explained in an e-mail to other county clerks:

My thought process is that they [same-sex couples] have to see the poster, and if they choose to violate God’s written Word, then that is on their head.

Muslim Student Sues Missouri Prof Over Alleged Bigoted Comments

Yesterday's Missourian reports on a lawsuit filed Nov. 30 against University of Missouri biology professor Michael Garcia by Fatma El-Walid, an observant Muslim student who was in one of Garcia's classes.  The suit, seeking $25,000 in damages, claims that the professor directed offensive and bigoted comments at the student during office hours, resulting in trauma that impacted her grades and the loss of a scholarship. According to the report:

The lawsuit alleges that ... Garcia asked El-Walid if her parents had waterboarded her "as a child in preparation for the future," wanted to know if her faith made her hate gay people and Jews, suggested she should pose as a suicide bomber and made sexually suggestive remarks, among other comments.

Garcia's lawyer says his client denies the charges.

Britain's Commission on Religion In Public Life Issues Final Report

The Commission on Religion and Belief in British Public Life-- created by the Woolf Institute in 2013-- released its final report yesterday. The Commission was chaired by a distinguished retired British judge, Baroness Elizabeth Butler-Sloss. The 104-page report titled Living With Difference-- Community, Diversity and the Common Good makes wide-ranging recommendations.  It identifies important religious changes in Britain over the past 50 years: an increase in the number of non-religious individuals; a general decline in Christian affiliation, belief and practice; and increased diversity of religious beliefs among those who profess a religion. The report sets out a broad vision:

The commission’s vision is of a society at ease with itself in which all individuals, groups and communities feel at home, and in whose flrishing all wish to take part. In such a society all:

• feel a positive part of an ongoing national story – what it means to be British is not fixed and final, for people in the past understood the concept differently from the way it is seen today and all must be able to participate in shaping its meaning for the future

• are treated with equal respect and concern by the law, the state and public authorities

• know that their culture, religion and beliefs are embraced as part of a continuing process of mutual enrichment, and that their contributions to the texture of the nation’s common life are valued

• are free to express and practise their beliefs, religious or otherwise, providing they do not constrict the rights and freedoms of others

• are confdent in helping to shape public policy

• feel challenged to respond to the many manifest ills in wider society.

The Guardian reports on some of the Commission's recommendations, focusing particularly on those affecting schools.

Santeria Priest Extradited To Massachusetts To Face Trial For Stealing Human Remains

According to CBS Connecticut, Amador Medina-- a 32 year old man who says he is a Santeria priest-- waived extradition back to Massachusetts in a Connecticut court hearing today.  Medina is accused of stealing five sets of human remains from a mausoleum in a cemetery in Worcester, Massachusetts, in order to use them in healing rituals.  As reported by the Canon Place Mercury, the skeletal remains date from the early 1900's.  Medina cooperated with police and showed them where the remains were in his Hartford apartment.  The Connecticut judge set Medina's bond at $300,000 and ordered mental health treatment for him.  Medina is unemployed and will not be able to post the bond.

Catholic Diocese of Duluth Files For Bankruptcy Reorganization

The Catholic Diocese of Duluth announced yesterday that it has filed on an emergency basis for bankruptcy protection in order to reorganize under Chapter 11.  The move comes after a jury last month found the Diocese liable for  $4.9 million in a clergy abuse case dating back to 1978. (See prior posting.) As reported by AP, the diocese faces five other sex abuse lawsuits that have already been filed, and has received notices of claims in 12 more.  Minnesota's 2013 Child Victims Act opened a statute of limitations window that closes next May for suit to be filed on old abuse claims. Plaintiff's attorney says that the bankruptcy stay delays attempts to force release of church documents on clergy sex abuse. A hearing on a motion to force release had been scheduled for December 17.  The Diocese's vicar general said that the filing safeguards the Diocese's limited assets, allows it to continue its day-to-day work, and ensures that all victims share justly in the resources available. This is the 15th U.S. diocese or religious order to file for bankruptcy reorganization.

