Recent Prisoner Free Exercise Cases

In Begnoche v. Derose, 2016 U.S. Dist. LEXIS 119747 (MD PA, Sept. 2, 2016), a Pennsylvania federal district court dismissed an inmate's claim that the Therapeutic Community program involved religious content and interfered with his ability to practice his Native American religious beliefs.

In Shakur v. Thomas, 2016 U.S. Dist. LEXIS 119767 (ND NY, Sept. 6, 2016), a New York federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 72707, June 2, 2016)(see prior posting), finding a plausible showing that an inmate's position as a Muslim Shia inmate facilitator is protected 1st Amendment speech or conduct for purposes of a retaliation claim. The court also adopted uncontested recommendations that plaintiff be allowed to move ahead with various claims of denial of Ramadan and festival meals and participation in congregational prayer.

In Espinosa v. Stogner, 2016 U.S. Dist. LEXIS 120646 (D NV, Sept. 6, 2016), a Nevada federal district court dismissed an inmate's complaint that prison authorities violated the Free Exercise and Establishment clauses by refusing to recognize his "secular/religious Humanism" as an accepted faith group. However the court granted plaintiff leave to amend his complaint to allege "how his brand of humanism differs from tradition secular moral philosophy in a way sufficient to qualify as a religion under the Free Exercise Clause."

In Wilson v. Avertest, 2016 U.S. Dist. LEXIS 121593 (MD PA, Sept. 7, 2016), a Pennsylvania federal magistrate judge recommended dismissal of free exercise and 4th Amendment complaints by plaintiff who under a house arrest and alcohol monitoring program was required to undergo a below-the-waist strip search.  Plaintiff claimed that his Jewish faith requires that he "not to bare his nakedness for any unnecessary reason."

In Wilkes v. Hunter, 2016 U.S. Dist. LEXIS 121707 (ND CA, Sept. 8, 2016), a California federal district court dismissed, with leave to amend, plaintiff's claim that jail deputies refused to allow him to bring a Christian cross into jail.

In Brown v. Mohr, 2016 U.S. Dist. LEXIS 122292 (SD OH, Sept. 9, 2016), an Ohio federal magistrate judge recommended refusing to dismiss a Jewish inmate's claim that he was denied a kosher diet for 10 weeks, but recommended dismissing his complaint that he was housed in a cell with a neo-Nazi inmate.

Court Rejects Sioux Challenge To Pipeline On Sacred Land, But Feds Delay Permission

In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC Sept. 9, 2016), the D.C. federal district court refused to enjoin construction of the Dakota Access Pipeline near the Standing Rock Indian Reservation on sacred ancestral lands of the Sioux Tribe. (See prior related posting.) Summarizing its 58-page decision, the court said:

The Tribe fears that construction of the pipeline, which runs within half a mile of its reservation in North and South Dakota, will destroy sites of cultural and historical significance. It has now filed a Motion for Preliminary Injunction, asserting principally that the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue. After digging through a substantial record on an expedited basis, the Court cannot concur. It concludes that the Corps has likely complied with the NHPA and that the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue.

However, shortly after the decision was handed down, the Department of Justice, the Department of the Army and the Department of the Interior issued a joint statement (full text) reading in part:

The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws.  Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time.  The Army will move expeditiously to make this determination, as everyone involved — including the pipeline company and its workers — deserves a clear and timely resolution.  In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

Furthermore, this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.  Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions:  (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals....

In recent days, we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites.  It is now incumbent on all of us to develop a path forward that serves the broadest public interest.

CNN reports on developments.

Settlement Ends Long-Running Dispute Over Control of Sikh Temple In California

A long-running dispute over control of a Sikh Temple in Yuba City, California, appears to have come to an end after a court-ordered election of new board members resulted in a cooperative transition of leadership.  According to yesterday's Appeal-Democrat, the election (ordered by the court to be held without regard to the Temple by-laws quorum requirements) led to victory by a slate of 73-board members who were opposed to the incumbent directors. The parties then entered a settlement agreement covering all four of the pending cases growing out of the controversy. The agreement was presented to the court yesterday.  Under the settlement, the new directors take office immediately and they will amend the Temple's bylaws to reduce from 8 to 4 years the term of board members. During a board meeting yesterday evening, the new board received the keys and financial records of the Temple.

Another Suit Challenges Feds' Interpretation Of Title IX To Protect Transgender Rights

On Wednesday, another lawsuit was filed-- this time by a group of Minnesota parents-- challenging the Department of Education and Department of Justice's recent Guidance declaring that Title IX protects transgender students from discrimination and requires that they be permitted to use restrooms and locker rooms consistent with their gender identity. The complaint (full text) in Privacy Matters v. U.S. Department of Education, (D MN, filed 9/7/2016) contends that the Guidance violates the Administrative Procedure Act, Title IX, the right to privacy and to control the upbringing of one's children.  It also contends that the Guidance infringes plaintiffs' religious free exercise rights under the state and federal constitutions and RFRA, saying:

Some Student Plaintiffs have a sincere religious belief that they must practice modesty, which includes a requirement that they not undress or use the restroom with the opposite sex.

Some Parent Plaintiffs have a sincere religious belief that they must teach their children to practice modesty and protect the modesty of their children. This includes a requirement that their children not undress or use the restroom with the opposite sex.

