Ordinance Barring Charity From Soliciting Funds Is Invalidated

In Homeless Helping Homeless, Inc. v. City of Tampa, Florida, (MD FL, Aug. 5, 2016), a Florida federal district court enjoined the city of Tampa from enforcing an ordinance that bans the solicitation of money in the downtown area and an adjacent historic district.  The order comes in a suit by a charitable organization that offers emergency food and shelter to the homeless.  Relying on the Supreme Court's 2015 decision in Reed v. Town of Gilbert, the court held that challenged law is a content-based regulation that is subject to strict scrutiny.  It said in part:

Section 14-46(b) imposes no penalty if a speaker in a public park in downtown Tampa or on a sidewalk in Ybor City asks a passer-by about a political issue or offers a passer-by a brochure about a church or about a show at a carnival. If a speaker asks a passer-by to sign a petition, Section 14-46(b) imposes no penalty. But, if a speaker asks a passer-by for “donations or payment,” Section 14-46(b) criminally penalizes the speaker.

Recent Prisoner Free Exercise Cases

In Smith v. Perlman, (2d Cir., Aug. 3, 2016), the 2nd Circuit vacated and remanded a suit by a Muslim inmate challenging the policy that allows only one family event day (except for Native Americans).

In Putnam v. Brown, 2016 U.S. Dist. LEXIS 100731 (D OR, Aug. 1, 2016), an Oregon federal district court dismissed an inmate's complaint that worship services were interrupted to turn on light and require a reduction in music volume, and his complaint that he was not permitted to attend worship services at times that conflicted with his work schedule.

In Shabazz v. Schofield, 2016 U.S. Dist. LEXIS 100928 (WD TN, Aug. 2, 2016), a Tennessee federal district court allowed a Muslim inmate to move ahead on his complaint that he was refused a protein supplement when pork was served and was not allowed to eat within the proper time during Ramadan.

In Fisher v. Schweitzer, 2016 U.S. Dist. LEXIS 101831 (SD OH, July 6, 2016), an Ohio federal magistrate judge allowed an inmate to move ahead with his claim that the warden prevented him from attending church services.

In Fox v. Lee, 2016 U.S. Dist. LEXIS 103098 (ND NY, Aug. 5, 2016), a New York federal district court ordered the parties to move ahead with discovery on the claim by an inmate that he is a member of the ancient African Anunake religion and is being required to cut his hair which his religion calls for him to wear in a Mohawk style with Dreadlocks.

In Walker v. Koon, 2016 U.S. Dist. LEXIS 103225 (D SC, Aug. 5, 2016), a South Carolina federal district court agreed with a magistrate's recommendation and dismissed without prejudice an inmate's complaint that he was denied a vegan or vegetarian diet on the basis of his inadequately completing a questionnaire on his religious need for it, and his complaint that a religion was needed to obtain such a diet.

In Sangraal v. Flagg, 2016 U.S. Dist. LEXIS 103417 (SD IL, Aug. 5, 2016), an Illinois federal district court allowed a former inmate who is a Pagan to move ahead with his complaint that he was not permitted to attend group worship while in segregation and was deliberately transferred to an institution that did not have Pagan religious services. In a second decision involving the same plaintiff, Sangraal v. Keim, 2016 U.S. Dist. LEXIS 103447 (SD IL, Aug. 5, 2016), the court allowed plaintiff to move ahead with a damage claim against the prison chaplain for denying him a kosher diet.

Satanic Temple Challenge To Missouri Abortion Restrictions Dismissed On Standing Grounds

Last month in Satanic Temple v. Nixon. (ED MO, July 15, 2016), a Missouri federal district court dismissed for lack of standing a suit by the Satanic Temple and one of its members challenging on free exercise and establishment clause grounds Missouri's disclosure and waiting period requirements for women seeking an abortion.  Missouri requires the abortion provider to deliver to a woman seeking an abortion a pamphlet that states in part: "The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being"  The Missouri law also requires a 72 hour waiting period and the opportunity to view an ultrasound, Plaintiffs alleged that these requirements are inconsistent with beliefs of the Satanic Temple and are medically unnecessary.  The court concluded: "Plaintiff Doe is not now pregnant, there is no guaranty that she will become pregnant in the future, and that if she does, she will seek an abortion,,,," Last week in Verdict, Prof. Marci Hamilton commented on the decision. In January a Missouri state court dismissed a similar challenge brought under RFRA. (See prior posting.)

Catholic Bishops React To Biden's Officiating At Same-Sex Marriage

As reported by the Washington Post, last Monday Vice President Joe Biden officiated at the same-sex wedding ceremony of two White House staffers.  In a blog post yesterday, three prominent members of the U.S. Conference of Catholic Bishops (including its president) reacted to Biden's action, without referring to him by name.  They said in part:

When a prominent Catholic politician publicly and voluntarily officiates at a ceremony to solemnize the relationship of two people of the same-sex, confusion arises regarding Catholic teaching on marriage and the corresponding moral obligations of Catholics. What we see is a counter witness, instead of a faithful one founded in the truth....

Faithful witness can be challenging—and it will only grow more challenging in the years to come—but it is also the joy and responsibility of all Catholics, especially those who have embraced positions of leadership and public service. 

