Recent Articles of Interest

From SSRN:

• Shaun Alberto de Freitas, Doctrinal Sanction and the Protection of the Rights of Religious Associations: Ecclesia De Lange v the Presiding Bishop of the Methodist Church of Southern Africa, (726/13) [2014] ZASCA 151 (July 1, 2016).
• Joanna Diane Caytas, Disposing of Relics: Overt and Covert Blasphemy Statutes in Europe, (Columbia Journal of European Law: Preliminary Reference (April 1, 2016)).
• Sylvia Ann Law, Scott Skinner-Thompson & Hugh Baran, Marriage, Abortion and Coming Out, (Columbia Law Review Sidebar, Vol. 116, Forthcoming).
• Lucia Ann Silecchia, Laudato Si' and Care for Our Common Home: What Does it Mean for the Legal Professional?, (6 Seattle J. of Envtl. L. 1 (2016)).
• Adedayo Damilola Oyebade, Human Rights Protection: A Panacea for the Use and Involvement of Women in Terrorism, (June 29, 2016).

From SmartCILP and elsewhere:

• Alex Reed, RFRA v. ENDA: Religious Freedom and Employment Discrimination, 23 Virginia Journal of Social Policy and Law 1-37 (2016).
• Vincent J. Samar, Toward a New Separation of Church and State: Implications for Analogies to the Supreme Court Decision in Hobby Lobby by the Decision in Obergefell v. Hodges, 36 Boston College Journal of Law & Social Justice 1-31 (2016).
• 21st International Law and Religion Symposium. Keynote address by Sen. Orrin G. Hatch; articles by Neville Rochow, Vanja-Ivan Savic, Asma T. Uddin and Jean-Paul Willaime; comments by students Jarom R. Jones & Zachary D. Smith. 2015 BYU L. Rev. 585-874.
• Joseph D. Kearney, The Supreme Court and Religious Liberty, 99 Marquette Law Review 427-445 (2015).
• Mark Strasser, Free Exercise and Substantial Burdens Under Federal Law. 94 Nebraska Law Review 633-684 (2016).
• Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection. Article by Fr. Frank Brennan; response by Mary Ellen O'Connell. 39 Boston College International & Comparative Law Review 47-95 (2016).
• Women in the Revolution: Gender and Social Justice After the Arab Spring. Introduction by Adrien K. Wing; articles by Mounira Maya Charrad, Shafiqa Ahmadi, Karima Bennoune, Sahar F. Aziz, Seval Yildirim and Fatina Abdrabboh; roundtable participation by Adrien K. Wing, moderator; Fatina Abdrabboh, Shafiqa Ahmadi, Sahar F. Aziz, Karima Bennoune, Mounira Maya Charrad, Sara Ghadiri, Ahmad E. Souaiaia, Seval Yildirim, discussants; interview of Mounira Maya Charrad. 18 Journal of Gender Race & Justice 341-476 (2016).
• Symposium, Public Religion, Private Communities and Human Rights, Law & Ethics of Human Rights, Vol. 10, Issue 1 (May 2016).

Russian President Signs Anti-Terrorism Law That Restricts Religious Proselytizing

According to reports from USCIRF, Russia Religion News, and Forum18, last week Russian President Vladimir Putin signed into law a package of anti-terrorism measures that were passed by the Russian State Duma in late June. The measures, part of which place extensive new restrictions on religious missionary activity, take effect on July 20. As explained by USCIRF:

The anti-terrorism measures would, among other provisions, amend the 1997 Russian religion law by redefining "missionary activities" as religious practices that take place outside of state-sanctioned sites. The new law thus would ban preaching, praying, proselytizing, and disseminating religious materials outside of these officially-designated sites, and authorize fines of up to $15,000 for these activities conducted in private residences or distributed through mass print, broadcast or online media.  Foreign missionaries also must prove they were invited by state-registered religious groups and must operate only in regions where their sponsoring organizations are registered; those found in violation face deportation and major fines.

According to Forum18:

Another part of the package of laws sharply increases Criminal Code Article 282.2 punishments for those convicted of allegedly "extremist" activity, who are often Jehovah's Witnesses and Muslims who study the works of theologian Said Nursi. These punishments were last increased in February 2014.

[Thanks to Scott Mange for the lead.] 

Recent Prisoner Free Exercise Cases

In Gilbert v. Fox, 2016 U.S. Dist. LEXIS 86811 (D CO, June 9, 2016), a Colorado federal district court held that an inmate's claim that his free exercise rights are violated by refusal to recognize his Nuwaupian Certificate of Live Birth Name is a challenge to conditions of confinement and cannot be decided in a habeas corpus proceeding.

In Gadbury v. California, 2016 U.S. Dist. LEXIS 86891 (ED CA, July 1, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's attempt to obtain a vegetarian diet (which also meets his medical needs) for religious reasons.

In Ryan v. Graham, 2016 U.S. Dist. LEXIS 87477 (ND NY, July 5, 2016), a New York federal magistrate judge recommended dismissing a complaint by a Muslim inmate that his free exercise rights were infringed by limiting him to having eleven books in his cell while in special housing unit.

In Deen v. Albritton, 2016 U.S. Dist. LEXIS 87607 (ND CA, July 6, 2016), a California federal magistrate judge allowed a Muslim inmate to move ahead with his complaint that Muslim inmates are not allowed to pray in groups of more than four.

In Davis v. Bateman, 2016 U.S. Dist. LEXIS 88532 (ED PA, July 7, 2016), a Pennsylvania federal district court dismissed an inmate's complaint that he was denied access to attend religious services on four occasions. He had attended both Christian and Muslim services a total of 61 times.

In Pierre v. Geo Group, 2016 U.S. Dist. LEXIS 88698 (MD GA, June 3, 2016), a Georgia federal magistrate judge recommended that a Muslim inmate be permitted to move ahead with his complaint that he was forced to shave rather than being allowed to grow a beard as required by his religious beliefs.

Jehovah's Witnesses Win Another Round In Bid To Access Gated Communities In Puerto Rico

Watchtower Bible Tract Society of New York, Inc. v. Municipality of Ponce, (D PR, July 6, 2016), is the latest installment in a 12-year battle by Jehovah's Witnesses to gain access to gated communities in Puerto Rico in order to proselytize door-to-door.  In prior decisions, the federal courts have ordered communities to grant access to Jehovah's Witnesses.  However in response certain gated communities argued that they are not subject to the court's orders because their roads and streets are completely private.  In this 50-page opinion, a Puerto Rico federal district court ruled that the streets within Estancias del Golf Club in the Municipality of Ponce are subject to the court's earlier orders  The court said in part:

Up to 2012, the residents of EGC went above and beyond to complete the last steps of the transfer of their streets to the Municipality. Suddenly, they took a one hundred eighty degree turn and demanded their streets now be private, when it became convenient to them. This Court will not allow Plaintiffs’ First  Amendment protected activity to be held hostage by the whim of residents associations within gated communities....

It has become quite common for urbanizations and some of their residents to believe it is unacceptable to have non-residents walk the streets within their gated communities. This constitutes a discriminatory pattern that our Constitution forbids....  Community gates in Puerto Rico narrow the concept of community and of individual through decisions about group social worth and social threat, about who is redeemable and who is dispensable, about who is “good” and allowable, and about who is “bad” and made to “go away.”

Texas Proposes Rule Change On Handling of Fetal Tissue

As reported by Catholic News Agency, on July 1 the Texas Health and Human Services Commission proposed rule amendments (full text) that would change the way in which health care facilities dispose of fetal tissue from an abortion or miscarriage.  Fetal tissue, regardless of how early in a pregnancy, would need to be disposed of by cremation or burial, instead of being treated in the same way as other pathological waste. The proposed change comes less than one week after the U.S. Supreme Court struck down Texas' restrictive regulation of abortion clinics. (See prior posting.)

In New Suit, 10 States Challenge Feds' Interpretation of Transgender Rights

Yesterday, Nebraska and nine other states filed suit against the federal government challenging interpretations of the anti-discrimination provisions of Title VII and Title IX by the Department of Justice, the Department of Education, OSHA and the EEOC.  Federal agencies have asserted that the ban on discrimination on the basis of "sex" includes a ban on discrimination based on gender identity. The complaint (full text) in State of Nebraska v. United States, (D NE, filed 7/8/2016) contends that these interpretations were adopted in violation of the Administrative Procedure Act and various constitutional provisions.  Joining Nebraska in the lawsuit are Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota and Wyoming. Omaha World-Herald reports on the lawsuit. In May, eleven other states filed a similar lawsuit in federal district court in Texas. (See prior posting.)

