Top Ten Religious Liberty and Church-State Developments of 2015

Each year in December I attempt to pick the most important church-state and religious liberty developments of the past year.  This year was rich with possibilities, and some of my picks actually arose in a broader context but have will have an important impact on religious liberty claims or church-state challenges.  So here are my Top Ten picks.  I welcome readers' comments since I am sure that not everyone will agree with all the choices.

1. In Obergefell v. Hodges, the U.S. Supreme Court holds that the Constitution requires marriage equality, striking down state laws that bar same-sex marriages.
   
   
2. The battle continues over the adequacy of the Obama administration's accommodation for religious non-profits that object to the Affordable Care Act contraceptive coverage mandate. The U.S. Supreme Court will decide the issue this term after granting certiorari in seven cases.
   
   
3. Some states expand RFRA laws to protect objectors to same-sex marriage. Indiana's law provokes particular controversy forcing the legislature to backtrack. Meanwhile around the country some Christian-owned businesses continue to refuse to provide services they see as furthering same sex marriage or LGBT rights, while Kentucky county clerk Kim Davis garners national attention for her refusal to issue same-sex marriage licenses.
   
   
4. The U.S. Supreme Court becomes active on prisoners' rights issues, including claims for religious accommodation by inmates.  The Supreme Court gives RLUIPA a broad interpretation in Holt v. Hobbs.  It also interprets the "three strikes" provision that limits indigent prisoner litigation; hears oral arguments in a case on maximum fee payments by indigent prisoners litigating multiple cases; and grants certiorari on a question of exhausting administrative remedies before suing.
   
   
5. The rise of ISIL creates questions about the proper label to apply to the struggle against jihadists.  The dispute centers over the use of terminology such as "the war against radical Islam" that could be misinterpreted to suggest the U.S. is broadly at war with all Muslims.
   
   
6. The Supreme Court interprets the elements of Title VII employment discrimination claims (including claims for accommodation of religious practices) in Abercrombie & Fitch (employer motives) and Mach Mining (EEOC conciliation requirement).
   
   
7. The expression of virulent anti-Muslim sentiment raises free speech and anti-discrimination issues in cases involving anti-Muslim bus ads and a business seeking to create a "Muslim free zone."
   
   
8. The EEOC rules that discrimination on basis of sexual orientation is barred by the "sex discrimination" ban in Title VII of the 1964 Civil Rights Act.
   
   
9. The Supreme Court holds that specialty license plates  are government speech, thus impacting the many cases on license plates with religious themes or symbols.
   
   
10. The successful referendum to overturn Houston's Equal Rights Ordinance positions the battle over transgender rights as next struggle between conservative religious groups and civil rights advocates.

Ecclesiastical Abstention Does Not Require Dismissal of Suit Over Control of Unification Church's Assets

In Family Federation for World Peace and Unification International v. Moon, (DC App., Dec. 24, 2015), the District of Columbia Court of Appeals reversed the D.C. Superior Court's dismissal of a complicated dispute over control of a D.C. non-profit corporation, UCI, which over the years has managed hundreds of millions of dollars of assets donated to Reverend Sun Myung Moon's Unification Church. The trial court had invoked the ecclesiastical abstention doctrine, concluding that the dispute could not be resolved without the court deciding questions of religious doctrines.  The appellate court disagreed.

UCI was created in 1977.  In 2006, Preston Moon, one of Rev. Moon's sons became president of UCI and one of its five directors. In 2008, Rev. Moon appointed another son, Sean Moon, (Preston's younger brother) as the next leader of the Church's worldwide religious organization.  This "disappointed" Preston who, apparently assumed that he would be appointed to the religious as well as financial leadership of the Church.  In response to Sean's appointment, Preston took a number of steps to divest the Church of its control over UCI and its assets.

