Lower Courts Applying Tougher RLUIPA Standards In Prisoner Cases

Last year's Supreme Court decision in Holt v. Hobbs on prisoner rights (see prior posting) is slowly beginning to impact otherwise routine prisoner claims in lower courts.  Muhammad v. Wheeler, (ED AR, March 22, 2016) involves a rather typical RLUIPA challenge by a Muslim inmate to the availability of a Halal diet in his Arkansas prison.  A vegetarian diet that complies with Halal requirements was available, but a Halal compliant diet containing meat was not. The federal magistrate judge who first heard the case recommended rejecting the claim on the ground that plaintiff had not shown a substantial burden on his religious exercise. (2016 U.S. Dist. LEXIS 36816, Jan. 19, 2016). However the district court rejected this portion of the recommendation.  In refusing to grant summary judgment to either side, the court said in part:

It is certainly conceivable that providing halal meat to Mr. Muhammad would increase security concerns and require considerable resources to the extent that deciding not to provide it at all furthers a compelling government interest. However, ... [defendants] fail to make properly that argument..... For example, in support of their cost argument, they claim that changing their policy would incur an increase of “over $9,600 for one serving of meat” and that “depending on which meal plan an inmate is on, meat is generally served three times per day”... They calculate this substantial figure by multiplying the difference in cost between halal meat and regular meat by 16,020, the total number of inmates housed by the ADC. This is precisely the type of generalized argument that is not allowed under the RLUIPA. The proper focused inquiry under the RLUIPA is whether denying halal meat to Mr. Muhammad, not all ADC inmates, furthers a compelling government interest.

Even if ... [defendants] successfully demonstrated that completely denying Mr. Muhammad access to halal meat furthers a compelling government interest, they fail to show how their no-halal-meat policy is the least restrictive means of serving that interest....  For example, nothing in the record indicates how often halal meat would need to be served to satisfy Mr. Muhammad’s religious needs. Does Mr. Muhammad require three servings of meat a day or one serving a year? They also fail to respond to Mr. Muhammad’s proposed compromise – a pescatarian meal plan that combines the three halal fish items already served in the common fare plan with the vegetarian plan.... It is unclear to the Court whether this plan fits within Mr. Muhammad’s own beliefs regarding a halal diet, but if he claims that offering a pescatarian meal plan would no longer place a substantial burden upon his religious exercise, ... [defendants] must show how refusing to provide such a plan furthers a compelling government interest and is the least restrictive means of doing so. 

White House Issues Easter Greetings and Plans For Annual Easter Egg Roll

On Friday, President Obama extended Good Friday and Easter greetings, saying:

Michelle and I join our fellow Christians in observing Good Friday and celebrating Easter this weekend. This is a time to remember the sacrifices made for us and hold all who suffer close to our hearts. Yet it is also a time to rejoice, give thanks for the Resurrection, and unite with Christians around the world in proclaiming, "Christ has risen; He has risen indeed." We wish all who celebrate a blessed and joyful Easter.

The White House on Friday also announced (full text) the full program, activities, and talent line-up for the 2016 White House Easter Egg Roll that will be held on the South Lawn of the White House on Monday. Over 35,000 tickets have been issued for the event.

UN Report On Religious Freedom In Denmark Released

On March 22, the United Nations Special Rapporteur on Freedom of Religion or Belief filed his Preliminary Findings (full text) on his visit to Denmark to review the status of religious freedom there.  The Evangelical Lutheran church is the established church of the country.  Some 160 other groups enjoy either "recognition" or "acknowledgement."  The lengthy report observes in part:

The existing system is obviously non-egalitarian. While virtually no one questions the spirit of freedom that prevails in Denmark, including in the area of religion or belief, the principle of equality certainly does not govern the treatment of diverse religious communities. This contrasts starkly with the everyday culture in Denmark which indeed is markedly egalitarian....

[T]he understanding of religion in Denmark very much focuses on the dimension of the person’s inner conviction. This seems to echo a Christian and more specifically Lutheran understanding of redemption through faith alone (“sola fide”). As a result, aspects of ritual or ceremonial religious practice are relegated into a mere external sphere, which allegedly has less relevance and is less worthy of recognition. From the perspective of non-Christian religions, this can become worrisome. Two issues have arisen in various talks over the last few days, namely, the ban on ritual slaughter without prior stunning of the animal, enacted in February 2014, and public demands to outlaw religiously motivated circumcision of male infants.

[Thanks to Niels Valdemar Vinding via Religionlaw for the lead.] 

Blasphemy Prosecutions In Egypt On The Rise

AP yesterday reported that since 2011, the number of blasphemy prosecutions in Egypt have risen dramatically. According to the report:

Two years ago, the military ousted the Muslim Brotherhood from power, and since then the government has been waging a harsh crackdown on Islamists.

Yet in the past three years, prosecutions on charges of insulting Islam have risen dramatically. From three such cases in 2011, there were 21 cases in the courts in 2015, around half targeting Christians.... Nine of the 2015 cases led to convictions and prison sentences, while the rest are still in the courts.

Part of the rise is connected to the spread of social media.... Many of the cases have originated in comments or videos posted on the Internet.... But also, prosecutors and judges have aggressively pursued the cases, aiming to show that the state is still "protecting Islam" even as it cracks down on Islamists.

6th Circuit: Names of Applicants For Non-Profit Tax Status Are Not Confidential

In a case which is highly charged politically, the U.S. 6th Circuit Court of Appeals this week held that the names, addresses, and taxpayer-identification numbers of applicants for tax-exempt status are not confidential information protected by 26 USC Sec. 6103.  The decision, United States v. NorCal Tea Party Patriots, (6th Cir., March 22, 2016), grew out of discovery requests in a lawsuit alleging that the IRS used political criteria to select applications from so-called tea party groups for special scrutiny. Washington Times reported on the decision.

North Carolina Regulates Transgender Bathroom Use and Pre-Empts Local Anti-Discrimination Laws

In a hurriedly-called special session, the North Carolina General Assembly on Wednesday passed House Bill 2 (full text) regulating the use by transgender individuals of bathrooms and changing facilities in public schools and government offices.  The new law also pre-empts local employment and public accommodation anti-discrimination laws. Governor Pat McCrory signed the bill Wednesday night.