Suit Alleges Grants For Church Preservation Projects Violate Massachusetts No-Aid Provision

A suit was filed yesterday against the town of Acton, Massachusetts by 13 of the town's residents and taxpayers challenging the town's approval of three Community Preservation grants to restore core facilities and religious imagery of two active local churches. The complaint (full text) in Caplan v. Town of Acton, Massachusetts, (MA Super. Ct., filed 7/7/2016) alleges that the grants violate Article XVIII, Section 2 of the Massachusetts Constitution that prohibits use of public funds "for the purpose of founding, maintaining or aiding any church, religious denomination or society." Grants to Acton Congregational Church funded a master plan for historic preservation of the 170-year old church building and for repair of major stained glass window's in the church's building. A grant to the South Acton Congregational Church funded roof repairs. Americans United issued a press release announcing the filing of the lawsuit. Boston Globe reports on the lawsuit.

Suit Challenges Michigan's Attempt To Dissuade Assertion of Religious Objection To Immunizations

In Michigan yesterday, the mother of four children filed a federal lawsuit challenging Michigan's rules regarding exemption from the state's immunization requirements for school children.  Mich. Comp. Laws § 333.9215 allows parents to obtain an exemption from the requirements by presenting school officials a written statement "to the effect that the requirements ... cannot be met because of religious convictions or other objection to immunization." The state Department of Health and Human Services (HHS) in 2014 adopted a rule (R 325.176(12)) requiring that any request for a non-medical exemption be certified by the local health department after giving the parents warning of the risks of their child not receiving vaccines.

The complaint (full text) in Nikolao v. Lyon, (ED MI, filed 7/7/2016), alleges that HHS has furnished local employees with a "Religious Waiver Note" providing them guidance on how to convince those with religious objections to nevertheless allow their children to be immunized. Plaintiff, a Catholic, contends that the Note contains misrepresentations about Catholic beliefs as to vaccination. She alleges further that when she went to the Wayne County health department to obtain certification of her religious objections, employees insisted that she needed to declare what religion she practices, explain her religious beliefs, and engage in a back and forth discussion with the ... nurse concerning her religious objection...." The complaint goes on:

54. Defendants attempted to use Mrs. Nikolao’s beliefs and adherence to Papal authority to coerce her into vaccinating her children by telling her lies about the Catholic faith and untrue Papal statements.

55. In the end ... Defendants refused to give Mrs. Nikolao a religious exemption, requiring her to mask her religious beliefs in the shroud of an “other” objection.

56. This façade on its own violated Mrs. Nikolao’s religion since, as a Catholic, she has a “grave responsibility . . . to make a conscientious objection with regard to those [vaccines] which have moral problems.”

Plaintiff claims that this violated her free exercise rights under the state and federal constitutions, the Establishment Clause and Michigan statutory law.  The Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Chaplains' Group Says New Military Policy On Transgenders Poses Religious Freedom Concerns

On June 30, Secretary of Defense Ash Carter announced that the ban on transgender individuals serving in the military is being lifted. (Links to DOD documents.) Those already in the military will be permitted to serve openly and will be provided appropriate medical care and treatment after receiving a diagnosis from a military medical provider indicating that gender transition is medically necessary. (Fact Sheet). The Chaplain Alliance for Religious Liberty issued a statement (full text) yesterday raising questions about the new policy. The statement reacts to a conference call with a Pentagon official, and reads in part:

The official said that such persons will be required to receive a medical statement from a military medical professional that they suffer from gender dysphoria.... 

An endorser on the call asked whether medical professionals who hold a biblical view on human sexuality will be required to violate their consciences and do as these persons demand, and the response was that it is the responsibility of medical professionals to serve military persons. It’s an understatement to say that this raises serious religious liberty concerns,” said Chaplain (COL) Ron Crews.... “The Department of Defense must ensure ... that doctors and nurses who hold to a biblical view of human sexuality can serve in today’s military...."

The official on the conference call went on to say that “mixed genitalia” will be present in military bathrooms, showers, and barracks because service members will be in various stages of change in their sexual identity.... Crews said. “Do we want our sons and daughters to be forced to share showers and sleeping spaces in a ‘mixed genitalia’ environment with no recourse for objections of conscience?”

USCIRF Criticizes China's Restrictions On Muslims During Ramadan

The U.S. Commission on International Religious Freedom yesterday issued a statement (full text) strongly criticizing restrictions imposed by the Chinese government on religious practices during Ramadan, ending with Eid al-Fitr. USCIRF Chair Thomas Reese, S.J. said:

The Chinese government once again has banned government employees, students, and children from fasting, and in some cases praying, during Ramadan.  While restrictions on Uighur Muslims’ religious practices take place year round, they are particularly onerous during Ramadan, giving lie to the government’s claim that Uighur Muslims in Xinjiang enjoy religious freedom.  They do not.  The Chinese government is violating its own constitution and international human rights standards by denying religious freedom to its citizens.

Obama Sends Eid al-Fitr Greetings

President Obama yesterday issued a statement (full text) sending greetings to the Muslim community on the arrival of Eid al-Fitr-- the holiday that marks the end of the month of Ramadan.  The President said in part:

Muslim Americans are as diverse as our nation itself—black, white, Latino, Asian, and Arab. Eid celebrations around the country remind us of our proud history as a nation built by people of all backgrounds; our history of religious freedom and civil liberties, and our history of innovation and strength. These legacies would not be possible without the contributions of Muslim Americans that make our country even stronger.

This past month, our country and the world endured challenges and senseless violence that broke our hearts and tried our souls.  Our prayers are with the hundreds of innocent lives, many of them Muslim, taken during the month of Ramadan in places like Orlando, Istanbul, Dhaka, Baghdad, and Medina. 

Here at home, we’ve also seen a rise in attacks against Muslim Americans. No one should ever feel afraid or unsafe in their place of worship. Many Americans have shared in the experience of Ramadan by volunteering in community service efforts to assist those in need and even fasting a few days with their fellow Muslim American co-workers. In the face of hate, it’s our American values and strength that bring us together to stand in solidarity and protect one another—thereby, making our Nation stronger and safer.

Muslim Americans have been part of our American family since its founding. This Eid, we recommit to protecting Muslim Americans against bigotry and xenophobia, while celebrating the contributions of Muslim Americans around the country, including one of our finest, the People’s Champion Muhammad Ali, to whom we bade farewell this Ramadan. Later this month, Michelle and I will host an Eid celebration at the White House and we look forward to welcoming Americans from around the country to celebrate the holiday.

NYC Human Rights Commission OKs Limited Women-Only Swimming Hours

As reported yesterday by dna info, the New York City Human Rights Commission has granted the city's Parks Department a limited exemption for gender anti-discrimination rules in order to accommodate religious objections to mixed gender swims at two of the city's pools.  Reserving a limited number of hours for women-only swimming to accommodate Hasidic Jewish women had become a controversial issue in recent weeks, with the New York Times last month editorializing against the practice. However now an HRC spokesman says:

Everyone in New York City should have an equal opportunity to enjoy recreation centers.  After weighing the Parks Department’s request for an exemption for limited women-only swimming hours at two Brooklyn pools and balancing the impact on the broader community, the Commission has granted a limited exemption. Maintaining limited women-only swim hours at these pools will allow all women to enjoy the pool without being asked to compromise their religious beliefs or affiliations and will have a minimal impact on other community members’ ability to access the pool.

The Parks Department though will substantially reduce the number of women-only swim hours to four hours per week.

Obergefell Decision Attacked By Suit Demanding License For Man-Object Marriage

As reported in a Liberty Counsel press release, in a rambling 44-page complaint filed last week Mark "Chris" Sevier, a Vanderbilt Law School graduate who was suspended from practice in 2011, filed suit challenging Kentucky's refusal to issue him a marriage license to allow him to marry his laptop computer.  Framed as a challenge to the U.S. Supreme Court's Obergefell decision, the complaint (full text) in Sevier v. Davis, (ED KY, filed 7/1/2016)) alleges in part:

The Plaintiff seek one of two forms of relief: (1) that the state be enjoined from enforcing any laws and policies that prevents him from legally marrying an inanimate object in light of the decision in Obergefell v. Hodge ... and United States v. Windsor ... or alternatively, (2) that all forms of marriage outside the traditional definition of marriage be nullified in reviving the original marriage laws and bans, since laws that try to establish the plausibility of gay rights violates the establishment clause of the first amendment....

If the plaintiffs request to many a machine is frivolous and "removed from reality," then certainly a man's request to many a man in order to call him his lawfully wedded wife in hopes that the society will whomp up more dignity for such marriages is equally "removed from reality" and culturally imperialistically arrogant. It is this kind of moral relativist that causes Middle Eastern Nations to hate the United States so much - because the adaptation of these values are a threat to the integrity of families - and they recognize that.