Judge Rejects Challenge To Florida's School Voucher Program

According to AP, yesterday a Florida state trial court judge refused to grant a preliminary injunction against operation of the state's two main school voucher programs. State Circuit Judge George Reynolds held that plaintiffs lacked standing to challenge the program that provides private school tuition for children with disabilities.  He concluded that the other program that provides tuition assistance to low income families did not run afoul of state constitutional provisions, even though they allowed vouchers for attendance at religiously affiliated schools.  Another suit broadly challenging the adequacy of state funding for education however is still moving forward.

Virginia Jury Awards Muslim Cabbie $350,000 in Religiously Motivated Assault Case

Washington Post reports that a Fairfax County, Virginia civil jury yesterday awarded $100,000 in compensatory damages and $250,000 in punitive damages to a Muslim cab driver who was suffered a broken jaw in an assault by a passenger after the passenger engaged in a diatribe against the Muslim religion. The assault by Ed Dahlberg, a Fairfax County businessman, on cab driver Mohamed Salim was captured in part on video.  The jury found that Dahlberg's actions were motivated by animosity toward Salim's religion.

Donald Trump Calls For Ban on Muslims Entering United States

Acting in contradiction to the policy approach urged yesterday by President Obama (see prior posting), Republican front-runner Donald Trump this afternoon issued a statement (full text) calling for a complete ban on Muslims entering the United States.  The statement reads:

Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing "25% of those polled agreed that violence against Americans here in the United States is justified as a part of the global jihad" and 51% of those polled, "agreed that Muslims in America should have the choice of being governed according to Shariah." Shariah authorizes such atrocities as murder against non-believers who won't convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.

Mr. Trump stated, "Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to Make America Great Again."

European Court Upholds Hungary's Refusal To Award Damages To Dismissed Pastor

Last week in a Chamber Judgment, the European Court of Human Rights held by a 4-3 vote that there had not been a violation of the European Convention on Human Rights, Sec. 6(1), when Hungary refused to adjudicate a dispute between a pastor and his Hungarian Calvinist Church.  At issue were claims by a pastor who had been terminated by the Church for stating in a local newspaper that State subsidies had been paid unlawfully to a Calvinist boarding school.  In Nagy v. Hungary, (ECHR, Dec. 1, 2015), a majority of the court, with fragmented reasoning spanning two opinions, concluded that there had not been a denial of the right to a hearing in the civil courts, particularly when a claim could have been brought in ecclesiastical courts.  Three judges dissented, saying in part:

[I]t is more than doubtful that it would be possible at all to show that (and how) the settlement, by a State court, of the pecuniary dispute between the applicant and the Calvinist Church could pose a “real” and “substantial” risk to that church’s autonomy.

The Chamber Judgment may be appealed to the Grand Chamber. ADF issued a press release on the decision.

Focus On the U.S. Muslim Community In the Wake of the San Bernardino Shootings

Last night, just days after the San Bernardino killings, President Obama addressed the nation on issues of terrorism and keeping the country safe. (Full text of Oval Office speech). A portion of his remarks addressed the relationship of all Americans with the American Muslim community:

We cannot turn against one another by letting this fight be defined as a war between America and Islam. That, too, is what groups like ISIL want. ISIL does not speak for Islam. They are thugs and killers, part of a cult of death, and they account for a tiny fraction of more than a billion Muslims around the world — including millions of patriotic Muslim Americans who reject their hateful ideology. Moreover, the vast majority of terrorist victims around the world are Muslim. If we’re to succeed in defeating terrorism we must enlist Muslim communities as some of our strongest allies, rather than push them away through suspicion and hate.

That does not mean denying the fact that an extremist ideology has spread within some Muslim communities. This is a real problem that Muslims must confront, without excuse. Muslim leaders here and around the globe have to continue working with us to decisively and unequivocally reject the hateful ideology that groups like ISIL and al Qaeda promote; to speak out against not just acts of violence, but also those interpretations of Islam that are incompatible with the values of religious tolerance, mutual respect, and human dignity.

