Louisiana Governor Rescinds Earlier Executive Order Protecting Discrimination Against Gay Couples

Last week, Louisiana Governor John Bel Edwards signed Executive Order No. JBE 2016-11 (April 13, 2016) (full text) barring state agencies and offices from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, political affiliation, disability or age.  The executive order also requires that all state contracts include a similar provision barring the contractor from discriminating. However, this does not apply to contracts with religious organizations or religious educational institutions.  The order rescinds an executive order issued last year by then-governor Bobby Jindal prohibiting the denial of benefits or government contracts to anyone who acts in accordance with a religious belief that marriage should be only between one man and one woman. (See prior posting.) [Thanks to Blog from the Capital for the lead.]

6th Circuit Dismisses County Clerk's Suit As Moot

In Miller v. Davis, (6th Cir., April 19, 2016), the U.S. 6th Circuit Court of Appeals dismissed as moot the appeal by Rowan County, Kentucky, Clerk Kim Davis seeking a preliminary injunction against a requirement that she issue marriage licenses to same-sex couples in violation of her religious beliefs.  The court said:

On December 22, 2015, the newly-elected Governor of Kentucky issued an executive order revising Kentucky's marriage license form to eliminate the need for the name and signature of the county clerk. Davis's counsel issued a press release stating that the revised form will permit Davis and the other county clerks "to do their jobs without compromising religious values and beliefs."

The Louisville Courier-Journal reports on the decision.

Suit Challenges Cross At Site of Historic Spanish Mission

The Freedom From Religion Foundation this week filed suit in a California federal district court challenging the constitutionality of a 14-foot tall granite Latin cross in Santa Clara's Memorial Cross Park.  The complaint (full text) in Freedom From Religion Foundation v. City of Santa Clara, (ND CA, filed 4/20/2016), says that the cross was donated and placed on city-owned property in 1953 by the Lion's Club to mark the site of the second Spanish Catholic mission established in the city in 1777. The site continues to be maintained by the city. Plaintiff claims that the city's actions violate the Establishment Clause of the federal and state constitutions as well as the "no aid" clause of California's constitution.  FFRF issued a press release announcing the filing of the lawsuit and containing a photo of the disputed marker.

Parties File Supplemental Reply Briefs With Supreme Court In Zubik Case

Yesterday the petitioners and respondents both filed Supplemental Reply Briefs with the U.S. Supreme Court in Zubik v. Burwell, the case challenging the government's compromise for religious non-profits that object to including contraceptive coverage in their employee health plans.  The briefs make it clear that there is not agreement between the parties on an alternative compromise. The petitioner's brief (full text) says in part:

If petitioners were truly exempt from the mandate, and those companies were to offer their employees the kind of truly separate coverage that petitioners have described—i.e., “a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication”—then petitioners would no longer have a RFRA objection.

The government's brief (full text) counters:

[P]etitioners assert that it is not enough that insurers provide that coverage entirely outside petitioners’ health plans and without their involvement, as the accommodation already requires. Petitioners also insist that the coverage must consist of contraceptive-only insurance policies, not direct payments for contraceptives. And they add that women must take affirmative steps to enroll, and cannot be covered automatically.

RFRA does not give petitioners the right to insist upon those new conditions. The statute simply does not entitle them to dictate the terms of insurers’ separate dealings with women.

School District Will End Bus Scheduling Around Before-School Religion Classes

ACLU of Illinois yesterday announced an agreement with the Teutopolis Illinois School District will end its practice of scheduling buses to take all students to Teutopolis Grade School an hour early so that they can attend before-school Catholic religious classes. The agreement also creates an after-school activity period in which religious classes will be only one choice.

Lay Minister Sues Georgia Health Department For Employment Discrimination

As reported by The Blaze, a doctor and public health expert who was dismissed from his position with the Georgia Department of Public Health within two weeks of his hiring has filed a religious discrimination suit in federal district court in Georgia.  The complaint (full text) in Walsh v. Georgia Department of Public Health, (ND GA, filed 4/20/2016), contends that Eric Walsh's position was terminated because of the content of sermons he had given as a Seventh Day Adventist lay minister. In the sermons, he criticized Catholicism, called homosexuality sinful and characterized evolution as a religion created by Satan. The suit seeks damages, reinstatement and injunctive relief for violations of Title VII of the 1964 Civil Rights Act and the 1st and 14th Amendments. A statement from a spokesperson for the Georgia Department of Public Health said that the withdrawal of a conditional offer to Walsh had nothing to do with his religious views, but instead was triggered by a finding that Walsh failed to disclose outside employment to his prior public health agency employer in California.

Suit On Wearing Hijab During Traffic Offense Booking Settled

MLive reported yesterday on the settlement of a lawsuit brought by a Muslim woman against Oceana County, Michigan sheriff's officials for allegedly requiring her to remove her hijab (religious head covering) while being processed at the county jail for a minor traffic violation. (See prior posting.) Sheriff's officials say a number of the woman's allegations were exaggerated or inaccurate.  Under the settlement, no money was paid, but the sheriff's office did agree to create a policy for treatment of inmates wearing religious headwear. The suit was dismissed on April 18.

Suit Challenges School Voucher Program That Excludes Religious Schools

In a suit filed yesterday in a Colorado federal district court, parents of school children challenged the School Choice Grant Program adopted last month by the Douglas County, Colorado, Board of Education because it excludes participation by religious private schools.  In a fragmented decision, the Colorado Supreme Court last year struck down an earlier school choice program adopted by the county which included religious schools. (See prior posting.) Yesterday's complaint (full text) in Thomas v. Douglas County Board of Education, (D CO, filed 4/19/2016), contends that exclusion of religious schools violates the Free Exercise, Establishment, Equal Protection, Due Process, and Free Speech clauses of the U.S. Constitution.  Institute for Justice issued a press release announcing the filing of the lawsuit.

10th Circuit: Challenge To Kansas School Science Standards Dismissed on Standing Grounds

In COPE v. Kansas State Board of Education, (10th Cir., April 19, 2016), the U.S. 10th Circuit Court of Appeals dismissed on standing grounds an Establishment Clause challenge to Kansas' curriculum standards for science instruction in grades K-12.  Plaintiffs claimed that the State Board’s adoption of the Standards communicated a religious message, and their implementation will result in anti-religious instruction.  The court said in part:

[T]he Standards do not condemn any or all religions and do not target religious believers for disfavored treatment. And COPE offers only threadbare assertions that the Standards intend to promote a non-religious worldview. Thus, COPE’s allegations regarding adoption amount to psychological consequences produced by observation of conduct with which it disagrees.... This injury does not suffice....

Mississippi Governor Signs Church Protection Act

Last Friday (April 15) Mississippi Governor signed into law H.B. 786, the Mississippi Church Protection Act (full text) (legislative history).  The new law allows houses of worship to establish security programs under which designated members are authorized to carry firearms to protect the congregation. The state is authorized to issue licenses to carry concealed pistols, rifles or stun guns to members of such programs, if they meet specified conditions.  A person who has been issued such a permit and has completed a safety training course  may raise as a defense in any criminal prosecution the he or she was acting under such a program. Reuters has additional background. [Thanks to Center for Inquiry for the lead.]

4th Circuit: Title IX Requires School Rest Room Access On Basis of Gender Identity

In a 2-1 decision today, the U.S. 4th Circuit Court of Appeals held that a Virginia school board's policy barring a transgender boy (who had not undergone sex-reassignment surgery) from using the boy's rest rooms at his school violates Title IX's ban on discrimination on the basis of sex.  The school board adopted the policy in order to overturn accommodations made by a high school for the student, and which had been implemented for 7 weeks without incident.  The school board policy called instead for alternative private facilities for transgender students. Citizens speaking in favor of the school board policy at a meeting considering it expressed fears about privacy, and even expressed concern that "non-transgender boys would come to school wearing dresses in order to gain access to the girls’ restrooms."

In G.C. v. Gloucester County School Board, (4th Cir., April 19, 2016), the majority opinion written by Judge Floyd held that the U.S. Department of Education's interpretation of its own regulations is entitled to deference. A DOE interpretation concluded that when schools separate students on the basis of gender, generally schools must treat transgender students consistent with their gender identity.  A concurring opinion by Judge Davis suggested that the appeals court should have entered a preliminary injunction against the school board instead of remanding the case to the trial court.  Judge Niemeyer dissenting argued in part:

This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect. More particularly, it also misconstrues the clear language of Title IX and its regulations. And finally, it reaches an unworkable and illogical result.

