RFRA Protects Funeral Home's Gender Stereotyping of Transgender Employee

In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., (ED MI, Aug. 18, 2016), a Michigan federal district court upheld a funeral home's defense under the Religious Freedom Restoration Act to a charge by the EEOC that the funeral home engaged in gender stereotyping when it dismissed a transgender employee (funeral director/embalmer) who was in the process of transitioning from male to female. In a previous opinion in the case, the court held that Title VII does not bar discrimination on the basis of gender identity.  However the court permitted the EEOC to proceed on the theory that the employee was dismissed for refusing to comply with the funeral home's dress code for male employees.  Citing Hobby Lobby, the court held that the funeral home can assert religious rights under RFRA. The court then said:

Rost [the funeral home's owner] believes “that the Bible teaches that God creates people male or female.”... He believes that “the Bible teaches that a person’s sex is an immutable God-given gift and that people should not deny or attempt to change their sex.”... Rost believes that he “would be violating God’s commands” if he were to permit one of the Funeral Home’s funeral directors “to deny their sex while acting as a representative of [the Funeral Home]. This would violate God’s commands because, among other reasons, [Rost] would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” ...

The court went on to say that even if the government has a compelling interest in preventing discrimination, it has not chosen the least restrictive means of doing so.  It explained:

If the EEOC truly has a compelling governmental interest in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral Home, couldn’t the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here?

Detroit News reports on the decision. [Thanks to Jeff Pasek for the lead.]

Pregnancy Resource Center Sues Over Rezoning Denial

In Raleigh, North Carolina on Wednesday a Christian ministry filed suit in federal district court challenging the city's refusal to rezone property adjacent to an abortion clinic for use by the ministry as a pregnancy resource center.  The complaint (full text) in A Hand of Hope Pregnancy Resource Center v. City of Raleigh, (ED NC, filed 8/17/2016), contends that the city's rezoning refusal that prevents the ministry from expanding its services violates plaintiff's rights under RLUIPA as well as under the 1st and 14th Amendments.  WRAL reports on the lawsuit.

Israel's Rabbinical Courts Grapple With Unrealistic Marriage Contract Terms

In Israel, an interesting contract question is being increasingly faced by state rabbinical courts that have jurisdiction over divorce actions. Traditional Jewish marriage ceremonies involve the husband signing a ketubah, or Jewish wedding contract.  The traditional form of the ketubah  includes the pledge of a sum of money which must be paid to the wife upon the husband's death or upon divorce. (Background.) Again traditionally the amount was set at "200 zuz" which has been seen as equating to around $750 (US).  However it has become a custom in Israel for grooms to demonstrate their love for their bride by inflating the amount in the ketubah by large multiples.  That is background to this report yesterday from JTA on a request from Jerusalem's regional rabbinical court to the Chief Rabbinate to limit the practice by capping the amount that can be set out in the ketubah to 1 million Israeli shekels ($264,000 US):

The unusual request earlier this month follows a divorce in which a man’s ex-wife demanded he pay her 555,555 shekels — approximately $145,000 — because that was the sum he pledged to pay on his ketubah.... Her ex-husband argued that he made the pledge as a testament of his love and appreciation for her, not thinking it would be legally binding.....  

Many grooms pledge sums they cannot afford, attaching many zeros to the number 18 – which is associated with life because of Jewish numerology – or the 555,555 figure, which is especially popular among Sephardic Jews who believe it is lucky. The custom of reading out the ketubah to the wedding guests adds incentive to name high figures, which the court defined as unrealistic.

The panel of three rabbinical judges ... reviewing the divorce case in question was divided, with one judge ruling in favor of the ex-wife’s demand. But his colleagues were of the opinion that the ex-husband should not be made to pay the full sum[, and] finally awarded the woman the equivalent of $31,600 from her ex-husband, or 120,000 shekels.

Defense Counsel's Prayers on Facebook Pose Concerns

Prayers posted on Facebook by an Ellis County, Texas defense attorney have come under scrutiny of trial judges after complaints by the county district attorney's office that running commentary on ongoing trials is included in his prayers.  As reported Tuesday by CBS DFW, prosecutors are concerned that jurors might come upon the posts during the trial  So far judges have not totally barred attorney Mark Griffith from posting prayers online, but they have ordered that the prayers not contain a running account of the trial. Griffith says he will appeal.

Ministerial Exception Doctrine Bars ADA Claim By Adventist Music Teacher

In Curl v. Beltsville Adventist School, (D MD, Aug. 15, 2016), a Maryland federal district court held that the ministerial exception doctrine applies to prevent a music teacher at a Seventh Day Adventist school from pursuing federal claims under the Americans With Disabilities Act, the Age Discrimination in Employment Act and the Family and Medical Leave Act.  The teacher sued when her contract was terminated because she was unable to return fully to work a number of months after being seriously injured in a fall at work. In finding that plaintiff 's position was ministerial in nature, the court said in part:

Although a portion of Plaintiff's responsibilities were secular in nature, Plaintiff acknowledges that she is personally a Seventh-day Adventist whose role at the School included teaching religious music and leading prayer services.... [S]he agreed to abide by the Education Code, which "requires that schools employ only those who live in complete harmony with the beliefs and practices of the Church" and therefore required that all School teachers be "baptized Adventists committed to the Church's program of ministry."... [A] portion of her salary was paid by tithe funds, which are intended to be used for ministry.... Moreover, Plaintiffs performance was evaluated in part based on her spiritual leadership.