Those actions are challenged in this case by three entities connected with the original Unification Church and by two individuals who Preston removed as directors of UCI. The suit claims that Preston improperly took control of UCI's board, ignoring the long-standing practice of electing individuals nominated by Rev. Moon. The suit also alleges diversion of assets and self-dealing.  In reversing the trial court's dismissal of the case, the court said in part:

From plaintiffs’ allegations, it appears that a profound alteration in the corporation ... occurred under Preston Moon. An organization plainly established to promote the preservation of African wildlife and acquiring vast funds on that basis might well be barred from switching its purpose to expenditures on domestic cats and dogs regardless of how technically such a switch might be read into the text of its articles of incorporation. On the present record, we cannot say with confidence that a somewhat analogous transformation cannot be shown to have occurred here. And, in any event, the allegation that corporate funds were used here to benefit one of the directors personally would appear readily subject to court review....

[W]e agree with plaintiffs that the record at this early stage of a difficult and complicated dispute with many ramifications does not support a conclusion that the trial court must engage in inquiry banned by the First Amendment in order to resolve any of plaintiffs’ claims.... Were we to hold that, based on the current record, the First Amendment precludes our civil courts from adjudicating plaintiffs’ claims, then it would approach granting immunity to “every nonprofit corporation with a religious purpose from breach of fiduciary suits . . . and prevent any scrutiny of questionable transactions.”

The court also resolved jurisdictional and standing issues.

Donald Trump's Christmas Card Covers All Bases

The New York Daily News reports that the Christmas card which Donald Trump mailed to his supporters this week covered all the bases after his campaign emphasis on the need to say Merry Christmas instead of "Happy Holidays."

From the White House For Christmas: Playlists and Concern For Persecuted Christians

On Wednesday, in anticipation of Christmas, the White House posted The Obamas' and Bidens' Holiday Playlists on the White House Spotify channel.  The Obamas' number one pick is "O Tannenbaum, Vince Guaraldi Trio (A Charlie Brown Christmas)," while "Santa Claus is Comin’ to Town, Bruce Springsteen" tops the Bidens' playlist.

The President also posted a more serious statement on Persecuted Christians at Christmas, saying in part:

At this time, those of us fortunate enough to live in countries that honor the birthright of all people to practice their faith freely give thanks for that blessing.  Michelle and I are also ever-mindful that many of our fellow Christians do not enjoy that right, and hold especially close to our hearts and minds those who have been driven from their ancient homelands by unspeakable violence and persecution.

In some areas of the Middle East where church bells have rung for centuries on Christmas Day, this year they will be silent; this silence bears tragic witness to the brutal atrocities committed against these communities by ISIL.

NYC Taxi Appeals Unit Says Religious Belief of Driver Does Not Justify Gender Discrimiination

Triggered by a New York Post article, a number of media outlets last week reported on a Sept. 3, 2015 decision of the New York City OATH Taxi and Limousine Tribunal Appeals Unit.  In Taxi & Limousine Commission v. Tamsir Drammeh , the Appeals Unit upheld a hearing officer's decision that a Muslim cab driver violated a Commission rule prohibiting any action that is "against the best interest of the public" when he refused to transport a female passenger in the front seat of his cab for religious reasons. When a family of four hailed the cab, the driver told them that all four could sit in back, or the husband could sit in front, but the wife could not. The Hearing Examiner concluded: "That his religion did not allow him to sit next to a woman is not an acceptable defense in an occupation that is operated to serve the public." Affirming that decision, the Appeals Unit stated:

There is strong public policy which prohibits a TLC licensee from engaging in “invidious discrimination while serving the public” .... In addition, it is well established that a taxicab driver is required to possess sufficient self-restraint to deal in a mature fashion with the everyday conflicts inherent in his job.... This includes a situation where the driver’s religious beliefs may conflict with his obligations and duties as a taxi driver to transport members of the public.

