9th Circuit Hears Oral Arguments In Dispute Over Control of Sikh Dharma Company

The U.S. 9th Circuit Court of Appeals last Thursday heard oral arguments in Puri v. Khalsa (Docket No. 13-36024) (video of full oral arguments).  Courthouse News Service has extensive background on the case in which Bibiji Inderjit Kaur Puri, the widow of the leader of the Sikh Dharma faith, is seeking a seat on the board of the company that makes Yogi Tea and which also controls various parts of the Sikh Dharma religious movement. Here is an excerpt from CNS's excellent report:

Bibiji sued in Multnomah County [Oregon] Circuit Court, claiming that her husband had wanted her to be a board member and accusing the board of Unto Infinity of inflating their salaries and executing a self-serving sale of the company's cereal division that cheated Sikh Dharma....

The parties agreed to settle in arbitration. But Bibiji moved the case to Federal Court, claiming the settlement was never ratified and was unfair.... There, U.S. District Judge Michael W. Mossman dismissed the case, finding that Bibiji lacked standing to sue ... because she is not a board member. He also found that the First Amendment prohibited him from installing the leaders of a religious organization.

On Thursday, Bibiji's lawyer ... urged a panel of the Ninth Circuit to apply "neutral principles of law" rather than a First Amendment exception.

(See prior related posting.)

Pastor Introducing Trump Says Bernie Sanders Must "Come to Jesus"

At a Donald Trump event in Hickory, North Carolina today, Pastor Mark Burns who spoke before Trump and Gov. Chris Christie took the stage called for Bernie Sanders to accept Jesus.  As quoted by Politico, Burns said in part:

Bernie Sanders who doesn't believe in God. How in the world are we going to let Bernie? I mean really? Listen, Bernie gotta get saved. He gotta meet Jesus. He gotta have a come to Jesus meeting.

Egypt's Justice Minister Fired Over Comment Seen As Blasphemous

Egypt's Justice Minister Ahmed El-Zend was dismissed from office yesterday by Egypt's Prime Minister Sherif Ismail after comments that were interpreted as blasphemous went viral. Ahram Online gives background:

Last week, in response to a TV host's question on whether he would jail journalists, El-Zend said, "Even if he was a prophet, peace and blessings be upon him."

The 70-year-old then briefly uttered Islamic words of repentance before adding that "the culprit, whatever his description is... I am not talking about jailing a journalist or jailing a teacher, I am saying jailing a defendant."

El-Zend subsequently asked for forgiveness, saying his comment was a slip of the tongue, but Al-Azhar (the center of Islamic learning in Egypt) issued a statement warning against even unintentional blasphemous comments.

Recent Articles of Interest

From SSRN:

• Robin Fretwell Wilson, 'Getting the Government Out of Marriage' Post Obergefell: The Ill-Considered Consequences of Transforming the State’s Relationship to Marriage, (University of Illinois College of Law Legal Studies Research Paper No. 16-14, March 2016).
• Lauren Sudeall Lucas, The Free Exercise of Religious Identity, (UCLA Law Review, Vol. 64, No. 1, 2017 Forthcoming).
• Marc O. DeGirolami, On Expressivism and Retributivism in 'The Mighty and the Almighty', (Journal of Analytic Theology (Forthcoming)).
• Caroline Mala Corbin, The Contraception Mandate Accommodated: Why the RFRA Claim in Zubik v. Burwell Fails, (American Constitution Society Issue Brief, March 2016).
• Briton Jacob Myer, In Pursuit of Religious Freedom: The RFRA and How It Applies to Non-Profit Organizations and Their Objections to the Accommodation of the Affordable Care Act Contraceptive Mandate, (November 23, 2015).
• Peter Nicolas, Backdating Marriage, (California Law Review, Forthcoming).
• Khaled A. Beydoun, Electing Islamophobia, (March 6, 2016).
• Lloyd Hitoshi Mayer, Fragmented Oversight of Nonprofits in the United States: Does it Work? Can it Work?, (Chicago-Kent Law Review, Vol. 91, No. 3, 2016).

From SSRN (Non-U.S Law):

• Christa Rautenbach, The South African Constitutional Court's Use of Foreign Precedent in Matters of Religion: Without Fear or Favour?, (Potchefstroom Electronic Law Journal, Vol. 18, No. 5, 2015).
• Melissa Crouch, Constitutionalism, Islam and the Practice of Religious Deference: The Case of the Indonesian Constitutional Court, (Australian Journal of Asian Law, Vol. 16, No. 2, Article 6, 2016).
• Nadirsyah Hosen, The Constitutional Court and ‘Islamic’ Judges in Indonesia, (Australian Journal of Asian Law, Vol. 16, No. 2, Article 4, 2016).
• Faridah Jalil, Searching for the Benchmark in the Administration of Islamic Criminal Law: Malaysia Experience, (May 30, 2015).
• Faridah Jalil, Challenges and Prospects on Access to Justice in Malaysia, (November 11, 2015).
• Emilia Justyna Powell & Stephen D. McDowell, Islamic Sovereignty Norms and Peaceful Settlement of Territorial Disputes, (iCourts Working Paper Series No. 47, March 2016).
• Amir Attaran, Commentary: The Limits of Conscientious and Religious Objection to Physician-Assisted Dying after the Supreme Court's Decision in Carter v. Canada, (Health Law in Canada 36(3):86-98, 2016).