Suit Challenges Latin Cross In County Seal and Flag

A suit was filed in federal district court this week seeking to enjoin Lehigh County, Pennsylvania from continuing to display the current county seal and county flag that includes a Latin cross (partly hidden by a depiction of the county courthouse) as a prominent part of the design.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. County of Lehigh, (ED PA, filed 8/16/2016) contends that the cross amounts to an endorsement of Christianity, while the county Board of Commissioners says the cross was made part of the design to honor the original settlers of Lehigh County who were Christian. FFRF issued a press release announcing the filing of the lawsuit.

Settlement Reached Permitting "8THEIST" License Plate In New Jersey

Last week, a New Jersey federal district court approved the parties' settlement agreement (full text) in Morgan v. Martinez.  In the case,  an atheist sued New Jersey's Motor Vehicle Commission challenging provisions in state regulations barring issuance of personalized license plates with letters or numbers "that may carry connotations offensive to good taste and decency." Authorities had refused to issue Shannon Morgan a plate with the characters "8THEIST". Under the settlement, the Commission will issue Morgan the requested plate. The settlement also stipulates that a number of other specific alphanumeric combinations reflecting humanism, feminism and LGBT concerns are consistent with the Commission's regulations. The Commission also agreed to pay $75,000 in damages.  Americans United issued a press release discussing the settlement.

Canadian Court Finds Human Rights Act Violation In School's Denying Prayer Space To Muslim Students

In Webber Academy Foundation v Alberta (Human Rights Commission), (AB QB, Aug. 10, 2016), a Canadian trial court in the province of Alberta upheld a decision of the Alberta Human Rights Commission finding that a private school violated the Alberta Human Rights Act by refusing to allow Muslim students a place for their daily prayers. The school argued that it is non-denominational and no kinds of religious activities are to be carried out on campus. Affirming the Human Rights Commission's $26,000 damage award, the court said in part:

Webber Academy, to its credit, adopted a public policy of welcoming young people of many faiths and cultures, and to exemplify its policy, published photographs of students with turbans and facial hair even though these practices contravened usual school policies.

For some reason, it drew the line at Sunni prayer rituals, conducted in private, in a place that was convenient to the school and the students from time to time. Its policy thus discriminated against the belief of the complainant Sunni Muslim students as compared, for example, to students who overtly averred their religious affiliation by forms of dress and grooming. There was no demonstrated hardship, let alone undue hardship, motivating this policy.

Canadian Press reports on the decision.

Reinstatement Precludes Pregnancy Discrimination Suit Against Synagogue

In Shultz v. Congregation Shearith Israel of the City of New York, (SD NY, Aug. 15, 2016), a New York federal district court dismissed (with leave to amend) a pregnancy discrimination lawsuit brought by Alana Shultz, the long-time program director of a New York City Upper-West Side Orthodox Jewish congregation. Plaintiff claimed that the purported elimination of her job position when she returned from her honeymoon was a pretext for firing her because she had been pregnant at the time of her marriage.  When Shultz threatened to sue, the congregation reinstated her to her position. (See prior related posting.) The court held that Shultz's reinstatement eliminated any adverse job action-- a prerequisite to an employment discrimination claim-- saying:

 An employer may validly rescind a termination merely to avoid liability, even begrudgingly, so long as the employer restores the employee to her position with no material change or consequence. 

Courthouse News Service reports on the decision.

Suit Seeks $25M Damages For Islamophobic Bullying of Special-Needs 12-Year-Old

Islip Patch reports on a federal court lawsuit filed Monday by the parents of a 12-year old Muslim special needs student alleging that he was the victim of Islamophobic harassment by fellow-students and school personnel of the East Islip, New York School District. According to the complaint, Nashwan Uppal (whose family is from Pakistan) was bullied by a group of students who called him a terrorist and asked him what he was going to blow up next. Thinking "terrorist" meant "tourist," Uppal eventually said he was going to blow up the fence.  The next day Uppal was interrogated by the principal and assistant principal who searched his backpack and locker and demanded that he write a confession that he was part of ISIS. Subsequently he was questioned by police while his mother waited outside the school.  New York Post adds:

Officials eventually let [Uppal] call his mother, Nubaisha Amar, who was told her son had pledged allegiance to ISIS and was going to blow up the school. Cops escorted mother and son back to their home before searching the entire house and concluding he was no threat. But Uppal was suspended for a week for “criminal activity.”

The suit seeks $25 million in damages for severe and extreme emotional distress.

Suit Over MLK's Nobel Peace Prize Medal Settled

Reuters reports that Martin Luther King, Jr.'s heirs have settled their dispute over who owns MLK's 1964 Nobel Peace Prize medal.  As previously reported, Bernice King has been seeking to prevent her two brothers (who control the King estate) from selling the medal and MLK's famous "traveling Bible."  Last month the court ruled that the Bible belongs to the estate.  In an order signed on Monday-- the day trial was scheduled to begin-- the court approved a motion filed by all the parties to dismiss the remaining litigation and turn over the keys to the safe deposit box where the medal is held to Martin Luther King III who controls the estate. In a joint statement, the siblings said that former President Jimmy Carter had assisted them in coming to an agreement.

