Recent Prisoner Free Exercise Cases

In Dunn v. Catoe, 2016 U.S. Dist. LEXIS 22252 (ED TX, Feb. 23, 2016), a Texas federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 23148, Jan. 15, 2016) and dismissed a Muslim inmate's complaints about policies requiring an outside volunteer at religious services, gang members infiltrating Muslim religious meetings, insufficient food when lock downs occur during Ramadan, and denial of the right to wear a beard.

In Vincent v. Stewart, 2016 U.S. Dist. LEXIS 23304 (WD WA, Feb. 25, 2016), a Washington federal magistrate judge held that unless a proper amendment is filed, she would dismiss a complaint by a Hare Krshna inmate that he has been unable to obtain fresh milk as part of his diet as required by his religious beliefs.

In Todd v. California Department of Corrections, 2016 U.S. Dist. LEXIS 23338 (ED CA, Feb. 24, 2016), a California federal magistrate judge recommended that an inmate be permitted to proceed with free exercise, Establishment Clause and equal protection claims stemming from refusal to recognize Creativity as a religion, denial of a religious diet and banning of the Holy Books of Creativity.

In Fernandez-Torres v. Watts, 2016 U.S. Dist. LEXIS 23964 (SD GA, Feb. 26. 2016), a Georgia federal magistrate judge recommended dismissing an inmate's complaint that he was not allowed to have Santeria Bead Necklaces sent to him by his "spiritual family," and could only obtain them from an approved vendor.

In Thody v. Ives, 2016 U.S. Dist. LEXIS 24092 (CD CA, Feb. 25, 2016), a California federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 24095, Jan. 5, 2016) and dismissed as not congnizable in a habeas corpus action an inmate's complaint that members of their non-Judaist, Messianic, Sabbitarian, Zionist belief group have been denied the right to assemble, teach and practice their religion.

In Schlemm v. Wall, 2016 U.S. Dist. LEXIS 24332 (WD WI, Feb. 29, 2016), a Wisconsin federal district court held that because of disputed issues of material fact, the case should proceed to trial on claims that an inmate's RLUIPA rights were infringed when he not permitted to serve venison during the annual Native American Ghost Feast; and was prevented from wearing a multicolored bandana while praying or meditating in his cell and during group religious ceremonies.

In Monroe v. Walker, 2016 U.S. Dist. LEXIS 24475 (D NV, Feb. 26, 2016), a Nevada federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 24474, Jan. 11, 2016) and allowed a Muslim inmate to proceed against one of the defendants on his complaint that he was admonished for wearing his religiously approved Kufi and was treated differently than similarly situated Jewish inmates.

Minnesota Federal Judge Creating Innovative Deradicalization Program Aimed At ISIL Recruits

The Minneapolis Star Tribune and MPR News reported yesterday that Minnesota federal district judge Michael J. Davis is setting up an innovative Terrorism Disengagement and Deradicalization Program aimed at deradicalizing defendants convicted of plotting to join ISIS.  Davis has presided over most of the terrorism trials of young Somali-Americans in Minnesota. In court papers filed in the case of four men who pleaded guilty to conspiracy to provide material support and resources to ISIL, the court says it plans to have the U.S. Probation Office work with a consultant from the German Institute on Radicalization and Deradicalization Studies to recommend an individualized intervention program tailored to each defendant's circumstances and underlying radicalization factors.  The U.S. Attorney's Office is fully supportive of the new initiative.  Defense attorneys have not yet decided whether to accept the plan.

Suit Challenges Cross Decals On Sheriff's Office Patrol Cars

The Freedom From Religion Foundation filed suit yesterday against a Texas sheriff who placed 8-inch tall Latin cross decals on six county law enforcement vehicles.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Brewster County, Texas, (WD TX, filed 3/2/2016), says that Sheriff Ronny Dodson placed the decals on patrol vehicles because he "wanted God’s protection over his deputies."  The suit contends that this violates the First Amendment's Establishment Clause as well as Art. I, Sec. 6 of the Texas Constitution.  FFRF issued a press release announcing the filing of the lawsuit.

