Recent Articles of Interest

From SSRN:

• Paul T. Babie, Australia and Australian External Territories in Brill, Encyclopedia of Law and Religion (July 2016).
• Melissa Crouch, Promiscuity, Polygyny and the Power of Revenge: The Past and Future of Burmese Buddhist Law in Myanmar, (Asian Journal of Law and Society, Special Issue on Buddhism and Law in Asia, Forthcoming).
• Eva Brems, Objections to Anti-Discrimination in the Name of Conscience or Religion: A Conflicting Rights Approach, (Forthcoming in The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Susanna Mancini & Michel Rosenfeld eds., Cambridge University Press, 2017)).
• Claudia E. Haupt, Religious Outliers: Professional Knowledge Communities, Individual Conscience Claims, and the Availability of Professional Services to the Public, (Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen, & Elizabeth Sepper eds. Cambridge Univ. Press, 2017 Forthcoming)).
• Perry Dane, Scopes of Religious Exemption: A Normative Map, (Religious Exemptions, Oxford University Press, Forthcoming).
• Christopher McCrudden, Marriage Registrars, Same-Sex Relationships, and Religious Discrimination in the European Court of Human Rights, (July 20, 2016).
• Peter J. Boettke, Joshua C. Hall & Kathleen M. Sheehan, Was Adam Smith Right about Religious Competition?, (West Virginia University, Department of Economics, Working Paper No. 15-47 (2015)).
• Melissa Crouch, Introduction: Islam and the State in Myanmar, (Melissa Crouch (ed), Islam and the State in Myanmar: Muslim-Buddhist Relations and the Politics of Belonging. Oxford University Press, 2016, Forthcoming).
• Oonagh B. Breen, Guardians of the Charitable Realm: Charitable Trust Supervision Practice and Procedure in the Common Law World, (European Review of Private Law, Forthcoming).

From SmartCILP and elsewhere:

• Benjamin Porat, Ownership and Exclusivity: Two Visions, Two Traditions, 64 American Journal of Comparative Law 147-190 (2016).
• Richard A. Epstein, Religious Liberty Under Siege In Mississippi, (Hoover Institution, Defining Ideas, July 18, 2016).

Church Directional Sign On Public Property Did Not Violate Establishment Clause

In Tearpock-Martini v. Shickshinny Borough, (MD PA, July 22, 2016), a Pennsylvania federal district court dismissed an Establishment Clause challenge to the action of a borough council that voted to permit a sign on a public property pointing the way to a local Baptist church.  Plaintiff whose property was near the sign was a member of council as well, but voted against the action. Borough employees helped install the sign which read: "Bible Baptist Church Welcomes You!".  The sign included a cross and a Bible and a directional arrow with the words "one block". Finding that the sign is a "religious display," the court concluded nevertheless:

A reasonable observer familiar with the history and context of the display would not perceive the sign as a government endorsement of religion.

(See prior related posting.)

Recent Prisoner Free Exercise Cases

In Turner v. Sidorowicz, 2016 U.S. Dist. LEXIS 93339 (SD NY, July 18, 2016), a New York federal district court dismissed an inmate's complaint that he was removed from the kosher diet meal plan after he allegedly took food from the regular meal line.

In Powell v. City of New York, 2016 U.S. Dist. LEXIS 94186 (SD NY, July 14, 2016), a New York federal magistrate judge recommended dismissal of an inmate's complaint that Muslims in his housing unit were not called for Friday Jummah services for two consecutive weeks. UPDATE: The court adopted the magistrate's recommendation at 2016 U.S. Dist. LEXIS 101919 (Aug. 3, 2016).

In Turner v. Schofield, 2016 U.S. Dist. LEXIS 94304 (WD TN, July 20, 2016), a Tennessee federal district court, while dismissing a number of claims, allowed a Nation of Islam inmate to move ahead with his complaint that pork meals are being served in the non-pork food line, that he is allergic to the food being served as  a pork replacement, and he has been refused passes for religious services when hi uses his Nation of Islam name to sign up.

In Burrell v. Loungo, 2016 U.S. Dist. LEXIS 94561 (MD PA, July 18, 2016), a Pennsylvania federal magistrate judge dismissed, with leave to amend, numerous claims by an inmate including his claim that his free exercise rights were infringed when his request for a furlough to attend an outside church service was denied.

In McCann v. Moreno, 2016 Tex. App. LEXIS 7715 (TX App., July 21, 2016), a Texas state appeals court affirmed the dismissal of a claim by a Jewish-Druid inmate that insistence he receive an insulin dose at 3:00 am violates his free exercise rights because his religion requires that he not eat or rise before sunrise.

In Henderson v. Muniz, 2016 U.S. Dist. LEXIS 94828 (ND CA, July 20, 2016), a California federal district court allowed a Muslim inmate to move ahead with his complaints regarding denial of daily and Friday prayers, denial of a qualified Muslim chaplain, necessary congregational artifacts, ability to celebrate Iftar and, as to one defendant, failure to provide hot Ramadan meals prepared and served by Muslim inmates.

In Etterson v. Newcome, 2016 U.S. Dist. LEXIS 94927 (ED VA, July 19, 2016), a Virginia federal district court refused to dismiss a Muslim inmate's complaint that  he was wrongly removed him from the list to receive Ramadan trays when he was seen eating and drinking after sundown but before the Ramadan trays had been served.

In Celestin v. Rock, 2016 U.S. Dist. LEXIS 95450 (ND NY, July 20, 2016), a New York federal magistrate judge recommended dismissing on qualified immunity grounds a Jewish inmate's complaint about not receiving Seder meals in special housing unit. The court stated: "although plaintiff may have had a well-established right to have the Seder meal brought to his cell, based on his individual belief that he could celebrate the Seder by himself, it was objectively reasonable for all the defendants to believe that they were not violating plaintiff's rights...."

In Flowers v. Mullet, 2016 U.S. Dist. LEXIS 95009 (WD OK, July 21, 2016), an Oklahoma federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 95473, June 27, 2016) and dismissed an inmate's complaint that a Bible was taken from his cell.