From SmartCILP:

• Alan M. Hurst, The Very Old New Separationism, 2015 Brigham Young University Law Review 1-61.
• Mary McDonough, Catholic Health Care and the Affordable Care Act: A Matter of Social Justice, [Abstract], 10 Intercultural Human Rights Law Review 69-116 (2015).
• Wolfgang P, Muller, The Internal Forum of the Later Middle Ages. A Modern Myth?, 33 Law & History Review 887-913 (2015).

Recent Prisoner Free Exercise Cases

In Wilson v. Soto, 2016 U.S. Dist. LEXIS 27449 (CD CA, March 2, 2016), a California federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 27451, Jan. 21, 2016) and allowed a Muslim inmate to proceed on a RLUIPA claim for equitable relief growing out of a strip search in the presence of female prison staff. Other claims were dismissed, but some with leave to amend. Plaintiff was required to file an amended complaint in order to move ahead.

In Seina v. Federal Detention Center Honolulu, 2016 U.S. Dist. LEXIS 28544 (D HI, March 7, 2016), a Hawaiian federal district court dismissed a Native American inmate's claim that his right to properly conduct an American Indian Pipe Ceremony was severely hindered because he was not treated for his medical condition (hypertension).

In Hill v. Management Training Corp., 2016 U.S. Dist. LEXIS 28686 (SD MS, March 7, 2016), a Mississippi federal magistrate judge dismissed a Catholic inmate's complaint that because of an expansive lock down, during the one year period of his incarceration he was only able to attend one religious service.

In Johnson v. Nevada Department of Corrections, 2016 U.S. Dist. LEXIS 29355 (D NV, March 7, 2016), a Nevada federal district court permitted a Muslim inmate to proceed with claims that his kufi was confiscated, he was denied halal meals and was not served meals on the Ramadan schedule on time.

In Mujahid Ta'Lib Din v. Albritton, 2016 U.S. Dist. LEXIS 29676 (ND CA, March 8, 2016), a California federal magistrate judge permitted a Muslim inmate to move ahead with his complaint that Muslim congregational prayers during open day room hours were improperly limited.

In Vega v. Hardy, 2016 U.S. Dist. LEXIS 29911 (ND IL, March 9, 2016), an Illinois federal district court permitted an African Hebrew Israelite inmate who had taken a Nazirite vow to move ahead with his complaint that the warden would not permit him to grow a kouplock as part of his hairstyle.

Virginia Legislature Passes Bill To Protect Clergy and Religious Groups That Object To Same-Sex Marriage; Governor Threatens Veto

Yesterday the Virginia General Assembly gave final passage to S.41 (full text) that protects clergy, religious and religiously affiliated organizations and their employees and volunteers acting in the scope of their employment from being required to participate in the solemnization of any marriage or from receiving adverse treatment of any kind by the state because the person acted on the basis of a sincere religious or moral belief that marriage should be only the union of one man and one woman. As reported by the Washington Blaze, Virginia Gov. Terry McAuliffe has said he would veto the bill.  It should be noted that the language of the bill requires careful reading to avoid misinterpreting it as being broader than it is.  Section B. of the bill applies its protection to any "person," but that is limited by the narrow definition of "person" in Section A. The president of the Family Foundation of Virginia accurately, albeit not totally objectively, described the scope of the bill:

This legislation balances the recently discovered right to whatever definition of marriage you want with our nation’s longstanding principle of religious free exercise by ensuring that the heavy hand of government cannot penalize clergy or religious charities simply because of beliefs about marriage.

Suit Seeks Site Plan Approval For Mosque

A suit was filed in New Jersey federal district court by the Islamic Society in a prosperous New Jersey suburb whose attempts to obtain site plan approval for a mosque have been thwarted so far. The complaint (full text) in Islamic Society of Basking Ridge v. Township of Bernards, (D NJ, filed 3/10/2016), summarized the mosque's efforts:

What should have been a simple Board approval for a permitted use devolved into a Kafkaesque process that spanned an unprecedented four years and included 39 public hearings.

 The complaint cites anti-Muslim attitudes among those object to the mosque, and contends that the refusal to approve the sit plan violated RLUIPA, the 1st and 14 Amendments and various New Jersey statutory and constitutional provision.  New York Times reports on the lawsuit. [Thanks to Mel Kaufman for the lead.] 

UPDATE: New Jersey Advance Media reported on March 16 that the Justice Department has opened an investigation into the actions of Bernards Township.

Next SCOTUS Nominee Might Be A Hindu

Washington Post, in an article titled What would a Hindu justice mean for the Supreme Court?, reported that D.C. Circuit Judge Sri Srinivasan is on President Obama's shortening list of potential Supreme Court nominees.  He would be the first Hindu justice ever to serve on the Supreme Court.  When sworn in as judge on the D.C. Circuit, Srinivasan took the oath on the Bhagavad Gita. Most of those interviewed by the Post suggested that Srinivasan's faith would have little impact on the positions he would take on the Court.  While Protestants are the largest religious group in the United States, no Protestant (mainline or evangelical) has been on the Supreme Court since Justice Stevens retirement in 2010.

