President Declares May As Jewish American Heritage Month

Last week, President Obama issued a Proclamation (full text) declaring May as Jewish American Heritage Month. The Proclamation reads in part:

Jewish Americans, having shared in the struggle for freedom, have been instrumental in ensuring our Nation stays true to the principles enshrined in our founding documents. They have helped bring about enduring progress in every aspect of our society, shaping our country's character and embodying the values we hold dear.

Yesterday, Democratic leader Nancy Peolsi also issued a statement  on Jewish American Heritage Month.

Court Allows Challenges To NJ Law On Sale of Headstones To Proceed

In Roman Catholic Archdiocese of Newark v. Christie, (D NJ, April 29, 2016), a New Jersey federal district court refused to dismiss some of the challenges by the Catholic Archdiocese to a New Jersey statute making it illegal for religious groups that operate cemeteries to also sell monuments or private  mausoleums.  The court held that, even though the statute is subject only to rational-basis review, it is premature to dismiss claims that the law violates the equal protection and due process clauses of the U.S. Constitution.  The court did however dismiss plaintiffs' contracts clause and privileges or immunities clause challenges. The statute was enacted last year (see prior posting) after the Archdiocese went into competition with for-profit monument makers. New Jersey Law Journal reports on the decision. [Thanks to Steven H. Sholk for the lead.]

5th Circuit: Texas Prisons' Grooming and Headwear Policies Violate RLUIPA

Reflecting the approach taken last year by the U.S. Supreme Court in Holt v. Hobbs (see prior posting), yesterday the U.S. 5th Circuit Court of Appeals in Ali v. Stephens, (5th Cir., May 2, 2016) held that the Texas prison system's grooming and headwear policies violate a Muslim inmate's rights under RLUIPA.  The court affirmed the trial court's grant of declaratory and injuctive relief to allow an observant Muslim inmate to grow a 4-inch beard and wear his kufi throughout the prison facility.

Cert. Denied In Challenge To Alabama Prisoner Grooming Restrictions

The U.S. Supreme Court yesterday denied review in Knight v. Thompson, (Docket No. 15-999, cert. denied 5/2/2016). (Order List.) In the case, the U.S. 11th Circuit Court of Appeals upheld the Alabama prison system's grooming requirement that prohibited Native American inmates from wearing long hair, even for religious reasons. (See prior posting.) AP reports on the denial of certiorari.

USCIRF Issues 2016 Annual Report On Religious Freedom Abuses Around the World

The U.S. Commission on International Religious Freedom today released its 2016 Annual Report (full text). The Report recommends that the Secretary of State re-designate 9 countries as "countries of particular concern," i.e. countries that engage in or tolerate systematic, ongoing and egregious violations of religious freedom: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, Turkmenistan, and Uzbekistan. It also recommends adding 8 other countries as CPC's: Central African Republic, Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan, and Vietnam. (In fact on April 14, the State Department did add Tajikistan. See prior posting.)

USCIRF designated 10 countries as Tier 2 nations that have serious religious freedom issues, but which do not rise to the level of CPC's: Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos, Malaysia, Russia, and Turkey.

In making its recommendations, USCIRF said in part:

Non-state actors, such as transnational or local organizations, are some of the most egregious violators of religious freedom in today’s world. In some places, such as the Central African Republic and areas of Iraq and Syria, governments are either non-existent or incapable of addressing violations committed by non-state actors. USCIRF has concluded that the CPC classification should be expanded to allow for the designation of countries such as these, where particularly severe violations of religious freedom are occurring but a government does not exist or does not control its territory. Accordingly, USCIRF’s CPC recommendations reflect that approach. 

Recent Articles of Interest

From SSRN:

