Report Traces New Role of The Satanic Temple

San Jose, California's Metroactive carried an interesting article yesterday titled How Satan Became the New Face of Secularism.  It chronicles the emergence of the Satanic Temple as a player in the church-state debate:

Originally conceived as a "poison pill in the church-state debate," ... the temple has since evolved beyond reactive political ploys. "Our message and beliefs are deeply sincere," says Jex Blackmore, who leads the group's highest-profile chapter in Mesner's native Detroit. "To us, Satan is a figure that embodies the characteristics that inform our deeply held beliefs, rather than a stab at the superstitious."

Adherents ...  embrace an atheistic philosophy that views Satan not as a deity but a literary symbol. Satan, in this brand of "ism," stands for reason, autonomy and rejection of superstition and arbitrary authority.... 

In the spirit of Satan as eternal outcast, activism remains central to the group's mission. Where religion has already breached the church-state divide, the Satanic Temple elbows in to remind lawmakers that those privileges necessarily extend to other beliefs. 

African-American Church Files RLUIPA Suit Over Denial of Special Use Permit

A Johnston, Rhode Island predominately African-American congregation has filed a lawsuit against the town and its zoning official who denied the church a special use permit to allow it to use the church building it purchased last year for religious assembly. The complaint (full text) in King's Tabernacle v. Town of Johnston, Rhode Island, (D RI, filed 1/25/2016) contends that even though the building has been used for worship by other congregations since 1891, city officials required King's Tabernacle to apply for a special use permit, and then denied the application. The town's zoning official, who subsequently was recorded making racist remarks about the church, told the church it would now have to pay property taxes. The suit contends that the denial of the special use permit violated RLUIPA and the church's free exercise rights. Johnston Patch reports on the filing of the lawsuit.

Former Atheist Employee Can Move Ahead With Title VII Suit Against Christian Business

Mathis v. Christian Heating & Air Conditioning, Inc., (ED PA, Jan. 25, 2016) is a discrimination lawsuit brought under Title VII of the 1964 Civil Rights and and under the Pennsylvania Human Relations Act by an installation mechanic who was fired  or constructively discharged for covering the back of his identification badge with tape to hide his employer company's religious mission statement.  The company's owner is a born-again Christian, while plaintiff is an atheist.  The statement which plaintiff taped over read:

This company is not only a business, it is a ministry. It is set on standards that are higher than man’s own. Our goal is to run this company in a way most pleasing to the Lord.

Treating employees and customers as we would want to be treated along with running a business as if we are all part of one big family is our plan.

The court rejected defendant's RFRA defense, holding that RFRA applies only to suits in which the government is a party.  The court went on to hold that plaintiff had established a prima facie case of failure to accommodate his atheistic beliefs, saying:

Under Title VII, atheists are entitled to the exact same protection as members of other religions.... A reasonable trier of fact could infer from this evidence that Peppelman terminated plaintiff’s employment “with the motive of avoiding accommodation,” in violation of Title VII.

The court also held that plaintiff can move ahead with his retaliation claim.

4th Circuit Hears Oral Arguments On County Commissioners' Invocation Policy

The U.S. 4th Circuit Court of Appeals today heard oral arguments (audio of full arguments) in Lund v. Rowan County, North Carolina, (Docket No. 15-1591). In the case, a North Carolina federal district court held that a county Board of Commissioners' invocation policy is not constitutionally permissible under the Supreme Court's Town of Greece decision when sectarian invocations are delivered by the county commissioners themselves rather than invited clergy and other prayer-givers. The district court also found the county's practice unconstitutionally coercive. (See prior posting.) WBTV reports on today's arguments.

Today Is International Holocaust Remembrance Day

Today is International Holocaust Remembrance Day, set by the United Nations on the anniversary of the liberation of Auschwitz-Birkenau. Jerusalem Post reports:

In Washington, US President Barack Obama will attend a ceremony at the Israeli Embassy posthumously honoring four Righteous Among the Nations – non- Jews who risked their lives to save Jews during the Holocaust and are recognized by Israel's Yad Vashem....

Among those being honored is US Army master-sergeant Roddie Edmonds (died 1985), from Knoxville, Tennessee, who, when imprisoned in a German POW camp, refused to identify Jewish soldiers under his command, telling the camp commandant: “We are all Jews.”...

Chancellor Angela Merkel, in her podcast on Saturday, said anti-Semitism in Germany is “more widespread than we imagine,” citing schools, social media and legal measures.

She called on refugees to reject anti-Semitism.

On Monday, Merkel opened the biggest exhibition of Holocaust art outside Israel in Berlin.

UPDATE: Here is the full text of President Obama's remarks at the Righteous Among Nations Award Ceremony.

Iran's Rouhani Visits Italy; Religious Protocol Among Economic Talks

As reported by Al Jazeera, on Monday Iran's President Hassan Rouhani arrived in Italy to begin a four-day European trip that will also take him to France. The trip focuses mainly on renewing economic ties. International Business Times reports that some Italians are angered at their government's handling of Rouhani's tour of a famous Rome museum:

Rouhani toured the Musei Capitolini (Capitoline Museums) – which hosts a huge collection of artefacts from the ancient, medieval and renaissance periods – accompanied by Italian Prime Minister Matteo Renzi on 25 January.

However, the Iranian leader could not admire some of the museum's masterpieces, as all marbles depicting naked scenes had been carefully hid behind large white panels.

The vast censorship effort was reportedly implemented as a show of respect to the reformist president, out of fears that the exposed private parts of ancient Roman gods could offend Iranian sensitivity. Wine was also banned from official receptions.

VIS reports that Rouhani also met in the Vatican with Pope Francis:

During the cordial discussions, common spiritual values emerged and reference was made to the good state of relations between the Holy See and the Islamic Republic of Iran, the life of the Church in the country and the action of the Holy See to favour the promotion of the dignity of the human person and religious freedom.

Falwell Endorses Trump; Other Evangelical Leaders Quickly Object

Donald Trump's presidential campaign announced yesterday that Trump has received the endorsement of Jerry Falwell, Jr. who is president of Liberty University and is the son of the late televangelist Jerry Falwell, Sr.  In endorsing Trump, Falwell called him  "a successful executive and entrepreneur, a wonderful father and a man who I believe can lead our country to greatness again." According to the Washington Post, this is part of Trump's recent attempt to appeal to religious voters:

On the campaign trail in Iowa, he now begins rallies with a prayer. In Sioux City and Pella, the prayer was offered by Dallas megachurch pastor Robert Jeffress. And on Sunday, Trump attended a Presbyterian service where he met with churchgoers and posed for pictures.

Politico reports however:

Jerry Falwell Jr.’s endorsement of Donald Trump on Tuesday was swiftly met with a backlash from other Christian conservatives sounding the alarm about what they see as a dangerous candidate with questionable morals.

John Stemberger, president of the Florida Family Policy Council said: "The late Dr. Jerry Falwell Sr. would be rolling over in his grave if he knew the son who bore his name had endorsed the most immoral and ungodly man to ever run for President of the United States."

Commission Recommends Removal of State Judge On Various Grounds Including Resisting Same-Sex Weddings

In an opinion issued on Monday (full text), the Oregon Commission on Judicial Fitness and Disability recommended to the Oregon Supreme Court that Marion County Judge Vance Day be removed from office for violations of ten rules of the Code of Judicial Conduct.  Judge Day gained notice when he ordered his staff to screen wedding applicants to assure that any same-sex couples were directed to other judges.  The Commission found that this practice violated three separate rules of conduct.  In addition the Commission found that Judge Day violated Judicial Conduct Rules in connection with his interaction with individuals officiating at his son's soccer games; facilitating the handling of a firearm by a convicted felon who was on supervised probation, as well as personal out-of-court contacts with the felon who had been a Navy SEAL and awarded a Bronze Star; and by soliciting funds from attorneys to acquire military art to be hung in and around his Veterans Treatment Court.  Here is the written closing arguments submitted by Judge Day. Reuters reported on the Commission's opinion. (See prior related posting.)

Court Says Ark Encounter Cannot Be Excluded From Kentucky Tax Incentives

In Ark Encounter, LLC v. Parkinson, (ED KY, Jan. 26, 2016), a Kentucky federal district court, in a 71-page opinion, held that Kentucky improperly excluded a Noah's Ark complex from participating in tax incentives provided by the state's Tourism Development Act. The court summarized the facts and its holding as follows:

Rising on what was once farmland near the community of Williamstown, Kentucky, is what purports to be an exact replica of the ark that figures prominently in the Old Testament story of a great flood that covered the earth. The modern-day Noah that is constructing the replica hopes that its almost $100 million investment will produce a successful tourist attraction.  At first, the Kentucky Tourism Cabinet, with the same hope, approved tax incentives for the project. But then, representatives of the Commonwealth, concerned that the project was going to “advance religion,” reversed course; the reason: providing the tax incentives would be contrary to the First Amendment protection from the state establishment of religion.