Here, the respondent’s determination that it would be proper for the passenger’s husband to sit in the front seat, but not proper for the passenger to do so solely because of her gender, evidenced a discriminatory attitude and constituted an action against the best interests of the public.

The cabbie was fined $350 and suspended for one day.

Illinois Nuns Sue To Challenge Zoning Denial

A federal lawsuit was filed last week by an order of Catholic nuns to challenge the denial of a conditional use permit by McHenry County, Illinois. Fraternité Notre Dame already has a monastery, church, seminary, convent, retreat center, bakery, printing press and cemetery on its 95 acres of property. It now wants to add a barn in order to build a commercial kitchen, process grapes and brew beer.  It also wants to add a school with attached dormitory; nursing home with hospice services; and gift shop and tasting area to sell pastries, religious and inspirational articles, and its own wine and beer. The complaint (full text) in Fraternité Notre Dame, Inc. v. County of McHenry, (ND IL, filed 12/16/2015), contends that the denial of zoning approval violates RLUIPA as well as the equal protection clauses of the Illinois and federal constitutions.  Northwest Herald reports on the lawsuit.

Proposed Bill In New Mexico Would Amend RFRA To Protect Religiously- Based LGBT Discrimination

While New Mexico already has a Religious Freedom Restoration Act, last week two legislators pre-filed a bill for the new session that would expand the state's RFRA to permit businesses to refuse to conduct business with gay, lesbian and transgender individuals where the business has religious objections to doing so. Think Progress reports that the new House Bill 55, while prohibiting businesses from using religion to justify racial or gender discrimination, does not prohibit using religion to justify LGBT discrimination.  The Bill provides:

Nothing contained in the Human Rights Act shall ... burden a person's free exercise of religion by requiring the person to provide a service or to conduct business in a manner inconsistent with adherence to that person's sincerely held religious belief unless that adherence is based on race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition. 

Pennsylvania Appeals Court Orders New Trial For Msgr. Lynn On Priest Abuse Cover-Up

In Commonwealth of Pennsylvania v. Lynn, (PA Super. Ct., Dec. 22, 2015), in a 2-1 decision, a Pennsylvania state appeals court vacated the 2012 conviction of Msgr. William J. Lynn who was the first U.S. priest criminally convicted of covering up sexual molestation of minors by another priest. (See prior posting.) The case was remanded for a new trial.  In the case, which was already on remand from the state Supreme Court (see prior posting), the majority concluded that while prior bad acts can be introduced into evidence to show elements such as knowledge, motive and intent relating to the crimes charged, here the introduction of evidence relating to Lynn's handling of complaints against 21 priests in addition to the two priests whose actions Lynn was charged with covering up went too far.  The majority said in part:

The potential for this evidence to unfairly prejudice Appellant was high, both because it involved the sexually abusive acts of numerous priests committed against children over several decades, and because of the high volume of the evidence admitted. Therefore, we conclude that the probative value of that evidence, in toto, did not outweigh its potential for unfair prejudice, and that this potential prejudice was not overcome by the trial court’s cautionary instructions.

Judge Donohue filed a dissenting opinion, saying in part:

The record supports a finding that both Lynn and his predecessors handled prior allegations of sexual abuse against other priests with the motive and intent of shielding the Church from scandal. Thus, there is support for the conclusion that the way Lynn handled the allegations of abuse made against Avery and Brennan “grew out of” and was “caused by” the way Lynn’s predecessors and Lynn himself handled past allegations of sexual abuse committed by other priests.

Philadelphia Inquirer reports on the decision. [Thanks to How Appealing for the lead.]

Suit Challenges Maine's Restriction On Loud Preaching Outside of Abortion Clinic

In Portland, Maine this week, a Christian pastor filed suit in federal district court challenging the constitutionality of a Maine statute designed to protect abortion facilities.  The law essentially prohibits demonstrating outside an abortion clinic with noise loud enough to be heard inside.  The complaint (full text) in March v. Mills, (D ME, filed 12/21/2015), contends that the statute violates plaintiff's 1st and 14th Amendment rights by targeting his religious, Christian, Pro-Life messages. He alleges in part:

Plaintiff considers it his vocation to encourage women to avoid the sin of abortion and to help them repent from their previous sins.... Plaintiff preaches outside of the abortion facility in order to better reach these women and to give women a last-chance alternative to their life-ending decision.