• Caroline Mala Corbin, Speech or Conduct: The Free Speech Claims of Wedding Vendors, (Emory Law Journal, Vol. 65, No. 241, 2016).
• Elizabeth Sepper, Gays in the Moralized Marketplace, (7 Ala. C.R. & C.L. L. Rev. 129 (2015)).
• Mark L. Movsesian, Of Human Dignities, (Notre Dame Law Review, Vol. 91, No. 4, 2016).
• Richard W. Garnett, Wrongful Discrimination? Religious Freedom, Pluralism, and Equality, (Timothy Shah, Thomas Farr & Jack Friedman, eds., Religious Freedom and Gay Rights: Emerging Conflicts in North America and Europe (Oxford University Press 2016)).
• Udo Schuklenk & Ricardo Smalling, Why Medical Professionals Have No Moral Claim to Conscientious Objection Accommodation in Liberal Democracies, (Journal of Medical Ethics 2016 doi:10.1136/medethics-2016-103560).
• Mahalia Jackman, They Called it the ‘Abominable Crime’: An Analysis of Heterosexual Support for Anti-Gay Laws in Barbados, Guyana and Trinidad and Tobago, (Sex Res Soc Policy, Vol. 13:130–141 (2016)).
• Annyssa Bellal, Beyond the Pale? Engaging the Islamic State on International Humanitarian Law, (Yearbook of International Humanitarian Law (Forthcoming)).
• Norman P. Ho, Confucian Jurisprudence, Dworkin, and Hard Cases, (Washington University Jurisprudence Review, Vol.10.1, Forthcoming).

From SmartCILP:

• Michael Scaperlanda, Scalia's Short Reply To 125 Years of Plenary Power, 68 Oklahoma Law Review 119-136 (2015).
• Symposium: Christianity and Human Rights. Articles by John Witte, Jr., Justin J. Latterell, Desmond M. Tutu, Nigel Biggar, Stanley Hauerwas, Robert M. Franklin, John Witte, Jr., Jean Porter, Russell Hittinger and Helen M. Alvare, 30 Journal of Law & Religion 353-495 (2015).

Recent Prisoner Free Exercise Cases

In Isakhanova v. Muniz, 2016 U.S. Dist. LEXIS 55649 (ND CA, April 26, 2016), a California federal district court allowed a suit by the mother of a Muslim inmate to proceed.  While visiting her son in prison, the mother was held for several hours on suspicion of passing tobacco to her son. While being held she was questioned extensively about her religious beliefs and practices.

In Sims v. Wegman, 2016 U.S. Dist. LEXIS 56251 (ED CA, April 27, 2016), a California federal magistrate judge allowed an inmate to move ahead with a complaint that he was denied a diet that complies with Nation of Islam requirements and was also denied a kosher diet as an alternative.

In Beaudette v. Winfrey, 2016 U.S. Dist. LEXIS 56275 (ND CA, April 26, 2016), a California federal district court dismissed with leave to amend an inmate's claim that some of his Christian Identity religious material was removed when he was moved to administrative segregation, and the material was never returned to him.

In James v. Taylor, 2016 U.S. Dist. LEXIS 55811 (MD GA, April 27, 2016), a Georgia federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 56612, March 22, 2016) and dismissed a Muslim inmate's claim against the prison warden alleging that plaintiff was denied vegan meals required by his religion during a Mental Health Evaluation.

In Williams v. Cox, 2016 U.S. Dist. LEXIS 56714 (SD GA, April 28, 2016), a Georgia federal magistrate judge recommended dismissing as moot a complaint by a Hebrew Israelite inmate that he was refused a work proscription for the Messianic/Sabbatarian date (as opposed to the Jewish date) for observance of Shavuot.

In Davilla v. Watts, 2016 U.S. Dist. LEXIS 56721 (SD GA, April 28, 2016), a Georgia federal magistrate judge recommended  that plaintiff be allowed to move ahead with free exercise, RFRA and equal protection objections to the elimination of "Spiritual Mass" for Santeria inmates and other interferences with Santeria practices.

In Wolcott v. Board of Rabbis of Northern & Southern California, 2016 U.S. Dist. LEXIS 56847 (ED CA, April 28, 2016), a California federal magistrate judge granted an inmate leave to file a third amended complaint alleging that Jewish inmates are allowed to possess Tefillin and a Tallit Katan only once a week in the chapel.

In Bayadi v. United States, 2016 U.S. Dist. LEXIS 57232 (WD VA, April 29, 2016), a Virginia federal district court dismissed as frivolous an inmate's claim that language in the state constitution establishes Christianity as the state religion.

In Evans v. Aramark Food & Commissary Services, 2016 U.S. Dist. LEXIS 57418 (SD NY, April 28, 2016), a New York federal court dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint that he was served insufficient amounts of food during Ramadan.

When Are Prison Chaplains "State Actors"?