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

Muslim Police Officer Sues For Religious Accommodation

A Muslim police officer in the Town of West New York, NJ, filed a religious discrimination lawsuit this week in New Jersey federal district court alleging that he was not provided a religious accommodation to the police department's Appearance Policy.  The complaint (full text) in Awadallah v. Town of West New York, (D NJ, filed 9/7/2016), alleges that plaintiff wears a light beard as part of his Muslim religious beliefs. It contends that defendants initially denied the possibility of an accommodation and then delayed action on his request.  He was not permitted to work overtime while he was wearing his beard, and was required to submit proof of his religious beliefs. Ultimately his accommodation request was denied. Plaintiff alleges this violates Title VII and the New Jersey Law Against Discrimination. [Thanks to Jeff Pasek for the lead.]

6th Circuit Dismisses Suit Over Catholic Bishops' Health Care Directives

In Means v. U.S. Conference of Catholic Bishops, (6th Cir., Sept. 8, 2016), the U.S. 6th Circuit Court of Appeals affirmed a Michigan federal district court's dismissal of a suit against the U.S. Conference of Catholic Bishops (USCCB) and against three individuals who served as chairs of the Catholic Health Ministries-- the sponsor of a health care system that includes the Catholic hospital at which plaintiff Tamesha Means claims she was inadequately treated.  Means visited the hospital when she prematurely went into labor at 18 weeks into her pregnancy.  The hospital, complying with the USCCB's  Catholic health care directives, did not give Means the option of terminating her pregnancy, even though her physician suspected she had a serious bacterial infection that can cause infertility and even death.  After the statute of limitations on medical malpractice had run, Means sued the entities responsible for promulgating and adopting the Catholic health care directives, charging them with negligence.

The 6th Circuit dismissed the USCCB from the case for lack of personal jurisdiction.  As to the other defendants, the court said in part:

Means asks us to recognize a duty under Michigan law on the part of a religious organization to a specific patient to adopt ethical directives that do not contradict the medical standard of care. Whether such a duty exists is far from certain, especially if the standard of care violates the organization’s religious beliefs. Nevertheless, even if the CHM defendants had such a duty, Means’s factual allegations do not create the plausible inference that any breach of that duty proximately caused any injury to Means within the strictures of Michigan negligence law.... 

Means alleges—and we do not doubt—that she suffered physical and mental pain, emotional injuries, a riskier delivery, shock and emotional trauma from making funeral arrangements for her dead child, and other “discomforts and pain.” But these allegations are not sufficient to state an injury under Michigan negligence law. In Michigan, “present physical injury” is necessary to state a claim for negligence.

[Thanks to Tom Rutledge for the lead.] 

Two Charged With Conspiracy In Plan To Coerce Jewish Religious Divorce

On Wednesday, the U.S. Department of Justice announced the filing of a criminal complaint against an Israeli rabbi connected with the Satmar Hasidic community in Kiryas Joel, New York, as well as against a 25-year old Kiryas Joel resident, charging them with conspiracy to commit kidnapping and conspiracy to commit murder for hire.  The plot, revealed to authorities by a confidential source ("CS") who was contacted by the two, started as a planned kidnapping in order to coerce the victim into granting a Jewish religious divorce ("get") to the intended victim's wife.  The plot developed into one of possible murder of the victim.  The criminal complaint (full text) in United States v. Liebowitz, (SD NY, filed 9/6/2016), charges Rabbi Aharon Goldberg and Shimen Liebowitz with advancing over $57,000 to have the plan carried out. JTA reports on the case.

Sioux-- and Green Party Candidate-- Protest North Dakota Pipeline Across Sacred Land

The Washington Post this week reported on the showdown between members of the Standing Rock Sioux Tribe and the company building the Dakota Access crude-oil pipeline across North and South Dakota.  The tribe claims that the pipeline will run through sacred ancestral lands which were taken from the tribe over the years. It will cross the Missouri River just a mile north of the Standing Rock Indian Reservation.  Thousands of Native Americans have traveled to North Dakota over the past weeks to join the protest. As reported by CBS News, on Tuesday Green Party Presidential candidate Jill Stein visited the protest site and, at the urging of activists, spray painted a  message on a bulldozer blade. In response, yesterday a warrant was issued for Stein's arrest, charging her with misdemeanors-- criminal trespass and criminal mischief.  On Tuesday, a judge issued a temporary restraining order halting construction only on part of the land. A ruling on the Tribe's request for an injunction is expected Friday. (NPR News).

In Canada, Gay Activists Sue Christian Group That Infiltrated Pride Parade

Last month in Canada, two LGBT activists filed a class action lawsuit against a group of Christian conservatives who, calling themselves the "Gay Zombies Cannabis Consumers Association," registered under false pretenses to march in the 2016 Toronto Pride Parade.  According to the complaint (full text) in Hudspeth v. Whatcott, (Ont. Super. Ct., filed 8/11/2016), the Gay Zombies, wearing green costumes that disguised their identities, handed out 3000 flyers showing graphic pictures of sexually transmitted diseases and vilifying homosexuality.  Alleging civil conspiracy, intentional infliction of mental distress, and defamation, the suit seeks an injunction to bar defendants from future participation in or attendance at the Toronto Pride Parade; an order barring them from further distribution of the offensive flyers; and damages totaling $103 million (Canadian). Daily Xtra (Aug. 12) reported on the lawsuit.

Massachusetts Agency Says Transgender Non-Discrimination Can Apply To Some Church Events

Massachusetts Senate Bill 2407, banning discrimination on the basis of gender identity in public accommodations, becomes effective October 1. The bill also requires public accommodations to allow restroom use consistent with a person's gender identity.  Last week (Sept. 1), the Massachusetts Commission Against Discrimination released its Gender Identity Guidance (full text) setting out the Commission's interpretation of the new law. The Guidance suggests that in some situations, the anti-discrimination ban can apply to churches:

Under G.L. c. 272, § 98, places of public accommodation may not discriminate against, or restrict a person from services because of that person’s gender identity. For example, a hotel or motel may not refuse to book a room for a person because of the person’s gender identity. Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.

