Suit Seeks To Have Archbishop Sheen's Remains Moved To Illinois

Last Monday, the niece of the late Archbishop Fulton J. Sheen filed suit in a New York state trial court seeking to have Sheen's body, which is now buried in St. Patrick's Cathedral in New York City, disinterred and moved to a cathedral in Peoria, Illinois.  Sheen was ordained as a priest in Peoria.  He was the host of a widely watched award-winning television show titled Life Is Worth Living broadcast in the 1950's. Sheen served as Auxiliary Bishop of New York from 1951 to 1966.  He died in 1979.

Sheen is about to be beatified by the Vatican-- a step toward Sainthood.  The Beatification Ceremony will take place in Peoria since Peoria's Bishop Daniel Jenky was the Promoter for the Cause of Sainthood for Sheen.  According to the New York Times, New York church officials object to moving the remains, saying that it was Sheen's personal wish to be permanently buried beneath the high altar of St. Patrick’s Cathedral. They are apparently willing however to allow Sheen's remains to be moved temporarily to Peoria for the Beatification Ceremony, but then returned to New York.  The complaint (full text attached to press release) in Cunningham v. Trustees of St. Patrick's Cathedral, (Sup. Ct. NY County, filed 6/13/2016), contends that:

if Archbishop Sheen knew during his lifetime that he would be declared a Saint of the Roman Catholic Church that it would have been his wish that his remains be interred in St. Mary's Cathedral in Peoria.... St. Mary's was the church he attended with his family as a youth and where he made his first Holy Communion.

(See prior related posting.) As an aside, perhaps reflecting a deficient spell check program, the complaint (as opposed to the press release attached to it) consistently refers to Sheen's upcoming "Beautification" rather than "Beatification."

Canada Denies Entry To U.S. Mohel

Canadian border officials last month refused entry into Canada to a Detroit-based mohel who was crossing into neighboring Windsor in order to perform a Jewish ritual circumcision for a family in Windsor.  According to a June 8 report by the Detroit Jewish News, Dr. Craig Singer (a physician, as well as a mohel certified by Hebrew Union College) was told by border officials that he would need a permit as a temporary foreign worker, and that he could be prosecuted for performing a surgical procedure in Canada without proper authorization. Canada's Immigration and Refugee Protection Regulations, Paragraph 186(l) provide that a foreign national may work in Canada without a work permit "as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling."  Enforcement guidelines provide:

Persons seeking entry under the authority of R186(l) should be able to provide documentation to support their request for entry that addresses: the genuineness of the offer of employment of the religious denomination that seeks to employ them; and their ability to minister to a congregation under the auspices of that religious denomination.

House Holds Hearings On Global Religious Freedom

Yesterday a subcommittee of the House Foreign Affairs Committee held hearings titled The Global Religious Freedom Crisis and Its Challenge to U.S. Foreign Policy.  Witnesses from the State Department and the U.S. Commission on International Religious Freedom testified.  Transcripts of their testimony are available from the Committee's website.

Suit Between Indian Tribes Challenges Building Site For History Center

Non Doc reported yesterday on a federal court lawsuit filed in May by the Caddo Nation against the Wichita and Affiliated Tribes challenging the construction of a History Center by the Wichitas in western Oklahoma on land held jointly by the Wichita Tribe, Caddo Nation and Delaware Tribe.  A Caddo press release has further background.  The History Center is being built on a 71-acre parcel below a hill on which the Riverside Indian School is located.  The boarding school has been in operation since 1872 and was attended by Caddo students, as well as students from other tribes.  Students who died at the school were buried near it.  The Wichita say that all the graves are by the school at the top of the hill, but in the lawsuit members of the Caddo Nation contend that there are also graves at the site of the History Center below. According to Non Doc:

The Caddo filed a lawsuit May 25 seeking to halt construction for two weeks while the tribe conducted archeological work with ground-penetrating radar, or GPR, which can identify potential artifacts or features without the need to disturb a site by digging.

A U.S. District Court judge ordered a temporary stop to work at the site, one and a-half miles north of Anadarko, pending a hearing. The order was lifted May 31, and the Wichita resumed work. The Caddo then filed an appeal on June 7 to the 10th U.S. Circuit Court in Denver. No hearing date has been set at this time.

