Religion Clause

Friday, August 26, 2016

Top French Court Invalidates Burkini Ban

France's top administrative court-- the Council of State-- today overturned the ban on burkini swim suits imposed by the town of Villeneuve-Loubet. According to France 24, the court ruled that restrictions on individual liberties are justified only if there is a "proven risk" to public order. Some 30 French towns have adopted similar restrictions on the full-body swimsuit worn by Muslim women, justifying them as a provocation in light of recent terrorist attacks in France. Today's ruling presumably sets precedent that will invalidate all of these. (See prior related posting.)

UPDATE: Here is the full text (in French) of the Council of State's decision in the case.

Canadian Mounties Approve Hijab As Optional Uniform Choice

Global News reported this week that the Royal Canadian Mounted Police has approved the hijab as a uniform option to encourage Muslim women to consider the RCMP as a career option. Three types of hijabs were tested before approving one which maximizes officer safety and can be removed quickly if needed. The RCMP since 1990 has allowed Sikh officers to wear a turban. [Thanks to Scott Mange for the lead.]

Atheists Sue Pennsylvania House Over Invocation Policy

Yesterday, American Atheists and Americans United filed a federal lawsuit challenging the practice of the Pennsylvania House of Representatives to allow theists but not non-theists to give opening invocations at daily sessions of the House. The complaint (full text) in Fields v. Speaker of the Pennsylvania House of Representatives, (MD PA, filed 9/25/2016), contends that the practice violates the Establishment Clause, the free speech and free exercise clauses, and the equal protection clause. American Atheists issued a press release announcing the filing of the lawsuit. AU has an interview with three of the individual plaintiffs in the case.

Thursday, August 25, 2016

French Town Official Threatens To Sue Those Circulating Photos of Burkini Ban

In France in recent weeks, a number of seaside towns have barred Muslim women from wearing the "burkini"-- a swimsuit that covers them from knees to chest. (See prior posting.) The bans have variously been supported by reference to the French principle of laïcité (secularism in the public sphere), or by arguments that the burkini represents the "enslavement of women," or that the swimwear is a provocation in light of recent Islamist terrorist attacks in France. Now, photos of police enforcing the ban in Nice which were widely published in European media have become the center of additional controversy as the deputy mayor of Nice yesterday issued a statement (full text in French) threatening to sue anyone who shares the photos online. He contends that the photos "provoke defamatory remarks and threats" against the police. As reported by The Verge:

In the image, taken by a French photographer, four male police officers surround the woman and appear to issue a fine. With the men still standing over her, the woman was photographed removing her long tunic top. The agency that released the pictures in the UK said ... that the woman was fined and left the beach, but the office of Nice's mayor denied that she had been forced to remove her clothes, telling AFP that she was only showing the officers that she was wearing a swimsuit under her clothes. Notably, the woman was not wearing a burkini, but a long-sleeved tunic, headscarf, and leggings. The legal basis for Estrosi's lawsuit threats remains unclear.

Investigation Says NYPD Does Not Stick To Guidelines In Surveilling Muslims

The New York Police Department yesterday released an Inspector-General's report titled An Investigation of NYPD’s Compliance with Rules Governing Investigations of Political Activity. Some 95% of the police investigations reviewed by the IG involved "individuals... predominantly associated with Muslims and/or engaged in political activity that those individuals associated with Islam." Here is an excerpt from the report:

[B]efore NYPD can begin investigating political activity – which could include surveillance within a mosque, church, or synagogue – it must articulate, in writing, the objective basis of need for the investigation and must secure approvals from senior NYPD officials. Further, permission is not open-ended; rather, it runs for a certain period of time, at the end of which NYPD must apply for (and justify) an extension or otherwise end the investigation. The thresholds for obtaining and extending permission in this area are not particularly high. The rules were amended after September 11, 2001, to accommodate the increased threat to the City.

OIG-NYPD’s investigation found that NYPD, while able to articulate a valid basis for commencing investigations, was often non-compliant with a number of the rules governing the conduct of these investigations.