The suit claims that the restriction on his speech is a content-based prior restraint.  Thomas More Law Center issued a press release announcing the filing of the suit.

FFRF's Secular Nativity Display Removed From Texas Capitol After It Provokes Ire of Governor

The Texas State Preservation Board has a policy that allows displays in public areas of the Capitol upon filing of an appropriate application and a letter of sponsorship from the governor, lieutenant governor or a member of the state legislature.  Receiving approval of its application, on December 18 the Freedom From Religion Foundation put up a Bill of Rights Nativity display which it describes as:

featur[ing] Founding Fathers Benjamin Franklin, Thomas Jefferson, and George Washington gathered in reverence before the Bill of Rights, overseen by the Statue of Liberty. In addition to the "nativity," the display also features a sign celebrating the Winter Solstice.

However, three days later the exhibit was removed after Governor Greg Abbott expressed strong opposition to it.  In a letter (full text) to the Executive Director of the State Preservation Board, the governor (who is Chairman of the Board) contended that the display did not meet the requirement that approved displays promote a "public purpose."  He wrote in part:

[T]he exhibit deliberately mocks Christians and Christianity. The Biblical scene of the newly born Jesus Christ lying in a manger in Bethlehem lies at the very heart of the Christian faith. Subjecting an image held sacred by millions of Texans to the Foundation’s tasteless sarcasm does nothing to promote morals and the general welfare. To the contrary, the Foundation’s spiteful message is intentionally designed to belittle and offend....

This is not an exhibit that spreads a secular message in an effort to educate the public about nonreligious viewpoints; it instead denigrates religious views held by others.... [T]he exhibit promotes ignorance and falsehood insofar as it suggests that George Washington, Benjamin Franklin, and Thomas Jefferson worshipped (or would worship) the bill of rights in the place of Jesus.

Kentucky's New Governor Eliminates County Clerks' Names From Marriage License Forms

Kentucky's new Republican governor, Matt Bevin, fulfilled a campaign promise yesterday (press release) by issuing Executive Order 2015-048 instructing the Kentucky Department for Libraries and Archives to distribute to all County Clerks a marriage license form that no longer includes the name of the County Clerk on it. Instead the form merely calls for the name and title of the issuing official-- who might be a deputy clerk.  The change was in response to the widely-followed resistance of Rowan County Clerk Kim Davis who refused on religious grounds to allow her office to authorize same-sex marriage licenses. (See prior posting.) In a press release, Liberty Counsel call the new form "a clear, simple accommodation on behalf of Kim Davis and all Kentucky clerks."

Court Invokes Ecclesiastical Abstention To Dismiss Church Members' Claims of Financial Mismanagement

In Harrison v. Bishop, (OH App., Dec. 18, 2015), an Ohio appellate court applied the ecclesiastical abstention doctrine to dismiss a suit brought by three members of the Mt. Pilgrim Baptist Church against directors and the senior pastor of the church.  The plaintiffs claimed that defendants breached their duties under the church's constitution by mismanaging the church's finances, wrongfully withholding financial statements and refusing to permit members to examine the church's books and records. The court said in part:

Appellants cite select provisions in the Constitution that they allege give rise to appellees’ duties....  While it is true that the Constitution contains apparently secular provisions, we cannot view those provisions in isolation, thereby ignoring the ecclesiastical content that is found throughout the document. In view of the patently religious nature of the church’s Constitution, we find that reliance upon provisions within the Constitution for determination of the rights and responsibilities of the parties in this case, under auspices of “neutral principles of law,” would necessarily entangle the trial court in ecclesiastical issues over which the court has no subject matter jurisdiction under the First and Fourteenth Amendments....