Plaintiff Dismisses Suit Against Maryland Ten Commandments Monument

Plaintiff in Davis v. Allegany County Commissioners, has filed a motion (full text) voluntarily dismissing his lawsuit challenging a Ten Commandments monument located on the courthouse lawn in Cumberland, Maryland. (See prior posting.) The court approved the motion to dismiss on Monday.  Plaintiff offered no reason for his decision to dismiss the suit.  ADF issued a press release reporting on the motion.

Florida Appeals Court Says Challengers Of Tax Credit Scholarships Lack Standing

In McCall v. Scott, (FL App., Aug. 16, 2016), a Florida appeals court held that a group of plaintiffs-- advocacy organizations, teachers, parents and religious and community leaders-- lack standing to challenge the constitutionality of Florida's Tax Credit Scholarship Program.  The court concluded that plaintiffs had not shown either special injury standing or taxpayer standing. It concluded, among other things, that the state constitution's "no-aid" provision (Florida's Blaine Amendment) only limits the legislature's spending authority, and not its authority to grant tax deductions or credits. Pensacola News Journal reports on the decision.

State Department Issues 2015 International Religious Freedom Report

Last week, the U.S. State Department issued its 2015 Annual Report on International Freedom.  In an August 10 press conference presenting the report, Deputy Secretary of State Antony J. Blinken (full text of remarks) said in part:

[T]he purpose of this annual report is not to lecture; it is to inform, to encourage, and ultimately, to persuade. Bigotry and intolerance can be found in every part of the world, including the United States. But every country has an obligation to respect religious liberty and freedom of conscience; we encourage every country to do so. This report, which is based on a wealth of objective research, is one of many ways we give life to that advocacy....

This past March, Secretary Kerry made clear his judgment that Daesh is responsible for genocide against religious communities in areas under its control.... They’ve not only killed, they’ve sought to erase the memory of those they’ve killed, destroying centuries-old religious cultural sites.

Naming these crimes is important, but our goal is to stop them. That’s why President Obama has mobilized a coalition of more than 65 partners from every corner of the world to combat and ultimately defeat Daesh.

Ambassador-at-Large for International Religious Freedom David Saperstein also spoke at the press conference and answered reporters' questions. (Full text of remarks.) He said in part:

While the report touches on all manner of restrictions to religious freedom, I want to highlight this year the chilling, sometimes deadly effect of blasphemy and apostasy laws in many places of the world, as well as laws that purport to protect religious sentiments from defamation. Roughly a quarter of the world’s countries have blasphemy laws, and more than one in 10 have laws or policies penalizing apostasy, and the existence of these laws has been used by governments in too many cases to intimidate, repress religious minorities, and governments have too often failed to take appropriate steps to prevent societal violence sparked by accusations of blasphemy and apostasy. And when these claims turn out to be blatantly false accusations made to pursue other agendas, governments will often fail to act to hold perpetrators accountable. These government failures weaken trust in the rule of law, creating an atmosphere of impunity for those who would resort to violence or make false claims of blasphemy.

UPDATE: In connection with the State Department report, the White House issued a Fact Sheet: Promoting and Protecting Religious Freedom Around the Globe. Also the U.S. Commission on International Religious Freedom issued a press release welcoming the State Department's report and urging additional actions under the International Religious Freedom Act.

Texas AG Opinion OK's Courtroom Chaplains

Texas Attorney General Ken Paxton yesterday issued Attorney General Opinion No. KP-0109 (Aug. 15, 2016), responding to three Establishment Clause concerns.  The Opinion first concludes:

Courts do not violate the Establishment Clause by opening court proceedings with a statement such as, "God save the State of Texas and this Honorable Court."

It then moves to questions about the more controversial practice of a Texas justice of the peace who is also the county coroner.  As previously reported the judge created a volunteer chaplaincy program to help grieving family, friends and witnesses at death scenes to which the coroner is called.  To recognize these volunteer chaplains, they are also invited to give a brief prayer to open justice of the peace court proceedings. The state's Commission on Judicial Conduct had urged an end to these practices.  However, yesterday's AG opinion concluded that each of these practices is constitutional. A press release from First Liberty Institute discusses the AG opinion.

FLDS Fraud Defendant Says 1st Amendment Protects His Letters To Jailed Leader

As previously reported, in February eleven members of the polygamous FLDS Church were indicted on charges of conspiracy to commit food stamp fraud and conspiracy to commit money laundering.  Now, as reported by Fox13 News, one of those defendants, Preston Barlow, is objecting to a change in the conditions of his pretrial release.  Earlier this month after he was incorrectly charged with violating conditions of his release, the limits on his contacting co-defendants were expanded to include a ban on any contact with FLDS leader Warren Jeffs who is in prison on other charges. In a motion (full text) filed with the Utah federal district court yesterday, Barlow argued that there is no basis for the expansion, and that it violates his religious freedom rights, saying:

The tenets of Mr. Barlow's sincerely held religious beliefs require him to maintain a conduit of connection and communication with his prophet. He does so by writing to Warren Jeffs approximately one time per month. The writings do not generate a direct response from Warren Jeffs.... [R]estricting the communication would have a devastating impact on Mr. Barlow's religious practice, and on his ability to maintain such religious practice consistent with what  he believes are the necessary requirements for eternal salvation.

Olympic Village Now Includes Brazilian-African Religions With Others

Crux reported yesterday that in Olympic Village in Rio de Janeiro, the interfaith center this year includes priests from the Brazilian-African Candomble and Umbanda faiths.  When the International Olympics Committee initially chose only five official religions-- Christianity, Islam, Judaism, Buddhism and Hinduism-- to be represented, Brazil's Federal Public Ministry (at the urging of activists) complained arguing that the religious diversity of the host country needed to be represented.  Brazilian law gives Africa-based religions proportional representation in official activities in the country.