The Guidance adds in a footnote: "All charges, including those involving religious institutions or religious exemptions, are reviewed on a case-by-case basis." The Guidance also provides: "In the limited circumstances where it is necessary, an individual’s gender identity may be demonstrated by any evidence that the gender identity is sincerely held as a part of the person’s core identity."  Daily Caller reports on the Guidance.

Suit Says Arizona Charter School Teaches Religious Curriculum

Yesterday Americans United filed a federal court lawsuit alleging that an Arizona public charter school teaches a religiously-based required American Government course, and interjects religion in a number of other parts of its curriculum. The complaint (full text) in Doe v. Heritage Academy, Inc., (D AZ, filed 9/7/2016), alleges that the taxpayer-funded charter school with three campuses in Arizona violates the Establishment Clause as well as the Arizona constitution by providing religious education to its students.  The required American Government class is taught by the school's founder and principal, Earl Taylor, Jr., and uses materials from the National Center for Constitutional Studies-- an organization founded by Taylor. The complaint alleges in part:

In class, Taylor teaches the students that the Ten Commandments — including those that mandate worship of God — must be obeyed in order to attain happiness; that socialism violates God’s laws; and that true patriots believe in the “universal religion of all mankind,” the tenets of which ...  incorporate the beliefs of some Christian denominations.

AU issued a press release announcing the filing of the lawsuit. [Thanks to Jeff Pasek for the lead.]

Challenge To Church Governance Matters Dismissed On Ecclesiastical Abstention Grounds

In Azige v. Holy Trinity Ethiopian Orthodox Tewahdo Church, (NC App., Sept. 6, 2016), a North Carolina state appellate court dismissed on ecclesiastical abstention grounds a lawsuit by a faction of church members alleging that the church bylaws had been violated in extending the terms of certain parish council members and in taking other actions.  The court said in part:

Although plaintiffs seek to present this dispute as a simple procedural disagreement over the adoption of bylaws in accord with proper procedure, the substance of the complaint belies this claim. The amended complaint alleges that each plaintiff is “a registered member” of the church; defendants dispute their membership....

Membership in a church is a core ecclesiastical matter. The power to control church membership is ultimately the power to control the church. It is an area where the courts of this State should not become involved.... 

The issues before us would require interpretation of the bylaws which do impose doctrinal requirements. Even if a declaration of plaintiffs’ status as registered members is not specifically the issue before us, in order to determine if plaintiffs even have standing to bring the other issues or to determine if the correct number of members voted for the challenged amendments, the trial court would need to address the contested membership status...

Obama Nominates First Muslim Federal Court Judge

As reported by National Law Journal, yesterday President Obama nominated (White House announcement) Abid Qureshi, partner in the D.C. law firm of Latham & Watkins, for a federal district judgeship in the District of Columbia.  Qureshi, a Harvard Law School graduate, is the first Muslim ever nominated for a seat on a federal court. A litigator whose expertise includes white collar defense, Qureshi is also the global Chair of Latham’s Pro Bono Committee. (Bio). Muslim Advocates issued a press release commending President Obama for the nomination.

Israel's Supreme Court OK's Sabbath Rail Line Repairs

Yesterday Israel's Supreme Court sitting as the High Court of Justice stepped into the government's political battle over whether planned repairs to the country's commuter rail lines can take place on Saturdays, the Jewish Sabbath.  As reported by JTA, last week, Prime Minister Benjamin Netanyahu canceled permits issued by Transportation Minister (and political rival) Yisrael Katz that allowed the work to proceed on the Sabbath.  Katz's permits led the ultra-Orthodox parties (part of Netanyahu's coalition government) to threaten to bring down the government. Netanyahu's intervention meant that the repair work did not pick up until Saturday night and this led to traffic jams and stranded commuters on Sunday (a workday in Israel).

Following this, a left-wing lawmaker (Meretz party) filed a petition with Israel's Supreme Court seeking to get the Sabbath repairs to move ahead.  As reported by The Forward and Arutz Sheva, yesterday the Court issued an interim order barring Netanyahu from stopping urgent Saturday work.  According to the Court, the Railway Authority has been issued a permit allowing Saturday work during the entire month of September, and only the Labor Minister has authority to revoke the permit.  A special Knesset session to discuss the matter has been postponed until September 19, so that Arab members of the Knesset who will be celebrating Eid Al-Adha the week before will be able to attend.

Obama Speaks To Laotians On Human Rights and Religious Liberty

Yesterday, as part of his trip to Laos, President Obama delivered an address (full text) to the people of the country. Speaking at the Lao National Cultural Hall in Vientiane, his remarks included references both to Laos' religious and cultural heritage and to America's views on human rights:

... [I]n countless stupas and in your daily lives, we see the strength that draws -- so many of you from your Buddhist faith -- a faith that tells you that you have a moral duty to each other, to live with kindness and honesty, and that we can help end suffering if we embrace the right mindset and the right actions.  And in literature like the epic of Sinxay, we see the values that define the people of Laos, which is modesty and compassion, and resilience and hope....

I believe that nations are stronger and more successful when they uphold human rights.  We speak out for these rights not because we think our own country is perfect -- no nation is -- not because we think every country should do as we do, because each nation has to follow its own path.  But we will speak up on behalf of human rights because we believe they are the birthright of every human being.  And we know that democracy can flourish in Asia because we’ve seen it thrive from Japan and South Korea to Taiwan. 