Federal Agencies Seek Public Input On Contraceptive Mandate Accommodation

In a Request For Information (full text) published yesterday in the Federal Register, the IRS, HHS and Employee Benefits Security Administration asked for suggestions on ways to further accommodate objections by religious non-profits to  furnishing their employees coverage for contraceptive services in employer health plans.  The Release is the government's response to the U.S. Supreme Court's remand last May in Zubik v. Burwell. (See prior posting.) The Release says in part:

The Departments are using the RFI procedure because the issues addressed in the supplemental briefing in Zubik affect a wide variety of stakeholders, including many who are not parties to the cases that were before the Supreme Court. Other employers also have brought RFRA challenges to the accommodation, and their views may differ from the views held by the employers in Zubik and the consolidated cases. In addition, any change to the accommodation could have implications for the rights and obligations of issuers, third party administrators, and women enrolled in health plans established by objecting employers.

Responses must be submitted by Sept. 20. [Thanks to Jeff Pasek for the lead.] 

Cert. Petition Filed In Bakery's Refusal To Provide Cake For Same-Sex Wedding

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Masterpiece Cake Shop, Ltd. v. Colorado Civil Rights Commission, (cert filed 7/22/2016). In the case, a Colorado Court of Appeals held that a bakery owner's free exercise and free speech rights were not infringed when the Colorado Civil Rights Commission found that the refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law.  The Colorado Supreme Court denied review. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

RFRA Allows Insured To Refuse Contraceptive Coverage

In Wieland v. U.S. Department of Health and Human Services, (ED MO, July 21, 2016), a Missouri federal district court enjoined the federal government from enforcing the Affordable Care Act against a couple who, on religious grounds, object to participating in a healthcare plan that provides coverage for contraceptives and similarly object to providing contraceptive coverage to their daughters who are on their health insurance policy. Plaintiff, a Roman Catholic, is a Missouri state legislator and receives health insurance through the state's health care plan.  Finding that plaintiffs have standing because they might be able to find a plan that does not offer contraceptive coverage, the court went on to hold that RFRA bars enforcement of the mandate against plaintiffs, saying in part:

Defendants further argue that “[i]t is not a substantial burden on a person’s religion to subscribe to a group health plan that covers services that the person will not use for religious reasons, or that other individuals covered by the plan will elect, in the exercise of their personal choice, to utilize.” Plaintiffs contend that Defendants’ argument is, in essence, an attack on the sincerity of their religious beliefs, which the Supreme Court most recently in Hobby Lobby cautioned against. This Court agrees. Defendants’ argument is, in effect, an argument that Plaintiffs’ religious beliefs are unreasonable. However, the sincerity of Plaintiffs’ religious beliefs has not been disputed, and it is not for the Court “to say that [Plaintiffs’] religious beliefs are mistaken or insubstantial.”

The court went on to hold that even assuming that the government has a compelling interest in "a workable insurance system that covers a wide range of preventative health services," there are less restrictive means of achieving this goal:

the government could allow a system like that in place in Missouri before the Mandate, where individuals could simply check a box to opt out of contraceptive coverage.

Modern Healthcare reports on the decision. (See prior related posting.) [Thanks to Jeff Pasek for the lead.] 

Trump Again Calls For Repeal of Politicking Limits on Churches-- Some Background

In Donald Trump's acceptance speech at the Republican National Convention last night (full text from Politico), he repeated his previous promise to work for repeal of the Johnson Amendment, saying:

At this moment, I would like to thank the evangelical community who have been so good to me and so supportive. You have so much to contribute to our politics, yet our laws prevent you from speaking your minds from your own pulpits.

An amendment, pushed by Lyndon Johnson, many years ago, threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views.

I am going to work very hard to repeal that language and protect free speech for all Americans.

The relevant language is found in Section 501(c)(3) of the Internal Revenue Code which, in describing religious and charitable organizations that qualify for tax-exempt status, says that they may "not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office."

Here is a history and critique of the Johnson Amendment from the perspective of Alliance Defending Freedom, an organization that seeks its repeal. And here is an issue of Liberty Magazine containing four articles largely supporting the Amendment's underlying policy and constitutionality.

Plaintiffs Lack Standing To Challenge Florida Chabad Center

In Gagliardi v. City of Boca Raton, (SD FL, July 21, 2016), a Florida federal district court dismissed on standing grounds a challenge by residents and taxpayers of Boca Raton to zoning changes by the city that permitted a Chabad (Hasidic Jewish) group to construct a religious center.  Plaintiffs, who identified themselves as Christians, claim that the city's actions violated the Establishment clause, the equal protection and due process clauses, and the Florida Constitution.  Dismissing the complaint, with leave to file an amended complaint, the court said in part:

Plaintiffs fail to allege any injury at all, let alone one that is concrete and particularized. The closest they come to asserting an injury is when they allege that the building is “injurious to residents in the area including” Plaintiffs.... This allegation is insufficient because it merely states in conclusory fashion that the building is “injurious” without specifying how it causes injury...

Rejecting plaintiff's claim of taxpayer standing, the court said in part:

The only expenditure they identify is the payment of salaries to City employees who allegedly “provided favorable treatment to one religious group.”... “Nearly all governmental activities are conducted or overseen by employees whose salaries are funded by tax dollars. To confer taxpayer standing on such a basis would allow any municipal taxpayer to challenge virtually any governmental action at anytime...."

Palm Beach Sun Sentinel reports on the decision.

White House Hosts Belated Eid al-Fitr Reception

Yesterday afternoon, President Obama hosted a somewhat belated Eid al-Fitr reception at the White House. In his Remarks (full text) he said in part:

For Muslims across the United States and around the world, this is a time of spiritual renewal -- a time to reaffirm your duty to serve one another, especially the least fortunate among us.  And it’s a time to reflect on the values that guide you in your faith -- gratitude, compassion and generosity.  And it’s a reminder that those values of Islam -- which comes from the word salaam, meaning peace -- are universal.... 

Today is also another reminder that Muslims have always been a part of America.  In colonial times, many of the slaves brought over from Africa were Muslim.  We insisted on freedom of religion, in Thomas Jefferson’s words, for, “the Jew and Gentile, the Christian and the Mahometan.”  For more than two centuries, Muslim Americans of all backgrounds -- Arab and Asian, African and Latino, black and white -- have helped build America....  