Deed Restrictions Upheld To Prevent Construction of Synagogue

In Welch v. Chai Center For Living Judaism, Inc., (NJ App., Aug. 15, 2016), a New Jersey appeals court upheld the enforcement of a deed restriction that prevents an Orthodox Jewish group from constructing a synagogue with classrooms, social hall and playrooms on property it owns.  The restrictions limit property use to a single-family residence. The court said in part:

We are unpersuaded by defendants' suggestion the Center must be permitted to conduct prayer groups and social gatherings as a free exercise of religion. We reject the suggestion the deed restriction unconstitutionally prohibits private religious observances within the confines of one's own home.

New Jersey Appeals Court OKs Religiously Discriminatory Disinheritance

In In re the Estate of  Kenneth E. Jameson, (NJ App., Aug. 12, 2016), a New Jersey appeals court
held that New Jersey law does not bar an individual from disinheriting his or her child for religiously discriminatory reasons. At issue was a will challenge by Stacy Wolin whose parents' wills were drafted when she was in college and in a romantic relationship with Marc Wolin, a Jewish man who she later married.  Her Catholic parents objected strenuously to her dating Marc because of his Jewish faith.  The court rejected a series of challenges to the father's will, including ones charging religious discrimination, saying that neither the New Jersey Law Against Discrimination nor New Jersey public policy bars disinheriting a child based on religion or religious affiliation.  AP reports on the decision.  [Thanks to Tom Rutledge for the lead.]

Two Recent Cases Charging Religious Discrimination In Employment

Two recent lawsuits charging religious discrimination in employment are in the news.  In Bowling Green, Kentucky, a former firefighter sued claiming questioning and harassment over his atheist beliefs as well as over his non-conformity to gender norms.  The complaint (full text) in Queen v. City of Bowling Green, (KY Cir. Ct., filed 8/10/2016) contends that plaintiff was subjected to a hostile work environment on the basis of his religious beliefs in violation of Kentucky law. WKU Herald reports on the lawsuit.

Separately, in Dallas, Texas, last Wednesday an Orthodox Jewish woman filed suit against the county after her job offer as data manager with the Dallas County sheriff's office was rescinded.  The sheriff's office acted after plaintiff, Isabel Balderas, told them that she would need an accommodation allowing her to leave 30 minutes early on Fridays during the winter months in order to be home for the beginning of the Sabbath. The sheriff's office said that the data manager position requires that the person be on call 24/7. Dallas News reports on the lawsuit.

Pastors Sue Over Illinois Ban on Conversion Therapy

A group  of pastors filed suit last week in Illinois federal district court challenging the application to them of a provision in the Illinois ban on sexual orientation change therapy.  At issue is Sec. 25 of the Act that provides no person in the conduct of any trade or commerce may offer conversion therapy services by representing that homosexuality is a mental disease, disorder, or illness. (See prior posting.) The complaint (full text) in Pastors Protecting Youth v. Madigan,  (ND IL, filed 8/11/2016) seeks a declaratory judgment that pastors fall outside the act because they are not engaged in any "trade or commerce," as well as a declaration that the provision violates plaintiffs' free speech, free exercise and due process rights and the rights of those they counsel. The complaint explains the pastors' position in part as follows:

32. While plaintiffs speak, teach and counsel others that all types of sin are a disorder and a product of the Fall of mankind, the Act only prohibits the pastors from representing that homosexual conduct is a sin or disorder.  The Act, therefore, dictates which parts of the Bible pastors may or may not use to counsel their counselees.

33. Because the plaintiffs adhere to traditional Christian theology which teaches that homosexual conduct is contrary to the will and intended order of God, Plaintiffs also believe that homosexual conduct, like any other sin, can be overcome by the power of Jesus Christ.

 Washington Post reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Michael Makovi, Price-Controls in Jewish Law, (August 1, 2016).
• John Copeland Nagle, Humility and Environmental Law, (10 Liberty University Law Review 335 (2016)).
• Nicholas Aroney, Joel Harrison & Paul T. Babie, Religious Freedom Under the Victorian Charter of Rights, (Matthew Groves and Colin Campbell (eds), Australian Charters of Rights a Decade On (Federation Press, 2016)).

Journal of Law and Religion, Vol. 31, No. 1, has recently been published.

Trenton Curfew Arrangement With Churches Is Questioned

AP reports today on the church-state questions that are being raised by the juvenile curfew enforcement policies of the Trenton, New Jersey police department. Last month Trenton police began enforcing a midnight to 6 a.m. curfew for juveniles under 18.  If police pick up a violator, they first call the juvenile's parents.  However if the parents do not answer, or refuse to pick up their child, police under arrangements with a number of faith-based groups drop the juvenile off at a local church. Police say that the churches may not discuss religion with the drop offs, and they are usually held in a community room rather than in the sanctuary.  The juvenile is given the option of instead being dropped off at a police building. The ACLU says that police should provide a number of non-religious drop-off alternatives, though the group has broader objections to the curfew as well.

Recent Prisoner Free Exercise Cases

In Sims v. Owens, 2016 U.S. Dist. LEXIS 105341 (MD GA, Aug. 10, 2016), a Georgia federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 105554, July 22, 2016) and dismissed a suit by a Rastafarian inmate who was not permitted to grow a goatee.