Colorado Rules Cargill's Somali Muslim Employees Are Entitled To Unemployment Compensation

Denver Post reported Thursday that Colorado's labor department has ruled that more than 100 Muslim employees fired in December from a Cargill, Inc. meatpacking plant are entitled to unemployment compensation.  At issue was whether the employees could take prayer breaks during their shifts. Cargill withdrew its appeals in the cases after losing in 20 of them.  The dispute in part reflects tensions between Somali workers and Hispanic workers who lead the Teamsters union that represents them.  It is estimated that the unemployment payments will cost Colorado's unemployment insurance fund nearly $1 million.

Illinois Governor Signs Bill Amending Conscience Protections For Health Care Personnel

In Illinois last week, Republican Governor Bruce Rauner signed SB 1564 (full text), amending the state's Health Care Right of Conscience Act. The new Act requires health care facilities to adopt written protocols that assure conscience-based objections by medical personnel will not impair patients' health. Among the minimum standards for these protocols are the following:

(1) The health care facility, physician, or health care personnel shall inform a patient of the patient's condition, prognosis, legal treatment options, and risks and benefits of the treatment options in a timely manner, consistent with current standards of medical practice or care.

(2) When a health care facility, physician, or health care personnel is unable to permit, perform, or participate in a health care service that is a diagnostic or treatment option requested by a patient because the health care service is contrary to the conscience of the health care facility, physician, or health care personnel, then the patient shall either be provided the requested health care service by others in the facility or be notified that the health care will not be provided and be referred, transferred, or given information in accordance with paragraph (3).

(3) If requested by the patient or the legal representative of the patient, the health care facility, physician, or health care personnel shall: (i) refer the patient to, or (ii) transfer the patient to, or (iii) provide in writing information to the patient about other health care providers who they reasonably believe may offer the health care service the health care facility, physician, or health personnel refuses to permit, perform, or participate in because of a conscience-based objection.

Reporting on the governor's action, the State Journal-Register says that the Illinois Catholic Health Association and Catholic Conference of Illinois took a neutral stand on the bill. However in a press release this week, Liberty Counsel complains that the new law forces "Christian and pro-life doctors and pregnancy centers to participate in human genocide."

French Mayor Will Ban Women's Swim Because of Required Modest Dress

In France, the mayor of Pennes-Mirabeau-- a town near Marseille with a large Muslim population-- says he will ban a swim day for women planned at a local park for next month.  According to an AP report yesterday, the event is planned by the socio-cultural group Smile 13.  Women swimming at the event will be required to be covered from knee to chest (awra) in accordance with Muslim notions of modesty.  Mayor Michel Amiel says the decision to call for women to swim covered up is a "provocative act" and risks disturbing the public order after the recent terrorist attacks in Nice and at a Normandy church. [Thanks to Scott Mange for the lead.]

Journalist Appointed To USCIRF

In a press release yesterday, the U.S. Commission on International Religious Freedom announced that Clifford D. May has been appointed to the Commission by Senate Majority Leader Mitch McConnell. A journalist, May is the founder and President of the Foundation for Defense of Democracies.

Sikh Center Sues Under RLUIPA After Work On New Temple Is Ordered Stopped

NBC News reports on a federal lawsuit filed in the Eastern District of New York last week by the Guru Gobind Singh Sikh Center against the Town of Oyster Bay, New York.  In July-- almost 17 months after approving the Center's site plan for its new gurdwara-- the town issued a stop work order and ordered an environmental review, saying that the construction departed from the site plan. Claiming that the town's actions were taken to appease some residents who are hostile to the temple and its worship, the suit alleges violations of RLUIPA as well as the 1st and 14th Amendments. The new building, which replaces an older one that was on the same site, is already 82% complete. The Center has spent over $3 million on construction and on costs subsequent to the stop work order.

Court Applies Younger Abstention To Alabama Chief Justice's Suit Over Temporary Removal

In Moore v. Judicial Inquiry Commission of the State of Alabama, (MD AL, Aug. 4, 2016), an Alabama federal district court, applying the Younger abstention doctrine, dismissed a suit brought by Alabama Chief Justice Roy Moore challenging a provision of the Alabama Constitution that provides a judge formally charged with misconduct shall be disqualified from acting as a judge while the complaint is pending.  Moore is charged with judicial misconduct because of his issuance, after the U.S. Supreme Court's Obergefell decision, of an administrative order to all probate judges telling them that they had a duty under Alabama law to continue to refuse to issue marriage licenses to same-sex couples. (See prior posting.)   As reported by the Washington Times, Alabama is the only state with an automatic removal provision for judges charged with misconduct.   A hearing before the Judicial Inquiry Commission on the case is scheduled for Monday.

Settlement Reached In Two ERISA Church Plan Cases

Bloomberg Law reports that Trinity Health Corp. has agreed to settle two class action lawsuits that claim the health care company's pension plans have been wrongly treated as "Church Plans" exempt from ERISA.  The Class Action Settlement Agreement (full text) still must be approved by the court.  The Agreement which covers Lann v. Trinity Health and Chavies v. Catholic Health East and was filed in Maryland federal district court is summarized by Bloomberg Law:

The settlement requires Trinity Health to contribute $75 million among nine different pension plans within the Trinity Health umbrella, including the plan for Catholic Health East, which merged with Trinity in 2014.... Trinity also agreed to run the pension plans in compliance with certain federal funding requirements and worker protection laws for the next 15 years....