So, in essence, the question presented here is this: if a tourist attraction, even one that as described here “advances religion,” meets the neutral criteria for tax incentives offered by the Commonwealth of Kentucky, can the Commonwealth still deny the incentive for Establishment Clause reasons? This opinion is long but the answer to that question is short -- no. 

At the heart of the court's lengthy opinion was the following:

The Commonwealth has forced  [Ark Encounter] to choose between expressing its religious views on its own property at the theme park and receiving the tax rebate under the KTDA. Although Defendants are correct that “the mere non-funding of private secular and religious . . . programs does not burden a person’s religion or the free exercise thereof,” ..., in this case the Commonwealth is funding the private secular programs while discriminating against the religious one because of its religiosity, which is a violation of the Free Exercise Clause.

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

UPDATE: Kentucky Gov. Matt Bevin's office said on Jan. 27 that it will not appeal the court's decision. (Cincinnati Enquirer).

Alumni Complain To ABA That BYU Law School Expels Mormon Students Who Leave The Church

The Salt Lake Tribune reported yesterday that the American Bar Association is investigating a complaint filed against Brigham Young University Law School by a group of its alumni calling themselves FreeBYU.  The group charges the law school with continued enforcement of provisions in its Honor Code that results in expelling Mormon students who leave the LDS Church while they are enrolled in law school.  Similarly the students are fired from their campus jobs and evicted from campus housing. (Background.)  The Honor Code applies as well to faculty.  FreeBYU says that the school's ban on homosexual behavior and sex-reassignment surgery also violates ABA anti-discrimination standards (ABA Standards for Approval of Law Schools, Standard 205).

Texas County Grand Jury Clears Planned Parenthood, Indicts Sting Videographers

Houston Chronicle and the New York Times report that a Harris County, Texas grand jury that was investigating a Planned Parenthood clinic in Houston has cleared the clinic of charges of illegal conduct and instead indicted two of the anti-abortion activists involved in making widely publicized, highly-edited videos involving the clinic. (Press release by Harris County District Attorney.)  Yesterday the grand jury handed down no indictments against Planned Parenthood Gulf Coast that had been charged by the anti-abortion group Center For Medical Progress with illegal sale of fetal tissue to researchers. However it indicted undercover videographers David Daleiden and Sandra Merritt on charges of tampering with a governmental record.  Apparently these charges stem from their use of false government identifications (false documents resembling California drivers' licenses) to obtain access to private areas and record private conversations.  Daleiden was also charged on a misdemeanor count under the law prohibiting the purchase and sale of human organs.  Apparently the grand jury found that he likely crossed the line into offering to buy fetal tissue in his efforts to get Planned Parenthood personnel to admit to selling fetal tissue.

Daleiden said that they were merely using the same techniques that investigative journalists have typically used.  In a statement reacting to the grand jury's action, Texas governor Greg Abbott said:

The Health and Human Service Commission’s Inspector General and the Attorney General’s office have an ongoing investigation into Planned Parenthood’s actions. Nothing about today’s announcement in Harris County impacts the state’s ongoing investigation. The State of Texas will continue to protect life, and I will continue to support legislation prohibiting the sale or transfer of fetal tissue.

Earlier this month, Planned Parenthood filed a civil RICO action against Center for Medical Progress. (See prior posting.) [Updated]

States In Total Liable For Over $13.6M In Lawyers' Fees In Same-Sex Marriage Case Losses

National Law Journal yesterday reported on its compilation of legal fees that 26 states which unsuccessfully defended same-sex marriage bans have agreed to pay or been ordered by courts to pay to successful plaintiffs.  They total more than $13.6 million (including the later-reported $100,000 settlement with Montana)-- with 6 states each being required to pay over $1 million.  The NLJ also published a chart showing the award or settlement amount by case. Fee petitions are still pending in three states.

IRS Announces Changed Procedures For Tax Issues Involving Churches

BNA Daily Report for Executives [subscription required] reported last week on two recent Internal Revenue Service memos of interest to churches. A Dec. 17, 2015 memo (full text) announces that from now on, any investigation involving Employment Tax examinations of churches will be subject to the same special procedures under IRC Sec. 7611 as other church tax inquiries.  A Dec. 30, 2015 Memo (full text) announces that the Exempt Organizations Division will create a three-person team, rotated on an annual basis, to deal with "high profile" referrals.  These include "evidence or allegations involving a church."

Supreme Court Denies Review In North Dakota Fetal Heart Beat Abortion Ban

The U.S. Supreme Court today denied certiorari in Stenehjem v. MKB Management Corp., (Docket No. 15-627, cert. denied 1/25/2016). (Order List.)  In the case, the U.S. 8th Circuit Court of Appeals (full text) held unconstitutional North Dakota's ban on abortions from the time the fetus possesses a detectable heartbeat. ABC News reports on the denial of review.

SCOTUS: State Courts Can Award Attorneys' Fees In Sec. 1983 Cases Only If Suit Was Unreasonable

Suits under 42 USC Sec. 1983 for deprivation of federal civil rights may be brought in state court as well as federal court. Today the U.S. Supreme Court in a per curiam opinion published at the end of its Order List held that state courts are bound by the Supreme Court's interpretation of provisions regarding award of attorneys' fees to defendants in Sec. 1983 actions.  In James v. City of Boise, Idaho, (Sup. Ct., Jan. 25, 2016), the Supreme Court reversed a decision of the Idaho Supreme Court that had held in awarding attorneys' fees under 42 USC Sec. 1988, state courts could ignore the U.S. Supreme Court's interpretation of the statute that limited awards to cases where plaintiff's suit is frivolous, unreasonable, or without foundation.  Idaho had taken the position that since this limitation is not found in the words of the statute, the Supreme Court was merely limiting the discretion of federal courts. The U.S. Supreme Court however, citing cased dating back as far as the 19th century, held that once the Supreme Court interprets federal law, it is the duty of state courts to follow that interpretation.

Recent Articles of Interest

From SSRN (U.S. Law):

• Perry Dane, Master Metaphors and Double-Coding in the Encounters of Religion and State, (San Diego Law Review, Vol. 52, 2015).
• Ilana Finefter-Rosenbluh & Lotem Perry-Hazan, Teacher Diversity and the Right to Adaptable Education in the Religiously-Oriented School: What Can We Learn from Students’ Perceptions?,  ((January 17, 2016). Youth & Society, doi:10.1177/0044118X15621224).
• Elizabeth Rose Schlitz, Rulemaking Under Dodd-Frank: Putting the 'Person' Back Into the Consumer Lending Process, (8 University of St. Thomas Journal of Law & Public Policy 117 (2016)).
• Sahar F. Aziz, Coercing Assimilation: The Case of Muslim Women of Color, (Transnational Law & Contemporary Problems, Vol. 24, No. 2, 2015).

From SSRN (Marriage and Family):

• Elizabeth Rose Schlitz, Motherhood: Benefit or Burden to Business, (International Study Seminar on “Women and Work”, Pontifical Council for the Laity, Rome, Italy (2015)).
• Jayashree P. Khandare, Live-in-Relationships -- Are They Menace to the Institution of Marriage, (2015 AIR Jour /9(2) (8 pp.) VII).
• Jayashree P. Khandare, The Concept of Marriage and its Form: An Indian and Western Perspective, (International Journal of Scientific Research, Volume : 4 | Issue : 12 | December 2015).

From SSRN (Canada):

• Dia Dabby, Constitutional (Mis)Adventures: Revisiting Quebec's Proposed Charter of Values, (2015) 71 S.C.L.R. (2d) 353-383.
• Howard Kislowicz, Loyola High School v. Attorney General of Quebec: On Non-Triviality and the Charter Value of Religious Freedom, ((2015) 71 Supreme Court Law Review (2d) 331-351).

From SSRN (Europe and the Middle East):

• Sylvie Langlaude Doné, Religious Organisations, Internal Autonomy and Other Religious Rights Before the European Court of Human Rights and the OSCE, (forthcoming in (March 2016) Netherlands Quarterly of Human Rights).
• Andrea Pin, Introduction to: The Legal Treatment of Muslim Minorities in Italy, (Islam and the Neutral State (Ashgate 2016)).
• Pnina Lahav, The Women of the Wall - A Metaphor for National and Religious Identity, (Israel Studies Review, Volume 30, Issue 2, Winter 2015: 50-70).