IRS Releases Financial Data On Charities From 2012 Returns

The Internal Revenue Service in its recently-released Statistics of Income (Winter 2016) discloses extensive financial data regarding Nonprofit Charitable Organizations and Donor-Advised Funds. The data was compiled from Forms 990 and 990-EZ filed for tax year 2012. Non-profit charitable organizations had assets of $3.3 trillion. They received over $1.7 trillion in total revenue (nearly 75% of which came from program services). Charities holding $10 million or more in assets filed only 8% of the tax returns, but accounted for 92% of overall charitable assets.

Church Wins In RLUIPA "Equal Terms" Challenge To Redevelopment Zone Limits

In Summit Church v. Randolph County Development Authority, (ND WV, March 2, 2016), a West Virginia federal district court held that the Randolph County (WV) Development Authority violated the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act when it refused to sell property in a redevelopment project to a church.  The property was part of a former rail yard being redeveloped for mixed commercial use, reflecting the "the history and culture of the site." The court said in part:

The defendants wholly fail to attempt to define what they believe the “history and culture of the site” even is. It was a railyard.... Therefore, an operating train, a railroad museum or railroad-themed restaurant – which do exist in the current Elkins Railyard – theoretically make sense under the RCDA’s vision. The other existing establishments are nothing more than “medical tenants.... The northern portion of the Railyard... is morphing into something more akin to a medical park. The defendants have not shown, however, how a church would harm the Covenants’ objectives any more than the other permitted uses.

SCOTUS Hears Oral Arguments In Texas Abortion Regulation Case

The U.S. Supreme Court today heard oral arguments in one of the most important abortion cases to reach it in some time, Whole Women's Health v. Hellerstedt.  The full transcript of  today's oral arguments is now available. The case page from SCOTUSblog provides links to the cert. petition, all the briefs, the lower court decision and commentary on the case. Lyle Denniston at SCOTUSblog also has an analysis of this morning's argument. At issue in the case are provisions in a 2013 Texas law requiring physicians who perform abortions to have admitting privileges at a nearby hospital, and requiring abortion clinics to meet standards for ambulatory surgical centers.

Pennsylvania Grand Jury Exposes Extensive Sex Abuse By Catholic Diocese Clergy

Yesterday Pennsylvania Attorney General Kathleen Kane released a 147-page Grand Jury report (full text) on sexual abuse of children by Pennsylvania Catholic clergy.  As summarized in the Attorney General's press release:

A statewide investigating grand jury has determined that hundreds of children were sexually abused over a period of at least 40 years by priests or religious leaders assigned to the Roman Catholic Diocese of Altoona-Johnstown, Pennsylvania....

The widespread abuse involved at least 50 priests or religious leaders. Evidence and testimony reviewed by the grand jury also revealed a troubling history of superiors within the Diocese taking action to conceal the child abuse as part of an effort to protect the institution's image.

The Grand Jury concluded its report with 3 recommendations: (1) abolish the statute of limitations for sexual offenses against minors; (2) open a window to allow child sexual abuse victims to have their civil actions heard; and (3) possible criminal conduct should be directly reported to law enforcement authorities. Washington Post has more on the grand jury report.

EEOC Files 2 Suits Alleging Title VII Already Covers Sexual Orientation Discrimination

The EEOC announced yesterday that it has filed its first two suits in federal court testing its theory that existing laws barring discrimination on the basis of sex cover discrimination on the basis of sexual orientation. In an administrative decision under Title VII handed down in July, the EEOC held that "Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms." (See prior posting.) Yesterday's suits build on that.  In EEOC v. Scott Medical Health Center, P.C., (WD PA, filed 3/1/2016), the complaint (full text) alleges that a gay male employee's manager repeatedly directed anti-gay epithets at him, as well as other highly offensive comments about his sexuality and sex life. In the other suit, EEOC v. Pallet Companies, (D MD, filed 3/1/2016), the complaint (full text) alleges that a lesbian employee was harassed by her supervisor with comments about her sexual orientation and appearance, and was fired in retaliation for complaining. BuzzFeed reports on the lawsuits.