AP reporting on the decision quotes North Carolina Law Professor Maxine Eichner who says that the decision also impacts North Carolina's recently enacted law regulating the use of public school rest rooms by transgender individuals.  North Carolina is in the 4th Circuit.

U.S. Commission on Civil Rights Condemns Recent State Religious Liberty Bills

Yesterday the U.S. Commission on Civil Rights issued a statement (full text) condemning recent state enactments and proposals protecting religious liberty at the expense of equal treatment for the LGBT community.  The statement reads in part:

Religious freedom is an important foundation of our nation. However, in the past, ‘religious liberty’ has been used to block racial integration and anti-discrimination laws. Those past efforts failed and this new attempt to revive an old evasive tactic should be rejected as well. The North Carolina and Mississippi laws, and similar legislation proposed in other states, perverts the meaning of religious liberty and perpetuates homophobia, transphobia, marginalizes the transgender and gay community and has no place in our society.

The Commission said that it will shortly release a new report on the issue of religious liberty.

Two members of the 8- member Commission (Gail Heriot and Peter Kirsanow) issued a separate statement (full text) in their individual capacities asking their Commission colleagues "to please take a deep breath."  They argued in part:

none of [the state bills] deserves to be referred to in the derisive terms used by the Commission majority. Those that deal with religious liberty issues are not merely using religion as a “guise” or “excuse” as the Commission majority alleges. All of them address real issues in reasonable ways; none is simply an attack on the LGBT community.

This separate statement was not posted on the Commission's website, but instead on the website of The New American Civil Rights Project with a link to the statement appearing in an ADF press release.

New Resource On RLUIPA Land Use Cases

The Dalton & Tomich law firm announced yesterday that it has posted on its website the first comprehensive list of RLUIPA land use cases along with basic information about the claims involved. It has also posted a bibliography of leading articles on RLUIPA's land use provisions.

British Judge Rules In Muslim Parents' Dispute Over Sons' Circumcisions

In Exeter (county Devon) in England, a family court judge has ruled that a Muslim father cannot have his 4 and 6 year old sons circumcised over the objection of the boys' mother who is now separated from the father.  As reported yesterday by The Plymouth Herald, the father, a devout Muslim living in England but who was born in Algeria, argued that circumcision would be in accordance with his religious beliefs and in the boys' best interests. The judge said that she is deferring any decision on ordering the circumcision until the boys are old enough to make mature choices on their own, and are able to appreciate the consequences and longer-term effects of their decisions.  However this does not mean that they must reach adulthood before making their decisions. The judge said in part:

First and foremost, this is a once and for all, irreversible procedure.  There is no guarantee that these boys will wish to continue to observe the Muslim faith with the devotion demonstrated by their father, although that may very well be their choice.

SSI Benefit Formula Does Not Violate Free Exercise Rights

In Herron v. Social Security Administration, 2016 U.S. Dist. LEXIS 50343 (ED VA, April 14, 2016), a Virginia federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 51224, March 10, 2016) and dismissed a free exercise and other constitutional challenges to the manner in which SSI benefits are computed.  Under Social Security rules, if an SSI recipient lives in the same household as his or her spouse, a portion of the spouse's income may be attributed to the SSI recipient in computing benefits.  Plaintiff Bridget Herron claimed that this rule requires her to live with her fiance before (or without) marriage, in violation of her religious beliefs, in order to avoid a reduction in benefits.

As to Herron's allegation that the SSA [Social Security Administration] policies interfere with the free exercise of her religious beliefs, the SSA determines benefits based on income, and the policies were not "undertaken for religious reasons." ... If Herron wishes to marry in accordance with her religious beliefs, the SSA's policies do not prevent her from doing so. Because Herron fails to allege facts sufficient to challenge the rationality of the SSA's policies, she fails to plausibly allege the elements of a violation of her constitutional rights as to her right to marry and her right to the free exercise of her religious beliefs.

The court also concluded that Herron had not exhausted her administrative remedies.

Bernie Sanders Speaks To Vatican Conference

On Friday, Democratic presidential hopeful Bernie Sanders delivered an address in the Vatican to a conference of the Pontifical Academy of Social Sciences marking the 25th anniversary of Centesimus Annus, Pope John Paul II's encyclical on social and economic justice. RNS has the full text of Sanders' speech. Sanders said in part:

Pope Francis has called on the world to say: “No to a financial system that rules rather than serves” in Evangeli Gaudium. And he called upon financial executives and political leaders to pursue financial reform that is informed by ethical considerations. He stated plainly and powerfully that the role of wealth and resources in a moral economy must be that of servant, not master.

The widening gaps between the rich and poor, the desperation of the marginalized, the power of corporations over politics, is not a phenomenon of the United States alone. The excesses of the unregulated global economy have caused even more damage in the developing countries. They suffer not only from the boom-bust cycles on Wall Street, but from a world economy that puts profits over pollution, oil companies over climate safety, and arms trade over peace.... The issue of wealth and income inequality is the great economic issue of our time, the great political issue of our time, and the great moral issue of our time....

(See prior related posting.)

Suit Challenges School's Refusal To Publicize Scholarship Essay Contests By FFRF and Freethinkers Group

Last week the Freedom From Religion Foundation and the Antelope Valley Freethinkers filed suit in California federal district court against a Los Angeles county school district after the district refused to publicize scholarship essay contests sponsored by the plaintiff groups.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Antelope Valley Union High School District, (CD CA, filed 4/12/2016), contends that while the school publishes scholarship opportunities for students, including those offered by religiously-affiliated groups, it refused to publicize those of plaintiffs because the essay contest themes promote anti-religious expression and contain anti-religious undertones. The complaint alleges that plaintiffs' treatment amounts to viewpoint discrimination in violation of their free speech rights and violates the equal protection clause.  FFRF issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• Raja Sakrani, Convivencia: Reflections About its 'Kulturbedeutung' and Rereading the Normative Histories of Living Together, (Max Planck Institute for European Legal History Research Paper Series No. 2016-02 (March 2016)).
• Natasha Bakht, In Your Face: Piercing the Veil of Ignorance About Niqab-Wearing Women, (24(3) Social and Legal Studies 419 (2015)).
• Bruce P. Archibald, Criminal Justice Models: Canadian Experience in European and Islamic Comparative Perspective, (April 11, 2016).
• Glen Staszewski, Obergefell and Democracy, (Boston University Law Review, Forthcoming).
• Robert W. McGee, Some Thoughts on Toilets, Transgenders, and the LGBT 'Community', (April 12, 2016).

From SmartCILP:

• Bernard H. Mehlman & Jeremy S. Morrison, The Death with Dignity Ballot Initiative: Narrative Tensions and Jewish Legalities, 15 Nevada Law Journal 1479-1491 (2015).

Recent Prisoner Free Exercise Cases

In Williams v. Wilkinson, (10th Cir., April 14, 2016), the 10th Circuit, reversing the district court, held that a Muslim inmate could move ahead with his RLUIPA and 1st Amendment challenges to the denial of his request for a kosher diet, even though a halal diet would have been available to him if he requested it.

In Banks v. United States Marshals Service, 2016 U.S. Dist. LEXIS 45931 (WD PA, April 4, 2016), a Pennsylvania federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 46624, Feb. 24, 2016) and dismissed a damage action alleging that a jail chaplain failed to procure Wiccan tools and a Wiccan bible for plaintiff, and that various defendants failed to provide a volunteer wiccan chaplain.

In Johnson v. Gonzalez, 2016 U.S. Dist. LEXIS 46688 (ED CA, April 6, 2016) a California federal magistrate judge dismissed a Muslim inmate's complaint that religious items including his Qur'an were destroyed when authorities disposed of his excess property in preparation for his move to a segregation unit.

In Dixon v. Allison, 2016 U.S. Dist. LEXIS 46775 (ED CA, April 6, 2016), a California federal magistrate judge dismissed with leave to amend a former inmate's vague claim that his religious rights were infringed when placed in lockdown.