From SSRN (Legal History):

• Charles J. Reid, The Jurisprudence of the Forced Share: The High and Late Middle Ages, (Norwegian Academy of Sciences, “Donations: Strategies and Relations in the Latin West/Nordic Countries From the Late Roman Period Until Today” (Routledge, Ole-Albert Ronning, Helle Moller Sighe & Helle Vogt, eds., 2016 Forthcoming).
• Charles J. Reid, The Jurisprudence of the Forced Share in the Ancient World: From Cicero to Justinian?, (Norwegian Academy of Sciences, “Donations: Strategies and Relations in the Latin West/Nordic Countries From the Late Roman Period Until Today” (Routledge, Ole-Albert Ronning, Helle Moller Sighe & Helle Vogt, eds., 2016 Forthcoming).
• Anna Su, Catholic Constitutionalism from the Americanist Controversy to Dignitatis Humanae, (Notre Dame Law Review (2016 Forthcoming)).

Jehovah's Witness Teacher Sues Over Valentine's Day Party Requirement

As reported on Friday by MLive, in Michigan a former teacher has sued the Southfield school system because her principal ordered her to plan a Valentine's party for her 4th grade class despite her objection that her Jehovah's Witness beliefs preclude her from celebrating St. Valentine's Day.  The complaint in Lemmons v. Southfield Public Schools, (ED MI, filed 1/4/2016), says that the teacher, Yvonne Lemmons, did not show up the day of the party, and soon afterwards the district laid her off.  Lemmons says it was retaliation.  Lemmons initially filed a complaint with the EEOC, and it found reasonable cause.

Satanist's RFRA Challenge To Missouri Abortion Restrictions Dismissed

As previously reported, last May a member of the Satanic Temple filed a lawsuit in state court in Missouri challenging as a violation of Missouri's Religious Freedom Restoration Act the state's waiting period and informed consent requirements imposed before a woman may obtain an abortion. The complaint in Doe v. Nixon, (MO Cir. Ct., filed 5/8/2015), alleged that plaintiff has deeply held religious beliefs that her body is inviolable and subject to her will alone and that she alone decides whether to remove a non-viable fetus. Now the St. Louis Post-Dispatch reports that last month the court dismissed the case, holding that plaintiff's "pleadings fail to allege facts, which if true, state a claim for relief under the Religious Freedom Restoration Act."

Ministerial Exception Applies To Hospital Chaplain's Discrimination Lawsuit

In Penn v. New York Methodist Hospital, (SD NY, Jan. 20, 2016), a New York federal district court invoked the ministerial exception doctrine to dismiss a discrimination suit brought by an African-American Methodist pastor employed as a part-time chaplain by a Methodist hospital.  Plaintiff claimed that he was not promoted to a vacant full-time position because of his race and religion. The court held that the hospital is a "religious institution" for purposes of the ministerial exception doctrine even though it had severed its formal ties with the United Methodist Church:

Severing a formal affiliation with the Church does not necessarily imply that the Hospital does not maintain any church-based relationship or have any religious characteristics.

It went on to find:

insofar as Plaintiff is a Methodist and was responsible—at least in part—for preaching the Christian faith, the relationship between Plaintiff and NYMH (specifically, the pastoral care department) was that of a religious employee and a religious institution. This case does not present the Court, nor will the Court venture out to decide, whether this holding would apply to a religious institution’s employment of a minister, pastor, or chaplain of a different faith.

Kansas Appeals Court Splits Evenly Over State Constitution's Protection of Abortion Rights

In Hodes & Nauser, MDs, P.A. v. Schmidt, (KA App., Jan. 22, 2016), the Kansas Court of Appeals sitting en banc split evenly, 7-7, on whether the Kansas state Constitution provides a right to abortion.  A decision for 6 judges, written by Judge Leben, held that:

sections 1 and 2 of the Kansas Constitution Bill of Rights provide the same protection for abortion rights as the Due Process Clause of the Fourteenth Amendment to the United States Constitution...

 Judge Atcheson, in a concurring opinion, also concluded that the state Constitution protects the right to abortion, but  through language § 1 of the Constitution "prohibiting undue government interference with those inalienable rights, including reproductive freedom, that compose self-determination."

Judge Malone writing a dissenting opinion on behalf of 7 judges rejected the assertion that the Kansas Constitution protects abortion rights, saying in part:

We conclude that the plain language of §§ 1 and 2 of the Kansas Constitution Bill of Rights is not similar enough to the language of the Fourteenth Amendment to find that the corresponding provisions must be applied in the same manner..... Simply put, there is nothing within the text or history of §§ 1 and 2 of the Kansas Constitution Bill of Rights to lead this court to conclude that these provisions were intended to guarantee a right to abortion.

The effect of the even split was to affirm the trial court's grant of a preliminary injunction preventing the Kansas Unborn Child Protection from Dismemberment Abortion Act from taking effect. AP reports on the decision, noting that it was released on the 43rd anniversary of the U.S. Supreme Court's Roe v. Wade decision.

EEOC Seeks Comment On Proposed Guidance On Retaliation

The EEOC yesterday announced that it is seeking public comment on a proposed Enforcement Guidance on Retaliation and Related Issues.  The 76-page Guidance document (full text) includes examples of retaliatory conduct, remedies and best practices for employers.  In connection with religious discrimination in employment, the Guidance says in part:

[P]ersons requesting religious accommodation under Title VII are protected against retaliation for making such requests.  Although a person making such a request might not literally “oppose” discrimination or “participate” in a complaint process, s/he is protected against retaliation for making the request.

10th Circuit Hears Oral Arguments In "Sister Wives" Challenge To Utah Polygamy Ban

The U.S. 10th Circuit Court of Appeals yesterday heard oral arguments in Brown v. Buhman, a case in which a Utah federal district judge struck down most of Utah's statute banning polygamy. (See prior posting.)  While the 10th Circuit does not post recordings of oral arguments, AP reported on the arguments.  Plaintiffs in the case are the polygamous family featured on the TLC reality series "Sister Wives,"

Challenge To School Religious Activities Dismissed On Standing Grounds

In American Humanist Association, Inc. v. Douglas County School District RE-1, (D CO, Jan. 20, 2016), a Colorado federal district court dismissed for lack of standing a lawsuit by parents of children in the Douglas County School District, and by the American Humanist Association. The suit challenged as violations of the Establishment Clause and the Equal Access Act various religious activities in the school system, including participation in Operation Christmas Child collections for needy children, a trip by the Fellowship of Christian Athletes to Guatemala and faculty participation in the Fellowship of Christian Athletes.  Some plaintiffs did not show any injury in fact, while others did not show that their injury was traceable to the challenged conduct. The court also found no standing for plaintiffs as municipal taxpayers.

"No-Aid" Clause Not Violated By Faith-Based Social Service Contracts

In Center For Inquiry , Inc. v. Jones, (FL Cir. Ct., Jan. 20, 2016), a Florida state trial court upheld against constitutional challenge state contracts with religious organizations for substance abuse treatment and transitional housing for former inmates.  Plaintiffs contended that the contracts violate Art. I, Sec. 3 of the Florida Constitution which provides in part:

No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.

The court disagreed, saying:

The No-Aid provision permits government contracts with religious organizations if the funds are not spent "in aid of" religion but rather to further the state's secular goals.... [T]he Program exists to promote the State's anti-recidivism and anti-addiction efforts, not religion. The Program is not "significantly sectarian": it permits some religious content only to the extent the content is offered in a nondiscriminatory and wholly optional and voluntary fashion. Further, the record shows that the program does not indoctrinate, require participation in religious ritual, or favor any one religion over another.

Becket Fund issued a press release announcing the decision.

Department of Education Will Publicize Religious Colleges That Have Obtained Title IX Exemptions

As previously reported, over the last two years the U.S. Department of Education has granted a number of religiously-controlled colleges an exemption from Title IX where full compliance would conflict with their religious tenets.  With the exemption, the schools may continue to receive federal funds even though they discriminate in various ways on the basis of marital status, sex outside of marriage, sexual orientation, gender identity, pregnancy, or abortion. In a press release yesterday, Human Rights Campaign says that now the Department of Education has agreed to create a searchable database of educational institutions that have applied for and/or received such exemptions. HRC comments:

While the Department of Education has little discretion to deny these requests for exemptions, religiously controlled educational institutions should not be exempt from full transparency.