Sevier has previously filed similar lawsuits in Texas, Florida and Utah (see Above The Law). This time however he named as one of the defendants the equally adamant opponent of same-sex marriage, Rowan County Kentucky Clerk Kim Davis. (See prior posting.)  Alluding to this, the complaint alleges:

Unless total marriage equality is permitted as demanded by the Plaintiff, Mrs. Davis will have a valid cause of action under racketeering statutes against those who conspired to persecute and prosecute her maliciously as an an attempt to force her to convert to their sexually exploitative self-justifying world view.... Allowing the Plaintiff to marry an inanimate object will give those who put her in jail more credibility, since it will show that the Courts really believe that sexual orientation is based on civil rights matter and not an ideological religious one stemming from an attempt to legislate away feelings of shame and inadequacy.

Suit Challenges California's Elimination of Religious and Personal Belief Exemptions From Mandatory Immunization

A number of parents as well as several advocacy groups filed a lawsuit in a California federal district court last week challenging the constitutionality of California's SB 277, a law requiring school students (other than those being home-schooled) to be immunized against ten specific diseases, and removing the state's prior personal belief and religious belief exemptions. The law became effective on July 1. (See prior posting.) The complaint (full text) in Whitlow v. State of California, (SD CA, filed 7/1/2016) says that various plaintiffs have a variety of safety and religious objections to immunizations, including concern that some vaccines are manufactured with cell lines that began with aborted fetal cells. The complaint alleges that the new law violates a number of state and federal constitutional protections:

Defendants' conduct infringes on the Plaintiffs' and their children's fundamental rights, including parental rights, right to bodily integrity, right to informed consent and to refuse medical intervention, right to privacy, and/or right to free exercise of religion, by requiring Plaintiffs to choose between those rights and the right to education.

Los Angeles Times reports on the lawsuit.

UPDATE: The court denied a temporary restraining order, finding there were no allegations of immediate harm. Also there were no efforts to serve defendants. Whitlow v. California, 2016 U.S. Dist. LEXIS 86848 (SD CA, July 5, 2015).

Church Sues Iowa Officials Over Transgender Access Rules

In Iowa yesterday, a conservative Christian church filed a federal lawsuit against officials of the Iowa Civil Rights Commission and against the city of Des Moines alleging that their anti-discrimination laws requiring transgender access to restrooms and changing rooms consistent with gender identity violate its 1st and 14th Amendment rights.  The complaint (full text) in Fort Des Moines Church of Christ v. Jackson, (SD IA, filed 7/4/2016) focuses on the following Iowa Civil Rights Commission's interpretation of its public accommodation rules:

Sometimes. Iowa law provides that these protections do not apply to religious institutions with respect to any religion-based qualifications when such qualifications are related to bona fide religious purpose. Where qualifications are not related to a bona fide religious purpose, churches are still subject to the law’s provisions. (e.g. a child care facility operated at a church or a church service open to the public).

The complaint alleges that the church invites the public to all its services and events, and that even those that are not overtly religious nevertheless "engender other important elements of religious meaning, expression, and purpose." It goes on to allege in part:

13. The Church believes and teaches that maleness or femaleness is designed by God and is tied to biology, chromosomes, physiology, and anatomy.

14. The Church’s religious beliefs mandate that sex is an immutable trait from which springs the natural and healthy desires for physical privacy and modesty in states of partial or full undress, such as in restrooms, showers, and changing rooms.

15. The Church recognizes that some individuals do not identify with their biological sex, and the Church welcomes those individuals, wants to be a blessing to them, and wants to minister to them.

16. The Act and City Code prohibit the Church from issuing statements that might cause individuals to believe that they are unwelcome because of their perceived gender identity.

17. The language of the Act and the City Code are broad enough to include within that prohibition sermons, theological expositions, educational speeches, newsletters or church worship bulletin text, or other statements from the Church and its leaders....

27. Allowing biological males to use facilities reserved for women and girls, and vice versa, violates the Church’s religious beliefs about human sexuality.

Des Moines Register reports on the lawsuit.

UPDATE:  Shortly after the lawsuit was filed, the Iowa Civil Rights Commission revised its interpretive pamphlet (full text) to read:

Places of worship (e.g. churches, synagogues, mosques, etc.) are generally exempt from the Iowa law’s prohibition of discrimination, unless the place of worship engages in non-religious activities which are open to the public. For example, the law may apply to an independent day care or polling place located on the premises of the place of worship.

DC Circuit In Procedural Reversal Allows Religious Discrimination Suit To Proceed

In Al-Saffy v. Vilsack, (DC Cir., July 1, 2016), the U.S. Court of Appeals for the D.C. Circuit reversed the district court and allowed a religious and national origin discrimination claim against both the Department of Agriculture and the Department of State to proceed.  As stated by the court, "Determining whether Al-Saffy’s lawsuit was properly brought requires us to navigate a quagmire of procedural rules."  BNA Daily Labor Report summarizes the court's holding:

Mohamed Tahwid Al-Saffy raised genuine factual issues about whether Agriculture and State were his joint employers when he directed the trade offices in Saudi Arabia and Yemen.... Although Al-Saffy wasn't “officially employed” by the State Department, he reported directly to the ambassadors of Saudi Arabia and Yemen, who are State employees, the court said.....

The court also rejected arguments that Al-Saffy did not file his lawsuit in a timely manner.  Again BNA summarizes the court's holding:

An EEOC order that omits that required information can't trigger the 90-day deadline, the court said. Al-Saffy therefore retained the option to sue at any time after 180 days had elapsed from his filing of the original administrative complaint....

Israeli Court Says Shouting Allahu Akbar Can Amount To Breach of Peace

In Israel last week, a Jerusalem Magistrate's Court ruled that shouting Allahu akbar (God is great) at a group of Jews on the Temple Mount can be the basis for a conviction for disturbing the peace. According to The Algemeiner, the court wrote in part:

[chanting] Allahu akbar during prayer, at a site of prayer and in the spot in the prayer [book] where it is called for does not constitute a breach of the peace, but a fundamental right. However, when those calls are used as a form of demonstration or protest, or as a way of creating a riot or unrest, they do not constitute prayers and are therefore a clear disturbance of the peace.

German Court Says Legal Intern Can Wear Hijab

In Germany last week, a high-ranking law graduate who encountered a ban on wearing her hijab after she had begun her internship with the Bavarian judicial system won a court victory, at least for now.  According to The Local:

The battle started after [Aqilah] Sandhu successfully completed her state exams and started a traineeship with the Bavarian judicial system.

In July 2014, the highest court in the state sent her a letter informing her that she was forbidden from interrogating witnesses or fulfilling other legal duties as long as she continued to wear a headscarf....

She immediately asked for an explanation of the ban, to which she was told “[religious] clothing and symbols can impair the trust in the religious neutrality of the administration of justice.”...

Judge Bernhard Röthinger decided that the young lawyer was in the right, agreeing that there was no legal basis for the state's attack on her religious freedom.

Sandhu is now seeking damages.  However  the state says it will appeal.

Recent Articles of Interest

From SSRN:

• Bernard Jackson, Mediation and Immediacy in the Jewish Legal Tradition, (June 26, 2016).
• Natasha Bakht & Lynda Margaret Collins, The Earth is Our Mother: Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada, (Ottawa Faculty of Law Working Paper No. 2016-24, 2016).
• Musa Njabulo Shongwe, Cultural and Religious Relativism as Opposition to the Aims of International Human Rights Law: Revisiting the Universalism vs. Regionalism Debate, (June 29, 2016).
• William B. Turner, The National Masturbators' Task Force; or, The Importance of LGBT Political Organizing for Evaluating LGBT Equal Protection Claims in Competition with Free Exercise of Religion Claims, (Journal of Law and Sexuality, Forthcoming).
• Jennifer Hendry & Melissa L. Tatum, Human Rights, Indigenous Peoples, and the Pursuit of Justice, (34 Yale Law & Policy Review 351 (2016)).
• Sarah Cravens, 'Love's Congruence': A Theological Account of Wisdom for Judges, (Tulsa Law Review, Vol. 51, No. 3, 2015).
• Varun Kumar Aery, Bringing Marriage Equality Overseas: A New Argument for International Human Rights Law, (2 U.C. Davis J. Int'l L & Pol'y 22 (2015)).