In an opinion recommending dismissal of an inmate's First Amendment and RLUIPA claims, a California federal magistrate judge held that some decisions by prison staff chaplains do not amount to "state action" for constitutional purposes.  In Wolcott v. Board of Rabbis of Northern and Southern California, 2016 U.S. Dist. LEXIS 57528 (ED CA, April 29, 2016), plaintiff sued the former and current Jewish chaplains at the California Substance Abuse Treatment Facility because he was not allowed to convert to Judaism.  The refusal to allow his conversion stemmed from policies of the Southern California Board of Rabbis and the California Commission of Jewish Chaplains -- to whom the various Department of Corrections Jewish Chaplains report-- that disallow conversion by inmates serving life sentences. The court concluded that the chaplains were not state actors, finding that neither the "public function" nor the "joint action" doctrines applied here. The opinion reads in part:

Whether an inmate is a follower of a particular religion is an ecclesiastical answer to a religious doctrine, not an administrative determination; whereas a decision whether an inmate should be put on an internal prison list as following a particular religion is an administrative determination..., and Plaintiff does not allege that he is not on the list identifying him as Jewish for purposes within the facility, nor do his allegation imply this....

The only religious activities that Plaintiff alleges have been infringed on are that he was not allowed to attend [clergy visits from] the Aleph Institute ... [or] purchase religious packages [from] the Aleph Institute that regarded him as a non-Jew.... Plaintiff was prohibited from engaging in religious activities in these instances by the Aleph Institute -- which is an outside, religious organization that has not been, and cannot be, pursued in this action.

Christian Retreat Center Not Subject To Hotel Room Tax

In Susquehanna County Commissioners v. Montrose Bible Conference, (PA Commonwlth. Ct., April 21, 2016), a 3-judge appellate court panel upheld a lower court's ruling that a retreat center operated by a Christian religious organization is not subject to the county's hotel room rental tax.  While most of the decision focused on a procedural issue, in a footnote the court set out the substantive conclusion:

Even if the County had preserved its issue in a post-trial motion, the trial court properly concluded that MBC is not subject to the hotel tax because the County failed to establish that MBC is a “hotel.”... [S]ection 3 of the Ordinance defines a “hotel” as a structure that holds itself out “as being available to provide overnight lodging . . . for consideration to persons seeking temporary accommodations.” Here, MBC holds itself out as a religious facility and does not provide lodging to persons merely seeking overnight accommodations.

PennRecord reports on the decision.

GITMO Judge Defers Lifting Order Accommodating Muslim Detainees After Remarks By Top Brass

As previously reported, early last year a military judge at Guantanamo Bay issued an interim order requiring authorities to stop using female guards to move 5 defendants held in a top-secret Guantanamo unit back and forth to meetings with their lawyers. Defendants had been refusing to meet with counsel because physical contact with the female guards violates their Muslim religious beliefs.  AP now reports that this past Thursday the military judge, Army Col. James Poh, issued a 39-page ruling (not yet publicly released) saying that he will eventually lift the order.  However he postponed doing so for six months to show his displeasure at criticism of the original order leveled by Defense Secretary Ash Carter and Joint Chiefs of Staff Chairman Gen. Joseph Dunford during testimony before Congress in October. They called the judge's order outrageous.  Poh says that this kind of statement could be seen as an improper attempt to influence the Military Commission.  In his ruling, he said in part:

These comments were entirely inappropriate. They crossed the line. Senior military leaders should know better than to make these kinds of comments in a public forum during an ongoing trial.

He added that he did not take this step lightly, and might lift the order sooner if senior military officials took "appropriate action."

UPDATE: Here is the full text of the Military Commissions' ruling in United States v. Khalid Shaikh Mohammad, (MCTJ, April 28, 2016).

President Sends Greetings For Orthodox Christian Easter

In a White House press release (full text) yesterday, President Obama sent greetings to members of the Orthodox Christian community who are celebrating the Orthodox Easter this week end, saying in part:

Michelle and I extend our best wishes to members of the Orthodox Christian community here in America and around the world as they observe Holy Friday and the Feast of the Resurrection....

We lift up in prayer the members of the Orthodox community who have been persecuted for their faith and subjected to unspeakable acts of violence, and we seek the release of those who have been kidnapped.   We remember those who have been driven from their homelands and who have seen their religious institutions desecrated or destroyed. 

Michigan City Restores Cross On Sand Dune-- Sort Of...

As previously reported, in a controversial move last year that was unsuccessfully challenged by citizens, the city of Grand Haven, Michigan agreed to remove a 48 foot cross that had been displayed periodically on a city-owned sand dune for 50 years. The city turned the cross into a Coast Guard anchor. However, according to a report in the Washington Free Beacon, this week the Grand Haven City Council (with one of last year's councilmen having lost re-election) has now voted 3-2 to add a yardarm to a flag pole on the sand dune.  When the side arm is extended, the flag pole will look like a cross. That will happen on several holidays each year.