Across this region, we see citizens reaching to shape their own futures.  And freedom of speech and assembly, and the right to organize peacefully in civil society without harassment or fear of arrest or disappearing we think makes a country stronger.  A free press that can expose abuse and injustice makes a country stronger.  And access to information and an open Internet where people can learn and share ideas makes a country stronger.  An independent judiciary that upholds the rule of law, and free and fair elections so that citizens can choose their own leaders -- these are all the rights that we seek for all people.

We believe that societies are more stable and just when they recognize the inherent dignity of every human being -- the dignity of being able to live and pray as you choose, so that Muslims know they are a part of Myanmar’s future, and Christians and Buddhists have the right to worship freely in China.  The dignity of being treated equally under the law, so that no matter where you come from or who you love or what you look like you are respected.  And the dignity of a healthy life -- because no child should ever die from hunger or a mosquito bite, or the poison of dirty water.  This is the justice that we seek in the world.

NYT: Peale Had Religious Influence on Trump

The New York Times yesterday reports on the influence of New York City's Marble Collegiate Church and its former leader, Dr. Norman Vincent Peale, on Republican presidential candidate Donald Trump.

Firing of Employee For Anointing Office With Oil Is Upheld

In Cheeley v. City of Miami, (SD FL, Aug. 10, 2016), a Florida federal district court dismissed a Title VII religious discrimination claim brought by an employee in Miami's Capital Improvements Program department.  Eric Cheeley was fired after he admitted that he had applied an oily liquid in the shape of crosses on walls, cubicles and doorways-- anointing various areas in order to bless the department. He contended that the city should have accommodated his sincerely held religious belief that he needed to anoint the office. The court concluded, however, that:

Cheeley has not presented sufficient evidence to permit a reasonable juror to find that the City could have accommodated Cheeley’s religious beliefs without undue hardship.

Yesterday's Christian Post reported on the decision.

Winery Says Zoning Restrictions On Outdoor Weddings Violate RLUIPA and Speech Rights

The Ventura County Star reported yesterday on a lawsuit filed in a California federal district court by a southern California winery challenging a Ventura County ordinance that requires conditional use permits for outdoor events, including weddings.  Six months ago the county denied Epona Estate's application for a permit to allow weddings, charitable fundraisers, luncheons and similar events at the winery.  The suit contends that the restriction on outdoor weddings violates the winery's free speech rights as well as its rights under the Religious Land Use and Institutionalized Persons Act.

Iran's Supreme Leader Questions Saudi Control of Hajj

According to today's Jerusalem Post, Iran's supreme leader Ayatollah Ali Khamenei has questioned Saudi Arabia's continued control of the hajj  pilgrimage.  Last year over 2000 pilgrims, many of them Iranians, died in a crush of crowds outside Mecca. (See prior posting.) Iran is a regional rival of Saudi Arabia, and this year talks on arrangement for Iranians to make the hajj broke down.  No Iranians will attend this year. (See prior posting.)  A message on Khamenei's website reads:

Because of these (Saudi) rulers' oppressive behavior towards God's guests (pilgrims), the world of Islam must fundamentally reconsider the management of the two holy places and the issue of haj.

The hajj is projected to begin on September 9.

Recent Articles of Interest

From SSRN:

• Marjorie A. Silver, Preface and Introduction: Transforming Justice, Lawyers and the Practice of Law, (Carolina Academic Press, 2016, Forthcoming).
• Adam Shinar, Religion and the Construction of the Urban Landscape, (Private Communities and Urban Governance 215 (Amnon Lehavi ed., Springer, 2016)).
• Mohammed Dejen Assen, Contested Secularism in Ethiopia: The Contention between Muslims and the Government, (May 26, 2016).
• Ira C. Lupu & Robert W. Tuttle, The Mystery of Unanimity in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, (Forthcoming, 20 Lewis & Clark L. Rev, Issue #4, in Symposium, Law and Religion in an Increasingly Polarized America).
• Paula A. Monopoli, Inheritance Law and the Marital Presumption after Obergefell, (8 Estate Planning & Community Property Law Journal 437 (2016)).
• Iginio Gagliardone, et.al., Mechachal: Online Debates and Elections in Ethiopia - From Hate Speech to Engagement in Social Media, (May 1, 2016).
• Ji Ma & Sara Konrath, Thirty Years of Nonprofit Research: Scaling the Knowledge of the Field 1986-2015, (September 2, 2016).

From SmartCILP:

• Amy Barrow, Contested Spaces During Transition: Regime Change in Myanmar and Its Implications for Women, 22 Cardozo Journal of Law & Gender 75-108 (2015).

Note To Readers: Comment Feature Disabled

This summer, Religion Clause has been inundated with Comments from spammers, and to a lesser extent, from trollers.  Therefore I have joined the trend among serious websites and have reluctantly disabled the Comment feature on this blog.  I invite readers who have corrections or fairness concerns relating to any post to communicate with me by e-mail at the link in the sidebar, or via Twitter.  And I thank those readers who have in the past posted serious and substantive comments.--- HMF

Recent Prisoner Free Exercise Cases

In Quick v. Annucci, 2016 U.S. Dist. LEXIS 115217 (ND NY, Aug. 29, 2016) a New York federal district court allowed a Muslim inmate to move ahead against the prison superintendent with his complaint that he was denied the cold alternative diet and was told it was only available to Jewish inmates.

In Lindh v. Warden, Federal Correctional Institution, 2016 U.S. Dist. LEXIS 116243 (SD IN, Aug. 30, 2016), an Indiana federal district court enjoined a federal prison under RFRA from conducting a visual strip search of a Muslim inmate as a pre-condition for a non-contact visit in the communications management housing unit.

In Meece v. Ballard, 2016 U.S. Dist. LEXIS 116364 (WD KY, Aug. 30, 2016), a Kentucky federal district court denied a preliminary injunction to a Reform Jewish inmate who claimed his free exercise rights were substantially burdened when he was removed from the kosher diet program for purchasing food inconsistent with Orthodox Jewish kosher rules, but not with Reform Jewish practices for kosher diets.