From SSRN (Islamic Law):

• Jill Wilson, Linda S. Rosenman, Ben White, Cheryl Tilse & Rachel Feeney, Cultural Considerations in Will-Making in Australia: A Case Study of Islamic or Sharia-Compliant Wills, (Alternative Law Journal, Vol. 41(1), Pp. 23-26, 2016).
• Michelle Limenta, Bayan Edis & Oscar Fernando, Disabling Labeling: The WTO Consistency of the Indonesian Mandatory Halal Labeling Law, (Society of International Economic Law (SIEL), Fifth Biennial Global Conference, Working Paper 2016/08, 2016).
• Asifa Quraishi-Landes, Islamic Constitutionalism: Not Secular. Not Theocratic. Not Impossible, (16 Rutgers Journal of Law and Religion 553 (2015)).
• M.B. Hooker, The Evolution of Singapore's Common Law Fiqh, 1957-2013, (Australian Journal of Asian Law, Vol. 17, No. 1, Article 9, 2016).

From SmartCILP and elsewhere:

• Steven P. Brown, The Girard Will and Twin Landmarks of Supreme Court History, 41 Journal of Supreme Court History 7-20 (2016).
• Carol Goforth, A Corporation Has No Soul, and Doesn't Go to Church: Relating the Doctrine of Piercing the Veil to Burwell v. Hobby Lobby, 67 South Carolina Law Review 73-97 (2015).
• Emilia Justyna Powell, Islamic Law States and the Authority of the International Court of Justice: Territorial Sovereignty and Diplomatic Immunity, 79 Law & Contemporary Problems 209-236 (2016).
• Evan C. Rothera, The Tenacious "Twin Relic": Republicans, Polygamy, and The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 41 Journal of Supreme Court History 21-38 (2016).
• Symposium on LGBT Antidiscrimination Law and Policy After Hobby Lobby. Foreword by David Dinielli; articles by Ira C. Lupu, Andrew Koppelman, Leslie C. Griffin and Elizabeth Sepper. 7 Alabama Civil Rights & Civil Liberties Law Review 1-170 (2015).
• Journal of Law, Religion and State, Vol. 4, Issue 2 (2016) has recently appeared.

Settlement Requires ChristianMingle To Include Same-Sex Date Searching

As reported by the Wall Street Journal, last week a California trial court entered a consent decree settling an Unruh Civil Rights Act class action that had been brought by two gay men against the dating sites ChristianMingle.com, CatholicMingle.com, AdventistSinglesConnection.com and BlackSingles.com. Plaintiffs charged that the sites did not allow users to meet singles of the same sex, thus violating state anti-discrimination laws that require business establishments to offer equal services regardless of sexual orientation. The judgment (full text) in Sparks Network Unruh Act Cases, (CA Super. Ct., June 27, 2016), requires that for the next two years the home pages of the sites must no longer provide the choices of "man seeking woman" and "woman seeking man," but instead only ask whether the user is a Man or Woman.  Those seeking a same-sex match can then search using text searching and profile building tools.  After that, the sites can be reconfigured so long as there is an option for those seeking a same-sex match to do so without indicating they are seeking someone of the opposite sex. The judgment also calls for future changes to create equal matching services.  Finally the judgment calls for defendant to pay damages totaling $18,000 and attorneys fees of $450,000.

Recent Prisoner Free Exercise Cases

In Smith v. Jensen, 2016 U.S. Dist. LEXIS 82909 (WD WI, June 27, 2016), a Wisconsin federal district court rejected claims by plaintiff who was committed as a sexually violent person that his right to freely exercise his Wiccan religion were infringed by a new restrictions on computer use and on computer access to clip art.

In Townsend v. Headley, 2016 U.S. Dist. LEXIS 82947 (ND AL, June 27, 2016), an Alabama federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 83182, May 11, 2016) and dismissed without prejudice the claim by a member of the Moorish Science Temple of America that his free exercise rights were infringed when "my chartel paper I use to open up as Grand-Shiek" (along with other papers, books, magazines and photos) was destroyed as contraband.

In Hardwick v. Senato, 2016 U.S. Dist. LEXIS 83565 (D DE, June 28, 2016), a Delaware federal district court dismissed an inmate's complaint of 4 years' delay in confirming his Jewish faith, and called for plaintiff to file an a mended complaint stating more clearly his claims regarding refusal of a position because he would not work on his Sabbath, and problems receiving kosher meals.

In Bryant v. Woodall, 2016 U.S. Dist. LEXIS 83690 (MD TN, June 28, 2016), a Tennessee federal magistrate judge recommended that inmates who are members of the Odinic or Asatru faith be allowed to move ahead with their attempt to obtain approval for group worship and acquisition of various items used during worship ceremonies.

In Stile v. United States Marshals Services, 2016 U.S. Dist. LEXIS 83747 (D NH, June 27, 2016), a New Hampshire federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 83750, May 9, 2016) and allowed an inmate to move ahead with his complaint that he could not participate in weekly religious services while he was being housed the maximum security disciplinary unit.

In Amaker v. Goord, 2016 U.S. Dist. LEXIS 83976 (WD NY, June 27, 2016), a New York federal magistrate judge (in addition to ruling on a number of non-religion related issues) recommended that an inmate be allowed to proceed with his free expression, but not his RLUIPA, complaint that delivery of incoming mail including Jehovah's Witnesses' magazines was denied. The court recommended dismissal of his complaint regarding occasional denial of food to break the fast during Ramadan, and his claim that denial of call outs was in retaliation for not complying with the prison grooming policy.

In Holland v. City of New York, 2016 U.S. Dist. LEXIS 84586 (SD NY, June 24, 2016), a New York federal district court dismissed on qualified immunity grounds a Muslim inmate's complaint about a strip search because there was no clearly established rule that, during a lockdown or other exigent situation, a correction officer is prohibited from conducting a strip search and viewing the private parts of a Muslim inmate of the opposite sex,

In Brown v. Fischer, 2016 U.S. Dist. LEXIS 85105 (WD NY, June 23, 2016), a New York federal district court allowed a Rastafarian inmate to proceed with his complaint that, while in restraints after an attempt to injure himself, his dreadlocks were forcibly cut while he was told Rastafarians were not permitted in that housing unit.

In Kadonsky v. D'Ilio, 2016 U.S. Dist. LEXIS 86224 (D NJ, July 1, 2016), a New Jersey federal district court allowed an inmate to proceed with his claim that a series of incidents led to ongoing theft and denial of access to his personal religious documents.

In Mehmood v. United States Marshals Services, 2016 U.S. Dist. LEXIS 86082 (D NV, June 30, 2016), a Nevada federal district court held that petitioners had stated a colorable free exercise claim based on the lack of halal-certified meals, but dismissed without prejudice ordering each petitioner to file separately stating allegations specific to him.

In Green v. Director/Secretary, California Department of Corrections and Rehabilitation, 2016 U.S. Dist. LEXIS 86187 (SD CA, June 10, 2016), a California federal magistrate judge recommended dismissing for failure to exhaust administrative remedies a Native American inmate's complaint that his free exercise rights were infringed when his religious items were confiscated and he was denied access to a sweat lodge, and that his 8th Amendment claims be similarly dismissed.

Court Refuses To Apply Ecclesiastical Abstention Doctrine

In Jackson v. Mount Pisgah Missionary Baptist Church Deacon Board, (IL App., June 30, 2016), an Illinois state appeals court refused to apply the ecclesiastical abstention doctrine in a breach of contract suit by a pastor who employment was terminated by his church.  The pastor contended that the church had agreed that his employment would be governed by the church's bylaws.  The court held:

[P]laintiff alleges that defendants failed to (1) provide a written notice of dissatisfaction; (2) hold a special meeting; (3) provide notice of a vote to the members; and (4) have a proper membership vote. To resolve this dispute, we need only look to the plain text of the church’s bylaws and the relevant facts to determine whether or not defendants breached their oral agreement by failing to comply with its bylaws. Since we need not inquire into any religious doctrines, and can address this issue employing neutral principles of civil law, we have jurisdiction to decide whether defendants breached their oral agreement with plaintiff.

The court went on to agree with the trial court's finding that defendants were completely compliant with the bylaws in dismissing the pastor.

Holocaust Survivor and Moral Spokesman Elie Wiesel Dies

Elie Wiesel, eulogized by the Washington Post as the "memory keeper of the Holocaust," died Saturday at age 87.  He was awarded the Nobel Peace Prize in 1986.  President Obama issued a statement (full text) calling Wiesel one of the great moral voices of our time, and in many ways, the conscience of the world." Vice President Biden also issued a statement of condolence (full text) as did Bill and Hillary Clinton (full text) in a statement posted on the Clinton Foundation website.