The new law requires any multiple occupancy bathroom or changing facility to be designated for and used only by individuals based on the biological sex that is stated on their birth certificate. However special accommodations, such as single occupancy bathrooms, may be made.  The law also declares that

the regulation of discriminatory practices in places of public accommodation is properly an issue of general, statewide concern, such that this Article and other applicable provisions of the General Statutes supersede and preempt any ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement pertaining to the regulation of discriminatory practices in places of public accommodation.

The law includes a similar declaration regarding local employment discrimination ordinances, but permits local government regulations governing their own employees that are not in conflict with state law.

As previously reported, the hurried passage of the law was designed to prevent a recently enacted Charlotte non-discrimination ordinance from going into effect on April 1. In his signing statement (full text), Gov. McCrory said in part:

The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte. This radical breach of trust and security under the false argument of equal access not only impacts the citizens of Charlotte but people who come to Charlotte to work, visit or play. This new government regulation defies common sense and basic community norms by allowing, for example, a man to use a woman's bathroom, shower or locker room.

NBC News reports that many of the state's largest employers are opposed to the new law.

Malaysian Civil Court Orders Recognition of Conversion Back To Christianity

In what the Borneo Post describes as a landmark case, a High Court judge in the Malaysian state of Sarawak has ordered the National Religion Department (NRD) to change a man's registration from Muslim to Christian and also to recognize his name change. The Star describes the decision in more detail. The man had been born into a Christian family, but the family converted to Islam when he was 8.  The court said in part:

His conversion to the Muslim faith was not of his own volition but by virtue of his parents’ conversion when he was a minor.

He is not challenging the validity of his conversion as a minor. But having become a major, he is free to exercise his right of freedom to religion and he chose Christianity.

The NRD had insisted on a letter of release from a Syariah Court, but the High Court concluded that the man's constitutionally protected religious freedom rights entitled him to obtain relief from a civil court.

In N.J., Registered Sex Offender Not Barred From Mentoring Youth In Church Ministry

In State of New Jersey v. S.B., (NJ App., March 22, 2016), a New Jersey appellate court held that  a youth ministry associated with a church, where a registered sex offender is a congregant volunteer, is not a "youth serving organization" under New Jersey's sex offender statute.  In the case, defendant had notified church pastors and elders of his prior sexual assault convictions, as required by state law.  The church nevertheless allowed defendant to supervise and mentor 12 to 17 year-olds at scheduled events of the No Limits Youth Ministry, such as outings, movie nights, concerts, youth group meetings, and day camp.  In affirming the dismissal of an indictment of defendant for participating in a "youth serving organization", the court concluded that the legislature deliberately excluded religious organizations from the definition of organizations in which sex offenders are barred.

Belgium's Constitutional Court Invalidates Required Religious Education Courses

Flanders Today reported earlier this month that Belgium's Constitutional Court has struck down the requirement that all students in elementary or secondary school take either a religious education course in one of the six recognized religions, or take a course in ethics.  In a religious freedom challenge to the requirement, the Court held that parents can now opt out of the requirement for their children, without being required to explain the reasons for their decision. [Thanks to Paul de Mello for the lead.]

U.N. Tribunal Convicts Former Serb Leader of Genocide

The United Nations Criminal Tribunal for the Former Yugoslavia in a press release yesterday announced the highest level conviction yet in the ethnic cleansing of Bosnian Muslims and Bosnian Croats from territory claimed by Bosnian Serbs in the 1990's:

Trial Chamber III of the International Criminal Tribunal for the former Yugoslavia (ICTY) today convicted Radovan Karadžić, former President of Republika Srpska (RS) and Supreme Commander of its armed forces, of genocide, crimes against humanity and violations of the laws or customs of war committed by Serb forces during the armed conflict in Bosnia and Herzegovina (BiH), from 1992 until 1995. He was sentenced to 40 years’ imprisonment.

Karadžić was convicted of genocide in the area of Srebrenica in 1995, of persecution, extermination, murder, deportation, inhumane acts (forcible transfer), terror, unlawful attacks on civilians and hostage-taking. He was acquitted of the charge of genocide in other municipalities in BiH in 1992.

The Office of the Prosecutor issued a statement welcoming the convictions. New York Times reports on the conviction.

University's Limits on Religious Speech Create 1st Amendment Concerns

In Faulkner v. University of Cincinnati, (SD OH, March 23, 2016), an Ohio federal district court refused to dismiss a suit against the University of Cincinnati by one of its former lower level administrators, Mark Faulkner, who was sent a "corrective action" letter from the University's Office of Equal Opportunity and Access.  The letter was issued after he made references to Jesus and Biblical teachings in a lecture on "servant leadership" that he was asked to deliver at a leadership training course.  In the letter, Faulkner was told that he  "should refrain from using biblical quotations during presentations and work related interactions." The court said in part:

The University’s asserted interest in avoiding an employee’s discomfort at hearing biblical references (or in another context, hearing references to Buddhist teachings or the Quran, or the principles of atheism) simply and plainly do not outweigh Faulkner’s interests in free speech and in the free exercise of his religious principles.

The court also refused to dismiss a vagueness and overbreadth challenge to the University's Discriminatory Harassment Policy.

2nd Circuit Affirms Win By Rockland County Villages Charged With Anti-Hasidic Discrimination

In the long battle between Hasidic residents and others in parts of Rockland County, New York, the Second Circuit has affirmed the district court's dismissal (see prior posting) of a complaint by Mosdos Chofetz Chaim, a Hasidic religious educational institution, that local villages discriminated against Hasidic Jews in actions opposing the building of a 60-unit adult student housing development.  In Bernstein v. Village of Wesley Hills, (2d Cir., March 23, 2016), the U.S. Second Circuit Court of Appeals concluded that plaintiffs' had not produced sufficient evidence for a jury to find disparate treatment or discriminatory animus.  Instead, it said the villages had a genuine concern about environmental impact of the development. Lower Hudson Journal News reports on the decision.