Further, we find that appellants, in filing this action, are essentially seeking to utilize the power of the civil courts to institute the termination and replacement of the church’s leadership.

New Zealand Approves Pastafarians To Perform Marriage Ceremonies

A Notice published in the Dec. 10 New Zealand Government Gazette approved the Church of the Flying Spaghetti Monster as an organization that qualifies under Sec. 9 of the Marriage Act 1955 to nominate persons to solemnize marriages.  To qualify under the statute, "one of the principal objects of the organisation" must be "to uphold or promote religious beliefs or philosophical or humanitarian convictions." The Freethinker reports on the decision to allow the group, whose followers are known as "Pastafarians" to perform wedding ceremonies. [Thanks to Paul de Mello for the lead.]

Two District Courts Refuse To Enjoin California's Reproductive FACT Act

In recent days, two separate California federal district courts have refused to enjoin the Jan. 1 effectiveness of California's new Reproductive FACT Act which requires reproductive health clinics to disseminate a notice to all clients stating that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women. In Livingwell Medical Clinic, Inc. v. Harris, (ND CA, Dec. 18, 2015), the court denied a preliminary injunction, finding that plaintiffs had not shown a likelihood of success on the merits of their claim that the required disclosures violate their free expression rights by interfering with their ability to control their own religious and pro-life messages. In A Woman's Friend Pregnancy Resource Clinic v. Harris, (ED CA, Dec. 21, 2015), the court similarly rejected free expression and free exercise claims in denying a preliminary injunction. In rejecting the free exercise claim, the court found that the Act is a neutral law of general applicability even though it mostly impacts Christian-belief based crisis pregnancy centers. Courthouse News Service reports on the decisions.

European Court Says Switzerland Need Not Recognize Underage Religious Marriage of Afghan Nationals

In Z.H. and R.H. v. Switzerland, (ECHR, Dec. 8, 2015), the European Court of Human Rights in a Chamber Judgment held that Switzerland was not required for asylum purposes to recognize the religious marriage between first cousins, entered when the bride was only 14 years old.  The religious marriage between the two, who are Afghan nationals, would have been illegal in Afghanistan because a woman must be at least 15 years old to marry there.  The religious marriage was contracted in Iran where the couple was living illegally, but it was not registered with Iranian authorities. The couple subsequently applied for asylum in Switzerland which they had entered illegally from Italy. Refusing to recognize them as husband and wife, authorities removed the husband to Italy.  However he soon returned illegally to Switzerland where apparently then Switzerland decided to recognize the marriage once the woman turned 17. The European Court did not treat this as mooting the appeal to it of Switzerland's initial decision.

Fired Pastor and His Followers Lose Suit To Reclaim Their Former Church Building

In St. Mark Baptist Church of Pittsburg v. Saint Mark at Bethel Missionary Baptist Church, (CA App., Dec. 18, 2015), a California state appellate court upheld a trial court's decision in a dispute over control of church property.  Two Baptist churches merged, but the arrangement went sour after two years.  Under the merger agreement,  Pastor McNab from St. Mark Pittsburg was to be the pastor of the merged church, but the church was to meet in the building used by St. Mark at Bethel. When trustees of the merged church voted to terminate Pastor McNab, he and some of his followers left the church and attempted to return to their original building which had by now been rented out to an unrelated church. They sued seeking a ruling that they, not the merged church, still owned their original building.  In this decision, the Court of Appeals upheld the trial court's denial of a preliminary injunction to prevent sale of the St. Mark Pittsburg church building by the merged church, and also upheld the trial court's removal of a lis pendis notice-- a notice that litigation impacting the property was pending. It held that there was substantial evidence that McNab and his current followers were not the rightful leaders of St. Mark Pittsburg even if it continues to exist as a separate entity.