Texas Bar Committee Backs Off Refusal To Certify Christian Ethics CLE Course

As reported by Catholic Education Daily, the State Bar of Texas Minimum Continuing Legal Education Committee last week backed off of its controversial refusal last November (see prior posting) to certify a religious-themed continuing legal education program for "Legal Ethics/ Professional Responsibility" credit.  Texas Gov. Greg Abbott had charged the Committee with religious discrimination after it refused to approve a St. Mary's law school professor's CLE program on "Christian Ethical Perspectives: Faith and Law Today" for ethics credit.  In its January 12 letter (full text) to the professor, Bill Piatt, the Committee said in part:

It has become clear that the November 4 letter conveyed an unintended and incorrect impression regarding the MCLE Committee's position regarding the provision of credit for courses containing moral or religious content.  We take responsibility for and regret the miscommunication.

Zimbabwe's Constitutional Court Says Marriage Under Age 18 Is Banned Without Exceptions

Zimbabwe's Constitutional Court yesterday held that the country's Constitution bars marriage below the age of 18 for either males or females. According to NewsdzeZimbabwe, the court held that  Sec. 78(1) of Zimbabwe's Constitution invalidates Sec. 22(1) of the Marriage Act that allowed girls (with consent of their parents or guardians) to marry at age 16 and boys to marry at age 18, and in addition allowed either to marry at a younger age with the consent of the Minister of Justice, Legal and Parliamentary Affairs.  The court held that the Constitution "sets 18 years as the minimum age of marriage...." and that the Constitution "permits no exception for religious, customary or cultural practices that permit child marriage, nor does it allow for exceptions based on the consent of public official, parents or guardians."

Suit Seeks "Church Plan" Designation To Avoid Liability For Bankrupt Pension Plan

In Nashville (TN), an important charitable foundation, the Baptist Healing Trust Fund, last week filed a declaratory judgment action against the U.S. Pension Benefit Guaranty Corporation seeking to avoid potential liability to the PBGC in connection with the now-bankrupt retirement plan of the former Baptist Hospital. According to the complaint (full text) in Baptist Healing Hospital Trust v. Pension Benefit Guaranty Corporation, (MD TN, filed 1/12/2016), the charitable trust-- which received a substantial portion of the proceeds from the sale of Baptist Hospital in 2001-- seeks a ruling that the pension plan was an exempt "church plan" under ERISA so that the PBGC would have no jurisdiction to pursue claims on behalf of the plan. The PGBC is seeking arbitration to recover the $100 million still due to retirees.  The lawsuit also seeks a stay of the arbitration while the court determines the exempt status of the plan. Nashville Public Radio,  Nashville Post, and The Tennessean all report on the lawsuit.

Adventists Sue Town Over Required License For Door-To-Door Solicitation

The Seventh Day Adventist Church and two of its members filed a federal lawsuit yesterday against the city of White Hall, Arkansas challenging the constitutionality of the city's requirement for a permit before an individual can engage in door-to-door solicitation of funds.  The complaint (full text) in Arkansas-Louisiana Conference of Seventh Day Adventists v. City of White Hall, Arkansas, (ED AR, filed 1/19/2016), contends that the ordinance violates plaintiffs' free speech, free exercise, due process rights and their rights under Arkansas' Religious Freedom Restoration Act. At issue is a  Student Literature Evangelism Program run by Ouachita Hills College in which teams go door-to-door in neighborhoods evangelizing, offering literature and asking for donations.  The suit contends that the ordinance is overbroad and vague, and that its $50 fee chills speech, substantially burdens religious exercise. Plaintiffs also filed a brief (full text) in support of their motion for injunctive relief.  Adventist Review reports on the filing of the lawsuit.

Ejected Muslim and Sikh Airline Passengers Sue

The New York Daily News reported yesterday that a federal lawsuit has been filed against American Airlines and two affiliated regional carriers by  four friends-- 3 Muslims and a Sikh-- who were ejected from a Toronto to New York flight last December because they made the stewardesses and the captain uneasy.  The flyers' appearance and the fact that two of them upgraded to business class just before boarding aroused suspicions in the crew.  Two of the ejected passengers were Bangladeshi Muslims, one an Arab Muslim and one a Sikh from India.  The lawsuit seeks $9 million in damages, claiming plaintiffs were discriminated against for looking too Muslim.

Jehovah's Witnesses In Russia Sue Over Blocking of Bible Imports

Interfax yesterday reported on a lawsuit filed in a Russian court by  the Administrative Center for Jehovah's Witnesses in Russia against customs authorities in the town of Vyborg.  According to the lawsuit filed in the St. Petersburg and Leningrad Region Arbitration Court, Customs has refused to allow into the country a shipment of Bibles from German Jehovah's Witnesses because they were not accompanied by documents certifying compliance with the Federal Law on Counteracting Extremist Activity. The shipment included the Synodal edition of the Bible (translated by the Russian Orthodox Church) and the Study Bible published by the Russian Bible Society.  According to a Nov. 30, 2015 report from Forum 18:

A new Russian legal amendment bans some sacred texts - "the Bible, the Koran, the Tanakh and the Kanjur, their contents, and quotations from them" - from being banned as "extremist". But about 4,000 Jehovah's Witness Bibles are among millions of their publications still held up at Russian customs as they may contain "extremism"....

Trump Speaks At Liberty University With Outreach To Evangelicals

Republican presidential hopeful Donald Trump spoke at Liberty University yesterday, in a talk geared toward his evangelical Christian audience. (Video of full remarks.)  He speech was preceded by a lengthy introduction (full text) from Liberty University president Jerry Falwell, Jr., who said in part:

Matthew 7:16 tells us "by their fruits ye shall know them".  Donald Trump's life has borne fruit, fruit that has provided jobs to multitudes of people in addition to the many he has helped with his generosity.... In my opinion, Donald Trump lives a life of living and helping others as Jesus taught in the Great Commandment.

As reported by Time:

Early on in his speech, Trump tailored his message to the crowd and emphasized the power of Christianity in the country.

 “We’re going to protect Christianity,” he said, before quoting a Bible passage. “2 Corinthians, right? 2 Corinthians 3:17, that’s the whole ballgame. Where the spirit of the lord, right? Where the spirit of the lord is, there is liberty … It is so true.”

(When quoting the Bible passage, Trump said “two Corinthians” rather than “Second Corinthians,” the correct way of saying it.)

“If you look what’s going on throughout the world … Christianity, it’s under siege,” Trump continued. “I’m Protestant, I’m very proud of it, Presbyterian to be exact, but I’m very proud of it … And we’ve got to protect because bad thing are happening … We don’t band together, maybe? Other religions frankly they’re banding together and they’re using it. If you look at this country, it’s gotta be 70 percent, 75 percent, some people say even more. The power we have, we have to unify. We have to band together, we have to do really in a really large version what they’ve done at Liberty.”

Recent Articles of Interest

From SSRN:

• Joseph E. David, Incest, (Encyclopedia of the Bible and Its Reception (Berlin/Boston: Walter de Gruyter, 2015)).
• Victor C. Romero, The Prodigal Illegal: Christian Love and Immigration Reform, (Denver University Law Review, Vol. 92, No. 917, 2015).
• Douglas NeJaime & Reva Siegel, Conscience Wars in Transnational Perspective: Religious Liberty, Third-Party Harm, and Pluralism, (The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Susanna Mancini & MIchel Rosenfeld eds., Cambridge Univ. Press 2017).
• Joel S. Newman, What is a Church? A Look at Tax Exemptions for the Original Kleptonian Neo-American Church and the First Church of Cannabis, (Lexis Federal Tax Journal Quarterly, December 2015).
• Kadir Nagac, Religiosity and Tax Compliance, (January 14, 2016).
• Spencer Churchill, Justice Kennedy and the Unfolding Doctrine of Corporate Religious Sincerity, (May 21, 2015).
• Felice Batlan, Forging Identities: Jewish Women, Legal Aid, and the Secular Liberal State, 1890-1930, (Indiana Journal of Law and Social Equality, Forthcoming).

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

• Hassan Poorbafrani & Masoud Zamani, A Comparative Critique of Regulating the Personal and the Personality Principles in the Iranian Penal System, (January 10, 2016).
• Yinka Olomojobi, Gender and Sharia Law in Northern Nigeria, (July 10, 2015).
• Shamshad Pasarlay, Islam and the Sharia in the 1993 Mujahideen — Draft Constitution of the Islamic State of Afghanistan: A Comparative Perspective,(January 11, 2016).