In Glidden v. Cerliano, 2016 U.S. Dist. LEXIS 105928 (ED TX, Aug. 10, 2016), a Texas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 106356, June 24, 2016) and dismissed a suit by an inmate who had recently changed his religious preference to Pagan, but was not permitted to take possession of a book sent to him titled Buckland's Complete Book of Witchcraft, and was not permitted to meet with a Coven priestess.

In Hoke v. Lyle, 2016 U.S. Dist. LEXIS 106912 (SD GA, Aug. 8, 2016), a Georgia federal magistrate judge recommended that a Christian inmate be allowed to proceed with certain RLUIPA, free exercise and equal protection claims regarding the refusal to provide him with a study Bible and his Bible lessons.

In Hunter v. Corrections Corporation of America, 2016 U.S. Dist. LEXIS 105035 (SD GA, Aug. 9, 2016), a Georgia federal magistrate judge recommended denying summary judgement to either side in a Muslim inmate's Establishment Clause and RLUIPA claims (but only for nominal damages) challenging the Georgia prison system's Life Principles Program.

French Mayor Bans Muslim Burkinis On Beach [UPDATED]

In an order issued on July 28, but first publicized last week, the mayor of the seaside French city of Cannes has banned swimwear that does not reflect "good morals and secularism."  The order, which is effective through August, is aimed at preventing Muslim women from wearing burkinis-- full-body swimsuits.  According to NBC News, the mayor said that after last month's terrorist attack in nearby Nice killing 80 people and the subsequent attack on a church:

Beachwear manifesting religious affiliation in an ostentatious way, while France and its religious sites are currently the target of terrorist attacks, could create the risk of disturbances to public order.

UPDATE: Qantara reports that  an Aug. 13 court decision upheld the Cannes ban:

Three women backed by the Collective Against Islamophobia in France (CCIF) challenged the Cannes decision.... But a court in Nice rejected the request, saying the move was legal under French law forbidding people from "invoking their religious beliefs to skirt common rules regulating relations between public authorities and private individuals".

Meanwhile the resort of Villeneuve-Loubet imposed a similar ban.

Ethics Complaints Are Newest Tool In Wars Over Same-Sex Marriage

Legal ethics complaints appear to have become the most recent weapon in the culture wars.  After the Southern Poverty Law Center filed a series of complaints with the Alabama Judicial Inquiry Commission against Alabama Chief Justice Roy Moore (see prior posting), an ally of Moore's has turned the tables.  On July 28, Alabama attorney Trent Garmon and his wife Holly filed a complaint against Richard Cohen, president of the Southern Poverty Law Center, over Cohen's comments attacking Moore for Moore's actions opposing same-sex marriage.  As reported by AL.com, the complaint alleges that Cohen's statements violated Alabama Rules of Professional Conduct, Rule 8.2 that provides;

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, 

Cohen's comments included a statement that Alabama "elected [Moore] to be a judge, not a pastor;" Cohen called Moore a demagogue and the "Ayatollah of Alabama," and said he is unfit for office.

Muslim Woman Sues Chicago Police Charging Profiling and False Arrest

Chicago Tribune reports on a federal civil rights lawsuit filed yesterday against the city of Chicago and 6 of its police officers by a Muslim immigrant from Saudi Arabia who says she was assaulted and wrongly arrested by police officers who profiled her as a possible suicide bomber, apparently in part because she was wearing a hijab and niqab. Her suit alleges use of excessive force, false arrest, unlawful search, malicious prosecution and violation of Al-Matar's right to freedom of religious expression.  The arrest took place on July 4, as Al-Matar was walking to catch a train home to break the Ramadan fast.

Texas AG Cleared of Ethics Charges Over Reaction To Same-Sex Marriage Ruling

Texas Tribune reports that in an Aug. 3 notice, the State Bar of Texas announced that it is dismissing an ethics complaint signed by over 200 Texas lawyers claiming that Texas Attorney General Ken Paxton "violated his own official oath of office" last summer when he issued an Opinion and statement on the right of public officials to assert religious objections to issuing marriage licenses or performing same-sex marriages. According to the notice: "The Chief Disciplinary Counsel has determined that there is no just cause to believe that [Paxton] has committed professional misconduct."

Settlement Reached In Suit Over Sheriff's Religious Use of Department's Facebook Page

A settlement agreement has been reached in American Atheists, Inc. v. Watson, a suit alleging that Bradley County, Tennessee Sheriff Eric Watson used the sheriff department's Facebook page to promote the sheriff's Christian religious beliefs. (See prior posting.)  According to an American Atheists press release yesterday, under the settlement the county will pay $15,000 in damages to American Atheists and the local plaintiffs as well as $26,000 in attorney’s fees.  Also under the settlement, the Sheriff’s Department  will create a new, information-only, Facebook page that will not be used to "promote or further any religion, religious organization, religious event or religious belief." The original Facebook page has already been deactivated.  Sheriff Watson will be allowed to maintain a clearly marked personal Facebook page reflecting his personal opinions.