Slovenia Rejects Same-Sex Marriage In Referendum

In a referendum in the central European nation of Slovenia yesterday, voters by a margin of 63% to 37% rejected same-sex marriage.  Politco reports that the overall voter turnout for the referendum was only 35.6%.  This defeat of a bill passed by Parliament last March returns the country to its old rules that allow civil partnership but not adoption of children by same-sex couples. [Thanks to Paul de Mello for the lead.]

2016 Appropriations Act Includes Focus On International Religious Liberty

The massive Consolidated Appropriations Act, 2016 signed into law by President Obama last week includes a number of provisions specifically relating to international religious freedom.  These provision in Section 7033 (at pg. 519 of the bill) are of particular interest:

(c) INTERNATIONAL BROADCASTING.—Funds appropriated by this Act under the heading ‘‘Broadcasting Board of Governors, International Broadcasting Operations’’ shall be made available for programs related to international religious freedom, including reporting on the condition of vulnerable and persecuted religious groups.

(d) ATROCITIES PREVENTION.—Not later than 90 days after enactment of this Act, the Secretary of State, after consultation with the heads of other United States Government agencies represented on the Atrocities Prevention Board (APB) and representatives of human rights organizations, as appropriate, shall submit to the appropriate congressional committees an evaluation of the persecution of, including attacks against, Christians and people of other religions in the Middle East by violent Islamic extremists and the Muslim Rohingya people in Burma by violent Buddhist extremists, including whether either situation constitutes mass atrocities or genocide (as defined in section 1091 of title 18, United States Code), and a detailed description of any proposed atrocities prevention response recommended by the APB: Provided, That such evaluation and response may include a classified annex, if necessary.

(e) DESIGNATION OF NON-STATE ACTORS.—The President shall, concurrent with the annual foreign country review required by section 402(b)(1) of the International Religious Freedom Act of 1998 (22 U.S.C. 6442(b)(1)), review and identify any non-state actors in such countries that have engaged in particularly severe violations of religious freedom, and designate, in a manner consistent with such Act, each such group as a non-state actor of particular concern for religious freedom operating in such reviewed country or surrounding region: Provided, That whenever the President designates such a non-state actor under this subsection, the President shall, as soon as practicable after the designation is made, submit a report to the appropriate congressional committees detailing the reasons for such designation.

Suit Against Jewish Conversion Therapy Group Ends With Permanent Injunction and Settlement Instead of Appeal

As previously reported, in June a New Jersey state trial court jury awarded treble damages of $72,400 to a total of five plaintiffs who sued JONAH (Jews Offering New Alternatives for Healing), its founder and a counselor under the state's consumer fraud law. JONAH provided "conversion therapy" that it falsely claimed could change an individual from gay to straight.  Instead of appealing the decision, defendants entered a confidential settlement agreement (Stipulation) under which defendants are to pay an undisclosed amount of damages and attorneys' fees of $3500.  In addition the parties agreed to the award of a permanent injunction requiring JONAH to cease operations and liquidate.  The Court issued a consent Order on Dec. 18 (full text) implementing this agreement, including permanently enjoining defendants from offering any kind of conversion therapy in the future. CBS News reports on these developments and points out that New Jersey's 2013 law banning licensed therapists from offering sexual orientation change therapy for minors was not involved in the case because the defendants were not licensed therapists. An attorney who represented JONAH said:

It is sad that so many are celebrating the government's power to stop willing clients from working with willing counselors to lead their lives on Biblical principles.

Attorneys for plaintiffs responded, however:

The practice of conversion therapy, at base, constitutes fraud. It is premised on the lie that homosexuality is a disease or disorder. This case proved it to be a lie.

Southern Poverty Law Center's case page has links to all the pleadings and court orders in the case.