New Federal Inter-Agency Initiative On Religious Discrimination Launched

On Tuesday, the Justice Department announced  "Combating Religious Discrimination Today," a new inter-agency initiative to promote religious freedom, challenge religious discrimination and increase enforcement of religion-based hate crimes.  The new community engagement effort launched by 5 federal agencies, will lead a series of community round tables across the country.  The first was in Newark, New Jersey on Tuesday and focused on addressing bullying and religious discrimination in schools. Among those addressing the round table were Vanita Gupta, head of the Justice Department's Civil Rights Division. (Full text of remarks.)  Subsequent round tables are scheduled for  Dallas, Birmingham (AL), Detroit and Palo Alto (CA).  They will focus on topics such as hate crimes, employment discrimination and discrimination by local zoning officials.

Jail Settles Suits Alleging Muslim Women Were Forced To Attend Christian Services

The Cleveland Plain Dealer reported this week that Cuyahoga County (Ohio) has entered settlements in two separate lawsuits by Muslim women who said they were required by corrections officer Regina Watts to attend Christian religious services when they were serving time in the Cuyahoga County Jail. The women were housed in the "trustee pod" of the jail while serving time in 2014. Sakeena Majeed, who was in jail for misdemeanor assault received a settlement of $48,500.  Sonya Abderrazzaq was serving time for drunk driving settled for $32,500.  The jail has now moved religious services to other space instead of the pod where the two women were housed. [Thanks to Scott Mange for the lead.]

Federal District Judge Says Obergefell Does Not Bind Puerto Rico

In Vidal v. Garcia-Padilla, (D PR, March 8, 2016), a Puerto Rico federal district court held that the recognition of same-sex marriage in Obergefell v. Hodges  does not bind Puerto Rico until further action by the Supreme Court or Congress.  Relying on the so-called Insular Cases decided by the Supreme Court in the early 20th century, the court said "jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment...."  The court concluded:

It is in light of the particular condition of Puerto Rico in relation to the Federal Constitution, with due consideration of the underlying cultural, social and political currents that have shaped over five centuries of Puerto Rican history, that the court examines the effect of Obergefell in the instant case. The court’s analysis, therefore, does not end with the incorporation of the fundamental right to same-sex marriage in the States. Generally, the question of whether a constitutional guarantee applies to Puerto Rico is subject to determination by Supreme Court of the United States.

Lyle Denniston at SCOTUSblog has more on the decision.

Suit Challenges Pastor's Invitation To Texas Mayor To Speak At Groundbreaking For Cross

The Corpus Christi Caller Times reported yesterday on a lawsuit against the pastor of a local church who invited Corpus Christi's mayor to speak at a groundbreaking ceremony for a 210-foot tall cross placed along an Interstate highway near the Texas city. Mayor Nelda Martinez spoke at the ceremony about her late father's dream for a cross at the helm of the Corpus Christi Bay.  The lawsuit filed in state court by Patrick Greene accuses the pastor, Rick Milby, of violating state law-- apparently Art. I, Sec. 6 of the Texas constitution-- when he invited the mayor and council leaders to the groundbreaking. The city attorney calls the lawsuit frivolous.

Divorce Decree Restrictions Violate Mother's Free Exercise Rights

In Black v. Black, (WA App., March 8, 2016), a Washington state appeals court held that a trial court imposed improper conditions on the non-custodial parent in a divorce action.  Charles and Rachelle Black had three children whom they raised in a conservative Christian home and sent to religious-based schools.  After 17 years of marriage, Rachelle informed Charles that she is a lesbian, and two years later filed for divorce. The court's final parenting plan designated Charles as the primary residential parent, awarded him sole decision-making as to the children's religious upbringing and required Rachelle to refrain from having further conversations with the children regarding religion, homosexuality, or other alternative lifestyles. The appeals court reversed, saying:

While the best interests of the children is a trial court’s paramount concern ..., here there is no indication that Rachelle’s prior speech related to her sexual orientation or her religious views ... would cause harm to the children if such speech or conduct occurred in the future. Therefore, we hold that the restrictions are an unconstitutional burden on her freedom of speech and her free exercise of religion. 

What Counts As A "Church"?

RLUIPA Defense blog last week recounted the story of Spokane, Washington's "Jedi Alliance" which bills itself as a church.  Tim and Tyler Arnold purchased a large collection of arcade games. Looking for a place to house them permanently, they purchased a building that formerly was used as a Methodist church.  Then, however, city officials told them that the building was zoned only for residential use or use as church.  So the Arnolds registered as a church, opening the building on Sunday evenings for the public to play the arcade games or patronize the gift shop.  The Arnold brothers said:

Is it a church? Well, it’s a church in the sense that we took over a church building.  Are we here congregating? Yes, we’re here congregating getting together.  We can use all of this pop culture stuff to bring people together, to get people to have a reason to come together in a social setting.

