Airline Faces Religious Objection To In-Flight Movie

According to Haaretz, Israel's El Al Airlines yesterday faced an unruly passenger demand for religious accommodation.  On a flight from Warsaw, Poland to Tel Aviv, an ultra-Orthodox Jewish passenger objected that the in-flight movie being shown was immodest.  He began pushing and striking at the screens showing it, breaking two of them. The movie was "Truth," an "R" rated film starring Cate Blanchett, Robert Redford and Dennis Quaid.  El Al has faced at least one prior incident of passengers objecting to the in-flight movies, and a number of times has faced religious demands by passengers for sex-segregated seating assignments. (See prior related posting.)

Feds Indict FLDS Leaders On Food Stamp Fraud Charges

The U.S. Attorney's Office for the District of Utah announced on Tuesday the unsealing of an indictment against eleven leaders and members of the polygamous FLDS Church charging them with conspiracy to commit food stamp fraud and conspiracy to commit money laundering.  (Full text of indictment in United States v. Jeffs). According to the U.S. Attorney's Office:

The indictment alleges church leaders diverted SNAP proceeds from authorized beneficiaries to leaders of the FLDS Church for use by ineligible beneficiaries and for unapproved purposes. A large percentage of FLDS Church members living in the Hildale, Utah – Colorado City, Arizona, community known as Short Creek receive SNAP benefits, amounting to millions of dollars in benefits per year.

Essentially, FLDS leaders required food stamp recipients to donate their benefits to a central clearing house which then redistributed food and household items to all in the community, whether or not they were food-stamp eligible. The indictment includes counts seeking criminal forfeiture of assets.  Daily Beast  reports further on the indictments.

Housing Crunch For Orthodox Jews In New Jersey Places Focus On Real Estate Practices [UPDATED]

AP reported yesterday on the influx of ultra-Orthodox Jews into the town of Lakewood, New Jersey and surrounding communities.  AP reports that the influx is of Hasidic Jews, but as a commenter on Twitter to an earlier version of this post points out, the Jews in Lakewood, and the yeshiva that attracts them are largely in the Orthodox Lithuanian Jewish ("Yeshivish") tradition, not Hasidic. Nevertheless here is AP's report:

A housing crunch in Lakewood, home to one of the nation’s largest populations of Hasidic Jews, has triggered what residents of neighboring communities say are overly aggressive, all-hours solicitations from agents looking to find homes for the rapidly growing Jewish community.

The complaints have prompted towns, including Toms River, to update their “no-knock” rules and related laws, adding real estate inquiries to measures that already limit when soliciting can occur and allow residents to bar solicitations.

But Jewish leaders and others say the no-knock laws unfairly target Orthodox Jews and those seeking to help them find houses. Many current residents came to the community to study at one of the largest yeshivas in the world and eventually settled down....

On the other hand, some of the solicitation activity is reminiscent of the kind of activity that led to the federal Fair Housing Act's ban on "blockbusting."  42 USC Sec. 3604(e) makes it illegal:

For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin.

AP describes one homeowner's experience:

James Jackson didn’t want to sell his home but thanked the black-suited man for his interest anyway.

That’s when the man put his hand on Jackson’s shoulder and told him he might want to reconsider. Many of his neighbors in the New Jersey shore town of Toms River, the man said, already planned to sell to Jewish buyers like those he represented.

“He asked me why I would want to live in a Hasidic neighborhood if I wasn’t Hasidic,” Jackson recalled. “He asked if I would really be happy, if it would be in my family’s best interests.”

Indiana City Strengthens LGBT Anti-Discrimination Protections

As reported by the Evansville Courier & Press, Evansville, Indiana city council on Monday, by a 7-2 vote, passed Ordinance G-2016-05 (full text) which expands anti-discrimination protections for gay, lesbian, bisexual and transgender individuals.  Previously the city banned discrimination on the basis of sexual orientation and gender identity, but the city's Human Relations Commission essentially lacked enforcement power. Investigation and mediation were solely voluntary on the part of the parties. The new ordinance gives the Human Relations Commission the same enforcement powers in cases of LGBT discrimination, as in discrimination on other bases. The new ordinance however also enacts new exemptions from the city's anti-discrimination provisions.  It exempts religious and religiously affiliated organizations, as well as private social clubs. City Council rejected proposed broader exemptions for individuals and non-profits with a "religious conscience."

Religious Beliefs of Presidential Candidates Continue To Be Focus of Interest

International Business Times yesterday reviewed the religious faiths of each of the remaining candidates in the Republican and Democratic races for President of the United States, saying:

Some of the candidates’ paths to faith are more complicated than others, as they either deepened or found their faith at different points in their lives. Here we take a look at how each candidate identifies religiously, as well as at the religions of their children, spouses and parents.

Candidates' religious beliefs continue to spark controversy and interest.  As reported by the Wall Street Journal, candidate Ted Cruz yesterday dismissed his communications director Rick Tyler who had been his chief spokesman after Tyler posted on social media a video that misquoted a remark by rival Marco Rubio.  The misquote suggested that Rubio did not think the Bible had many answers in it, when in fact Rubio had said just the opposite.

Meanwhile last week, The Forward published an interesting opinion piece by Rabbi Valerie Lieber titled We Need To Out Bernie Sanders As A Jew-- For His Own Good.

Advocacy Organization Launches New Name and Website

The religious freedom advocacy organization Liberty Institute announced last week that it has changed its name to First Liberty Institute. The change is intended to emphasize the organization's focus on religious liberty. It has also launched a newly designed website with a new URL. First Liberty has released its 2016 edition of Undeniable: The Survey of Hostility to Religion in America. (full text).

UC Irvine Rejects Endowed Chairs in Religious Studies Because of Donor Restrictions

The University of California Irvine is rejecting some $6 million in contributions to create four endowed chairs relating to the religions and history of India. Inside Higher Ed reports that an Ad Hoc Committee on Endowed Chairs in the School of Humanities has recommended against the chairs because the agreements establishing them "include language that is not consistent with University policies related to religious and academic freedom."  (Full text of committee's report).  The report recommends rejection, regardless of agreement modifications, of two chairs proposed by the Dharma Civilization Foundation (DCF)-- one a chair in Indic and Vedic Civilization Studies and a second in Modern India Studies-- because "DCF is unusually explicit and prescriptive on appropriate disciplinary formations, what constitutes good or acceptable scholarship, and, indeed, what constitutes good or acceptable scholars."  According to Inside Higher Ed, The Dharma Civilization Foundation is:

a California entity that seeks to fund the academic study and teaching of Indian religions as a corrective to what it describes as widespread misrepresentations of Hinduism by scholars who do not practice the religion.

The Committee also recommended that two other proposed chairs endowed by families-- one chair in Jain Studies and one in Sikh Studies-- be returned to the dean's office for further review.  The Dean of the School of Humanities accepted all the recommendations.

Recent Articles of Interest

From SSRN:

• George Mader, Binding Authority: Unamendability in the United States Constitution — A Textual and Historical Analysis, (Marquette Law Review, Forthcoming).
• Nathan S. Chapman, The Establishment Clause, State Action, and Town of Greece, (William & Mary Bill of Rights, Vol. 24, 2015).
• Adam Lamparello, Contextualizing the Free Exercise of Religion, (February 16, 2016).
• Harry G. Hutchison, Hobby Lobby, Corporate Law, and Unsustainable Liberalism: A Reply to Judge Strine, (Harvard Journal of Law and Public Policy, Vol. 39, 2016).
• Leo E. Strine, Criminal Justice and (a) Catholic Conscience, (Santa Clara Law Review, Vol. 56, 2016, Forthcoming).
• Michael W. McConnell & Luke W. Goodrich, On Resolving Church Property Disputes, (Arizona Law Review, Forthcoming).
• Annalee Hickman Moser, We Believe in Being Honest: Dependency Exemptions for LDS Missionaries, (December 1, 2015).
• Twana A. Hassan, A Historical Analysis of the Development of Free Speech Justifications, (The Journal Jurisprudence, Vol. 28 (2015), 487-506).