South Dakota Governor Vetoes Bill Restricting Transgender Students' Choice of Bathrooms

South Dakota Governor Dennis Daugaard yesterday vetoed a bill that would have prohibited public schools from allowing transgender students to use rest rooms and locker rooms consistent with their gender identity. Instead it would have required students to use facilities consistent with their anatomy and chromosomes at birth. (See prior posting.)  In his veto message (full text) Daugaard said in part:

If and when these rare situations arise, I believe local school officials are best positioned to address them.  Instead of encouraging local solutions, this bill broadly regulates in a manner that invites conflict and litigation, diverting energy and resources from the education of the children of this state.

Washington Post reports on the governor's veto.

RICO Lawsuit Filed Against Pastor and Elder of Defunct Megachurch

A civil RICO lawsuit was filed last week against Mark Driscoll, pastor of the now-closed Seattle, Washington, Mars Hill Church.  At its height, the Mars Hill had expanded to 5 states and drew 13,000 attendees on an average Sunday. Also named in the suit filed by 4 former church members was the church's chief elder, John Sutton Turner.  The complaint (full text) in Jacobsen v. Driscoll, (WD WA, filed 2/29/2016), alleges that defendants solicited contributions from thousands of members for specific charitable purposes and then diverted the funds to other purposes, including fraudulent promotion of Driscoll's book, Real Marriage, and for church expansion. Daily Beast reports on the lawsuit and its background:

Mars Hill closed its doors in 2014, following a number of scandals involving allegations of Driscoll’s bullying and spiritual abuse of members and church leaders, misogyny, and homophobia espoused on a church message board, plagiarism, and misuse of church funds—which this lawsuit seeks to redress. Since its closure, the details of the organization’s dissolution have been opaque, with little public accounting, and a group of remaining leaders who have refused to comment on who gets what from the failed enterprise 

Church of Cyprus and Government Reach Salary Subsidy- Land Swap Deal

After 45 years of negotiations, the Church of Cyprus and the Cyprus government have finally reached an agreement on governmental payments of priest salaries in exchange for transfer of land from the Church to the government.  In-Cyprus reported yesterday that the Church will transfer 15,000 acres of land to the government. In exchange the government will fund half the salaries of 700 priests for the next ten years. For each of the 700 priests, the government will pay the church the equivalent of $733 per month.  The land being transferred is valued at the equivalent of $304 million.

Court May Decide Church Affiliation Dispute

In Ohio District Council, Inc. of the Assemblies of God v. Speelman, (OH App., Feb. 29, 2016), an Ohio state appeals court held that the ecclesiastical abstention doctrine does not prevent civil courts from adjudicating the validity of action by a local church, known as Christian Assembly, disaffiliating itself from Assemblies of God and instead merging with (and transferring its property to) Fellowship of Praise Church of God.  After Christian Assembly took this action, Assemblies of God adopted a resolution declaring that it still had jurisdiction over the church and purporting to remove its pastor Dennis Speelman.  In holding that the trial court can decide the dispute, the appeals court said in part:

A judicial determination with respect to the significance of Christian Assembly’s affiliation involves no ecclesiastical issues. Here, the parties have presented evidence of constitutions, by-laws, applications for affiliation, as well as ample testimony regarding the structure of the presbytery. The resolution of that matter does not involve the weighing of any controversies concerning religious doctrines, tenets, or practices....

The trial court was not called upon to determine whether Speelman should be pastor or to determine matters of religious concern. Rather, the trial court was called upon to determine which body was authorized to make those determinations and to defer to the determination of the authorized body. 

Sikh Army Captain Sues Seeking Religious Accommodation

U.S. Army Captain Simratpal Singh, a Sikh, filed suit yesterday in federal district court in the District of Columbia seeking an injunction to require the Army to allow him to continue to serve without requiring him to shave, cut his hair or remove his turban.  According to the complaint (full text) and memorandum in support of application for a TRO and preliminary injunction (full text), Singh was granted a temporary accommodation last December (see prior posting), but as its March 31 expiration approached Singh was ordered to report for special helmet testing and several days of safety-mask testing. No one else in the army has been subjected to this kind of testing.  According to the complaint, "the Army’s discriminatory testing and regulations expose Captain Singh to serious consequences of military discipline and the loss of his career for his religious exercise." The complaint alleges violations of RFRA as well as of the 1st and 5th Amendments.  Becket Fund issued a press release announcing the filing of the lawsuit.