EEOC Sues Hospital Over Arbitrary Deadline For Religious Accommodation Requests

The EEOC announced today that it has filed a religious discrimination lawsuit against Mission Hospital based in Asheville, North Carolina.  At issue are requests by 3 employees for religious exemptions from the hospital's requirement that all employees receive the flu vaccine by December each year.  The hospital allows religious exemptions, but requires that the request be made by Sept. 1. The employees here made their requests after the deadline. The requests were denied and the employees were fired.  According to the EEOC:

An arbitrary deadline does not protect an employer from its obligation to provide a religious accommodation. An employer must consider, at the time it receives a request for a religious accommodation, whether the request can be granted without undue burden.

Alabama City Outlaws Restroom Use Conforming To Gender Identity That Differs From Birth Certificate

In the latest chapter in the "bathroom wars," on Tuesday the Oxford, Alabama City Council unanimously passed Ordinance No. 2016-18 (full text) barring anyone from using rest rooms or changing facilities that do not correspond to the gender stated on the person's birth certificate. A violation is punishable by a $500 fine and up to 6 months in jail.  As reported by the Anniston Star, Council's action came in response to last week's announcement by the department store chain Target that their employees and customers are welcome to use the restroom or fitting room facility that corresponds with their gender identity. Target has a store in Oxford.  Prosecutions under the new ordinance will only occur only if a violation is reported by a witness or committed in the presence of a police officer.  After passage of the ordinance, city council president Steven Waits read from a prepared statement, saying in part that the ordinance was enacted "to protect our women and children."

Secretary Kerry Speaks on Impact of Religion on U.S. Foreign Policy

On Tuesday, Secretary of State John Kerry delivered a lengthy address (full text) (video) at Rice University's Baker Institute for Public Policy focusing on the impact of religion on U.S. foreign policy. He said in part:

Religion today remains deeply consequential, affecting the values, the actions, the choices, the worldview of people in every walk of life on every continent and, obviously, also here at home. It is a part of what drives some to initiate war, others to pursue peace; some to organize for change, others to cling desperately to old ways, resist modernity; some to reach eagerly across the borders of nation and creed, and others to build higher and higher walls separating one group from the next.

But religion is not only pervasive; it is also complex, especially when viewed from the ground up. Most religions are internally diverse, reflecting multiple schools of thought, regional variations, and complicated histories. And the actions of religious communities, like all communities, are embedded in the political, economic, and cultural environment in which they are carried out. That is why religion as it is actually lived does not always look the way that we expect or have the impact that we anticipate. It is also why our engagement with religious actors has to extend beyond designated leaders to the rank and file.

Now, historically the State Department has tended to downplay the role of religion or pay attention only when religion is deemed a problem, a threat, a challenge. The department has not traditionally had the resources or made the necessary commitment to systematically analyze the importance that religion holds for the success or failure of our foreign policy.... Now that has changed, and the purpose of my remarks tonight is to explain what we now do differently and why those differences matter.

[Thanks to Blog from the Capital for the lead.] 

Armed Forces Court of Appeals Hears Oral Arguments On Court Martial For Refusing To Remove Religious Signs

Yesterday the U.S. Court of Appeals for the Armed Forces heard oral arguments in United States v. Sterling. In the case, the U.S. Navy-Marine Corps Court of Criminal Appeals upheld a court martial conviction of a marine corps member for disobeying a lawful order to remove signs containing Biblical verses that she had taped up around her desk.  (See prior posting.)  Stars and Stripes summarizes some of yesterday's argument:

Keller [representing the government] argued the Sterling was not punished for putting up religious signs, but rather for defying orders....

He also argued because Sterling never sought a religious accommodation and only raised the religious protections issue later, there was no argument that her religious freedoms were “substantially burdened” under the Religious Freedom Restoration Act.

Clement [representing Lance Cpl. Monifa Sterling] rebutted that because she invoked religious freedom later doesn’t mean that it’s not a fair consideration.