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

• Omar Salah & Christa Rautenbach, Islamic Finance: A Corollary to Legal Pluralism or Legal Diversity in South Africa and the Netherlands?, (Comparative and International Law of Southern Africa, Forthcoming).
• David M. Tanovich, J(TR): Time to Remove Religion From the Oath, ((2014) 6 Criminal Reports (7th) 211-214)).
• Shalu Nigam, The Privileges of Being a Hindu, Upper Caste and Elite Class, Male in India, (February 10, 2016).
• Francesco Duranti, The Constitutional Reform on State-Church Relationships, (Two Centuries of Norwegian Constitution: Between Tradition and Innovation - Edited by Giuseppe Franco Ferrari - Eleven International Publishing, 2015).
• Sean T. Murphy, Submission to the Special Joint Committee on Physician Assisted Dying, (January 31, 2016).
• Irene Merker Rosenberg & Yale L. Rosenberg, Comparative American and Talmudic Criminal Law, (2016).

From SmartCILP:

• Monica Garcia-Salmones Rovira, Faith, Ritual and Rebellion in 21st Century (Positivist) International Law. (Reviewing Jorge Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective; Jean d'Aspremont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules; International Legal Positivism in a Post-Modern World, edited by Jorge Kammerhofer and Jean d'Aspremont) 26 European Journal of International Law 537-555 (2015).
• Mark Strasser, Definitions, Religion, and Free Exercise Guarantees, 51 Tulsa Law Review 1-38 (2015).

Recent Prisoner Free Exercise Cases

In Mu'min v. Wingard, 2016 U.S. Dist. LEXIS 18479 (WD PA, Feb. 16, 2016), a California federal district court dismissed a Muslim inmate's complaint that he was denied the use of his legal religious name by the religious librarian.

In Simmons v. Upton, 2016 U.S. Dist. LEXIS 18421 (SD GA, Feb. 16, 2016), a Georgia federal magistrate judge recommended dismissing for failure to exhaust administrative remedies a Muslim inmate's  complaint that the new inmate religious practices policy violated his free exercise rights.

In Watson v. Pressley, 2016 U.S. Dist. LEXIS 17355 (D SC, Feb. 11, 2016), a South Carolina federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 17994, Jan. 21, 2016) and dismissed an inmate's complaints about restrictions on various of his Muslim religious practices.

[CORRECTION] In Hilson v. Beaury, 2016 U.S. Dist. LEXIS 19844 (ND NY, Feb. 17, 2016), a New York federal district court refused, on the ground of qualified immunity, to allow an inmate to move ahead with his complaint over delay in processing his request to change his religion from Protestant to Muslim. UPDATE:This part of the recommendation was adopted by the court at 2016 U.S. Dist. LEXIS 35058, March 18, 2016.

In Clark v. Davis, 2016 U.S. Dist. LEXIS 19971 (ND CA, Feb.17, 2016), a California federal district court dismissed allowed an inmate's complaint regarding prior prison rules on confidentiality of clergy relationships with death row inmates.

In Trapani v. Pullen, 2016 U.S. Dist. LEXIS 20500 (ND NY, Feb. 17, 2016), a New York federal district court allowed a Jewish inmate to move ahead with his complaint that he was deprived of kosher meals for a two week period.

Trump's Week of Controversial Religious Allusions

Donald Trump tonight won the South Carolina Republican primary, capping a week in which his religious rhetoric has sparked controversy.  On Thursday, Trump clashed with Pope Francis.  As reported by CNN:

One of the more unlikely battles to jolt a presidential campaign emerged Thursday when Pope Francis said Trump is "not Christian" if he wants to build a wall along the U.S.-Mexico border. Trump, true to form, shot back that the pontiff's comments were "disgraceful."

But by Thursday evening, the GOP front-runner was doing something unusual: de-escalating a fight.

"I don't like fighting with the Pope," Trump said at a GOP town hall in South Carolina hosted by CNN. "I like his personality; I like what he represents."

Trump called the Pope a "wonderful guy" and blamed the day's drama on the press.

Yesterday at a rally in South Carolina, Trump invoked a probably inaccurate story that has circulated on the Internet for years. As reported by the Washington Post:

As the crowd cheered him on, Trump told them about Pershing — “rough guy, rough guy” — who was fighting terrorism in the early 1900s. Trump didn't say where this happened, but variations of this story online usually state that it happened in the Philippines during the Philippine-American War — part of the island nation's protracted battle for independence — early in Pershing’s career.

“They were having terrorism problems, just like we do,” Trump said. “And he caught 50 terrorists who did tremendous damage and killed many people. And he took the 50 terrorists, and he took 50 men and he dipped 50 bullets in pigs’ blood — you heard that, right? He took 50 bullets, and he dipped them in pigs’ blood. And he had his men load his rifles, and he lined up the 50 people, and they shot 49 of those people. And the 50th person, he said: You go back to your people, and you tell them what happened. And for 25 years, there wasn’t a problem...."

Finally, this morning as Vice-President Joe Biden, rather than President Barack Obama, attended Justice Scalia's funeral mass, Donald Trump tweeted:

I wonder if President Obama would have attended the funeral of Justice Scalia if it were held in a Mosque? Very sad that he did not go!

Prayer At School Board Meetings Governed By School Prayer Criteria

In Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, (CD CA, Feb. 18, 2016), a California federal district court, in a 26-page opinion, held that invocations at school board meetings are governed by case law relating to school prayer, not by the line of cases on legislative prayer. Emphasizing that students regularly attend and make presentations at school board meetings, the court found the invocation policy unconstitutional, saying in part:

Because of the distinct risk of coercing students to participate in, or at least acquiesce to, religious exercises in the public school context, the Court finds the legislative exception does not apply to the policy and practice of prayer in Chino Valley School Board meetings.

The court also invalidated the Board’s practice of praying reading from the Bible and making religious statements at various points in school board meetings. (Court's order).  FFRF issued a press release announcing the decision.

Court Rejects Free Exercise Defense To Federal Cockfighting Conviction

In United States v. Olney, 2016 U.S. Dist. LEXIS 19947 (ED WA, Feb. 18, 2016), a Washington federal district court, after a bench trial, convicted Shane Scott Olney of sponsoring an Unlawful Animal Fighting Venture in violation of 7 U.S.C. § 2156(a)(1). The court rejected defendant's claim

that as a baptized Catholic, and an enrolled member of the Yakama Nation, he "has a sincerely held religious belief that the Holy Scriptures quoted in Genesis 1:26-28 ... entitles him to rule over his fighting roosters, to breed them, exhibit them, train them, and to present them for gamecock fighting."....

The court explained:

Aside from the fact that the conduct Defendant claims to be protected is not the conduct for which he was tried and convicted, the Court finds the federal statute at issue does not unconstitutionally encroach upon his First Amendment rights....

The Court finds that the statute at issue is a neutral law of general applicability and thus, it is reviewed for a rational basis.... Here, the statute is related to prevention of cruelty to animals and thus, survives rational basis review.

Former Employee's Fraud Claim Against Diocese Dismissed

In Simon v. Finn, (MO Cir. Ct., Feb. 16, 2016), a Missouri state trial court dismissed a fraud claim against the Catholic Diocese of Kansas City- St. Joseph brought by Colleen Simon, formerly the director for social ministries of a local parish.  Simon was dismissed after a newspaper article disclosed that she was in a same-sex marriage.  While Simon claimed that she was falsely assured by the Diocese that her same-sex marriage would not impact her employment, the court said:

For the Court to inquire into the knowing falsity of the Diocesan agents’ ... representations to Plaintiff about her sexual orientation relative to her position in the Diocese would impermissibly entangle the Court in matters and decisions purely canonical, since the Court must necessarily examine the religious views and practices of the Diocese in an attempt to perceive the reasonableness of Plaintiff’s reliance on the Diocese’s representations.

However the court permitted Simon to move ahead with her claim that the Diocese violated Missouri law requiring it to furnish any former employee requesting it a letter describing his or her service. It also permitted Simon to move ahead with her wage and hour claim. ADF issued a press release announcing the court's decision.

UPDATE: Catholic Culture reported Feb. 23 that the Diocese and Simon have entered an undisclosed settlement of the wage and hour and the severance letter claims.