Australian Court Says Sex-Segregated Seating At Muslim Lecture Violates Anti-Discrimination Law

In Bevege v Hizb ut-Tahrir Australia, (NSW Civ & Adm Trib, March 4, 2016), the Civil and Administrative Tribunal of the Australian state of New South Wales held that sex-segregated seating at a lecture sponsored by a Muslim group violates the New South Wales Anti-Discrimination Act of 1977. The sponsor of the lecture, Hizb ut-Tahrir Australia, identifies itself as an 'international political party with a franchise in Australia."  When Alison Bevege attended the group's lecture on American intervention in Iraq and Syria, she was directed to a section of the auditorium reserved for women and children.  Hizb ut-Tahrir argued to the court that separate seating of men and women "is a part of Islam, and Muslims globally are adhering to this practice through choice as part of their belief and culture."

While the Anti-Discrimination Act has an exemption for acts or practices "of a body established to propagate religion that conforms to the doctrine of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion," (Sec. 56(d)), the court concluded that this exemption does not apply.  It was not shown that Hizb ut-Tahrir was established to propagate religion.  Also because Hizb ut-Tahrir argued that Bevege would have been allowed to choose her own seat if she had requested to do so, this shows that separate seating was not necessary to avoid injury to the religious susceptibilities of Muslims attending the lecture.

To avoid similar discrimination in the future, the court ordered that at events sponsored by the organization there must be notices that gender segregated seating is not compulsory, and ushers must be made aware of this.  Law and Religion Australia has more on the decision.

FLDS Leader Lyle Jeffs Denied Bond In Food Stamp Fraud Case

On Monday, a U.S. Magistrate Judge in Salt Lake City, Utah granted the prosecution's request to deny bond to FLDS Church bishop Lyle Steed Jeffs who is charged with conspiracy to commit food stamp fraud and conspiracy to commit money laundering. Jeffs and ten others are charged with diverting millions of dollars in food stamp benefits to church leaders who then reallocated the benefits. (See prior posting.) KSL News reports that prosecutors convinced the court that Jeffs poses an extreme flight risk, despite the absence of precedent for denying bond in a welfare fraud case. Seven of the other defendants have been released on bond, subject to GPS monitoring and other conditions.

Court Says Jihadist's Religious Faith Was Not Reason For Life Sentence

In Shnewer v. United States, ( NJ, March 2, 2016), a New Jersey federal district court rejected a claim by a jihadist who was sentenced to life in prison for conspiracy to kill United States military personnel that his religious beliefs were improperly used in determining his sentence.  As reported by NJ Advance Media, at issue was the sentence imposed on Mohamad Shnewer, a key figure in a foiled plot to kill soldiers at Fort Dix and other military installations. In rejecting Shnewer's claims, the court said in part:

This Court did not use Mr. Shnewer’s devout Muslim faith to help this Court reach the conclusion that it would sentence him to ... life imprisonment, but rather ... this Court believed that Mr. Shnewer could not be rehabilitated and therefore posed a threat if released based upon his violent radical Islamic beliefs. This did not run afoul of the Constitution and did not amount to this Court using Mr. Shnewer’s devout Muslim faith to determine his sentence. 

RLUIPA Challenge Settled; Soup Kitchen Gets Permit To Operate

JDSupra reported yesterday on the settlement of three related RLUIPA lawsuits that were filed against the City of Norwich, Connecticut by St. Vincent de Paul Place, a ministry of The Polish Roman Catholic Congregation.  The suits sought authorization to continue to operate a soup kitchen and food pantry, and offer related services, at the site of a former parochial school. The Stipulated Judgment (full text) in St. Vincent de Paul Place, Norwich, Inc. v. City of Norwich, (D CT, Feb. 12, 2016), provides that the city will issue a special permit, subject to specified hours of operation, to the church.  The city commission approved the settlement at a public meeting, despite continued opposition from neighbors. City commissioners did not want to risk liability for the church's legal fees that the city would have incurred if it continued to litigate and ultimately lost. (See prior related posting.)

Fired Gay Music Director Sues Chicago Archdiocese for Discrimination

Following an EEOC complaint filed last year (see prior posting), the former music director of a suburban Chicago Catholic parish has now filed an employment discrimination suit in federal district court against the parish and the Archdiocese of Chicago. The Chicago Tribune reported yesterday on the lawsuit by Colin Collette against the Holy Family Catholic Community in Inverness and the Archdiocese, alleging violations of the federal Civil Rights Act, the Illinois Human Rights Act and the Cook County Human Rights Ordinance.  Collette was fired last July after he announced that he was engaged to be married to his longtime partner Will Nifong.  Collette says church leaders knew he was gay long before he posted his engagement notice on Facebook, and his subsequent marriage to his partner.  Collette is seeking damages, back pay and reinstatement.