China Charges Human Rights Lawyer Criminally

Radio Free Asia reported yesterday that Chinese authorities have now arrested a Chinese human rights lawyer on criminal charges after he assisted Protestant churches in resisting an urban "improvement" campaign that required removal of their roof-top crosses:

Zhang Kai's initial period of detention in an unknown location under "residential surveillance" reached the end of its six-month limit last week, and the lawyer was immediately held instead under criminal detention on suspicion of "disturbing public order" and "endangering state secrets," a fellow lawyer told RFA....

Chinese media aired footage of Zhang last Friday "confessing" to the charges, and accused U.S.-based Christian rights group ChinaAid of supporting him.

The confession appears to have been coerced.

Cert. Denied In Challenge To N.J. Conversion Therapy Ban

The U.S. Supreme Court yesterday denied certiorari in Doe v. Christie, (Docket No. 15-195, cert. denied 2/20/2016) (Order List.)  In the case, the U.S. 3rd Circuit Court of Appeals upheld a New Jersey statute that prohibits mental health professionals from engaging in "sexual orientation change efforts" with minors. (See prior posting.) Liberty Counsel issued a press release on the Court's action.

Cert Denied In Prisoner Free Exercise Case Over Alito's Dissenting Opinion

The U.S. Supreme Court today denied certiorari in Ben-Levi v. Brown, (Docket No. 14-1086, cert. denied 2/29/2016) over a lengthy dissent to denial of review by Justice Alito (at pg. 39 of Order List). In the case, the lower courts (district court, 4th Cir.) upheld a rule of the North Carolina prison system which requires either a minyan (ten participants) or the presence of a qualified leader (such as a rabbi) in order for a Jewish Bible study group to meet.  Other religious groups were allowed to meet without a specified number of participants or an outside volunteer.  The prison system's rule for Jewish inmates was based on the prison system's understanding of Jewish religious doctrine. Dissenting from the denial of review, Justice Alito wrote:

In essence, respondent’s argument—which was accepted by the courts below—is that Ben-Levi’s religious exercise was not burdened because he misunderstands his own religion..... The argument that a plaintiff’s own interpretation of his or her religion must yield to the government’s interpretation is foreclosed by our precedents.... Even assuming that respondent accurately identified the requirements for a group Torah study under Jewish doctrine—and that is not at all clear—federal courts have no warrant to evaluate “‘the validity of [Ben-Levi’s] interpretations.’”

[Thanks to Marty Lederman via Religionlaw for the lead.] 

Justice Department Investigating Mosque Zoning Dispute In Nebraska

According to yesterday's Omaha World-Herald, the U.S. Justice Department is investigating complaints by leaders of a mosque in Lexington, Nebraska, that the town is burdening their religious freedom in raising zoning objections to the use of a former downtown laundry building for Muslim prayer.  Somali workers from a local meat packing plant use the building for prayer 5 times a day. The paper reports:

City officials maintain that mosque leaders are ignoring local zoning laws and thumbing their noses at requirements for building permits and fire-code inspections.

They insist that the flap is about a lack of parking, not a denial of religious freedom, and that it wasn’t spurred by “Islamophobia.”

.... We’re just trying to plan and redevelop that part of our town,” said Lexington City Manager Joe Pepplitsch.... Let’s find an alternative.”

But local Muslim leaders question why a community that has hosted waves of immigrants seems to be taking such a hard line against them. They had gathered for prayers in two smaller buildings for eight years before expanding into and later buying the larger laundry next door. They see plenty of empty parking stalls nearby at two city-owned lots.

