EEOC Sues Claiming Inadequate Accommodation of Refusal To Take Flu Shot

The EEOC announced last week that it has filed suit in a Massachusetts federal district court against Baystate Medical Center in Springfield, Massachusetts for failing to accommodate an employee who, for religious reasons, refused to get a flu vaccination.  The medical center allows employees with religious objections to instead wear a mask at work.  Stephanie Clarke, a recruiter in Baystate's human resources department, initially wore the mask, but job applicants could not understand her when they spoke to her. So she removed her mask and requested Baystate to find a different accommodation. Instead Baystate put her on indefinite, unpaid leave, and when she complained it terminated her employment. EEOC argues that an accommodation under Title VII must both respect the employee's religious beliefs and permit her to do her job effectively. Here she was terminated because she complained about religious discrimination. BNA Daily Labor Report has more on the suit.

County Settles Lawsuit By Removing Cross Decals From Sheriff's Cars

Austin American-Statesman reports that last week Brewster County, Texas commissioners approved a settlement in Freedom From Religion Foundation, Inc. v. Brewster County, Texas, which had been filed in federal district court in March.  In the case, FFRF sued challenging 8-inch tall Latin cross decals placed by the sheriff on six county law enforcement vehicles. (See prior posting.)  Three weeks after the suit was filed, the county Commissioners Court approved a ban on all political, religious, commercial and personal symbols and messages on county vehicles. In the proposed consent decree (full text) embodying the settlement, the court will enjoin the county from displaying Latin cross decals on Sheriff's Office vehicles, order defendants to pay plaintiffs' attorneys' fees and cost totaling slightly over $22,000, and award nominal damages of $1 each to two individual plaintiffs in the lawsuit.

Another Challenge Filed To Mississippi's Freedom of Conscience Law

As reported by AP, on Friday a third lawsuit was filed challenging Mississippi's House Bill 1523, the Protecting Freedom of Conscience From Government Discrimination Act. Mississippi Center for Justice announced the filing of the federal lawsuit which was brought by a group of clergy, community leaders, activists and a Hattiesburg church.  The complaint (full text) contends:

With the passage and approval of that bill, the Legislature and the Governor breached the separation of church and state, and specifically endorsed certain narrow religious beliefs that condemn same-sex couples who get married, condemn unmarried people who have sexual relations, and condemn transgender people.

Last month the ACLU filed a lawsuit challenging the new law (see prior posting) and plaintiffs in a suit that helped bring down the barriers to same-sex marriage in Mississippi have moved to challenge the law by reopening their lawsuit.

Ramadan Begins Today; Obama Issues Greetings

Al Arabiya reports that Saudi Arabia's Supreme Court (after confirming seeing the moon crescent) has declared that Ramadan begins today.  UAE, Jordan and the Palestinian Authority have issued similar declarations. In the United States and a number of other countries, Muslims generally rely on astronomical calculations-- rather than actual sighting of the new moon-- for the beginning of Ramadan. (Background.) Yesterday President Obama issued a statement (full text) on behalf of himself and Michelle extending best wishes to Muslims in the United States and around the world. His statement said in part:

As Muslim Americans celebrate the holy month, I am reminded that we are one American family.  I stand firmly with Muslim American communities in rejection of the voices that seek to divide us or limit our religious freedoms or civil rights. 

Pope Issues Apostolic Letter On Procedure For Removal of Bishops In Abuse Cases

In the Vatican on Saturday, Pope Francis issued motu proprio (i.e. on his own initiative) an Apostolic Letter (full text in Italian) establishing a procedure for the removal of Bishops (and those of equivalent Canon Law rank) who through their negligence have caused grave harm to others. The Letter titled Come una madre amorevole ("As a Loving Mother") clarifies that negligence in cases of sexual abuse against children or vulnerable adults are among the "grave causes" that justify removal.  Vatican Radio reports:

Father Lombardi [Director of the Holy See Press Office] drew attention especially to two points in the Apostolic Letter. First, the “lack of diligence” necessary for removal from office can exist even be “without grave moral fault” on the part of the Bishop.

Second, in cases concerning the abuse of minors “it is sufficient that the lack of diligence be ‘grave,’ while in other cases it is required that the lack of diligence be ‘very grave’.” This effectively lowers the standard necessary for a Bishop to be removed from office when there is negligence with regard to cases of sexual abuse.

In cases involving important decisions regarding Bishops, including those foreseen in the Apostolic Letter, the specific approval of the Holy Father is necessary. Father Lombardi noted that this is not a new disposition.

However, the Apostolic Letter does introduce a new “dedicated College of jurists” (It.: “apposito Collegio di giuristi"), which will assist the Holy Father before he makes a definitive decision. Father Lombardi said the College would be expected to be composed of Cardinals and Bishops.

[Thanks to Tom Rutledge for the lead.]

UPDATE: Victim advocates are skeptical of the new policy. (Statement by SNAP.)

Recent Articles of Interest

From SSRN:

• Craig B. Mousin, You Were Told to Love the Immigrant, But What if the Story Never Happened? Hospitality and United States Immigration Law, (Vincentian Heritage Journal: Vol. 33: Iss. 1, Article 8).
• Richard Moon, Neutrality and Prayers: Mouvement Laique v Saguenay, (Oxford Journal of Law and Religion, 2015, 4, 512–519).
• Stephen M. Bainbridge, The Parable of the Talents, (UCLA School of Law, Law-Econ Research Paper No. 16-10 (2016)).
• Douglas Laycock & Steven T. Collis, General Applicable Law & the Free Exercise of Religion, (Nebraska Law Review, Vol. 95, 2016).
• Edward Stein, Plural Marriage, Group Marriage and Immutability in Obergefell v. Hodges and Beyond, (University of Missouri-Kansas City Law Review, Vol. 84, No. 3, 2016).
• Mitchell L. Engler & Edward Stein, Not Too Separate or Unequal: Marriage Penalty Relief after Obergefell, (Washington Law Review, Vol. 91, 2016).

From elsewhere:

• Symposium on "Substantial Burden" Under RFRA, University of Illinois Law Review Online (2016).

Recent Prisoner Free Exercise Cases

In Longoria v. Kansas Department of Corrections, 2016 Kan. App. Unpub. LEXIS 414 (KA App., May 27, 2016), a Kansas appellate court dismissed an inmate's complaint that among items taken by a correctional officer from his cell were 5 pages he had torn out from the Bible.

In Isby-Israel v. Lemmon, 2016 U.S. Dist. LEXIS 71092 (SD IN, June 1, 2016), an Indiana federal district court dismissed a Hebrew Israelite inmate's complaint regarding the form that was required to be signed in order to obtain kosher meals.

In Skates v. Shusda, 2016 U.S. Dist. LEXIS 71446 (ND NY, May 31, 2106), a New York federal magistrate judge recommended that a Nation of Islam inmate be permitted to move ahead with his complaint that he did not received a Sahoor bag meal on one occasion that he needed to consume before down in order to observe the NOI Holy Day of Atonement fast.

In Jackson v. Russell, 2016 U.S. Dist. LEXIS 71842 (D DE, June 2, 2016), a Delaware federal district court dismissed an inmate's claim that he was relieved of his duties as chapel photographer and not chosen as Nehemiah Chapel Clerk because he is a Mormon.

In Doering v. Reed, 2016 U.S. Dist. LEXIS 72638 (WD AR, June 3, 2016), an Arkansas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 72639, April 29, 2016) and dismissed an inmate's complaint that a correctional officer asked to see his religious accommodation form that allowed him to wear a beard, and when shown it threw it to the floor and said he hoped plaintiff "got mange."

In Shakur v. Thomas, 2016 U.S. Dist. LEXIS 72707 (ND NY, June 2, 2016), a New York federal magistrate judge recommended that a Muslim inmate be allowed to move ahead with his complaint that he was denied an Eid ul-Adha festival meal, was denied halal meals and sahur bags for 6 days during Ramadan when there was a prison shutdown, was denied participation in congregational prayer and a halal meal during the Muslim holiday of Shawwal, and was subjected to retaliation. However he recommended dismissal of various other claims, including and equal protection claim.