Supreme Court Denies Cert. In Bus Ad Case; Thomas Dissents

Yesterday the U.S. Supreme Court denied certiorari in American Freedom Defense Initiative v. King County, Washington, (Docket No. 15-584, cert. denied 3/7/2016). However Justice Thomas wrote an 8-page dissent to the denial of cert.  Justice Alito joined the dissent. (Order List at pg. 59).  They urged the Court to use the case to resolve the split among Circuits on whether advertising space on public buses should be categorized for First Amendment purposes as designated public forums or limited public forums.  Transit authorities have greater control over content in limited public forums.  AFDI, the appellant in this case, has been involved in a number of the other cases raising the same issue, and some of its ads in other cases have been attacked as anti-Muslim. (See prior posting.)

Meanwhile Reuters reported yesterday:

Humorous ads for a documentary film that aims to promote understanding and tolerance of Muslims went up in New York subways on Monday after the movie's production company won a legal battle with the city's transit authority....

The advertisements debuted after a federal court in Manhattan ruled in October that being Muslim was a religious, not a political, identity. The Metropolitan Transportation Authority has a policy prohibiting political speech in ads on public transportation.

Federal Jury Says FLDS Twin Towns Discriminated

Yesterday an Arizona federal district court jury agreed that the towns of Colorado City, Arizona, and Hildale, Utah, and their joint water company systematically discriminated, in violation of the Fair Housing Act, against individuals who are not members of the FLDS Church in providing housing, utilities and police services. As reported by Deseret News, even though the jury awarded damages of $2.2 million to six residents, prior to the jury verdict the parties had negotiated a $1.6 million settlement under the Fair Housing Act.  According to a Justice Department press release, the suit was also filed by the government under 42 USC 14141.  The Sec. 14141 civil action does not include the right to a jury trial, so the jury's findings on that portion of the government's suit are advisory:

In its advisory verdict, the jury found that the Colorado City Marshal’s Office, the cities’ joint police department, operated as an arm of the FLDS church in violation of the establishment clause of the First Amendment; engaged in discriminatory policing in violation of the equal protection clause of the 14th Amendment and the establishment clause; and subjected individuals to unlawful stops, seizures and arrests in violation of the Fourth Amendment.

(See prior related posting.)

Supreme Court: Alabama Must Recognize Georgia's Order Granting Same-Sex Spouse Adoption Rights [CORRECTED]

The U.S. Supreme Court today in a summary per curiam opinion reversed the Alabama Supreme Court's refusal to recognize a Georgia court's approval of the adoption of one woman's children by her lesbian partner.  In V.L. v. E.L., (Sup. Ct., March 7 2016), the Supreme Court held that the Constitution's full faith and credit clause requires Alabama courts to recognize the Georgia adoption order.  The Alabama Supreme Court had wrongly concluded that Georgia courts lacked jurisdiction to enter the order.  The issue arose in the context of the adoptive mother seeking visitation rights after the couple separated. New York Times reports on the decision. [Note correction-- an earlier version of this posting incorrectly referred to Louisiana instead of Alabama.]

In Israel, Western Wall Compromise May Be Unraveling

In Israel, the much-heralded compromise approved by Prime Minister Netanyahu's cabinet at the end of January to construct a separate prayer space at the Western Wall for egalitarian prayer now seems to possibly be unraveling.  Jerusalem Post reported yesterday that opposition from the Chief Rabbinate and much of the Orthodox religious establishment is growing.  A meeting between the Prime Minister and Israel's two chief rabbis scheduled for yesterday was canceled as the Prime minister asked the chief rabbis along with the current Orthodox administrator of the Western Wall to submit proposals for changes in the agreement. The Orthodox establishment appears to be particularly opposed to the arrangement that would create a committee to regulate the proposed new prayer space, with the Reform and Conservative (Masorti) movements in Judaism given seats on the committee. Several Israeli Orthodox rabbis have made scathing attacks against the Reform movement in recent weeks. On Saturday, the Sephardi Chief Rabbi of Jerusalem, Shlomo Amar, referring to the Reform and Conservative movements, said:

It is not permitted in any way to give it [the Western Wall] over to disgrace and shame in the hands of those who purport to pray and act with immodesty and clownishness, which is a desecration of that which is holy, and the trampling of the inheritance of Israel throughout the generations in a brazen and cruel manner.

Recent Articles of Interest

From SSRN:

• Elisabeth Fontugne, Respecting Religion: How Court and Congress Impermissibly Treaded on Sacred Ground to the People's Detriment, (December 15, 2015).
• Jared A. Goldstein, How the Constitution Became Christian, Roger Williams Univ. Legal Studies Paper No. 167 (Feb. 2016).
• Daniel L. Chen & Jo Thori Lind, The Political Economy of Beliefs: Why Fiscal and Social Conservatives/Liberals Come Hand-in-Hand, (March 1, 2016).
• Aileen M. Marty, Elana Marty-Nelson & Eloisa C. Rodriguez-Dod, The Intersection of Law, Religion, and Infectious Disease on the Handling and Disposition of Human Remains, (Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen & Elizabeth Sepper eds., Cambridge University Press, Spring 2017 Forthcoming).
• Sherif Girgis, Nervous Victors, Illiberal Measures: A Response to Douglas Nejaime and Reva Siegel, (Yale Law Journal Forum, 2016).
• Brian McCall, Why it is Good to Stop at a Red Light: The Basis of Authority and Obligation, (Journal of Catholic Legal Studies, Forthcoming).
• Scott W. Gaylord, RFRA Rights Revisited: Substantial Burdens, Judicial Competence, and the Religious Nonprofit Cases, (Elon University Law Legal Studies Research Paper No. 2016-07 (2016)).
• Travis S. Andrews, Delegating Religious Liberty: The Executive's Role in Accommodating Religion, (February 1, 2016).