State Exception To Priest-Penitent Privilege Violates Louisiana Religious Freedom Act

The Baton Rouge Advocate reports on a Louisiana state trial court decision handed down on Friday that upholds, on religious freedom grounds, a priest's right to refuse to disclose confidential information regarding sexual abuse of minors received during confession. The court invalidated a provision in LA Children's Code Sec. 609(A)(1) which requires clergy to report abuse or neglect that threatens a child's physical or mental health or welfare, notwithstanding any privilege.  Apparently relying on Louisiana's Preservation of Religious Freedom Act, the court held that while the state has a compelling interest in protecting children from abuse, this is not the least restrictive means of furthering that interest. The decision by Judge Mike Caldwell comes in a suit by Rebecca Mayeaux, now 22, who says that in 2008 she told Rev. Jeff Bayhi during confession that she was being abused by a 64-year old parishioner. Under the ruling, Mayeaux will be able to testify about what she told Bayhi, but her attorneys will not be permitted to argue to the jury that Bayhi was required to report her allegations to authorities.  The ruling is subject to immediate appeal to the Louisiana Supreme Court.  The lawsuit, originally filed in 2009, has already been up to the state Supreme Court once. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Kif Augustine-Adams, Religious Exemptions to Title IX, (February 19, 2016).
• Matthew W. Bourda, Turning the Water to Blood: How Burwell v. Hobby Lobby Drove the Religious Freedom and Restoration Act Out of Touch with Society, (41 T. Marshall L. Rev. Online 160 (2016)).
• Levi Cooper, Legislation for Education: The Munkács Regulations Enacted by Rabbi Tsevi Elimelekh of Dynów, (Polin: Studies in Polish Jewry 30 (2017), Forthcoming).
• Shaun Alberto de Freitas, Religious Associational Rights and Sexual Conduct in South Africa: Towards the Furtherance of the Accommodation of a Diversity of Beliefs, (February 20, 2016).
• Asim Jusic, From Formal Equality to Positive Neutrality to Positive Inferiority (for Some): The European Court of Human Rights’ Limited Influence on Constitutional Changes and Religion in Hungary, (Vienna Journal of International Constitutional Law, Vol. 10, 2016).
• Mohamed A. Arafa, Insights on Divine (Islamic) Law: Islamophobia versus Terrorism, Death Penalty, and Transitional Justice, (CALUMET: Intercultural Law & Humanities Review (Online) 2016).
• Kristine S, Knaplund, Becoming Charitable: Predicting and Encouraging Charitable Bequests in Wills, (77 U. Pitt. L. Rev. (Fall 2015).

From SSRN (Marriage):

• Robin Bradley Kar, Against Marriage Essentialism: A Legal Grounding for Obergefell and Same-Sex Marriage, (University of Illinois Law Review, Forthcoming).
• Gregg Strauss, The Positive Right to Marry, (February 24, 2016).
• Kaiponanea T. Matsumura, A Right Not to Marry, (Fordham Law Review, Vol. 84, 2016).

El Al Sued In Israel Over Gender-Based Reseating To Accommodate Religious Objections

A widely anticipated test case has been filed in court in Israel against El Al Airlines over its practice of accommodating Orthodox Jewish men who, for religious reasons, refuse to sit beside unrelated female passengers. New York Times reported Friday on the discrimination suit filed by the Israel Religious Action Center on behalf of 81-year old Renee Rabinowitz who was pressured by a flight attendant to change seats on a flight from Newark to Tel Aviv.  Rabinowitz is described by the Times as "a sharp-witted retired lawyer with a Ph.D. in educational psychology, who escaped the Nazis in Europe as a child." Rabinowitz moved to Israel from the United States some ten years ago.  Both her second and first husbands were rabbis. The Religious Action Center had been looking for at test case where it was clear that flight attendants, as opposed to passengers alone, were involved in the seating change.

Recent Prisoner Free Exercise Cases

In Shehee v. Ahlin, 2016 U.S. Dist. LEXIS 22708 (ED CA, Feb. 24, 2016), a California federal magistrate judge recommended dismissing a suit by a Hindu civil detainee that he was denied his religious vegan diet.