In Kindred v. King, 2016 U.S. Dist. LEXIS 72851 (ED CA, June 2, 2016), a California federal magistrate judge recommended dismissing with leave to amend a suit by a Native American civil detainee who alleged a series of infringements of his Native American religious practices.

Challenge To Holiday Law Moves Ahead In German Courts

As reported by The Local, in Germany last Thursday the High Court in North Rhine-Westphalia upheld a 100 Euro fine that had been imposed on Martin Budich, the organizer of Religious Freedom in the Ruhr.  Budich was fined for breaking the state's so-called "holiday law" which, among other things, prohibits showing films that are not approved by the state on holidays.  Every year since 2013, on Good Friday Budich has shown the classic British comedy which satirizes the life of Jesus, "The Life of Brian".  His goal has been to test the constitutionality of the holiday law. Now with the High Court's decision, Budich is able to appeal and mount that challenge in Germany's Federal Constitutional Court.  Friendly Atheist has more on the decision. [Thanks to Scott Mange for the lead.]

Sewer Connection To Amish Must Be Made In Least Religiously Intrusive Means

In Yoder v. Sugar Grove Area Sewer Authority, (PA Commw., June 3, 2016), a Pennsylvania appellate court remanded to the trial court a suit by an Old Order Amish family seeking to avoid connecting their property to the public sewer system.  In an earlier decision, the trial court had concluded that the interest in protecting public health through a sewer connection outweighed the Amish family's free exercise rights, but required that the connection to the sewer system be made in accordance with the family's religious convictions. The current suit stems from disagreements on how to carry out this prior order and the trial court's improper belated modification of it. According to the court, the Amish family has religious objections to having electricity power anything associated with the use of their outhouse, and risk excommunication if they use a privy tainted with the use of electric power. In remanding and requiring the trial court to reconsider the method by which a sewer connection would be made to the family's property, the court said in part:

The trial court’s analysis regarding the threat to public safety pertained to the lack of any sewer connection at all, not a connection by nonelectric means, or, failing that, electricity generated by natural, non-electricity provider means. Importantly, the trial court also did not address Owners’ alleged clear right to the least intrusive means of a mandatory connection. 

Federal Court Dismisses Challenge To State Custody Order

In Goffstein v. Sieve, (SD OH, June 2, 2016), an Ohio federal district court dismissed a suit claiming that an Ohio domestic relations court judge in removing custody of four children from their Orthodox Jewish mother had infringed the mother's right to control the education of her children and the children's right to practice their religion. The court gave custody to the father who was no longer practicing Orthodox Judaism and who sent the children to public school instead of to yeshivas. The court held that its review of the claims is precluded by the Rooker-Feldman doctrine which bars lower federal courts from conducting appellate review of final state-court judgments.

Indian Court Convicts 24 In Killing of Muslims In 2002 Gujarat Riots

Al Jazeera reports that a court in India yesterday convicted 24 people in the 2002 killings of 69 Muslims during religious riots in Gujarat state.  36 others were acquitted for lack of evidence.  The killings took place when a Hindu mob stormed a cluster of buildings in Ajmedabad where Muslims were hiding.  The mob burned and hacked the victims to death.

Muslim Prof Says Administrators Discriminated In Favor of Nigerian Christians

The New Orleans Times-Picayne reports that on Tuesday a Muslim biology professor at Southern University in New Orleans sued in federal district court claiming that administrators discriminated against him and other Muslim professors in order to get rid of them and hire Nigerian Christians, favored by the school's Chancellor Victor Ukpolo. Plaintiff Ibrahim Ekaidi contends that administrators encouraged non-Nigerian faculty to leave by denying them committee assignments, pay raises promotion and tenure.

Third Canadian Special Prosecutor Can Bring Polygamy Charges Against FLDS Leader

In Blackmore v. British Columbia (Attorney General), (BC CA, June 1, 2016), the British Columbia Court of Appeal upheld the appointment of the third special prosecutor since 2007 to bring polygamy charges against FLDS Church leader Winston Blackmore who lives in Bountiful, British Columbia.  In 2011, a British Columbia court upheld most applications of Canada's anti-polygamy law. (See prior posting.) In yesterday's decision, the appeals court rejected the argument that the first special prosecutor's decision not to approve charges was final. The Province reports on the decision. [Thanks to Religion News for the lead.]

3rd Circuit: Challenge To Abortion Clinic Buffer Zones May Move Ahead

In Bruni v. City of Pittsburgh, (3d Cir., June 1, 2016), the U.S. 3rd Circuit Court of Appeals reversed the dismissal of a challenge to Pittsburgh's law creating a 15-foot buffer zone around abortion clinics in which demonstrators and pickets are barred.  The majority held:

the First Amendment claims are sufficient to go forward at this stage of the litigation. The speech at issue is core political speech entitled to the maximum protection afforded by the First Amendment, and the City cannot burden it without first trying, or at least demonstrating that it has seriously considered, substantially less restrictive alternatives that would achieve the City’s legitimate, substantial, and content-neutral interests.

Judge Fuentes concurred in the judgment, but filed an opinion disagreeing with the majority's reasoning, arguing that requiring governments that place significant burdens on speech to prove that less restrictive means either failed or were seriously considered and rejected distorts the "narrow-tailoring" doctrine by eliminating the government's latitude to adopt regulations that are not the least intrusive means of serving the government's interest. Pittsburgh Post-Gazette reports on the decision.

4th Circuit Puts Transgender Case On Fast Track to Supreme Court

As previously reported, in April, in a 2-1 decision, 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 filed a motion for a rehearing en banc, but this week in G.G. v. Gloucester County School Board, (4th Cir., May 31, 2016), the court issued an order denying the rehearing petition.  However Judge Niemeyer, who had dissented in the April decision, filed a dissent from the denial of a rehearing, but said:

While I could call for a poll of the court in an effort to require counsel to reargue their positions before an en banc court, the momentous nature of the issue deserves an open road to the Supreme Court to seek the Court’s controlling construction of Title IX for national application. And the facts of this case, in particular, are especially “clean,” such as to enable the Court to address the issue without the distraction of subservient issues.

Lyle Denniston at SCOTUSblog reports on developments.

EU Court Adviser Says Hijab Ban By Private Business Is Permissible

The Advocate General of the Court of Justice of the European Union has recommended to the Court that it interpret the EU's employment equality directive (Directive 2000/78/EC) as permitting businesses to ban Muslim employees from wearing a headscarf as part of an employer's broader policy seeking to achieve religious and ideological neutrality.  The case arose from a request from the Belgian Court of Cassation for clarification of the Directive's provisions. The EU Advocate's full opinion in Achbita v. G4S Secure Solutions NV (May 31, 2016) observes:

Ultimately, the legal issues surrounding the Islamic headscarf are symbolic of the more fundamental question of how much difference and diversity an open and pluralistic European society must tolerate within its borders and, conversely, how much assimilation it is permitted to require from certain minorities.

The opinion concludes in part:

The fact that a female employee of Muslim faith is prohibited from wearing an Islamic headscarf at work does not constitute direct discrimination based on religion ... if that ban is founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. That ban may, however, constitute indirect discrimination based on religion....

Such discrimination may be justified in order to enforce a policy of religious and ideological neutrality pursued by the employer in the company concerned, in so far as the principle of proportionality is observed in that regard. In that connection, the following factors in particular must be taken into account: – the size and conspicuousness of the religious symbol, – the nature of the employee’s activity, – the context in which she has to perform that activity, and – the national identity of the Member State concerned.

The Court of Justice issued a press release on the Advocate's opinion, and Reuters reports further on it.

Christian Camp Says Nearby Dairy Farm Approval Violates RLUIPA

A lawsuit was filed last month in an Indiana state trial court by a Christian youth camp which objects to a zoning board's approval of a large dairy farm nearby. The complaint (full text) in House of Prayer Ministries, Inc. v. Rush County Board of Zoning Appeals, (filed 5/16/2016), alleges that the 1400 cows and three large waste lagoons on the farm will expose campers to noxious odors and harmful air emissions that will "interfere with Harvest Christian Camp's thirty-year mission and ability to provide a safe, healthy, and Christian rural setting for thousands of children and teens to be educated, enriched spiritually, and enhanced by the outdoors...."  This, the complaint alleges, amounts to a substantial burden that violates the camp's rights under RLUIPA, the Indiana Religious Freedom Restoration Act, the First and 14th Amendments and the state constitution's equal privileges and immunities clause. RLUIPA Defense blog reports on the case.