In Locascio v. Longinetti, 2016 U.S. Dist. LEXIS 46918 (D NJ, April 7, 2016), plaintiff sued after his supervised release was revoked for promoting gang signs, namely wearing a shirt with a design that included a swastika that plaintiff claimed was a religious, not a Nazi, symbol. A New Jersey federal district court permitted plaintiff to move ahead with a suit for an injunction to prevent his religion from being used against him in future parole proceedings. It dismissed his claims for damages and overturning of his parole revocation.

In Vaughn v. Wegman, 2016 U.S. Dist. LEXIS 47354 (ED CA, April 7, 2016), a California federal magistrate judge dismissed with leave to amend a Jewish inmate's complaint that he was not allowed to continue his participation in the Jewish Kosher program and services.

In Moorish Science Temple of America, Inc. v. Thompson, 2016 Ky. App. Unpub. LEXIS 269 (KY App., April 8, 2016), a Kentucky state appeals court upheld a prison rule that inmates use their legal name on official documents.  Plaintiff, a member of the Moorish Science Temple of America, had a grievance rejected by prison authorities because he signed it including his "attribute or tribal name." He claimed refusing to allow him to use this violated his free exercise rights.

In Gordon v. Fisher, 2016 U.S. Dist. LEXIS 48305 (ND MS, April 11, 2016), a Mississippi federal district court permitted a Jewish inmate to move ahead with his complaint that his requests for Jewish religious material and food were denied.

In Vincent v. Stewart, 2016 U.S. Dist. LEXIS 48535 (WD WA, April 11, 2016), a Washington federal magistrate judge dismissed with leave to amend a complaint by a Hare Krishna inmate that his religion required his diet to include fresh milk, and the vegan or metabolic diets he was forced to choose between did not satisfy his religious and health needs.

In Talib v. Guerrero, 2016 U.S. Dist. LEXIS 49891 (CD CA, March 14, 2016), a California federal magistrate judge dismissed complaints by four plaintiffs, who were held overnight on a stolen vehicle charge that their religious head dresses and spiritual jewelry were forcibly removed.  The suit involved over a dozen other complaints about his treatment as well.

Parents' Challenge To Ban on "Rod Discipline" of Their Children Rejected

In State of Wisconsin v. Caminiti, (WI App., April 7, 2016), a Wisconsin state appellate court rejected facial constitutional challenges by parents to the statutory ban on intentionally (subject to a "reasonable discipline" defense) causing bodily harm to their children.  Alina and Matthew Caminiti were convicted of regularly using "rod discipline" on their two young children beginning when the children were 2 to 3 months old. Matthew was an "elder" in a Christian church and believed that the Biblical injunction: "He who spares his rod hates his son, but he who loves him disciplines him diligently" requires him to use a wooden spoon or wooden dowel to spank his children. The court rejected arguments that the intentional physical abuse ban unjustifiably interferes with the substantive due process rights of parents under the 14th Amendment , or with their free exercise rights under the 1st Amendment or their freedom of conscience rights under Wisconsin's constitution.

Texas Supreme Court Dismisses Attempt To Void Early Same-Sex Marriage

As reported by the Austin Statesman, the Texas Supreme Court today unanimously dismissed as moot a petition for mandamus filed by Texas Attorney General Ken Paxton seeking to invalidate a same-sex marriage performed in the state four months before the U.S. Supreme Court decided the Obergefell case creating marriage equality throughout the United States.  However in the Texas case, In re State of Texas, (April 15, 2016), Justice Willett in a concurring opinion joined by Justice Devine (full text) took the lower court to task for ignoring a procedural statute in Texas that requires Texas courts to notify the attorney general of state constitutional challenges and give the state 45 days to weigh in before the case is decided. Justice Brown in a concurring opinion joined by Justice Devine (full text) argued that the trial court procedurally should not have used the device of a temporary restraining order to allow the same-sex marriage to go forward, after which plaintiffs dismissed their lawsuit. [Thanks to How Appealing for the lead.]

Trump Noncommittal On Religious Liberty Questions

JTA and The Forward report on a question-and-answer session held yesterday by Donald Trump with two dozen Jewish reporters and Orthodox Jewish activists.  The questions focused on religious liberty and on Israel.  JTA reports:

Here’s Trump’s answer to a question on whether religious employers should have the right to discriminate on the basis of religion when it comes to hiring:

“That’s the question that’s been asked and discussed very brilliantly on many different levels over the last short period of time,” Trump said. “And I’m going to really leave that decision to you. That’s your personal decision. What would your answer be to that question?”

When asked about tax-exempt status for religious groups, Trump said, “It’s really become a very big point of discussion and a very complex point of discussion and it’s something that I’m very interested in and I’m really forming policy on it and I’m actually going to be announcing something that I actually think you’re going to be very happy with. OK?”

Tennessee Governor Vetoes Bill Making Bible The State's Official Book

Yesterday Tennessee Governor Bill Haslam vetoed House Bill 615  that would have made the Holy Bible Tennessee's official book. In his veto message (full text), Haslam cited a state attorney general's opinion finding that the bill was unconstitutional, and added:

In addition to the constitutional issues with the bill, my personal feeling is that this bill trivializes the Bible, which I believe is a sacred text.  If we believe that the Bible is the inspired word of God, then we shouldn't be recognizing it only as a book of historical and economic significance.  If we are recognizing the Bible as a sacred text, then we are violating the Constitution....

According to The Tennessean,  legislative sponsors plan to seek a veto override which, in Tennessee, only requires a majority vote in both chambers of the legislature. [Thanks to Tom Rutledge for the lead.]

ISIS Threatens Two Prominent U.S. Muslims

UPI reports that in the latest issue of Dabiq, ISIS's online English-language magazine, the Islamic terrorist organization calls for the death of two prominent Muslim U.S. political figures-- Huma Abedin (aide to Hillary Clinton) and U.S. Rep. Kieth Ellison.  The threats appear in Issue 14 of the magazine (full text) in an article titled Kill Imams of Kufur in the West (article begins at pg.8; specific threats at pg. 17).  It lists the two along with several others that the article describes as those who "directly involve themselves in politics and enforcing the laws of kufr."

Powers of Saudi Religious Police Are Curbed

Al Jazeera reports that Saudi Arabia's cabinet yesterday voted to strip the country's religious police-- the Commission for the Promotion of Virtue and Prevention of Vice-- of their power to detain or arrest those charged with violations of Islamic religious law.  The new regulations say: "Neither the heads nor members of the Haia are to stop or arrest or chase people or ask for their IDs or follow them - that is considered the jurisdiction of the police or the drug unit." Religious police were told that they should "carry out the duties of encouraging virtue and forbidding vice by advising kindly and gently."

Chinese Court In First Ruling of Its Kind Rejects Same-Sex Marriage

A court in China yesterday ruled that same-sex marriages are not legal.  As reported by the New York Times, this is the first case of its kind adjudicated in China.  In a decision handed down a few hours after the hearing, the court upheld a decision by the civil affairs bureau in Changsha, Hunan Province, to deny Sun Wenlin and Hu Mingliang a marriage license.  The two men plan an appeal.

Suit Challenges District's Definition of Catholic Schools

Wisconsin Watchdog reports that a state court lawsuit was filed last week claiming that Wisconsin's Friess Lake School District infringed the religious freedom of 3 students when it denied them free transportation to St. Augustine School, an independent school that teaches Catholic doctrine. Under Wisconsin law, public school districts are required to provide transportation for students in religious schools who live more than a mile away from the school in their attendance zone.  If there are multiple religious schools in a district, they must create their own non-overlapping zones. Friess Lake School District authorities have ruled that St. Augustine and another Catholic school that is operated by the Archdiocese are both Catholic schools in the district and must have non-overlapping attendance zones before students are entitled to free transportation.  St. Augustine says it is separate and should be able to get transportation for students from anywhere in the Friess Lake District.  It contends that it is improper for public school authorities to determine that a school which says it is independent is instead Catholic. The Wisconsin Institute for Law & Liberty announced the filing of the lawsuit.

Court OK's Distribution of Gospel Tracts At Motorcycle Rally

In McMahon v. City of Panama City Beach, Florida, (ND FL, April 12, 2016), a Florida federal district court issued a preliminary injunction to allow plaintiff to hand out Christian Gospel tracts at the Thunder Beach Motorcycle Rally event held at Frank Brown Park in Panama City Beach. The court concluded that the city cannot rid the park of its "public forum" status by issuing a private party a permit to for exclusive use of the Festival Site in the park for an event, explaining:

If it looks like a duck, and it walks like a duck, and it quacks like a duck, then it’s probably a duck..... Thunder Beach, a large gathering of people interested in motorcycles, though organized by a private corporation, is free and open to the public and has no barriers limiting or restricting ingress and egress.... Thunder Beach looks like a public forum, and so is a public forum, and McMahon retains the rights to free speech that he would possess in any public forum. 