UN Commission Says ISIS Has Committed Genocide Against Yazidis

Yesterday, the International Commission of Inquiry on the Syrian Arab Republic established by the United Nations Human Rights Council issued a report (press release) concluding that ISIS' actions against the Yazidis constitutes genocide and amounts to crimes against humanity and war crimes. The 41-page report (full text) includes a Summary section which reads in part:

ISIS has sought to destroy the Yazidis through killings; sexual slavery, enslavement, torture and inhuman and degrading treatment and forcible transfer causing serious bodily and mental harm; the infliction of conditions of life that bring about a slow death; the imposition of measures to prevent Yazidi children from being born, including forced conversion of adults, the separation of Yazidi men and women, and mental trauma; and the transfer of Yazidi children from their own families and placing them with ISIS fighters, thereby cutting them off from beliefs and practices of their own religious community, and erasing their identity as Yazidis. The public statements and conduct of ISIS and its fighters clearly demonstrate that ISIS intended to destroy the Yazidis of Sinjar, composing the majority of the world’s Yazidi population, in whole or in part....

While noting States’ obligations under the Genocide Convention, the Commission repeated its call for the Security Council to refer urgently the situation in Syria to the International Criminal Court, or to establish an ad hoc tribunal with relevant geographic and temporal jurisdiction.

AP has more on the report.

In Liberia, Court Orders Sale of Seminary To Satisfy Amounts Owed To Fired President [UPDATED]

All Africa on Wednesday reported on the latest installment in the litigation in Liberia between Dr. Lincoln S. Brownell, the former president of Baptist Theological Seminary, and the Seminary.  Brownell was removed as president in 2007.  In 2013 he brought suit in Liberia's National Labour Court seeking damages for his removal, and the court awarded him $300,000 (US). In 2014, the Labour Court ordered the Seminary shut down, and now the Labour Court has issued a writ of execution on the property of the Seminary so Brownell can obtain the amounts due him under the court award. The writ calls for the sale of the real and personal property of the Seminary to realize the $300,000.  The writ calls for the arrest of the president of the Seminary if property cannot be found.

UPDATE: Front Page Africa (June 19) reported that Liberia's Supreme Court has issued a writ of prohibition preventing the sale of Seminary properties after evidence was introduced that the $300,000 had been paid.  The court immediately sent a team of sheriffs to reopen the Seminary.

Obama Meets At White House With Dalai Lama

President Obama met yesterday in the Map Room of the White House with the Dalai Lama, spiritual head of the Tibetan Buddhists and until his retirement in 2011 head of the exiled Tibetan government.  As reported by CNN, the meeting angered the Chinese who see the Dalai Lama as the head of a separatist movement.  In a statement (full text) issued after the meeting, the White House said:

The President and the Dalai Lama discussed the situation for Tibetans in the People’s Republic of China, and the President emphasized his strong support for the preservation of Tibet’s unique religious, cultural, and linguistic traditions and the equal protection of human rights of Tibetans in China....

... [T]he President reiterated the longstanding U.S. position that Tibet is a part of the People’s Republic of China, and the United States does not support Tibetan independence.  The Dalai Lama stated that he is not seeking independence for Tibet and hopes that dialogue between his representatives and the Chinese government will resume.

Charitable Contributions In Bitcoin?

Last week, the American Institute of Certified Public Accountants submitted a Comment Letter (full text) to the Internal Revenue Service in response to a two-year old IRS Release seeking input on issues relating to virtual currencies (such as Bitcoin). The AICPA said in part:

The AICPA encourages the IRS to release additional, much needed, guidance on virtual currency. Specifically, we request further guidance on the following items: ***

Provide guidance to explain when a donation of virtual currency, valued above $5,000, does not need a qualified appraisal to substantiate a charitable contribution deduction. Additionally, provide guidance on how to document the virtual donation values.

A charitable contribution of property with a value in excess of $5,000 requires a qualified appraisal from a qualified appraiser. An exception exists for contributions of publicly traded stock. The rationale is that the prices of these publicly traded stocks are available on published exchanges, thus not requiring a qualified appraisal. The same is true for most, if not all, types of virtual currency. That is, an exchange publishes the values of this currency on any given day. Therefore, a similar exception should apply for virtual currency donations in excess of a certain amount.

In Nigeria, Christian Students React To Ruling On Hijabs In Schools

Christian students in middle schools and high schools in the Osun State in Nigeria are upset about a June 3 Osun State High Court ruling holding that Muslim women students at the schools have a right to wear the hijab.  According to Tuesday's Premium Times, this is seen by Christian students as a breach of the understanding arrived at in 1975 when the state government took over schools originally founded by Christian missionaries. They see the court's decision as suggesting that wearing a hijab is a means of propagating Islam.  So at the urging of the Christian Association of Nigeria, on Tuesday Christian students showed up at school wearing Christian robes and vestments. Meanwhile, the High Court ruling has been appealed and teachers are attempting to ignore the controversy and continue teaching their classes as usual.