In Brown v. Clarke, 2016 U.S. Dist. LEXIS 117017 (WD VA, Aug. 31, 2016), a Virginia federal district court referred to mediation a Muslim inmate's claim that he was wrongly removed from the Common Fare diet for six month.

In Percival v. Stuhler, 2016 U.S. Dist. LEXIS 117129 (WD MI, Aug. 31, 2016), a Michigan federal district court dismissed an inmate's complaint that he was not allowed to attend group worship while he was in toplock for misconduct.

In Mohammed v. Daniels, 2016 U.S. Dist. LEXIS 117201 (ED NC, Aug. 31, 2016), a North Carolina federal district court dismissed as unproven a Muslim inmate's claim that he was denied access to his Quran during Ramadan. It also dismissed his complaint that he was not allowed to make a telephone call to the chaplain.

B.L. v. Zong, 2016 U.S. Dist. LEXIS 117509 (MD PA, Aug. 30, 2016), is a suit by a male inmate charging a female correctional officer with an extensive pattern of sexual predation.  Defendants did not move to dismiss plaintiff's claim that he was forced to engage in sexual activity that violated his religious tenets.  However a Pennsylvania federal magistrate judge recommended dismissing claims against others relating to plaintiff's work assignment that allowed the predation to occur and eventual transfer to another institution that briefly interfered with plaintiff's religious exercise.

In Burley v. Ball, 2016 U.S. Dist. LEXIS 117971 (WD MI, Sept. 1, 2016), a Michigan federal district court disagreed with a magistrate's recommendation (2016 U.S. Dist. LEXIS 118338, Aug. 12, 2016) and dismissed a Jewish inmate's complaint that the chaplain denied him a transfer to another facility where he could participate in a Passover seder and obtain food that was kosher for Passover.

In Johnson v. Roskosci, 2016 U.S. Dist. LEXIS 118804 (MD PA, Sept. 2, 2016), a Pennsylvania federal district court allowed an inmate to move ahead with his complaint under the free exercise clause that his religious cultural beads were taken from him because they did not have crosses on them. The court dismissed with leave to amend his retaliation as well as his 8th and 14th Amendment claims.

In Robinson v. Cameron, 2016 U.S. Dist. LEXIS 119090 (WD PA, Sept. 1, 2016), a Pennsylvania federal magistrate judge recommended dismissing an inmate's complaint that his religious rights are substantially burdened by the requirement that in order to participate in the sex offender program he must admit guilt. Plaintiff says his religious belief is that confession is to be made only to God.

Obama Presses China's Xi On Religious Freedom

President Obama is in China for the Sept. 4-5 G-20 Summit.  (See prior posting.) Today he met with China's President Xi, and the White House released a Readout of the President’s Meeting with President Xi Jinping of China which included the following:

The President reiterated America’s unwavering support for upholding human rights in China and stressed the need for China to protect religious freedom for all of its citizens.

IRS Adopts Final Rules Recognizing Same-Sex Marriages For Tax Purposes

Yesterday the Internal Revenue Service published in the Federal Register a release (full text) adopting final rules recognizing same-sex marriages for federal tax purposes. The new rules provide in part:

[A] marriage of two individuals is recognized for federal tax purposes if the marriage is recognized by the state, possession, or territory of the United States in which the marriage is entered into, regardless of domicile....

Two individuals who enter into a relationship denominated as marriage under the laws of a foreign jurisdiction are recognized as married for federal tax purposes if the relationship would be recognized as marriage under the laws of at least one state, possession, or territory of the United States....

The terms spouse, husband, and wife do not include individuals who have entered into a registered domestic partnership, civil union, or other similar formal relationship not denominated as a marriage under the law of the state, possession, or territory of the United States where such relationship was entered into....

Church's RLUIPA Claim Dismissed, But Defamation Claim Moves Forward

In Riverside Church v. City of St. Michael, (D MN, Aug. 31, 2016), a Minnesota federal district court dismissed a church's RLUIPA and free exercise claims, but allowed the church to proceed on its free speech and defamation claims. A Christian and Missionary Alliance congregation attempted to purchase a building formerly used as a movie theater but could not obtain city zoning approval.  Eventually the city amended its zoning ordinance to allow religious assemblies, among others, in the relevant zoning district.  The Church however sued over the past zoning denials, and over an allegedly false public statement the city made as to why the Church withdrew from negotiations with the city.  In dismissing the Church's RLUIPA claim, the court concluded that neither the substantial burden nor equal terms provisions of the law were violated.  The court also pointed to a less-often used safe-harbor provision in RLUIPA that allows the city to "avoid the pre-emptive force" of the statute by taking action to eliminate the substantial burden imposed by a policy.  In allowing the Church's free speech claim to proceed, the court concluded that questions remained as to whether the ban on religious assemblies in the relevant zoning district was narrowly enough tailored to the city's traffic safety concerns.

President Appoints Delegation To Canonization of Mother Theresa

President Obama yesterday announced the appointment of a delegation to represent the United States at the Canonization ceremony for Mother Teresa in the Vatican on September 4.  The delegation will be headed by Assistant to the President for Homeland Security and Counterterrorism, Lisa Monaco.  It also includes U.S. Ambassador to the Vatican Kenneth Hackett; National Security Council Executive Secretary Suzy George; CEO of Catholic Charities Sister Donna J. Markham; and CEO of Catholic Relief Services Dr. Carolyn Y. Woo.