And Muslim Americans have enriched our lives every single day.  You’re the doctors we trust with our health, entrepreneurs who create jobs, artists who inspire us, activists for social justice -- like the LGBT Muslims who are on the frontlines in the fight for equality....  You’re the athletes that we cheer for -- like American fencing champion Ibtihaj Muhammad... who is going to be proudly wearing her hijab when she represents America at the Rio Olympics.

DOJ Sues Township Over Denial of Zoning Variance For Mosque

The U.S. Department of Justice announced yesterday that it has filed suit against  Bensalem Township, Pennsylvania over the township's denial of a zoning variance to permit Bensalem Masjid to construct a mosque on property near a commercial area.  The complaint (full text) in United States v. Bensalem Township, Pennsylvania, (ED PA, filed July 21, 2016), alleges that the zoning denial violates the substantial burden, equal terms, discrimination and unreasonable limitations provisions of the Religious Land Use and Institutionalized Persons Act. Washington Times reports on the lawsuit.

Another Court Refuses To Enjoin California's Reproductive FACT Act

In Mountain Right to Life v. Harris, (CD CA, July 8, 2016), a California federal district court denied a preliminary injunction against enforcement of California's Reproductive FACT Act. The Act requires medical clinics that offer family planning or pregnancy related services to furnish clients a notice that California has public programs that provide free or low-cost access to family planning, pre-natal care and abortion services. Clinics offering pregnancy-related services that do not have licensed medical personnel on staff must provide notice of that fact. In the case, a faith-based crisis pregnancy center argued that the Act violates its free speech and free exercise rights. The court found that the center did not show a likelihood of success on the merits.  The court concluded that the state has a compelling interest in ensuring that people know whether or not they are receiving care from licensed professionals. The statute's other notice requirement is a constitutionally permissible regulation of professional speech to protect the government's substantial interest in its residents knowing the health care resources that are available. Two other federal district courts have reached similar conclusions. (See prior posting.)

Pence Accepting VP Nomination Defines Himself As A Christian First

At the Republican National Convention yesterday evening, Indiana Governor Mike Pence accepted the nomination for vice-president. (Full text of remarks.) In acknowledging his introduction to the audience by House Speaker Paul Ryan, Pence said:

Paul knows me well, and he knows the introduction I prefer is just a little bit shorter: I’m a Christian, a conservative and a Republican, in that order.

UPDATE: The New York Times yesterday traced the details of Pence's religious journey from the Catholic Church to Evangelical Christianity.

FLDS Leader and His Law Firm Sued Over Exploitation of Minors

Courthouse News Service reports on a lawsuit filed last week in Utah federal district court by 21 former members of the polygamous FLDS Church and their children.  In a 121-page complaint in Bistline v. Jeffs, (D UT, filed 7/13/2016)  (full text) the suit names as defendants FLDS leader Warren Jeffs, lawyer Rodney Parker and Parker's Utah law firm Snow, Christensen & Martineau, charging:

On or about August 6, 1998, Rulon Jeffs suffered a major stroke which left him largely impaired and paved the way for [Warren] Jeffs to eventually assume complete and absolute control of the FLDS. As Defendant Jeffs assumed greater control over the FLDS ..., the concept of celestial or spiritual “marriage” of children was not yet broadly practiced.... As he assumed the mantle of power that would later culminate in his self-avowed role as Prophet, ... Jeffs was committed to changing this state of affairs and was obsessed with the creation of a controlled society in which he was the absolute ruler and the wholesale rape of young girls by himself and others was treated as a ceremonially sacrosanct ritual. He sought to institutionalize this atrocious practice and to cloak it with the superficial trappings of legal acceptance, so he retained SC&M to develop an overarching scheme and plan, executed and developed by SC&M during period of years, to develop the legal framework within which Jeffs and his favored cohorts would possess means to enforce their lewd, sadistic, tortious and criminal wishes upon the FLDS people...

The complaint charges defendants with legal malpractice, breach of fiduciary duty, fraud, negligent misrepresentation, conspiracy, violation of the Trafficking Victims Protection Act, aiding and abetting, and violations of RICO.

In a statement denying wrongdoing, the Snow, Christensen & Martineau law firm said in part: "Our work in protecting religious liberties and other civil rights of the FLDS was not an endorsement of or complicity in illegal behavior."

Romania's Constitutional Court Upholds Proposed Traditional Marriage Amendment

Romania's Constitutional Court yesterday ruled unanimously that a proposal to amend Article 48 of the country's Constitution to preclude same-sex marriage is constitutional.  The Constitutional provision now reads: "The family is founded on the freely consented marriage of the spouses...."  According to Reuters, the proposed amendment would replace "the spouses" with "a man and a woman."  The petition proposing the amendment received 3 million signatures earlier this year.  The next steps will be for the amendment to be approved by Parliament and then submitted to a national referendum. The case has garnered international attention. The U.S. advocacy group Liberty Counsel submitted an amicus brief (full text) in support of the proposed amendment. Twenty-eight human rights groups, including Amnesty International, had urged the Court to reject the proposed amendment.

Settlement Leads To Dropping of Criminal Charges Against St. Paul Archdiocese

In St. Paul, Minnesota yesterday, a state trial court held a hearing on the progress so far in implementing a settlement agreement that was entered last December in civil charges brought against the Catholic Archdiocese of St. Paul & Minneapolis by the Ramsey County Attorney’s Office.  The suit filed last June alleged failure to protect children from abuse by former priest Curtis Wehmeyer. (See prior posting.) Also last June the County Attorney filed criminal charges against the Diocese.  As reported by AP, at yesterday's civil hearing the parties announced an agreement to also drop the criminal charges.  In exchange, the Archdiocese agreed to extend the civil settlement agreement to 2020. It also admitted wrongdoing and agreed that Archbishop Bernard Hebda will personally participate in at least three more restorative justice sessions with abuse victims.  In a Letter to the Faithful posted on the Archdiocese's website, Archbishop Hebda said in part:

Today, the Ramsey County Attorney dismissed the criminal charges. More importantly, through our Civil Settlement Agreement, [County Attorney] John Choi and I have committed to a course of action that will keep kids as safe as possible. I am grateful that his office will hold us accountable. Over the past year, we worked with Mr. Choi and his team to define how the Archdiocese can best create and maintain safe environments for children in our parishes, schools and communities. Over the past six months, we have demonstrated our commitment to that path. Today, we humbly acknowledge our past failures and look forward to continuing down that path to achieve those vital, common goals that together we all share.