Court Says Suit Over Church Member's Trespassing Ban Should Be Dismissed

In Towns v. Cornerstone Baptist Church, 2016 U.S. Dist. LEXIS 77575 (ED NY, June 13, 2016), a New York federal magistrate judge recommended dismissing with prejudice the third amended complaint in a lawsuit by a long-time member of Cornerstone Baptist Church against the church, its pastor, the New York Police Department and others.  Plaintiff claimed that his rights were violated when, because of a dispute about church governance and programming, he was banned by the church from entering its property.  In a letter the church threatened him with arrest for trespassing if he attempted to enter church property. Among other things, the judge concluded that this was a non-justiciable religious controversy and that there was no joint action between the church and police officials, saying in part:

Although plaintiff has the right to worship how he chooses, Cornerstone's decision to ban him from its property is not a violation of his constitutional rights.

The court also rejected plaintiff's conspiracy and retaliation claims.

9th Circuit Hears Oral Arguments In Pregnancy Center Disclosure Law Challenge

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in  A Woman's Friend Pregnancy Resource Clinic v. Harris. (Video of full oral arguments).  In the case, a California federal district court refused to enjoin the effectiveness of California's Reproductive FACT Act which requires reproductive health clinics to disseminate a notice to all clients stating that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women. (See prior posting.)

In Israel, Sharia Courts Must Now Display Israeli Flag

In Israel, personal status matters, such as marriage and divorce and in some cases custody and inheritance, are handled by religious courts of the various religious communities. These courts-- Jewish religious courts for the Jewish population, Sharia courts for the Muslim population, as well as Druze and Christian courts-- are part of the state judicial system. I24 reported yesterday that Justice Minister Ayelet Shaked has ordered that Sharia courts must now display Israeli flags and national symbols. Previously they have not done so. Shaked has also taken steps aimed at appointment of the first female as an Israeli Sharia Court judge and member of the selection committee for Muslim religious judges.

Postal Service Issues Eid Postage Stamp

On June 10, the U.S. Postal Service announced the issuance of a new Eid Greetings Forever Stamp, recognizing the Muslim festivals of Eid al-Fitr and Eid al-Adha. The ceremony releasing the postage stamp was held at the Islamic Center of America in Dearborn, Michigan.  A second special ceremony was held on June 13 at the Muhammad Ali Center in Louisville, KY. World Religion News has more on the dedication ceremony and on reactions to the issuance of the stamp during this period of political tension over Muslim immigration.

Obama Counters Trump's Statements On Muslims

President Obama, speaking in Washington yesterday after a meeting with his National Security Council (full text of remarks) responded to claims by Republican presumptive nominee Donald Trump that the President should be using the term "radical Islam" to refer to terrorists, and more broadly to some of Trump's proposals relating to Muslim immigrants:

So there’s no magic to the phrase “radical Islam.”  It’s a political talking point; it's not a strategy.  And the reason I am careful about how I describe this threat has nothing to do with political correctness and everything to do with actually defeating extremism.  Groups like ISIL and al Qaeda want to make this war a war between Islam and America, or between Islam and the West.  They want to claim that they are the true leaders of over a billion Muslims around the world who reject their crazy notions.  They want us to validate them by implying that they speak for those billion-plus people; that they speak for Islam.  That’s their propaganda.  That's how they recruit.  And if we fall into the trap of painting all Muslims with a broad brush and imply that we are at war with an entire religion -- then we’re doing the terrorists' work for them....

... We now have proposals from the presumptive Republican nominee for President of the United States to bar all Muslims from emigrating to America.  We hear language that singles out immigrants and suggests that entire religious communities are complicit in violence.  Where does this stop?... 

Are we going to start treating all Muslim Americans differently?  Are we going to start subjecting them to special surveillance?  Are we going to start discriminating against them because of their faith?  We’ve heard these suggestions during the course of this campaign.  Do Republican officials actually agree with this?  Because that's not the America we want.  It doesn't reflect our democratic ideals.  It won’t make us more safe; it will make us less safe -- fueling ISIL’s notion that the West hates Muslims, making young Muslims in this country and around the world feel like no matter what they do, they're going to be under suspicion and under attack.  It makes Muslim Americans feel like they're government is betraying them.  It betrays the very values America stands for.

We've gone through moments in our history before when we acted out of fear -- and we came to regret it.  We've seen our government mistreat our fellow citizens.  And it has been a shameful part of our history.