Court Strikes Down Indiana's So-Called Anti-Discrimination Ban on Abortions

In Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Department of Health, (SD IN, June 30, 2016), an Indiana federal district court issued a preliminary injunction against enforcing new regulation of abortions and abortion practices that were scheduled to take effect today.  One new prohibition (the so-called anti-discrimination provisions) bars abortion even before viability if the reason is the sex of the fetus, the fetus has been diagnosed with Down's syndrome or any other disability, or because of the race, color, national origin or ancestry of the fetus. The second provision requires abortion providers to inform their patients of these restrictions. The third provision alters the way in which healthcare providers must dispose of fetal tissue.  The court concluded:

nothing in Roe, Casey, or any other subsequent Supreme Court decisions suggests that a woman’s right to choose an abortion prior to viability can be restricted if exercised for a certain reason. The right to a pre-viability abortion is categorical.

Focusing on the fetal tissue disposal requirements, the court said that it:

can find no legal support for the State’s position that it has a legitimate state interest in “promoting respect for human life by ensuring proper disposal of fetal remains."

Chicago Tribune reports on the decision.

Alien Tort Suit Against Turkish Cleric Dismissed

In Ates v. Gulen, (MD PA, June 29, 2016), a Pennsylvania federal district court dismissed an Alien Tort Statute lawsuit (as well as related state law claims) that had been brought by three residents of Turkey against Fethullah Gulen, a Muslim cleric from Turkey presently living in Pennsylvania. Plaintiffs are followers of a Muslim sect known as the Dogan Movement which is critical of Gulen's Anatolian version of Islam.  Plaintiffs claim that Gulen, using influence he wielded over police, prosecutors and judges in Turkey, engaged in a campaign of persecution against plaintiffs, ultimately having them arrested and detained in Turkey for up to 20 months. The court elaborated;

Plaintiffs' action revolves around their key allegation that, in April of 2009, Golen "in effect issued instructions to his followers illegally to misuse the Turkish law enforcement system against the members of the Dogan Movement...."

The court concluded that it lacks jurisdiction under the Alien Tort Statute because there had been insufficient evidence of conduct that "touches and concerns" the territory of the United States to overcome the presumption that the Alien Tort Statute does not have extraterritorial application. The court found that the action is also barred by the act of state doctrine. Wall Street Journal reports on the decision.

Federal District Court Strikes Down Mississippi's Anti-LGBT Conscience Protection Law

In Barber v. Bryant, (SD MS, June 30, 2016), a Mississippi federal district court in a stinging 60-page opinion, issued a preliminary injunction against enforcement of Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act.  The new law protects a wide variety of conduct, or refusals to provide goods and service, based on a religious or moral belief that: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth.  The court concluded that the law, which would have gone into effect today, violates both the Establishment Clause and the Equal Protection Clause. Summarizing the history of the bill, the court said:

In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction..... Obergefell has led to HB 1523.

The court summarized its conclusions:

HB 1523 grants special rights to citizens who hold one of three “sincerely held religious beliefs or moral convictions” reflecting disapproval of lesbian, gay, transgender, and unmarried persons.... That violates both the guarantee of religious neutrality and the promise of equal protection of the laws.

The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others. Showing such favor tells “nonadherents that they are outsiders, not full members of the political community, and . . . adherents that they are insiders, favored members of the political community.” ... And the Equal Protection Clause is violated by HB 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons....

Responding to the state's argument that the law "is justified by a compelling government interest in accommodating the free exercise of religion," the court said that the state had "not identified 'even a single instance' in which Obergefell has led to a free exercise problem in Mississippi." The court added:

In this case, moreover, it is difficult to see the compelling government interest in favoring three enumerated religious beliefs over others....  It is not within our tradition to respect one clerk’s religious objection to issuing a same-sex marriage license, but refuse another clerk’s religious objection to issuing a marriage license to a formerly-divorced person. The government is not in a position to referee the validity of Leviticus 18:22 (“Thou shalt not lie with mankind, as with womankind: it is abomination.”) versus Leviticus 21:14 (“A widow, or a divorced woman, or profane, or an harlot, these shall he not take.”).

BuzzFeed and the Washington Post have additional coverage of the opinion.

Denial of Use Permit Did Not Impose "Substantial Burden" Under RLUIPA

In Livingston Christian Schools v. Genoa Charter Township, (ED MI, June 30, 2016), a Michigan federal district court held that a township's denial of a special use permit did not impose a substantial burden on the religious exercise rights of a Christian school.  The school sought to move to a building currently owned by a church and recently leased to the school. The court said in part:

The term “substantial burden” is not defined in the RLUIPA. The Sixth Circuit in Living Water Church of God v. Charter Twp. of Meridian articulated a standard which requires LCS to show that, “ . . . the government action place[s] substantial pressure on [it] to violate its religious beliefs or effectively bar[s] [it] from using its property in the exercise of its religion[.]” ... While it may be less convenient or more expensive for LCS to operate its school from a different location, the circumstances present here do not constitute a substantial burden.... Because LCS has not “proffered evidence showing that it cannot carry out its church missions and ministries due to the Township’s denial,” it has not established a substantial burden on its free exercise of religion.

The court also rejected the school's 1st and 14th Amendment challenges.

British Tribunal: Deportation of Imam Does Not Violate Islamic Center's Religious Freedom

In Hamat v. Secretary of State for the Home Department, (UK UT, June 6, 2016), Britain's Upper Tribunal (Immigration and Asylum Chamber) rejected a claim that the government is unlawfully interfering with the choice of a religious leader by the Afghanistan Islamic Cultural Centre by deporting its imam who was in the country illegally. Britain's Human Rights Act, Sec. 13, which implements provisions of the European Convention on Human Rights, provides in part:

If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.

The Tribunal held:

Whilst the effect of the appellant's removal inevitably has the effect of depriving the AICC and its membership of the imam of their choice, this was not the motive of the respondent's actions.... [T]he decision had not interfered with the freedom of choice of the Afghan Muslim community because their actions have not been prompted by a wish to favour one imam over another. The personality of the appellant has not influenced the decision....

The Tribunal went on to hold that Art. 9 of the European Convention on Human Rights (Freedom of thought, conscience and religion) would be violated only if the government's action would "make the free exercise of religion a practical impossibility." Here there are numerous options for the religious organization to recruit a replacement. [Thanks to Law & Religion UK for the lead.]

Belgian Council of State Says Proposed Ban On Ritual Slaughter Is Unconstitutional

JTA reported yesterday that in Belgium, the Council of State has issued an advisory opinion that proposed legislation to ban ritual slaughter would be overturned by the country's constitutional court as a violation of religious freedom.  The bill to end halal and kosher techniques in which animals are not stunned before slaughter was filed last month by the Green Party of the Flemish Region and is strongly supported by animal welfare minister, Ben Weyts of the New Flemish Alliance. It is largely a reaction to a legal fight by Muslim leaders in the Flemish region seeking to overturn the region's ban on the mobile temporary slaughtering areas that have been set up in previous years ahead of Eid al-Adha (the Festival of the Sacrifice). (Background.)

Canadian Court OK's Ontario's Refusal To Accredit Christian Law School

In Trinity Western University v. The Law Society of Upper Canada, (CA ON, June 29, 2016), a 3-judge panel of the Court of Appeal for Ontario upheld the decision of the Law Society of Upper Canada to deny accreditation to Trinity Western Law School because its religiously-grounded Community Covenant requires all students to "refrain from sexual intimacy that violates the sacredness of marriage between a man and a woman."  Finding that "the part of TWU’s Community Covenant in issue in this appeal is deeply discriminatory to the LGBTQ community," the Court held that the Law Society "did not violate its duty of state neutrality by concluding that the public interest in ensuring equal access to the profession justified a degree of interference with the appellants’ religious freedoms." In reaching that conclusion, the Court relied in part on the U.S. Supreme Court's 1983 Bob Jones University decision. Similar battles over accreditation of the Christian law school are in progress in the school's home province of British Columbia, as well as in Nova Scotia.  CBC News reports on yesterday's decision. [Thanks to Paul de Mello Jnr. for the lead.]

In Settlement, Good News Clubs Win Equal Access To After-School Facilities

In Cleveland, Ohio, Child Evangelism Fellowship has won equal treatment with non-religious community groups in use of public school facilities for after-school activities.  The consent order (full text) in Child Evangelism Fellowship of Ohio, Inc. v. Cleveland Metropolitan School District, (ND OH, June 28, 2016) provides that the school district will revise its equal access policy for community use of district facilities.  Under the revised policy, the school district will accept the services provided to students by Good News Clubs as in-kind payment of fees for using facilities to the same extent as it accepts services of non-religious groups. The federal court consent order also provides that the school district will pay nominal damages of $100 and attorneys' fees of $149,900 because its prior unequal treatment of Child Evangelism Fellowship violated the 1st and 14th Amendments. Liberty Counsel issued a press release announcing the consent order.