Mormon Car Salesman Sues Claiming Religious Harassment By Employer

Arkansas Online reported yesterday on a religious discrimination lawsuit filed by a former auto salesman against a Fort Smith, Arkansas Ford dealership.  Richard Black says that about two weeks after he began working for Randall Ford, the used car manager began to question him intrusively about his religious beliefs. He particularly harassed him about his religious undergarments.  Black also complained that he was told to lie to customers about prices and deals in order to sell vehicles.  After 7 months he was fired, being told he did not fit in.  The suit was filed in state court in June and removed to federal court last week.

Turkey Dismisses 492 From Religious Affairs Directorate Over Coup Attempt

Reuters reported yesterday that in Turkey, 492 staff members have been removed from their positions at the Religious Affairs Directorate (Diyanet) on suspicion of involvement in the recent coup attempt against  President Tayyip Erdogan. The Diyanet employs over 100,000 people.  Turkey's government claims that cleric Fethullah Gulen was behind the coup.  Gulen, who now lives in the United States has denied the charges. (RNS).

1st Circuit: No Qualified Immunity In Establishment Clause Suit Against Puerto Rico Police Officials

In Marrero-Mendez v. Calixto-Rodriguez, (1st Cir., July 19, 2016), the U.S. 1st Circuit Court of Appeals agreed with a Puerto Rico federal district court that Puerto Rico police officials could not claim qualified immunity in a suit against them challenging opening of police formation meetings with Christian prayer. When plaintiff, an open atheist, complained to his commander about the prayers, the commander told him to stand aside, and shouted to the police formation that plaintiff was standing apart because "he doesn't believe in what we believe in." When plaintiff filed an administrative complaint, he was reassigned to duties that effectively demoted him.  The court concluded:

However complex the nuances of the Establishment Clause doctrine may be for cases without the direct coercion present in this case, a reasonable officer in March 2012 would have known that appellants' conduct amounted to direct and tangible coercion, a paradigmatic example of an impermissible establishment of religion.

2016 Republican Platform on International Religious Freedom

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the seventh and last in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Here is the Platform section titled Defending International Religious Freedom:

The U.S. Commission on International Religious Freedom, an initiative of Congressional Republicans, has been neglected by the current Administration at a time when its voice more than ever needs to be heard. Religious minorities across the Middle East have been driven from their ancient homelands, and thousands, there and in Africa, have been slaughtered for their faith in what the State Department has, belatedly, labeled genocide. The United States must stand with leaders, like President Sisi of Egypt who has bravely protected the rights of Coptic Christians in Egypt, and call on other leaders across the region to ensure that all religious minorities, whether Yazidi, Bahai, Orthodox, Catholic or Protestant Christians, are free to practice their religion without fear of persecution. At a time when China has renewed its destruction of churches, Christian home-schooling parents are jailed in parts of Europe, and even Canada threatens pastors for their preaching, a Republican administration will return the advocacy of religious liberty to a central place in its diplomacy, will quickly designate the systematic killing of religious and ethnic minorities a genocide, and will work with the leaders of other nations to condemn and combat genocidal acts.

2016 Republican Platform on Individual Conscience in Healthcare

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the sixth in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Here is the Platform section titled Protecting Individual Conscience in Healthcare:

America’s healthcare professionals should not be forced to choose between following their faith and practicing their profession. We respect the rights of conscience of healthcare professionals, doctors, nurses, pharmacists, and organizations, especially the faith-based groups which provide a major portion of care for the nation and the needy. We support the ability of all organizations to provide, purchase, or enroll in healthcare coverage consistent with their religious, moral, or ethical convictions without discrimination or penalty. We support the right of parents to determine the proper medical treatment and therapy for their minor children. We support the right of parents to consent to medical treatment for their minor children and urge enactment of legislation that would require parental consent for their daughter to be transported across state lines for abortion. Providers should not be permitted to unilaterally withhold services because a patient’s life is deemed not worth living. American taxpayers should not be forced to fund abortion. As Democrats abandon this four decade-old bipartisan consensus, we call for codification of the Hyde Amendment and its application across the government, including Obamacare. We call for a permanent ban on federal funding and subsidies for abortion and healthcare plans that include abortion coverage. 

2016 Republican Platform on School Choice and Title IX

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the fifth in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Note that the excerpts continue after the jump. Here are portions of the sections titled Choice in Education, and Title IX:

We support options for learning, including home-schooling, career and technical education, private or parochial schools, magnet schools, charter schools, online learning, and early-college high schools. We especially support the innovative financing mechanisms that make options available to all children: education savings accounts (ESAs), vouchers, and tuition tax credits. Empowering families to access the learning environments that will best help their children to realize their full potential is one of the greatest civil rights challenges of our time. A young person’s ability to succeed in school must be based on his or her God-given talent and motivation, not an address, ZIP code, or economic status. We propose that the bulk of federal money through Title I for low-income children and through IDEA for children with special needs should follow the child to whatever school the family thinks will work best for them.....

2016 Republican Platform on Marriage, Family and Society

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the fourth in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Note that the excerpt continues after the jump. Here is the Platform section titled Marriage, Family and Society:

Foremost among those institutions is the American family. It is the foundation of civil society, and the cornerstone of the family is natural marriage, the union of one man and one woman. Its daily lessons — cooperation, patience, mutual respect, responsibility, self-reliance — are fundamental to the order and progress of our Republic. Strong families, depending upon God and one another, advance the cause of liberty by lessening the need for government in their daily lives. Conversely, as we have learned over the last five decades, the loss of faith and family life leads to greater dependence upon government. That is why Republicans formulate public policy, from taxation to education, from healthcare to welfare, with attention to the needs and strengths of the family.