New York City Will Reimburse Private Religious Schools For Security Guards

The Forward last week reported that New York's City Council earlier this month passed legislation to reimburse all nonpublic schools with 300 or more students for unarmed security guards they hire.  The number of guards tor which they will be entitled to reimbursement depends on the size of the school.  Guards must be hired from a list of firms approved by the city, and they must be paid a prevailing wage.  This is part of a growing list of non-religious items  for which religiously affiliated private schools can obtain government funds.  The City will spend up to $19.8 million on the guards in the first year of the program.

Recent Articles of Interest

From SSRN:

• Samuel J. Levine, A Critique of Hobby Lobby and the Supreme Court's Hands-Off Approach to Religion, (Notre Dame L. Rev. Online 26 (2015)).
• Steven Douglas Smith, The Tortuous Course of Religious Freedom, (Notre Dame Law Review, Forthcoming).
• Aliza Cover, Archetypes of Faith: How Americans See, and Believe in, Their Constitution, (Stanford Law & Policy Review, Vol. 26, No. 555, 2015).
• Thomas M. Keck, Hate Speech and Double Standards, (Constitutional Studies 1:1 (Fall 2015)).
• Angela D. Morrison, Misconstruing Notice in EEOC Administrative Processing & Conciliation, (Nevada Law Journal, Vol. 14, p. 785-805, 2014).

From SSRN (Non-U.S. Law):

• Nicola Carr, Paula Devine, Siobhan McAlister & Gail Neill, Public Attitudes Towards LGB Equality, (Access Research Knowledge, No 106, 2015).
• Pietro Faraguna, Regulating Religion in Italy: The Constitution Does (Not) Matter, (December 14, 2015).
• Piotr Godzisz, Forgotten Friends. ODIHR and Civil Society in the Struggle to Counter Hate Crime in Poland, (2015).
• Michael J. T. McMillen, Legal and Regulatory Considerations Pertaining to Islamic Capital Markets, (Islamic Capital Markets, Simon Archer and Rifaat Ahmed Abdel Karim, eds. Forthcoming).
• Tipu Salman Makhdoom, Enigmatic Sex Laws of Pakistan, (December 15, 2015).
• Saadiah Mohamad, et. al., Enhancing Cross Border Connectivity: Venturing into Islamic Finance as a New Source of Infrastructure Financing, (Journal of Emerging Economies and Islamic Research, Vol.3, No.3 (2015)).

From SmartCILP and elsewhere:

• Yousef T. Jabareen, The Arab-Palestinian Community in Israel: A Test Case for Collective Rights under International Law, 47 George Washington International Law Review 449-480 (2015).
• Charles J. Russo, Mergens v. Westside Community Schools at Twenty-Five and Christian Legal Society v. Martinez: From Live and Let Live to My Way or the Highway?, 2015 BYU Education and Law Journal 453-480.
• Kristen Stilt, Contextualizing Constitutional Islam: The Malayan Experience, [Abstract], 13 I.Con: International Journal of Constitutional Law 407-433 (2015).
• Fatahillah Abdul Syukur & Dale Margaret Bagshaw, Victim-Offender Mediation with Youth Offenders in Indonesia, [Abstract], 32 Conflict Resolution Quarterly 389-411 (2015).
• Journal of Law & Religion, Vol. 30, No. 1 (2015) has recently appeared.
• Andrea M. Alonso & Kevin G. Faley, Pope’s New Rule on Annulment: Will the Law Keep Up?, New York Law Journal, Dec. 18, 2015.
• SCOTUSblog's Zubik v. Burwell Symposium, (Dec. 2015).

U.N. Recognizes Yom Kippur As Holiday

According to the Times of Israel, the United Nations announced on Thursday that it was adding the Jewish holiday of Yom Kippur to the list of officially recognized U.N. holidays on which no official meetings will be scheduled and staff will not be required to report to work. The U.N. already observes Christmas, Good Friday, Eid al-Fitr and Eid al-Adha as holidays, along with six secular U.S. holidays. The U.N. move had important symbolic importance.  Israeli ambassador to the U.N. Danny Danon (who along with U.S. Ambassador Samantha Powers) led the move to add Yom Kippur, said: "Today we finally have an official place for the Jewish religion in the World’s parliament."