11th Circuit Upholds Contraceptive Mandate Accommodation, But Delays Enforcement Pending SCOTUS Decision

Yesterday in a consolidated appeal of cases coming from Alabama and Georgia, the U.S. 11th Circuit Court of Appeals in a 2-1 decision upheld the Obama Administration's accommodation for religious non-profits that object to the Affordable Care Act's contraceptive coverage mandate.  In Eternal Word Television Network, Inc. v. Burwell, (11th Cir., Feb. 18, 2016), the majority, in an 86-page opinion by Judge Pryor, held that the accommodation does not violate the protections of the Religious Freedom Restoration Act, because it does not substantially burden the religious exercise of non-profits.  Alternatively the majority concluded that the government has met RFRA's compelling interest and least restrictive means tests. Judge Pryor, in a n 86-page majority opinion, said in part:

We recognize that the plaintiffs sincerely abhor and object to the subsequent acts taken by the government and their TPA [third party administrator], which ultimately result in the TPA providing contraceptive coverage to their plan participants and beneficiaries. We acknowledge that they “may not accept [the] distinction” that we draw here between their conduct and the downstream, separate conduct of HHS and the TPAs to provide coverage.... But we simply cannot say that RFRA affords the plaintiffs the right to prevent women from obtaining contraceptive coverage to which federal law entitles them based on the de minimis burden that the plaintiffs face in notifying the government that they have a religious objection. 

Judge Anderson filed a 3-page concurring opinion focusing on the "less restrictive means" issue.

Judge Tjoflat, in a 55-page dissent, said in part:

If the substantial-burden test were as the majority believes it to be, federal judges would have to decide whether the burden itself substantially violated the adherent’s beliefs. That is, the majority would necessarily shift the gaze of its “objective inquiry” to the merits of religious belief. In this Bizarro World, it would be secular courts making ex cathedra pronouncements on whether Muslims are truly put out by requirements to shave their beards...., whether Seventh-day Adventists are sufficiently deterred from accepting employment by requirements to work on Saturdays..., whether Santeria priests could just make do without ritual sacrifice or Ache-infused beads and shells..., and whether the sacramental use of peyote is really that big of a deal to members of the Native American Church.... But, of course, the Constitution does not vest in the judiciary the authority to declare winners and losers in matters of faith.

Despite the majority's views on the merits, it stayed enforcement of the accommodation against plaintiffs pending the Supreme Court's decision later this term on the identical issue in Zubik v. Burwell.  Daily Report has more on the decision.

Canadian Clergy Sex Abuse Class Action Settled For $30 Milliion

The National Post reports that a court in Quebec has approved a $30 million settlement-- the largest in a clergy sex abuse case in Quebec history.  The case-- a class action brought in 2012-- alleged that at least 60 deaf students at the Catholic Church-run Montreal Institute for the Deaf (a boy's boarding school) were abused between 1940 and 1982. The suit named 28 members of the Clercs de St. Viateur du Canada and 6 lay people working at the school as offenders.

Texas Lt. Gov. Seeks To Dispute Judicial Conduct Commission On Chaplaincy Program

In a press release yesterday, Texas Lieutenant Governor Dan Patrick announced that he has requested a formal opinion from state attorney general Ken Paxton on the constitutionality of a volunteer Justice Court Chaplaincy Program created by Montgomery County Justice of the Peace Wayne Mack.  (Full text of request for AG Opinion and Brief in Support.)  Mack, who is also the County Coroner, created the chaplaincy program to help grieving family, friends and witnesses at death scenes to which the coroner is called.  To recognize these volunteer chaplains, Mack also invites them to give a brief prayer to open his justice of the peace court proceedings.  A complaint was filed against Mack with the State Commission on Judicial Conduct. The Complaint was eventually dismissed, but the Commission urged Mack to end the chaplaincy program and to modify the opening prayer ceremony. Patrick hopes that an Attorney General's Opinion will clarify that the programs are constitutionally permissible.

South Dakota Legislature Passes Bill On Transgenders In School Restrooms; 3 Other LGBT Bills Pending

This week the South Dakota legislature passed and sent to  Gov. Dennis Daugaard HB 1008 (full text) that provides:

Every restroom, locker room, and shower room located in a public elementary or secondary school that is designated for student use and is accessible by multiple students at the same time shall be designated for and used only by students of the same biological sex. In addition, any public school student participating in a school sponsored activity off school premises which includes being in a state of undress in the presence of other students shall use those rooms designated for and used only by students of the same biological sex.

"Biological sex" is defined as "the physical condition of being male or female as determined by a person's chromosomes and anatomy as identified at birth."  The bill goes on to provide that transgender students are to be provided with reasonable accommodation, which "may include a single-occupancy restroom, a unisex restroom, or the controlled use of a restroom, locker room, or shower room that is designated for use by faculty."

According to the Christian Science Monitor, the governor has not yet decided whether to sign the bill. The Argus Leader reports that the governor will meet both with transgender students and with the bill's sponsors before making a decision.

Human Rights Campaign says that two other anti-LGBT bills have been passed by the full House of Representatives, and another anti-transgender bill has passed through committee. HB 1112 passed by the House voids the current transgender policies of interscholastic activities associations and requires that their future policies determine sex by a student's chromosomes and the sex recorded on the student's birth certificate.

HB 1107 passed by the House bars the state from taking any action against a person because that person acts in accordance with a sincerely held religious or moral belief that marriage is between one man and one woman, that sexual relations should be reserved to marriage, or that the terms male and female refer to distinct and immutable biological sexes determined by anatomy and genetics by the time of birth.

Finally, HB 1209 which has recently cleared a House Committee provides:

Any public body ... that accepts any information on a South Dakota birth certificate as official and valid shall accept all information on a South Dakota birth certificate as official and valid in carrying out the public body's legal and official duties.

Army Reservist Sues "Muslim Free" Gun Range

The ACLU of Oklahoma announced yesterday that it, along with the Oklahoma chapter of CAIR, has filed a religious discrimination suit against an Oktaha, Oklahoma gun range that advertises itself as a "Muslim Free Establishment."  The complaint (full text) in Fatihah v. Neal, (ED OK, filed 2/17/2016), contends that plaintiff, a member of the U.S. Army reserves, was denied access to the gun range because of his Muslim faith. News 9 reports on the lawsuit.

EEOC Releases Data On Complaints Received

The EEOC last week released its Fiscal Year 2015 Enforcement and Litigation Data. In fiscal 2015, the agency received 89,385 charges of workplace discrimination.  Of those, only 3,502 (3.9%) charged religious discrimination.  A further breakdown of the data shows that the EEOC found no reasonable cause in 68% of the cases of alleged religious discrimination.

Muslim Technician Sues Charging Employment Discrimination

CAIR-Michigan this week announced the filing of a religious discrimination lawsuit in federal district court against an Indiana-based healthcare technology management organization (with an office in Troy, Michigan) on behalf of an American Muslim Egyptian biomedical technician. The complaint (full text) in Hassane v. Trimedx, (ED MI, filed 2/15/2016) says that plaintiff was hired as a technician in a program that included extensive training. However, after he requested the use of two-weeks earned vacation time to travel to Egypt to celebrate Eid-al-Fitr with his family, he was removed from the training program, placed on probation and denied a promotion and salary increase that all others received. Detroit News reports on the lawsuit.

Oklahoma Supreme Court Upholds Voucher Plan Over Blaine Amendment Objections

In Oliver v. Hofmeister, (OK Sup. Ct., Feb. 16, 2016), the Oklahoma Supreme Court upheld the constitutionality of the state's voucher program that permits children with disabilities to attend any private school of their choice to obtain special education services, whether the school is sectarian or non-sectarian.  The Court held that the program does not violate the "no aid" clause of Oklahoma's Constitution, Art. II, Sec. 5 (Oklahoma's Blaine Amendment), saying in part:

Because the parent receives and directs the funds to the private school, sectarian or non-sectarian, we are satisfied that the State is not actively involved in the adoption of sectarian principles or directing monetary support to a sectarian institution through this scholarship. When the scholarship payment is directed to a sectarian private school it is at the sole and independent choice and direction of the parent and not the State. The scholarship funded through the Act has no bearing on state control of churches. We are convinced that the scholarships funded by the Act have no adverse impact on the ability of churches to act independently of state control and to operate separately from the state.

Tulsa World, reporting on the decision, says that in 2014-15, 61% of the the $2.5 million total vouchers went to religious schools.

RFRA Excuses Amish Defendant From Being Photographed During Pre-Release Processing

In United States v. Girod, (ED KY, Dec. 30, 2015), a Kentucky federal magistrate judge, accepting a federal RFRA claim, allowed an Amish criminal defendant to be processed for pre-trial release without his being required to pose for identification photographs by the U.S. Marshals Service.  Samuel Girod, charged with selling misbranded drugs in violation of federal law and with obstruction of justice, objected on religious grounds to knowing participation in photography.  Relying on Supreme Court precedent, the district court said in part:

[RFRA] requires that the Court not evaluate the general legitimacy of a stated governmental interest; rather, the Court must judge whether, as to Samuel Girod, the United States has proven a compelling interest servable only by the manner of USMS photography sought.