VICE News discusses the NYPD report.

Court Refuses To Dismiss Minister's Suit Saying Ministerial Exception Is Not A Jurisdictional Bar

In McKnight v. Old Ship of Zion Missionary Baptist Church, 2016 Conn. Super. LEXIS 2065 (CT Super., July 28, 2016), a Connecticut appellate court held that it is bound by language in a footnote of the U.S. Supreme Court's Hosanna-Tabor decision that "the [ministerial] exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar." The Connecticut court thus refused to dismiss for lack of jurisdiction a suit by a minister for lost wages and benefits against the church that previously employed him.

Wednesday, August 24, 2016

British Report On Islamist Extremism In Prisons

On Monday, Britain's Ministry of Justice released a summary of the main findings of a classified report on Islamist extremism in British prisons. (Full text of Summary). The study of the issue was commissioned last year and the classified report was presented in March. The study found that Islamist extremism is a growing problem in prisons. The Summary's section on Muslim Chaplaincy in prisons reports in part:

Throughout the review the team emphasised the importance of faith to prisoners, and its potential to transform lives for the better. Its premise was that Islamism – a politicised, expansionist version of Islam – is more ideology than faith, and is driven by intolerance and anti-Western sentiment.

There are around 69 full time, 65 part-time and 110 sessional Muslim prison chaplains. About two thirds follow the Deobandi denomination, often regarded as a traditional and conservative interpretation....

The review concluded that while most chaplains were dedicated members of staff and did good and useful work, there is also evidence of a weak understanding and effective approach to IE.

[Thanks to Law & Religion UK for the lead.]

Court Enters Findings For Priest As Sanction For SNAP's Refusal To Comply With Discovery Order

Last year, St. Louis Catholic priest Xiu Hui "Joseph" Jiang, who had been charged with abusing a boy, but then had charges dropped, filed a federal lawsuit against a number of defendants, including the boy's parents and the victim advocacy group SNAP. The suit charged SNAP with conspiracy, defamation and infliction of emotional distress. (See prior postings 1, 2). As reported by the St. Louis Post-Dispatch, Jiang has been attempting through discovery to obtain information on people who had made complaints against him to SNAP. The court ordered SNAP to produce that (and other) information, but it has refused. So Jiang moved for the imposition of sanctions under Rule 37 of the Federal Rules of Civil Procedure. In Jiang v. Porter, (ED MO, Aug. 22, 2016), a Missouri federal district court judge imposed unusual sanctions:

[T]he Court will direct that the facts alleged supporting elements of plaintiff’s claims against the SNAP defendants have been established for the purpose of this action....

[T]he Court will direct that it has been established that the SNAP defendants conspired with one another and others to obtain plaintiff’s conviction on sexual abuse charges and that they entered into this conspiracy due to discriminatory animus against plaintiff based on his religion, religious vocation, race and national origin.

Catholic School's Firing of Guidance Counselor Over Same-Sex Marriage Remains In Litigation

In Drumgoogle v. Paramus Catholic High School, (NJ Super., Aug. 22, 2016), a New Jersey state trial court refused to grant summary judgment to a Catholic high school in a suit by its former dean of guidance who was fired after she entered a same-sex marriage. The school terminated her under a provision of its collective bargaining contract that allows for-cause termination of a tenured teacher for "violating accepted standards of Catholic morality as to cause public scandal." Plaintiff claims that the school's policy on harassment bars discrimination against her on the basis of marital status and claims her firing violates the New Jersey Law Against Discrimination. The court concluded that further discovery is required in order to determine whether plaintiff's status requires application of the "ministerial exception" to anti-discrimination laws and whether the dispute is secular or ecclesiastical. The Bergen County Record reports on the decision.