Court Says Flying Spaghetti Monster Is Not a "Religion"

In Cavanaugh v. Bartelt, (D NE, April 12, 2016), a Nebraska federal district court became one of the few to undertake a serious analysis of whether "FSMism"-- the doctrine of the Flying Spaghetti Monster whose followers are called "Pastafarians"-- qualifies as a "religion" for purposes of RLUIPA or the 1st Amendment.  In a suit by a prisoner seeking accommodation of his Pastafarian faith, the court (in a 16-page opinion) said:

The Court finds that FSMism is not a "religion" within the meaning of the relevant federal statutes and constitutional jurisprudence. It is, rather, a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education. Those are important issues, and FSMism contains a serious argument—but that does not mean that the trappings of the satire used to make that argument are entitled to protection as a "religion."

Later in the opinion, the court explained:

This case is difficult because FSMism, as a parody, is designed to look very much like a religion. Candidly, propositions from existing caselaw are not particularly well-suited for such a situation, because they developed to address more ad hoc creeds, not a comprehensive but plainly satirical doctrine. Nonetheless, it is evident to the Court that FSMism is not a belief system addressing "deep and imponderable" matters: it is, as explained above, a satirical rejoinder to a certain strain of religious argument.....

This is not a question of theology: it is a matter of basic reading comprehension. The FSM Gospel is plainly a work of satire, meant to entertain while making a pointed political statement. To read it as religious doctrine would be little different from grounding a "religious exercise" on any other work of fiction..... Of course, there are those who contend ... that the Bible or the Koran are just as fictional as those books. It is not always an easy line to draw. But there must be a line beyond which a practice is not "religious" simply because a plaintiff labels it as such. The Court concludes that FSMism is on the far side of that line.

1st Circuit Applies Obergefell To Puerto Rico

In In re Conde-Vidal, (1st Cir., April 7, 2016), the U.S. 1st Circuit Court of Appeals repudiated the holding by a federal district court in Puerto Rico (see prior posting) that the Supreme Court's Obergefell marriage equality decision does not bind Puerto Rico.  The appeals court said in part:

The district court's ruling errs in so many respects that it is hard to know where to begin....

In ruling that the ban is not unconstitutional because the applicable constitutional right does not apply in Puerto Rico, the district court both misconstrued that right and directly contradicted our mandate. And it compounded its error (and signaled a lack of confidence in its actions), by failing to enter a final judgment to enable an appeal in ordinary course.

Error of this type is not so easily insulated from review. This court may employ mandamus jurisdiction when a district court has misconstrued or otherwise failed to effectuate a mandate issued by this court....

[T]he case is remitted to be assigned randomly by the clerk to a different judge to enter judgment in favor of the Petitioners promptly....

LifeSite News reports on the opinion.

Norway's State Church Approves Same-Sex Marriage

According to Fox News, Norway's state church-- the Evangelical Lutheran Church-- voted on Monday to approve same-sex marriages.  It will adopt procedures to implement the decision at next year's church synod. While 88 of the synod's 115 members voted in favor of the proposal, the resolution also allows objecting clergy to refrain from performing same-sex ceremonies.

Tennessee Legislature Protects Therapists Whose "Principles" Conflict With Client's Behaviors

The Tennessee General Assembly yesterday passed HB 1840/SB 1556 (full text) which provides in part:

No counselor or therapist providing counseling or therapy services shall be required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with the sincerely held principles of the counselor or therapist; provided, that the counselor or therapist coordinates a referral of the client to another counselor or therapist who will provide the counseling or therapy.

The bill insulates counselors and therapists from civil liability and criminal prosecution. It also protects them from license suspension or revocation except when their refusal to treat involves an individual who is in imminent danger of harming himself or others. The bill now goes to Gov. Bill Haslam for his signature.  As reported by the Christian Science Monitor, it is unclear whether Haslam will sign the bill or veto it.  He has 10 days to decide.

An earlier narrower version of the bill protected therapists' sincerely held religious beliefs, but the bill as passed protects any "sincerely held principles." The American Counseling Association, which strongly opposes the bill, says:

HB 1840 is an unprecedented attack on the American Counseling Association’s Code of Ethics....  If HB 1840 is signed into law, its enactment could also jeopardize federal healthcare funding for Tennessee because the U.S. Department of Health and Human Services has clearly stated that no state has the authority to deny healthcare to anyone based on religion, race, sexual orientation, or other federally protected populations.

North Carolina Governor Issues Executive Order Emphasizing LGBT Rights Retained After H.B. 2

As previously reported, last month the North Carolina General Assembly passed, and Gov. Pat McCrory signed, House Bill 2 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 and prohibits civil actions in state courts based on discrimination complaints filed with the federal EEOC. After, in the language of the New York Times, "withering criticism" since the law was enacted, yesterday Gov. McCrory issued (signing statement) Executive Order No. 93 (full text) going as far as possible within the new law to protect LGBT rights.

The Executive Order emphasizes that House Bill 2 did not pre-empt local laws on housing discrimination, and that it allows state and local governments, as well as private businesses and non-profits, to set non-discrimination policies for their own employees. The Order provides that:

North Carolina is committed to administering and implementing all State human resources policies, practices and programs fairly and equitably, without unlawful discrimination, harassment or retaliation on the basis of race, religion, color, national origin, sex, sexual orientation, gender identity, age, political affiliation, genetic information, or disability.

It also calls on state and local governments and colleges to provide single occupancy restroom accommodations for transgender individuals wherever practicable. It provides that when state property is leased by private entities, those private entities may control restroom and locker room policies. It calls for the state Human Relations Commission to submit an annual report to the governor, and calls on the legislature to restore a state cause of action for wrongful discharge based on unlawful employment discrimination.

Parties Respond To Supreme Court's Proposed Contraceptive Compromise In Zubik Case

As previously reported, last month the U.S. Supreme Court in Zubik v. Burwell issued an unusual order seeking the parties' reactions to a Court drafted compromise on provision of health insurance contraceptive coverage for employees of religious non-profits. Yesterday both the government (full text of Government's brief) and the petitioners (full text of Petitioners' brief) filed briefs with their answers.  Neither side totally bought into the Court's alternative.  At the center of their disagreement is the question of whether employees of objecting religious non-profits will end up automatically receiving contraceptive coverage from an alternative source, or whether they will have to take separate independent action in order to obtain that coverage. The compromise floated in the Supreme Court's Order is ambiguous in this regard, suggesting:

Petitioners ... would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage.... 

In responding to the Court's proposal, the Government said in part:

Requiring an employer seeking an exemption from the contraceptive-coverage requirement to provide written notice plays an important role in implementing the accommodation, and eliminating that requirement would impose real costs on the parties whose rights and duties are affected—including objecting employers. But the accommodation for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.

On the other hand, Petitioners argued:

Under the current regulatory scheme, there is just a single plan that automatically comes with payments for contraceptive services. Petitioners’ employees, therefore, automatically receive free contraceptive coverage solely by virtue of their enrollment in petitioners’ plans. There is no reason why this must be so. Instead, to truly separate petitioners from the contraceptive coverage, there should, at a minimum, be “two separate health insurance policies (that is, the group health insurance policy and the individual contraceptive coverage policy),”... with separate enrollment processes, insurance cards, payment sources, and communication streams....

[I]f the contraceptive coverage is to be truly separate, not just an automatic and unavoidable component of the petitioner’s plan, then it must have an enrollment process that is distinct from (and not an automatic consequence of) enrolling in the employer’s plan. Otherwise, it is not independent of the employer’s plan. That process certainly need not be complex. Like activating a credit card, it could be as simple as having the insurance company send each eligible employee a contraceptive coverage card with a sticker attached providing a telephone number to call or website portal to use should she wish to activate the coverage.