The court concluded that neither the interest in identifying a defendant if he were to flee nor the interest in pre-rial supervision were compelling as to this particular defendant because of his history of appearing when summoned and his ties to the community.  It added:

If this case centered on rational basis review, the Court likely would require that Girod submit to the Marshals’ processing like everyone else encountering a neutral, generally applied law or policy. Congress elected to revivify a more searching inquiry when a conflict exists between authentic religious exercise and governmental act. To prevent an exemption, the United States must prove, as to the potentially exempt objector, a compelling interest furtherable only by the offending means. The Government has failed in that burden in this particular case, at this particular stage...

Justice Scalia's Opinions on Religion Clauses and Religious Issues (Updated)

The media continue to be filled with tributes to Justice Antonin Scalia who died suddenly over the week end. (See prior posting).  Religion News Service and NPR review Justice Scalia's views on religion, the religion clauses of the 1st Amendment and on social issues that have become religious flash points.

Here are links to cases involving issues of religion, religious exercise or religious speech in which Scalia wrote opinions (either majority, concurring or dissenting):

• Edwards v. Aguillard, (1987) (dissenting opinion)
• Employment Division v. Smith, (1990) (majority opinion)
• Lee v. Weisman, (1992) (dissenting opinion)
• Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, (1993) (concurring opinion)
• Lamb's Chapel v. Center Moriches Union Free School District, (1993) (concurring opinion)
• Board of Education of Kiryas Joel Village School District v. Grumet, (1994) (dissenting opinion).
• Capitol Square Review and Advisory Board v. Pinette, (1995) (opinion of the court)
• City of Boerne v. Flores, (1997) (concurring opinion)
• Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, (2002) (concurring opinion)
• Locke v. Davey, (2004) (dissenting opinion)
• Van Orden v. Perry, (2005) (concurring opinion)
• McCreary County v. ACLU, (2005) (dissenting opinion)
• Elmbrook School District v. Doe, (2014) (dissent to denial of cert.)
• EEOC v. Abercrombie & Fitch Stores, Inc., (2015) (majority opinion)

Here are opinions he wrote on issues of abortion, homosexuality and same-sex marriage:

• Webster v. Reproductive Health Services, (1989) (concurring in part)
• Ohio v. Akron Center for Reproductive Health, (1990) (concurring opinion)
• Planned Parenthood of Southeastern Pennsylvania v. Casey, (1992) (concurring and dissenting)
• Shenck v. Pro-Choice Network of Western New York, (1997) (concurring and dissenting)
• Stenberg v. Carhart, (2000) (dissenting opinion)
• Lawrence v. Texas, (2003) (dissenting opinion)
• Obergefell v. Hodges, (2015) (dissenting opinion)

These lists are almost certainly incomplete.  I invite readers to continue to send along citations to others that should be added.

Zoning For "Houses of Worship" Does Not Include Homeless Services Site

The Albany Times-Union reports that a New York state trial court judge last week overruled the Albany Board of Zoning Appeals decision that would have allowed the non-profit group Family Promise of the Capital Region to use a building in an area zoned to include "houses of worship" to provide services to homeless families.  The site-- a parsonage of the Bethany Reformed Church-- was used to provide daytime child care, access to computers, career and life counseling and a place to pick up mail and make phone calls.  The Board of Zoning Appeals held that the outreach services were part of Bethany's religious mission.  However the court disagreed, saying that a "house of worship" is a place set aside for for some form of religious devotion, ritual or service showing reverence. Critics of the court's decision say the ruling could create problems for all sorts of congregations that make their basements and meeting rooms available for social programs they deem part of their missions.  Family Promise can still apply for a zoning variance to allow it to continue its operations.

Jehovah's Witnesses In Puerto Rico Win Access To Additional Gated Communities To Proselytize

In 2013, a Puerto Rico federal district court, in a case on remand from the 1st Circuit, ordered neighborhood homeowners' associations (urbanizations) that operate gated communities to provide Jehovah's Witnesses who wish to proselytize in the neighborhood access equal to that of residents. (See prior posting.) There has been a good deal of resistance by urbanizations to complying with the orders, particularly because of concern about crime.

Earlier this month another lawsuit was filed by Jehovah's Witnesses against gated communities in 38 municipalities, a majority of the remaining municipalities not named as defendants in the earlier suit.  In Watchtower Bible Tract Society of New York, Inc. v. Municipality of Aguada, (D PR, Feb. 10, 2016), a Puerto Rico federal district court issued an elaborate temporary restraining order designed to facilitate maximal compliance with the right of Jehovah's Witnesses to obtain access to gated communities, particularly in light of the March 23 Memorial of the Death of Jesus Holiday.  The court ordered that urbanizations in all 38 municipalities must be open for Jehovah's Witnesses to proselytize on Saturday, February 27, 2016 from 8:00 AM to 5:00 PM. Then by March 15, all the municipalities must either notify plaintiffs that they agree to the same kind of open arrangements that were ordered in the earlier case, or else notify the court that they are defending against the lawsuit.  Municipalities that agree to go along with the earlier arrangements will be given time to confer with plaintiffs on implementing an action plan, and will avoid assessment of attorneys' fees.  Others will move to litigation.

Abortion Restrictions In Latin America Remain Despite Zika Virus Spread

With the Zika virus spreading fast in a number of Latin American countries and the disease's link to microcephaly in newborns, the debate over loosening abortion restrictions is increasing. Reuters reported last week that in Brazil-- which has one of the most restrictive abortion laws-- change is unlikely:

Vandson Holanda, head of health for the Catholic Church in Brazil’s northeast, said there was no chance the Church would shift its position on abortion because of Zika.

Suspected cases of microcephaly have topped more than 4,000 – with more than 400 of those confirmed so far – since Zika was first detected in April....

Women’s rights groups in Brazil ... plan to appeal to the Supreme Court to relax Brazil’s abortion laws. They hope to build on a successful case in 2012 that legalized abortion for anencephaly, where the fetus develops without a major part of its brain and skull.

Given the difficulty of identifying microcephaly before the final weeks of pregnancy, Sinara Gumieri, a legal advisor to Anis, said the group would petition the court to legalize abortion for women diagnosed with Zika whose child was at risk of the condition, even if it is not diagnosed in the fetus. She admitted it would be difficult.

The doctors who led the anencephaly campaign in 2012 do not expect its success to be repeated.

The New York Times last week had more on the Catholic Church's unchanged position.  Meanwhile, the Huffington Post reported that the U.S. Agency for International Development has recommended that the U.S. offer contraceptive and family planning assistance to Latin America.  U.S. law prohibits foreign aid funds being used to pay or advocate for abortion.  At a Feb. 10 House subcommittee hearing on the global Zika epidemic (video of hearing), subcommittee chairman Rep. Jeff Duncan (R-SC) said that the push in Latin American countries for greater access to abortion "is heartbreaking, especially since there are different degrees of microcephaly."

Parents Can Move Ahead With Claims Their Daughters Were Lured Into Religious Cult At School

In Doe v. Mastoloni, (D CT, Feb. 12, 2016), a Connecticut federal district court ruled that parents whose three high-school age daughters were allegedly indoctrinated into a religious cult by three Spanish teachers and a counselor at their high school can file an amended complaint to pursue a number of claims.
The court held that plaintiffs had alleged enough to move ahead with claims that the school violated the Free Exercise and Establishment Clauses and the equal protection clause, that they interfered with parental rights to raise children in the religion of their choice, and with familial associational rights. It also allowed plaintiffs to move ahead with claims against the Board of Education alleging Monell liability. The court dismissed various other claims. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Adriaan Lanni & Victor Bers, Disqualified Olympians: The Skeptical Greek View of Divine Judges, (Mermerlstein & Holtz, eds., The Divine Courtroom in Comparative Perspective (Brill 2014)).
• Michael A. Helfand, Identifying Substantial Burdens, (University of Illinois Law Review, Vol. 2016).
• Louis-Léon Christians, Ideologically Oriented Enterprises Faced with the Reconfiguration of Ethics and Spiritual Management, (BYU Law Review, Volume 2014, Issue 3, August 2015).
• Rene Provost, Centaur Jurisprudence: Culture Before the Law, (René Provost ed., Culture in the Domains of Law (Cambridge University Press), Forthcoming).