"Unfit" Parent Loses Right To Assert Religious Objection To Immunization of Her Children

In In re Deng, (MI App, March 22, 2016), a Michigan state appeals court held that a court can order immunizations for children placed in foster care after the children's parents have been found unfit despite the mother's religious objections to vaccination of her children. The court said in part:

We recognize that, were respondent a fit parent entitled to the control and custody of her children, MCL 333.9215(2) would undoubtedly allow her to forego the immunization of her children otherwise required by the Public Health Code on the grounds of a religious objection. However, this provision is inapplicable on the present facts for the simple reason that the children are not being immunized as a result of provisions in the Public Health Code.... [R]ather, ... the court exercised its broad authority to enter dispositional orders for the welfare of a child under its jurisdiction....

MLive reports on the decision.

Suit Charges NY Community College With Anti-Semitic Hiring Practices

A lawsuit filed last month in federal district court in New York charges the Brooklyn-based Kingsborough Community College and Stuart Suss (who served variously as its Provost, Vice President for Academic Affairs and Interim President) with discrimination against faculty and faculty candidates whose dress or appearance was obviously Jewish (labeled in the complaint as "Outward Jews").  The complaint (full text) in Lax v. City University of New York, (ED NY, filed 2/16/2016) alleges that in 2000 Jews comprised a large percentage of department chairs and of the college-wide Personnel & Budget Committee, but that since then Suss has engaged in hiring and personnel practices designed to reduce or eliminate the number of outward Jews on the faculty and on the P&B Committee in violation of Title VII and New York state and city anti-discrimination laws. Yesterday's Algemeiner has more on the lawsuit.

Lawsuit Filed Against Mystic Rabbi By Woman Who Paid $214,000 For Matrimony and Torahs

The New York Post reported  yesterday on a lawsuit filed against Rabbi Chaim Sharabi, a controversial mystic in the Orthodox Borough Park community, by a woman who claims she paid Sharabi $214,000 after he promised to find her a husband and to purchase three Torah scrolls in her name to be placed in synagogues in Brooklyn and in Israel.  Plaintiff Cecilia Lifschitz says that Sharai never performed on his promises.  Sharabi says he did match Lifschitz with a man, but that things did not work out between them, and that he did purchase the Torah scrolls.

RLUIPA Challenge To Fire Safety Rules By Faith-Based Organization Fails

Affordable Recovery Housing v. City of Blue Island, (ED IL, March 23, 2016), involves a challenge to the action of officials of a Chicago suburb who evicted residents of a recovery home that used faith based methods to treat drug and alcohol abuse.  The city acted because the facility failed to comply with safety regulations requiring fire sprinklers in buildings that house overnight guests. In the case, an Illinois federal district court held that the city's action did not violate various provisions of the federal Religious Land Use and Institutionalized Persons Act nor similar provisions of  the Illinois Religious Freedom Restoration Act, saying in part:

Plaintiff argues that Blue Island’s eviction of its 73 residents substantially burdened its ability to exercise its religion by effectively rendering religious exercise impracticable. However, the City’s eviction was pursuant to its fire safety code, not its zoning ordinance. Because Blue Island was not “impos[ing] or implement[ing] a land use regulation”..., this action falls outside of the regulatory scope of RLUIPA and IRFRA.

The court also rejected plaintiff's free exercise claim, saying that any burden is merely "the incidental effect of a neutral, generally applicable, and otherwise valid regulation...."

Transcript of Arguments In Zubik Case Is Now Available

The full transcript of today's oral arguments in Zubik v. Burwell, the contraceptive coverage mandate accommodation case, is now available. Lyle Denniston at SCOTUSblog has an interesting analysis of the arguments.

Supreme Court Will Hear Oral Arguments Today In Contraceptive Coverage Mandate Accommodation Challenge

This morning the U.S. Supreme Court hears oral arguments in Zubik v. Burwell and six other cases consolidated for argument with it. (Hearing List.)  The cases all involve challenges to the Obama Administration's Affordable Care Act accommodation for religious non-profits.  Religious non-profits that object to including coverage for contraceptive services in their employee health plans may opt out in favor of coverage that is furnished instead directly by the organization's insurer or third-party administrator. Although there is a split among circuits on the issue, all of the cases being argued today involve appeals court decisions upholding the mandate.  The cases raise fundamental issues of interpretation and application of the Religious Freedom Restoration Act.

The Court has allotted 90 minutes for oral argument of the consolidated cases. Argument time for the religious non-profits will be divided between former Solicitor General Paul D. Clement and Jones Day partner Noel J. Francisco. Arguing for the government will be U.S. Solicitor General Donald B. Verrilli, Jr.  The SCOTUSblog case page furnishes links to the dozens of briefs from parties and amici that have been filed, as well as links to extensive commentary on the cases. A transcript of the oral arguments should be available later in the day from the Supreme Court's website.

While the arguments are taking place, outside the Supreme Court building a rally is planned by Little Sisters of the Poor, the non-profit that has been the face of the challengers on social media and in an op-ed last week in the New York Times. Planners say that hundreds of religious women, college students, and clergy will participate.  An op-ed in Sunday's Washington Post by Prof. Douglas Laycock counters the arguments by Little Sisters.

With the recent death of Justice Scalia, it is possible that the Court could split 4-4 in the case, which would result in affirmance of the Circuit Court decisions.  The first such 4-4 affirmance was published today in a case involving interpretation of the Equal Credit Opportunity Act.

Chabad Center Sues New Jersey Town Claiming Discrimination

A lawsuit was filed in a New Jersey federal district court yesterday by the Chabad Jewish Center of Toms River, New Jersey and Rabbi Moshe Gourarie. The suit claims that the town violated plaintiffs' free exercise and equal protection rights by refusing permission for the Chabad Center, which usually attracts fewer than 15 people, to operate out of a large home and garage on 8 acres on Church Road purchased by Gourarie in 2011. As reported by NJ Advance Media:

The town changed the zoning of that section of Church Road in 2009 to ban churches from operating there and since then, the township has engaged in a systematic practice of discrimination against ultra-Orthodox Jews and are seeking to have them contained in neighboring Lakewood where there is a large population of Orthodox Jews, the complaint contends....

In claiming discrimination, the suit notes that the zone permits activities at the adjacent American Legion, a church, Ocean County College, the county fire academy and other sites that are not residential uses.