Challenge To Sunday Exception In Property Maintenance Law Rejected

In State of Ohio v. McKinley, (OH App., June 9, 2016), defendant appealed his convictions for violating Youngstown, Ohio's Property Maintenance Code which requires that commercial building demolition projects once begun, continue daily until finished (excluding holidays, Sundays, and inclement weather days). Defendant's attempt to demolish a hospital building had not been completed after two-and-one-half years. Among the assignments of error rejected by an Ohio appellate court was defendant's claim that the statute, by allowing an exception for Sunday in assessing whether demolition work has continued, but not for other religions' days of rest, infringes defendant's free exercise rights. According to the court:

Appellant has failed to show how he has been injured by the exception to working on Sundays in the ordinance. Thus, he does not have standing to assert either a free exercise or establishment claim. 

9th Circuit Rejects RFRA Defense Raised By Hawaii Cannabis Ministers

In United States v. Christie, (9th Cir., June 14, 2016), the U.S. 9th Circuit Court of Appeals upheld the convictions of the founder of the Hawaii Cannabis Ministry and his wife on charges of conspiracy to manufacture and distribute marijuana.  The court rejected defendants' claim that their convictions violate their rights under the Religious Freedom Restoration Act.  The court held that the government had a compelling interest in mitigating the risk that cannabis from the Ministry would be diverted to recreational users, and that the government achieved that compelling interest in the least restrictive manner. The court said in part:

there is specific evidence that the Ministry’s distribution methods created a realistic possibility that cannabis intended for members of the Ministry would be distributed instead to outsiders who were merely feigning membership in the Ministry and adherence to its religious tenets. Additionally, the government’s interest in this case is all the more compelling given the Ministry’s well-publicized willingness to extend membership in the Ministry (with all that that entails) to minors.

Courthouse News Service reports on the decision.

Trump Reacts To Orlando Attack In Speech Focusing On Immigration

Yesterday Republican presumptive Presidential nominee Donald Trump delivered a controversial speech (full text) in reaction to the June 12 killing of 49 people at a night club in Orlando, Florida. Focusing on immigration, Trump said in part:

We cannot continue to allow thousands upon thousands of people to pour into our country, many of whom have the same thought process as this savage killer.

Many of the principles of Radical Islam are incompatible with Western values and institutions.

Radical Islam is anti-woman, anti-gay and anti-American.

I refuse to allow America to become a place where gay people, Christian people, and Jewish people, are the targets of persecution and intimidation by Radical Islamic preachers of hate and violence.

Here is part of the New York Times coverage:

Without distinguishing between mainstream Muslims and Islamist terrorists, Mr. Trump suggested that all Muslim immigrants posed potential threats to America’s security and called for a ban on migrants from any part of the world with “a proven history of terrorism” against the United States or its allies. He also insinuated that American Muslims were all but complicit in acts of domestic terrorism for failing to report attacks in advance, asserting without evidence that they had warnings of shootings like the one in Orlando.

Mr. Trump’s speech, delivered at St. Anselm College in Manchester, N.H., represented an extraordinary break from the longstanding rhetorical norms of American presidential nominees. But if his language more closely resembled a European nationalist’s than a mainstream Republican’s, he was wagering that voters are stirred more by their fears of Islamic terrorism than any concerns they may have about his flouting traditions of tolerance and respect for religious diversity.

Amish Man Wins Exemption From State Building Code

A Michigan state trial court judge has held that a member of the Old Order Amish is entitled to an exemption from the Michigan Residential Building Code.  According to the Sault St. Marie News, in a June 6 opinion visiting Judge Harold Johnson sitting in the 50th District Court held that denial of the exemption would violate both the Fair Housing Act and the Religious Land Use and Institutionalized Persons Act. Amish defendant William Miller objected on religious grounds to requirements for electric and plumbing systems, indoor bathrooms, modernized kitchens and electronic devices such as smoke alarms and carbon monoxide detectors.

Bahrain Prohibits All Political Activity By Religious Leaders

Gulf News and Middle East Confidential report that on Saturday Bahrain's King Hamad Bin Eisa Al Khalifa promulgated amendments to the 2005 Political Society Law.  That law banned political societies with religious agendas and and banned the use of religious organizations to promote political ideas.  It also prohibited judges, diplomats and security and military personnel from joining any political society. Saturday's amendments, endorsed by parliament last month, however, go farther. They prohibit any religious figure who delivers sermons from being a member of a political society or engaging in political activities. Critics say the amendments are aimed at restricting the activities of the Shia population that have been protesting against the government and calling for structural political reforms. Justice Minister Shaikh Khalid Bin Ali Al Khalifa said that places of worship have been exploited for political purposes.