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

• Amnon Lehavi, Residential Communities in a Heterogeneous Society: The Case of Israel, (in: Private Communities and Urban Governance: Theoretical and Comparative Perspectives, A. Lehavi (Ed.), New York: Springer (2016, Forthcoming)).
• Khaled A. Beydoun, Beyond the Paris Attacks: Unveiling the War within French Counterterror Policy, (American University Law Review, Forthcoming).
• Maria Elizabeth Marais & Loot J. Pretorius, A Contextual Analysis of the Hate Speech Provisions of the Equality Act, (Potchefstroom Electronic Law Journal, Vol. 18, No. 4, 2015).

From SSRN (Same-Sex Marriage):

• Robin Fretwell Wilson, Bargaining for Civil Rights: Lessons from Mrs. Murphy for Same-Sex Marriage and LGBT Rights, (Boston University Law Review, Vol. 95, No. 3, 2015).
• Robin Fretwell Wilson, Bargaining for Religious Accommodations: Same-Sex Marriage and LGBT Rights After Hobby Lobby, (The Rise of Corporate Religious Liberty (Micah Schwartzman, Chad Flanders, Zoë Robinson, eds., Oxford University Press, 2016)).
• Stephen Matthew Feldman, (Same) Sex, Lies, and Democracy: Tradition, Religion, and Substantive Due Process (With an Emphasis on Obergefell v. Hodges), (24 William & Mary Bill of Rights 341 (2015)).
• Yuvraj Joshi, The Respectable Dignity of Obergefell v. Hodges, (California Law Review Circuit, Vol. 6, 2015).

Defamation Suit Stemming From Ground Zero Mosque Plans Dismissed

Forras v. Rauf, (DC Cir., Feb. 12, 2016), is another installment in the battle that began in 2010 over plans to build the so-called "Ground-Zero Mosque" near the site of the 2001 World Trade Center Attacks.  When the plans were announced, former firefighter Vincent Forras filed suit attempting to stop the project, contending it was a public nuisance and asserting claims for infliction of emotional distress and assault. (See prior posting.) In seeking dismissal of the case, defendant Imam Rauf's attorney submitted an affidavit contending that the lawsuit was motivated by "blind bigotry."  Forras' suit was dismissed, but he and his attorney Larry Klayman then sued Rauf and Bailey in federal district court in the District of Columbia for defamation. In this opinion, the D.C. Circuit held that the defamation suit should be dismissed because there is no personal jurisdiction in D.C. over defendants under D.C.'s long-arm statute.

Recent Prisoner Free Exercise Cases

In Gupton v. Wright, 2016 U.S. Dist. LEXIS 14730 (WD VA, Feb. 6, 2016), a Virginia federal district court dismissed an inmate's complaint that authorities denied publications and holiday packages to Asatru inmates.

In Sands v. Smith, 2016 U.S. Dist. LEXIS 15200 (ED CA, Feb. 5, 2016, a California federal magistrate judge allowed a Jewish inmate to move ahead with his free exercise and retaliation complaints regarding failure to provide kosher food and Jewish religious services on many occasions.

In Edwards v. Rubenstein, 2016 U.S. Dist. LEXIS 15236 (ND WV, Feb. 9, 2016), a West Virginia federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 15237, Jan. 20, 2016) and dismissed complaints of a Muslim inmate about treatment of Muslims less favorably than Christians, and about a now-modified ban on growing beards.

In Irvin v. Yates, 2016 U.S. Dist. LEXIS 15272 (ED CA, Feb. 8, 2016), a California federal magistrate judge recommended that a Muslim inmate be permitted to move ahead with his complaints about a new halal religious diet program, access to chapel and denial of packages containing religious items.

In Amos v. Karol, 2016 U.S. Dist. LEXIS 15354 (ED MO, Feb. 9, 2016), a Missouri federal district court dismissed a Muslim inmate's complaint that he was not provided halal meals, was not allowed to possess a prayer rug or hardback Qu'ran, and was not given access to an Imam.

In McDaniels v. Stewart, 2016 U.S. Dist. LEXIS 15843 (WD WA, Feb. 8, 2016), a Washington federal magistrate judge dismissed with leave to amend a suit by a Muslim inmate against of 40 defendants seeking compensatory damages and over $27 million in punitive damages alleging inadequacy of the halal diet and his inability to go back on it after switching to a vegan diet.

In Rodriguez v. Hubbard, 2016 U.S. Dist. LEXIS 16432 (ED CA, Feb. 9, 2016), a California federal magistrate judge recommended dismissing without prejudice for failure to exhaust internal remedies the complaints by a Native American inmate regarding lack of religious services, confiscation of his sacred pipe, sweat lodge access, ceremonial tobacco use, and lack of access to a Native American spiritual advisor, as well as retaliation and lack of protection claims.

In Casey v. Stephens, 2016 U.S. Dist. LEXIS 16976 (SD TX, Feb. 9, 2016), a Texas federal district court dismissed a suit by a Native American inmate seeking the right to grow his hair long or wear a kouplock; wear a medicine bag; and keep and smoke a personal prayer pipe.

In Chaparro v. Ducart, 2016 U.S. Dist. LEXIS 17780 (ND CA, Feb. 8, 2016), a California federal district court dismissed a suit by a Jehovah's Witness inmate complaining about the prison's former policy of denying an inmate the right to attend religious services for a month if the inmate missed without a valid reason a service he was scheduled to attend.

Israel Supreme Court Says Public-Funded Mikvehs Must Be Open To Reform and Conservative Conversions

According to Haaretz and Times of Israel, last Thursday a 3-justice panel of Israel's Supreme Court held that state-funded mikvehs  (ritual bath facilities) operated by Orthodox-controlled religious councils must be open for use  by the Conservative and Reform Jewish movements for their conversion ceremonies as well as for Orthodox conversions. Israel's Chief Sephardi Rabbi Yitzhak Yosef called the decision "outrageous."

Justice Scalia Dies; Author of Smith Decision

U.S. Supreme Court Justice Antonin Scalia died today at age 79. The New York Times eulogized him as a justice whose "transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance."  In the area of First Amendment religious freedom decisions, Justice Scalia will be particularly remembered as the author of the majority  opinion in Employment Division v. Smith (1990) which rejected use of the "compelling interest" test to validate neutral regulations of general applicability that burden religious practices.  He argued:

Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," ... and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind 

It was the reaction to this decision that led Congress, in  a nearly unanimous vote, to enact the Religious Freedom Restoration Act.

Magistrate Refuses To Dismiss Suit Against Anti-Falun Gong Organization

In Jingrong v. Chinese Anti-Cult World Alliance, 2016 U.S. Dist. LEXIS 16560 (ED NY, Jan. 28, 2016), a group of Falun Gong practitioners in Flushing Queens, New York sued an allegedly virulent anti-Falun Gong organization under federal civil rights laws.The court summarizes facts from plaintiffs' complaint:

Defendant CACWA is a not-for-profit corporation ... [whose] mission is to expose Falun Gong as an evil and dangerous threat to society.... CACWA's printed materials and websites indicate that CACWA was created to wage a "douzheng" campaign against Falun Gong practitioners in New York...  A key objective of a douzheng campaign is the forced conversion of targeted groups by compelling members to renounce their political or religious beliefs, supported by a propaganda campaign which, similar to that which was carried out in Nazi Germany  during World War II, characterizes its victims as appropriate targets of violence and abuse.... Originally initiated in China, the anti-Falun Gong campaign was extended into the United States in 2001 by then Communist Party ("Party") Chief Jiang Zemin.

In this opinion, a New York federal magistrate judge recommends refusing to dismiss plaintiffs' 42 USC Sec. 1985(3) claim, saying in part:

Plaintiffs' claims that they were repeatedly attacked ... make it plausible that Defendants "act[ed] at least in part for the very purpose of," ... infringing on Plaintiffs' right to intrastate travel. In terms of class-based animus, Defendants argue that Plaintiffs "misunderstand Defendants' mission" and describe their disagreement with Falun Gong as a mere difference in ideology.... This position must be rejected at least on this motion to dismiss. Frequent threats to "kill" and "dig out [the] hearts, livers and lungs" of Falun Gong practitioners... and the call for a douzheng campaign against Falun Gong, if true, describe religious-based animus sufficient to pursue a claim under § 1985(3).