One Suit Against Scientology Proceeds As Leader Threatens Another (Unrelated) Lawsuit

In Los Angeles yesterday, a California state trial court judge refused to dismiss a suit brought against the Church of Scientology International and its Religion Technology Center by former church member Laura Ann DeCrescenzo.  According to MyNews L.A., plaintiff, who began to volunteer for the Church at age 6 or 7 and later became a member of its elite Sea Org, alleges that she was forced to work long hours before she was a teen and was forced to have an abortion at age 17.  The suit also sets out claims of false imprisonment, intentional infliction of emotional distress, unfair business practices and wage-and-hour violations.

Meanwhile, lawyers for Scientology's leader David Miscavige are threatening to file suit against the publisher of a book coauthored by Miscavige's own father titled Ruthless: Scientology, My Son David Miscavige, and Me. According to the Christian Examiner, the book is scheduled to be released in the United Kingdom next week. A demand letter from Miscavige's lawyers says that the book contains false, malicious, misleading and highly defamatory statements.

Christian Group Sues Challenging University's Speech Permit Policy

A Christian student organization at North Carolina State University this week filed suit against University officials challenging the school's Speech Permit Policy that requires students to obtain prior written permission before distributing leaflets or soliciting passersby. According to the complaint (full text) in Grace Christian Life v. Woodson, (ED NC, filed 4/26/2016), Grace Christian Life's members and staff initiate conversations with students about religion. These conversations take place in and around the Student Union. University officials informed the group that the University's Speech Permit Policy applies to these conversations. Plaintiffs allege that the Policy has not been similarly enforced against other groups, and contends that the policy and its enforcement infringe Christian Life's 1st and 14th Amendment rights. the Raleigh News & Observer, reporting on the case, quotes University officials as claiming that the suit is "frivolous and without merit."

European Court Says Turkey Violated Rights of Alevi Community

In  İzzettin Doğan and Others v. Turkey, (ECHR, April 26. 2016), the European Court of Human Rights in a Grand Chamber judgment held that Turkey violated Article 9 (freedom of religion) and Article 14 (prohibition on discrimination) of the European Convention on Human Rights when it refused to recognize and grant support to the Alevis (the country's second largest faith group) as a separate religious community. As described in the court's press release on its decision, the lawsuit by 203 Turkish nationals asked that

the Alevi community be provided with religious services in the form of a public service; that Alevi religious leaders be recognised as such and recruited as civil servants; that the cemevis (the places where Alevis practise their religious ceremony, the cem) be granted the status of places of worship; and that State subsidies be made available to their community. Their requests were refused on the grounds that the Alevi faith is regarded by the authorities as a religious movement within Islam, more akin to the “Sufi orders”.

The court found the Art. 9 violation by a vote of 12-5 and the Art. 14 violation by a vote of 15-1. According to AFP, there have been improvements in the Alevis position since the suit was first filed in 2010, with a Turkish court in August ruling that the government should cover all the expenses of Alevi places of worship. Daily Sabah says that last year Prime Minister Ahmet Davutoğlu said that Cemevis will be granted legal status. (See prior related posting.)

Indian Court Says Muslim Women Taking Pre-Med Test May Wear Hijabs

In the Indian state of Kerala yesterday, a High Court judge issued an order allowing Muslim women to wear a hijab while taking the All India Pre-Medical Test (AIPMT-2016). However they must present themselves a half hour early for frisking.  NDTV reports that the order came during a hearing on a challenge to the dress code for the test prescribed by the Central Board of Secondary Education.  The court said that the prescribed dress code amounts to a restriction on religious liberty.

Amicus Briefs In Support of Petitioner In Trinity Lutheran Case Are Now Available

Next term, the U.S. Supreme Court will hear oral arguments in Trinity Lutheran Church of Columbia, Inc. v. Pauley challenging Missouri's exclusion under its "no aid" clause of churches from its secular grant program for playground improvements. (See prior posting.) The deadline for amicus briefs in support of petitioner has now passed, and 25 briefs in support of Trinity Lutheran Church have been filed, along with one amicus brief in support of neither side. Links to all of the amicus briefs are available from the SCOTUSblog case page for the case.  Respondent's brief is not due until June 28, with amicus briefs supporting respondent due a week after that.

Controversial Noah's Ark Theme Park Gets Kentucky Tax Incentives

According to the Louisville Courier-Journal, on Monday Kentucky's Tourism Development Finance Authority approved by a 7-0 vote the controversial sales tax rebate incentives for Ark Encounter, the Noah's Ark theme park being constructed by Answers In Genesis. While the project had received preliminary approval for tax incentives in 2014, former Governor Steve Beshear’s Tourism Arts and Heritage Cabinet rejected the application after it appeared that the theme park intended to discriminate in hiring on the basis of religion and the project became one to promote a literal reading of the Biblical book of Genesis. (See prior posting.) At that point, Ark Encounter sued and won in federal district court. (See prior posting.) Gov. Matt Bevin, elected last November expressed approval of tax incentives, and cleared the way for final action by last week replacing four members of the Finance Authority.