Court Refuses To Dismiss Abortion Buffer Zone Challenge, But Denies Preliminary Injunction

In Reilly v. City of Harrisburg, (MD PA, Aug. 31, 2016), a Pennsylvania federal district court refused to grant a preliminary injunction to bar enforcement of a Harrisburg, Pennsylvania ordinance that provides for a 20-foot buffer zone around health care facilities to protect women seeking to access to abortion clinics from picketers and sidewalk counselors.  The court however refused to dismiss some of plaintiffs' challenges to the law.  In particular the court allowed plaintiffs to move ahead with their claims that the ordinance is not narrowly tailored and that it is overbroad.  The court rejected several other challenges including free exercise, vagueness and prior restraint claims.

French Official Proposes New Efforts To Align Muslims With French Secular Values

Al Jazeera reports that in France on Monday, Muslim leaders met with Interior Minister Bernard Cazeneuve to discuss the future of Islam in the country. The Interior Minister wants to set up three new organizations to help French Muslims align their beliefs with the secular values of France. One of the organizations would focus on integration of the Muslim faith, the second on the building of mosques, and the third on Imams. Imams would be required to use French instead of Arabic for their sermons, and they would need to "understand French values".  The move comes in the wake of new tensions in the country over full-body swim suits worn by Muslim women. (See prior posting.)

U.S. Pressure On China Over Religious Freedom As Obama Heads There For G20

On Sept. 4-5, President Obama will attend the G20 Summit in Hangzhou, China. (Yahoo News).  Yesterday the U.S. Commission on International Religious Freedom issued a statement (full text) urging the President to raise religious freedom concerns with China's President Xi and asking him to press for the release of prisoners of conscience.  This follows a White House meeting on Tuesday by National Security Advisor Susan E. Rice with Chinese human rights advocates to discuss religious freedom and other human rights issues in China. (White House statement).

Egypt Passes Church Construction Law

Egypt's Parliament yesterday approved a new law governing the building and renovation of Christian churches. 10% of Egypt's population is Coptic Christian.  Reuters reports that the law allows provincial governors (instead of the security services) to approve or deny church building and renovation permits. Coptic Church officials see then new law as progress, but Christian activists would have preferred a unified law governing both mosque and church construction. Restrictions in the new law are still more extensive than those which apply to mosque construction.   In the past, suspected Christian church building has led to sectarian riots.

Suit Charges Discriminatory Application of Driver's License Photo Accommodation

The ACLU yesterday filed a federal lawsuit against the Lee County, Alabama officials in charge of issuing drivers' licenses claiming that they are unconstitutionally administering the state's religious accommodation provision allowing head coverings in license photos.  The complaint (full text) in Allen v. English, (MD AL, filed 8/30/2016, alleges that plaintiff Yvonne Allen is a devout Christian who as part of her religious practice covers her hair with a headscarf.  When Allen requested to wear her head covering for her license photo, officials told her that the religious accommodation for head coverings only applies to Muslims.  The suit alleges that this practice violates the religion clauses of the federal and state constitutions. ACLU issued a press release announcing the filing of the lawsuit.

FOIA Suit Seeks All State Department Records On Combating Genocide

Yesterday, a conservative civil rights and religious liberty advocacy group filed a lawsuit seeking to enforce its Freedom of Information Act request for all State Department records and communications reflecting efforts to carry out the terms of the Genocide Convention, to hold ISIS accountable for atrocities it has committed, and to respond to the ISIS genocide of Christians.  The complaint (full text) in American Center for Law & Justice v. U.S. Department of State, (D DC, filed 8/30/2016), sets out in 22 paragraphs the scope of the records sought in its July 18 FOIA request sent to the State Department, and adds that the State Department "has a reputation for flaunting and disregarding its public accountability and FOIA obligations." The lawsuit follows actions by ACLJ in recent weeks pressing the United Nations to take action to respond to ISIS genocide against Christians and others.

So Far, 6 Charged Under Russia's New Law Limiting Missionary Activities

As previously reported, in July Russia's President signed into law new anti-terrorism legislation that, among other things, banned preaching, praying, proselytizing, and disseminating religious materials outside of officially-designated locations.  Last week, Forum 18 reported that so far six people have been charged under the new limits on missionary activity. Two Baptists, and a third person merely identified as Protestant, have had fines imposed on them.  A Hare Krishna adherent was acquitted.  Charges against two others-- a Pentecostal and a Seventh Day Adventist-- are still pending.  The Forum 18 posting has extensive details on each case.

Court Issues Narrow Preliminary Injunction Against North Carolina's Transgender Bathroom Access Law

In an 83-page opinion handed down last week, a North Carolina federal district court issued a narrow preliminary injunction preventing enforcement North Carolina's transgender bathroom access law against two students and one employee of the University of North Carolina.  In Carcano v. McCrory, (MD NC, Aug. 26, 2016), the court concluded that the provisions requiring transgender individuals to use school bathrooms, locker rooms and showers corresponding to the biological sex listed on their birth certificate likely violate Title IX as interpreted by the U.S. Department of Education and upheld by the 4th Circuit.  In reaching its conclusion, the court relied heavily on evidence that the prior practice of dealing with bathroom use by transgender students on a case-by-case basis had worked well.

The court however rejected plaintiffs' contention that the North Carolina law violates the equal protection clause, saying in part:

it appears that the privacy interests that justify the State’s provision of sex-segregated bathrooms, showers, and other similar facilities arise from physiological differences between men and women, rather than differences in gender identity....

The court reserved judgment on plaintiffs' substantive due process claims relating to informational privacy and unwanted medical treatment.  Baptist Press reports on the decision.

According to AP, plaintiffs yesterday filed an appeal with the 4th Circuit on the equal protection issue.