In Perez v. Watts, 2016 U.S. Dist. LEXIS 20497 (SD GA, Feb. 19, 2016), a Georgia federal district court adopted (as supplemented by the court) a magistrate's recommendation (2015 U.S. Dist. LEXIS 173384, Dec. 31, 2015) and dismissed monetary damage claims brought by a Santeria inmate claiming interference with his ability to practice his religion. (See prior related posting.)

In Powell v. Morris, 2016 U.S. Dist. LEXIS 20971 (D MS, Feb. 22, 2016), a Mississippi federal magistrate judge dismissed a Muslim inmate's complaint that he was not provided halal meals or Taleem study classes.

In Blalock v. Jacobsen, 2016 U.S. Dist. LEXIS 21168 (SD NY, Feb. 22, 2016), a New York federal district court dismissed a Muslim inmate's complaint about limits on his ability to have has prison-issued pants shortened to comply with religious principles.

In Avery v. Elia, 2016 U.S. Dist. LEXIS 21367 (ED CA, Feb. 19, 2016), a California federal magistrate judge recommended dismissing the complaint of a Wiccan inmate that he was not permitted to ceremonially burn wood in a fire pit.

In Cary v. Robinson, 2016 U.S. Dist. LEXIS 20876 (WD MI, Feb. 22, 2016), a Michigan federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 21810, Feb. 2, 2016)  and permitted a Native American inmate to move ahead with his free exercise and equal protection challenges to confiscation and desecration of his medicine bag.

In Johnson v. Brown, 2016 U.S. Dist. LEXIS 20929 (ND AL, Feb. 22, 2016), an Alabama federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 21916, Feb. 1, 2016) and dismissed a Muslim inmate's complaint regarding limitation of Sunnah inmates' access to the "Masjid" classroom and occasional interruption of religious services.

In Ramos v. Department of Corrections, 2016 U.S. Dist. LEXIS 22311 (D CT, Feb. 24, 2016), a Connecticut federal district court allowed an inmate who is a member of the Santeria religion to move ahead with his complaint that his free exercise and equal protection rights were infringed when he was not allowed to possess tarot cards to practice his religion.

In Cruz v. Collins, 2016 Mass. App. Unpub. LEXIS 194 (MA App., Feb. 25, 2016), a Massachusetts state appeals court reversed a trial court's dismissal of a RLUIPA claim by a Nation of Islam inmate challenging limits on his access to  use classroom space to pray and study throughout the week.

In Hays v. Helder, 2016 U.S. Dist. LEXIS 23093 (WD AR, Feb. 25, 2016), an Arkansas federal district court adopted a magistrate's recommendation and dismissed (partly on res judicata grounds) a complaint by a member of the Cherokee Indian faith that he was denied access to his medicine bag.

Title IX Religious Organization Exemption Does Not Bar Retaliation Claim Against Catholic High School

In Goodman v. Archbishop Curley High School, Inc., (D MD, Feb. 26, 2016), a Maryland federal district court refused to dismiss a former high school librarian's Title IX retaliation claim against the Catholic high school from which she was fired.  Librarian Annette Goodman reported to the school's administration evidence that another faculty member was having a sexual affair with one of the school's students. The school fired Goodman claiming that she delayed too long reporting her concerns to the school. Goodman says the firing was an attempt to deflect attention from the school's indifference to sexual abuse.  The court rejected the school's claim that Title IX's religious organizations exemption requires dismissal of Goodman's lawsuit, saying in part:

The position of the Defendants ... is that Title IX’s religious organizations exemption bars any employment discrimination or retaliation claim against them if they define their actions as tenets of their religion. There is a noticeable lack of case authority supporting such a broad application of the religious exemption.

The court also rejected defendants' claims that their rights under the First Amendment and RFRA would be violated by allowing the suit to move forward.

Church Fails In RLUIPA Challenge To Village's Zoning Ordinance

In Truth Foundation Ministries, NFP v. Village of Romeoville, (ND IL, Feb. 26, 2016), an Illinois federal district court denied a preliminary injunction to a small congregation serving mainly African immigrants that found itself in violation of the village's zoning code after it had spent over $50,000 expanding a building it was leasing for use as a church.  The court concluded that the church had failed to show a substantial likelihood of success in its claim that the town's zoning requirements violate RLUIPA's complete exclusion, unreasonable exclusion and equal terms provisions.