In addition to making three $25 million pension plan contributions, the settlement requires Trinity to pay 219 individual employees $550 each to compensate them for benefits they allegedly lost by taking lump sum pension distributions in 2014.

In a similar vein, Trinity will distribute $1.3 million among the 7,371 former employees who allegedly forfeited certain benefits as a result of the pension plans' vesting requirements, which employees argued violated ERISA.

The settlement allows class counsel to seek up to $8 million in attorneys' fees, expenses and incentive awards for certain plaintiffs.

Roy Moore's Internal Court Memos Disclosed

As previously reported, in May the Alabama Judicial Inquiry Commission filed a Complaint against Alabama Supreme Court Chief Justice Roy Moore contending that Moore abused his authority and acted in violation of the Code of Judicial Ethics when in January he issued an administrative order to all probate judges telling them that they had a duty under Alabama law to continue to refuse to issue marriage licenses to same-sex couples. Now, as reported by The Advocate, pleadings filed with the Judicial Inquiry Commission (full text) include redacted versions of two memos which Moore sent to the other Justices urging them to issue an opinion providing guidance to probate court judges.  He wrote in part:

Obergefell is particularly egregious because it mandates submission in violation of religious conscience (ask Kim Davis). Either go along or be disqualified from holding public office. In the near future Christians like Clerk Kim Davis will be driven out of public life, forced to forsake their faith or their livelihood....

 As Justice Alito stated, Obergefell "will be used to vilify Americans who are unwilling to assent to the new orthodoxy" and "to stamp out every vestige of dissent." ... The suppression of all dissent is now underway.

To paraphrase Martin Niemoller: They came for the florists, but I didn't deal in flowers; They came for the bakers, but I didn't bake cakes; They came for a county clerk in Kentucky, but that seemed far away; Then they came for me, and there was no one left to speak out.

Colorado Trial Court Says Injunction Covers Modified School Choice Program

Denver Post reports that yesterday a Colorado trial court held that an earlier injunction against Douglas County, Colorado's School Choice Grant Program covers a restructured version of the school choice arrangement.  After the Colorado Supreme Court held that the state constitution bars participation of sectarian schools in the original program, the county modified it to only allow participation by private schools that are not religiously affiliated.  However yesterday the trial court said that the modified program was promoted by the school district as a continuation of the old program, so the original injunction still applies.  The holding will not have a dramatic impact since only five eligible students had applied to the modified program.

Suit Seeks Control of Church Building Taken Over By Rival Pastor

In Ruskin, Florida, the pastor of the Church of Christ Christian Church and some of his handful of members have filed suit against 80-year old Shirley Dail who in June changed the locks on the church's doors to take possession of it in order to revitalize the congregation. The suit seeks to get back control of the church from Dail (who is also a pastor).  Yesterday's Tampa Bay Times reports:

While maintaining she's been a lifelong member of the church, Dail said she had only attended sporadically since starting a mission, the Church Along the Way, in her Ruskin barn 16 years ago.

She brought that group to the Church of Christ building this summer....

A church volunteer for 35 years, Dail said she was among its founding members in the 1960s and made a personal loan to help build the church.

In May ... Dail said the church was not running "as it was conceived" and that she had been "called home" to make the fixes she wanted.

Dail's goal was to increase the church's flock. Dail said she couldn't sit by and watch her church dwindle like so many others throughout the country.

District Court Holds Title VII Does Not Cover Sexual Orientation Discrimination

In Matavka v. Board of Education of J. Sterling Morton High School District 201, (N.D. Ill. 2016, Aug. 1, 2016), an Illinois federal district court dismissed a Title VII complaint by a former school employee alleging severe anti-gay harassment from his coworkers and supervisors.  The court indicated that it was required to follow the recent 7th Circuit decision in Hively v. Ivy Tech Comt. Coll that held Title VII does not cover discrimination on the basis of sexual orientation. (See prior posting.)  However the district judge expressed qualms about that conclusion similar to concerns expressed by two 7th Circuit judges in Hively.  Cook County Record reports on the decision.

Supreme Court Temporarily Stays 4th Circuit's Ruling On Title IX and Transgender Rights

The U.S. Supreme Court yesterday issued an order temporarily staying the 4th Circuit's mandate to a Virginia federal district court to reconsider its denial of a preliminary injunction in a transgender rights case.  In Gloucester County School Board v. G.G., (Sup. Ct., Aug. 3, 2016), the Court by a vote of 5-3 stayed the 4th Circuit's mandate pending the timely filing and disposition of a petition for certiorari.  In the case, the 4th Circuit held that a Virginia school board's policy barring a transgender boy (who had not undergone sex-reassignment surgery) from using the boy's rest rooms at his school violates Title IX's ban on discrimination on the basis of sex. (See prior posting.)  Justices Ginsburg, Sotomayor and Kagan dissented from the grant of a stay.  Justice Breyer said he concurred with the stay "as a courtesy" while the Supreme Court is in recess. Los Angeles Times reports on the Supreme Court's action.