2016 Republican Platform on Abortion

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the third in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Note that the excerpt continues after the jump. Here is the lengthy Platform section titled The Fifth Amendment: Protecting Human Life:

The Constitution’s guarantee that no one can “be deprived of life, liberty or property” deliberately echoes the Declaration of Independence’s proclamation that “all” are “endowed by their Creator” with the inalienable right to life. Accordingly, we assert the sanctity of human life and affirm that the unborn child has a fundamental right to life which cannot be infringed. We support a human life amendment to the Constitution and legislation to make clear that the Fourteenth Amendment’s protections apply to children before birth.

2016 Republican Platform on Same-Sex Marriage

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the second in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Here is the Platform section titled Defending Marriage Against an Activist Judiciary:

Traditional marriage and family, based on marriage between one man and one woman, is the foundation for a free society and has for millennia been entrusted with rearing children and instilling cultural values. We condemn the Supreme Court’s ruling in United States v. Windsor, which wrongly removed the ability of Congress to define marriage policy in federal law. We also condemn the Supreme Court’s lawless ruling in Obergefell v. Hodges, which in the words of the late Justice Antonin Scalia, was a “judicial Putsch” — full of “silly extravagances” — that reduced “the disciplined legal reasoning of John Marshall and Joseph Storey to the mystical aphorisms of a fortune cookie.” In Obergefell, five unelected lawyers robbed 320 million Americans of their legitimate constitutional authority to define marriage as the union of one man and one woman. The Court twisted the meaning of the Fourteenth Amendment beyond recognition. To echo Scalia, we dissent. We, therefore, support the appointment of justices and judges who respect the constitutional limits on their power and respect the authority of the states to decide such fundamental social questions.

2016 Republican Platform on Religious Liberty

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the first in a series of posts that will focus on Platform provisions dealing with moral values and religious liberty. Note that the excerpt continues after the jump. Here is the Platform's lengthy section on Religious Liberty:

The Bill of Rights lists religious liberty, with its rights of conscience, as the first freedom to be protected. Religious freedom in the Bill of Rights protects the right of the people to practice their faith in their everyday lives. As George Washington taught, “religion and morality are indispensable supports” to a free society. Similarly, Thomas Jefferson declared that “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” Ongoing attempts to compel individuals, businesses, and institutions of faith to transgress their beliefs are part of a misguided effort to undermine religion and drive it from the public square. As a result, many charitable religious institutions that have demonstrated great success in helping the needy have been barred from receiving government grants and contracts.

Religious Speakers At Republican Convention

Politico sets out the full schedule of speakers and events at the Republican Convention that began yesterday.  Here is the list of religious figures delivering invocations, remarks and benedictions:

Monday Afternoon Session:

• Invocation: Rabbi Ari Wolf
• Benediction: Pastor Mark Burns. Harvest Praise and Worship Center

Monday Evening Session:

• Prayers from Maria Foundation
• Invocation: Monsignor Keiran Harrington, Catholic Diocese of Brooklyn, NY
• Benediction Pastor Paula White, New Destiny Christian Center

Tuesday Session:

• Invocation:  Harmeet Dhillon, San Francisco, CA
• Benediction: Sajid Tarar, Founder, American Muslims for Trump

Wednesday Session:

• Invocation: Nathan Johnson, The Church of Jesus Christ of Latter-day Saints
• Remarks: Darrell Scott, Senior Pastor, New Spirit Revival Center Ministries
• Benediction: His Eminence Archbishop Demetrios Greek Orthodox Archdiocese of America and Exarch of the Atlantic and Pacific Oceans

Thursday Session:

• Invocation Reverend Dr. Steve Bailey, Pastor, New Philadelphia First United Methodist Church
• Remarks: Jerry Falwell, Jr., President, Liberty University
• Benediction: Roger W. Gries, Auxiliary Bishop Emeritus

New Pew Survey On Religion and the 2016 Campaign

Last week, the Pew Research Center released a 35-page Report (summary) (full text) setting out the results of a new survey on Religion and the 2016 Campaign, and on attitudes toward Religion in Public Life.  The survey found that white evangelical voters strongly favor Donald Trump, while religiously unaffiliated voters favor Hillary Clinton. The survey also found that a declining number of U.S. adults (62% vs. 67% in 2012) think it is important for the President to have strong religious beliefs. The survey was conducted June 15-26, 2016, using a national sample of 2,245 adults.

Recent Articles of Interest

From SSRN:

• Holly Fernandez Lynch & Gregory Curfman, Bosses in the Bedroom: Religious Employers and the Future of Employer-Sponsored Health Care, (Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen, Elizabeth Sepper, eds.) Cambridge University Press, 2017 Forthcoming).
• Roland Pierik, On Religious and Secular Exemptions. A Case Study of Childhood Vaccination Waivers, (General Subserie Research Paper No. 2016-02 (2016)).
• Kellen R. Funk, 'Interference in Churches Must Be Referred to the Rights of Property': Church Corporations and Conflict of Laws in Antebellum America, (Journal of Law and Religion, Vol. 33, No. 1, 2018).
• Merel Jonker, Mariëtte van den Hoven & Wendy Schrama, Editorial: Religion and Culture in Family & Law, (Utrecht Law Review, Vol. 12, No. 2, p. 1-6, June 2016).
• Wibo M. van Rossum & Mariëtte van den Hoven, Paucity and the Need for Value Sensitivity in Dealing with Youth Care: Why Legal and Youth Professionals Should Take Cultural and Religious Considerations Seriously, (Utrecht Law Review, Vol. 12, No. 2, p. 7-23, June 2016).
• Tammy Harel Ben-Shahar, Race, Class and Religion: Creaming and Cropping in Religious Charter Schools, (Columbia Journal of Race and Law, Forthcoming).
• Adam MacLeod, Tempering Civil Rights Conflicts: Common Law for the Moral Marketplace, (Michigan State Law Review, Forthcoming).
• Ethan Blevins, A Fixed Meaning of 'Religion' in the First Amendment, (July 13, 2016).

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

• Aan Jaelani, Religion, Economy, and State: Economic Thought of Al-Mawardi in Adab Al-Dunya Wa-Al-Din, (MPRA Paper No. 72090 (June 2016)).
• Jet Tigchelaar & Merel Jonker, How is a Judicial Decision Made in Parental Religious Disputes? An Analysis of Determining Factors in Dutch and European Court of Human Rights Case Law, (Utrecht Law Review, Vol. 12, No. 2, p. 24-40, June 2016).
• Eva Brems, SAS V France: A Reality Check, (July 15, 2016).