Trump Pledges To Work To Eliminate Ban on Religious Non-Profits Endorsing Candidates

In a news conference in Ft. Worth, Texas today, Republican candidate Donald Trump-- saying that Christians are afraid to have a lobby because it threatens their tax exempt status-- pledged to work to eliminate the Johnson amendment that prevents non-profits, including religious non-profits, from endorsing or opposing political candidates. (Video of news conference, this portion at 1:44).  This came after evangelical Pastor Robert Jeffress endorsed Trump at the news conference (video at 1:42).

Trump Speculates Audit of His Tax Returns Stems From Religious Discrimination

As reported by Politico, during last night's contentious CNN Republican presidential debate Donald Trump said that he has not released his tax returns because they are the subject of a routine IRS audit. Then in an interview with CNN's Chris Cuomo immediately following the debate, Trump said:

But the one problem I have is that I’m always audited by the IRS, which I think is very unfair. I don’t know, maybe because of religion, maybe because I’m doing something else, maybe because I’m doing this, although this is just recently.

Cuomo followed up asking Trump what he meant by religion, and Trump responded:

Well maybe because of the fact that I’m a strong Christian, and I feel strongly about it. And maybe there’s a bias.  You see what’s happened. I mean, you have many religious groups have been complaining about that. They’ve been complaining about it for a long time.

Data On Religious Affiliation of Super Tuesday Voters

The Pew Research Center yesterday compiled data in post titled A Closer Look At Religion in the Super Tuesday States.  It reports in part:

Overall, nearly half of all people in the 12 Super Tuesday states who identify as or lean toward the Republican Party (47%) are evangelical Protestants....

Massachusetts, one of the five states outside the South to vote Tuesday, is the biggest exception to this trend; only 10% of Massachusetts Republicans are evangelicals, while fully half (50%) are Catholics....

Among Democrats, people with no religious affiliation are the largest group in three of the 11 states that will vote Tuesday....

Members of historically black Protestant churches also are a key Democratic constituency.... 

Evangelicals are the single biggest group among Democrats in Tennessee (39%), and they make up 20% of all Democrats in the 11 states that will vote Tuesday.

In Massachusetts (27%) and Texas (26%), about a quarter of Democrats are Catholics; in Texas, the overwhelming majority of Catholic Democrats (79%) are Hispanic....

FFRF Sues Over Governor's Removal of Bill of Rights "Nativity" Display

As previously reported, last December Texas Gov. Greg Abbott, as chairman of the Texas State Preservation Board, forced the executive director of the Board to remove from the state capitol rotunda a previously-approved display by the Freedom From Religion Foundation of a Bill of Rights "nativity" scene.  The display included figures of the founding fathers and a sign about the Winter solstice. The Governor complained that the display mocks Christians and Christianity. Yesterday, FFRF filed a lawsuit challenging the governor's action and requesting a declaratory judgment, injunction and nominal damages. The complaint (full text) in Freedom From Religion Foundation, Inc. v. Abbott,  (WD TX, filed 2/25/2016), contends:

Defendants have violated the Plaintiff’s Free Speech, Equal Protection and Due Process rights, and ... have violated the Establishment Clause, by removing and excluding the Plaintiff’s protected speech, a display, from a public forum, because of the content of the Plaintiff’s speech.

FFRF issued a press release announcing the filing of the lawsuit.

Amicus Briefs Supporting Government In Zubik Case Are Filed

Feb. 17 was the deadline to file amicus briefs with the U.S. Supreme Court in support of the government's position 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.  21 amicus briefs were filed, and SCOTUSblog has links to most of them, as well as to the amicus briefs supporting petitioner which where due last month. (See prior posting.) Oral argument is set for March 23. With the death of Justice Scalia, the possibility of an evenly divided court is present.  That would affirm the Circuit Court decisions in all 7 of the cases in which review was granted.

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.