Unitarian Church Sues Saying It Has Religious Duty To Use Solar Panels

RLUIPA Defense blog reported last week on a suit filed in late June in Massachusetts by a Unitarian church seeking to install solar panels on its building in an Historic District. The complaint (full text) in First Parish in Bedford, Unitarian Universalist v. Historic District Commission of the Town of Bedford, (MA Superior Ct., filed 6/27/2016), contends that the denial of a certificate of appropriateness to install solar panels on the roof of its Meetinghouse infringes church members' free exercise of religion in violation of the Massachusetts and U.S. Constitutions. The complaint alleges that:

Unitarian Universalists ... believe that their religion necessarily involves taking action on a personal, congregational and community level to confront and mitigate mankind's role in causing and exacerbating global warming.

USCIRF Releases Report On U.S. Treatment of Asylum Seekers

The U.S. Commission on International Religious Freedom yesterday released a report titled Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal.  The report is a follow-up to one issued in 2005, and says:

The research revealed that, although DHS had taken some measures in response to the 2005 study, there were continuing and new concerns about the processing and detention of asylum seekers in Expedited Removal, and most of USCIRF’s 2005 recommendations had not been implemented.

The Report focuses on refugee processing generally, and not specifically on those who claim refugee status based on religious persecution.  However the Report gives this example of problems faced by those claiming religious persecution:

A [Border Patrol] supervisor ... expressed skepticism about Chinese claims of religious persecution, telling USCIRF that Chinese individuals often say they are Christian but cannot even name the church they attend; when USCIRF informed him that many Chinese Christians worship in homes, not churches, he seemed surprised.

Nevada Supreme Court Hears Oral Arguments In School Choice Cases

On Friday, the Nevada Supreme Court heard oral arguments (audio of full oral arguments) in two cases challenging the constitutionality of Nevada's extensive school-choice law enacted in 2015.  The law provides for educational savings accounts funded by the state. The cases are captioned Schwartz v. Lopez in the Supreme Court, and were decided below sub. nom Duncan v. State of Nevada (see prior posting) and Lopez v. Schwartz (see prior posting).  Courthouse News Service reports on Friday's oral arguments.

Court Refuses Stay Pending Appeal In Challenge To Mississippi Anti-LGBT Conscience Law

In Barber v. Bryant, (SD MS, Aug. 1, 2016), a Mississippi federal district court refused to stay pending appeal its earlier order granting a preliminary injunction against Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act. (See prior posting.)  The Act protects a wide variety of conduct reflecting disapproval of, or refusals to provide goods and services to, members of the LGBT community.  The court rejected movants' claim that they are likely to succeed on the merits of their appeal that defends the law. Responding to movants' argument that "HB 1523 is akin to federal exemption laws protecting pacifists and abortion opponents," the court said:

issuing a marriage license to a gay couple is not like being forced into armed combat or to assist with an abortion. Matters of life and death are sui generis. If movants truly believe that providing services to LGBT citizens forces them to “tinker with the machinery of death,” their animus exceeds anything seen in Romer, Windsor, or the marriage equality cases.

Buzz Feed reports on the decision.

Satanic Temple To Offer Alternative To Good News Clubs

The Satanic Temple, whose agenda is secularist and not the promotion of devil worship, is again using its provocative name and doctrines of equal access to promote its agenda of separation of church and state.  As reported last week by the Washington Post,  the organization is introducing the After School Satan Club to public elementary schools, modeled after the widespread Christian-based Good News Clubs. In a letter (full text) to selected school districts, organizers say:

The After School Satan Club (ASSC) meets once a month immediately after school for one to one and a half hours.... ASSC meetings typically include a healthy snack, literature lesson, creative learning activities, science lesson, puzzle solving and art project.  Every child receives a membership card and must have a signed parental permission slip to attend.

Ministerial Exception Claim Requires Case-Specific Factual Analysis

In Collette v. Archdiocese of Chicago, (ND IL, July 29, 2016), an Illinois federal district court refused to dismiss an employment discrimination suit brought by plaintiff who for 17 years was employed as the Director of Worship and Director of Music at Holy Family Parish in Inverness, Illinois.  He was dismissed when it was learned he was planning to marry his same-sex partner.  When he sued claiming violations of federal, state and local law, defendants moved to dismiss on the basis of the ministerial exception doctrine.  They argued that he should be seen as a "ministerial" employee based solely on his titles. The court refused to dismiss solely on the pleadings, holding that whether plaintiff is a "ministerial" employee requires a fact-specific analysis.

Planned Parenthood and Mormon Church Spar Over Intellectual Property Rights

Life Site News reported yesterday on the interesting intellectual property dispute that played out on the sidelines of last week's Sunstone Symposium in Salt Lake City.  The Symposium draws over 1,500 attendees to talk about Mormon history, theology, politics, culture from a variety of Restorationist perspectives.  One of vendors at the event was Planned Parenthood, which often uses humor in its messaging.  The group created a special run of condoms to distribute to attendees with packaging carrying the letters "CTR" on a shield.  This mimics the design of a ring which since 1970 has been given to every Mormon child to remind them to "Choose the Right." After receiving complaints, the Symposium sponsors allowed Planned Parenthood to distribute the condoms, but not to display them.  A Mormon Church spokesperson said that Planned Parenthood had not sought permission to use the design which belongs to the Church.