But just as it is the responsibility of Muslims around the world to root out misguided ideas that lead to radicalization, it is the responsibility of all Americans — of every faith — to reject discrimination. It is our responsibility to reject religious tests on who we admit into this country. It’s our responsibility to reject proposals that Muslim Americans should somehow be treated differently. Because when we travel down that road, we lose. That kind of divisiveness, that betrayal of our values plays into the hands of groups like ISIL. Muslim Americans are our friends and our neighbors, our co-workers, our sports heroes — and, yes, they are our men and women in uniform who are willing to die in defense of our country. We have to remember that.

The Muslim community is rethinking its responses to violence committed by Islamic radicals.  An AP article yesterday reports:

[S]ome in the Muslim community say a new game plan is needed. A younger generation is especially impatient with the condemnations of Islamic extremism from Muslim groups after every attack. They argue that the statements merely reinforce false notions that Muslims are collectively responsible for the violence

And a group of American Muslims last week launched the Muslim Reform Movement with a Declaration (full text) that rejects interpretations of Islam that call for violence, social injustice or politicized Islam.

Meanwhile, a Reuters poll released yesterday finds that 51% of Americans view Muslims living in the United States the same as any other community, while 14.6% are generally fearful of Muslims living in the U.S. However 34.7% say they are fearful of "a few groups and individuals" in the Muslim community.  Some 69% of Republicans surveyed and 48% of Democrats favor closing mosques suspected of having extremist ties.

Recent Articles of Interest and New Bibliography

From SSRN:

• Jens T. Theilen, Towards Acceptance of Religious Pluralism: The Federal Constitutional Court's Second Judgment on Muslim Teachers Wearing Headscarves, (German Yearbook of International Law 58 (2015)).
• Julia Rackow, From Conflict to Cooperation: The Relationship between Karlsruhe and Strasbourg, (in Katja S Ziegler, Elizabeth Wicks and Loveday Hodson (eds), The UK and European Human Rights: A Strained Relationship?, (Hart, 2015) (draft version)).
• Luke Beck, When Is an Office or Public Trust 'Under the Commonwealth' for the Purposes of the Religious Tests Clause of the Australian Constitution?, (Monash University Law Review, Vol. 41, No. 1, pp. 17-39, 2015).
• Haroun Rahimi, The Customary Practice of Gerawee in Afghanistan: A Case for Transitioning to Real Equity-Based Finance, (Indonesian Journal of International & Comparative Law, 2015).

From SmartCILP:

• M. Cherif Bassiouni, Misunderstanding Islam on the Use of Violence, 37 Houston Journal of International Law 643-677 (2015).
• Bonnie Honig, The Laws of the Sabbath (poetry): Arendt, Heine, and the Politics of Debt, 5 University of California Irvine Law Review 463-482 (2015).
• Karen A. Jordan, The Contraceptive Mandate: Compelling Interest or Ideology?, 41 Journal of Legislation 1-64 (2014-15).
• Yehiel S. Kaplan, Immigration Policy of Israel: The Unique Perspective of a Jewish State, 31 Touro Law Review 1089-1135 (2015).
• James A. Sonne, Domestic Applications of Sharia and the Exercise of Ordered Liberty, 45 Seton Hall Law Review 717-759 (2015).
• Gila Stopler, The Right to an Exclusively Religious Education--The Ultra-Orthodox Community in Israel in Comparative Perspective, 42 Georgia Journal of International & Comparative Law 743-796 (2014).
• Shaheer Tarin, An Analysis of the Influence of Islamic law on Saudi Arabia's Arbitration and Dispute Resolution Practices, [Abstract], 26 American Review of International Arbitration 131-154 (2015).
• Christopher Blain, Employing One's "Talents": The Power of Innovative Bond Transactions to Finance Catholic Nonprofits, 33 Journal of Law  Commerce 207-238 (2015).
• Philip Hamburger, Exclusion and Equality: How Exclusion From the Political Process Renders Religious Liberty Unequal, 90 Notre Dame Law Review 1919-1980 (2015).

Bibliography:

• The 2015 Law and Religion Bibliography, a 35-page bibliography of books, articles and blogs published in 2015, has been distributed as part of the AALS Section on Law and Religion Dec. 2015 Newsletter.