New Jersey Synagogue Files Court Appeal of Zoning Decision

The Clifton Journal reported Friday that the Clifton, New Jersey Orthodox Jewish congregation, Shomrei Torah, has filed an appeal in state court of a zoning decision that severely limits the size of the synagogue that Shomrei Torah plans to build.  Plans to turn an existing house into a synagogue by building on an addition were rejected.  The city's planning board voted 7-0 to limit the size of the proposed synagogue to 7,000 square feet in area or 35 feet in height-- a 57% reduction in the originally proposed square footage in order to insure that the synagogue meets requirements for number of parking spaces and conform the building to the neighborhood.

Recent Prisoner Free Exercise Cases

In Muhudin v. Wegener, 2015 U.S. Dist. LEXIS 166954 (D CO, Dec. 14, 2015), a Muslim inmate alleged that he was denied a halal diet.  A federal magistrate judge ordered plaintiff to file an amended complaint within 30 days that corrects a number of pleading defects.

In Boyce v. McKnight, 2015 U.S. Dist. LEXIS 167197 (ND IL, Dec. 15, 2015), an Illinois federal district court permitted an inmate to proceed against one a correctional officer who the inmate claimed pepper sprayed him in retaliation for the inmate's exercise of religion.

In In re Jaynes, 88 Mass. App. Ct. 745 (MA App., Dec. 16, 2015), the Massachusetts Appeals Court upheld a probate court's denial of a Wiccan inmate's petition to change his name for religious reasons, in light of the inmate's history of using multiple aliases. Boston Herald reports on the decision.

In Bennett v. Turner, 2015 U.S. Dist. LEXIS 167874 (ND IA, Dec. 16, 2015), an Iowa federal district court gave an inmate 30 days to file an amended complaint alleging that removing all churches from the list of numbers he could call substantially burdened his free exercise of religion.

In Torres v. Aramark Food & Commissary Services, 2015 U.S. Dist. LEXIS 168188 (SD NY, Dec. 16, 2015), a New York federal district court allowed a Muslim inmate to move ahead with his complaint under the free exercise clause that the nutritional inadequacy of the Ramadan meals, combined with the inability to supplement the meals with food from the commissary, forced him to switch from the Ramadan diet.

In Johnson v. Poupore, 2015 U.S. Dist. LEXIS 168837 (ND N Y, Dec. 16, 2015), a New York federal magistrate judge recommended dismissing an inmate's complaint that authorities confiscated his gold cross and chain and would not allow him to designate his religion as both Nation of Islam and Catholic under rules that allow only one designated religion at a time. He attempted to add the Catholic designation in order to be allowed to recover his gold cross. UPDATE: The court adopted the magistrate's recommendations at 2016 U.S. Dist. LEXIS 9147, Jan. 27, 2016.

In Boykins v. Lanigan, 2015 U.S. Dist. LEXIS 169293 (D NJ, Dec. 16, 2015), a New Jersey federal district court dismissed an inmate's complaint that he was not permitted to obtain prayer oil from a third-party vendor instead of the prison chaplain.

In Moore v. Katavich, 2015 U.S. Dist. LEXIS 169634 (ED CA, Dec. 18, 2015), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that on three separate days the prison kitchen staff served him a vegetarian diet instead of his Halal diet.

In Fox v. Magana, 2015 U.S. Dist. LEXIS 167571 (ED NC, Dec. 14, 2015), a North Carolina federal district court permitted a female inmate to move ahead with her complaint that she is not given adequate time to practice her religion and is not permitted to conduct worship services outside while other fiaths are permitted to do so.

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.