Supreme Court Denies Review In Two Abortion Cases

As reported by the New York Times, yesterday in the wake of its opinion in Whole Women's Health v. Hellerstedt striking down Texas' restrictions on abortion clinics (see prior posting), the Court denied review in cases from Mississippi and Wisconsin in which Courts of Appeal had similarly struck down restrictive state abortion laws.  The Court in its June 28 Order List denied certiorari in Currier v. Jackson Women’s Health Organization, (Docket No. 14-997) (SCOTUSblog case page) and Schimel v. Planned Parenthood of Wisconsin, (Docket No. 15-1200) (SCOTUSblog case page).

Criticism of Religious Scholarship Is Not Religious Discrimination

Hascall v. Duquesne University of the Holy Spirit, (WD PA, June 28, 2016), is a suit by a Duquesne University Law School faculty member, Susan Hascall, who was denied tenure. A Pennsylvania federal district court refused to dismiss her charges of gender discrimination and retaliation. However it did, among others, dismiss her religious discrimination claim, holding that:

Plaintiff's attempts to rely on her scholarship of Islamic law as a sincerely held religious belief are misplaced.... Scholarship in Islamic and Sharia law does not, on its own, create a sincerely held religious belief. Plaintiff has pointed to no evidence that she herself practices Islam as a religion. Indeed, Plaintiff states in her Amended Complaint that she has not converted to Islam.... Without a sincerely held belief in Islam, Plaintiff cannot establish a claim for religious discrimination.... Plaintiff may very well have been subject to ridicule and derision from her colleagues due to the subject matter of her choice of scholarship; however, such conduct is not prohibited by law.

Legal Intelligencer reports on the decision.

India's Supreme Court May Consider Constitutionality of Muslim Divorce Practices

India's Supreme Court today said it will examine whether it has jurisdiction to invalidate Muslim personal laws if they interfere with constitutional rights.  According to NDTV, the move comes in a suit challenging triple talaq, the practice that allows a Muslim husband to divorce his wife by pronouncing three times the phrase "I divorce you." (Background.) One of the cases raising the question was brought by a woman whose husband divorced her through triple talaq delivered by mail. The court will hear arguments on the issue on Sept. 6.

Supreme Court Denies Review In Washington State Pharmacy Case

The U.S. Supreme Court today denied review in Storman's Inc. v. Wiesman,  (Docket No. 15-682, cert. denied 6/28/2016), but over a 15-page dissent to the denial of certiorari written by Justice Alito and joined by Chief Justice Roberts and Justice Thomas. (Order List, scroll to pg. 7). In the case, the 9th Circuit upheld rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require pharmacies to deliver all prescriptions, even if the owner has a religious objection. An individual pharmacist with religious objections may refuse to fill a prescription only if another pharmacist working for the pharmacy does so. (See prior posting.)  In his dissent, Justice Alito argued in part:

there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State.

Washington Post reports on today's action by the Supreme Court. [Thanks to Marty Lederman via Religionlaw for the lead.]

British Court Rejects Challenge To Local Anti-Israel BDS Resolutions

In Britain today, a 2-judge panel of the England and Wales High Court rejected a challenge by a Jewish human rights group to anti-Israel resolutions passed by three local councils.  In Jewish Rights Watch (t/a Jewish Human Rights Watch), R (on the application of) v Leicester City Council, [2016] EWHC 1512 (Admin), June 28, 2016, petitioner challenged three resolutions: one by Leicester calling for a boycott of produce from Israeli West Bank settlements; one by Gwynedd calling for a trade embargo with Israel; and one by Swansea expressing concern that a company involved in building a light railway in Israel was also involved in contracts with Swansea. The court summarized Jewish Human Rights Watch's claims:

It is JHRW's case that the Councils singled out Israel for different treatment than that adopted in respect of other countries and, in particular, failed properly or sufficiently to consider the effect of the resolutions on the Jewish community. JHRW contends that the Councils failed to have due regard to the need to eliminate discrimination and harassment of Jewish people, and the need to foster good relations between those who are Jewish and those who are not; and that in doing so they failed to have any regard to the Public Sector Equality Duty, set out in s.149 of the Equality Act 2010, and their legal duties as public authorities, as set out in s.17 of the Local Government Act 1988.

Section 149 of the Equality Act has been interpreted to require public bodies to give advance consideration to equality issues before making policy decisions.  Section 17 of the Local Government Act bars local governments from considering the country or territory of origin in making contract decisions. The court concluded, however, that qualifying language in, and/or the non-binding nature of, the Resolutions prevented them from being in violation of law:

First, the evidence from each of the Defendant Councils was that the resolutions did not bind the Councils to abide by or act upon them. Leicester, Gwynedd and Swansea each operated through an Executive (which developed and implemented policy); and procurement was a function of the Executive rather than the full Council.

The second point is that two of the resolutions contained qualifying words. In the case of Leicester, the boycott resolution was qualified by the words, 'insofar as legal considerations allow'. In the case of Swansea the exhortation to support the position of the UN in relation to the settlement of East Jerusalem was qualified by the words, 'so long as to do so would not be in breach of any relevant legislation.'

Jewish Chronicle reporting on the decision, quotes JHRW which says it will file an appeal. JHRW's statement reads in part:

The local councils, recognising that such boycotts would be unlawful, insisted that their motions were non-binding and not actually implemented, and that the resolutions were in fact never intended to influence policy. So this was never about investment at all. Instead, it was about councils being able to make offensive and misleading declarations that divide communities for cheap political gain and put Jews in the UK in jeopardy – and all at the ratepayer’s expense.

[Thanks to Paul de Mello, Jnr. for the lead.]

Study Finds Global Restrictions On Religion Are Easing

The Pew Research Center last week released its latest report on Trends in Global Restrictions on Religion. The report covers calendar year 2014.  Summarizing its findings, the report says in part:

Of the 198 countries included in the study, 24% had high or very high levels of government restrictions in 2014 (the most recent year for which data are available), down from 28% in 2013.  There was a similar decline in the share of countries with high or very high social hostilities involving religion, which dropped from 27% to 23%. This is the second year in a row the number of countries with this level of religious restrictions has declined, after three years of steady increases.

Although only about a quarter of the countries included in the study fall into the most religiously restrictive categories, some of the most restrictive countries (such as Indonesia and Pakistan) are very populous. As a result, roughly three-quarters of the world’s 7.2 billion people (74%) were living in countries with high or very high restrictions or hostilities in 2014, down slightly from 77% in 2013.

The modest declines in countries with high restrictions or hostilities took place despite a marked increase in the number of countries that experienced religion-related terrorist activities, including acts carried out by such groups as Boko Haram, al-Qaida and the Islamic State (also known as ISIS or ISIL).

USCIRF Elects Reese As Chair

The U.S. Commission on International Religious Freedom announced last week that it has elected Rev. Thomas J. Reese, S.J., as Chair of the Commission.  Dr. Daniel Mark and Dr. James J. Zogby were elected as Vice-Chairs.

Court Moves To Invalidate Mississippi's Law For Recusal By County Clerks Who Object To Same-Sex Marriage

In a decision issued yesterday, a Mississippi federal district court took the first step toward issuing an injunction that would have the effect of preventing county clerks in Mississippi from relying on the provisions in Mississippi HB 1523 that allow them to recuse themselves from issuing marriage licenses to same-sex couples because of religious or moral objections to same-sex marriage. (See prior posting.)  The decision came in an attempt to reopen and expand the injunction issued by the federal district court in 2015 baring enforcement of Mississippi's statutory and constitutional provisions barring same-sex marriage.

In Campaign for Southern Equality v. Bryant, (SD MS, June 27, 2016), the court explained:

The constitutional violation this case addressed in 2014 and 2015 was whether the Fourteenth Amendment permitted a State to treat same-sex couples differently than opposite-sex couples with respect to the issuance and recognition of marriage licenses.

Today’s motion concerns the same issue. In HB 1523 § 3(8)(a), the State is permitting the differential treatment to be carried out by individual clerks.***

Section 3(8)(a) is a significant change sufficient to reopen this case and reconsider the language of the Permanent Injunction....  The undersigned, though, is not persuaded that the 81 non-party Circuit Clerks are presently bound by the Permanent Injunction.... [T]he better course of action is to ensure that the remaining 81 Circuit Clerks have received actual notice of a Permanent Injunction that binds them before they are held accountable for it. The parties shall confer on an appropriate procedure for providing that notice....