Recent Articles of Interest

From SSRN:

• Petr Agha, The Burqa Ban's Dark Side – Uncovering Face Covering Bans, (June 1, 2016).
• Andrew Koppelman, A Free Speech Response to the Gay Rights/Religious Liberty Conflict, (Northwestern University Law Review, Forthcoming).
• M. Christian Green, Apostasy Through Doubt and Dissent, (Forthcoming in the Journal of Law and Religion, July 2016).
• M. Christian Green, 'Graceful Pillars': Law, Religion, and the Ethics of the 'Daughter Track', (Forthcoming in the Journal of Law and Religion, July 2016).
• Rex Ahdar, Companies as Religious Liberty Claimants, (Oxford Journal of Law and Religion, 2016).
• Marc O. DeGirolami, Substantial Burdens Imply Central Beliefs, (St. John's School of Law Legal Studies Research Paper Series, 16-0014 (2016)).
• M. Christian Green, Jean Bethke Elshtain, (Christianity and Family Law, Chapter 24, Forthcoming).
• Debbie Kaminer, Religious Accommodation in the Workplace: Why Federal Courts Fail to Provide Meaningful Protection of Religious Employees, (Texas Review of Law & Politics, Vol. 20, No. 107, 2015).
• Robert W. McGee, Toilets, Transgenders, and Property Rights, (June 9, 2016).
• Suneal Bedi, Fully and Barely Clothed: Case Studies in Gender and Religious Employment Discrimination in the Wake of Citizens United and Hobby Lobby, (Hastings Business Law Journal, Vol. 12, No. 2, 2016).
• Rex Ahdar, Charity Begins at the Politically Correct Home? The Family First Case, (Otago Law Review (2015) 14(1) 171-189).

From SmartCILP:

• Neil Hamilton, Madeleine Coulter & Marie Coulter, Professional Formation/Professionalism's Foundation: Engaging Each Student's and Lawyer's Tradition on the Question "What Are My Responsibilities to Others?" 12 University of  St. Thomas Law Journal 271-338 (2016).
• Brett R. McCaw, Pro Deo et Patria: The Greek Catholic Church and Ukrainian National Life--Past and Present. 9 University of St. Thomas Journal of Law & Public Policy 94-124 (2014).
• Kent Greenawalt, McElroy Lecture. Granting Exemptions from Legal Duties: When Are They Warranted and What Is the Place of Religion?, 93 University of Detroit Mercy Law Review 89-117 (2016).
• Mark Strasser, Free Exercise and the Definition of Religion: Confusion in the Federal Courts, 53 Houston Law Review 909-937 (2016).
• Symposium: Human Rights and the Sexualization of Culture, 2 Journal of Global Justice & Public Policy 173-258 (2015).
• The Morality of Market Mechanisms. Leslie Carothers, moderator; Lucia Ann Silecchia, Bob Perciasepe, Caroline Farrell, participants. [Abstract], 46 Environmental Law Reporter News & Analysis 10005-10016 (2016).

Ohio School District Sues Feds Over Accommodation For A Transgender Student

A lawsuit was filed today in federal district court by an Ohio school district challenging the Justice Department and Department of Education's interpretation of Title IX as it applies to transgender students.  Unlike the broad-ranging lawsuit filed last month by eleven states challenging the same interpretation, today's suit focuses on accommodation, inconsistent with the new federal guidelines, already made by one school for a transgender student. The student began transitioning from male to female identity between kindergarten and first grade. The school allows the student to use single use staff restrooms, and encourages others students in the class to do likewise. The student's legal custodian has complained, and the Department of Education has investigated and proposed that the school change its policy to allow the transgender student to use sex-specific facilities. The complaint (full text) in Board of Education of the Highland Local School District v. U.S. Department of Justice, (SD OH, file 6/10/2016), says:

Highland has acceded, and will continue to accede, to the requests of Student A’s legal custodian to respect Student A’s gender-identity choice by not interfering with Student A’s current gender expression. But Highland will not accede to requests that adversely impact the dignity, privacy, safety, well-being, or rights of other students.

If the government were to deny federal funding because of a violation of Title IX, this would cost the school district $1.12 million. ADF issued a press release announcing the filing or the lawsuit.