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

• Neil Weinstock Netanel, Introduction to: From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print, (Oxford University Press 2016).
• Asim Jusic, SAS v. France and the French Burkha Ban: Public Moral Order of Laïcité and the Struggle Against Disloyal Groups, (February 24, 2016).
• Gautam Bhatia, A Right to Faith: Individual, Community, State and Religious Freedom Under the Indian Constitution, (February 28, 2016).
• Mary Anne Case, The Role of the Popes in the Invention of Complementarity and the Vatican's Anathematization of Gender, (Forthcoming Religion and Gender Habemus Gender Special Issue 2016).
• Naveed Ahmad, Hurmat Sumaiya Binti Bashir & Yousfi Karima, Status of Women in Islam: A Perspective, (“Status of Women in Islam: A Perspective” Global Islamic Economics Magazine, Volume 43, 2015).

From SmartCILP and elsewhere:

• Andre P. Audette & Christopher L. Weaver, Faith in the Court: Religious Out-Groups and the Perceived Legitimacy of Judicial Decisions, [Abstract], 49 Law & Society Review 999-1022 (2015).
• Callum Brown, Thomas Green & Jane Mair, Religion in Scots Law: Report of an Audit at the University of Glasgow, (Feb. 2016).

Religious Accommodations for Saturday Presidential Caucuses Surveyed

The Campaign Legal Center last week published an interesting survey of the extent to which states that hold Saturday caucuses in Presidential elections provide accommodations for Jews, Seventh Day Adventists and other Saturday Sabbath observers. It concluded in part:

Some state parties make accommodations for those who are unable to caucus in person due to religious observance. However, absentee procedures in these states are limited, not well publicized or conducted through ad hoc mechanisms without clear standards—or even no standards at all.

However the survey pointed to practices of the Democratic Party in Washington state and Wyoming as excellent examples of accommodation that should be used as models.  They allow voters to submit surrogate affidavits if they are unable to caucus in person because of religious observance, military service, disability, illness or work schedule. [Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Young v. Muhammad, 2016 U.S. Dist. LEXIS 24711 (CD CA, Feb. 24, 2016), a California federal district court accepted most of a magistrate's recommendations (2015 U.S. Dist. LEXIS 176470, Dec. 22, 2015) and dismissed claims by an inmate who was removed from the Ramadan list and Muslim services for a period of time after he argued over religious theology with other inmates.

In Dawson v. Beard, 2016 U.S. Dist. LEXIS 24806 (ED CA, Feb. 26, 2016), a California federal magistrate judge dismissed an inmate's complaint that he was denied access to religious services on numerous occasions, and denied the right to fast.

In Brandon v. Schroyer, 2016 U.S. Dist. LEXIS 25003 (ND NY, Feb. 26, 2016), a New York federal magistrate judge rejected claims by a Muslim inmate that his free exercise rights were infringed when he was served meals containing pork ten times during a year, and found he had failed to exhaust administrative remedies as to denial of participation in Ramadan and access to congregate religious services.

In Hamilton v. Countant, 2016 U.S. Dist. LEXIS 25329 (SD NY, March 1, 2016), a New York federal district court dismissed a Rastafarian inmate's complaint that authorities seized religious items from the prison chapel, made alterations to the calendar on which the prison listed recognized religious holidays, and refused to provide the cornbread and grape juice required for him to take communion during the Rastafarian Fasika holiday.

In Jarrett v. Snyder, 2016 U.S. Dist. LEXIS 25277 (WD MI, Feb. 29, 2016), a Michigan federal district court permitted a Buddhist inmate to move ahead with his complaint that he was wrongfully removed from the vegetarian meal plan. The magistrate's opinion in the case is at 2016 U.S. Dist. LEXIS 25844, Jan. 11, 2016.

In Hoeck v. Miklich, 2016 U.S. Dist. LEXIS 25940 (D CO, March 1, 2016), a Colorado federal district court accepted a magistrate's recommendation (2015 U.S. Dist. LEXIS 176572, Oct. 26, 2015) and dismissed an inmate's claims that requiring him to change linens and move cells on the Sabbath, denying him an appropriate place to worship, and failing to classify Biblical Christianity as an independent religion violated RLUIPA. Plaintiff was however allowed to proceed on his First Amendment and state law challenges to these practices and his RLUIPA challenge to the grooming policy.

In Shaw v. Upton, 2016 U.S. Dist. LEXIS 26575 (SD GA, March 2, 2016), a Georgia federal magistrate judge recommended dismissing for failure to exhaust administrative remedies an inmate's claim that he was deliberately transferred to another facility to deny him access to a religious vegan diet.