No one has argued that the Permanent Injunction is invalid, but the briefing now suggests that it lacks all necessary parties. Judicial economy may be served by an Amended Permanent Injunction which enjoins § 263A of the Mississippi Constitution and Mississippi Code § 93-1-1(2), incorporates appropriate language from Rule 65, and clarifies that the persons it binds must issue marriage licenses “on the same terms and conditions as opposite-sex couples.” Obergefell, 135 S. Ct. at 2605....

The point of adding Obergefell’s language is simple: the Supreme Court’s ruling will be enforced. Obergefell “is the law of the land and, consequently, the law of this circuit.” 791 F.3d at 627. Mississippi’s elected officials may disagree with Obergefell, of course, and may express that disagreement as they see fit – by advocating for a constitutional amendment to overturn the decision, for example. But the marriage license issue will not be adjudicated anew after every legislative session. And the judiciary will remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly.

BuzzFeed reports on the decision.

Supreme Court Invalidates Texas Abortion Access Law

In a 5-3 decision today in Whole Women's Health v. Hellerstedt, (Sup. Ct., June 27, 2016), the U.S. Supreme Court struck down key provisions in Texas' controversial statute regulating access to abortions.  The majority opinion, written by Justice Breyer, held that both the requirement for a physician performing an abortion to have admitting privileges in a near-by hospital and for abortion clinics to meet standards that apply to ambulatory surgical centers place a substantial obstacle in the path of women seeking a pre-viability abortion and place an undue, unconstitutional burden on abortion access. Justices Kennedy, Ginsburg, Sotomayor and Kagan joined Justice Breyer's opinion. Justice Ginsburg also filed a concurring opinion. Justice Thomas filed a dissenting opinion. Justice Alito also filed a dissenting opinion which Chief Justice Roberts and Justice Thomas joined.

Religious Tracts Cannot Be Distributed On Arena Plaza

In Ball v. City of Lincoln, Nebraska, (D NE, June 23, 2016), a Nebraska federal district court dismissed an attempt to enjoin authorities from enforcing a policy that, among other things, bars leafleting on a Plaza Area outside the Pinnacle Bank Arena unless requested by a person renting out the Arena or the artists or productions they represent. (Full text of Use Policy.) The Arena was jointly constructed by the city of Lincoln and the University of Nebraska.  Plaintiff Larry Ball handed out religious tracts in the Plaza Area on several occasions, and was cited for trespass.  The court upheld the Arena's policy, finding that the Plaza Area is a non-public forum and that the restrictions on its use are reasonable because they are neutral and do not curtail free speech in nearby areas. Lincoln Journal Star reporting on the decision says that an appeal is planned.

Recent Articles of Interest

From SSRN:

• Patrick McKinley Brennan, A Catholic Way to Cook a Hamburger? The Catholic Case against McLaw, (Villanova Law Review, Forthcoming).
• Corinna Lain, Death Row, Calls for Indifference, and Redemption of the Soul, (77 Ohio St. L.J. Furthermore, Forthcoming).
• Caroline Mala Corbin, Deference to Claims of Substantial Religious Burden, (Illinois Law Review Online, p.10, 2016).
• Danielle Weatherby & Terri Day, LGBT Rights and the Mini RFRA: A Return to Separate But Equal (Draft), (DePaul Law Review, Forthcoming).
• Dwight G. Newman, Judicial Method on Rights Conflicts in the Context of Religious Identity, (June 24, 2016).
• Courtney G. Joslin, Marriage Equality and its Relationship to Family Law, (129 Harv. L. Rev. F. 197 (2016)).

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

• Gabor Halmai, Constitutionalism, Law, and Religion in Israel: A State's Multiple Identities, (J Civil Legal Sci 2016).
• Mohamed Abdelaal, The Paradox of Freedom of Religion in Post-Revolutionary Egypt, (Pieter Coertzen, M. Christian Green, and Len Hansen (eds.) Religious Freedom and Religious Pluralism in Africa: Prospects and Limitations (African Sun Media, 2016)).
• Luke Beck, When is an Office or Public Trust 'Under the Commonwealth' for the Purposes of the Religious Tests Clause of the Australian Constitution?, (Western Sydney University School of Law Research Paper No. 04/2016 (2016)).
• Alfons Aragoneses, Convivencia and Filosefardismo in Spanish Nation-building, (Max Planck Institute for European Legal History Research Paper Series No. 2016-05 (2016)).
• Victor M. Muniz-Fraticelli, The (Im)Possibility of Christian Education, (June 21, 2016).
• Robert W. McGee, The Relationship between Religion and Views Toward Homosexuality: An Empirical Study of 98 Countries, (June 23, 2016).
• Robert W. McGee, Does Religion Influence Views Toward Homosexuality: An Empirical Study of 16 Countries, (June 23, 2016). 
• Peter M. Beattie, Anti-Semitism and Opposition to Israeli Government Policies - The Roles of Prejudice and Information, (June 15, 2016).
• Elen Seymour & Marina Nehme, The ACNC, the Senate, the Commission of Audit and the Not-for-Profit Sector, (Western Sydney University School of Law Research Paper No. 05/2016 (2015)).

Top Religious Leaders React To Brexit

Several top religious leaders have issued statements reacting to Thursday's vote in Britain to exit from the European Union.  Here are links:

• Archbishops of Canterbury and York
• Cardinal Vincent Nichols, Catholic Archbishop of Westminster
• Britain's Chief Rabbi Ephraim Mirvis
• Pope Francis

Ark Encounter Set To Open In Kentucky

Today's New York Times has a background piece on Kentucky's Ark Encounter-- the massive $102 million Noah's Ark display scheduled to open July 7.  The project has been the subject of extensive controversy over whether state tourism subsidies are appropriate. (See prior  posting.) The Times quotes Ark Encounter promoter, Ken Ham:

The reason we are building the ark is not as an entertainment center.  I mean it’s not like a Disney or Universal, just for anyone to go and have fun. It’s a religious purpose. It’s because we’re Christians and we want to get the Christian message out.

Court Says Religious Autonomy Precludes Adjudication of Suit By Torture Victim

In a fascinating decision handed down June 17, an Oklahoma trial court held that the "religious autonomy doctrine" requires it to dismiss a suit against a U.S. church by a convert from Islam to Christianity who was captured and tortured in Syria because of his conversion. The facts are set out more fully in a complaint (full text) filed in 2014.  A Tulsa, Oklahoma resident who was born in Syria decided to convert, but told First Presbyterian Church leaders that his conversion had to remain confidential because he periodically traveled back to Syria and the punishment for apostasy under Sharia law was death. Despite assurances of confidentiality, the church published an announcement of his baptism in its Order of Worship, which was posted on the World Wide Web.  After traveling back to Syria, plaintiff was bound, beaten and tortured by radical Muslims who threatened to behead him. He eventually escaped.  His suit alleges that the church is guilty of negligence, breach of contract and outrageous conduct leading to extreme emotional distress.

In Doe v. First Presbyterian Church USA of Tulsa, Oklahoma, (OK Dist. Ct., June 17, 2016), the court held that the public dissemination of the names of those who have been baptized "is a key part of how the Church requires a conversion and baptism to be 'visible" to the world." The court went on to say:

the simple dispositive issue is whether the public dissemination of Plaintiff's name as a baptized person is "rooted in religious belief"....

[A] secular Court like this one must not consider claims ... that arise out of a sacrament because a sacrament is part of the most sacred beliefs of that religious institution.... Defendants' deeply held religious belief about the visible, public nature of baptism must not be disturbed by this Court. [emphasis in original]

Tulsa World reports on the decision, with additional background.

Recent Prisoner Free Exercise Cases

In Russell v. Helder, 2016 U.S. Dist. LEXIS 79862 (WD AR, June 20, 2016), an Arkansas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 79870, May 18, 2016), and refused to dismiss a suit by a Wiccan inmate who was seeking a vegan diet for religious reasons.

In Maon v. State Department of State Hospitals, 2016 Cal. App. Unpub. LEXIS 4576 (CA App., June 21, 2016), a California state appeals court upheld a decision by authorities at a state mental hospital refusing to allow a patient detained there who was to be married in the hospital's visiting room to wear a tuxedo for the ceremony in accordance with Buddhist tradition.

In Rivera v. Raines, 2016 U.S. Dist. LEXIS 82495 (SD IL, June 23, 2016), an inmate complaining about the refusal of prison officials to permit Nation of Gods & Earths to hold religious services was allowed by an Illinois federal district court to move ahead with his challenges under the 1st Amendment, the Equal Protection Clause, and his official capacity RLUIPA claims.