From SmartCILP, Academia and elsewhere:

• Noura Erakat, Whiteness As Property in Israel: Revival, Rehabilitation, and Removal, 31 Harvard Journal of Racial & Ethnic Justice 69-103 (2015).
• Myriam Hunter-Henin, Religion, Children and Employment: The Baby Loup Case, 64 International & Comparative Law Quarterly 717-731 (2015).
• Ali Altaf Mia, Legal Religion: Ethical Norms and Demands of Justice, (Chap. 21 in Jeffrey J. Kripal (ed.), Religion: Sources, Perspectives, and Methodologies (Macmillan Interdisciplinary Handbooks, 2016)).
• Dani Kranz, Quasi-Ethnic Capital vs. Quasi-Citizenship Capital: Access to Israeli Citizenship, (Migration Letters, Volume: 13, No: 1, pp. 64– 83, Jan. 2016).
• Bryce Langford, The Minister’s Housing Allowance: Should It Stand, and If Not, Can Its Challengers Show Standing?,  63 Kansas Law Review 1129 (2015).

Recent Prisoner Free Exercise Cases

In Payne v. Doe, (3d Cir., Jan. 7, 2016), a Muslim inmate complained that authorities refused to deliver him a late meal tray during Ramadan that eliminted foods to which he was allergic.  The court affirmed the district court's holding that plaintiff had enough alternatives (e.g. getting his therapeutic tray early and holding it until later) that there was no 1st Amendment violation.  However it remanded plaintiff's RLUIPA claim in light of the Supreme Court's intervening decision in Holt v. Hobbs.

In Lofton v. Williams, 2016 U.S. Dist. LEXIS 3195 (SD GA, Jan. 11, 2016), a Georgia federal magistrate judge permitted an inmate to move ahead with his claim that he was placed by the warden in the more restrictive Tier II program because he is a Muslim. He was also given leave to amend his complaint regarding alleged strip searching and confiscation of his religious materials because of his faith.

In Harris v. Lake County, 2016 U.S. Dist. LEXIS 3247 (ND CA, Jan 11, 2016), a California federal magistrate judge dismissed an inmate's claims that his religious rights were infringed when he was denied use of marijuana for medical or spiritual reasons.

In Huston v. Smith, 2016 U.S. Dist. LEXIS 3342 (ND IA, Jan. 11, 2016), an Iowa federal district court rejected a habeas petition holding that civilly committing petitioner for sexually-motivated harassment was reasonable even if petitioner believed that committing him instead of forgiving him was contrary to his religious beliefs.

In Johnson v. Roskosci, 2016 U.S. Dist. LEXIS 3403 (MD PA, Jan. 12, 2016), a Pennsylvania federal district court vacated a default judgment that had been entered against a corrections officer in a suit by an inmate who complained that his necklace of "religious cultural tribal beads" was illegally seized.

In Floyd v. Williams, 2016 U.S. Dist. LEXIS 3615 (SD GA, Jan 12, 2016), a Georgia federal magistrate judge recommended that a Muslim inmate be permitted to proceed with claims for nominal damages and injunctive relief on his complaint that he was denied a chance to participate in the Eid al-Fitr feast.

In Quezada v. Cate, 2016 U.S. Dist. LEXIS 4357 (ED CA, Jan. 12, 2016), a California federal magistrate judge recommended that an inmate who was an adherent of the House of Yahweh be permitted to proceed with his complaint that his kosher meals were terminated because he was not Jewish. UPDATE: The court adopted the magistrate's recommendations at 2016 U.S. Dist. LEXIS 33493, March 15, 2016.

In Robinson v. Cate, 2016 U.S. Dist. LEXIS 4981 (ED CA, Jan. 14, 2016), a California federal magistrate judge recommended denying a preliminary injunction to a Muslim inmate who is litigating his right to a fully Halal diet.

In Crouch v. Wooley, 2016 U.S. Dist. LEXIS 5397 (SD IL, Jan. 14, 2016), an Illinois federal district court permitted a Muslim inmate to proceed with his complaint that he was denied post-sunset meals for 16 days during Ramadan.

Planned Parenthood Files RICO Lawsuit Over Videos

On Thursday, Planned Parenthood filed a wide ranging lawsuit against the Center for Medical Progress over heavily edited widely-publicized videos purporting to show that Planned Parenthood was illegally selling fetal tissue to researchers.  The videos led to federal and state legislative investigations and efforts to cut off government funding.  The complaint (full text) in Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, (ND CA, filed 1/14/2016) alleges violation of the Racketeer Influenced and Corrupt Organization statute, as well as invasion of privacy, conspiracy, breach of contract, trespass and wiretapping. The 65-page complaint alleges in part:

This complaint details a complex criminal enterprise conceived and executed by anti-abortion extremists. The express aim of the enterprise— which stretched over years and involved fake companies, fake identifications, and large-scale illegal taping— was to demonize Planned Parenthood, harass and intimidate its dedicated staff, and interrupt its operations, all with the ultimate goal of interfering with women’s access to legal abortion....

Defendants ... went public with a vicious online video smear campaign, releasing a series of YouTube videos purporting to show that Planned Parenthood violated federal law related to tissue donation. In fact, these videos were heavily manipulated, with critical content deliberately deleted, and disconnected portions sewn together to create a misleading impression.

TPM reports on the lawsuit.

Presidential Proclamation: Religious Freedom Day

The White House yesterday issued a Presidential Proclamation (full text) declaring today as Religious Freedom Day 2016.  It marks the anniversary of the adoption on Jan. 16, 1786 of the Virginia Statute of Religious Freedom.  President Obama's Proclamation included an extensive discussion of his Administration's initiatives to further religious liberty:

Here at home, my Administration is working to preserve religious liberty and enforce civil rights laws that protect religious freedom -- including laws that protect employees from religious discrimination and require reasonable accommodation of religious practices on the job. We will keep upholding the right of religious communities to establish places of worship and protecting the religious rights of those so often forgotten by society, such as incarcerated persons and individuals confined to institutions. We will also continue to protect students from discrimination and harassment that is based on their faith, and we will continue to enforce hate crime laws, including those perpetrated based on a person's actual or perceived religion. This work is crucial, particularly given the recent spike in reports of threats and violence against houses of worship, children, and adults simply because of their religious affiliation. 

As we strive to uphold religious freedom at home, we recognize that this basic element of human dignity does not stop at our shores, and we work to promote religious freedom around the globe. We are working with a broad coalition against those who have subjected religious minorities to unspeakable violence and persecution, and we are mobilizing religious and civic leaders to defend vulnerable religious communities. In addition, we are calling for the elimination of improper restrictions that suppress religious practice, coordinating with governments around the world to promote religious freedom for citizens of every faith, and expanding training for our diplomats on how to monitor and advocate for this freedom.

Supreme Court Grants Review In Missouri Blaine Amendment Case

The U.S. Supreme Court today granted certiorari in Trinity Lutheran Church v. Pauley, (Docket No. 15-577, cert. granted 1/15/2016) (Order List).  In the case, the the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, rejected arguments that Missouri's Blaine Amendments violate the U.S. Constitution's 1st and 14th Amendments. At issue was the denial by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would have allowed it to resurface a playground at its day care and preschool facility on church premises. (See prior posting.) The petition for certiorari (full text) framed the Question Presented as follows:

Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.

SCOTUSblog's case page has links to all the briefs.

Court Refuses To Require Catholic Hospital To Perform Tubal Ligation

In Chamorro v. Dignity Health, (CA Super., Jan. 14, 2016), a California trial court refused to issue a preliminary injunction to require a Catholic hospital to perform a tubal ligation for contraceptive purposes.  The hospital refuses to perform the procedure pursuant to the U.S. Conference of Catholic Bishops' Ethical and Religious Directives for Catholic Health Care Services.  Plaintiff had contended that this violates California's prohibition on gender discrimination, but the court concluded that the hospital's policy bars direct sterilization of men as well as of women. AP reports on the decision.

NY Appeals Court Upholds Penalty On Wedding Venue That Refused To Host Same-Sex Ceremony

In Matter of Gifford v. McCarthy, (NY App. Div., Jan. 14, 2016), a New York state intermediate appellate court upheld a decision by the State Division of Human Rights imposing compensatory damages of $3000 and a civil fine of $10,000 on a for-profit wedding venue for refusing to host a same-sex marriage ceremony.  Liberty Ridge Farm rents space for, among other things, religious and secular wedding ceremonies and receptions.  One of the farm's owners told Melissa McCarthy that the farm did not host same-sex marriage ceremonies, though apparently it would have been willing to host the reception.  The court held that Liberty Ridge's wedding facilities are a "place of public accommodation" under the NY Human Rights Law and that discrimination against same-sex weddings is discrimination on the basis of sexual orientation.