The court also recommended refusing to dismiss plaintiffs' claims under 18 USC 248(a)(2) which provides a civil remedy against whomever, "by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship." Among other things, the court refused to accept for purposes of a motion to dismiss defendants' argument that Falun Gong is not a "religion."

Denial of Permit For Muslim Cemetery Was Arbitrary and Capricious

The Farmington (MN) Independent reported yesterday on a decision last month by a Dakota County, Minnesota trial court judge holding that the Castle Rock Township board of supervisors' decision to deny a permit for a Muslim cemetery was arbitrary and capricious. The Al Maghfirah Cemetery Association sued after the township said the cemetery would cause a loss of tax revenue and expressed concern that the cemetery would not be maintained and would not be open to the public.  It is estimated that the 73-acre cemetery site will accommodate 35,000 burials-- enough to serve the growing Minnesota Islamic community for 200 years.

Title VII Suit Dismissed Under Ministerial Exception

In Moreno v. Episcopal Diocese of Long Island, 2016 U.S. Dist. LEXIS 16543 (ED NY, Jan. 20, 2016), a New York federal magistrate judge recommended dismissing a Title VII action brought by an African-American Episcopal pastor who claimed that his dismissal from his position was the result of racial discrimination.  The court held that the ministerial exception doctrine applied, saying:

The Supreme Court clarified that the purpose of this exception is "not to safeguard a church's decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful — a matter 'strictly ecclesiastical,'—is the church's alone."

Vatican Sends Mixed Messages On Protection of Abuse Victims

Vatican Radio reports that the Pontifical Commission for the Protection of Minors released a communique on Feb. 8 at the end of its week-long Plenary Session. The document details existing and planned initiatives to educate clergy and others on the protection of minors.  However, The Guardian reported in a Feb. 10 article that a training course that is offered for newly appointed bishops sends a different message. Guidelines written by controversial French monsignor and psychotherapist, Tony Anatrella, a consultant to the Pontifical Council for the Family, that were released earlier this month by the Vatican for comment are part of the training program.  They tell new bishops that it is up to victims and their families whether to report abuse to police, adding:

According to the state of civil laws of each country where reporting is obligatory, it is not necessarily the duty of the bishop to report suspects to authorities, the police or state prosecutors in the moment when they are made aware of crimes or sinful deeds.

[Thanks to Scott Mange for the lead.] 

Tribal Council Balks At Posting of U.S. National Motto

According to the Smokey Mountain News, Rick Lanier, head of the U.S. Motto Action Committee, was startled at the reaction to his presentation last week to the Cherokee Tribal Council. Lanier has been trying to get the motto "In God We Trust" placed on government buildings around North Carolina, and his proposal is usually welcomed.  Members of the Cherokee Tribal Council and community members took Lanier to task for not understanding beliefs of the Cherokee, and for not realizing that the Cherokees are a sovereign nation and so would not want to put up the motto of the U.S. government.

Suit Says Zoning Change To Permit Chabad Development Violated Establishment Clause

The South Florida Sun Sentinel  reported yesterday on an unusual lawsuit filed by two Christian residents of Boca Raton, Florida alleging secret arrangements between the city, a developer and Chabad of East Boca to allow Chabad to build a $10 million synagogue and museum on Boca Raton's barrier island. The complaint (full text) in Gagliardi v. City of Boca Raton, Florida, (SD FL, filed 2/8/2016), alleges that the arrangement, undertaken in response to public objections to Chabad's locating in a different area of the city, violated the Establishment Clause, the due process and equal protection clauses, and the state constitution. The complaint alleges that the change in the city code to permit Chabad to locate on the barrier island (followed by variances and other actions to further the project) was a "complete and and express violation of the prohibition of advancing, endorsing or promoting of religion as set forth in the First Amendment of the United States Constitution."

City Sues Mosque Over Renovation and Expansion Plans

AP reports that the city of Lexington, Nebraska has sued a mosque to keep it from renovating and expanding its downtown property.  The Islamic Center of Dawson County wants to renovate two buildings it has occupied since 2008 and renovate an adjacent former laundromat building that it has acquired.  The city says the Islamic Center has never obtained an occupancy permit, and that it needs a conditional use permit to use the former laundromat building for religious purposes.  In December, City Council voted to deny the permit over concerns about parking and downtown redevelopment plans.  The city's lawsuit seeks penalties of $600 per day for building code and zoning violations, and asks for a temporary injunction against expansion into the laundromat building. The city is urging the Islamic Center to look for property in residential areas, but the mosque says those areas are far from where its members-- mostly Somalian and other African immigrants-- live.

Challenge To Ban On Marriage Ceremonies Without License Dismissed For Lack of Standing

In Carrick v. Snyder, (ED MI, Feb. 10, 2016), a Michigan federal district court dismissed for lack of standing a minister's First Amendment challenge to Michigan statutes that impose civil and criminal sanctions on anyone authorized to perform a marriage ceremony who does so for a couple who have not obtained a marriage license. (See prior related posting.) The court held that plaintiff had not alleged any actual intent to perform marriage ceremonies for couples without licenses.  According to the court:

plaintiff asserts an entirely hypothetical injury where he or unspecified others will not marry unspecified couples or groups because they might face hypothetical penalties from the state of Michigan.

Class Action Claims Valentine's Day Candies Misrepresented As Kosher

A class action lawsuit was filed this week in a California federal district court against See's Candy alleging that signage in the company's Los Angeles store misled plaintiff into believing that the Valentine's Day Heart Box of assorted chocolates was certified Kosher when in fact it was not.  The complaint (full text) in Weiss v. See's Candy Shops, Inc., (ND CA, filed 2/9/2016), asserts that plaintiff relied on a sign containing a kosher certified symbol which the store placed directly above the heart boxes of candy. The suit alleges breach of express warranty, unlawful business practices, violation of the Consumers Legal Remedy Act, false advertising, and fraudulent inducement. Law.com reports on the lawsuit.

Israel Appoints 7 New Muslim Religious Court Judges

In Israel yesterday, Israeli President Reuven Rivlin and Minister of Justice Ayelet Shaked spoke at a ceremony at the President's residence marking the appointment of seven new judges (Qadis) to Israeli Shariah courts that adjudicate Muslim personal status matters.  (Ministry of Foreign Affairs press release.) As reported by the Jerusalem Post, two new judges were appointed to the Shariah Court of Appeals, and five were appointed to Shariah regional courts.  Both Rivlin and Shaked expressed their hope that future appointment of Qadis would include women. Shaked said that she had asked the the sub-committee that recommends appointments for the names of female candidates. Apparently they did not produce any. A bill proposed in the Knesset last year would have required that at least one woman be on the list of recommended nominees, but the government coalition partner United Torah Judaism party vetoed the bill fearing it might set a precedent for Jewish religious court judges. (See prior posting.)

National Federation of Blind Settles EEOC's Religious Accommodation Lawsuit

The EEOC announced Monday that the National Federation of the Blind has settled a religious discrimination lawsuit brought by the Commission on behalf of a Hebrew Pentecostal bookkeeper who was refused religious accommodation.  NFB fired Joseph R. Massey II after telling him that he must work on certain Saturdays.  NFB refused Massey's request to instead work Sundays or late on week nights. Under the settlement NFB will pay $25,000 in damages, and agreed to an injunction against religious discrimination, adoption of a non-discrimination policy and training of managers and supervisors.

4th Circuit: Variance Denial For Church Does Not Violate RLUIPA

In Andon, LLC v. City of Newport News Virginia, (4th Cir., Feb. 9, 2016), the U.S. 4th Circuit Court of Appeals rejected the argument that a Board of Zoning Appeals' refusal to grant a zoning variance amounted to a substantial burden on religious exercise under RLUIPA. Seeking to use a building that did not meet zoning requirements as a church facility, Reconciling People Together in Faith Ministries entered a lease of it contingent on obtaining a variance. The court held:

Because the plaintiffs knowingly entered into a contingent lease agreement for a non-conforming property, the alleged burdens they sustained were not imposed by the BZA’s action denying the variance, but were self-imposed hardships....  A self-imposed hardship generally will not support a substantial burden claim under RLUIPA, because the hardship was not imposed by governmental action altering a legitimate, pre-existing expectation that a property could be obtained for a particular land use.

[Thanks to Will Esser via Religionlaw for the lead.]