Appeals Court Refuses To Dismiss Suit Over Entitlement To Mosque Property

In United Islamic Society v. Masjed Abubakr Al-Seddiq, Inc., (MN App. Aug. 29, 2016), a Minnesota state appellate court affirmed a trial court's refusal to dismiss a suit over ownership of mosque property because "it is premature to decide that resolution of this case will necessarily involve improper government entanglement with religion."  The suit involves a dispute between two non-profit corporations over which one is is the rightful beneficiary of properties held in trust for the benefit of the Rochester, Minnesota Muslim community.  The court said in part:

A determination of whether this case can be resolved using neutral principles of law depends upon a close reading of UIS’s civil complaint and trust petition. In its civil complaint, UIS makes no mention of any religious doctrine and does not request relief for religious reasons. UIS instead requests a determination that it is the intended beneficiary of the trust based on the lease, warranty deeds, meeting minutes, and MAAS resolution....

Defendants argued that because the transfer of the properties to the North American Islamic Trust included a requirement that the properties are to be held in "waqf," the court will need to interpret the meaning of waqf, a religious term, to resolve the dispute.  The appellate court however disagreed, saying:

If the district court declares the declaration of trust valid, there appears to be no reason to interpret or analyze “waqf.” Similarly, if the district court declares the declaration of trust invalid ... a beneficiary determination likely depends on testimony and the documents in the record regarding the parties’ intent, which may include, among others, the warranty deeds that reference “Waqf (Islamic trust).” ...The limited information in the record about “waqf” simply does not suggest that a doctrinal analysis of “waqf” will be necessary to or dispositive of a beneficiary determination.

The court also rejected the argument that the case should be dismissed because of an arbitration clause in the declaration of trust, saying:

Because appellants did not invoke the arbitration clause in the declaration of trust until MAAS and NAIT’s summary-judgment motion, which was filed more than two years after the start of UIS’s civil action and after extensive litigation in both cases, we conclude that the district court’s finding that appellants waived their right to invoke the arbitration clause is not clearly erroneous.

Recent Articles, Books and Upcoming Conference of Interest

From SSRN:

• Jeffrey Benjamin Meyers, Nietzsche and the Law of the ‘The Other’: The Jew in Refraction, (August 19, 2016).
• Carl J. Minniti, The Lanham Act's Unconstitutional Hodgepodge, (17 Rutgers Journal of Law and Religion 315, 2016).
• Claudia E. Haupt, Unprofessional Advice, (University of Pennsylvania Journal of Constitutional Law, Vol. 19, 2017).
• Evelyn Aswad, The Role of U.S. Technology Companies as Enforcers of Europe's New Internet Hate Speech Ban, (Forthcoming in Columbia Human Rights Law Review Online).
• Dr. R.N. Mangoli &Tanushri Anchan, Honour Based Violence: A Threat to Humanity, (August 23, 2016).
• Eduardo M. Penalver, Laura Spitz, Elizabeth Brundige & Lucia Domínguez Cisneros, U.S. Nonprofit Activity in Cuba: The Cuban Context, (Cornell Legal Studies Research Paper No. 16-31, 2016).

Recent & Forthcoming Books:

• Nelson Tebbe, Religious Freedom in an Egalitarian Age, (Harvard Univ. Press, Jan. 2017).
• Harvey Cox, The Market as God, (Harvard Univ. Press, Sept. 2016).
• Finbarr Curtis, The Production of American Religious Freedom, (NYU Press, Aug. 2016).
• Robert W. Hefner (ed.), Shari'a Law and Modern Muslim Ethics, (Indiana Univ. Press, Aug. 2016).
• Robert Schmuhl, Fifty Years with Father Hesburgh-- On and Off the Record, (Univ. of Notre Dame Press, Aug. 2016).

Upcoming Conference:

• 2016 Conference of Religiously Affiliated Law Schools, Regent University, Sept. 29-30.

Court Upholds California's Removal of Belief Exemption From Vaccination Requirement

In Whitlow v. State of California, (SD CA, Aug. 26, 2016), a California federal district court refused to grant a preliminary injunction against California's recently enacted SB 277 , a law requiring school students (other than those being home-schooled) to be immunized against ten specific diseases, and removing the state's prior exemption for those whose personal beliefs oppose immunization. The court said:

it is clear that the Constitution does not require the provision of a religious exemption to vaccination requirements, much less a PBE.

San Diego Union Tribune reports on the decision. [Thanks to Scott Mange for the lead.]

Recent Prisoner Free Exercise Cases

In Daker v. Warren, (11th Cir., Aug. 22, 2016), the 11th Circuit reversed and remanded the district court's dismissal of a Muslim inmate's free exercise challenge (but not his RLUIPA challenge) to a total ban on hardcover books and the dismissal of his RLUIPA challenge (but not his free exercise challenge) to holding religious services only on Wednesdays.

In Berger v. Burl, 2016 U.S. Dist. LEXIS 111380 (ED AR, Aug. 22, 2016), an Arkansas federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 111559, Aug. 5, 2016) and dismissed an an atheist inmate's claim that his rights were infringed when he was not allowed to grow a beard and long hair for non-religious reasons while others were permitted to do so for religious reasons.  The court allowed him to proceed on his complaint that a Christian group was allowed to line up outside his cell to sing and preach when he was placed in lock down.

In Robertson v. Call, 2016 Kan. App. Unpub. LEXIS 682 (KS App., Aug. 19, 2016), a Kansas appellate court affirmed dismissal of a free exercise challenge by a Messianic Jewish inmate to a rule that prevents prisoners in segregation from having face-to-face meetings with their spiritual advisers.  The court remanded for further findings an Establishment Clause challenge to the rule.