Penitent May Testify To Her Statements To Priest In Confession

As previously reported, in February a Louisiana trial court held that a plaintiff suing the Catholic Church and a priest can testify that in 2008 she told the priest during confession that she was being abused by a 64-year old parishioner. The Church and the priest appealed, but in a 2-1 decision in Mayeux v. Charlet, (LA App., July 29, 2016) the appeals court affirmed the trial court decision.  However Judge Holdridge dissenting argued:

The statements sought to be excluded were made during the Sacrament of Confession, which is one of the central institutional practices of the Roman Catholic Church. Pursuant to the "seal of confession", a priest is prohibited from revealing anything learned during confession under any circumstance.... The violation of the seal of confession subjects the priest to automatic excommunication.... Accordingly, allowing Plaintiffs to mention, reference, or introduce evidence at trial of the confessions at issue will place an undue burden on Father Bayhi' s right to the free exercise of his religion and violates the constitutional command of separation of church and state. La. Const. art. I, § 8. 

ABA To Vote On Anti-Discrimination Professional Conduct Rule

At the American Bar Association Annual Meeting which begins this Thursday in San Francisco, the House of Delegates will vote on an amendment to the Model Rules of Professional Conduct 8.4 (full text of amended Rule and Comment) which will make it professional misconduct for a lawyer to:

(g) harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This Rule does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16.

The amendment replaces a current comment the merely bars bias prejudicial to the administration of justice in representing clients. The new proposal apparently has some opposition.  In a piece published today in the conservative American Thinker, a former Regent Law School Dean and a former Reagan Administration official argue among other things:

Statutes accommodating religious conscience abound at both the state and federal level.  Law schools with an overtly religious mission, including the hiring, faculty, and admission of students, enjoy ABA accreditation.  Nationwide, lawyers and law firms hold themselves out to the public as Christians, letting the community know that they are dedicated to practicing law in accordance with ethical rules of their personal faith.  Why should such law firms be barred from hiring lawyers which share the same religious convictions?  Indeed, the Holy Scriptures counsel believers not to become "unequally yoked" with nonbelievers.  2 Corinthians 6:14.  Are Christian lawyers to be barred by ethics rules from obeying Biblical statutes?  Why should lawyers not be free to hire and fire staff on the basis of fidelity to their shared moral code? ... Why should a lawyer be penalized if he candidly advises potential clients what that code is?... 

Recent Articles of Interest

From SSRN:

• Lucia Ann Silecchia, 'Social Love' as a Vision for Environmental Law: Laudato Si' and the Rule of Law, (10 Liberty University Law Review 371 (2016)).
• Geurt Henk Spruyt, Politicians and Epidemics in the Bible Belt, (Utrecht Law Review, Vol. 12, No. 2, p. 114-126, June 2016).
• Nelson Tebbe, Micah Schwartzman & Richard Schragger, When Do Religious Accommodations Burden Others?, (The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Susanna Mancini & Michel Rosenfeld eds., Cambridge Univ. Press, 2017 Forthcoming)).
• Nelson Tebbe, Micah Schwartzman & Richard Schragger, How Much May Religious Accommodations Burden Others?, (in Law, Religion, and Health in the United States (Elizabeth Sepper, Holly Fernandez Lynch, and I. Glenn Cohen, ed., Cambridge Univ. Press, 2017 Forthcoming)).
• Johnny Rex Buckles, The Sexual Integrity of Religious Schools and Tax Exemption, U of Houston Law Center No. 2016-W-2. (2016)).
• Robert C. Blitt, Equality and Nondiscrimination Through the Eyes of an International Religious Organization: The Organization of Islamic Cooperation (OIC) Response to Women's Rights and Sexual Orientation and Gender Identity Rights, (July 26, 2016).
• Shahbaz Ahmad Cheema, Fatawa in Pakistani Courts: An Appraisal, (July 26, 2016).

From elsewhere:

• U.S. Department of Justice, Combating Religious Discrimination Today: Final Report, (July 2016).

Recent Prisoner Free Exercise Cases

In Mayo v. County of York, (3d Cir., July 25, 2016), the 3rd Circuit (via a footnote) affirmed dismissal of an inmate's complaint that a package containing a Bible was initially rejected as overweight.

In Salas v. Gomez, 2016 U.S. Dist. LEXIS 96769 (ND CA, July 25, 2016), a California federal district court allowed a Jewish inmate to move ahead with claims against various defendants as to the adequacy of the kosher diet furnished him and the refusal to transfer him to a different prison that could meet his religious needs more generally.

In Long v. John Does 1-3, 2016 U.S. Dist. LEXIS 96859 (D HI, July 25, 2016), a Hawaii federal district court held that a Muslim inmate's complaint that he was not provided early meals during Ramadan states a claim, but that he must identify the John Doe defendants through interrogatories in order to move ahead.