In Tyler v. Lassiter, 2016 U.S. Dist. LEXIS 27161 (ED NC, March 3, 2016), a North Carolina federal district court held that a Jewish inmate's religious exercise was not substantially burdened when for disciplinary reasons he was placed on a vegetarian nutraloaf diet for one week instead of receiving his kosher meals.

In Johnson v. Lewis, 2016 U.S. Dist. LEXIS 27169 (WD NC, March 3, 2016), a North Carolina federal district court rejected a Hebrew Israelite inmate's complaints about the kosher diet he was receiving.

In Stiles v. Cook, 2016 U.S. Dist. LEXIS 27281 (WD NC, March 3, 2016), a North Carolina federal district court dismissed without prejudice for failure to exhaust administrative remedies a suit by a Native American inmate complaining that his "Indian prayer" materials were confiscated.

Court Enjoins Army From Requiring Special Testing of Sikh Officer

In Singh v. Carter, (D DC, March 3, 2016), the D.C. federal district court, invoking RFRA, granted a preliminary injunction protecting religious rights of an Army officer.  The Army had ordered a decorated Sikh Army captain to undergo costly specialized testing with his helmet and protective mask to assure that his religiously required head covering, beard and uncut hair will not interfere with the functions of the helmet and mask. The court said:

At first blush, the challenged order appears to reflect a reasonably thorough and even benevolent decision by the Army to fulfill its duty of protecting the health and safety of this particular Sikh officer.

Yet, that is far from the complete picture. Thousands of other soldiers are permitted to wear long hair and beards for medical or other reasons, without being subjected to such specialized and costly expert testing of their helmets and gas masks. Moreover, other Sikh soldiers have been permitted to maintain their articles of faith without such specialized testing.

See prior related posting.

Alabama Supreme Court Narrowly Avoids Confrontation With SCOTUS On Same-Sex Marriage

The Alabama Supreme Court yesterday in Ex parte State of Alabama ex rel. Alabama Policy Institute, (AL Sup. Ct., March 4, 2016), issued a per curiam order dismissing all pending motions and petitions in a suit that sought to require Alabama probate judges to refuse to issue marriage licenses to same-sex couples.  However the Order also generated six separate opinions from the 9 justices spanning 170 pages. Three of the opinions were particularly defiant of the U.S. Supreme Court's authority to hand down its Obergefell decision.

Chief Justice Roy Moore who has been in the lead in resisting same-sex marriage in Alabama (see prior posting) wrote the longest and most defiant opinion.  He actually submitted two opinions totaling 106 pages-- one an opinion on why he now decided not to recuse himself, even though he had done so at earlier stages of the case, and the second longer opinion attacking the U.S. Supreme Court's same-sex marriage decision. Explaining why he was willing to concur in the dismissal of the suit, Moore said:

Today this Court by order dismisses all pending motions and petitions and issues the certificate of judgment in this case. That action does not disturb the existing March orders in this case or the Court's holding therein that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional.

In perhaps his most radical attack, Moore said (at pp. 87-88):

The general principle of blind adherence to United States Supreme Court opinions as "the law of the land" is a dangerous fallacy that is inconsistent with the United States Constitution. Labeling such opinions as "the rule of law" confuses the law itself -- the Constitution -- with an opinion that purports to interpret that document.

Article VI, by its plain terms, binds "the judges in every state" to obedience to the Constitution itself, not to unconstitutional and illegitimate opinions of the United States Supreme Court. Just as the little boy in Hans Christian Andersen's tale pointed out that the Emperor, contrary to the assertions of his courtiers, was actually stark naked, so also the "judges in every state" are entitled to examine Supreme Court opinions to see if they are clothed in the majesty of the law of the Constitution itself rather than in naked propositions of men with no cognizable covering from that document.

Moore also emphasized religious liberty in his attack on the Obergefell majority, saying in part (at pg. 58):

The Obergefell majority, conspicuously overlooking the "essential and historic significance" of the connection between religious liberty and "supreme allegiance to the will of God," failed to appreciate the seriousness of imposing a new sexual-revolution mandate that requires Alabama public officials to disobey the will of God.

Justices Parker and Murdock also wrote defiant concurring opinions, while Justice Shaw's concurring opinion was highly critical of Chief Justice Moore's approach.

Justice Bolin's somewhat temperate concurrence is of particular interest. He said in part:

Although I have many times not agreed with a decision of the United States Supreme Court, or a decision of the Alabama Supreme Court for that matter, I have never criticized an opinion from any court in the manner in which I regrettably do so today. I am, however, able to count to five--and I know that five votes trump four; and, although that does not make it right, it does make it a majority opinion....

The foregoing being said, I am further compelled to concur specially to express my concern, which remains to be determined in future cases, that the Obergefell decision may have emasculated this State's entire statutory licensing scheme governing "marriage" to the point of rendering it incapable of being enforced prospectively.

Al.com reports at length on the decision.