(See prior related posting.) [Thanks to Steven H. Sholk for the lead.]

North Carolina Legislature Aims To Repeal City's Transgender Rights Ordinance

In February, the Charlotte, North Carolina City Council approved changes to the city's Non-Discrimination Ordinance.  According to a City Council press release issued in February, the changes "add marital and familial status, sexual orientation, gender expression and gender identity to the list of protected characteristics in the existing Non-Discrimination Ordinances." As reported then by Al.com, North Carolina Gov. Pat McCrory said he would fight the Ordinance that is scheduled to go into effect on April 1. Now the legislature is apparently poised to implement that fight in a special session of the legislature called for today.  Yesterday, Lt. Governor Dan Forest issued a press release announcing:

Senate and House leaders announced Monday they have obtained the necessary three-fifths majority in both chambers and will convene a special session on Wednesday to address a radical Charlotte City Council ordinance allowing men to share public bathrooms and locker rooms with young girls and women.

The announcement from the legislative leaders said: "We aim to repeal this ordinance before it goes into effect to provide for the privacy and protection of the women and children of our state." Human Rights Campaign and Equality North Carolina issued a release calling the special session a costly and outrageous step.

In Utah, "In God We Trust" License Plate Now Costs Less

As reported by the Salt Lake Tribune, Utah Governor Gary Herbert on Monday signed into law H.B. 127 (full text), making the state's "In God We Trust" license plates available for the standard licence plate fee. The law removes the prior $5 specialty plate surcharge for this plate design. Three plate designs are now available for the standard fee.  In signing the bill, Herbert referred to Utah's creation by people seeking refuge from religious persecution. As reported on the Governor's blog, he added: "Our nation’s motto bears extra importance at a time when free worship of God and religious rights are being challenged."

Diocese of Gallup Files Chapter 11 Reorganization Plan

As previously reported, in late 2013 the Catholic Diocese of Gallup, which encompasses parts of New Mexico and Arizona, filed for Chapter 11 bankruptcy reorganization in order to deal with mounting sex abuse claims against the diocese.  Yesterday the Diocese finally filed its proposed Plan of Reorganization. (Full text of Disclosure Statement describing the Plan.)  The Disclosure Statement begins by admitting:

It is impossible to overstate the tragedy of the Abuse that was inflicted on the children and teenagers of the Diocese. Such Abuse was perpetrated by priests or others purporting to do the missionary work of the Roman Catholic Church. Instead of fulfilling their missions, such perpetrators inflicted harm and suffering on the children and teenagers of the Diocese. Much of this harm was inflicted at a time when the Debtors did not have insurance that covered such claims, or had insurance with an insurer that is now insolvent. 

The Plan, which must receive judicial approval and then be voted on by creditors, ultimately was the product of court-ordered mediation. As reported by the Wall Street Journal:

The plan relies on at least $22 million to repay victims as well as lawyers and other creditors. Of that amount, $11.55 million would come from a settlement in which diocesan insurer Catholic Mutual will buy back its policies. The diocese itself is slated to contribute just over $3 million to the plan....

Other insurance carriers, the Diocese of Phoenix, some of the Diocese of Gallup’s parishes, two Franciscan religious orders and two foundations that support the diocese will also contribute to the restructuring plan....

Supreme Court Denies Review In Oklahoma License Plate Controversy

Yesterday the U.S. Supreme Court denied certorari in Cressman v. Thompson,  (Docket No. 15-709, cert. denied 3/21/2016) (Order List). In the case, the 10th Circuit rejected a compelled speech challenge to Oklahoma's vehicle license plates whose design show a Native American shooting an arrow towards the sky. Plaintiff claimed that the depiction is based on a Native American legend, and in violation of his Christian beliefs the depiction teaches there are multiple gods and that the arrow is an intermediary for prayer. (See prior posting.) AP reports on the Court's denial of review. [Thanks to Tom Rutledge for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Frederick Mark Gedicks, The Religious-Question Doctrine: Free-Exercise Right or Anti-Establishment Immunity?, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2016/10, March 2016).
• Nathan B. Oman, Doux Commerce, Religion, and The Limits of Antidiscrimination Law, (Indiana Law Journal, Forthcoming).
• Shannon Gilreath & Arley Ward, Same-Sex Marriage, Religious Accommodation, and the Race Analogy, (Wake Forest Univ. Legal Studies Paper March 2016).
• Stuart Chinn, Finding Common Ground Across Race and Religion: Judicial Conceptions of Political Community in Public Schools, (Utah Law Review, Forthcoming).
• Richard Moon, The Accreditation of Trinity Western University's Law Program, (Law Matters (CBA - Alberta), Summer 2015).
• Jeremiah A. Ho, Once We're Done Honeymooning: Obergefell v. Hodges, Incrementalism, and Advances for Sexual Orientation Anti-Discrimination, (Kentucky Law Journal, Vol. 104, 2016).
• Anshul Kumar Pandey & Nilotpal Bansal, Mutilating the Past -- The Islamic State and the Last Song of History, (Februrary 19, 2016).

From SmartCILP:

• Henry L.Chambers, Jr., Telescoping and Collectivizing Religious Free Exercise Rights, 75 Maryland Law Review 392-414 (2015).
• John W. Compton, Evangelical Reform and the Paradoxical Origins of the Right to Privacy, 75 Maryland Law Review 362-382 (2015).
• Hon. Kermit V. Lipez, George Washington, Elena Kagan, and the Town of Greece, New York: The First Amendment and Religious Minorities, [Abstract], 16 Journal of Appellate Practice and Process 1-14 (2015).
• Loren F. Selznick, Running Mom and Pop Businesses By the Good Book: The Scope of Religious Rights of Business Owners, 78 Albany Law Review 1353-1392 (2014/2015).
• Symposium: Victoria Saker Woeste's Henry Ford's War on Jews and the Legal Battle Against Hate Speech. Introduction by Donna C. Schuele; essays by Aviam Soifer, Carroll Seron, Clyde Spillenger and Victoria Saker Woeste. 40 Law & Social Inquiry 1032-1079 (2015).