Native American Cannot Claim Religious LiIberty Defense In Prosecution for Unlawful Hunting

In State of Washington v. McMeans, (WA App., Aug. 9, 2016), a Washington state appeals court upheld a trial court's refusal to give the jury an instruction on a free exercise defense asserted by a Yakima Tribe designated hunter in a prosecution of him for unlawful hunting.  Defendant Ricky Watlamet killed 4 elk to provide meat for the funeral of a tribal elder.  The elk harvesting took place outside of elk hunting season on land of co-defendant who sought help to get rid of elk damaging her property.  Under an 1855 treaty, the Yakima tribe is allowed to hunt on "open and unclaimed lands," but not private property.  The court said in part:

The defense presented substantial evidence that Mr. Watlamet had sincere religious beliefs and that he used the elk meat for religious purposes. However, he did not provide any evidence that the McMeans property was the only available location to obtain the elk meat. In fact, the record shows that Mr. Watlamet could lawfully hunt elk on State land, Federal land, tribal land, or any open and unclaimed land. The record also indicates that at the time in question there were numerous elk on the reservation as well as elk on state land adjacent to the McMeans property. Mr. Watlamet could have hunted these elk without running afoul of any regulation. He presented no evidence that either these particular elk or this particular place were necessary, preferable, or even convenient, nor has he presented any evidence that hunting the lawfully available elk was in any way burdensome. 

Armed Forces Court of Appeals Interprets RFRA In Military Context

In United States v. Sterling, (US Armed Forces Ct. App., Aug. 10, 2016), the U.S. Court of Appeals for the Armed Forces held that a Marine Lance Corporal failed to establish a prima facie case under RFRA in defending against charges growing out of her work space posting of unauthorized signs containing Biblical quotations.  Appellant, in the wake of other personnel issues, posted 3 signs reading "[n]o weapon formed against me shall prosper."  The signs did not indicate that these were Bible verses. She refused orders to remove them and was court martialed.  The majority held in part:

while the posting of signs was claimed to be religiously motivated at least in part and thus falls within RFRA’s expansive definition of “religious exercise,” Appellant has nonetheless failed to identify the sincerely held religious belief that made placing the signs important to her exercise of religion or how the removal of the signs substantially burdened her exercise of religion in some other way. We decline Appellant’s invitation to conclude that any interference at all with a religiously motivated action constitutes a substantial burden, particularly where the claimant did not bother to either inform the government that the action was religious or seek an available accommodation.

The court spelled out its understanding of what must be shown to establish that the government imposed a substantial burden on appellant's religious exercise:

[W]hile we will not assess the importance of a religious practice to a practitioner’s exercise of religion or impose any type of centrality test, a claimant must at least demonstrate “an honest belief that the practice is important to [her] free exercise of religion” in order to show that a government action substantially burdens her religious exercise.... A substantial burden is not measured only by the secular costs that government action imposes; the claimant must also establish that she believes there are religious costs as well, and this should be clear from the record....

In contrast, courts have found that a government practice that offends religious sensibilities but does not force the claimant to act contrary to her beliefs does not constitute a substantial burden.... We reject the argument that every interference with a religiously motivated act constitutes a substantial burden on the exercise of religion. 

Contrary to Appellant’s assertions before this Court, the trial evidence does not even begin to establish how the orders to take down the signs interfered with any precept of her religion let alone forced her to choose between a practice or principle important to her faith and disciplinary action.

Judge Ohlson dissented, saying in part:

Unfortunately, instead of remanding this case so that it can be properly adjudicated by the court below, the majority instead has chosen to impose a stringent, judicially made legal standard in this and future religious liberty cases that is not supported by the provisions of RFRA. Contrary to the majority’s holding, the plain language of the statute does not empower judges to curtail various manifestations of sincere religious belief simply by arbitrarily deciding that a certain act was not “important” to the believer’s exercise of religion.  Neither does the statute empower judges to require a believer to ask of the government, “Mother, may I?” before engaging in sincere religious conduct. And further, nowhere in the statute are service members required to inform the government of the religious nature of their conduct at the time they engage in it.

[Thanks to ChristianFighterPilot.com for the lead.] 

Britain's Supreme Court Refers Complex Transgender Case To European Court of Justice

In MB v. Secretary of State for Work and Pensions, (UK Sup. Ct., Aug. 10, 2016), Britain's Supreme Court, divided on a complicated issue of transgender rights under European Council Directive 79/7/EEC (Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security), referred the following question to the Court of Justice of the European Union:

[W]hether Council Directive 79/7 EEC precludes the imposition in national law of a requirement that, in addition to satisfying the physical, social and psychological criteria for recognising a change of gender, a person who has changed gender must also be unmarried in order to qualify for a state retirement pension.

As permitted by the Directive, Britain allowed women to obtain a retirement pension at an earlier age than men.  However a transgender woman needed a full gender recognition certificate to qualify for the earlier pension, and under British law at the time could not obtain one if she remained married.  The facts of the case are summarized in the Court's press release:

So far as MB was concerned, she was registered at birth as a man but has lived as a woman since 1991 and underwent gender reassignment surgery in 1995. She has not applied for a full gender recognition certificate because she and her wife are married and wish to remain so.... On 31 May 2008, MB turned 60 [and] ... applied for a state retirement pension.... That application was rejected....

EurActiv reports on the decision.  [Thanks to Paul deMello for the lead.] 

RFRA Does Not Impact Bankruptcy Code's Denial of Discharge

The Bankruptcy Code, Sec. 727(a)(2)(A) provides that a bankruptcy court should deny a discharge if the debtor has within one year of filing for bankruptcy transferred property with the intent to hinder, defraud or delay a creditor.  In In re Crabtree, 2016 Bankr. LEXIS 2922 (MN Bkr., Aug. 8, 2016), a Minnesota federal bankruptcy judge held that the Religious Freedom Restoration Act does not prevent applying this provision to a family's donation of a box of 500 silver coins, valued at $12,000.00, to their church, Firestarters Worship Center.