In Parkell v. Senato, 2016 U.S. Dist. LEXIS 97903 (D DE, July 26,2016), a Delaware federal district court permitted an inmate who practices a faith that combines Wicca and Judaism to move ahead with his 1st Amendment and equal protection claims regarding past refusal to furnish him a kosher diet.

In Rivera v. Stirling, 2016 U.S. Dist. LEXIS 97947 (D SC, July 27, 2016), a South Carolina federal district court dismissed under the "three strikes" rule a suit by a Muslim inmate complaining that he did not receive a vegetarian diet. The magistrate's recommendation is at 2016 U.S. Dist. LEXIS 98082, June 24, 2016.

In Hastings v. Thomas, 2016 U.S. Dist. LEXIS 98161 (MD AL, July 26, 2016), an Alabama federal magistrate judge recommended dismissing for failure to exhaust administrative remedies a complaint by a Native American inmate that his religion was impeded.

7th Circuit Reluctantly Holds Title VII Does Not Cover Sexual Orientation Discrimination

In Hively v. Ivy Tech Community College, (7th Cir., July 28, 2016), the U.S. 7th Circuit Court of Appeals adhered to its past precedent and held that Title VII of the 1964 Civil Rights Act does not cover employment discrimination on the basis of sexual orientation. However two of the three judges (Judge Rovner who wrote the opinion and Judge Bauer) apparently did so hesitantly, joining in the lengthy portions of the opinion that review the anomalies produced by this conclusion.  They said in part:

As things stand now, ... our understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make up— but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage. It seems likely that neither the proponents nor the opponents of protecting employees from sexual orientation discrimination would be satisfied with a body of case law that protects “flamboyant” gay men and “butch” lesbians but not the lesbian or gay employee who act and appear straight....

In addition to the inconsistent application of Title VII to gender non‐conformity, these  sexual orientation cases highlight another inconsistency in courts’ applications of Title VII to sex as opposed to race....  [C]ourts and the Commission have consistently concluded that the statute prohibits discrimination based on an employee’s association with a person of another race, such as an interracial marriage or friendship..... But ... Title VII ... has not protected women employees who are discriminated against because of their intimate associations with other women, and men with men....

Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, ...; many of the federal courts to consider the matter have stated that they do not condone it...; and this court undoubtedly does not condone it.... But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent....

Judge Ripple concurred in the outcome, but did not join those part of the opinion expressing doubt about the continued viability of the past precedent.  The decision came in the case of a part-time adjunct professor at a community college who claimed that she was denied a full-time position. Indy Star reports on the decision.

Libertarian Candidate On Religious Liberty

The Washington Examiner yesterday posted an interview with Libertarian Party candidate for President (and former New Mexico governor), Gary Johnson, focusing largely on Johnson's views on religious liberty issues.  Here is an excerpt:

Do you think New Mexico was right to fine the photographer for not photographing the gay wedding?

"Look. Here's the issue. You've narrowly defined this. But if we allow for discrimination — if we pass a law that allows for discrimination on the basis of religion — literally, we're gonna open up a can of worms when it come stop discrimination of all forms, starting with Muslims … who knows. You're narrowly looking at a situation where if you broaden that, I just tell you — on the basis of religious freedom, being able to discriminate — something that is currently not allowed — discrimination will exist in places we never dreamed of."

Parish Assets Not Includable In Archdiocese Bankruptcy

As reported by the Minneapolis Star Tribune, a Minnesota federal bankruptcy court yesterday refused to include the assets of 200 parishes, schools and other entities as part of the assets of the Archdiocese of St. Paul and Minneapolis in its Chapter 11 bankruptcy proceedings.  In In re: The Archdiocese of Saint Paul and Minneapolis, (MN Bkruptcy., July 28, 2016), the court said in part:

The typical substantive consolidation is reserved for situations where the finances of two or more debtors are so confusingly intertwined that it is impossible to separate them. Nothing of the sort is alleged here. There were insufficient facts demonstrating a complete abuse of the non-debtors’ corporate form under Minnesota law governing religious corporations and organizations.

Reacting to the ruling,  Archbishop Bernard Hebda in a statement (full text) said that he is "particularly thankful that [the judge] was not swayed by the allegations that the Archdiocese had hidden assets and engaged in deceptive practices...." He added: "The Archdiocese nonetheless continues to stand ready to work with counsel for sexual abuse claimants to provide fair compensation as part of our Plan of Reorganization.." [Thanks to Tom Rutledge for the lead.]

Mormon Judge's Recusal Not Required In Case Involving Indian Tribe

In Ute Indian Tribe of the Uintah & Ouray Reservation, Utah v. State of Utah, (D UT, July 25, 2016), a Utah federal district court rejected the contention that a federal judge's membership in the Mormon Church should be a basis for requiring recusal in cases involving Indians or Indian tribes.  To support the claim, the Ute Tribe cited a passage in Mormon scripture regarding a curse on the Lamanites, which some identify as American Indians.  In the long-running case involving the extent of tribal court jurisdiction, the court said:

plaintiff's argument is conclusively foreclosed by the Tenth Circuit's unequivocal holding that membership in and support of "the Mormon Church would never be enough to disqualify" a judge.