Congressional Committee Holds Hearing On ISIL Genocide

On April 19, the Tom Lantos Human Rights Commission of the U.S. House of Representatives held a hearing on Confronting the Genocide of Religious Minorities: A Way Forward. The hearing focused on ISIL’s genocide against religious minorities and the options available to the United States and other nations. The prepared statements of four of the witnesses appearing at the hearing, transcripts of opening and closing remarks and a video of the full hearing are available on the Commission's website.

State Department Names This Year's "Countries of Particular Concern"

In a little-noticed action, on April 14 the State Department notified Congress of this year's designation of "countries of particular concern"-- those countries which display the most flagrant violations of religious freedom.  In an April 15 press conference (full text), a State Department spokesman said:

Yesterday, the Department of State notified Congress of the decision to re-designate the following countries as Countries of Particular Concern under the International Religious Freedom Act, also known as IRF. These countries are Burma, China, Eritrea, Iran, North Korea, Sudan, Saudi Arabia, Turkmenistan, Uzbekistan, and for the first time Tajikistan as a Country of Particular Concern. In accordance with the IRF Act, presidential actions for Burma, China, Eritrea, Iran, North Korea, and Sudan have been implemented. We have waived application of presidential actions with respect to Saudi Arabia, Tajikistan, Turkmenistan, and Uzbekistan following determinations that the important national interest of the United States required exercising this waiver authority.

These designations help us shine a spotlight on countries and conditions that require the international community’s attention. Today and every day, as you know, we are committed to working with governments, civil society organizations, and individuals to achieve our shared interest in promoting peace and stability through, in part, the promotion and protection of all human rights including religious freedoms.

In a press release welcoming the action, the U.S. Commission on International Religious Freedom said that it would like to see seven additional countries placed on the CPC list: Central African Republic, Egypt, Iraq, Nigeria, Pakistan, Syria, and Vietnam. Christian Post highlighted concerns over the omission of Pakistan.

Colorado Supreme Court Denies Review In Case of Baker Who Refused Wedding Cake For Gay Couple

According to yesterday's Denver Post, the Colorado Supreme Court has denied review in the widely watched case of  Craig v. Masterpiece Cakeshop, Inc. In the case, the state court of appeals affirmed a decision of the Colorado Civil Rights Commission that a bakery's refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law, and that the Commission's cease and desist order does not infringe the bakery owner's free exercise or free speech rights. (See prior posting.)

Idaho Governor Vetoes Bill That Would Have Allowed Bible To Be Used For Reference In Public Schools

Earlier this month, Idaho Governor C.L. "Butch" Otter vetoed S1342 (full text) which would have explicitly permitted religious texts, including the Bible,

to be used in Idaho public schools for reference purposes to further the study of literature, comparative religion, English and foreign languages, United States and world history, comparative government, law, philosophy, ethics, world geography, archaeology, music, sociology, and other topics of study where an under standing of religious texts, including the Bible, may be useful or relevant.

An amendment had deleted a reference to geology, astronomy and biology courses. (Spokane Spokesman-Review, April 5).

In his April 5 veto message (full text), Otter said that the bill "is in direct contravention to the Idaho Constitution, and it could result in a loss of funding and costly litigation for Idaho public schools." Art. 9, Sec. 6 of the state constitution specifically prohibits "books, papers, tracts or documents of a political, sectarian or denominational character" from being used in any public school, and calls for a cut off of funding for schools that do not comply.  As reported earlier this month by Idaho Education News, Otter issued his veto a week after the legislature adjourned.

Puerto Rico Tax Authorities Will Begin To Audit Churches

Puerto Rico's Secretary of the Treasury Juan Zaragoza says that beginning next month his agency will begin to audit religious organizations as part of a pilot program begun last year to look at non-profits that are wrongfully avoiding taxes.  According to Ateistas de Puerto Rico (April 22), Zaroga said: "The problem is that there are churches that are family businesses where people are making a profit." [Thanks to Scott Mange and Friendly Atheist for the lead.]