European Court Favors Muslim Employee's Right To Wear Hijab At Work

The Court of Justice of the European Union last week released an Advocate General's opinion on whether under European Union Directive 2000/78 a private employer may bar a Muslim employee from wearing a hijab at work when a customer objects to the head covering. The Advocate General's opinion in Bougnaoui v. Micropole SA, (CJ EU, July 13, 2016), is the first step in the Court's rendering an advisory opinion to France's Court of Cassation on the meaning of the EU employment discrimination directive.  The Advocate General's opinion provides a recommendation to a panel of the Court's judges who will then render a decision. The Advocate General concluded that barring wearing of the hijab under these circumstances amounts to both illegal direct and indirect discrimination. The Advocate General said in part:

73. When the employer concludes a contract of employment with an employee, he does not buy that person’s soul. He does, however, buy his time. For that reason, I draw a sharp distinction between the freedom to manifest one’s religion – whose scope and possible limitation in the employment context are at the heart of the proceedings before the national court – and proselytising on behalf of one’s religion. Reconciling the former freedom with the employer’s right to conduct his business will, as I shall demonstrate, require a delicate balancing act between two competing rights. The latter practice has, in my view, simply no place in the work context. It is therefore legitimate for the employer to impose and enforce rules that prohibit proselytising, both to ensure that the work time he has paid for is used for the purposes of his business and to create harmonious working conditions for his workforce....

133. ... It seems to me that in the vast majority of cases it will be possible, on the basis of a sensible discussion between the employer and the employee, to reach an accommodation that reconciles adequately the competing rights of the employee to manifest his or her religion and the employer to conduct his business. Occasionally, however, that may not be possible. In the last resort, the business interest in generating maximum profit should then in my view give way to the right of the individual employee to manifest his religious convictions. Here, I draw attention to the insidiousness of the argument, ‘but we need to do X because otherwise our customers won’t like it’. Where the customer’s attitude may itself be indicative of prejudice based on one of the ‘prohibited factors’, such as religion, it seems to me particularly dangerous to excuse the employer from compliance with an equal treatment requirement in order to pander to that prejudice. Directive 2000/78 is intended to confer protection in employment against adverse treatment (that is, discrimination) on the basis of one of the prohibited factors. It is not about losing one’s job in order to help the employer’s profit line.

Law & Religion UK has more on the decision.

Recent Prisoner Free Exercise Cases

In Johnson v. Federal Bureau of Prisons, 2016 U.S. Dist. LEXIS 90255 (MD PA, July 11, 2016), Muslim inmates alleged various interferences with their ability to pray 5 times per day.  A Pennsylvania federal magistrate judge recommended dismissing a number of the claims for failure to exhaust administrative remedies and dismissing on the merits a claim that plaintiff is not allowed to pray while in the prison library and while at his adult education classes.

In Lane v. Tavares, 2016 U.S. Dist. LEXIS 91052 (MD PA, July 12, 2016), a Pennsylvania federal magistrate judge recommended that a Muslim inmate be allowed to proceed with his complaint that authorities have failed to accommodate his religious needs.  He often cannot attend Friday Prayers because his heart condition prevents him from climbing the five flights of stairs to reach the chapel.

In Giraldes v. Beard, 2016 U.S. Dist. LEXIS 91205 (ED CA, July 13, 2016), a California federal magistrate judge, denying a preliminary injunction, rejected a Catholic inmate's claim that denial of conjugal visits infringed his free exercise rights and his rights under RLUIPA.

In Roberts v. Perry, 2016 U.S. Dist. LEXIS 91639 (WD NC, July 14, 2016), a North Carolina federal district court allowed an inmate to proceed with his complaint that authorities refuse to recognize Nation of Israel as an approved faith group and that inmates are limited to ten religious publications.

In Allah v. Commonwealth of Virginia, 2016 U.S. Dist. LEXIS 91939 (WD VA, July 15, 2016), a Virginia federal district court dismissed an inmate's complaint that the file from his litigation that included much Nation of Gods and Earths material was seized by prison authorities.

House Hearing Examines Blasphemy Laws and Censorship Around the World

On Thursday, Congressional Hearings titled Blasphemy Laws and Censorship by States and Non-State Actors: Examining Global Threats to Freedom of Expression  were held by the Tom Lantos Human Rights Commission.  Transcripts of most of the testimony as well as a video of the full hearing are available on the House Committee's website.

Difficult Week For New York Orthodox Rabbi As Politics of U.S. and Israel Cause Him Problems

It has been a difficult week for respected Modern Orthodox Rabbi Haskel Lookstein.  Lookstein is the Rabbi Emeritus of Manhattan's Congregation Kehilath Jeshurun, the synagogue attended by Donald Trump's daughter and son-in-law. Lookstein is also the rabbi who sponsored Ivanka Trump's conversion to Judaism.  So this week he was tapped to offer an invocation at the Republican National Convention. However a petition (full text) signed by over 800 Orthodox Jews took Lookstein to task, saying in part:

We, the undersigned, are outraged that Rabbi Haskel Lookstein – rabbi emeritus of Congregation Kehilath Jeshurun and the Ramaz School – has decided to lend his blessing to Donald Trump and speak at the Republican National Convention.

Donald Trump openly spouts racist, misogynistic rhetoric; he advocates torture, the expulsion of millions of families, some long settled in America, and insinuates that some citizens of this great country are somehow less than others.

So Lookstein decided not to speak at the Convention after all, saying: " The whole matter turned from rabbinic to political, something which was never intended."  The Forward reports on these developments.

Meanwhile, as reported by the Times of Israel, Israel's Supreme Rabbinical Court, the court which hears appeals in personal status matters, ruled on Wednesday that it will not recognize religious conversions performed by Rabbi Lookstein in the United States. It required an American woman who had converted to Judaism under Lookstein's auspices to convert again in Israel in order to get married there.  The ruling, of course, calls into question the Israeli rabbinate's willingness to recognize Ivanka Trump's conversion as well.  Israel's Ashkenazi Chief Rabbi David Lau says he recognizes Lookstein's conversions, but the Chief Rabbinate is separate from the Supreme Rabbinical Court. Israeli officials such as Jewish Agency head Natan Sharanksy also back Lookstein.