Both the government and petitioners recognized that the Court's proposed alternative failed to deal with non-profits that self-insure and use third-party administrators to implement coverage. They both also recognized that petitioners' objections are more difficult to deal with in this context. The government's answer was that some designation or self-certification by the non-profit is unavoidable here, but " any employer that objects to a feature of the accommodation unique to self-insured plans can switch to an insured plan."

The non-profits, on the other hand, devoted a significant portion of their brief to the problem of self-insured employers, saying in part:

If commercial insurance companies begin making truly separate  contraceptive coverage available to the employees of petitioners with insured plans as contemplated by this Court’s order, then there should be no legal obstacle to allowing additional individuals to enroll in those plans, whether directly through the insurer or through the Exchanges..... 

The only question, then, would be how employees of employers with self-insured plans would learn of the availability of those contraceptive-only policies. Asking the objecting employer or the objecting church plan to provide employees with that information would go well beyond what this Court’s order contemplates and what RFRA can tolerate. But there are other means through which individuals could learn about the availability of such contraceptive-only policies and how to enroll. For instance, the government itself could provide that information and assist individuals in enrollment.....

The government also could require doctors and other healthcare providers who have no religious objections to contraception to provide individuals with information about how to enroll in a contraceptive only plan if their employer’s plan does not include such coverage, and to help them complete that process should they choose to do so.

Wall Street Journal reports on the briefs.

Challenge To Catholic Hospitals' Ethical Directives Dismissed On Standing and Ripeness Grounds

A Michigan federal district court has dismissed on standing and ripeness grounds a challenge to the Ethical and Religious Directives for Catholic Health Care Services followed by Catholic hospitals.  In ACLU v. Trinity Health Corp., (ED MI, April 11, 2016), the ACLU sued claiming that provisions in the Directives that prevent terminating a pregnancy to stabilize a woman's condition when emergency complications occur violate the federal Emergency Medical Treatment and Active Labor Act and the Rehabilitation Act.  The court held that allegations of past injury because of the hospital's compliance with the Directives does not give standing for future-looking declaratory and injunctive relief, and allegations regarding one woman who is currently pregnant do not show a substantial risk of pregnancy complications or likelihood of future treatment at defendant's hospitals.  A report from Michigan Radio has reactions of the parties to the decision.

10th Circuit:Dismisses As Moot Challenge To Utah Polygamy Law

In Brown v. Buhman, (10th Cir., April 11, 2016), the U.S. 10th Circuit Court of Appeals dismissed on mootness grounds the constitutional challenge to Utah's anti-polygamy laws that had been filed by the polygamous family from the television show "Sister Wives." A federal district court had held most of Utah's ban unconstitutional. (See prior posting.) The 10th Circuit, however, concluded that a new prosecution policy announced by the County Attorney for Utah County after the suit was originally filed has mooted the case.  County Attorney Jeffrey Buhman issued a policy that states:

The Utah County Attorney’s Office will prosecute the crime of bigamy under [the Statute] in two circumstances: (1) When a victim is induced to marry through their partner’s fraud, misrepresentation or omissions; or (2) When a person purports to marry or cohabits with another person in violation of [the Statute] and is also engaged in some type of abuse, violence or fraud. This office will prosecute the crime of child bigamy under Section 76-7-101.5 regardless of whether one of the parties is also engaged in some type of abuse, violence or fraud.

Further supporting the finding of mootness is the fact that the Brown family has moved to Nevada. AP reports on the court's decision.  Jonathan Turley, counsel for the Brown family, said in a posting that the decision will be appealed.  [Thanks to Tom Rutledge for the lead.]

Provocative Anti-Muslim Rally Planned For Atlanta

According to yesterday's Atlanta Journal Constitution,  after the Georgia Building Authority rejected a request for a permit to hold a "United against Islam and Islamic immigration refugee rally" at Liberty Plaza across from the state capitol, authorities now expect a non-permitted, anti-Islamic protest on the sidewalks of the Georgia State Capitol on April 18.  The protest's organizer James Stachowiak, founder and editor of Freedom Fighter Radio, said that speakers at the rally will focus on the threat from Islamic immigration and refugees. He added:

We also plan to shred images of Obama, Loretta Lynch, Hillary Clinton and Muhammad along with the shredding of the Koran. This will be an open carry event with the use of long arms as Georgia law allows.

CAIR-Georgia reacted with a press release stating in part:

We encourage these protesters to put down their guns, cancel their unsanctioned rally, and meet with representatives of our state’s Muslim community for an open and frank discussion of their concerns.

Rastafarian Minister Loses Fight To Solicit Ballot Signatures At Revenue Office

In Brown v. Arkansas Department of Finance & Administration, (WD AR, April 8, 2016), an Arkansas federal district court dismissed an action by Rev. Tom Brown, a Rastafarian minister, challenging a recent no-solicitation policy imposed by the state at certain Revenue Offices. For over a year Brown had stationed himself at a table on the lawn of the Fayetteville Revenue Office seeking signatures for a ballot initiative on the Arkansas Medical Cannabis Act.  A number of patrons had filed police reports complaining of Brown's behavior. The court held that the solicitation ban is a reasonable restriction on speech in a non-public forum, saying in part:

As the ban is reasonably designed to promote the normal business activities of the State’s revenue offices and is viewpoint-neutral, the Court finds that the ban does not violate Rev. Brown’s constitutional rights. The ban does not prevent Rev. Brown from canvassing in other public forums, such as on city sidewalks, in plazas, or in parks. Similarly, Rev. Brown is still free to express to others his ideas about marijuana use, his religious faith, and the benefits of signing the ballot initiative he supports. 

White House Hosts Nowruz Celebration

The White House last Wednesday hosted its annual Nowruz celebration.  Nowruz is the Persian New Year celebrated as a secular holiday by many in the Middle East and central Asia, and celebrated as a religious holiday by Zoroastrians. (Wikipedia). First Lady Michelle Obama spoke at the East Room reception (full text of remarks), saying in part:

We think America is strongest when we recognize our many traditions, when we celebrate our diversity, and when we lift each other up.... We are a nation of immigrants.  And we should cherish the talent and energy and the beautiful traditions and cultures that come with that heritage, not just today but every day.

British Employment Appeal Tribunal Upholds Warning To Proselytizing Supervisor

In Wasteney v. East London NHS Foundation Trust, (UK EAT, April 7, 2016), the British Employment Appeal Tribunal (EAT) rejected a religious discrimination claim brought by the Head of Forensic Occupational Therapy at a public sector mental health clinic who described herself as a born again Christian.  She was issued a written warning for proselytizing a young Pakistani Muslim occupational therapist whom she supervised.  She gave the Muslim woman a book about another Muslim Pakistani woman who had converted to Christianity; during a one-on-one meeting prayed for the Muslim woman by laying hands on her; and invited the Muslim woman to various Christian church events. In upholding the finding of the Employment Tribunal (ET), the EAT said in part:

The ET did not find that the Respondent had pursued disciplinary action against the Claimant and imposed a warning on her because of or for reasons related to her sharing of her faith with a consenting colleague.  It expressly found that the Respondent took the actions it did because the colleague in question had made serious complaints about acts which blurred professional boundaries and placed improper pressure on that colleague.

Christian Post reporting on the decision quotes this reaction from the supervisor who lost her appeal:

I believe the NHS singled me out for discipline because Christianity is so disrespected. Previously a Christian worship service that I set up for patients was closed down, but accommodation for Muslims to practice their faith wholly facilitated and encouraged.

Recent Articles of Interest

From SSRN:

• Varun Srinivasan, Need for a United or Unified Code? Understanding the Implications of the Uniform Civil Code, ((2016) 2 Madras Law Journal 13).
• Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, (Columbia Law Review, Forthcoming).
• Michael J. T. McMillen, Critical Factors for Stimulating Private Sector Sukuk Markets, (Institutional Investor, Forthcoming).
• Craig Forcese & Kent Roach, Criminalizing Terrorist Babble: Canada's Dubious New Terrorist Speech Crime, (Alberta Law Review, Vol. 53, No. 1, 2015).
• Andrew J. Pecoraro, Testing the Limits of Obergefell: Incest Statutes and the Fundamental Right to Marry, (William & Mary Law Review, Vol. 58, 2017).