Court Says Enforcement Motion Against Kim Davis Is Moot

A decision by a Kentucky federal district court yesterday may have nearly ended the ongoing legal saga of Rowan County Clerk Kim Davis who, until court intervention, refused to allow her office to issue any marriage licenses once same-sex marriage was legalized in the state. (See prior posting.)  As recounted by the court:

On September 3, 2015, the Court held Defendant Kim Davis in contempt.... After remanding Davis to the custody of the United States Marshal’s Service, five of six Rowan County Deputy Clerks told the Court that they would issue marriage licenses in her absence. The next day, multiple same-sex and opposite-sex couples obtained marriage licenses.... Because Davis’ Office issued these licenses, the Court found that she had purged herself of the contempt and ordered her release from custody on September 8, 2015.

However when Davis returned to work, she insisted on modifying the license forms being issued. At that point plaintiffs asked to court to order the deputy clerks to go back to issuing licenses in the original form.  In Miller v. Davis, (ED KY, Feb. 9, 2016), the court held:

Since Plaintiffs filed this Motion, the Court has received numerous Status reports [indicating] ... that the Rowan County Clerk’s Office is issuing marriage licenses to individuals eligible to marry as needed.... There has been no indication that Davis has continued to interfere with the issuance of marriage licenses since September 20, 2015.... Moreover, there is every reason to believe that any altered licenses issued between September 14 ... and September 20 ... would be recognized as valid under Kentucky law.... Under these circumstances, the Court finds that Plaintiffs’ request for relief is now moot. The Court will continue to monitor Davis and the Rowan County Clerk’s Office to ensure compliance with its Orders.

Liberty Counsel issued a press release on the decision.

New York Regulations Aim To End Conversion Therapy

On Feb. 6, New York Governor Andrew Cuomo announced a series of executive actions to prevent the practice of LGBT conversion therapy in the state:

The New York State Department of Financial Services is issuing regulations barring New York insurers from providing coverage for conversion therapy given to an individual under the age of 18. Additionally, the New York State Department of Health is prohibiting coverage of conversion therapy under New York’s Medicaid program and the New York State Office of Mental Health is issuing regulations prohibiting facilities under its jurisdiction from providing conversion therapy treatment to minors.

Christian News reports on the governor's actions.

Suit In Nation of Georgia Seeks Marriage Equality

According to yesterday's EurasiaNet, in the Caucasus nation of Georgia for the first time a lawsuit has been filed seeking to legalize same-sex marriage.  Plaintiff Giorgi Tatishvili filed suit in the Constitutional Court challenging the constitutionality of a Georgian law that defines marriage as being only between a man and a woman. The country's influential Orthodox Church which opposes same-sex marriage nevertheless on Sunday called for the government to provide Tatishvili protection, saying that violence against him is likely for bringing the suit. Minority rights activists in Georgia have not supported the lawsuit, fearing that it will increase hostility against and marginalization of the country's LGBT community. Pro-Russian groups have used the specter of legalized same-sex marriage in their opposition to Georgia joining the European Union.

Church's State Court Suit Challenges California Mandate For Health Insurance Abortion Coverage

A La Mesa, California church last week filed suit in state court against the California Department of Managed Health Care challenging a state requirement that all health insurance policies sold in California cover elective abortions, without exceptions.  The complaint (full text) in Skyline Wesleyan Church v. California Department of Managed Health Care, (Super. Ct., filed 2/4/2016), alleging violations of several state and federal constitutional provisions, contends:

the Mandate has created an inconsistent and untenable situation where Skyline Church and other religious employers do not have to provide health insurance coverage for contraceptives and infertility treatments but must pay for voluntary and elective abortions....

Defendants substantially burden Skyline Church's religious exercise when they force Skyline Church to choose between following its religious beliefs and suffering debilitating penalties under federal law or violating its conscience in order to avoid those penalties.

A similar challenge was filed in federal court by three other  churches last October. (See prior posting.)  ADF issued a press release announcing last week's state court lawsuit.

Victim Advocate Is Asked To Take Leave From Pontifical Commission on Protection of Minors

Crux reported Saturday that in the Vatican, British sexual abuse survivor Peter Saunders has been asked by other members of the Pontifical Commission for the Protection of Minors to take a leave of absence from the Commission.  Saunders, appointed to the Commission by Pope Francis last year, has become increasingly critical of the Pope. A Vatican official described the situation, saying that Saunders-- who founded Britain's National Association for People Abused in Childhood-- "has to decide if he's an advocate and campaigner [for survivors] instead of being an adviser." Cardinal Sean O'Malley, head of the Pontifical Commission says he has asked Saunders for advice on a possible victim survivor panel to work with the Commission.

Recent Articles of Interest

From SSRN:

• John D. Moore, The First Amendment Case for Corporate Religious Rights, (16 Nev. L.J. 1 (2015)).
• Micah Schwartzman, Chad Flanders & Zoe Robinson, The Rise of Corporate Religious Liberty, (Virginia Public Law and Legal Theory Research Paper No. 14 (Feb. 2016)).
• Howard Kislowicz, Developments in Religious Freedom: What Saguenay and Loyola Tell Us -- and Don't -- About the Trinity Western University Law School Cases, ((2016) 72 S.C.L.R. (2d) 75-95).
• Mark Hill QC, Reasonable Accommodation: Faith and Judgment, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2016/07, Feb. 2016).
• Ronan McCrea, Rights, Recourse to the Courts and the Relationship between Religion, Law and State in Europe and the United States, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2016/09, Feb. 2016).
• Jonathan Backer, Thou Shalt Not Electioneer: Religious Nonprofit Political Activity and the Threat 'God PACs' Pose to Democracy and Religion, (114 Mich. L. Rev. 619 (2016)).
• Chad Flanders, Insubstantial Burdens, (June 2015).

From SSRN (Islamic Law):

• Sardar M. A. Waqar Khan Arif, The Legal System of Sultans of Delhi: An Overview, (January 28, 2016).
• Sardar M. A. Waqar Khan Arif, Contractual Stipulations in Muslim Marriage Contract with Reference to Classic Islamic Law and the Case Study of USA,(January 27, 2016).

From SSRN (Same-sex marriage):

• Rodgrick Hickman, Will Love Win Again: When Religious Organizations, Government Subsidies, Adoption and the Establishment Clause Collide?,(February 4, 2016).
• Barbara J. Cox, From One Town's 'Alternative Families' Ordinance to Marriage Equality Nationwide, (California Western Law Review, Vol. 52, 2015).
• Charles E. Colman, About Ned, (129 Harv. L. Rev. F. 128 (2016)).

From SmartCILP:

• Eric Rassbach, Are Houses of Worship "House[s]" Under the Third Amendment?, [Abstract], 82 Tennessee Law Review 611-626 (2015).
• Elizabeth Sepper, Free Exercise Lochnerism, 115 Columbia Law Review 1453-1519 (2015).

Recent Prisoner Free Exercise Cases

In Muhammad v. Virginia, 2016 U.S. Dist. LEXIS 11153 (WD VA, Feb. 1, 2016), a Virginia federal magistrate judge recommended dismissing a Nation of Islam inmate's complaint that the common fare diet does not comply with his religious beliefs and that if he elected to receive the common fare diet during Ramadan, he would not be allowed to receive special food for the Eid feasts. The magistrate also rejected his contention that Eid ul-Fitr was celebrated on the wrong date.

In Gomez v. Gipson, 2016 U.S. Dist. LEXIS 11634 (ED CA, Feb. 1, 2016), a California federal magistrate judge dismissed with leave to amend a complaint by a Native American inmate who alleged that authorities limited sweat lodge ceremonies to once a month, without a spiritual adviser, in retaliation for his filing an inmate grievance.

In Isakhanova v. Muniz, 2016 U.S. Dist. LEXIS 11663 (ND CA, Jan. 29, 2016), a California federal magistrate judge dismissed with leave to amend a suit by the mother of an inmate who was allegedly mistreated when she came to visit her son in prison. The court dismissed with leave to amend her complaint that correctional officers made derogatory remarks about her Muslim religion while they temporarily held her on suspicion she had passed tobacco to her son.

In Lashley v. Sposato, 2016 U.S. Dist. LEXIS 12165 (ED NY, Feb. 2, 2016), a New York federal magistrate judge  recommended allowing a Muslim woman, a former inmate, to file an amended complaint alleging that she was required to spend 11 days in lock down and denied access to legal documents for refusing to remove her Khimar.

In Holcomb v. Kramer, 2016 U.S. Dist. LEXIS 10557 (D SC, Jan. 29, 2016), a South Carolina federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 12303, Jan. 6, 2016) and dismissed a claim by an inmate (a rabbi) that his kosher diet requirements were not adequately accommodated.