Court Rejects As Applied Challenge To California Reparative Therapy Ban; Seattle Adopts Its Own Ban

In Pickup v. Brown, (ED CA, Aug. 9, 2016), a California federal district court dismissed plaintiffs' amended complaint raising an "as applied" challenge to California's ban on health professionals providing conversion therapy (sexual orientation change efforts) to minors. The courts had previously rejected facial attacks on the law. (See prior posting.) Now the court held that plaintiffs had not pointed to any action by defendants involving differential application of the law to them.

Meanwhile, last week the Seattle, Washington City Council unanimously adopted an ordinance (full text) banning licensed medical or mental health professionals from providing conversion therapy or reparative therapy to a minor. (Background and White Paper.) Capitol Hill Seattle Blog reports on the Council's action.

Muslim Flight Attendant Sues Over Refusal To Accommodate Objection To Serving Alcohol

CAIR Michigan announced yesterday that it has filed suit in federal district court against ExpressJet Airlines on behalf of a Muslim flight attendant who has religious objections to serving alcohol to passengers. Originally the flight attendant, Charee Stanley, had worked out arrangements with other flight attendants  on duty for them to serve all alcohol.  However apparently one of the flight attendants objected and the airline placed Stanley on administrative leave. The lawsuit follows an earlier complaint filed with the EEOC. (See prior posting.)

Football Coach Sues Seeking Right To Pray At 50-Yard Line

Yesterday Bremerton, Washington, High School assistant football coach Joe Kennedy who was placed on paid leave for insisting on praying at mid-field at the end of games (see prior posting) filed suit against the Bremerton school district alleging free exercise, free speech and Title VII violations.  The complaint (full text) in Kennedy v. Bremerton School District, (WD WA, filed 8/9/2016), contends that Kennedy is compelled by his sincerely held Christian religious beliefs to engage in brief private religious expression at the conclusion of school football games. He offers a prayer of thanksgiving as part of a covenant he made with God.  The complaint argues that the school district's directive which bans any "demonstrative religious activity" that is "readily observable" to students or members of the public is unconstitutional. The suit seeks declaratory relief as well as an order reinstating Kennedy and granting him a religious accommodation that allows him to pray at the 50-yard line at the conclusion of games.  Seattle Times reports on the lawsuit.  First Liberty has also created a website with details of the case.

New Survey On Political Preaching From the Pulpit

The Pew Research Center on Monday released a new survey titled Many Americans Hear Politics From the Pulpit. Among other things, it reports that 14% of churchgoers in recent months heard their clergy speak directly in support of or against a specific presidential candidate. 64% heard clergy speak from the pulpit about at least one of the six specific social and political issues.

3rd Circuit: Some Plaintiffs Have Standing In Ten Commandments Challenge

In Freedom From Religion Foundation, Inc. v. New Kensington Arnold School District, (3d Cir., Aug. 9, 2016), the U.S. 3rd Circuit Court of Appeals issued a complicated opinion on standing in a suit in which a student, her mother and an advocacy organization are challenging a 6-foot tall Ten Commandments monument on the lawn of a Pennsylvania high school. The district court had dismissed, finding that all the plaintiffs lacked standing because they had not been injured by the presence of the monument. (See prior posting.) The 3rd Circuit reversed in part, looking separately at each of the plaintiffs as well as considering the claim for an injunction separately from the claim for nominal damages. The 3rd Circuit held that the mother had standing to sue for nominal damages because

[her] allegations that the monument “signals that [she is] an outsider because [she] do[es] not follow the particular religion or god that the monument endorses,” ... and that her “stomach turned” when she encountered it, ... are sufficient to demonstrate that her contact with the monument was unwelcome.

On the other hand, the daughter did not because when she encountered the monument she was too young to understand it. The court went on to hold that both the mother and daughter have standing to sue for injunctive relief, even though the mother had sent her daughter to a different school because of the monument.  Its removal could lead to the daughter's return.  Finally the court said that the advocacy group's standing depends on whether the mother was a member at the time the suit was filed.

Judge Smith filed a lengthy opinion "concurring dubitante," saying:

I am doubtful that a claim for nominal damages alone suffices to create standing to seek backward-looking relief. While this issue has little practical importance to this case, it does have broad consequences for our standing and mootness inquiries in other scenarios.

Pittsburgh Tribune-Review reports on the decision. [Thanks to several readers for the lead.]

Roy Moore's Trial On Ethics Charges Set For Next Month

After a hearing yesterday on charges against Alabama Supreme Court Chief Justice Roy Moore, the Alabama Court of the Judiciary issued an Order (full text) denying motions for summary judgment from both sides.  Yesterday's order also set the case for trial on Sept. 28. At issue are charges filed by the Alabama Judicial Inquiry Commission contending that Moore acted unethically when in January he issued an administrative order telling state probate judges that they had a duty under Alabama law to continue to refuse to issue marriage licenses to same-sex couples. (See prior posting.) Al.com reports on yesterday's developments.