Free Exercise Defense To Food and Drug Act Indictment Rejected

In United States v. Girod, 2016 U.S. Dist. LEXIS 82365 (ED KY, June 24, 2016), a Kentucky federal district court refused to dismiss an indictment under the Food, Drug and Cosmetic Act against defendant who claimed that his religious faith rejects FDA testing.  Defendant was charged with operating an establishment that manufactured and marketed products for the treatment of skin disorders, cancer, sinus infections, and other ailments, without required registration with the FDA. (See opinion at 2016 U.S. Dist. LEXIS 81047, June 22, 2016). The court held that defendant did not properly raise his free exercise objection, but that even if he had he had not shown that the Act imposes a substantial burden on his exercise of religion.

ADL Issues Annual Audit of Anti-Semitic Incidents

This week the ADL issued its 2015 Audit of  Anti-Semitic Incidents. It showed 941 incidents in the United States last year, a 3% increase from 2014. Fifty-six of the incidents were assaults (compared to 36 in 2014).  Overall, the number of anti-Semitic incidents on college campuses grew to 90 (compared to 47 in 2014). According to the ADL, the number of anti-Semitic incidents peaked in 2006 (1,554 incidents that  year), and has generally been on the decline since then. The Audit adds:

ADL witnessed an explosion of hate online, especially on social media platforms in 2015. While the Audit includes incidents of online anti-Semitism reported to ADL in which an individual or institution is explicitly targeted, it does not count general anti-Semitic expressions online.

HHS Sued Over Allowing Catholic Agencies To Limit Health Services To Unaccompanied Immigrant Minors

The ACLU today filed suit in a California federal district court alleging that officials in the U.S. Department of Health and Human Services have violated the Establishment Clause in allowing the U.S. Conference of Catholic Bishops and its sub-grantees to impose religiously based restrictions on the use of taxpayer funds to aid unaccompanied immigrant minors.  The complaint (full text) in ACLU of Northern California v. Burwell, (ND CA, filed 6/24/2016) alleges in part:

1. There are currently thousands of unaccompanied immigrant minors ... in the legal custody of the federal government.... Many have come to the United States fleeing abuse and torture in their home countries; many have been sexually abused or assaulted ....; some have also been trafficked for labor or prostitution....

2. The federal government is legally required to provide these young people with basic necessities, such as housing, food, and access to emergency and routine medical care, including family planning services, post-sexual assault care, and abortion.

3. To provide young people with these necessities, the government ... issues grants to private entities, including a number of religiously affiliated organizations.

4. ... Defendants authorize a few of these religiously affiliated organizations—such as the United States Conference of Catholic Bishops ... and its subgrantees across the country ... to refuse on religious grounds to provide information about, access to, or referrals for contraception and abortion, even if the young person in their care has been raped.

New York Times reports on the lawsuit.

Orthodox Church Lays Groundwork For Legal Enforcement of Ban on Church Use For Same-Sex Marriages

The Holy Synod of Bishops of the Orthodox Church in America last week adopted a statement (full text) titled Sincerely Held Religious Beliefs Regarding Marriage.  It is apparently designed to allow parishes and monasteries to legally enforce restrictions on use of their facilities for same-sex or transgender marriage ceremonies without courts invoking the ecclesiastical abstention doctrine to refuse to do so.  The introduction to the statement says in part:

The purpose of that statement was to articulate the basic and fundamental beliefs of the Orthodox Church in America regarding marriage and to do so in terms which could be understood and applied by federal, state, and local governmental officials without the necessity of any probing inquiry or interpretation which might require them to transgress limitations imposed on them by the First Amendment.

The statement says in part that "Marriage can only be between two people whose birth sex is male and female." It then calls for each diocese, parish, institution and monastery to adopt a statement declaring:

The (Name of the Parish/Hall/Facility) is the property of the (Name of the Parish/Institution/Monastery), a non-profit church organization located in (Location). Due to sincerely held religious beliefs, documented in the Biblical, dogmatic and canonical documents of the Orthodox Church, we do not permit the (Name of the Parish/Hall/Facility) to be used for the following purposes: events, services or receptions related to non-Orthodox sacraments (including, but not limited to, baptisms, weddings or funerals); non-Orthodox worship services; and partisan political or social rallies.

Texas Supreme Court: Challenge To Home-School Rules Does Not Require Exhaustion of Administrative Remedies

In McIntyre v. El Paso Independent School District, (TX Sup. Ct., June 24, 2016), the Texas Supreme Court in a 6-3 decision held that parents of home-schooled children were not required to exhaust administrative remedies before they challenged the constitutionality of state law provisions mandating curricular standards for home schools.  The parents alleged that their rights to due process, equal protection, and free exercise of religion under the Texas Constitution and U.S. Constitutions were infringed, along with their right to privacy under the Texas Constitution. According to the majority:

The McIntyres claim that the District and its attendance officer unconstitutionally investigated them and filed criminal complaints against them. They do not claim to be aggrieved by the school laws.

The dissent by Justice Green, joined by Justices Johnson and Brown argued:

[T]he Court today ignores our rules of statutory construction and holds that homeschool parents can avoid that exhaustion requirement simply by cloaking their school-law claims in constitutional language.

According to a Christian Science Monitor report on the decision, the parents stopped teaching their children a standard curriculum because they believed they would soon be "raptured."

Indonesian Police Investigate Whether Facebook Post Was Blasphemy

In Indonesia yesterday, Ade Armando, a lecturer in Communications Science at the University of Indonesia, was questioned by the Jakarta Police Special Criminal Investigation Unit after an employee of a media company filed blasphemy charges against Armando.  According to Tempo, the charges stem from a post by Armando on his Facebook page reading: "Allah is not an Arab. Allah will be happy if His verses are being recited with Minang, Ambon, Chinese, Hip hop, Blues style." Apparently the post was in response to a suggestion by Indonesia's Religious Affairs Minister for a Qur'an recitation festival.  Armando says that the post generated a charge that he was likening God to man. Art. 156a of the Indonesia Penal Code prescribes up to 5 years in prison to anyone "who deliberately in public gives expression to feelings ... which principally have the character of being at enimity with, abusing or staining a religion, adhered to in Indonesia...."

9th Circuit Hears Challenge To Ban On Conversion Therapy

The U.S. 9th Circuit Court of Appeals yesterday heard oral argument (video of oral arguments) in Welch v. Brown.  In the case, a California federal district court rejected Free Exercise and Establishment Clause challenges to California's ban on mental health professionals providing "sexual orientation change efforts" (SOCE) for minors. (See prior posting.).  SFGate reports on yesterday's oral arguments.

7th Circuit: Bus Company Wrongly Refused Ad From Pro-Life Health Link

In Women's Health Link, Inc. v. Fort Wayne Public Transportation Corp., (7th Cir., June 22, 2016), the U.S. 7th Circuit Court of Appeals held that Fort Wayne's Citilink wrongly refused to accept an ad that Women's Health Link wanted to place on city buses. Citilink's rules bar ads that "express or advocate opinions or positions upon political, religious, or moral issues."  The proposed ad did not express any such opinion or position, but the health care referral service it advertised is pro-life and so urges alternatives to abortion.  The court held that Citilink's rules are limited to ad content, and do not relate to the advertiser's underlying policies or material that may be on the advertiser's website. It concluded: "Citilink’s refusal to post the ad was groundless discrimination against constitutionally protected speech." Reuters reports on the decision.

Muslim NYPD Officer Wins Temporary Relief Over Beard Length

Once again (see prior posting) the New York City Police Department's grooming rules are being challenged in court.  According to yesterday's New York Daily News, the NYPD on Tuesday imposed a 30-day suspension without pay on a Muslim officer who works as a law clerk for the Department. The officer, Masood Sayed, refused to shave his one-inch long beard. The NYPD had previously allowed him to wear a beard one millimeter in length, but said a longer beard would create problems with proper sealing of department-issued gas masks.  A federal district court yesterday, finding a likelihood of success by Sayed, barred the NYPD from taking further disciplinary action against him until a July 8 hearing.

No Police Liability For Telling Woman To Stop Praying During Investigation

In Sause v. Louisburg Police Department, 2016 U.S. Dist. LEXIS 80243 (D KA, June 17, 2016), a Kansas federal district court dismissed on qualified immunity grounds plaintiff's claim that her free exercise rights were infringed when a police officer investigating a noise complaint told plaintiff to stop praying while the officers were in the middle of talking with her in her apartment about the complaint. According to the court:

While Officer Stevans's instruction to Plaintiff to stop praying may have offended her, it does not constitute a burden on her ability to exercise her religion. Plaintiff fails to provide any allegations that would suggest Officer Stevans's actions coerced her into conduct contrary to her religious beliefs, or that he otherwise prevented her from practicing her religion.