Oklahomans Will Vote On Repeal of Blaine Amendment

The Oklahoma legislature last Thursday gave final passage to SJR 72 (full text) (legislative history), referring to the voters of the state a proposed constitutional amendment to eliminate the state's Blaine Amendment.  The amendment would repeal Art. 2, Sec. 5 of the Oklahoma constitution that prohibits public funds or property from being used for sectarian or religious purposes. Legislative passage came in reaction to a state supreme court ruling last year that, in reliance on Art. 2, Sec. 5, ordered removal of a Ten Commandments monument from the statehouse grounds. As reported by The Oklahoman, an ACLU spokesman said that if the ballot measure passes, the ACLU would likely file a federal challenge to the Ten Commandments monument.

Student Sues After Suspension From M.S. Program Over Refusal To Counsel Gay Couples

A suit was filed last week in federal district court in Missouri by a former student in the Masters in Counseling program at Missouri State University alleging that he was removed from the program because of his religious views on counseling same-sex couples on their relationships.  The complaint (full text) in Cash v. Governors of Missouri State University, (WD MO, filed 4/19/2016), alleges in part:

Plaintiff’s experience at MSU has been devastating, crushing, and tormenting, culminating in his termination from the program -- all because he interned with a Christian organization and expressed his religious beliefs on a hypothetical question about counseling a gay couple on relationship issues.

... Plaintiff was targeted and punished for expressing his Christian worldview ... regarding a hypothetical situation.... Since he did not give the “correct” answer required by his counseling instructors, he was considered unsuitable for counseling and terminated from the program.

Thomas More Society announced the filing of the lawsuit. AP reports on the case.

Recent Articles of Interest

From SSRN:

• Thomas M. McDonnell, The Egyptian Coup, the United States, and a Call to Strengthen the Rule of Law and Diplomacy Rather than Military Counter-Terrorism, (October 26, 2015).
• Andrea Pin, The Arab Road to Dignity: The Goal of the 'Arab Spring', (Kellogg Institute for International Studies Working Paper Series No. 408, 2016).
• Hooman Movassagh, Human Organ Donations Under the 'Iranian Model': A Rewarding Scheme for U.S. Regulatory Reform?, (Indiana Health Law Review Vol. 13:1 (2016)).
• M.C. Mirow, Rerum Novarum: New Things and Recent Paradigms of Property Law, (47 U. Pac. L. Rev. 183-197 (2016)).
• George W. Dent, Meaningless Marriage, (April 20, 2016).
• SpearIt, Sonic Jihad—Muslim Hip Hop in the Age of Mass Incarceration, (11 Florida Intl. L. Rev. 201 (2015)).
• Mark Cammack, The Punishment of Islamic Sex Crimes in a Modern Legal System: The Islamic Qanun of Aceh, Indonesia, (April 17, 2016).

From SmartCILP:

• Amy J. Sepinwall, Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby's Wake, 82 University of Chicago Law Review 1897-1980 (2015).

Recent Prisoner Free Exercise Cases

In Greybuffalo v. Wall, 2016 U.S. Dist. LEXIS 50751 (WD WI, April 15, 2016), a Wisconsin federal district court permitted a Native American inmate to move ahead with his complaint that his requests for devotional services for the Native American Church and for group use of a water drum have been denied.

In Smith v. Courtney, 2016 U.S. Dist. LEXIS 51065 (ND FL, April 14, 2016), a Florida federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 51068, March 22, 2016) and dismissed a Muslim inmate's complaint that inmates in close management are not allowed to attend religious preaching and prayer with other Muslim inmates.

In Evans v. Muniz, 2016 U.S. Dist. LEXIS 51804 (ND CA, April 18, 2016), a California federal district court dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint against one of the defendants. At issue was the lack of halal meals.

In Jones v. Johnson, 2016 U.S. Dist. LEXIS 52553 (D CT, April 20, 2016), a Connecticut federal district court permitted an inmate to move ahead with his complaint that inmates in segregation were denied religious services.

In Cejas v. Myers, 2016 U.S. Dist. LEXIS 53088 (ED CA, April 19, 2016), a California federal magistrate judge recommended dismissing a Buddhist inmate's complaint about denial of chapel access for group services.

In Martinez v. Flicker, 2016 U.S. Dist. LEXIS 53149 (ED CA, April 19, 2106), a California federal magistrate judge dismissed with leave to amend an inmate's vague allegations that his religious rights have been infringed.