The court went on to reject respondents federal and state free exercise claims, as well as their First Amendment compelled speech and expressive association defenses. It found the Human Rights Law to be a neutral law of general applicability.  The New York state constitution's free exercise clause requires a balancing of interests.  The court said:

While we recognize that the burden placed on the Giffords' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the Giffords' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination....  Balancing these competing interests, we conclude that petitioners failed to show that SDHR's determination constituted an unreasonable interference with the Giffords' religious freedom.

Rejecting respondents' First Amendment compelled speech argument, the court said:

Here, SDHR's determination does not compel the Giffords to endorse, espouse or promote same-sex marriages, nor does it require them to recite or display any message at all. The Giffords remain free to express whatever views they may have on the issue of same-sex marriage. The determination simply requires them to abide by the law and offer the same goods and services to same-sex couples that they offer to other couples. Despite the Giffords' assertion that their direct participation in same-sex wedding ceremonies would "broadcast to all who pass by the Farm" their support for same-sex marriage, reasonable observers would not perceive the Giffords' provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage.

The Blaze reports on the decision.

Group Releases List of Countries With Worst Persecution of Christians

This week the organization Open Doors issued its 2016 World Watch List Report detailing the 50 countries where persecution of Christians is greatest.  North Korea, Iraq, Eritrea, Afghanistan, Syria, Pakistan and Somalia top the list. On Wednesday, Religion News Service covered the press conference at which the Report was released.

Victims' Group Says Catholic Church Is Still Responding Inadequately To Priest Abuse

Building on the popularity of the Academy Award nominated film Spotlight, earlier this week SNAP (Survivors Network of those Abused By Priests) issued a press release titled A Challenge to Journalists: Where “Spotlights” Are Needed Now.  It discusses nine areas in which SNAP believes the Catholic Church is still not providing adequate safeguards or is not implementing promises of transparency, accountability and compensation for past and present clergy sexual abuse.

Court Dismisses Defamation Suit Because Accusations Require Religious Determination

Yesterday's New Jersey Law Journal reports on a Jan. 6 decision by a Bergen County trial court dismissing a defamation action brought by Raghd Alashaal Faisal Alhusaini who lives in Saudi Arabia against her half-sister, Malak Alshaal Faisal Alhusaini.  Plaintiff claimed her sister defamed her in social media postings by accusing her of having had sexual relations with multiple men under a marriage arrangement known in Sunni Islamic law as "Misyar,"  The court held that it lacks jurisdiction to decide whether accusing someone of engaging in Misyar is defamatory because that is a non-secular issue. Plaintiff also objected to a statement that her father had "disowned" her.  The court held that this is merely a non-actionable statement of opinion.

Colorado Appeals Court Interprets Religious Purpose Property Tax Exemption

In Grand County Board of Commissioners v. Colorado Property Tax Administrator, (CO App., Jan. 14, 2016), a Colorado appeals court held that in applying the state's tax exemption for property used in furtherance of religious purposes, the critical question is not whether the property is being used for inherently religious activities. Instead it it whether the use of the property furthers the landowner's religious mission an purpose.

Amicus Briefs Supporting Petitioners In Zubik Are Now Available

Monday was the deadline to file amicus briefs with the U.S. Supreme Court in support of petitioners in Zubik v. Burwell and its companion cases which challenge the accommodation for religious non-profits that object to the contraceptive coverage mandate under the Affordable Care Act.  Forty-two amicus briefs were filed, and Becket Fund has links to the full text of all of them. Amicus briefs in support of the government's position will be due by Feb. 17 (ten days after the due date for respondent's brief).  Here is SCOTUSblog's case page on Zubik.

Pope Speaks To Diplomatic Corps About Migration Crisis In Europe

On Monday, Pope Francis held the traditional exchange of New Year's greetings with members of the diplomatic corps accredited to the Holy See.  In his remarks (full text) the Pope focused on the "grave crisis of migration" affecting Europe. He said in part:

I wish, then, to reaffirm my conviction that Europe, aided by its great cultural and religious heritage, has the means to defend the centrality of the human person and to find the right balance between its twofold moral responsibility to protect the rights of its citizens and to ensure assistance and acceptance to migrants....

In facing the issue of migrations, one cannot overlook its cultural implications, beginning with those linked to religious affiliation. Extremism and fundamentalism find fertile soil not only in the exploitation of religion for purposes of power, but also in the vacuum of ideals and the loss of identity – including religious identity – which dramatically marks the so-called West. This vacuum gives rise to the fear which leads to seeing the other as a threat and an enemy.... The acceptance of migrants can thus prove a good opportunity for new understanding and broader horizons, both on the part of those accepted, who have the responsibility to respect the values, traditions and laws of the community which takes them in, and on the part of the latter, who are called to acknowledge the beneficial contribution which each immigrant can make to the whole community.

Russia Not Sympathetic To "Pastafarian" Driver's License Applicant

In Russia, the Moscow Department of the State Inspectorate of Traffic Safety has taken issue with one of its examination divisions which issued a driver's license to a man claiming to be a "Pastafarian."  According to Interfax, the Department says it will cancel the license which carries a photo of the man wearing a knitted pasta strainer on his head, and it will take disciplinary measures against the employees who issued the license. Rules apparently ban headwear in license photos.

Cert. Denied In Challenge To ACA Religious Conscience Exemption

On Monday, the U.S. Supreme Court denied certiorari in Cutler v. Department of Health and Human Services, (Docket No. 15-632, cert. denied 1/11/2016) (Order List).  In the case, the D.C. Circuit rejected an Establishment Clause challenge to the religious conscience exemption in the Affordable Care Act which exempts from the individual mandate members of certain traditional religious groups such as the Amish and Mennonites. (See prior posting.)

Anti-Westboro Protest Group Found To Have Violated Ordinance Against Picketing of Religious Event

In Topeka, Kansas yesterday. a municipal court judge imposed a $10 fine and $150 in court costs on each of four members of the Journey 4 Justice motorcycle counter-protest group for their Sept. 12 protest outside the Westboro Baptist Church.  According to the Topeka Capital-Journal, the group which was formed in 2011 to counter-protest hate groups like the virulently anti-gay Westboro was found to have violated Topeka Municipal Code Sec. 9.45.140 which prohibits picketing a house of worship during an announced religious event carrying a banner, placard or sign.  The court ruled that "banners" include American flags that the protest group was carrying, and that the ordinance applies during announced hours of religious services, whether or not services were actually taking place.  Originally Topeka police merely asked the group to end their protest, but members of the group insisted that police issue a citation so that a court could clearly interpret the law.

Newdow Sues Again To Get "In God We Trust" Off Money-- This Time Using RFRA

Activist Michael Newdow is trying once again to get the motto "In God We Trust" removed from the nation's coins and currency.  Representing some 41 plaintiffs including the Northern Ohio Freethought Society, Newdow and his co-counsel this week filed an elaborate 112-page complaint in an Ohio federal district court.  The complaint (full text) in New Doe Child #1 v. Congress of the United States of America, (ND OH, filed 1/11/2016) traces in almost law-review style (and with 362 footnotes) the history of "In God We Trust" on coinage and currency. In addition to 1st Amendment free exercise, establishment clause and compelled speech claims, the suit also relies on RFRA, contending in part:

By placing “In G-d We Trust” on the nation’s coins and currency bills, Defendants have substantially burdened Plaintiffs in the exercise of their Atheistic (and similar) beliefs by requiring them – as the price to pay for using the nation’s coins and currency bills – to personally bear a religious message that is the antithesis of what they consider to be religious truth.

As to one plaintiff-- Adam Clayman-- who is not an atheist, the complaint alleges that he believes:

participation in any activity that ultimately leads to the superfluous printing of G-d’s name on secular documents or to the destruction of G-d’s printed name is sinful. Thus, aware that – due to the acts being challenged in this case – G-d’s printed name on the nation’s money will ultimately be destroyed, Plaintiff Clayman has to choose between engaging in sin or not using the nation’s coins and currency bills.

The Blaze and Cleveland Plain Dealer report on the lawsuit. (See prior related posting.)

AU Creates New RFRA Bill Tracker

Americans United For Separation of Church and State announced yesterday that its "Protect Thy Neighbor" (PTN) project has created a legislative tracking page that allows tracking of all RFRA-type legislation introduced into Congress or state legislatures-- legislation that it describes as "legislation that would allow individuals, businesses and government employees to harm others in the name of religion."  PTN's blog, The Shield, will explain and comment on many of the bills.