Iran Will Boycott This Year's Hajj

Reflecting continuing tension between the two countries, on Sunday Iran announced that it will not allow its citizens to travel to Saudi Arabia in September for the Hajj.  According to the New York Times, Iran blamed Saudi Arabia for lack of cooperation, while the Saudi Ministry of Hajj and Umrah said an Iranian delegation refused to sign an agreement to resolve outstanding issues. The two countries had been at odds over transportation, security and procedures for issuing visas. (See prior posting.) Press TV quoted remarks by Iran's Minister of Culture and Islamic Guidance Ali Jannati:

Given the way Saudi authorities treated Iranian delegates and talked to them during two rounds of negotiations as well as in view of their sabotage and obstacles they created, unfortunately Iranian pilgrims cannot go to Hajj this year.

Hundreds of Iranian pilgrims were killed in a stampede during last year's Hajj. (See prior posting.)

Catholic Publisher Must File Reports With AG Under New Hampshire Law

In Attorney General, Director of Charitable Trusts v. Loreto Publications, Inc., (NH Sup. Ct., May 27, 2016), the New Hampshire Supreme Court held that a non-profit publishing house and bookseller of Catholic literature is a "charitable trust" under New Hampshire law and thus is required to register and submit annual reports to the state Attorney General's office. The court interpreted the reporting exclusion in NH RSA 7:19 for "religious organizations" to apply to organizations classified by the Internal Revenue Service as "churches" under the federal tax code.  According to the court, "Loreto conducts no religious services, has no congregation, and provides no religious instruction." While the exemption also applies to integrated auxiliaries of religious organizations, Loreto is not integrated auxiliary of the Catholic Church either.

Britain's Home Office Launches Investigation Into Sharia Law

In Britain last week, Home Secretary Theresa May announced that her office has begun an independent investigation into the application of Sharia law in England and Wales.  The review will be chaired by Professor Mona Siddiqui, an internationally known expert in Islamic and inter-religious studies. Her panel of experts will be advised by two imams. According to the Department's May 26 press release:

The Home Secretary committed to an independent review of the application of Sharia Law as part of the government’s Counter-Extremism Strategy. The strategy notes that many people in England and Wales follow religious codes and practices, and benefit from the guidance they offer. However, there is evidence some Sharia councils may be working in a discriminatory and unacceptable way, seeking to legitimise forced marriage and issuing divorces that are unfair to women, contrary to the teachings of Islam. It will also seek out examples of best practice among Sharia councils.

Recent Articles of Interest

From SSRN:

• Courtney Miller, 'Spiritual But Not Religious': Rethinking the Legal Definition of Religion, (Virginia Law Review, Vol. 102, No. 3, 2016).
• Zachary D. Smith, Of Commandments, Crosses, & Prayers: The Roberts Court's Approach to Public Religion, (Brigham Young University Law Review, Vol. 2015, No. 845, 2015).
• Elizabeth Sepper, Contracting Religion, (Law, Religion, and Health in the United States, Holly Fernandez Lynch, I. Glenn Cohen, & Elizabeth Sepper eds., Cambridge Univ., 2017, Forthcoming).
• Kaari E. Hong, From Footnote to Footprint: Obergefell's Call to Reconsider Immigration Law as Family Law, (Forthcoming in Family Law in Britain and America, Brill Publishers, 2016).
• Kari E. Hong, After Obergefell: Finding a Contemporary State Interest in Marriage, (Forthcoming in The Contested Place of Religion in Family Law, Cambridge University Press, 2016).

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

• Surabhi Chopra, Massacres, Majorities and Money: Reparation after Sectarian Violence in India, (Asian Journal of Law and Society, Forthcoming).
• Ketan Modh, Controlling Hate Speech on the Internet: The Indian Perspective, (October 12, 2015).
• Neliana Rodean, Adoption and Same-Sex Couples: New Rights in European Constitutional Space after the Ruling X and Others v. Austria, Direitos Fundamentais & Justica no.29/2014, Oct. 2015).
• Oonagh B. Breen, European Non-Profit Oversight: The Case for Regulating from the Outside In, (Chicago-Kent Law Review, Vol. 91, No. 3, 2016, Forthcoming).

Judge Sentences Defendant To 12 Sundays of Baptist Services

Yesterday's Cincinnati Enquirer reports on the elaborate in-court discussion that led a Hamilton County, Ohio trial court judge to sentence defendant Jake Strotman, charged with attempted assault, to attend a local Baptist church for the next 12 Sundays.  He also paid $480 in court costs and $2800 in attorneys' fees.  The assault charge grew out of a brawl that developed outside a hockey arena between enthusiastic street preachers and hockey fans (including Strotman) who had been drinking at the game.  Strotman, a Catholic, is apparently happy with the sentence.

Transgender Man Sues Men-Only Barber Shop That Refused Him Service

A state court lawsuit was filed last week in California against a men-only barber shop and two of its barbers who, for religious reasons, refused to cut the hair of a transgender man.  The complaint (full text) in Oliver v. The Barbershop, R.C., Inc., (CA Super., filed 5/24/2016), relates the following reasons given to reporters by the barber shop's owner for the policy:

"It's a shame for a man to have long hair, but if a woman has long hair, it's her glory and it speaks to being given to her as her covering, and I don't want to be the one who is taking away from her glory."  Hernandez also told reporters that when "people go against what God has created, you start getting everything out of whack."

The suit seeks injunctive relief under California's Unruh Civil Rights Act. A Lambda Legal press release reports on the case.

Recent Prisoner Free Exercise Cases

In Clark v. Curry, 2016 U.S. Dist. LEXIS 67162 (MD AL, May 23, 2016), an Alabama federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 67312, April 20, 2016) and dismissed plaintiff's objections to allegedly required participation in a faith-based Alcoholics Anonymous 12-step program as a condition of his suspended sentence.

In Smith v. Fischer, 2016 U.S. Dist. LEXIS 67403 (WD NY, May 23, 2016), a New York federal district court dismissed an inmate's complaint about a 9-day delay in receiving a kosher diet.

In Powlette v. Morris, 2016 U.S. Dist. LEXIS 67796 (SD NY, May 23, 2016) a New York federal district court dismissed on qualified immunity grounds plaintiffs' complaint that prison authorities replaced the Rastafari holiday of Negus Day with the Battle of Adwa Victory in the 2013 DOCCS Religious Calendar.

In Riley v. Muhammad, 2016 U.S. Dist. LEXIS 68766 (WD PA, April 4, 2016), a Pennsylvania federal district court adopted a magistrate's recommendation and dismissed an inmate's complaint that he was not allowed to have his pants legs rolled up in violation of his religious beliefs, his complaint over the way prison authorities calculated the beginning of Ramadan, and his complaiant that he was not furnishes halal meat.

In Muhammad v. Douglas, 2016 U.S. Dist. LEXIS 70000 (SD NY, May 25, 2016), a New York federal district court dismissed an inmate's claim that his free exercise rights were infringed by placing him in keeplock for refusing to have his beard removed.

In Hoffman v. Lassen Adult Detention Facility, 2016 U.S. Dist. LEXIS 70086 (ED CA, May 26, 2016), a California federal magistrate judge recommended allowing plaintiff to proceed with his claim for damages for an initial denial of his request for a kosher diet.

Complaint Alleges Inn Owner Refused Interfaith Wedding Service

ACLU of Illinois reports on a complaint it filed last month with the Illinois Department of Human Rights charging Bernadine’s Stillman Inn in Galena, Illinois with religious discrimination. After reserving the Inn for their wedding, the Inn's owner Dave Anderson told Jonathan Webber and Alexandra Katzman, an interfaith couple, that he would only allow Christian wedding ceremonies to be performed in his chapel. The couple wanted a non-religious ceremony so that the family of Ms. Katzman, who is Jewish, would be comfortable.

Survey of State Legislative Action On Religious Freedom and LGBT Rights

An AP article posted yesterday provides a useful state-by-state summary of legislative activity and executive orders this year in 35 states relating to religious freedom, including bills that specifically protect religious views relating to sexual orientation and gender identity. The summary also includes other bills dealing with LGBT rights. In a number of the states surveyed, proposed bills failed to pass.