In Martin v. MacLaren, 2016 U.S. Dist. LEXIS 112812 (WD MI, Aug. 24, 2016), a Michigan federal district court adopted a magistrate's recommendation and dismissed an inmate's complaint that he was denied access to his book titled "The Fundamentals of the Yoruba Religion (Orisa Worship)."

In Al-Azim v. Everett, 2016 U.S. Dist. LEXIS 113109 (ED VA, Aug. 23, 2016), a Virginia federal district court allowed an inmate to move ahead with his complaint that he was not receiving meals that complied with Nation of Islam dietary requirements. However the court dismissed his complaints about the need for more time for group religious activities and his inability to purchase CDs of Minister Farrakhan's sermons directly from the Final Call, Inc.

In Blalock v. Smith, 2016 U.S. Dist. LEXIS 114215 (ND NY, Aug. 24, 2016), a New York federal magistrate judge recommended that a Muslim inmate be allowed to proceed with his complaint that he was not permitted to wear his pants hemmed above the top of his ankle as religiously required; but recommended dismissing complaints over his inability to attend two congregate prayer services and over a cell search that confiscated religious books.

In Greene v. County of Durham Office of the Sheriff Department, 2016 U.S. Dist. LEXIS 114425 (MD NC, Aug. 26, 2016), a North Carolina federal district court permitted a Muslim inmate to proceed with a claim that arose when he was a pre-trial detainee that he was denied access to the day room for Islamic studies, but dismissed for failure to exhaust administrative remedies his complaint that his Ramadan meal was thrown away and he was not given a replacement.

Texas Anti-SLAPP Law Does Not Protect Free Exercise Rights

In Davis v. Mount Gilead Baptist Church, (TX App., Aug. 25, 2016), a Texas state appellate court held that Texas' anti-SLAPP statute-- designed to prevent the use of frivolous suits to chill speech rights-- only applies to suits filed in response to defendant's exercise of free speech, right of petition or right of association.  It does not apply to suits that respond to free exercise of religion.

Legislative Scorecard On Issues Important To Non-Theists Released

The Center for Freethought Equality last week released its scorecard for U.S. House members in the 114th Congress on seven votes of importance to secular and non-theistic Americans. In releasing the scorecard, CFE said in part:

Representatives were scored based on their voting records on legislation that either bolstered or weakened the separation of church and state. The scorecard included legislators’ co-sponsorship for the Darwin Day Resolution (H.Res. 548), which would recognize February 12 as a celebration of the accomplishments of naturalist Charles Darwin while opposing the teaching of creationism and intelligent design in public schools....

Of all the legislators ranked, Rep. Judy Chu (CA-27) and Rep. Mike Honda (CA-17) had the highest scores.

Denial of Zoning Variance To Yeshiva Violates RLUIPA

In Yeshiva Gedolah Na'os Yaakov v. Township of Ocean NJ, (D NJ, Aug. 25, 2016), a New Jersey federal district court held that that Ocean, New Jersey's Zoning Board of Adjustment violated RLUIPA when it denied a use variance to allow plaintiffs to operate a Jewish post-high school yeshiva.  Making findings about the school's code of conduct for its students, the court ordered the township to grant approval of use of the building for a school of up to 80 students (less than the 96 the school wanted), subject to a detailed list of improvements and changes to the property. Reporting on the decision, Asbury Park Press quoted plaintiffs' attorney who said in a prepared statement:

Zoning regulation should never be used as a tool to accommodate the unreasonable fears and prejudice of small-minded individuals desperate to keep a certain population out of their neighborhoods.

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.

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.

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.]

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.

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.

Recent Articles and Book of Interest

From SSRN:

• Stephen R. Munzer, Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy, (37 University of Pennsylvania Journal of International Law 503-81 (2015)).
• Ran Hirschl, Early Engagements with the Constitutive Laws of Others: Possible Lessons from Pre-Modern Religious Law, (Law & Ethics of Human Rights 10 (2016): 71-108).
• Teri Dobbins Baxter, From Influenza to Ebola: Legal and Business Implications of Employer-Mandated Vaccination Policies, (July 25, 2016).
• Kim H. Pearson, Innate Religious Identity, (84 UMKC L. Rev. 803 (2016)).
• Roderick M. Hills, Jr., Decentralizing Religious and Secular Accommodations,(Institutionalizing Rights and Religion: Competing Supremacies, Leora F. Batnitzky & Hanoch Dagan eds., (Cambridge University Press, 2017 Forthcoming)).
• Amos A. Israel-Vleeschhouwer, Jewish Law and Space: Symbolic Fencing (Eruv), Public Presence (Parhesia) and Borders, (August 15, 2016).
• Andrew Koppelman, Kathleen Brady, the Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence, (Journal of Religion, Forthcoming).

From SSRN (Islamic Law);

• Adnan Zulfiqar, Revolutionary Islamic Jurisprudence: A Restatement of the Arab Spring, (New York University Journal of International Law and Politics, Forthcoming).
• Michelle Burgis-Kasthala, How Should International Lawyers Study Islamic Law and Its Contribution to International Law?, (RegNet Research Paper No. 2016/113 (2016)).
• Waeibrorheem Waemustafa & Suriani Sukri, Syari’Ah Compliance and Lawful Profit Making Dilemma in Malaysian Islamic Banks, (August 16, 2016).

From SmartCILP:

• Nathan Lee, Convert or Die: Forced Religious Conversions and the Convention on the Prevention and Punishment of the Crime of Genocide, 47 Georgetown Journal of International Law 573-606 (2016).

New Book:

• Thomas C. Berg, The State and Religion in a Nutshell, Third Edition, (West, Sept. 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.

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.

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.