Recent Books:

• Daniel O. Conkle. Religion, Law, and the Constitution (Concepts and Insights Series), (Foundation Press, March 2016).
• Shanruo Ning Zhang, Confucianism in Contemporary Chinese Politics: An Actionable Account of Authoritarian Political Culture, (Lexington Books, March 2016).

Israel's Attorney General Says Bill Restoring Orthodox Control of Mikvehs Is Invalid

As previously reported, last month a 3-judge panel of Israel's High Court of Justice 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. (See prior posting.)  In response, a bill was introduced into the Knesset (Parliament) by a member of the Orthodox United Torah Judaism Party to reverse the Court's ruling by requiring mikvehs to be run in accordance with Jewish law as interpreted by the ultra-Orthodox Chief Rabbinate.  The bill passed its preliminary reading in the Knesset last week.  Haaretz reports that yesterday Israel's Attorney General Avichai Mendelblit submitted a legal opinion to the government concluding that the bill is invalid because it violates the rights to freedom of religion, human dignity and equality.

Recent Prisoner Free Exercise Cases

In Helling v. Johnson, 2016 U.S. Dist. LEXIS 30874 (ED WI, March 9, 2016), a Wisconsin federal district court allowed an inmate to move ahead with his complaint that he was not permitted to read his Quran in his jail cell, but had to go to a dirty holding cell to do so, while other inmates could read their Bibles in their own cells.

In Bishop v. Jesson, 2016 U.S. Dist. LEXIS 30395 (D MN, March 9, 2016), a Minnesota federal district court accepted a magistrate's recommendations (2016 U.S. Dist. LEXIS 31142, Feb. 12, 2016) and permitted a detainee in the Minnesota Sex Offender Program to move ahead on a number of his state and federal claims objecting to the quality and quantity of food in the kosher meal program, as well as complaints about food meeting kosher standards.

In Berisha v. Farrell, 2016 U.S. Dist. LEXIS 31607 (ND NY, March 8, 2016), a New York federal magistrate judge concluded that challenges by a corrections officer to a Muslim inmate's right to wear a beard did not impose a substantial burden on the inmate's ability to practice his religion.

In Williams v. Stovall, 2016 U.S. Dist. LEXIS 31717 (WD AR, March 11, 2016), an Arkansas federal magistrate judge dismissed a Muslim inmate's complaint that he was denied a pork-free diet.

In Rodriguez v. Favro, 2016 U.S. Dist. LEXIS 31758 (ND NY, March 9, 2016), a New York federal magistrate judge recommended dismissing the complaint of a Rastafarian inmate that he was permitted to wear his crown (a religious head covering) only in his cell and housing unit, and not outside of these areas.

In Peele v. Klemm, 2016 U.S. Dist. LEXIS 32333 (WD PA, March 14, 2016), a Pennsylvania federal magistrate judge dismissed an inmate's rambling, incoherent complaint regarding restrictions on Muslim inmates' right to attend the two feasts of the Ramadan holiday.

In Green v. Hawkinberry, 2016 U.S. Dist. LEXIS 32615 (WD PA, March 14, 2016), a Pennsylvania federal magistrate judge dismissed a suit by an inmate who had filed a request to change religion who complained about the three years it took until he was able to qualify for the change and receive kosher meals.

In Robinson v. Cate, 2016 U.S. Dist. LEXIS 32699 (ED CA, March 11, 2016), a case in which a Muslim inmate is seeking a Halal diet, a California federal magistrate judge recommended denying plaintiff's request for a preliminary injunction granting him a kosher diet as a stopgap measure while his suit is pending.

In Carter v. Tegels, 2016 U.S. Dist. LEXIS 33382 (WD WI, March 15, 2016), a Wisconsin federal district court dismissed Muslim inmates' challenges to a rule barring inmate-led religious services (which resulted in a failure to hold Jumu'ah services in April of 2012), and challenges to the failure to hire a Muslim chaplain.

A California federal district court (ND Cal., March 14 and 17, 2016) issued essentially identical opinions in 6 separate cases allowing inmates at San Quentin to move ahead with suits challenging correctional officers that limited Muslim inmates to one congregational prayer service per day, and barred groups of 5 or more from meeting for prayer. The cases are Saif'ullah v. Albritton, 2016 U.S. Dist. LEXIS 33424; Fardan v. Albritton, 2016 U.S. Dist. LEXIS 35542; Karafili v. Albritton, 2016 U.S. Dist. LEXIS 35559; Abdullah v. Albritton, 2016 U.S. Dist. LEXIS 35543; Shabazz v. Albritton, 2016 U.S. Dist. LEXIS 35540; Aziz v. Albritton, 2016 U.S. Dist. LEXIS 35555. UPDATE: Two more of these opinions were issued on March 24 and 25: Mitchell v. Albritton, 2016 U.S. Dist. LEXIS 39666 and King v. Albritton, 2016 U.S. Dist. LEXIS 39631.

7th Circuit: Hospital System's Retirement Plan Is Not An Exempt "Church Plan"

In Stapleton v. Advocate Health Care Network, (7th Cir., March 17, 2016), the U.S. 7th Circuit Court of Appeals joined the 3rd Circuit (see prior posting) in holding that a retirement plan maintained by a church-affiliated hospital system does not qualify for the "church plan" exemption in ERISA if the plan was not initially established by a church.  Interpreting the language of the ERISA exemption, the court said in part:

Church-affiliated organization employees may participate in the same retirement plans as church employees with no further distinctions. Moreover, churches may have outside organizations maintain their plans. The only requirement is that a church must establish the plan in the first place.

Judge Kane filed a concurring opinion emphasizing that the court's interpretation "does not compel church-affiliated organizations to operate in a way that violates their religious beliefs."  This is one of a series of cases filed around the country challenging religiously-affiliated health care systems' reliance on the church plan exemption for their retirement plans.  In this case, plaintiffs charged that the plans failed to meet the vesting, reporting and funding requirements of ERISA. BNA Pension & Benefits Daily reports on the decision and its implications.

Georgia Legislature Passes Wide-Ranging Religious Freedom Bill

As reported by CNN, the Georgia General Assembly yesterday passed HB 757 (full text), the Free Exercise Protection Act. It contains wide-ranging religious freedom protections:

1. The bill protects clergy from any civil suit or tax penalty for performing or refusing to perform any marriage or other religious rite. It also provides that any individual is free to attend or not attend any marriage ceremony or other religious rite.
   