From SmartCILP and elsewhere:

• Bill Piatt, If the Pope Is Infallible, Why Does He Need Lawyers?,[PDF download], 43 Capital University Law Review 555-584 (2015).
• Kristina Benson, The Freedom To Believe and the Freedom To Practice: Title VII, Muslim Women, and Hijab, 13 UCLA Journal of Islamic & Near Eastern Law 1-19 (2014).
• Mara R. Revkin, Triadic Legal Pluralism in North Sinai: A Case Study of State, Shari'a, and 'Urf Courts in Conflict and Cooperation. 13 UCLA Journal of Islamic & Near Eastern Law 21-59 (2014).
• Ahmed Al-Dawoody, Al-Sarakhsī’s Contribution to the Islamic Law of War, 14 UCLA Journal of Islamic & Near Eastern Law 29-44 (2015).
• Rami Koujah, A Critical Review Essay of Anver M. Emon’s Islamic Natural Law Theories, 14 UCLA Journal of Islamic & Near Eastern Law 1-28 (2015).

CAIR Sues Challenging Procedures For Terrorist Watch List

Last week, CAIR-Michigan filed two federal lawsuits challenging the federal government's operation of the Terrorist Screening Database.  Inclusion on the list leads to placement on the no-fly list and on lists restricting access to licenses and firearms.  The suits allege that almost all Americans known to be on the watch list are Muslims or persons who could be mistaken for Muslims.  One of the suits, Baby Doe v. Piehota, (ED VA, filed 4/5/2016) (full text of complaint) is a class action seeking damages. The other, Elhady v. Piehota, (ED VA, filed 4/5/2016) (full text of complaint) seeks injunctive and declaratory relief. The suits contend that selection of individuals for the watch list is illegally motivated by religious status and denies those on the list substantive and procedural due process rights by stigmatizing them and burdening their right of movement. Among other things, the suits seek a change in the watch list so that individuals placed on the list are furnished notice of the reasons for their inclusion and an opportunity to contest their listing.  CAIR issued a press release announcing the filing of the lawsuits.

2 Particularly Interesting Prisoner Free Exercise Cases

As regular readers of Religion Clause blog know, at least weekly I present a summary of recent prisoner free exercise cases.  This week, two of the recent cases deserve more mention than my typical brief description:

In Brown v. Bureau of Prisons, 2016 U.S. Dist. LEXIS 44755 (D CT, March 31, 2016), a Connecticut federal district court dismissed a female federal prisoner's 1st Amendment claim, but allowed her to move ahead on her claim under RFRA that her rights were infringed when she was searched by a male correctional officer.  This suit is unusual because it was filed by a female inmate.  For reasons I have been unable to explain, almost all reported prisoner free exercise cases are filed by male inmates.  Perhaps it is related to differences in the way that women's prisons are administered.  If readers have other explanations, I would appreciate receiving them.

In McLenithan v. Williams, 2016 U.S. Dist. LEXIS 45290 (D OR, April 4, 2016), an Oregon federal magistrate judge dismissed RLUIPA, free exercise and equal protection claims by an inmate seeking a kosher diet. Plaintiff described himself as a Seventh Day Adventist who practices Judaism as a second religion.  The court's RLUIPA analysis included the following:

Defendants have presented evidence establishing a compelling interest in limiting kosher diets to Jewish inmates, and this policy, in conjunction with ODOC's accommodation of traditional Seventh Day Adventist dietary practices, is the least restrictive means of meeting that interest. The evidence is undisputed that providing kosher meals costs $4,117.20 more per biennium for each additional inmate who requests kosher food. To be sure, the cost of accommodating Plaintiff alone is not significant. However, if Plaintiff were to be accommodated by providing the kosher meal option, other inmates will likely have to be accommodated as well, ultimately at great expense to ODOC. Indeed, Defendants provide evidence that if non-Jewish inmates were allowed the option of choosing the kosher meal plan, a substantial percentage would likely do so. Finally, the Court considers the substantial additional cost of providing kosher meals to non-Jewish inmates in the context of ODOC's overall budget.  Defendants provide evidence that ODOC's security budget is strained.

This analysis raises the question of whether compelling interest is measured differently when the government's interest is cost rather than security.  In Holt v. Hobbs, the Supreme Court required compelling interest in security be measured by looking only at the "particular claimant" whose religious exercise is being burdened.

Recent Prisoner Free Exercise Cases

In Woodward v. Afify, 2016 U.S. Dist. LEXIS 42738 (WD NY, March 29, 2016) a New York federal magistrate judge recommended dismissing a complaint by a Muslim inmate that he was denied  access to Friday prayer services and Ramadan meals. He was allowed to move ahead on other retaliation claims.

In Henrius v. County of Nassau, 2016 U.S. Dist. LEXIS 43795 (ED NY, March 31, 2016), a New York federal district court dismissed an inmate's complaint that he was not allowed to attend religious services on one occasion.

In Howard v. Skolnik, 2016 U.S. Dist. LEXIS 44624 (D NV, March 31, 2016), a Nevada federal district court dismissed on qualified immunity grounds the decision by prison authorities to refuse to recognize Nation of Islam as a religion for approved prison activities.

In DeJesus v. Bradt, 2016 U.S. Dist. LEXIS 44716 (WD NY, March 31, 2016), a New York federal district court dismissed a Muslim inmate's complaint that during Ramadan Muslims were not permitted to take unfinished food from the double evening meal back to their cells to eat during the night. The court allowed plaintiff to move ahead with his complaint that on 10 occasions during Ramadan he was not permitted to take a shower or engage in ritual cleansing before group prayer.

In Hogue v. Ada County, 2016 U.S. Dist. LEXIS 45011 (D ID, March 31, 2016), an Idaho federal magistrate judge dismissed an inmate's complaint that as part of his behavioral management plan he was prohibited from possessing a Bible or any other religious book.

In Flynn v. Ward, 2016 U.S. Dist. LEXIS 45075 (ND NY, April 4, 2016), a New York federal district court dismissed an inmate's complaint that he was forced to give up his prayer rug and mail it home.

In Sterling v. Sellers, 2016 U.S. Dist. LEXIS 45607 (MD GA, April 5, 2016), a Georgia federal district court permitted a Muslim inmate to move ahead with his claim that he was not allowed to engage in daily congregational prayer. The magistrate's opinion in the case is at 2016 U.S. Dist. LEXIS 45896, Feb. 22, 2016.

In Sanders v. Cain, 2016 U.S. Dist. LEXIS 42069 (MD LA, March 28, 2016), a Louisiana federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 46031, Feb. 19, 2016) and dismissed as frivolous a Mormon inmate minister's complaint that he was unable to congregate with other Mormons in the main prison complex, or to hold fund-raisers. His claims regarding his status as an inmate minister and false disciplinary charges were dismissed insofar as they were brought in forma pauperis.

In Allen v. Ahlin, 2016 U.S. Dist. LEXIS 46697 (ED CA, April 5, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that his religious rights were being infringed by the denial of a vegetarian diet.

In Huddleston v. Wilson County Criminal Justice Complex, 2016 U.S. Dist. LEXIS 46598 (MD TN, April 5, 2016), a Tennessee federal magistrate judge recommended dismissing an inmate' complaint that his personal Baptist pastor had been unable to visit him because he was not on the jail's ministry list.

Bernie Sanders Accepts Invitation To Conference In Vatican On Social Justice and the Environment

Democratic Presidential candidate Bernie Sanders announced yesterday that he has accepted an invitation from the Pontifical Academy of Social Sciences to attend an April 15 conference in the Vatican on restoring social justice and environmental sustainability.  As reported by Time magazine, in a New York campaign stop today, Sanders said: "I must tell you that I am a very great fan of the role that Pope Francis has been playing in talking about inequality in this world." [Thanks to Scott Mange for the lead.]

Break-Away Presbyterian Church Settles Suit By Paying $1.1M For Its Building

According to yesterday's St. Louis Post Dispatch, a break-away Presbyterian congregation in Chesterfield, Missouri has settled a lawsuit against it by the Giddings-Lovejoy Presbytery.  When Bonhomme Presbyterian Church broke away from the Presbyterian Church (USA) to join the more conservative Covenant Order of Evangelical Presbyterians, the Presbytery sued claiming that the congregation's property belongs to the Presbytery.  In the settlement, Bonhomme paid the Presbytery $1.1 million for the church building and property.