Court Upholds Bus Company's Rejection of Pro-Life Referral Ads

In Women's Health Link, Inc. v. Fort Wayne Public Transportation Corp., (ND IN, Jan. 5, 2016), an Indiana federal district court upheld a decision by Citilink (Ft. Wayne's public bus service) to reject an ad from Women's Health Link, a pro-life health care referral service.  Citilink makes space available for public service announcements from non-profit organizations, but only if they do not express or advocate opinions on political, religious, or moral issues. The court held that Citilink maintains its advertising space as a "non-public forum".  According to the court:

The evidence doesn’t support Women’s Health Link’s contention that Citilink allowed comparable advertisements that address the same or similar topics but advocate a non-life-affirming position....

The reasonableness of the restrictions depends on the purpose of the forum.  In this case, the stated purpose was maximizing revenue, keeping the cost of riding the bus down, protecting Citilink’s passengers from the risk of imposing on a captive audience, and avoiding any “endorsement, implied or otherwise” of the product, service or message. The restrictions on political, religious, and moral speech serve that purpose and are reasonable under the circumstances.

ADF issued a press release reacting to the decision

Preliminary Injunction and Bitter Fighting Among Top State Officials Over Nevada School Voucher Law

Litigation over Nevada's new school voucher program is getting messy.  As previously reported, two lawsuits have been filed challenging the voucher law. Then, as reported by This Is Reno, on January 8, a third lawsuit was filed by Nevada Lt. Governor Mark Hutchison, acting in his private capacity as a lawyer representing for free two Nevada families who want to participate in the voucher program.  He is asking the court for a declaratory judgment supporting the constitutionality of the plan, hoping that this will lead to a quicker ruling. The filing of this suit led to bitter criticism from the state attorney general and state treasurer. The attorney general quickly filed a motion to dismiss the suit (full text) (press release) and State Treasurer Dan Schwartz issued a flurry of releases critical of Hutchinson, and is quoted by the press as saying:

[Hutchison is] using this to fill his campaign coffers for political office. We’ve never seen the Lt. Governor at any of the hearings. I’ve never seen him at any of the workshops. He went about getting [information] surreptitiously from one of my staff. All [this lawsuit] is going to do is distract from our other cases, which are serious cases. It’s a political stunt. It’s a perversion of justice. He’s using the court system for his own political gain. I’m seriously considering asking him to resign.

Then yesterday, a state court judge in one of the other cases issued a preliminary injunction ordering the state treasurer to stop implementing the new law's educational savings accounts while the court hears challenges to the law. According to AP,  Carson City District Court Judge James Wilson concluded that plaintiffs had shown a reasonable chance of prevailing on the merits.  Implementation would have diverted $20 million from the public school budget.

UPDATE: Here is Judge Wilson's full opinion in Lopez v. Schwartz, (NV Dist. Ct., Jan 11, 2016) granting the preliminary injunction. [Thanks to Blog From the Capital for the lead.]

Settlement In Voter Registration Suit Brought By Disenfranchised Hasidic Jews

The Forward and JTA reported yesterday that a settlement has been reached in a lawsuit filed last year against the Sullivan County, New York, Board of Elections by 27 Hasidic Jews whose voter registrations were among 156 in the Village of Bloomingburg that the Board of Elections had taken steps to cancel.  The Election Board claimed that the voters were not really residents of the Village, which had a population of only 420 in the 2010 census. (See prior posting.)  Under the settlement agreement the names will remain on the voter rolls.  This is part of a larger dispute over the building of a high density 396-unit apartment development in Bloomingburg that will be marketed to members of the Satmar Hasidic community.

UPDATE: A Feb. 2 report by the New York Post says that the settlement, which the court has approved, includes the appointment of a monitor for 5 years to oversee the voting process (including review of the voter challenge questionnaire). Also voting materials and signs will be in both Yiddish and English. The county will pay damages of $25,000 and $550,000 in attorneys' fees.

Yeshiva Files RLUIPA Action Against New Jersey Township

In New Jersey last week, a federal lawsuit was filed challenging the denial of a zoning variance by the Township of Ocean to plaintiffs who want to use an existing school building for a 96-student boarding school for advanced Jewish studies.  The 79-page complaint (full text) in Yeshiva Gedola Na’os Yaakov, Inc. v. Township of Ocean, New Jersey, (D NJ, filed 1/8/2016) contends that the denial violates RLUIPA, the Free Exercise and Equal Protection Clauses, the Fair Housing Act, the New Jersey Law Against Discrimination, as well as other provisions.  A press release by counsel filing the lawsuit describes it:

The Complaint explains the Yeshiva’s need for a religious school, as well as the Township’s zoning laws that completely prohibit religious education throughout the Township for students over 18 years of age, while permitting other adult education institutions. It also describes a long litany of examples of the substantial hostility faced by the Yeshiva during the variance application proceedings..... The Complaint states that “many Ocean Township residents hold animus toward the Orthodox Jewish community in nearby Lakewood, New Jersey”.... The variance application dragged on for approximately four times the statutory limit of 120 days, including proceedings shut down because of capacity being exceeded by crowds “packing” the venue.

NJ.com has more on the lawsuit.

Suit, Claiming Free Exercise Right, Seeks Voiding of Death Certificate

Late last month, a suit was filed in a California federal district court seeking to require the state of California to invalidate a death certificate issued two years ago when 13-year old Jahi McMath was declared brain dead.  However before the child's ventilator was removed, her mother transferred her to a facility in New Jersey, a state which has a religious exemption in its law to the brain-death standard.  Jahi's mother claims that Jahi now shows brain function.  The complaint (full text) in McMath v. State of California, (ND CA, filed 12/23/2015) seeks an injunction requiring California to restore all rights (including health care benefits) to Jahi, and requiring it to expunge records of the death certificate. Among the grounds for relief asserted by plaintiffs are the Free Exercise clause and RLUIPA. The complaint alleges in part:

Plaintiffs' sincerely held religious beliefs require that they provide ongoing medical care for any person who is alive, including JAHI McMath.... The issuance of a facially invalid (and now substantively inaccurate) death certificate ... created a situation in which Plaintiffs were unable to exercise their religion....

The McMath lawyers issued a press release announcing the filing of the lawsuit, and NJ.com reports on the suit.

Appeals Court Rejects Jehovah's Witnesses Venue Transfer As Delay Tactic

In Fessler v. Watchtower Bible and Tract Society of New York, Inc., (PA Super. Ct., Dec. 30, 2015), a Pennsylvania state appellate court held that a trial court abused its discretion in transferring a sexual abuse case against Jehovah's Witness organizations from Philadelphia County to York County. Plaintiff in the case alleged that as a teenager she was sexually abused by a middle-aged woman (also a defendant) whom she met through a Jehovah's Witness congregation.  The defendants' change of venue motion was granted just two weeks before trial was to begin, and after discovery had taken place.  The transfer was to the county with the largest civil case backlog in Pennsylvania.  The court concluded that the motion was a bad-faith "last-minute gambit to delay trial." Reveal reports on the decision.

Turkey's Religious Affairs Directorate Ends Online Fatwas After Embarrassing Posting

Turkey's Religious Affairs Directorate announced on Friday that it is closing down its online fatwa service after public outrage over a online fatwa discussing whether a man having lustful feelings for his daughter would religiously invalidate his marriage with the girl's mother. According to Today's Zaman, a Directorate spokesman says: "Such a fatwa has never been issued by our High Council on Religious Affairs."  The fatwa was removed from the Directorate's website.  An investigation into the incident has begun, but explanations so far are confusing, suggesting that the posting of the fatwa may have been a purposeful attempt to embarrass the Religious Affairs Directorate, perhaps by followers of the Gülen movement within the state bureaucracy.

Church Sues Over Denial of Use Permit

According to Saturday's Fort Worth Star Telegram, earlier this month the 75-member Now Faith Deliverance Temple filed a state court lawsuit against the Pantego, Texas Town Council after the Council denied the church a special use permit.  The permit would have allowed the congregation to continue to operate in the building to which it relocated 6 months earlier.  Apparently the Town had received complaints from neighbors about noise levels at the church.  The non-denominational African-American church charges that the Town Council has a history of denying permits to religious groups whose members are racial or religious minorities. Last November, a mosque faced a similar refusal.

Recent Articles of Interest

From SSRN:

• Nelson Tebbe, Religion and Social Coherentism, (Notre Dame Law Review, Vol. 91, No. 363, 2015).
• Julie A. Nice, Conjuring 'Equal Dignity': Mapping the Constitutional Dialogue to and from Same-Sex Marriage, (31 Civil Rights Litigation Handbook 373 (Steven Saltzman ed. 2015)).
• Laura M. Weinrib, Freedom of Conscience in War Time: World War I and the Civil Liberties Path Not Taken, (Emory Law Journal, Vol. 65, No. 4, Forthcoming).
• Simone Chriss & Danaya C. Wright, After Obergefell v. Hodges: The Continuing Battle Over Equal Rights for Sexual Minorities in the United States, (GenIUS, December 2015, at 18).
• Philip T. Hackney, Charitable Organization Oversight: Rules v. Standards, (Pittsburgh Tax Review, Forthcoming).
• Alan D. Viard, The Basic Economics of Pease and PEP, (Tax Notes, Vol. 146, No. 6, 2015).