Suit Challenges New HHS Rules On Discrimination Against Transgender Individuals

A lawsuit was filed in a Texas federal court yesterday by a religiously-affiliated hospital network, two medical associations and the states of Texas, Wisconsin, Nebraska, Kentucky and Kansas challenging new rules (full text) adopted by the Department of Health and Human Services in May barring discrimination on the basis of gender identity in the delivery of medical services by, among others, health facilities receiving federal financial assistance. The 79-page complaint (full text) in Franciscan Alliance, Inc. v. Burwell, (ND TX, filed 8/23/2016), contends that the new regulations infringe free speech, free exercise and due process rights of plaintiffs, as well as their rights under the Religious Freedom Restoration Act. It also contends that the regulations infringe states' rights in various ways. The complaint focuses particularly on requirements relating to provision of gender transition procedures, saying in part:

On pain of significant financial liability, the Regulation forces doctors to perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individual’s sex—including the sex of children. Under the new Regulation, a doctor must perform these procedures even when they are contrary to the doctor’s medical judgment and could result in significant, long-term medical harm. Thus, the Regulation represents a radical invasion of the federal bureaucracy into a doctor’s medical judgment....

The Regulation not only forces healthcare professionals to violate their medical judgment, it also forces them to violate their deeply held religious beliefs. Plaintiffs include the Christian Medical & Dental Associations ... and Franciscan Alliance, a network of religious hospitals founded by the Sisters of St. Francis of Perpetual Adoration. These religious organizations are deeply committed to the dignity of every human person, and their doctors care for everyone with joy and compassion. They eagerly provide comprehensive care to society’s most vulnerable populations, but their religious beliefs will not allow them to perform medical transition procedures that can be deeply harmful to their patients.....

Texas Attorney General Ken Paxton issued a press release announcing the filing of the lawsuit, and saying in part:

This is the thirteenth lawsuit I have been forced to bring against the Obama Administration’s continued threats on constitutional rights of Texans. The federal government has no right to force Texans to pay for medical procedures designed to change a person’s sex.

Becket Fund which represents the medical association plaintiffs also issued a press release. Texas Tribune, reporting on the lawsuit, says that the case has been assigned to the same judge who earlier this week blocked federal Guidelines on transgender students' rights under Title IX from going into effect. (See prior posting.)

9th Circuit: California Reparative Therapy Ban OK Under 1st Amendment Religion Clauses

In Welch v. Brown, (9th Cir., Aug. 23, 2016), the U.S. 9th Circuit Court of Appeals rejected facial free exercise and Establishment Clause challenges to California's ban on state-licensed mental health professionals providing “sexual orientation change efforts” for patients under 18. The court concluded that the law does not excessively entangle the state with religion because it only applies within the confines of the counselor-client relationship. The state conceded that the law does not apply to clergy in their roles as pastoral counselors providing religious counseling to congregants. The court also rejected the contention that the law has the primary effect of inhibiting religion, saying in part:

although the scientific evidence considered by the legislature noted that some persons seek SOCE for religious reasons, the documents also stressed that persons seek SOCE for many secular reasons.

[Thanks to How Appealing for the lead.]

Tuesday, August 23, 2016

Amici Tell SCOTUS of Importance of ERISA Church Plan Cases

On Aug. 12 and 15 several amicus briefs were filed by religious advocacy groups with the U.S. Supreme Court supporting petitions for certiorari in two cases involving the question of whether ERISA's "church plan" exemption applies to retirement plans of religiously-affiliated healthcare organizations where the plans were not initially established by a church. If the exemption does not apply, the plans will be underfunded by some $3.5 billion. The cases are Saint Peter’s Healthcare System v. Kaplan (see prior posting) and Advocate Health Care Network v. Stapleton (see prior posting). BNA Daily Report for Executives (Aug. 18) [subscription required] describes arguments put forward by amici:

Several of the briefs emphasize the huge universe of workers that could be affected by a Supreme Court decision on this topic. According to the Thomas More Society's brief, this issue affects the retirement benefits of “millions of employees across the country who work for nonprofit religious organizations,” including the 750,000 people who work for Catholic hospitals alone.