   
2. The bill prohibits local governments from requiring any business to operate on Saturday or Sunday.
   
   
3. The bill provides that churches and religiously affiliated organizations are not required to rent space to another person for an event that is objectionable to the religious organization. Also such organizations are not required to provide social, educational or charitable services that violate the organization's sincerely held religious beliefs.
   
   
4. The bill provides that no faith-based organization is required to hire or retain as an employee any person whose religious beliefs or practices (or lack of either) are not in accord with the organization's sincerely held religious belief.
   
   
5. The bill enacts RFRA language. The government may not substantially burden a person's religious exercise, except in furtherance of a compelling governmental interest that is furthered by the least restrictive means.  This provision, however is limited by several exceptions, including a provision that the RFRA language shall not be construed to "permit invidious discrimination on any grounds prohibited by federal or state law." It should be noted that discrimination on the basis of sexual orientation or gender identity are not prohibited by Georgia law, or by federal law as traditionally interpreted.
   
   
6. The bill waives sovereign immunity for suits seeking injunctive or declaratory relief or reasonable attorney's fees in various suits against the state under the statute.

Gov. Nathan Deal has said that he will veto any bill that allows discrimination in order to protect people of faith. (See prior posting.)  It is unclear whether the non-discrimination language included in HB 757 is sufficient to overcome the governor's objections.

Indian Court Says Sikh Witness Cannot Be Barred From Wearing Kirpan

In Singh v. State of Haryana, (High Ct. Punjab and Haryana, March 16, 2016), a trial court in the Indian state of Punjab held that Art. 25 of India's Constitution which protects freedom of conscience and religion invalidates a court's order barring a Sikh witness from wearing a kirpan while testfying.  The opinion contains lengthy discussion of the kirpan and of the freedom of religion provision in India's constitution. LiveLaw reports on the decision.

4th Circuit Upholds North Carolina's "Choose Life" License Plates

In ACLU of  North Carolina v. Tennyson, (4th Cir., March 10, 2016), the U.S. 4th Circuit Court of Appeals in a 2-1 decision upheld North Carolina's decision to issue specialty "Choose Life" license plates even though the state refused to also issue a pro-choice specialty plate.  The case was on remand from the U.S. Supreme Court with instructions to to the appeals court to reconsider the case in light of the Supreme Court's 2015 decision in Walker v. Texas Division, Sons of Confederate Veterans, Inc.  In reconsidering the case, the 4th Circuit's majority opinion said in part:

The specialty license plate program at issue here is substantively indistinguishable from that in Walker, and the Walker Court’s analysis is dispositive of the issues in this case. Accordingly, we now conclude that specialty license plates issued under North Carolina’s program amount to government speech and that North Carolina is therefore free to reject license plate designs that convey messages with which it disagrees.

Judge Wynn dissenting said in part:

I refuse to believe that with Walker, the Supreme Court meant to force us to choose that the mule in this case is either a horse or a donkey. Instead, Walker’s holding, when narrowly understood, does not lead to the conclusion that the North Carolina specialty plate speech at issue here constitutes pure government speech. On the contrary ..., it presents mixed speech—with private speech components that prohibit viewpoint discrimination.

U.S. Law Week reports on the decision.

False Online Prayer Website Closed Down

This week Washington state's attorney general Bob Ferguson announced that his office had reached an agreement with Christian Prayer Center, a website that offered online viewers prayers in English or Spanish for amounts ranging from $9 to $35.  According to the AG office's release, the website featured non-existent clergy and false consumer testimonials:

The websites contained fictitious testimonials from consumers using stock photos that claimed they successfully prayed to avoid home foreclosure, deliver a healthy baby, win the lottery, obtain negative results on an HIV test and put cancer into remission....

Between 2011 and 2015, CPC collected more than $7 million from 125,000 consumers nationwide. Some of these consumers were charged repeatedly, resulting in a total of over 400,000 transactions.

The settlement requires the website operators, among other things, to end unfair and deceptive business practices, return funds to consumers and pay attorneys' fees of $500,000.

Kerry Says ISIS Guilty of Genocide

As reported by CNN, Secretary of State John Kerry today said he had determined that ISIS (also known as Daesh) is guilty of genocide. At a news conference this morning (video  and full text of Kerry's statement), he said in part:

My purpose in appearing before you today is to assert that, in my judgment, Daesh is responsible for genocide against groups in areas under its control, including Yezidis, Christians, and Shia Muslims. Daesh is genocidal by self-proclamation, by ideology, and by actions – in what it says, what it believes, and what it does. Daesh is also responsible for crimes against humanity and ethnic cleansing directed at these same groups and in some cases also against Sunni Muslims, Kurds, and other minorities.

Kansas Passes Law Allowing Student Religious Groups To Limit Membership To Adherents

The Kansas legislature yesterday gave final passage to SB 175 (full text) that is designed to allow student religious groups at colleges and universities to restrict their leaders or their membership to those who share or comply with the organizations beliefs.  The bill provides in part:

No postsecondary educational institution may ... deny a religious student association any benefit available to any other student association ... based on such association's requirement that [its] leaders or members ...: (a) Adhere to the association's sincerely held religious beliefs; (b) comply with the association's sincerely held religious beliefs; (c) comply with the association's sincere religious standards of conduct; or (d) be committed to furthering the association's religious missions....

The bill gives a cause of action to any student group injured by a violation of this provision.  AP reports on the bill and some of the incidents leading up to it. It is expected that Gov. Sam Brownback will sign the bill into law.

Suit Against Dearborn Police On Forced Hijab Removal Is Withdrawn

Last July, a Muslim woman filed a federal lawsuit against the Dearborn, Michigan police department charging that she was required to remove her headscarf (hijab) while being booked on traffic charges. (See prior posting.) Now, according to yesterday's Dearborn Press & Guide, plaintiff Maha Aldahami has dropped the lawsuit.  It says that her attorney withdrew the suit when the city produced video that contradicted plaintiff's claims. The city says it follows a stringent policy on head coverings, and that an internal investigation showed no wrongdoing. According to MLive, Aldhalimi's lawyer says the suit was dropped because Dearborn satisfactorily amended its policy on religious head coverings after the lawsuit was filed.