The court also refused to disqualify the judge on various other grounds as well. Fox 13 reports on the decision.

Kansas City Sued Over Tourism Grant To Baptist Convention

A lawsuit was filed last week by the American Atheists challenging a grant that had been approved by the Kansas City, Missouri City Council to support the National Baptist Convention that will be hosted in Kansas City in September.  According to the complaint (full text) in American Atheists, Inc. v. City of Kansas City, Missouri, (WD MO, filed 7/22/2016), a grant of $65,000 from the city's Neighborhood Tourist Development Fund was to fund shuttle bus transportation for convention delegates from their hotels to convention site. The complaint alleges that the grant violates the Establishment Clause and equal protection clause of the federal Constitution as well as the "no aid" clause of the Missouri Constitution. Plaintiffs also filed a motion (full text) for a preliminary injunction. An American Atheist press release announced the lawsuit. Reuters reports on the suit.

Israel's Parliament Enacts Law To Circumvent Court Ruling On Use of Mikvehs By Non-Orthodox Jewish Groups

According to the Jerusalem Post, in Israel on Monday the Knesset (Parliament) passed a controversial law that essentially circumvents an Israeli Supreme Court ruling last February (see prior posting) that opened publicly funded mikvehs  (ritual bath facilities) operated by Orthodox-controlled religious councils for use by the Conservative and Reform Jewish movements for their conversion ceremonies as well as for Orthodox conversions. The new law allows local rabbinates to limit which groups can use public mikveh facilities, essentially assuring that they will only be open to Orthodox Jewish use. At the same time, the government has proposed that the Jewish Agency-- whose funds come largely from private contributions by Jewish communities outside of Israel-- build up to four mikvehs for use by the Reform and Conservative Jewish movements. The new law does not take effect for nine months to provide time for these new mikvehs to be built. The more liberal streams of Judaism doubt whether the construction can take place that quickly. This is part of a broader struggle by non-Orthodox streams of Judaism to gain more official recognition in Israel, and strong Orthodox resistance to those attempts.

Nova Scotia Appeals Court Overturns Refusal To Recognize Christian Law School's Graduates

In Nova Scotia Barristers’ Society v. Trinity Western University, (NS Ct., App., July 26, 2016), the Nova Scotia Court of Appeal, without reaching religious liberty claims, held that the Nova Scotia Barristers' Society exceeded its authority in adopting a regulation that effectively barred graduates of a Christian law school based in British Columbia from being admitted to the bar in Nova Scotia by refusing to allow them to article there.  At issue was Trinity Western University's "community covenant" that requires students and faculty to abide by various Biblical teachings, including a ban on sexual intimacy outside of heterosexual marriage.  The Barristers' Society passed a resolution refusing to recognize Trinity Western's degrees because the community covenant is discriminatory.  The Society subsequently amended its regulations to allow non-recognition of law schools that unlawfully discriminate on grounds prohibited by the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act. The court said:

It is inconceivable that the Legislature, without expressing a supportive word in either the Legal Profession Act or the Human Rights Act, intended that the Society’s Council could assert for itself an autonomous jurisdiction concurrent with that of a human rights board of inquiry.

The court went on to conclude that even if the Society's regulation had been properly adopted, Trinity Western did not violate Nova Scotia's Human Rights Act since all its activities occurred in British Columbia, and Trinity Western is not subject to the Charter of Rights because it is a private university. ADF issued a press release announcing the decision, and The Globe and Mail reports on it.

9th Circuit: Healthcare System's Pension Plan Is Not An Exempt "Church Plan"

The U.S. 9th Circuit Court of Appeals yesterday joined the 3rd and 7th Circuits in interpreting ERISA to cover plans of a number of religiously-affiliated health care systems that previously operated their pension plans on the assumption that they are exempt "church plans."  In Rollins v. Dignity Health, (9th Cir., July 26, 2016), the court concluded that under the language of ERISA, a pension plan is exempt as a church plan only if it was originally established by a church or convention of churches.  The class action complaint filed in 2013 alleges that as of that date Dignity Health's pension plan was underfunded by more than $1.2 billion.

Church Meeting Not Totally Immune From Judicial Examination

In Barrow v. Living Word Church, (SD OH, July 25, 2016), an Ohio federal magistrate judge refused to apply the ecclesiastical abstention doctrine to dismiss a suit by a former volunteer pastor who was removed from his position and from church membership, saying in part:

The Magistrate Judge agrees that the Free Exercise Clause requires this Court to abstain from judging the legitimacy of any Living Word decision about who is or can be a member or a clergyperson of their church or about whether it is proper to remove a person from either position on the basis of church moral judgment of that person’s behavior. If this were a case about those issues or indeed about interpreting church doctrine in any way, we would be required to abstain.  But the Free Exercise Clause does not shield church people from any secular court consideration of what happens in church meetings just because of where it happened. If a church meeting is used as a place to plan to commit torts involving third parties – which is what is alleged here regarding Living Word interference with Barrow’s book deals – ecclesiastical abstention will not shield the occurrences in the meeting from secular court consideration.