New Jersey Court Invalidates Capital Grants To 2 Religious Colleges

In American Civil Liberties Union of New Jersey v. Hendricks, (NJ App., May 26. 2016), a New Jersey state appellate court held that grants to two religious colleges for capital improvements violate the provision in the New Jersey Constitution, Art. I, Sec. 3, that bars taxation "for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry...." The Department of Higher Education had awarded two grants totaling over $10 million to a Jewish school, Beth Medrash Govoha, and three grants totaling $645,323 to Princeton Theological Seminary. The court said that a 1978 New Jersey Supreme Court ruling interpreting Art. I, Sec. 8 compelled it to conclude that these grants of public funds were invalid. NJ.com reports on the decision.

Alabama Commission Hires Law Prof To Prosecute Charges Against Chief Justice

As previously reported, earlier this month the Alabama Judicial Inquiry Commission filed ethics charges against Alabama Supreme Court Chief Justice Roy Moore over his administrative order to all probate judges telling them that they had a duty under Alabama law to continue to refuse to issue marriage licenses to same-sex couples despite federal court orders to the contrary. Now, as reported by AL.com, the Judicial Inquiry Commission has hired John Carroll,   professor and former dean of the Cumberland School of Law and former interim director of the Alabama Ethics Commission to prosecute the case against Moore.  In a strongly worded press release yesterday, Moore's attorneys, Liberty Counsel, objected to Carroll because of his service 32 years ago as Legal Director of the Southern Poverty Law Center. SPLC includes Liberty Counsel on its list of Extremist Groups.

Appeals Court Upholds Saturday Murder Trial Despite Defendant's Religious Objection

In State v. Victor, 2016 La. App. LEXIS 1030 (LA App., May 26, 2016), a Louisiana state appeals court held that defendant's free exercise rights were not violated when the court refused to adjourn his second degree murder trial on Saturday, which defendant claimed was his Sabbath.  Defendant was on trial for the murder of his 8-year old stepson who died after a severe beating that was allegedly administered as discipline for stealing ice cream. In upholding on compelling interest grounds the trial court's refusal to adjourn for Saturday, the appeals court said in part:

the record reflects that the trial judge carefully considered defendant's concerns as well as his delay in raising this issue, including his failure to object when the prospective jury was advised numerous times of the possibility that they would be required to work on Saturday, his lack of a specific religious affiliation or particular church membership, the unavailability of the State's key expert witness the following week, and "the justice system as a whole," in denying defendant's request not to hold trial on Saturday.

Ecclesiastical Abstention Doctrine Leads To Dismissal of Consumer Fraud Complaint Against Cemetery

In Mammon v. SCI Funeral Services of Florida, Inc., (FL App., May 25, 2016), a Florida appellate court invoked the ecclesiastical abstention doctrine to dismiss a consumer fraud complaint against a cemetery brought by a widow who claimed that the cemetery gave false assurances that her late husband would be buried in accordance with Jewish burial customs and traditions. A month after her husband was buried, the widow discovered that the cemetery allowed non-Jews to be buried in the same section of the cemetery, a practice which she alleged violated Jewish burial traditions. Defendants however cited theological debates among rabbis on whether there are exceptions to the ban. The court held that:

although the widow’s complaint is framed in counts alleging deceptive and fraudulent misrepresentations regarding “Jewish burial customs and traditions,” the disposition of those counts cannot be accomplished without first determining, as a matter of fact, what constitutes “Jewish burial customs and traditions.” *** That preliminary determination would violate the ecclesiastical abstention doctrine.

8th Circuit Gives Christian Proselytizer At Irish Fair Limited Victory

In Miller v. City of St. Paul, (8th Cir., May 23, 2016), an evangelical Christian who wanted to proselytize at the 2014 Irish Fair of Minnesota won a partial victory.  Police commander Patricia Englund told David Miller that he and his group who planned to carry a banner, hand out literature and preach were not welcome at the fairgrounds.  The Court held that Miller has standing to pursue a claim for damages against Commander Englund, but could not pursue official capacity claims or injunctive relief. Courthouse News Service reports on the decision.

Memorial Day Display Triggers Controversy

A Memorial Day display intended to honor the 79 residents of Paulding County, Georgia who died in U.S. wars has become a center of controversy. At issue are 79 white, handmade crosses placed on public land along a state highway. As reported yesterday by Fox News:

[T]he crosses were abruptly taken down last Friday after someone called Hiram City Hall questioning whether the soldiers were all Christian.

The move sparked public outcry -- particularly on social media -- and, after a city council meeting Tuesday night, the crosses were put back in place Wednesday morning.

"It was never about religion -- it was just to honor them," [said] Hiram Mayor Teresa Philyaw...

Settlement of Lawsuit Clears Way For Construction of Tallest Cross In the U.S.

Christian Today reports that in Corpus Christie, Texas, construction will move ahead on a 210-foot high cross, to be built along a major highway on property owned by Abundant Life Fellowship Church. Apparently the cross will be the largest in the English-speaking world.  Construction was at a standstill after atheist Patrick Greene had filed suit challenging the cross as a violation of Texas Constitution, Art I, Sec 6 that provides:

No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship.

In response to the lawsuit, the Church's pastor filed a motion for sanctions under Texas' anti-SLAPP law.  In a court order approving a settlement agreement (full text) in Greene v. Milby, (TX Dist. Ct., May 23, 2016), the court found that Greene's lawsuit was vexatious and meritless. In the agreement both parties dropped all their claims, and Greene promised to not file additional vexatious litigation.

CAIR Launches Satirical Ad To Combat Islamophobia

The Council on American Islamic Relations yesterday announced the launch of a satirical social-media public relations campaign to combat Islamophobia.  CAIR is distributing ISLAMOPHOBIN®, a mock-medicine (actually sugar-free gum) designed to "cure" Islamophobia. The colorful package says that the product cures such things as "blind intolerance."  Among the package label warnings is this:

Those who already believe in religious diversity, tolerance and mutual understanding should not use this product. For those who hold bigoted stereotypes of Muslims and subscribe to Islamophobic conspiracy theories, use of this product may result in feelings of remorse and/or guilt.

11 States Sue Feds Over Transgender Rights

Nine states and officials from two others filed suit yesterday against the federal government, challenging various interpretations of the anti-discrimination provisions of Title VII and Title IX by the Obama Administration. Various guidance documents, the most recent or which was issued earlier this month (see prior posting), take the position that the ban on "sex" discrimination found in existing laws encompass a ban on discrimination against transgender individuals. The complaint (full text) in State of Texas v. Untied States, (ND TX, filed 5/25/2016), citing the Administrative Procedure Act and other constitutional and statutory provisions, alleges:

Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights. Defendants’ rewriting of Title VII and Title IX is wholly incompatible with Congressional text. Absent action in Congress, the States, or local communities, Defendants cannot foist these radical changes on the nation.

New York Times reports on the lawsuit.

Students Re-Insert Prayer At Graduation Ceremony

Christian Post reported yesterday that graduating high school students in East Liverpool, Ohio took matters into their own hands after the school board ended the 70-year old tradition of the choir singing the Lord's Prayer at commencement ceremonies.  The class valedictorian Jonathan Montgomery invited all the graduates to stand and recite the prayer.  They did so to a roar of applause from the audience in attendance.  The school board's decision came after a complaint about prayer at graduation from the Freedom From Religion Foundation. School Board president Larry Walton said that the "decision [was] made because we don't have a lot of money and we'd rather hire teachers than pay lawyers." He added:

When I was first on this board I expressed a concern about us singing. The comment made was that "we know we are breaking the law, we will do it until we get caught." Well, ladies and gentlemen we got caught. … I'm sorry this happened, but it's a war we can't win.