Many Claims of Non-Liturgical Navy Chaplains Are Dismissed; Several Claims Survive

In In re Navy Chaplaincy, (D DC, March 16, 2016), a challenge to Navy procedures for selection and promotion of chaplains that has wound its way through the courts for over 16 years, the D.C. federal district court dismissed a substantial number of plaintiffs' claims.  The case has already generated over 20 decisions in the courts.  In the case (actually 3 consolidated cases), plaintiffs (Non-Liturgical Protestants) challenged both Navy policies and the practices of chaplain selection boards.  As explained by the court in its 59-page opinion:

[T]hey contend that the faith group categories recognized by the Navy are discriminatory and arbitrary..... In particular, they claim that the categories reflect neither religious demographics nor legitimate similarities or differences among the worship traditions represented.  Second, they allege that in the past ... the [Chaplain Corps] used religious quotas to apportion chaplain opportunities among various faith groups..... Third, Plaintiffs challenge a number of facially neutral personnel practices - both current and historical - that they believe have allowed religious bias to infect selection board outcomes.

The court dismissed most of plaintiffs' claims for lack of standing or on mootness or statute of limitations grounds. However the court allowed two former chaplains to proceed with their complaint that the Navy violated their free speech rights by interfering with their form of prayer. More specifically they allege that they were reprimanded for ending their prayer "in Jesus name." The court also allowed plaintiffs to move ahead with their non-selection for promotion claims.  In addition, the Navy did not seek dismissal of challenges to policies on the promotion and early retirement selection board process.

Obama's Nominee To Supreme Court Has Said Little On Religious Freedom Issues

Today President Obama nominated Chief Judge Merrick Garland to fill the seat of the late Justice Antonin Scalia on the U.S. Supreme Court. (President's remarks announcing the nomination). (White House  media release with background information).  While Garland has served on the D.C. Circuit for 19 years (and served as Chief Judge since 2013) he has had little to say in judicial opinions about religious liberty or church-state separation.

The only opinion involving religious freedom claims actually authored by Judge Garland was Ciralsky v. CIA, 355 F.3d 661 (Jan. 30, 2004) which involved a claim by a former CIA lawyer that he had been fired solely because of his practice of the Jewish religion.  The opinion dealt solely with procedural issues growing out of the complaint being long, repetitive and argumentative.

Garland has served on 3-judge panels in a number of cases involving religious freedom or religious discrimination issues, joining an opinion written by one of the other judges on the panel.  Here is a brief summary of those cases:

• Henderson v. Kennedy, 253 F.3d 12 (Feb. 13, 2001), rehearing denied 265 F.3d 1072 (Oct. 2, 2001): The court ruled against evangelical Christians who claimed a National Park Service regulation prohibiting the sale of t-shirts on the National Mall violated RFRA and the equal protection clause.
  
• Levitan v. Ashcroft, 281 F.3d 1313 (March 8, 2002): in a Catholic inmate's challenge to a prison rule barring consumption small amounts of wine as part of Communion, the court held that a religious practice need not be a mandatory part of a religious creed to be protected by 1st Amendment.
  
• Conservation Law Foundation v. FERC, 216 F.3d 41 (June 23, 2000). The court found that there was no violation of the American Indian Religious Freedom Act by the Federal Energy Regulatory Commission in its re-licensing of a hydroelectric project.
  
• In re England, 375 F.3d 1169 (July 27, 2004). Non-liturgical chaplains sued the Navy alleging discrimination.  The court refused to compel the Secretary of the Navy to release selection board members from their oath of confidentiality, to allow them to testify about selection board proceedings.
  
• McKeithan v. Boarman, 2012 U.S. App. LEXIS 9024 (April 12, 2012). Summary dismissal of a suit charging discrimination based on sex and religion for failure to state a claim.
  
• Village of Bensenville v. FAA, 2006 U.S. App. LEXIS 1166 (Jan. 17, 2006). The court refused to grant a stay pending appeal of a district court opinion allowing expansion of O'Hare Airport. At issue was a RFRA challenge to the relocation of remains from a cemetery.

Finally, Garland was a member of several en banc panels that ruled (either summarily or in opinions by others) on issues related to religious rights:

• In Priests for Life v. United States HHS, 808 F.3d 1 (May 20, 2015), Judge Garland was part of the en banc panel that denied a rehearing in a case that rejected a religious non-profit's challenge to the Obamacare contraceptive mandate compromise.  Garland did not join either the concurring or dissenting opinions filed with the per curiam order.  The case is currently before the U.S. Supreme Court.
  
• In re Charges of Judicial Misconduct, 769 F.3d 762 (Aug. 12, 2014). Judge Garland was part of the en banc panel that accepted the recommendation of a special committee to dismiss misconduct charges against Judge Edith Jones. One of the charges involved Jones invoking her religious beliefs to justify the death penalty.
• Newdow v. Roberts, 2010 U.S. App. LEXIS 27590 (June 29, 2010). Judge Garland was part of an en banc panel that denied a rehearing in case challenging religious elements in Presidential inaugurations.

If Garland is confirmed, he will bring the number of Jewish justices on the Supreme Court to 4.  The remaining 5 justices are Catholic. The New Yorker has an excellent background piece on other aspects of Chief Judge Garland's career.

UPDATE: Religion News Service has two interesting articles regarding Garland's religious beliefs: Merrick Garland is Jewish. Does it matter? and Obama plays the Jewish card, leaving GOP in a pickle.

UPDATE 2: Another opinion written by Judge Garland, Payne v. Salazar, 619 F.3d 56 (2010), should probably also be classified as a religious freedom case.  At issue were procedural questions on when a plaintiff can bring suit because of retaliation against her by her supervisor for filing a religious discrimination complaint.