7th Circuit Grants Preliminary Injunction To Wiccan Inmate

In Knowles v. Pfister, (7th Cir., July 13, 2016), the U.S. 7th Circuit Court of Appeals in an opinion by Judge Posner reversed the trial court and ordered entry of a preliminary injunction to allow a Wiccan inmate to wear a one-inch pentacle medallion around his neck.  Finding that the inmate's "freedom of religion has been gratuitously infringed by the prison," the appeals court rejected the Illinois federal district court's reasoning, saying in part:

We have trouble seeing the force of these points—(1) what an adequate remedy at law would be (monetary compensation for the loss of a religious entitlement?); (2) how forbidding a religious observance important to a devout practitioner could be thought harmless to him because other observances remained open to him... and (3) how the plaintiff could obtain any relief unless the warden was enjoined from violating RLUIPA.

11th Circuit: Florida Prisons Must Offer Kosher Food

In United States v. Secretary, Florida Department of Corrections, (11th Cir., July 14, 2016), the US 11th Circuit Court of Appeals held that under the Religious Land Use and Institutionalized Persons Act, Florida must provide kosher meals for inmates with a sincere religious basis for demanding such meals. The court wrote in part:

The Secretary argues that denying a kosher diet statewide is the least restrictive means of furthering Florida’s interest in cost containment, but she fails to rebut three arguments to the contrary. First, she fails to explain why the Department cannot offer kosher meals when the Federal Bureau of Prisons and other states do so.... Second, the Secretary fails to explain why the Department cannot offer kosher meals when it offers vegan, medical, and therapeutic diets at similar marginal costs.... Third, the Secretary fails to explain why the less restrictive alternative of enforcing rules that limit access to, and continued participation in, the program would not further her stated interest. The United States produced evidence that the Department is not screening out insincere applicants or enforcing the rules of participation in the program, and the Secretary does not contest that evidence. She instead responds that enforcing the rules would be too time intensive....

AP reports on the decision, pointing out that it was handed down only two days after oral argument in the case.

Israel Finally Appoints Rabbinical Appellate Judges

After months of controversy, nine new judges have finally been appointed to Israel's Supreme Rabbinical Court, the court which hears appeals in Jewish divorce and certain other personal status matters.  Jerusalem Post reports that nine judges were appointed on Tuesday, bringing the court up to its required complement of ten. Facing a large backlog of cases, the court was operating with temporary appointments which were about to expire. (Haaretz. June 16).  The new appointees for the first time include 5 judges who have served in the IDF.  However women's groups strongly criticized one of the new appointees.

New Blog Focuses On Religious Freedom and LGBT Rights

Michigan State Law Professor Frank Ravitch has launched a new blog, Freedom's Edge.  The blog will focus on the relationship between Religious Freedom, LGBT Rights, and Reproductive Freedom. Freedom's Edge is now listed in the Religion Clause sidebar.  Welcome to the blogosphere!

Anti-Islamic Group Sues Claiming Federal Law Shields Social Media Censorship

Yesterday the American Freedom Defense Initiative, its President Pamela Geller, its Vice President and the organization Jihad Watch sued the federal government contending that Section 230 of the Communications Decency Act shields Facebook, Twitter and YouTube when they censor anti-Islamic postings by plaintiffs.  The complaint (full text) in American Freedom Defense Initiative v. Lynch, (D DC, filed 7/13/2016), alleges that censorship and discrimination by social media outlets violate California anti-discrimination laws, but the CDA section on "Protection for 'Good Samaritan' blocking and screening of offensive material" allows Facebook, Twitter and YouTube to engage in discriminatory conduct. Among the allegations in the complaint against the social media sites are:

The discriminatory way in which Facebook applies its restrictions is evidenced by the fact that Facebook allows vicious posts and pages against Israel to stand, but when Plaintiff Geller and others expose the truth behind that Islamic hatred, the speech is prohibited.,,,

The Twitter policy, in effect, mirrors Islamic blasphemy standards as applied to censor speech critical of Islam, such as Plaintiffs’ speech.

The Center for Security Policy issued a press release announcing the filing of the lawsuit.

Mississippi AG Will Not Appeal Injunction Against Conscience Protection Act, Despite Governor's Appeal of Decision [UPDATED]

In a strong statement (full text) issued yesterday, Mississippi state Attorney General Jim Hood announced that he will not appeal a federal district court's injunction against enforcing HB 1523 , Mississippi's anti-LGBT Conscience Protection Act, (See prior posting.) Hood said in part:

First, both HB 1523’s critics and supporters acknowledge that the bill did not change state or federal law. For example, there is no state law requiring pastors to marry same-sex couples, and I doubt that the Legislature would ever pass one.  Moreover, the Mississippi Legislature has already passed the Religious Freedom Restoration Act which protects a person’s right to exercise his or her religious beliefs.  HB 1523’s critics and supporters also recognize that HB 1523 cannot overturn or preempt federal law.  As acknowledged by our Governor, HB 1523 is not a defense to a federal lawsuit.

Simply stated, all HB 1523 has done is tarnish Mississippi’s image while distracting us from the more pressing issues of decaying roads and bridges, underfunding of public education, the plight of the mentally ill and the need to solve our state’s financial mess....

Second, to appeal HB 1523 and fight for an empty bill that dupes one segment of our population into believing it has merit while discriminating against another is just plain wrong. I don’t believe that’s the way to carry out Jesus’ primary directives to protect the least among us and to love thy neighbor....

Misinformation that, without HB 1523, pastors, churches, bakers, wedding planners or other private service providers will be forced to violate their religious beliefs has been used repeatedly to frighten our citizens into supporting the dogmatic politicians who use religion for political gain.

Hood added however that depending on the wording of the final order he might appeal a separate federal court decision extending the injunction in an earlier same-sex marriage case to all court clerks who were not parties.(See prior posting.)

UPDATE: It should be noted that Mississippi Governor Phil Bryant has already filed a Notice of Appeal in the case, so presumably he will pursue the appeal using counsel other than the Attorney General.