College Tennis Player Sues For Religious Discrimination

The Washington Times reports on a religious discrimination lawsuit filed last week in Idaho federal district court by a former player on the Idaho State University tennis team.  The suit also alleges negligence, infliction of emotional distress and other causes of action growing out of harassment of plaintiff Orin Duffin by his teammates and his coaches.  The complaint (full text) in Duffin v. Idaho State University, (D ID, filed 5/20/2016) alleges that when the team learned that Duffin was a Mormon, his coaches began to harass him, in part through inappropriate questions about sexual practices and his religious beliefs.  The harassment peaked after he told the team that he would be on his mission call in Taiwan the following school year. While the team was staying in Las Vegas, one of the coaches arranged a trip to a strip club, provided the team with alcoholic beverages, and sent two prostitutes to Duffin's room to tempt him. Duffin became the butt of jokes and comments after the Las Vegas trip.

Dispute Over Selection of New Pastor Dismissed Under Ecclesiastical Abstention Doctrine

In Mouton v. Christian Faith Missionary Baptist Church, (TX App., May 24, 2016), a Texas state appeals court dismissed on ecclesiastical abstention grounds a dispute between two groups in a church over who should be its new pastor.  The court said in part:

Appellants contend that their claims arise solely from the church’s failure to abide by non-ecclesiastical terms of the church’s bylaws and, therefore, the trial court had jurisdiction to adjudicate the case under neutral principles of law.  According to appellants, the questions they raise—including whether appellees complied with church bylaws in electing Wilson as pastor and whether appellees properly expelled appellants from church membership—are non-ecclesiastical because they are governed by non-ecclesiastical provisions in the church’s corporate documents. We conclude that the trial court correctly granted the plea to the jurisdiction because appellants’ claims are inextricably intertwined with inherently ecclesiastical issues

In Vietnam, Obama Calls For Increased Freedom of Religion Among Other Human Rights

President Obama today during his trip to Vietnam delivered an address to the people of Vietnam from the National Convention Center in Hanoi. His remarks (full text) included a call for improvement in the human rights situation in Vietnam, including freedom of religion.  He said in part:

When there is freedom of expression and freedom of speech, and when people can share ideas and access the Internet and social media without restriction, that fuels the innovation economies need to thrive....  

When there is freedom of religion, it not only allows people to fully express the love and compassion that are at the heart of all great religions, but it allows faith groups to serve their communities through schools and hospitals, and care for the poor and the vulnerable.  And when there is freedom of assembly -- when citizens are free to organize in civil society -- then countries can better address challenges that government sometimes cannot solve by itself.  So it is my view that upholding these rights is not a threat to stability, but actually reinforces stability and is the foundation of progress. 

After all, it was a yearning for these rights that inspired people around the world, including Vietnam, to throw off colonialism.  And I believe that upholding these rights is the fullest expression of the independence that so many cherish, including here, in a nation that proclaims itself to be “of the People, by the People and for the People.”

Court Issues TRO Against Ohio's Cutoff of Funding For Planned Parenthood

In Planned Parenthood of Greater Ohio v. Hodges, (SD OH, May 23, 2016), an Ohio federal district court issued a two-week temporary restraining order barring the Ohio Department of Health and the Hamilton County Public Health Commission from enforcing Ohio Rev. Code § 3701.034.  That section requires the state department of health to ensure that funds it receives under six specific federal programs are not used to contract or affiliate with an entity that performs or promotes non-therapeutic abortions. The effect of the law is to cut off funding for Planned Parenthood to use for various women's health programs that do not involve abortion services in order to pressure Planned Parenthood to end performing or promoting abortions using other funding. The court concluded that it is likely plaintiffs will succeed in their claim that the statute imposes unconstitutional conditions on the receipt of federal funds:

Section 3701.034 allows ODH to leverage its control over government funds to prevent recipients of government funds from engaging in constitutionally protected speech and association, even if that speech is undertaken with private funds.

The court also found a likelihood of success on plaintiffs' claims that the law imposes an undue burden on a woman's right to have an abortion and denies equal protection.  Cleveland Plain Dealer reports on the decision.

Bill Would Prohibit Excluding Aliens' Admission To U.S. On Religious Grounds

Apparently in reaction to presumptive Republican presidential nominee Donald Trump's proposals on Muslim immigration, on May 12 Rep. Donald Beyer introduced into Congress H.R. 5207, the Freedom of Religion Act of 2016 (full text). The bill, which now has 103 co-sponsors (all Democrats), would amend the Immigration and Nationality Act by adding a section that provides:

Notwithstanding any other provision of the immigration laws, an alien may not be denied admission to the United States because of the alien’s religion or lack of religious beliefs.

Supreme Court Denies Review In Two Cases of Interest

The U.S. Supreme Court today denied certiorari in two cases of interest (Order List):

Chabad-Lubavitch of Michigan v. Schuchman, (Docket No. 15-1005, cert. denied 5/23/2016). In the case, the Michigan Supreme Court found that the statute of limitations had run in a dispute between Chabad-Lubavitch of Michigan and a local Chabad organization over ownership of a Chabad center. (See prior posting.)

Sunrise Children's Services v. Glisson, (Docket No. 15-1021, cert. denied 5/23/2016).  In the case decided below under the name Pedreira v. Sunrise Children's Services, Inc., the 6th Circuit essentially reopened a long-running Establishment Clause dispute over Kentucky state funding  of treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization. (See prior posting.) The cert. petition (full text) focuses on standing questions.

Supreme Court Sends 2 More Contraceptive Mandate Cases Back To Circuit Courts

The U.S. Supreme Court today sent back to Courts of Appeal two more of the cases involving challenges by religious non-profits to the contraceptive coverage mandate accommodation. (5/23/16 Order List).  The cases today in which the Court granted certiorari, vacated the judgement below and remanded in light of Zubik v. Burwell are Catholic Health Care System v. Burwell, (Docket No. 15-1100) remanded to the 2nd Circuit (see prior posting), and Michigan Catholic Conference v. Burwell,  (Docket No. 15-1131) remanded to the 6th Circuit (see prior posting).

Tajikistan Voters Ban Religious Political Parties

Deutsche Welle reports that voters in Tajikistan yesterday overwhelmingly (94.5% in favor) approved a series of constitutional amendments. One of them bans all political parties based on religion.  Last year the government labeled the opposition Islamic Renaissance Party of Tajikistan (IRPT) a terrorist group and a court shut it down.  According to The Guardian, before then the IRPT had been viewed as moderate and was President Emomali Rakhmon's chief opposition. In another amendment approved by voters yesterday, 63-year-old President Rakhmon is now allowed to run for an unlimited number of terms.  The lifting of the term limit ban applies only to him.

Recent Articles of Interst

From SSRN:

• Michael James Novotny, Excluding Non-Federally Recognized Tribal Members from Obtaining Eagle Parts Under 50 C.F.R. Section 22.22 Violates Post-Burwell RFRA, (May 16, 2016).
• Amy J. Sepinwall, Burdening Substantial Burdens: Zubik v. Burwell and the Contraceptive Mandate, (University of Illinois Law Review, Forthcoming).
• Enzo Rossi, Understanding Religion, Governing Religion: A Realist Perspective, (C. Laborde & A. Bardon, eds, Religion in Liberal Political Philosophy. Oxford: Oxford University Press, 2017).
• Gwendolyn Gordon, Who Speaks the Culture of the Corporation? Dissent in the Close Corporation after Hobby Lobby and Citizens United, (Michigan Business & Entrepreneurial Law Review, Forthcoming).
• Timothy Zick, Rights Dynamism, (May 19, 2016).
• Alexander Tsesis, Terrorist Speech on Social Media, (Vanderbilt Law Review, Vol. 70, 2017).

From SmartCILP:

• Charlotte Garden, Religious Employers and Labor Law: Bargaining in Good Faith?, 96 Boston University Law Review 109-160 (2016).
• Debbie N. Kaminer, Religious Accommodation in the Workplace: Why Federal Courts Fail to Provide Meaningful Protection of Religious Employees, [Abstract], 20 Texas Review of Law & Politics 107-156 (2015).
• Timothy J. Tracey, Just Because You Can, Doesn't Mean You Should: Equal Protection, Free Speech, and Religious Worship, 36 Northern Illinois University Law Review 58-110 (2015).

Recent Prisoner Free Exercise Cases

In Davila v. Marshall, (11th Cir., May 20, 2016), the 11th Circuit upheld the dismissal of a complaint by an inmate that he was denied delivery of a Spanish language Santeria bible and a set of five Santeria bead necklaces required to practice his religion which had been sent to him.