Further, the groups argue that employees at other organizations, including schools, nursing homes and day care centers, could be affected by a high court ruling. That is because many of these organizations rely on the same statutory exemption in administering their pension plans.

First Amendment rights are a recurring theme in several briefs, which argue that the appellate court decisions against hospital pension plans infringe on religious liberty....

Taking a different approach, the Becket Fund also argues that forcing faith-connected hospitals to comply with federal pension rules could threaten their ability to “invest retirement funds morally” and use pension assets to “promote social justice” and “avoid supporting evils.”

In an unexpected twist, the Church Alliance predicts that denying religious exemptions to hospital pension plans could result in “cascading securities law violations” by forcing the plans into the purview of the Investment Company Act of 1940.

Links to all the amicus briefs are available from the SCOTUSblog case pages (case page for Advocate Health Care; case page for Saint Peter’s Healthcare).

In Discovery, Most Documents Fail Clergy-Penitent Privilege

In McFarland v. West Congregation of Jehovah's Witnesses, Lorain, Ohio, Inc., (OH App., Aug. 22, 2016), an Ohio appeals court affirmed in part and reversed in part a trial court's rejection of the clergy-penitent privilege as the basis for a Jehovah's Witness congregation to refuse to produce 19 specific documents sought in discovery by a plaintiff suing over alleged sexual abuse as a minor by another church member. The appeals court found that only four of the documents met the statutory criteria for the clergy-penitent privilege. Communications between bodies of church elders did not qualify for the privilege. The court rejected the argument that production of the unprivileged documents would expose the church's internal discipline procedures and beliefs regarding repentance, mercy, and redemption to external, secular scrutiny in violation of the 1st Amendment.

Monday, August 22, 2016

Court Issues Nationwide Injunction Preventing Enforcement of Title IX Guidance on Transgender Rights

In a decision handed down yesterday, a Texas federal district court issued a preliminary injunction applicable nationwide barring the federal government from enforcing Guidelines issued earlier this year interpreting Title IX as barring discrimination by schools on the basis of gender identity. In particular the Guidelines took the position that transgender students must have access to restrooms and locker rooms consistent with their gender identity. (See prior posting.) In State of Texas v. United States, (ND TX, Aug. 21, 2016), a Texas federal district court in a suit brought by 13 states held that the Department of Education's Guidance incorrectly interpreted its regulation (34 CFR 106.33) on sex-segregated restrooms and locker rooms. The court said in part:

It cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DOE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth.... Additionally, it cannot reasonably be disputed that DOE complied with Congressional intent when drawing the distinctions in § 106.33 based on the biological differences between male and female students....

The court held additionally:

The Guidelines are, in practice, legislative rules—not just interpretations or policy statements because they set clear legal standards.... As such, Defendants should have complied with the APA’s [Administrative Procedure Act's] notice and comment requirement. Permitting the definition of sex to be defined in this way would allow Defendants to “create de facto new regulation” by agency action without complying with the proper procedures.

ABC News reports on the decision.

Religious Worker's Challenge To Immigration Law Interpretation Dismissed On Jurisdictional Grounds

Singh v. Johnson, (SD IN, Aug. 17, 2016), is a suit in federal district court for declaratory relief and an injunction by an Indian citizen who is in the U.S. on an R-1 nonimmigrant religious worker visa working for a Sikh Gurdwara in Indiana. Plaintiff sought to adjust his status to become a lawful permanent resident. USCIS denied his application for change of status because, it contended, his receipt of room and board, donations, and gifts from Sikh temples other than his employer amounted to unauthorized employment in the U.S. Plaintiff contends that this definition of unauthorized employment is inconsistent with law and violates his free exercise rights. An Indiana federal district judge dismissed plaintiff's complaint for lack of jurisdiction, saying:

The immigration judge presiding over the Plaintiff’s removal proceeding has de novo review of the USCIS’s denial of the Plaintiff’s I-485 Application.... Thereafter, if the immigration judge’s decision is unfavorable to the Plaintiff, he may appeal to the Board of Immigration Appeals.... And, if the Board of Immigration Appeals affirms an immigration judge’s unfavorable decision, the Plaintiff may appeal to the Seventh Circuit the results of his removal proceeding and any constitutional claims or questions of law.