In Don v. Kelley, 2016 U.S. Dist. LEXIS 54124 (ED AR, April 22, 2016), an Arkansas federal magistrate judge dismissed a complaint by an inmate who practiced his religion as a Nazarite over the questioning and harassment he received about his religious beliefs.

Hasidic Challengers To Zoning Law Suffer a Defeat on Appeal

LostMessiah blog reports:

A [New York] state appeals court has upheld the Village of Woodbury’s Comprehensive Plan and zoning laws, reversing a 2014 ruling that branded the zoning “exclusionary” for failing to accommodate the high-density housing needs of the Hasidic residents of neighboring Kiryas Joel.

In Matter of Village of Kiryas Joel, N.Y. v Village of Woodbury, N.Y., (NY App. Div., April 10, 2016), the appeals court concluded that the trial court should not have annulled the village's zoning action on environmental review and other procedural grounds. It sent the case back to the trial court, holding that "triable issues of fact exist as to whether the Comprehensive Plan and the Zoning Amendments amount to unconstitutional exclusionary zoning." (See prior related posting).

New York Court Refuses To Dismiss Suit To Declare Muslim Marriage Valid

In Jackson K v. Parisa G, 2016 N.Y. Misc. LEXIS 1487 (NY Sup Ct New York County, April 8, 2016), a New York state trial court refused to dismiss a suit by plaintiff who believed he had validly married defendant in an elaborate Iranian Islamic ceremony in New York, attended by 200 guests, even though the couple did not obtain a New York marriage license.  Alternatively plaintiff sought damages for fraud and conversion of a $25,000 engagement ring. A 20-minute ceremony was performed by Ms. Sholeh Sham, who now says she is not a member of the clergy and had no authority to marry the couple. Plaintiff however claims the marriage was valid under NY Domestic Relations Law Sec. 12 that validates marriages solemnized "in the manner heretofore used and practiced" by a particular religious denomination. The court said in part:

The court need not decide at this point whether it is possible for the court to determine the validity of the purported marriage on neutral principles. The ultimate issue is whether the ceremony meets the requirements set forth in DRL §12. Plaintiff argues that, in Defendant's denomination, no particular religious leader must solemnize a wedding ceremony. Under New York law, an officiant at a religious wedding ceremony need not be limited to a traditional concept of a member of the clergy or a minister ordained by a religious order..... Whether Ms. Shams was qualified to solemnize the marriage is an issue of fact....

The court also allowed plaintiff to move ahead with his claim of fraud, saying:

Here, the complaint includes detailed allegations to the effect that the Defendant accepted Plaintiff's marriage proposal and engagement ring on July 29, 2009...; that the Defendant told him that her family wanted to select the wedding  officiant to be certain that the marriage would be recognized in the Islamic Republic of Iran and valid under Iranian law.... 

... Plaintiff alleges that Defendant convinced him that Ms. Shams was authorized to marry them at the time she officiated at the September 4, 2010 Ceremony, and that they were actually married on September 4, 2010. Only after years of purported marriage did Defendant tell Plaintiff they were not married.

Former Kosher Supervisor At Manischewitz Sues Over Pressure To Compromise Standards

A lawsuit was filed Wednesday in state court in New York by Rabbi Yaakov Horowitz who was a kosher supervisor for the Union of Orthodox Jewish Congregations ("OU") and who certified products of Manischewitz Co.-- a major producer of Passover foods-- for more than 20 years.  As reported by NJ Advance Media and AP, the suit, filed just days before Passover, claims that Horowitz was forced to take a long leave of absence after complaining that he was being pressured by the OU to be more lax in his inspections of certain products.  Horowitz claims that OU cooperated because it was afraid that Manischewitz would move to a different kosher certifying agency.  Manischewitz denies the charges. The lawsuit seeks millions of dollars in damages for emotional distress and damage to reputation.

White House Passover Seder Will Be Late

Passover begins this evening.  President Obama has made it a practice to host a Passover Seder in the White House every year, building on a Seder he attended in Pennsylvania during the 2008 primary season when he was first running for President.  That Seder, in a hotel, was organized by Jewish members of his campaign staff. The Forward reports that this year the President's Seder will be late since he is in Saudi Arabia through this weekend attending a regional cooperation summit.  So the White House Seder will be held next week, still during Passover but not on one of the first two nights when Seders are usually held.

UPDATE: Here is the President's Passover message to the Jewish community, noting that this year will be their last Seder in the White House.

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.