In Merrick v. Inmate Legal Services, (9th Cir., 9th Cir., May 16, 2016), the 9th Circuit reversed the dismissal of an inmate's complaint that the jail did not allow him to confess to clergy of his faith by way of un-monitored, unrecorded phone calls.

In Quinn v. Management & Training Corp., 2016 U.S. Dist. LEXIS 64048 (SD MS, May 16, 2016), a Mississippi federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 64049, April 20, 2016) and dismissed an inmate's complaint that authorities denied him the right to designate Voodoo as his religion of preference.

In Cochran v. Sherman, 2016 U.S. Dist. LEXIS 64958 (ED CA, May 17, 2016), a California federal magistrate judge allowed an inmate to proceed with his RLUIPA claim against the warden seeking an injunction that would allow him, for religious reasons, to obtain a name change.

In Williams v. Beard, 2016 U.S. Dist. LEXIS 65245 (MD PA, May 18, 2016), a Pennsylvania federal district court, finding that plaintiff's rights under RLUIPA had been violated, ordered the prison to provide a clean and appropriate space for Muslim inmates working in the kitchen to offer prayer in a prone position during their shift all year round, or else allow Muslim inmates on kitchen duty to pray in the dining room.

In Atkinson v. Mackinnon, 2016 U.S. Dist. LEXIS 65281 (WD WI, May 18, 2016), a Wisconsin federal district court allowed an inmate to move ahead with his complaint that he was reassigned to a less desirable position with less pay and fewer hours because he is a Muslim.

In Bragg v. Smith, 2016 U.S. Dist. LEXIS 65412 (ED AR, May 18, 2016), an Arkansas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 65408, April 27, 2016) and dismissed a Musliim inmate's complaint that he was served pork at least three times per week.

In Herndon v. Tostand, 2016 U.S. Dist. LEXIS 65662 (ED CA, May 17, 2016), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's vague claim that "our Imam does not have any money to give one jumuah prayer on Fridays."

In Hall v. Frauenheim, 2016 U.S. Dist. LEXIS 65693 (ED CA, May 17, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that he missed numerous kosher meals, which are a call to worship, and that defendant criticized his religion.

In Cosby v. Erfe, 2016 U.S. Dist. LEXIS 65884 (D CT, May 19, 2016), a Connecticut federal district court dismissed a Buddhist inmate's complaint about difficulties in obtaining a vegetarian diet.

City Sells Religious Monument In Park To Church To Counter Complaints

Christian News reports today that the city of Port Neches, Texas has fended off complaints from the Freedom From Religion Foundation about a 10-foot high Latin cross in a public park by selling the cross and the land surrounding it to a local church.  The 20 foot by 20 foot parcel of land in Riverfront Park was sold to the First United Methodist Church for $100.  FFRF, while applauding the sale, is looking further into whether the sale price was artificially low.

Oklahoma Governor Vetoes Abortion Ban

As reported by the Washington Post, Oklahoma Governor Mary Fallin today vetoed SB 1552, a bill that, with narrow exceptions, would have subjected doctors who perform abortions to felony prosecution as well as to loss of their licenses. (See prior posting.)  In her veto message (full text), Gov. Fallin said that the bill's exclusion for abortions that are "necessary to preserve the life of the mother" is unconstitutionally vague. She added:

While I consistently have and continue to support a re-examination of ... Roe v. Wade, this legislation cannot accomplish that re-examination.  In fact, the most direct path to a re-examination ... is the appointment of a conservative pro-life justice to the United States Supreme Court.

Supreme Court Says Attorneys' Fees In Title VII Actions Available In Procedural Wins

Yesterday, in a case that has implications for religious discrimination cases brought by the EEOC, the U.S. Supreme Court held that successful defendants in employment discrimination cases can recover attorneys' fees when they win on procedural grounds, as well as when they succeed on the merits.  In CRST Van Expedited, Inc. v. EEOC, (Sup. Ct., May 19, 2016), the court held that "a defendant need not obtain a favorable judgment on the merits in order to be a 'prevailing party.'" SCOTUSblog has more on the decision.

Oklahoma Legislature Purports To Outlaw Almost All Abortions In Statute Raising Many Questions

The Oklahoma legislature gave final passage yesterday (legislative history) to Senate Bill No. 1552 (full text), purporting to outlaw almost all abortions in the state.  The bill makes it a felony punishable by not less than one nor more than three years in prison for anyone to "perform or induce an abortion upon a pregnant woman."  The bill also requires revocation of the license of any physician performing an abortion, and prohibits any physician participating in the performance of an abortion from obtaining or renewing a medical license in the state. The only exclusion is for "an abortion necessary to preserve the life of the mother...." However this does not include the situation in which the physician determines "that the woman may engage in conduct which she intends to result in her death."

As reported by Huffington Post, it is unclear whether or not Governor Mary Fallin will sign the law which is clearly unconstitutional under current U.S. Supreme Court precedent. It should be noted that, besides the constitutional concern, the language of the bill creates a number of questions.  While the bill does not explicitly prescribe punishment for the woman who has procured the abortion, existing law, Oklahoma Statutes, Title 21, Sec. 172, provides that "All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission ... are principals." Also, it is unclear whether the bill's ban on licensure of any physician who participates in performing an abortion would apply to those who while in medical training in other states participate in the procedure there.

Polish Court Upholds Refusal To Recognize Pastafarians

Radio Poland reports that in Warsaw, Poland yesterday the Voivodship Administrative Court upheld the refusal by the Internal Affairs Ministry to list the Church of the Flying Spaghetti Monster in the register of religious denominations.  The court said that the Pastafarians still have the right to practice their religion, so neither the country's constitution nor international conventions were breached.  The church says it will appeal to the Supreme Administrative Court.

3rd Circuit Hears Oral Arguments In Ten Commandments Case

The U.S. 3rd Circuit Court of Appeals heard oral arguments yesterday (audio of full arguments) in  Freedom From Religion Foundation, Inc. v. New Kensington-Arnold School District, a challenge to a Ten Commandments monument on the lawn of a Pennsylvania high school.  In the case, the federal district court held that plaintiffs lacked standing to challenge the monument because they had not been injured by its presence. (See prior posting.) The Pittsburgh Tribune-Review reports on the case.

Ryan Appoints 2 USCIRF Members

In a press release yesterday, the U.S. Commission on International Religious Freedom announced that on May 13, House Speaker Paul Ryan reappointed Villanova University faculty member Dr. Daniel Mark for a second 2-year term on the Commission.  Ryan also appointed Kristina Arriaga de Bucholz, executive director of the Becket Fund for Religious Liberty, to a 2-year term replacing Dr. Robert George whose term has expired. Appointments to the 9-member Commission are made by the President and by Congressional leaders of each party.

Colombia Court Ends Municipal Council Invocations

Fox News Latino reports that on May 10 a trial court judge in Cartagena, Colombia ordered a stop to invocations at the beginning of Municipal Council meetings and events of other public entities. Yesterday 1000 people demonstrated against the decision in front of city hall, carrying signs with messages such as:   "Cartagena is Christ's" and "God demands that we pray without ceasing."

Nevada Trial Court Rejects State Constitutional Challenge To School Choice Law

In Duncan v. Sate of Nevada, (NV Dist. Ct., May 18, 2016), a Nevada state trial court judge dismissed state constitutional challenges to Nevada's new Educational Savings Account program. The program, more extensive than any other in the country, allows parents of any child who has attended a public or charter school for at least 100 days to receive into an educational savings account a portion of the state's funding for use at an eligible alternative private (including religious) school. Finding that plaintiffs had standing only to bring facial challenges, the court held that the program does not violate Nevada Constitution Art. XI, Sec. 2 that requires the legislature to provide a uniform public school system nor Art. XI, Sec. 10 that prohibits use of public funds for sectarian purposes.

In a wide-ranging 45-page opinion, the court held that the state constitution does not limit the legislature to providing education only through a uniform public school system. It may also use other suitable means.  It also held that the prohibition on using public funds for sectarian purposes only imposes restrictions co-extensive with the federal Establishment Clause.