Church of Cannabis Leader Sues Former Police Chief For Defamation

According to a report yesterday from WKYC News, in Indianapolis, Indiana, the founder of the First Church of Cannabis has filed a defamation against the city's former police chief Rick Hite.  At a police news conference shortly before the church's inaugural service, the police chief warned that anyone smoking marijuana at the church would be prosecuted.  Referring to the Church's leader Bill Levin, the police chief said: "As Jim Jones once did within our state, he led a group of people into a place of no return. We don't want that to happen again in this state."

8th Circuit: Westboro Church Challenge To Picketing Law Should Be Dismissed As Moot

In 2014, a Missouri federal district court rejected a vagueness challenge mounted by the Westboro Baptist Church to Missouri statutes that banned protest activities within three hundred feet of a funeral. (See prior posting.)  However, while a motion to amend the judgment was still pending, the Missouri legislature repealed the statutes at issue.  In Phelps-Roper v. Koster, (8th Cir., March 4, 2016), the 8th Circuit Court of Appeals held that when the statutes were repealed, the district court should have vacated its judgment and dismissed the case as moot. It also held that the district court had improperly computed the amount of attorneys' fees that should be awarded to plaintiff.

Supreme Court Preserves Abortion Status Quo In Louisiana While It Considers Similar Case

Th U.S. Supreme Court today issued an order preserving the status quo in Louisiana while the Court considers Whole Woman's Health, the abortion case from Texas that was argued this week. (See prior posting.) The 5th Circuit had stayed a district court's preliminary injunction against enforcement of a Louisiana law requiring abortion providers to have admitting privileges at a local hospital. The 5th Circuit's stay had the effect of allowing Louisiana's contested law to go into effect. Today in June Medical Services LLC v. Gee the U.S. Supreme Court issued the following order:

Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole, No. 14A1288 (June 29, 2015), the application to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on February 24, 2016, presented to Justice Thomas and by him referred to the Court, is granted and the Fifth Circuit’s stay of the district court’s injunction is vacated.

Justice Thomas would deny the application.

This order was in response to June Medical's Emergency Application to Vacate Stay of Preliminary Injunction Pending Appeal (full text).

Georgia's Republican Governor Opposes "Religious Freedom" Bill on Biblical Grounds

As a number of state legislatures consider enacting religious freedom bills to protect opponents of same-sex marriage, one of the most contentious of the bills has been Georgia's HB 757 which among other things would bar government from taking any adverse action against any person or faith-based organization based wholly or in part on the person or organization believing, speaking or acting in accordance with their belief that marriage should be between a man and a woman and sexual relations should be reserved to such a union.  The Atlanta Journal Constitution reported yesterday that Georgia's Republican Governor Nathan Deal took a surprisingly strong stand against the legislation:

Amid a growing outcry from powerful corporations over Georgia’s “religious liberty” proposal, Gov. Nathan Deal issued his strongest warning yet to lawmakers who are debating controversial legislation seen as a conservative answer to the Supreme Court’s same-sex marriage ruling.

In stark terms, the Republican said he would reject any measure that “allows discrimination in our state in order to protect people of faith,” and urged religious conservatives not to feel threatened by the ruling....

Standing in the lobby of a government building after a ribbon-cutting ceremony, he laid out a lengthy condemnation of the measure from a biblical perspective, first noting that he is a Southern Baptist who took religion courses at Mercer University.

“What the New Testament teaches us is that Jesus reached out to those who were considered the outcasts, the ones that did not conform to the religious societies’ view of the world … We do not have a belief in my way of looking at religion that says we have to discriminate against anybody. If you were to apply those standards to the teaching of Jesus, I don’t think they fit.”

India Effectively Denies Visas To USCIRF Delegation

The U.S. Commission on International Religious Freedom said in a press release yesterday that the government of India has effectively denied visas to a USCIRF delegation that was to visit India to assess religious freedom conditions in that country. India failed to issue requested visas in time for the delegation's scheduled departure today.

Australian Report On Laws That Encroach On Traditional Freedoms

On Wednesday, the Australian Law Reform Commission released  its report titled Traditional Rights and Freedoms—Encroachments by Commonwealth Laws. Chapter 5 of the report deals with Australian laws that may be seen as interfering with freedom of religion, including anti-discrimination laws. Law and Religion Australia blog has more on the report.

2nd Circuit: MTA Rule Change Makes Challenge To Rejection of Anti-Muslim Ad Moot

In American Freedom Defense Initiative v. Metropolitan Transit Authority, (2d Cir., March 3, 2016), the U.S. 2nd Circuit Court of Appeals upheld the dismissal on mootness grounds of a suit against the New York Metropolitan Transit Authority challenging the MTA's refusal to accept an anti-Islamic ad that a pro-Israel group wished to run on the back of MTA buses.  The ad which portrayed a menacing‐looking man with his face mostly covered by a head scarf included the quote:  "Killing Jews is Worship that draws us close to Allah." Then beneath the quote, the ad stated:  "That’s His Jihad.  What’s yours?"  While the case was pending, the MTA changed its property from a designated public forum
to a limited public forum and barred any ad that is "political in nature." (See prior related posting.) New York Post reports on the decision.

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.