State Trooper Fired For Proselytizing During Traffic Stop

According to WCPO News, last Thursday the Indiana State Police fired state trooper Brian Hamilton after a formal complaint was filed against him by motorist Wendy Pyle who charges that when Hamilton stopped her to give her a warning ticket for speeding, he also asked her what church she attends and whether she was saved.  The ACLU has filed suit over the incident.  Hamilton was sued in 2014 by another woman for similar proselytizing during a traffic stop. (See prior posting.)

Abstention Required In Suit For Defamation In Excommunication Proceedings

In Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered Augsburg Confession, (MN Sup. Ct., April 6, 2016), the Minnesota Supreme Court in a 3-2 decision (2 justices not participating), held that under the ecclesiastical abstention doctrine, the 1st Amendment prohibits holding a church and its pastors liable in a defamation action for statements made during church disciplinary proceedings seeking to excommunicate plaintiffs. The majority concluded:

Ultimately, adjudicating [plaintiffs'] claims would excessively entangle the courts with religion and unduly interfere with respondents’ constitutional right to make autonomous decisions regarding the governance of their religious organization.

Justice Lillehaug's dissenting opinion complained:

 Today the court creates what is, essentially, an absolute privilege to defame in “formal church discipline proceedings.” No matter how false and malicious the statement, and no matter how much the victim is damaged, there is no remedy whatsoever in Minnesota’s courts.

Pope Francis Releases Historic Document on Family Life

As reported by Crux, the Vatican today released Pope Francis' much anticipated Apostolic Exhortation titled Amoris Laetitia (The Joy of Love). Here is the full text of 256-page document which grew out of meetings of Catholic bishops from around the world in 2014 and 2015 on issues of the family. The Vatican has also released a Summary of each of the document's nine chapters.  Of particular interest is Chapter 8 which deals with the Church's treatment of divorced Catholics. The Summary of that Chapter reads in part:

 As far as discernment with regard to “irregular” situations is concerned, the Pope states: “There is a need ‘to avoid judgements which do not take into account the complexity of various situations’ and ‘to be attentive, by necessity, to how people experience distress because of their condition’” (AL 296). And he continues: “It is a matter of reaching out to everyone, of needing to help each person find his or her proper way of participating in the ecclesial community, and thus to experience being touched by an ‘unmerited, unconditional and gratuitous’ mercy” (AL 297). And further: “The divorced who have entered a new union, for example, can find themselves in a variety of situations, which should not be pigeonholed or fit into overly rigid classifications leaving no room for a suitable personal and pastoral discernment” (AL 298).

... [T]he Pope states that “the baptized who are divorced and civilly remarried need to be more fully integrated into Christian communities in the variety of ways possible, while avoiding any occasion of scandal”. “Their participation can be expressed in different ecclesial services… Such persons need to feel not as excommunicated members of the Church, but instead as living members, able to live and grow in the Church… This integration is also needed in the care and Christian upbringing of their children” (AL 299).

In a more general vein, the Pope makes an extremely important statement ... :“If we consider the immense variety of concrete situations, … it is understandable that neither the Synod nor this Exhortation could be expected to provide a new set of general rules, canonical in nature and applicable to all cases. What is needed is simply a renewed encouragement to undertake a responsible personal and pastoral discernment of particular cases, one which would recognize that, since ‘the degree of responsibility is not equal in all cases’, the consequences or effects of a rule need not necessarily always be the same” (AL 300).... 

Crux has also posted an analysis of the document

Hospital Offered Reasonable Accommodation To Employee Rejecting Flu Shot

In Robinson v. Children's Hospital Boston, (D MA, April 5, 2016), a Massachusetts federal district court dismissed a Title VII and state discrimination claim by a hospital emergency room worker who refused on religious grounds to be immunized for influenza. Plaintiff, who was apparently a follower of Nation of Islam, initially refused the vaccine because it contained pork products, but the hospital offered her a non-gelatin vaccine.  She continued to refuse on religious grounds, was granted a temporary medical leave and was allowed to look for a non-patient area position in the hospital. When she was unable to find another position, she was terminated.  The court held that the hospital had offered plaintiff reasonable accommodation and that  allowing her to remain in the patient area unvaccinated would have posed an undue hardship. Boston Herald reports on the decision.

Court Says Cross on County Seal Is Unconstitutional

In Davies v. Los Angeles County Board of Supervisors, (CD CA, April 6, 2016), a California federal district court granted a permanent injunction requiring removal of a cross from the Los Angeles County Seal.  Under threat of a lawsuit in 2004, the County redesigned its Seal replacing a cross that was on it with a depiction of the San Gabriel Mission. Subsequently the San Gabriel Mission added a cross on its building and the County Board voted to add the cross to the Mission's depiction on the Seal. The district court held that the addition of the cross violates both the Establishment Clause and the California Constitution's No Aid clause. Los Angeles Times reports on the decision.

Suit Challenges Constitutionality of Tax Code Parsonage Allowance

In a lawsuit filed this week, the Freedom From Religion Foundation is again challenging the constitutionality of the Internal Revenue Code's parsonage allowance.  The complaint (full text) in Gaylor v. Lew, (WD WI, filed 4/6/ 2016), contends that Section 107 of the Internal Revenue Code--which allows clergy to exclude from taxable income a housing allowance paid as part of their compensation-- violates the Establishment Clause.  The suit was brought by two FFRF officers who also received housing allowances.  One of the plaintiffs is an ordained minister who in prior years when employed by a church was able to claim the allowance.  In 2014, the 7th Circuit dismissed a similar suit on standing grounds because plaintiffs had not sought to exclude their FFRF allowances on their federal income tax returns or claim a tax refund. (See prior posting.) This time plaintiffs did file amended returns seeking a refund of taxes paid on their housing allowances. FFRF issued a press release announcing the filing of the lawsuit. [Thanks to Steven H. Sholk for the lead.]

FFRF Sues Connecticut City Over Refusal To Allow Winter Solstice Banner

A suit was filed two weeks ago by the Freedom From Religion Foundation challenging the refusal by Shelton, Connecticut authorities to allow FFRF to place a Winter Solstice display in a city park. The complaint (full text) in Freedom From Religion Foundation v. City of Shelton, Connecticut, (D CT, filed 3/22/2016) alleges that the city allows the American Legion to place a "heralding angels" religious display in Constitution Park every Christmas season. However the city refused to allow FFRF to put up a banner reading in part: "At this season of the Winter Solstice, let reason prevail. There are no gods, no devils, no angels, no heaven or hell...." The city thought the banner would be offensive to many. The complaint alleges free speech and equal protection violations.  FFRF issued a press release announcing the filing of the federal lawsuit. Yesterday WSHU News had a longer report on the lawsuit.

Court Says Minister Can Move Ahead With Challenge To Ban on His Transitional Housing Project

Martin v. Houston, (MD AL, April 6, 2016), involves an attempt by the Alabama legislature to close down a transitional housing arrangement consisting of a group of mobile homes for male sex offenders being released from prison.  The facility was set up by a Christian minister who imposed behavior standards on residents and required them to attend church services. The Alabama legislature passed a statute tailored only to apply to this facility. The law, whose coverage was limited to one county, declared a facility where more than one sex offender lived together to be a public nuisance.  In a suit by the minister operating the facility, an Alabama federal district court held that plaintiff had adequately alleged free exercise, bill of attainder and due process claims.  It held that the complaint had not adequately alleged a RLUIPA violation because the law does not involve government making individualized assessments of proposed property use.

9th Circuit: Denial of Exemption For Use of Cannabis Does Not Impose Substantial Burden On Religious Exercise

In Oklevueha Native American Church of Hawaii v. Lynch, (9th Cir., April 6, 2016), the U.S. 9th Circuit Court of Appeals held that a church and its founder were properly denied an exemption from federal laws that prohibit the possession and distribution of cannabis. Under RFRA, denial of an exemption does not impose a "substantial burden" on plaintiffs' exercise of religion because the primary sacrament of the church is peyote.  Plaintiffs consume cannabis only as a substitute. They do not claim that peyote is unavailable or that cannabis serves a unique religious function.