Hawaii Supreme Court Requires New Hearing For Proposed Telescope On Sacred Land

In Mauna Kea Anaina Hou v. Board of Land and Natural Resources, (HI Sup. Ct., Dec. 2, 2015), the Hawaii Supreme Court vacated on due process grounds a decision by the state's Board of Land and Natural Resources that allowed the University of Hawaii to construct a 30 meter telescope on land sacred to Native Hawaiians.  At issue was a "next generation" large telescope to be built on Mauna Kea, a dormant volcano on the island of Hawaii.  The court held that the Board acted improperly in approving the permit for the telescope, with construction merely delayed until a contested hearing on objections was held.  The majority held that the due process clause of the Hawaii constitution was violated when a contested hearing was not held prior to a decision on granting the permit. A concurring opinion by Justice Pollack, joined by Justice Wilson and joined in part by Justice McKenna, held that the Board's action violated other provisions of the state's constitution as well, including Ar. XII, Sec. 7 that protects cultural and religious rights of descendants of Native Hawaiians.  Christian Science Monitor reports on the decision.

Recent Prisoner Free Exercise Cases

In Cowart v. LaCasse, 2015 U.S. Dist. LEXIS 158333 (D SC, Nov. 24, 2015), a South Carolina federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 158593, Oct. 26, 2015) and dismissed an inmate's complaint that  he believed the Common Fare diet which was marked kosher was in fact not kosher.

In Carpenter v. Extendicare Health Services, 2015 U.S. Dist. LEXIS 159876 D MN, Nov. 30, 2015), a Minnesota federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 160141, Oct. 26, 2015) and dismissed on various grounds12 claims, including a free exercise claim, against a private nursing home that incorrectly believed plaintiff was the subject of a court order barring him from release.  The court found no state action.

In Farfan v. United States, 2015 U.S. Dist. LEXIS 160086 (SD FL, Nov. 24, 2015), a Florida federal magistrate judge recommended rejecting the claim by a federal inmate that her 144 month sentence for cocaine distribution violates RFRA because "she sincerely believes that God requires her to be at home with her family in order to properly observe holidays and rituals associated with her Catholic faith." The court responded in part: "The RFRA was enacted to encourage and protect free exercise of religion, even in a prison context. But it was never intended to be a get-out-of-jail-free card."

In McKnight v. MTC, 2015 U.S. Dist. LEXIS 160398 (ND TX, Nov. 30, 2015), a Texas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 160775, Nov. 9, 2015), and dismissed an inmate's claim that his free exercise and RLUIPA rights were infringed by housing him with a homosexual inmate.

Restrictions On Anti-Gay Marriage Protester Upheld

In Braun v. Terry, (ED WI, Nov. 30, 2015), a Wisconsin federal district court rejected claims by an anti-gay marriage protester that his free speech, equal protection and due process rights were infringed when authorities restricted the area in which he could carry his signs.  The events at issue occurred on the first day that same-sex marriage licenses were issued and marriages were conducted at the Milwaukee County Courthouse.  Plaintiff complains that he was not permitted to enter the courthouse to protest, and that the area in the park outside the courthouse where he could protest was restricted. The court found the restrictions imposed reasonable, non-discriminatory and narrowly tailored.

Mayor, Councilwoman Patch Up Dispute Over Christmas Tree

According to NJ.com, on Thursday, Roselle Park, New Jersey borough council voted 4-2 to go along with Mayor Carl Hokanson and change the name of the borough's annual "Tree Lighting" to "Christmas Tree Lighting."  This led Councilwoman Charlene Storey to resign, arguing that the renaming changed the ceremony "from a non-religious event to a religious one."  The mayor said that in going back to the event's traditional name, he was just calling the tree what it is. The mayor reached out to Storey, and after they met she withdrew her resignation.  The mayor in turn set up a new committee on diversity that Storey will chair.  She says she hopes the committee will come up with a process for groups to propose additions to the Christmas Tree Lighting and display, as well as deal with other diversity issues.  Both Hokanson and Storey are Democrats; Storey was raised Catholic, but is now a "non-believer."