Sunday, August 21, 2016

Recent Prisoner Free Exercise Cases

In Aref v. Lynch, (DC Cir., Aug. 19, 2016), the D.C. Circuit Court of Appeals, in an opinion involving a number of other issues as well, rejected the claim of an inmate convicted of supporting terrorism that he was denied transfer out of the restrictive Communications Management Unit as retaliation for a sermon he gave as part of a Muslim prayer meeting.

In Shaw v. Upton, 2016 U.S. Dist. LEXIS 107690 (SD GA, Aug. 15, 2016), a Georgia federal magistrate judge recommended that an inmate be allowed to move ahead with most of his claims contending that he was denied meals in accordance with the tenets of his religion. UPDATE: The court adopted the magistrate's recommendations, 2016 U.S. Dist. LEXIS 128232, Sept. 20, 2016.

In Thomas v. Lawler, 2016 U.S. Dist. LEXIS 108143 (MD PA, Aug. 16, 2016), a Pennsylvania federal district court held on various grounds that a Muslim inmate's rights under the Americans With Disabilities Act were not infringed when Friday Jumu'ah services were held in the multi-faith chapel accessible only by walking four flights of steps.

In Sanford v. Madison County, 2016 U.S. Dist. LEXIS 108734 (SD IL, Aug. 17, 2016), an Illinois federal district court dismissed some, but not all, defendants in a suit by a Muslim jail inmate complaining that he was denied Jumu'ah prayer services and was denied religious counseling on a equal basis with Christian inmates.

In Ryan v. Graham, 2016 U.S. Dist. LEXIS 108976 (ND NY, Aug. 17, 2016), a New York federal district court adopted a magistrate's recommendations and dismissed an inmate's complaint over rules that limited him to having eleven religious books at one time.

In Epps v. Hein, 2016 U.S. Dist. LEXIS 109247 (SD GA, Aug. 17, 2016), a Georgia federal magistrate judge allowed an inmate to proceed with his RLUIPA challenge to the denial of a Rastafarian diet.

In Deangelis v. Cowels, 2016 U.S. Dist. LEXIS 109785 (D CT, Aug. 18, 2016), a Connecticut federal district court dismissed, with leave to amend, an inmate's complaint that his free exercise rights were infringed when his religious gold cross and gold necklace were taken from him and subsequently lost.

In Brown v. Cox, 2016 U.S. Dist. LEXIS 110284 (ED CA, Aug. 18, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that his free exercise rights were infringed when he was denied access to his religious beads and cross while temporarily in administrative segregation.

In White v. Baker, 2016 U.S. Dist. LEXIS 110873 (D NV, Aug. 19, 2016), a Nevada federal district court allowed an inmate to move ahead with his suit seeking a "sacred Heraklean diet" (high protein natural and organic cuisine) and the right to possess two religious rings and a necklace, but dismissed his claims seeking group worship and official recognition of his religion.

In Carey v. Mason, 2016 U.S. Dist. LEXIS 110879 (MD AL, Aug. 18, 2016), an Alabama federal magistrate judge, among other issues, dismissed a Buddhist inmate's complaint that the warden tore up his bible (Diamond Sutra) and threw it in the trash.