Court Denies Preliminary Injunction To Require Inclusion of Parochial Schools In Voucher Program

According to the Denver Post, a Colorado federal district court in a ruling from the bench  yesterday refused to issue a preliminary injunction to require the Douglas County (Colorado) School District to include religiously affiliated schools in its School Choice Grant Program.  The court held that it was unclear that plaintiffs would ultimately succeed on the merits of their claim that excluding sectarian schools from the voucher program amounts to government hostility toward religion. At any rate, plaintiffs had not shown irreparable harm since plaintiffs could always seek monetary damages if they ultimately prevail. Also no schools had yet agreed to participate in the grant program. Private religious schools were excluded from the grant program after the Colorado Supreme Court last year struck down an earlier school choice program adopted by the county which included religious schools. (See prior related posting.)

IRS Advisory Committee On Non-Profits Submits Report

The Advisory Committee on Tax Exempt and Government Entities this week presented its 2016 report (full text) providing recommendations to the Internal Revenue Service.  Its subcommittee on exempt organizations noted that common themes emerged in conversations with regulators and other experts:

a need for coordinated action among regulators; better communication between regulators and those regulated entities; efficient and effective platforms for communication and dissemination of information; the need for transparency, particularly around enforcement; and, above all, the need to be user-focused throughout the regulatory and enforcement cycle.

BNA Daily Report for Executives [subscription required] has more on the recommendations.

Another "Church Plan" Lawsuit Filed

This week, another lawsuit was filed challenging the right of a religiously-affiliated hospital to rely on the "church plan" exemption from ERISA for its pension plan.  The complaint (full text) in Butler v. Holy Cross Hospital, (ND IL, filed 6/26/2016), alleges that HCH's pension plan violated a number of provisions in ERISA.  When HCH terminated it plan, it was underfunded by $31 million. The complaint alleges in part:

the HCH Plan is not a church plan because HCH is not a church. In fact, even if the law permitted certain non-church entities to establish church plans, the HCH Plan does not meet the various other requirements of a church plan. And if the HCH Plan did meet all the statutory requirements for church plan status, the statute would then be, to the extent, and as applied to HCH, an unconstitutional accommodation under the Establishment Clause of the First Amendment.

British Parliamentary Group Releases Report On Asylum Claims By Migrants Claiming Religious Persecution

In Britain, the All Party Parliamentary Group for International Freedom of Religion or Belief this week released a 35-page report titled Fleeing Persecution: Asylum Claims in the UK on Religious Freedom Grounds. Here is an  excerpt from the Executive Summary:

While the law is clear that religious persecution constitutes grounds for asylum, assessment of religion based asylum applications is complex and challenging due to the inherently internal and personal nature of religion and belief. This is compounded by the fact that persecution on the basis of religion or belief encompasses a wide range of human rights violations and relates to complex dynamics of communal identities, politics, conflicts and radical organisations....

... [T]here is a disparity between Home Office policy guidelines and what is actually happening in practice.... [W]hile it is clear that a lack of understanding of religion and belief is a primary cause of the disparity between good policy guidelines and practices of decision-makers within the UK asylum system, such ignorance might have been formalised through unpublished ‘crib sheets’ given to decision-makers.

Further evidence submitted by a number of stakeholders revealed that Christian and Christian convert asylum seekers are still being asked detailed factual “Bible trivia” questions which is too simplistic a way to judge if an individual is, for example, a genuine convert. Furthermore anecdotal evidence has shown that some people are learning as much as they can so they can be prepared for the Home Office interview.

Donald Trump On His Religious Beliefs

Syndicated columnist Cal Thomas yesterday interviewed Republican presumptive nominee Donald Trump on several issues.  Here is the portion of the full transcript relating to Trump's religious beliefs:

CT: Every president has called upon God at some point. Lincoln spoke of not being able to hold the office of the presidency without spending time on his knees. You have confessed that you are a Christian …

DT: And I have also won much evangelical support.

CT: Yes, I know that. You have said you never felt the need to ask for God’s forgiveness, and yet repentance for one’s sins is a precondition to salvation. I ask you the question Jesus asked of Peter: Who do you say He is?

DT: I will be asking for forgiveness, but hopefully I won’t have to be asking for much forgiveness. As you know, I am Presbyterian and Protestant. I’ve had great relationships and developed even greater relationships with ministers. We have tremendous support from the clergy. I think I will be doing very well during the election with evangelicals and with Christians. In the Middle East — and this is prior to the migration — you had almost no chance of coming into the United States. Christians from Syria, of which there were many, many of their heads … chopped off. If you were a Muslim from Syria, it was one of the easiest places to come in (to the U.S.). I thought that was deplorable. I’m going to treat my religion, which is Christian, with great respect and care.