In Mitchell v. Staten, 2016 U.S. Dist. LEXIS 12930 (SD GA, Feb. 3, 2016), a Georgia federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 13712, Jan. 4, 2016) and permitted a Muslim inmate to proceed with his claim for an injunction and nominal damages growing out of his complaint that his Qur'an was taken during a search of his jail cell and has not been returned to him.

In Searcy v. Macomb County Jail, 2016 U.S. Dist. LEXIS 13905 (ED MI, Jan. 14, 2016), a Michigan federal magistrate judge recommended dismissing an inmate's claim that the jail offered no books, services, advice, or counseling for Jewish inmates.

In United States v. Cohee, 2016 U.S. Dist. LEXIS 14224 (D KS, Feb. 5, 2016), a Kansas federal district court rejected the claim by a convicted sexual offender who was on supervised release that his free exercise rights were violated because he has "the right to be judged by God and not by man."

Nevada Democratic Caucuses Pose Problems For Sabbath Observers

After this week's New Hampshire primaries, the presidential candidates move to Nevada and South Carolina.  As reported last week by the Las Vegas Review-Journal, the Democratic caucuses in Nevada are on Saturday, Feb. 20 at 11:00 a.m.  This means that observant Jews and Seventh Day Adventists may be unable to participate because doing so violates their Sabbath.  The Republican caucuses in Nevada will be held on Tuesday, Feb. 23, obviating the Sabbath observance problem.  The same concerns arose in 2008 and 2012 when both parties held their Nevada caucuses on Saturday.  In 2012, the Republicans held an additional evening caucus for those unable to participate earlier in the day for religious reasons.  In 2008, Democrats placed caucus sites near religious neighborhoods and synagogues so people could walk, and precinct captains were educated to write down information on behalf of observant Jews instead of asking them to sign-in and write themselves. (See prior posting.) It is unclear whether Democrats will be making similar accommodations this year.

South Carolina's primaries are on Saturdays for bot parties (Feb. 20 and 27).  However, unlike in caucuses, primary voters can cast absentee ballots in advance. [Thanks to Steven H. Sholk for the lead.]

Suit Over Religious Themed Donor Plaque Dismissed After School Removes All Plaques

Last year, Michael Lucas, an alumnus of the Colorado School of Mines, filed suit against the school after it rejected the text he chose for a donor plaque. The school's fundraising campaign for a new Athletic Complex allowed donors to purchase a personalized plate to be placed in the new football locker room. However the school rejected Lucas' proposed inscription "Colossians 3:23 & Micah 5:9." (See prior posting.) According to an ADF press release, Lucas yesterday moved to voluntarily dismiss the suit because the school has now removed all donor nameplates from the locker room. In a letter to donors (full text), the school's President said:

The purpose of the football locker fundraising program ... was to solicit donations and honor Mines' student athletes.... Unfortunately, an individual who participated in this fundraising program mistakenly viewed our new football locker room as a public space for free expression.

The letter invited donors to transfer their gifts to a new program that would replace their old plaque with a new one containing specified identifying information on the person the donor wished to honor.  No free text quotes are allowed.

First Ever Meeting of Heads of Catholic, Russian Orthodox Churches Scheduled In Cuba For Next Week

In a joint press release today, the Vatican and the Patriarchate of Moscow announced that Pope Francis and Patriarch Kirill will meet on Feb. 12 in Cuba at the Havana airport.  The historic meeting, which will culminate in the signing of a joint declaration, is the first meeting ever between a Pope and the head of the Russian Orthodox church. AP reports on the religious and well as political implications of the historic meeting.

U.S. Opposes Chabad Subpoenas Seeking To Enforce Court Sanctions Against Russia

As previously reported, in a long-running lawsuit by a Chabad group in the United States to recover two expropriated collections of religious books from the Russian government, a D.C. federal district court last year imposed $43.7 million in sanctions on various Russian government entities that have refused to comply with the court's order after a default judgment. Chabad is attempting to enforce the sanctions by locating Russian assets in the United States. It has subpoenaed five major financial institutions seeking information on accounts of the Russian government, and of individuals such as Russian President Vladimir Putin.  National Law Journal reported yesterday that the Justice Department this week filed a Statement of Interest of the United States (full text) in the case contending that Chabad's subpoenas:

are contrary to the goal of resolving this dispute and will harm not only further diplomatic efforts to do so but also the foreign policy interests of the United States.

The government argued that any Russian assets in the subpoenaed banks are immune from attachment anyway.  And it emphasized:

The United States has invested significant resources in diplomatic efforts over many years to resolve this dispute, and it continues to believe that out-of-court dialogue with Russia, rather than litigation, presents the best opportunity for ultimate resolution. 

Reparative Therapy Practitioners, Enjoined In New Jersey, Move Work To Israel

As previously reported, last December a New Jersey state court issued a permanent injunction under the state's Consumer Fraud Act against JONAH (Jews Offering New Alternatives for Healing), prohibiting it from offering gay conversion therapy in the future.  Yesterday, however, AP reported that therapists who had been connected to JONAH have moved their work to Israel. According to AP:

Israel’s Health Ministry advises against so-called “gay conversion” or “reparative” therapy, calling it scientifically dubious and potentially dangerous, but no law limits it. In Israel, practitioners say their services are in demand, mostly by Orthodox Jewish men trying to reduce their same-sex attractions so they can marry women and raise a traditional family according to their conservative religious values.

Clients also include Jewish teenagers from the U.S. and other countries who attend post-high school study programs at Orthodox seminaries in Israel....

Proponents in Israel say therapy does not “convert” clients, but boosts self-esteem and masculinity, which they say can reduce homosexuality. In Israel, therapists say there is greater acceptance of their work than in the U.S.

7th Circuit: Valuable Copy of Book of Mormon Exempt In Bankruptcy Under Illinois Law

In In re Robinson, (7th Cir., Feb. 4, 2016), the U.S. 7th Circuit Court of Appeals, in a bankruptcy case, held that under Illinois law, a debtor's copy of a rare, first edition Book of Mormon is exempt from attachment by creditors.  The court held that the exemption in Illinois law, 735 ILCS 5/12-1001(a), for the debtor's bible does not limit the debtor to retaining only one bible, nor does it limit the exemption to a bible of a particular value. St. Louis Post-Dispatch reports on the decision.

President Speaks At National Prayer Breakfast

Yesterday President Barack Obama spoke at the 64th annual National Prayer Breakfast at the Washington Hilton Hotel. His remarks (full text) which NBC described as focusing on "piety not politics," but with political "undertones in the background," built on a quotation from Second Timothy: "For God has not given us a spirit of fear, but of power and of love and of a sound mind." C-Span has posted video of all the speakers, including House Speaker Paul Ryan.

Saudi Court Reduces Sentence From Death To 8 Years and 800 Lashes In Apostasy Case

CNN reported yesterday that a court in Saudi Arabia has upheld the guilty verdict on a charge of apostasy that was handed down against Palestinian poet Ashraf Fayadh. However the court overturned the death sentence against him and instead sentenced him to eight years in prison and 800 lashes to be administered over 16 sessions.  As previously reported, originally Fayadh was sentenced to 800 lashes and four years in prison on charges that his 2008 Arabic poetry book “Instructions Within” was insulting to God and religion. Also on the basis of photos in his phone, he was charged with illicit relations with women. However apostasy charges against him were dismissed because the judge found he had repented.  Prosecutors appealed, seeking a harsher sentence, and the appeals court remanded for a new trial.  At that trial in November, a different judge concluded that Fayadh's repentance was not sufficient, and he was sentenced to death.

City Adopts Moment of Silent Prayer To Stop Scheduled Satanic Invocation

After hours of discussion, the Phoenix, Arizona City Council last night voted 5-4 to begin council meetings with a moment of silent prayer, replacing the 65-year old tradition of opening meetings with an invocation.  As reported by Tucson News Now, the change came in reaction to the invocation scheduled for the February 17 council meeting that was to be delivered by a member of the Satanic Temple. Originally some Council members had proposed to merely change the way in which persons were chosen to deliver invocations as a way to prevent the Satanic invocation, but at yesterday's meeting the city's attorney said that kind of retroactive change would likely pose constitutional problems. Meanwhile,  Councilman Jim Waring who wants to continue having invocations says he will seek a referendum on the issue