RLUIPA Applies To Law Aimed At Transitional Housing For Sex Offenders

In Martin v. Houston, (MD AL, July 25, 2016), an Alabama federal district court held that a pastor can invoke RLUIPA in challenging an Alabama law that would require him to close down his mobile home transitional housing arrangement for recently-released male sex offenders.  The law, which the state legislature made applicable to only one county, prohibits unrelated adult sex offenders from establishing residency in the same home or living less than 300 feet apart on the same property. The court concluded that the law constitutes a land use regulation under which the government makes individualized assessments of the proposed use of property.

2016 Democratic Platform On Protecting Religious Minorities Internationally

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the last in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Here is the Platform provision on international human rights dealing with Religious Minorities:

We are horrified by ISIS’ genocide and sexual enslavement of Christians and Yezidis and crimes against humanity against Muslims and others in the Middle East. We will do everything we can to protect religious minorities and the fundamental right of freedom of religion.

2016 Democratic Platform On International Human Rights of LGBT Communities

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the sixth in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Here is the Platform provision on international human rights of the LGBT community:

Democrats believe that LGBT rights are human rights and that American foreign policy should advance the ability of all persons to live with dignity, security, and respect, regardless of who they are or who they love. We applaud President Obama’s historic Presidential Memorandum on International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual, and Transgender Persons, which combats criminalization, protects refugees, and provides foreign assistance. We will continue to stand with LGBT people around the world, including fighting efforts by any nation to infringe on LGBT rights or ignore abuse.

2016 Democratic Platform on Reproductive Health, Rights and Justice

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the fifth in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Note that the excerpt continues after the jump. Here is the Platform section on Securing Reproductive Health, Rights, and Justice:

Democrats are committed to protecting and advancing reproductive health, rights, and justice. We believe unequivocally, like the majority of Americans, that every woman should have access to quality reproductive health care services, including safe and legal abortion—regardless of where she lives, how much money she makes, or how she is insured.

2016 Democratic Platform on Tribal Nation Religious Traditions

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the fourth in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Here is an excerpt from the Platform section on Honoring Indigenous Tribal Nations:

We will manage for tribal sacred places, and empower tribes to maintain and pass on traditional religious beliefs, languages, and social practices without fear of discrimination or suppression. We also believe that Native children are the future of tribal nations and that the Indian Child Welfare Act is critical to the survival of Indian culture, government, and communities and must be enforced with the statutory intent of the law.

2016 Democratic Platform on Respecting Faith and Service

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the third in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Here is an excerpt from the Platform provision titled Respecting Faith and Service:

Democrats know that our nation, our communities, and our lives are made vastly stronger and richer by faith in many forms and the countless acts of justice, mercy, and tolerance it inspires. We believe in lifting up and valuing the good work of people of faith and religious organizations and finding ways to support that work where possible.

2016 Democratic Platform on LGBT Rights

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the second in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Note that the excerpt continues after the jump. Here is the Platform section on Guaranteeing Lesbian, Gay, Bisexual, and Transgender Rights:

Democrats applaud last year’s decision by the Supreme Court that recognized that LGBT people—like other Americans—have the right to marry the person they love. But there is still much work to be done. LGBT kids continue to be bullied at school, restaurants can refuse to serve transgender people, and same-sex couples are at risk of being evicted from their homes. That is unacceptable and must change.

2016 Democratic Platform on Religious Discrimination

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the first in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Here are two Platform excerpts that deal with religious discrimination:

Fixing our Broken Immigration System

...We reject attempts to impose a religious test to bar immigrants or refugees from entering the United States. It is un-American and runs counter to the founding principles of this country....

Guaranteeing Civil Rights

Democrats will always fight to end discrimination on the basis of race, ethnicity, national origin, language, religion, gender, age, sexual orientation, gender identity, or disability. We need to promote civility and speak out against bigotry and other forms of intolerance that have entered our political discourse. It is unacceptable to target, defame, or exclude anyone because of their race, ethnicity, national origin, language, religion, gender, age, sexual orientation, gender identity, or disability. While freedom of expression is a fundamental constitutional principle, we must condemn hate speech that creates a fertile climate for violence. We condemn Donald Trump’s demonization of prisoners of war, women, Muslims, Mexicans, and people with disabilities; his playing coy with white supremacists; and the climate of bigotry he is creating. We also condemn the recent uptick in other forms of hate speech, like anti-Semitism and Islamophobia....

Challenge To Church Pension Plan Not Barred By First Amendment

In Bacon v. Board of Pensions of the Evangelical Lutheran Church in America, (MN App., July 25, 2016), a Minnesota state court of appeals held that neither the First Amendment nor the Freedom of Conscience Clause of the Minnesota Constitution prevents a civil court from adjudicating a challenge to the manner in which the Lutheran Church retirement plans were managed. Participants in the pension plan sued claiming breach of fiduciary duty, breach of trust, and fraud and concealment in the administration and management of the Plans. The court said in part:

Because the plan documents themselves contain the fiduciary duties, a Minnesota court can adjudicate many of the claims without reaching the religious documents.... There does not appear to be a specific ruling of a governing ecclesiastical body at issue in this case....

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.....