CT: Who do you say Jesus is?

DT: Jesus to me is somebody I can think about for security and confidence. Somebody I can revere in terms of bravery and in terms of courage and, because I consider the Christian religion so important, somebody I can totally rely on in my own mind.

LDS Church Sued In Tribal Court Over Child Abuse

St. George News yesterday reported on a suit filed this week against the Mormon Church and several of its affiliates alleging that LDS leaders did not take adequate steps in the 1970's to protect Native American children from sexual abuse after they were placed in Mormon foster homes. The suit stems from "Indian Placement Program" or "Lamanite Placement Program" which operated from the late 1940's until around 2000 and took children from their Navajo homes in order to convert them to Mormonism. Plaintiff contends that the LDS Church workers told him to remain in his Mormon foster home in northern Utah until the end of the school year even though he complained that his foster father was sexually abusing him.  Interestingly the suit was filed in Navajo Tribal Court in order to avoid statute of limitations issues that would otherwise arise under Utah law. Three other Native American plaintiffs have previously filed similar lawsuits, beginning in March of this year.  Last week, the LDS Church filed suit in Utah federal district court to enjoin the Tribal Court from proceeding in those suits, arguing that Tribal Courts lack jurisdiction over  nonmember activity that occurred outside the reservation.

District Court Again Enjoins Enforcement of Alabama's Same-Sex Marriage Ban

In Strawser v. Strange, (SD AL, June 7, 2016), an Alabama federal district court, noting actions by the Alabama judiciary seeking to defy the U.S. Supreme Court's Obergefell decision, issued a permanent injunction barring the enforcement of Alabama’s laws that bar same-sex marriage.  Rejecting defendants' assertion that the claim against them is moot, the court said:

Although Attorney General Strange is already subject to a permanent injunction from another case in this Court, Searcy v. Strange, ... the other Defendants in this case are not subject to that injunction and the Plaintiffs in this case lack standing to enforce the Searcy injunction. It is also apparent that certain Alabama state courts do not view this Court’s ruling in Searcy as binding precedent....

The Court notes that the Supreme Court of Alabama denied the pending mandamus petitions and entered judgment in Ex parte State of Alabama ex rel. Alabama Policy Institute.... However, the Alabama Supreme Court did not vacate or set aside its earlier writ of mandamus directing Alabama’s probate judges to comply with the Alabama laws that were held unconstitutional by this Court.... Chief Justice Moore also stated that the Eleventh Circuit’s finding that the Alabama Supreme Court's order was abrogated by the Supreme Court's decision in Obergefell “is plainly wrong.”...

This Court is aware that Chief Justice Moore is currently suspended from his position and is facing charges before the Alabama Court of the Judiciary. However, even if Chief Justice Moore is not reinstated to his position as Chief Justice, the concurring opinions of several other Alabama Supreme Court Justices also expressed disagreement with Obergefell.... It is clear that the decision by the United States Supreme Court in Obergefell does not provide certainty that the alleged violations will not recur.

A press release from Americans United has more on the decision.

Required Use of Social Security Number Not a Free Exercise Violation

In Earl of the Family Cox v. St. Mary's County Department of Social Services, 2016 U.S. Dist. LEXIS 74402 (D MD, June 7, 2016), a Maryland federal district court in a brief opinion rejected the argument by a pro se plaintiff that required use of  his Social Security number in the child support program violates his 1st Amendment free exercise rights.

European Court Says Turkish Objector Not Covered By European Convention on Human Rights

In Enver Aydemir v. Turkey, (ECHR, June 7, 2016) (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment held that Article 9 (Freedom of thought, conscience and religion) of the European Convention on Human Rights does not protect a Turkish conscientious objector.  Enver Aydemir asserted that he objects to military service for the secular Republic of Turkey, but would serve under a system based on the Qur'an and subject to its rules. A press release by the Court summarized the Court's reasoning:

Mr Aydemir’s complaints did not involve a form of manifestation of a religion or belief through worship, teaching, practice or observance within the meaning of Article 9 § 1. Accordingly, the Court concluded that Mr Aydemir’s opposition to military service was not such as to entail the applicability of Article 9 of the Convention, and that the evidence before it did not suggest that his stated beliefs included a firm, fixed and sincere objection to participation in war in any form or to the bearing of arms.

The Court did find, however, that Mr. Ayedmir was subjected to inhuman and degrading treatment in violation of Article 3 of the ECHR in the investigation of charges against him, charges brought against him and mistreatment of him during confinement. The Court awarded Ayedmir damages of 15000 Euros plus 3000 Euros for costs and expenses.