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

• Shauna Van Praagh, 'Open House' - 'Portes Ouvertes': Classrooms as Sites of Interfaith Interface, (B. Berger and R. Moon, eds., Religion and the Exercise of Public Authority (forthcoming, 2016, Hart Publishing)).
• David Schneiderman, Multiculturalism in Canadian Constitutional Culture: Domesticating Difference, (January 4, 2016).
• Bina D'Costa, 'You Cannot Hold Two Watermelons in One Hand': Gender Justice and Anti-State Local Security Institutions in Pakistan and Afghanistan, (In Hitoshi Nasu and Kim Rubenstein (eds) Legal Perspectives on Security Institutions, Cambridge: Cambridge University Press (2015), pp. 47-72).
• Sean Davidson, Necessary Questions in Free Religion Cases: Application of 'General Applicability' to the French Veil Case, (Charles University in Prague Faculty of Law Research Paper No. 2015/III/2).
• András Koltay, Privacy in Public Places – Celebrities, Suicides, Outsiders, Naked Men and Muslim Veils on the Street, (January 6, 2016).
• Maria Gloria Polimeno, The 2014 Egyptian Constitution: Balancing Leadership with Civil Rights (Al-Wataniyya), (Electronic Journal of Islamic and Middle Eastern Law. Vol. 3 issue 1 p. 1-67 (2015)).
• Mohammad Fadel, Islamic Law and Constitution-Making: The Authoritarian Temptation and the Arab Spring, (Osgoode Legal Studies Research Paper No. 24/2015).

From SmartCILP:

• Journal of Law & Religion, Vol. 30, No. 2 (June 2015) has recently appeared.

IRS Withdraws Proposal For Donee Reporting By Charities Over Privacy Concerns

The Internal Revenue Service announced in the Jan. 8 Federal Register that it is withdrawing a controversial proposal that would have allowed charitable organizations to report individual donations to the IRS as an alternative to taxpayers obtaining a contemporaneous written acknowledgement of the contribution.  Many of the public comments on the proposal expressed privacy concerns since charitable organizations would have needed to collect and maintain social security numbers of donees.

Maritime Park Worker Sues After Being Fired For Helping With Baptism

Courthouse News Service reported last week on a religious discrimination suit filed in a California federal district court.  A maintenance worker at the Maritime National Historic Park in San Francisco, who is also a Baptist minister, says he was fired for helping to baptize a visitor in the ocean.  The baptism took place while the minister Roger Holly was on his lunch break and was not in uniform. Holly, who is African-American, had previously complained about racial discrimination.

Recent Prisoner Free Exercise Cases

In Thompson v. Holm, (7th Cir., Jan 4, 2016), the 7th Circuit, reversing the district court, ruled that withholding a Muslim inmate's meal bags for two days during Ramadan constituted a substantial burden on his free exercise rights. The court, also rejecting several other defenses, urged the district court to appoint counsel for plaintiff on remand.

In Rosales v. Watts, 2016 U.S. Dist. LEXIS 267 (SD GA, Jan 4, 2016), a Georgia federal magistrate judge recommended that  an inmate be allowed to proceed with many of his claims alleging that prison authorities truncated the "Spiritual Mass" ceremony for Santeria practitioners and refused to order Santeria supplies including bead necklaces with Ache. UPDATE: The magistrate's recommendations were adopted at 2016 U.S. Dist. LEXIS 33357, March 15, 2016.

In Michaels v. West, 2016 U.S. Dist. LEXIS 1826 (ND WV, Jan. 7, 2016), a West Virginia federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 174184, Nov. 25, 2015) and dismissed for failure to exhaust administrative remedies an inmate's complaint that he was denied the vegetarian diet required by his Asatru religious beliefs.

In Todd v. CDCR, 2016 U.S. Dist. LEXIS 1944 (ED CA, Jan. 7, 2016), a California federal magistrate judge recommended that, consistent with a remand from the 9th Circuit, the complaint by an inmate who was a minister in the White supremacist Creativity religion move ahead.  Plaintiff complains about confiscation of religious material, failure to provide a fruitarian (or acceptable alternative kosher diet), placing of the Holy Books of Creativity on the banned list, and refusal to recognize Creativity as a religion.

In Young v. Rodriguez, 2016 U.S. Dist. LEXIS 1965 (ED  CA, Jan. 7, 2016), a California federal magistrate judge permitted a Rastafarian inmate to move ahead with his complaint that he was not permitted to wear his religiously required head covering-- a crown-- into the health care facility visiting room.

In Rezaq v. Federal Bureau of Prisons, 2016 U.S. Dist. LEXIS 2288 (SD IL, Jan. 8, 2016), an Illinois federal district court permitted a Muslim inmate to proceed under RFRA (but not under the 1st Amendment) complaining that prison authorities did not have a pre-dawn morning pill line during Ramadan.

In Wallace v. Mayfield, 2016 U.S. Dist. LEXIS 1137 (ED AR, Jan. 6, 2016), an Arkansas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 174100, Dec. 14, 2015) and denied a preliminary injunction to an inmate who claimed his free exercise rights were infringed when he was forced to shave his beard and cut his hair. Plaintiff sought to enjoin retaliation for filing the lawsuit.

In Coleman v. Lincoln Parish Detention Center, 2016 U.S. Dist. LEXIS 2633 (WD LA, Jan. 7, 2016) a Louisiana federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 174236, Dec. 7, 2015) and dismissed a Muslim inmate's complaint that he was denied the right to participate in weekly Jummah services and when he filed a grievance was transferred to another facility.

Court Allows RFRA Challenge To ACA Individual Mandate To Proceed

A Missouri federal district court yesterday refused to dismiss for failure to state a claim under RFRA a suit by a state legislator and his wife asserting their religious rights are burdened by the Affordable Care Act's mandate requiring them to purchase health insurance which includes contraceptive coverage.  In Wieland v. U.S. Department of Health and Human Services, (ED MO, Jan. 8, 2016),  Paul and Teresa Wieland, who are Roman Catholics, assert that paying for or participating in a healthcare plan that includes coverage for contraceptives, or providing such insurance coverage for their three daughters, violates their sincerely-held religious beliefs. (The daughters were 12, 18 and 19 when the suit was brought.) The court, relying on 8th Circuit precedent, said:

it is not the Court’s role to second-guess the reasonableness of a plaintiff’s sincerely-held religious beliefs....

The court concluded that while the government may be able to prove that the religious exercise burden is justified by a compelling governmental interest, that is not something plaintiffs have an obligation to disprove at this stage in order to avoid dismissal.  The court however did dismiss plaintiffs' 1st Amendment free exercise and free speech claims, as well as their substantive due process and Administrative Procedure Act claims. (See prior related posting including link to complaint.)

Mother's Move To Eskimo Village Does Not Justify Reduction In Her Child Support Obligations

In Sharpe v. Sharpe, (AK Sup. Ct., Jan. 8. 2016), the Alaska Supreme Court in a 3-2 decision upheld a trial court's denial of a mother's motion to reduce the amount she is required to pay under a child-support order. The mother, who is the non-custodial parent of an 10 year old daughter, gave up her high-paying Alaska pipeline job to move back to her Yup'ik Eskimo community.  She adopted a subsistence lifestyle there to meet her her cultural, spiritual, and religious needs and help her in her battle with alcohol. Under Alaska rules, the court can order a parent to pay more than would otherwise be justified by his or her current income level if the parent is "voluntarily and unreasonably" unemployed or underemployed. The majority concluded that this was a voluntary and unreasonable decision by the mother to earn less than she is capable of earning.

On appeal, the mother also argued that the child support order burdens her free exercise of religion as protected by the Alaska Constitution.  She contended that the order in effect requires her to give up her Native religious and cultural heritage to maintain a stressful job in Anchorage. The majority rejected her claim because it had not been raised at trial.

Justice Winfree dissenting argued in part:

Today’s decision has enormous negative implications. It trivializes and devalues Alaska Natives’ cultural, spiritual, and religious connections to their villages and their subsistence lifestyle.  It requires a non-custodial Native parent in rural Alaska to pay child support based on what the parent could earn in urban Alaska regardless of the legitimacy of choosing to live in rural Alaska.... [I]t infringes on constitutionally protected religious and privacy rights.