Episcopal Church Still Holds Title To Property of Break-Away Diocese

In Diocese of San Joaquin v. Gunner, (CA App., April 5, 2016), a California state appeals court held that applying neutral principles of law, the property of a break-away diocese still belongs to the Episcopal Church. It held that while the trial court wrongly held that diocese held the property in trust for the Episcopal Church, nevertheless the property still belongs to the Episcopal Church because the purported transfer of the property to the break-away diocese was invalid:

Schofield [bishop of the break-away diocese] was attempting to change the title holder of the property in dispute from the corporation sole known as The Protestant Episcopal Bishop of San Joaquin to the corporation sole known as The Anglican Bishop of San Joaquin. However, because the amendment changing the name of the corporation sole to The Anglican Bishop of San Joaquin was invalid, no corporation sole known as The Anglican Bishop of San Joaquin existed when these deeds were executed and recorded. 

New Study Surveys Restrictions On Women Wearing Religious Attire

The Pew Research Center yesterday released a report (full text) titled Restrictions on Women's Religious Attire.  It concludes:

50 of the 198 countries and territories included in the study had at least one law or policy regulating women’s religious attire in 2012 and 2013..... About three-quarters of those countries (39 of the 50, or 78%) had a law or policy limiting women’s ability to wear religious attire, while about a quarter (12 of the 50, or 24%) had at least one law or policy requiring women to wear particular attire. Some of these laws or policies applied nationwide, while others were imposed at the provincial, state or local level.   One country – Russia – had [both in different areas].

The study also found that in 2013, some 50 countries had at least one incident where women were harassed by private individuals either for wearing religious dress, or for not conforming to local customs concerning religious dress.

Tennessee Legislature Passes Bill Making the Holy Bible the Official State Book

Yesterday the Tennessee General Assembly passed HB615, designating the Holy Bible as the state's "official book." AP reports:

Sponsors argue the bill seeks to honor the historical significance of the Bible in Tennessee's history rather than serving as a government endorsement of religion.

But opponents say the measure trivializes the Bible by placing it alongside other Tennessee symbols like the small mouth bass as the state sport fish, the cave salamander as the state amphibian and the honeybee as the state agricultural insect.

The state's Attorney General in an Opinion issued in April (full text) concluded that the bill is unconstitutional, and Governor Bill Haslam has expressed doubts about the bill. It is unclear whether or not he will veto it.

Mississippi Governor Signs "Freedom of Conscience" Bill Protecting Anti-LGBT Practices

CBS News reports that Mississippi Governor Phil Bryant today signed into law House Bill 1523, the Freedom of Conscience From Government Discrimination Act passed last week by the legislature. The law protects various actions of government and private businesses based on religious or moral beliefs that marriage is a union of one man and one woman, that sexual relations should be reserved to heterosexual marriage, or that gender is an immutable characteristic determined at birth. (See prior posting). In his signing statement (full text), Bryant said in part:

This bill does not limit any constitutionally protected rights or actions of any citizen of this state under federal or state laws.

Reacting to the governor's statement, the ACLU said (full text) in part:

This is a sad day for the state of Mississippi and for the thousands of Mississippians who can now be turned away from businesses, refused marriage licenses, or denied housing, essential services and needed care based on who they are. This bill flies in the face of the basic American principles of fairness, justice and equality and will not protect anyone's religious liberty.

Brazilian Court Trains Clergy As Mediators

Religion News Service reports on an experimental mediation program instituted by the courts in the Brazilian state of Goias.  In a program called "Mediar e Divino" ("To Mediate is Divine"), the court is training evangelical pastors, Catholic priests and Protestant ministers to mediate in family law cases and disputes among neighbors. Brazilian courts face massive backlogs of cases.  In Goias state alone, 800,000 new cases were filed last year.

Army Grants Sikh Soldier Accommodation After His Preliminary Court Victory

As previously reported, last month the D.C. federal district court issued a preliminary injunction barring the Army from subjecting Sikh Army officer Simratpal Singh to any non-standard or discriminatory testing for his helmet and gas mask.  Now without mentioning the court decision, the Army has issued a Memorandum (full text) dated March 30 granting Singh an accommodation, subject to various conditions. The Memorandum from Assistant Secretary of the Army Debra Wada to Singh reads in part:

I have considered your request for a religious accommodation to permit you to wear a beard, turban, and uncut hair in observance of your Sikh faith.... I grant your request for an exception to Army personal appearance and grooming standards, subject to the limitations described below....

While assigned or performing non-hazardous duties, you may wear a beard, turban, and uncut hair in a neat and conservative manner that presents a professional and well-groomed appearance. The bulk or your hair, beard, or turban may not be such that it impairs your ability to wear the Army Combat Helmet ... or other protective equipment....

Because of the Army's strong interest in maintaining good order and discipline, the Army intends to develop clear uniform standards applicable to Soldiers who have received a religious accommodation. Until such standards are published, you may wear a black turban (or under turban, as appropriate).... 

The Memorandum goes on to specify precise hair and beard lengths, and says that Singh's commander is to provide quarterly assessments of the effect of the accommodation on unit cohesion and morale, good order and discipline, health and safety, and individual and unit readiness. West reports on the Army's action.

UPDATE: Stars and Stripes reported on April 11 that 3 additional Sikh enlistees have been granted similar accommodations.

Wolcott Replaces Glendon On USCIRF

In a March 21 press release, the U.S. Commission on International Religious Freedom announced that at the recommendation of Senate Majority Leader Mitch McConnell, on March 14 Ambassador Jackie Wolcott was appointed for a two-year term to USCIRF to succeed Commissioner Mary Ann Glendon whose term expires on May 14. During most of 2015, Wolcott served as USCIRF's executive director. Prior to that she held a number of State Department positions including a Deputy Assistant Secretary position in which she was responsible for human rights issues arising in the United Nations.

Qualified Immunity For Commissioners Asking Religious Questions To Constable Candidate

In Lloyd v. Birkman, (WD TX, April 1, 2016), a Texas federal district court held that members of the Williamson County (Texas) Commissioners' Court enjoyed qualified immunity in a suit by an unsuccessful candidate for County Constable.  The position was normally an elected one, but the current Constable resigned and the next election was over one year away. Thus under state law the Commissioners had the power to appoint a new Constable to serve until the next general election.  During interviews for the position, Commissioners asked candidates about their church membership, views on gay marriage and abortion, and political ideology. Plaintiff contended that these questions violated his rights of free expression and association, as well as the free exercise and establishment clauses. The court, however, concluded that there was not "clearly established law" that this line of questioning was improper in the context of private interviews for an interim appointment to a normally elective position. (See prior related posting.)

Business Owner Unsuccessful In Suing Churches That Opposed New Strip Club

In Harrington v. Hall County Board of Supervisors, (D NE, March 31, 2016), a Nebraska federal district court dismissed a number of claims brought by the owner of an adult entertainment company against two churches that circulated a petition opposing attempts to open a strip club in Hall County, Nebraska. The court also dismissed claims against a director of one of the churches.  The adult entertainment company owner alleged that the churches engaged in a conspiracy to adopt and enforce an unconstitutional zoning resolution. Plaintiff also alleged violations of the antitrust laws, defamation, tortious interference with business relationships, infliction of emotional distress, and negligence.  The court additionally rejected the claim that individual members of the County Board of Supervisors violated the Establishment Clause when at a public hearing they thanked supporters of the petition for supporting Christian values.

Recent Articles of Interest

From SSRN:

• Paul Horwitz, Against Martyrdom: A Liberal Argument for Accommodation of Religion, (Notre Dame Law Review, Vol. 91, No. 4, 2016).
• Tim S. Braimah, Divorcing Sexual Orientation from Religion and Politics: Utilizing the Convention Grounds of Religion and Political Opinion in Same-Sex Oriented Asylum Claims, (International Journal of Refugee Law, 2015).
• John D. Blum, Restoring the Parameters of Public Health in a Time of Hobby Lobby and Ebola: The Case for a Wellness Account, (2 Belmont Law Review 119 (2015)).
• John Fahner, Free Conscience in Decline: The Insignificance of the Free Exercise Clause and the Role of the Religious Freedom Restoration Act in the Wake of Hobby Lobby, (2 Belmont Law Review 185 (2015)).
• M. Cathleen Kaveny, Law, Religion, and Conscience in a Pluralistic Society: The Case of the Little Sisters of the Poor, (Boston College Law School Legal Studies Research Paper No. 394, March 2016).
• Vincy Fon, A Talmudic Bankruptcy Solution: The CCC Principle, (March 21, 2016).

From elsewhere:

• Justice, The Legal Magazine of the International Association of Jewish Lawyers and Jurists, No. 57, Winter 2015-2016.