Arkansas Is A Step Closer To A Ten Commandments Monument At Its Statehouse

Last year, Arkansas enacted legislation directing the secretary of state to arrange for private groups to place a Ten Commandments monument on the State Capitol grounds. (See prior posting.) Now according to an AP report yesterday, the American History and Heritage Foundation has filed an application with the Arkansas secretary of state to allow it to install the 6000 pound, 6-foot tall monument that it has created and has in storage. Its monument is similar to the Texas one that survived a U.S. Supreme Court challenge in Van Orden v. Perry. The Arkansas secretary of state must now consult with the Capitol Arts and Grounds Commission before approving the monument.

Texas Muslim Teen-- Alarm Clock Inventor-- Sues For Discrimination

As reported by the Dallas Observer, a lawsuit was filed yesterday in a Texas federal district court by teenager Ahmed Mohamed who made news last September when his Irving, Texas school teacher mistook an alarm clock Mohamed had constructed for a bomb. Police were called in and both an arrest and school discipline followed. As summarized by plaintiffs' lawyer:

Despite the fact that (the Irving police) knew it wasn't a bomb, that he never threatened anyone, never alarmed anyone, they yanked him out of his chair, put him in handcuffs and arrested him. There was no cause for arrest. Even after the police acknowledged it didn't look like a bomb, the school suspended him. So yes, those are violations of his civil rights.

The complaint (full text) in Mohamed v. Irving Independent School District, (ND TX, file 8/8/2016), asking for damages and an injunction, alleges in part:

The IISD has a long and ugly history of race struggles up to and including the Board of Trustees. Additionally, the State of Texas, including the IISD, has a history of discrimination against Muslims in Texas curriculum and schools. 

Suit Challenges Illinois Amendments To Health Care Right of Conscience Act

On Friday, two pro-life pregnancy care centers and a pro-life physician filed suit in Illinois state court challenging SB 1564, the recently enacted Illinois law amending the state's Health Care Right of Conscience Act. (See prior posting.)  The complaint (full text) in Pregnancy Care Center of Rockford v. Rauner, (IL Cir. Ct., filed 8/5/2016) alleges that the new law violates Illinois' Religious Freedom Restoration Act, as well as plaintiffs' religious freedom, free speech and equal protection rights under the Illinois constitution. The complaint describes the provisions that would require plaintiffs to violate their religious and moral beliefs:

S.B. 1564 requires Plaintiffs and other medical facilities and physicians to choose between referring for abortions, transferring a patient to an abortion provider, or provide a patient asking for an abortion with a list of providers they reasonably believe may perform the abortion.

ADF issued a press release announcing the filing of the lawsuit/

Fired Lobbyist Sues Catholic Advocacy Group For Religious Discrimination

Albuquerque Journal reports on a religious discrimination lawsuit filed last Thursday against the non-profit Catholic advocacy group CHI St. Joseph’s Children and against Allen Sanchez, the executive director of the New Mexico Council of Catholic Bishops.  Plaintiff Miguel Gómez worked as a lobbyist and policy advisor for the advocacy group from 2010 until he was fired earlier this year.  Gomez claims he was fired because Sanchez discovered he is not a Catholic, discovered Gomez considers abortion sometimes morally permissible and had encouraged his pregnant girlfriend to have an abortion.  The suit claims that because CHI is not affiliated with the Archdiocese of Santa Fe, it is subject to the prohibition on religious discrimination in employment found in federal and New Mexico law.

Court Says Questions Remain In Private Foundation's RLUIPA Claim Against City

In Daniel & Francine Scinto Foundation v. City of Orange, (CD CA, Aug. 3, 2016), a California federal district court denied a motion by plaintiff for summary judgment in a suit claiming that the city of Orange, California violated RLUIPA by failing to keep adequate records about a building owned by plaintiff and rented by plaintiff to a church.  The tenant-- the Breath of Life Spirit Ministries-- moved out after months of negotiations with the city over potential Fire Code violations. The court said in part:

Even if the Court assumes (without deciding) that renting to a religious institution constitutes religious exercise under RIULPA, the Court cannot conclude Plaintiff has shown “the City’s land use regulation . . . imposed a substantial burden on its religious exercise.”

Moving to plaintiff's argument under the "equal terms" provision of RLUIPA, the court concluded that a dispute of material fact remains as to whether a Section 509(a)(3) private foundation constitutes a "religious assembly or institution" for purposes of RLUIPA.

Recent Articles of Interest

From SSRN:

• Andy G. Olree, A Madisonian Vision of Religious Liberty, (7 Faulkner L. Rev. 19 (2015)).
• Asli U. Bali & Hanna Lerner, Constitutional Design Without Constitutional Moments: Lessons from Religiously Divided Societies, (Cornell International Law Journal, Vol. 49, Forthcoming).
• Salim Farrar & Ghena Krayem, Law, Religion and the Challenge of Accommodation, (Accommodating Muslims under Common Law: A Comparative Analysis, S. Farrar, G. Krayem, Routledge, UK, Forthcoming).
• Ghazi Hashimi, Defending the Principle of Legality in Afghanistan: Toward a Unified Interpretation of Article 130 to the Afghan Constitution, (March 2, 2016).
• D. A. Jeremy Telman, The African-American Interest in Higher Law in the Supreme Court: Justices Marshall and Thomas, (31 Temple Int'l & Comp. L. J. Forthcoming).

From SmartCILP:

• Donald H.J. Hermann, Artificial Nutrition and Hydration and the Patient in Persistent Vegetative State: Roman Catholic Magisterial Teaching on the Right to Refuse Medical Treatment versus the Obligation to Provide Ordinary Care, 40 University of Dayton Law Review 407-443 (2016).

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).