Moorish-American Religious Defense To False Identity Charge Fails

Thomas v. Commonwealth, (VA App., Aug. 16, 2016), involved an appeal by defendant of his conviction for providing a law enforcement officer a false identity with intent to deceive. Defendant, who was driving with a suspended license, told police during a traffic stop that his name was "Barry Thomas-El." Police were unable to locate information on anyone with that name from the Department of Motor Vehicles, and only later identified him as "Barry Nelson Thomas, Jr." At the trial court level, defendant attempted to raise a religious free exercise defense, arguing that use of the suffix "El" was an exercise of his religious beliefs as a Moorish-American national. The trial court excluded evidence relating to this defense. The Virginia Court of Appeals affirmed, largely on procedural grounds, saying in part:

At the motion in limine hearing, appellant’s counsel argued that adding the suffix “El” to appellant’s name was an act of free exercise noting his “rebirth” within the Moorish American community.... However, appellant’s counsel failed to properly proffer what appellant’s testimony would have been at trial.

The court also upheld the trial court's exclusion of several documents relating to defendant's claim of Moorish-American citizenship, saying:

As the documents are political, rather than religious, in nature, they lack any tendency to make the existence of a religious imperative more or less probable. As such, they are irrelevant and thus not admissible.

Saturday, August 20, 2016

EEOC Sues Over Firing of Muslim Employee

The EEOC announced this week that it has filed a Title VII religious discrimination lawsuit against KASCO, a St. Louis-based company that manufactures and sells butcher supplies and meat processing equipment. The press release explains:

According to EEOC's lawsuit, Latifa Sidiqi had worked for KASCO since 2008, most recently as a buyer. After she began more seriously practicing her religion in 2012, a supervisor and others began making derogatory comments about her fasting during Ramadan, wearing a hijab, and her native country, Afghanistan. The agency charged that Sidiqi was fired during Ramadan 2013 because of her religion and national origin, and because she complained about her supervisor's treatment.

No-Fault Divorce Does Not Violate Hindu Husband's Free Exercise Rights.

In Bhandaru v. Vukkum, (KY App., Aug. 19, 2016), a Kentucky appeals court rejected an argument that the state's no-fault divorce law violates the free exercise rights of a Hindu husband. The husband argued that his Hindu religion only permits divorce if some grounds for divorce are stated. The court concluded however that the divorce law is a law of general applicability and the state has a rational basis for it. It thus survives a 1st Amendment challenge and the free exercise provisions of the Kentucky constitution offer no greater protection than those in the 1st Amendment. The court also rejected the argument that under notions of comity it should have applied the Indian Hindu Marriage Act.

Friday, August 19, 2016

GSA Requires Rest Rooms In Federal Buildings To Be Open On Basis of Gender Identity

The General Services Administration yesterday published a Bulletin (full text) in the Federal Register requiring federal agencies occupying space in buildings controlled by the GSA to open restrooms to individuals on the basis of their gender identity. The Bulletin said in part:

a. Consistent with the interpretations issued by the EEOC, ED, DOJ, and OPM, the prohibition against sex discrimination ... also prohibits discrimination due to gender identity, which includes discrimination based on an individual's transgender status.

b. Federal agencies occupying space under the jurisdiction, custody, or control of GSA must allow individuals to use restroom facilities and related areas consistent with their gender identity. ...[T]he self-identification of gender identity by any individual is sufficient to establish which restroom or other single-sex facilities should be used. ...[T]ransgender individuals do not have to be undergoing or have completed any medical procedure, nor can they be required to show proof of surgery to be treated in accordance with their gender identity and obtain access to the restroom corresponding with their gender identity. Further, Federal agencies may not restrict only transgender individuals to only use single-occupancy restrooms, such as family or accessible facilities open to all genders. However, Federal agencies may make individual-user options available to all individuals who voluntarily seek additional privacy.

Liberty Counsel issued a press release strongly criticizing the GSA's action.

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.

Thursday, August 18, 2016

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.

Wednesday, August 17, 2016

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.

Tuesday, August 16, 2016

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.

Monday, August 15, 2016

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.

Sunday, August 14, 2016

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.

Saturday, August 13, 2016

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.

Friday, August 12, 2016

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.

Thursday, August 11, 2016

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.

Wednesday, August 10, 2016

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.]

Tuesday, August 09, 2016

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.

Monday, August 08, 2016

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.