In January, another trial court judge enjoined implementation of the program. (See prior posting.) Reacting to yesterday's court's decision, Nevada Attorney General Adam Paul Laxalt said  in part (full text of statement): "The decision today clears the way for the Nevada Supreme Court to meaningfully address the remaining uncertainty caused by the injunction in the other case challenging Nevada’s ESA program. We are one giant step closer to helping thousands of Nevada families choose the best educational option for their children." AP reports on the decision and the ACLU's reaction to it.

6th Circuit Remands RLUIPA "Equal Terms" Zoning Challenge

In Tree of Life Christian Schools v. City of Upper Arlington, (6th Cir., May 18, 2016), the U.S. 6th Circuit Court of Appeals in a 2-1 decision reversed and remanded in a RLUIPA land use case, finding that material facts remain as to the application of RLUIPA's "equal terms" provision.  At issue is an Ohio city's refusal to rezone a large office building for use as a religious school. The office building is in an area zoned as an "Office and Research District" -- an area designed for uses that would maximize the city's tax revenues. The majority said in part:

The religious land use that TOL Christian Schools proposes is, we assume without deciding, deleterious to the purpose of the regulation at issue (which we assume to be increasing income-tax revenue). But the nonreligious uses that the government concedes it would allow seem to be similarly situated to the regulation..... [T]he government suggested at oral argument that it would prefer that [the property] be used for an ambulatory care center or outpatient surgery center. But we cannot assume as a fact... that an ambulatory care center (or an outpatient surgery center, or a data and call center, or office space for a not-for-profit organization, or a daycare) would employ higher-income workers than TOL Christian Schools would.... 

Proposed RFRA Amendment Would Bar Its Use To Discriminate or Injure 3rd Parties

Yesterday two members of the U.S. House of Representatives, Joe Kennedy III and Bobby Scott, announced the introduction of the Do No Harm Act (full text). The bill would amend the Religious Freedom Restoration Act to preclude its use in ways that result in discrimination or harm to third parties or impose one person's religious views on another. More specifically, the bill would preclude using RFRA to create religious exemptions from various civil rights laws or labor laws, or accommodations which limit access to health care, or receipt of goods or services from the government or from government contractors or grantees.

Australian Agency Refuses to Approve Trademark For "McKosher"

Australia's ABC News reported last week that the Australian Trademark Office has refused to approve an application to trademark the name "McKosher" because of the danger of contextual confusion.  The application was submitted by New South Wales resident Mark Glaser who wants to open a Scottish-Jewish restaurant in Maclean, an Australian city with Scottish ties.  However the international McDonald's chain objected because it is in negotiations with Rabbinical leaders in Jerusalem to use the McKosher title as the name for kosher certified McDonald's restaurants in Israel.  Currently the Israeli rabbinate refuses to certify kosher branches of McDonald's for fear that the public will confuse the branches which are kosher with those that are not.

"Philly Jesus" Says Trespassing Charge Reflects Religious Discrimination

Recovered drug addict Michael Grant who is well known as "Philly Jesus" in Center City Philadelphia is defending against defiant trespassing and disorderly conduct charges by claiming religious discrimination.  NJ.com reported on Monday's Municipal Court hearing. Grant was arrested for blocking a pathway inside a local Apple store with the cross he was carrying. At the time he was charging his phone. His attorney says he was evicted because of his religious beliefs. Referring to his white iPhone, Grant says: "I'm on the family plan. Father, son and Holy Ghost."

Suit In France Says Social Media Failed To Remove Anti-Semitic, Racist, Homophobic and Terrorist Posts

According to the Economic Times, on Sunday in Paris three French groups filed a lawsuit against Twitter, YouTube and Facebook charging that they failed to adequately comply with a 2004 French law that requires deletion within a reasonable time of posts that are racist, anti-Semitic, homophobic or which defend terrorism.  Plaintiffs Jewish Students of France (UEJF), SOS-Racisme,  and SOC Homophobie say that between March 31 and May 10 they discovered 586 such posts, but that the number removed within a reasonable time was 4% by Twitter, 7% by YouTube and 34% by Facebook.

Same-Sex Couple's Newest Battle Is With Catholic Cemetery

NewNowNext and Advocate reported yesterday that Greg Bourke and Michael De Leon, a same-sex couple who were among the plaintiffs in one of the same-sex marriage cases decided by the Supreme Court along with Obergefell v. Hodges, are now at odds with a Catholic cemetery in Louisville, Kentucky. The couple, who have been together for 34 years and members of Our Lady of Lourdes Parish for 28 years purchased a joint burial plot in Saint Michael Cemetery. However the cemetery has refused to approve the headstone design which the couple submitted.  It features their names, interlocking wedding bands, a cross and a depiction of the U.S. Supreme Court building.  A letter from the cemetery informed the couple that it could not approve depictions of wedding rings and the Supreme Court on the headstone because this conflicts with teachings of the Church. In 2015, National Catholic Reporter named Bourke and De Leon "persons of the year" for "their historic roles as plaintiffs in Obergefell v. Hodges and for their faithful public witness as gay Catholics."

Suit Against Jeweler Says Employee Was Fired For Saying That Jews Killed Jesus

The New York Daily News last week reported on a lawsuit filed in federal district court in Manhattan by a former marketing executive at the upscale jeweler, Tiffany & Co.  Kristin Rightnour, a devout Catholic, says she was reprimanded and placed on probation for telling a Jewish colleague, in a conversation about Easter, that Catholics believe the Jewish people killed Jesus. Then, she alleges, she was skipped over for promotion and eventually fired after she filed a complaint with the EEOC.

Court Places Control of Historic Touro Synagogue In Hands of Newport, Rhode Island Congregation

Yesterday, in a 106 page opinion in Congregation Jeshuat Israel v. Congregation Shearith Israel, (D RI, May 16, 2016), a Rhode Island federal district court held that Newport, Rhode Island's Touro Synagogue is owned in charitable trust for the purpose of preserving a permanent place of Jewish public worship and that the trustee of the synagogue should be Newport's Congregation Jeshuat Israel.  In appointing the local congregation as trustee, the court removed New York's Shearith Israel congregation from that role finding that it had breached its duties.  The court also held that a  pair of historic silver Torah ornaments worth some $7 million previously owned by Newport's early Jewish residents are now owned by the local congregation which is free to sell them to raise funds to keep the synagogue open. New York Times reports on the decision. (See prior related posting.)

Religious Organizations Challenge NY Regulator's Required Abortion Coverage

In a May 10 press release, the Roman Catholic Diocese of Albany, New York announced that it, along with the Episcopal Diocese and several other religious groups has filed suit in New York state court challenging the constitutionality of Model Language adopted by the New York State Department of Financial Services that requires individual and small group employers offering health insurance to their employees to include in renewal contracts coverage for therapeutic abortions, and for non-therapeutic abortions in the case of rape, incest or fetal malformation. The complaint (full text) in Roman Catholic Diocese of Albany v. Vullo, (NY Sup. Ct. Albany Cty., filed 5/4/2016), contends that the abortion mandate violates religious freedom and liberty of conscience in violation of various provisions of the state and federal constitutions as well as of New York law. [Thanks to Jeff Pasek for the lead.]

Supreme Court "Punts" On Contraceptive Mandate Case

The U.S. Supreme Court today took the unusual step of sending the controversial dispute over the Obama administration's contraceptive mandate compromise for religious non-profits back to the relevant Courts of Appeals without giving those courts any guidance on the merits.  In a per curiam opinion in Zubik v. Burwell  (Sup. Ct., May 16, 2016), the Court said in part:

In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D. C. Circuits. Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.” ....

The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.  Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans “obtain, without cost, the full range of FDA approved contraceptives.” ... Through this litigation, petitioners have made the Government aware of their view that they meet “the requirements for exemption from the contraceptive coverage requirement on religious grounds.” ...  Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice....

Justice Sotomayor, joined by Justice Ginsburg, filed a concurring opinion emphasizing that the Court has decided nothing about the merits of the case, warning that in the past some court had incorrectly read similar disclaimers by the Court as signaling something about the merits.

In separate orders, the Court applied its decision to six additional cases posing the same legal issue in which certiorari petitions were pending.  The Court's actions no doubt reflect a 4-4 split on the merits.  In its per curiam opinion today, the Court-- eternally hopeful--added:

We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.