House Unanimously Passes Resolution Calling ISIS Actions "Genocide"

On Tuesday, the U.S. House of Representatives passed by a vote of 393-0 House Concurrent Resolution 75 (full text) that expresses the sense of Congress that atrocities committed by ISIS against Christians and other ethnic and religious minorities should be labeled war crimes, crimes against humanity and genocide. As pointed out in this CNN Op-Ed by Frida Ghitis:

This was one more maneuver in a long-running battle between Congress and the administration. Months ago, Congress set a deadline of March 17 for the State Department to designate ISIS actions as genocide. But according to news reports, Obama administration officials say it appears likely the administration will let the deadline pass while it ponders the legal consequences of the designation.

Some have charged that the State Department's concern is that once ISIS's actions are labelled "genocide," under the Convention on the Prevention and Punishment of the Crime of Genocide the United States would be committed to "prevent" and "punish" it. However, in a State Department press briefing on Monday, spokesman John Kirby said in part:

[T]here’s a legal definition for genocide. But I don’t want to get into the specifics of it at this point given that the Secretary’s still working his way through his own determination.... [H]e’s taking it very seriously, and ... he wants to take an analytical approach to this based on the best information that’s available....  [T]he argument that somehow it’s being slow-walked or slow-rolled because of the likely pressure that it might result in further calls for military action just is baseless....

Tennessee Legislature Passes Bill To Prevent Religious Indoctrination In Schools

As reported by The Tennesseean, the Tennessee legislature yesterday gave final passage and sent to the governor for his signature HB 1905 (full text). The bill, responding to concern about a middle school social studies unit on Islam, is intended to prevent religious indoctrination. It provides:

The inclusion of religion in textbooks, instructional materials, curriculum, or academic standards shall be for educational purposes only and shall not be used to promote or establish any religion or religious belief.

The bill requires local school boards to develop, with public comment, policies on inclusion of religion in the curriculum. It requires schools to make syllabuses for courses in grades 6-12 publicly available. It calls for revision of the current social study standards and requires teacher training institutes to provide instruction on "what is constitutionally permissible when teaching religious content and strategies for dealing with religious content in curriculum that are educationally sound, fair, neutral, and objective." [Thanks to Blog from the Capital for the lead.]

Israeli Court Sentences Muslim Preacher For Incitement To Racism

In Israel this week, a Jerusalem Magistrate's court sentenced a Muslim preacher to 11 months in prison (and another 6 months suspended) on three counts of incitement to racism.  According to YNet News, Sheikh Khaled Mughrabi regularly delivered speeches at al-Aqsa Mosque, filmed them and uploaded some of them to YouTube.  In one speech, Mughrabi said that the Holocaust was a result of the Jews’ corruption and took place because Jews prepared "special bread" for Passover by kidnapping children, placing them in a barrel full of needles, and using their blood to make the bread. The indictment referred specifically to 3 speeches in the summer of 2015.

Florida Governor Signs Pastor Protection Act

On March 10, Florida Governor Rick Scott signed HB 43, known as the Pastor Protection Act. (Full text) (Bill history).  The new law protects clergy as well as churches, religious organizations and their employees from liability or penalties for refusing to solemnize a marriage or refusing to provide goods, services, or facilities related to the marriage solemnization or celebration where doing so would violate a sincerely held religious belief. Liberty Counsel issued a press release on the governor's action.

"Seven Drums" Believer Wins Right To Wear Fox Hat In License Photo

Willamatte Week and KTAU report on an Oregon man who recently won his administrative appeal to allow him to wear unusual head gear in his driver's license photo. The man, Jay Bishop, is a practitioner of the Washat religion, generally known as the Drummer-Dreamer or Seven Drums faith.  It is rooted in a Native American belief system held by Nez Perce tribes. Bishop wears a cable knit hat that looks like an orange and cream fox head-- the fox is his religious totem. While the local DMV office last summer allowed him to wear the hat in his license renewal photo, when the license got to the state level for review it was rejected because it was not compatible with the state's facial recognition software. Bishop was without a license for 9 months while his appeal was ongoing.  The DMV said it attempts to accommodate religious beliefs, but had never heard of this religion.

8th Circuit Upholds Denial of Citizenship To Muslim In U.S. On Religious Worker's Visa

In Al-Saadoon v. Lynch, (8th Cir., March 14, 2016), the U.S. 8th Circuit Court of Appeals upheld the denial of the naturalization application filed by an Islamic scholar and his wife who entered the U.S. from Iraq on a religious worker's visa.  Initially the USCIS denied the application on the ground that applicants were not of good moral character.  The district court affirmed on the ground that information on applicants' naturalization application showed that the husband changed religious employers a few months before getting the required INS pre-approval for the change.  The 8th Circuit held that the district court's findings are supported by substantial evidence.  In an interesting footnote, the 8th Circuit said:

The district court stated an alternative basis for its denial of Hamod's petition for naturalization. It concluded that "even if some of Hamod's religious worker services to the ICCC starting in 2000 were voluntary and not paid . . . , those services constitute unauthorized employment." Hamod argues that this conclusion violates his right to freely exercise his religion. In particular, he argues that ... the district court's decision regarding voluntary services punishes him for exercising his religion through volunteer work in his local community of faith. We decline to address Hamod's free-exercise claim, however, because the record clearly supports the district court's primary basis for the petition's denial—Hamod was actually employed by the ICCC before he received the authorization required by his visa.

9th Circuit Rules In Favor of Church's Homeless Ministry

In Harbor Missionary Church Corp. v. City of San Buena Ventura, (9th Cir., March 14, 2016), the U.S. 9th Circuit Court of Appeals held that the district court abused its discretion when it refused to issue a preliminary injunction to allow a church to continue to operate its homeless ministry from the same site as its church building. The city had denied a conditional use permit to the church. The appeals court said in part:

The Church asserts that its religion calls for it “to provide for both spiritual and temporal needs together.” The district court erred by questioning the validity of the Church’s religious beliefs and by determining that its homeless ministry could be divided piecemeal when the Church insisted on the importance of keeping its homeless ministry as a whole at the same location....

The district court abused its discretion when it concluded, without analysis, that a complete denial of the conditional use permit was the least restrictive means by which the City could further its compelling interest in public safety. On remand, the district court should ... detail why the conditional use permit recommended by the City’s staff would or would not sufficiently protect the neighborhood from any negative effects shown to be the result of the Church’s ministry to the homeless.

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.