Ark Encounter and Public High Schools

According to Tuesday's Lexington Herald-Leader, now that Ark Encounter has opened in Kentucky, the Freedom From Religion Foundation has sent letters to more than 1,000 school districts in Kentucky, Tennessee, Ohio, Indiana and West Virginia telling them that field trips to the Noah's Ark theme park would violate the Establishment Clause. FFRF says it would expose students to proselytizing.  In response, Kentucky Education Commissioner Stephen Pruitt told schools that field trips should be an extension of classroom learning, and that neither outside groups nor the state Department of Education should dictate selection. Meanwhile FFRF has also protested the participation of two Kentucky high school marching bands in Ark Encounter's July 5 opening ceremonies. (FFRF press release.)

EEOC Sues For Rastafarian Fired From Disney World Hotel

The EEOC announced yesterday that it has filed a religious discrimination lawsuit against HospitalityStaff, an Orlando, Florida based staffing company that fired Courtney Joseph, a Rastafarian employee who was assigned to work as a prep cook at a Walt Disney World resort hotel.  Joseph grew his hair into dreadlocks because of his religious beliefs.  For over a year, he worked with his dreadlocks tucked under his hat. However after a 2013 inspection of the kitchen by a Disney staff member for compliance with the company's appearance standards, the staffing company told Joseph he must cut his hair. When he refused, he was fired. The lawsuit alleges that HospitalityStaff made no effort to accommodate Joseph's religious beliefs. Orlando Sentinel reports on the lawsuit.

House Holds Hearing On HR 2802, First Amendment Defense Act

The House Committee on Oversight and Government Reform yesterday held a hearing on Religious Liberty and H.R. 2802, The First Amendment Defense Act (FADA). The Committee's website has extensive video and transcripts of the hearing.  As described by the Committee, FADA (full text of HR 2802) is a reaction to the Supreme Court's Obergefell  decision and would prohibit the federal government from taking discriminatory action against a person because the person believes, speaks, or acts in accordance with a sincerely held religious belief or moral conviction about marriage. Among the witnesses was the lead plaintiff in the Obergefell case. Washington Blade reports on the hearing. Think Progress focuses on Rep. Cummings statements. On Monday, a group of interfaith religious and advocacy organizations sent the committee a letter (full text) opposing the bill.

Title VII Is Sole Basis For Claims of Religious Discrimination Against Federal Employee

In Holly v. Jewell, (ND CA, July 11, 2016), a California federal magistrate judge held that Title VII is the sole remedy for discrimination in federal employment.  Neither the First Amendment nor RFRA may be used as the basis for a religious discrimination claim by a federal employee.  In the case, plaintiff who was employed as a maintenance worker at the  San Francisco Maritime National Historic Park was also a Baptist minister.  While on a break and out of uniform, he performed a baptism at the seashore adjoining the park.  He was terminated for this-- though plaintiff also complained that he was questioned about a Bible that he kept to read on breaks.  The court dismissed plaintiff's RFRA claim, holding that recent Supreme Court RFRA decisions have not changed the rule that Title VII is the exclusive remedy for discrimination in federal employment.  The court also dismissed plaintiff's free exercise claim to the extent that it challenges conduct protected by Title VII, but held that plaintiff can file an amended complaint to the extent that he has a First Amendment claim that is separate from his Title VII claim.

Court Rejects Churches' Challenge To California's Abortion Coverage Requirement

In Foothill Church v. Rouillard, (ED CA, July 11, 2016), a California federal district court rejected challenges brought by three churches to letters issued by the California Department of Managed Health Care to seven health insurance companies informing them that under California law they cannot exclude abortion services from coverage when they cover maternity services.  Initially finding that the churches have standing to challenge the directive, the court dismissed with leave to amend plaintiffs' free exercise and equal protection challenges.  The court concluded that the directive was a neutral law of general applicability that survives the rational basis test.  The court dismissed without leave to amend the churches' free speech and establishment clause claims. (See prior related posting.)

Brexit Apparently Does Not Threaten Britain's European Human Rights Obligations

Reuters reports that in Britain, Interior Minister Theresa May will become the country's new Prime Minister tomorrow. She will be responsible for steering Britain's exit from the European Union.  She said yesterday  that there could be no second referendum and would be no attempt to rejoin the EU by the back door. According to a review by Law & Religion UK,  before the referendum May favored staying in the EU but withdrawing from the European Convention on Human Rights.  However on June 30 she said:

I’ve set my position on the ECHR out very clearly but I also recognise that this is an issue that divides people, and the reality is there will be no Parliamentary majority for pulling out of the ECHR, so that is something I’m not going to pursue.

Florida County Elections Supervisor Removes Mosque As Polling Site After Complaints

The Palm Beach Sun-Sentinel last week reported that Palm Beach County, Florida Elections Supervisor Susan Bucher has reversed her decision to make the Islamic Center of Boca Raton a polling location in the August state primary elections. After receiving some 50 complaints, she moved the polling site to a public library.  A CAIR press release yesterday called the move discriminatory, and said it would request reinstatement of the original decision, in light of the fact that churches and synagogues regularly serve as polling stations. CAIR also says it will file a public records request for all communications relating to the move. A CAIR spokesperson said:

The supervisor of elections is evidently targeted by an organized lobbying campaign spreading fear and Islamophobia. Her discretion to designate or remove polling sites must never be based on religious, racial or ethnic bias...

Religion Clause Blog Gets Press Coverage

Religion Clause blog received press coverage today in the Detroit Legal News in an article titled Faith and light: Professor's blog helps keep 'church-state' debate alive.

NYT Investigates Religious Fundamentalism In Saudi Arabia Today

The New York Times carries a very long investigative piece on the state of fundamentalist Islam in Saudi Arabia today. Beginning on the front page of today's print edition, the article in the Times online edition is titled A Saudi Morals Enforcer Called for a More Liberal Islam. Then the Death Threats Began. It focuses in part on a former employee of the Commission for the Promotion of Virtue and the Prevention of Vice who earned the wrath of fundamentalists when he decided that much of what Saudis practice as religion is in fact merely Arabian cultural norms.

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).