New York Times reports on the decision.

Supreme Court Denies Review In Two Religious Rights Cases

The U.S. Supreme Court today denied certiorari in Wayne County v. Bible Believers, (Docket No. 15-1090, cert. denied 5/16/2016) (Order List).  In the case, the U.S. 6th Circuit Court of Appeals, sitting en banc, upheld the right of Bible Believers, a Christian group, to engage in provocative and offensive proselytizing of Muslims at the annual Dearborn, Michigan Arab International Festival. (See prior posting.)

The Supreme Court also denied certiorari in Rogers v. Roman Catholic Archbishop, (Docket No. 15-1105, cert. denied 5/16/2016) (Order List).  In the case, the Appeals Court of Massachusetts upheld an injunction against former parishioners of Frances X. Cabrini Church in Scituate who have held a 24-hour vigil in the church for over ten years in order to protest plans to close it. (See prior posting.)

Obama Appoints 2 USCIRF Commissioners

In a press release issued Friday, the U,S. Commission on International Religious Freedom announced appointments by President Obama to the Commission,  On May 12 the President announced his intention to reappoint Rev. Thomas J. Reese, S.J.and to appoint Dr. John Ruskay to two year terms.  Reese is a senior analyst for the National Catholic Reporter.  Ruskay is Executive Vice President-Emeritus of the United Jewish Appeal (UJA) Federation of Jewish Philanthropies of New York. Ruskay replaces Eric Schwartz whose term is expiring,

Man Pleads Guilty To Forcibly Removing Airline Passenger's Hijab

According to a Justice Department press release, on Friday a 37-year old North Carolina man pleaded guilty to one count of using force or the threat of force to intentionally obstruct a Muslim woman's free exercise of religion. In the plea agreement (full text) filed in New Mexico federal district court, defendant Gil Parker Payne admits that last December while on a Southwest Airlines flight from Chicago to Albuquerque he forcibly pulled the hijab off the head of a Muslim woman on the flight, telling her "Take it off! This is America!"  In the plea agreement, the government recommends a sentence of probation, with two months home detention, plus any fine or restitution set by the court.

Head of the Justice Department's Civil Rights Division, Vanita Gupta, mentioned this case among others in reviewing the government's recent hate crime prosecutions.  Her remarks came in a speech (full text) at the Muslim Advocates annual gala at which she accepted the Justice Thurgood Marshall Award.

Recent Articles of Interest

From SSRN:

• Shivaraj S. Huchhanavar, Introduction to Traditional and Modern Natural Law Theories, (May 5, 2016).
• Brett G. Scharffs, Religious Majorities and Restrictions on Religion, (Notre Dame Law Review, Forthcoming).
• Farrah Ahmed, Remedying Personal Law Systems, (International Journal of Law, Policy and the Family, Forthcoming).
• Brian Leiter, Why Tolerate Religion, Again? A Reply to Michael Mcconnell, (May 8, 2016).
• Kathleen A. McKee, Book Review: An Alternative to Business as Usual: Evangelical Christian Executives: A New Model for Business Corporations, (December 11, 2016).
• Engy Abdelkader, When Islamophobia Turns Violent: The 2016 U.S. Presidential Elections, (The Bridge Initiative, Georgetown University, 2016).
• Nasiru Wada Khalil, Perception and Reaction: The Representation of the Shari’a in Nollywood and Kanywood Films, (May 4, 2016).

From SmartCILP:

• Stephen R. Munzer, Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy, 37 University of Pennsylvania Journal of International Law 503-581 (2015).
• Symposium: Religion and the Law. Articles by Marc O. DeGirolami, Kevin C. Walsh, Benjamin Justice, Joshua A. Decker and Jonathan E. Amgott. 26 Stanford Law & Policy Review 385-553 (2015).

Paper Reviews Recent Use of Egypt's Blasphemy Law

Ahram Online today carries an interesting article on the use of Egypt's blasphemy law in recent months. Prosecutors have just begun to investigate a complaint against the satirical performance art troupe Atfal El-Shawaree (Street Children) over a video that they posted online mimicking the hosts on the state-owned religious radio station Al-Quran Al-Karim (The Holy Quran). At least one member of Parliament is proposing repeal of Article 98(f) of the criminal code that prohibits promoting "contempt of any divine religion or its adherents."

Recent Prisoner Free Exercise Cases

In Harvey v. Segura, (10th Cir., May 10, 2016), the 10th Circuit affirmed the dismissal of an inmate's complaint that authorities confiscated his  kufi.

In Vazquez v. Maccone, 2016 U.S. Dist. LEXIS 60372 (ED NY, May 6, 2016), a New York federal district court held that plaintiff's inability to kneel on the floor to silently pray while temporarily held in the squad room for arrest processing did impose a substantial burden on his religious exercise.

In Jones v. Arizona Department of Corrections, 2016 U.S. Dist. LEXIS 60454 (D Z, May 5, 2016), an Arizona federal district court permitted a Muslim inmate to proceed with his complaint that he was not permitted to grow his beard longer than one-quarter inch, and that the feeding time for Ramadan began too late.

In Phillips v. Cobb, 2016 U.S. Dist. LEXIS 60716 (WD LA, May 6, 2016), a Louisiana federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 60717, April 4, 2016) and dismissed a complaint by a Muslim inmate that he was not allowed to attend congregational jumu'ah services, receive a prayer rug or kufi or receive adequate meals during Ramadan.

In Desmond v. Phelps, 2016 U.S. Dist. LEXIS 61406 (D DE, May 9, 2016), a Delaware federal district court refused to dismiss, but ordered an amended complaint with a more definite statement of plaintiffs' claims that authorities refused to allow Catholic inmates to worship, assemble, and celebrate on all religious holidays, and engaged in other sorts of retaliation.

In Jones v. Western Tidewater Regional Jail, 2016 U.S. Dist. LEXIS 61425 (ED VA, May 6, 2016), a Virginia federal district court dismissed a complaint by a Rastafarian inmate that the food service provider and kitchen supervisor refused to serve him his religiously required vegan diet.

In Tillman v. Allen, 2016 U.S. Dist. LEXIS 62260 (ED VA, May 9, 2016), a Virginia federal district court dismissed on various grounds a complaint by a Wiccan inmate that he could not attend Wiccan services, possess Wiccan objects or partake in the Common Fare diet.

EU Criticizes New State Laws In U.S. Which Restrict LGBT Rights

On Thursday the European External Action Service (the European Union's diplomatic service) issued a statement (full text) criticizing laws recently enacted in several U.S. states dealing with religious objections to same-sex relationships and with transgender restroom concerns.  The EU's statement reads in part:

The recently adopted laws including in the states of Mississippi, North Carolina and Tennessee, which discriminate against lesbian, gay, bisexual, transgender and intersex persons in the United States contravene the International Covenant on Civil and Political Rights, to which the US is a State party, and which states that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection.

As a consequence, cultural, traditional or religious values cannot be invoked to justify any form of discrimination, including discrimination against LGBTI persons. These laws should be reconsidered as soon as possible.

Federal Government Issues Guidance Under Title IX On Rights of Transgender Students

The U.S. Justice Department and the Department of Education today released a letter (full text) providing Joint Guidance to schools and colleges on ensuring the civil rights of transgender students.  The Joint Guidance applies to schools covered by Title IX, i.e. schools that receive federal financial assistance. The Joint Guidance notes, however, that:

An educational institution that is controlled by a religious organization is exempt from Title IX to the extent that compliance would not be consistent with the religious tenets of such organization. 20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12(a).

The letter states in part:

The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity....

A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students....

Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.

Saudis, Iran At Odds Over Hajj Arrangements This Year

AlJazeera reported yesterday that Iranian Muslims may miss out on the Hajj this September because Iran and Saudi Arabia have been unable to agree on organizational details.  The two countries are at odds over transportation, security and procedures for issuing of visas this year. Last year 464 Iranians were among the 2000 pilgrims killed in a stampede during the Hajj.  Iran insists that the Saudis issue visas inside Iran through the Swiss embassy (the two countries have severed relations), while the Saudis say Iranians should use an online system. Also Iran wants to split pilgrims between Saudi and Iranian airlines.