EEOC Sues Over Firing of Seventh Day Adventist

The EEOC announced yesterday that it has filed suit against Greenville Ready Mix Concrete, Inc., a North Carolina based company, for refusing to accommodate the religious observances of a Seventh Day Adventist employee.  Michael Cole, a truck driver for the company, was baptized as a Seventh-Day Adventist in February 2014, after which he asked not to work on Saturdays.  The company nevertheless scheduled him for a Saturday, and fired him when he refused.

Suit Challenges Tennessee Law Allowing Counselors To Refuse To Counsel Gays

AP reports that a state court lawsuit has been filed in Clinton, Tennessee by two gay rights activists challenging HB 1840, a new Tennessee law that allows therapists to assert their conflicting sincerely held principles to refuse to counsel clients on goals or behaviors.  The suit contends that the law violates the equal treatment provisions of the Tennessee Constitution.

Court Again Denies Minister Right To File Amended Complaint In Building Code Dispute

In Salman v. City of Phoenix, (D AZ, June 6, 2016), an Arizona federal district court denied a motion by an Arizona minister to file a fourth amended complaint in a suit challenging Phoenix's application of its building code to his use of his house for weekly Bible study meetings and worship.

Appeal Planned In Pakistan Court's Expansion of Grounds For Christian Divorce

Christians in Pakistan  (May 26) reports that a Christian leader will appeal to Pakistan's Apex Court a ruling handed down on May 23 by the Lahore High Court that expanded the grounds for Christian divorce in the country.  The Pakistan's Christian Divorce Act of 1869 allowed Christians to divorce in accordance with the procedures of British law.  However in 1981 General Zia-ul-Haq annulled that provision and limited the grounds for Christian divorce to adultery.  Now a High Court judge has ruled that the 1981 change was unconstitutional, reviving the ability of Christian couples to divorce on additional grounds found in British law, including divorce if the marriage has become irreparable. As reported by Christian Daily (May 26), some Christians feel that the expanded grounds for divorce mar the sanctity of marriage.

Israel's High Court Upholds Chief Rabbinate's Monopoly On Kosher Certification

In Israel on Monday, a 3-judge panel of the High Court of Justice in a 2-1 ruling upheld the official Chief Rabbinate's monopoly on kosher certification.  As reported by the Times of Israel, at issue was the ability of restaurants to use a alternative private kosher supervision service which issues certificates that do not use the term "kosher" in attesting to compliance with Jewish religious dietary requirements. The restaurants involved only displayed the Private Supervision certificate on their websites.  However, the High Court majority held:

a business is prohibited from presenting its kashrut status in writing, whether by using the word kosher or not, unless it was given a kosher certificate by the body authorized by law to do so.

The majority however said that the Chief Rabbinate would have to make reforms in its certification process within two years to eliminate the requirement that restaurants pay the salaries of inspectors who certify them.  The restaurants say they will seek review of the ruling by an expanded bench of the High Court.

Court Issues Preliminary Injunction Against College's Speech Permit Policy

In Grace Christian Life v. Woodson, (ED NC, June 4, 2016), a North Carolina federal district court issued a preliminary injunction barring North Carolina State University from enforcing its non-commercial speech permit policy that requires students to obtain prior written permission before distributing leaflets or soliciting passersby on campus. The suit was brought by a Christian student organization that proselytizes on campus. (See prior posting.) According to a press release by ADF, the court issued the preliminary injunction two days after a hearing in the case.  The court adopted plaintiff's allegations as its findings of fact. The preliminary injunction allows the University to still ban disruption of University activities, obstruction of buildings or sidewalks, or interference with educational activities or ceremonies.

In UK, Proposed Counter Extremism Bill Will Include Provisions Aimed At Unregistered Orthodox Jewish High Schools

The Independent reported Saturday that a Counter Extremism Bill being drafted by Britain's Home Office will contain new provisions aimed at unregistered Orthodox Jewish high schools which educate boys only in religious subjects.  Classes are taught in Yiddish. Former pupils have alleged that physical beatings are common and teachers often encourage students to enter arranged marriages at age 18.  Some students leave school unable to speak English. The schools serve the ultra-Orthodox Jewish community of north London.  Apparently Hackney Council officials have been aware of the schools for several years, but cooperated with religious schools to destroy records of students disappearing from the rolls of registered schools.  Britain's Department of Education says it is intensifying investigations into unregistered schools. The new focus by the government apparently stemmed from a report published in April by The Independent. [Thanks to Law & Religion UK for the lead.]

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.