Nevada Supreme Court Upholds School Choice Plan, But Invalidates Appropriations For It

In Schwartz v. Lopez, (NV Sup. Ct., Sept. 29, 2016), the Nevada Supreme Court gave a mixed victory to opponents of the state's school choice program.  The state's Educational Savings Account program is the most extensive in the country.  It allows parents of any child who has attended a public or charter school for at least 100 days to receive into an educational savings account a portion of the state's public school funding for use at an eligible alternative private (including religious) school. (See prior posting.) The Court held that the plan does not violate Art. 2, Sec. 11 of the Nevada Constitution that requires the legislature to provide for a uniform system of common schools. Nor does it violate Art. 11, Sec. 10 that prohibits use of public funds for sectarian purposes since the funds cease being public funds when deposited in a parent's educational savings account.

The Court however held that no valid appropriation had been made by the legislature to fund the Educational Savings Account program.  The state is using funds appropriated for public schools. Therefore the Court remanded to the trial courts the two cases under review ordering the issuance of declaratory judgments and permanent injunctions against implementing the Educational Savings Account program until the legislature makes a valid appropriation to cover its costs.

Justices Douglas and Perry dissented in part contending that the Court should not have reached the issue of whether the plan violates Art. 11, Sec. 10's prohibition on use of public funds for sectarian purposes. Las Vegas Sun reports on the decision.

Two RLUIPA Suits Over Rezoning For Islamic School Are Settled

According to the Ann Arbor News, Pittsfield Township, Michigan yesterday reached agreements to settle two related RLUIPA lawsuits challenging the township's refusal to rezone a vacant parcel of land for construction of a pre-K through 12 school by the Michigan Islamic Academy. One suit was brought by the Justice Department (see prior posting). The Consent Order (full text), which must still be approved by the court, is described in a DOJ press release:

As part of the settlement, the township has agreed to permit MIA to construct a school on the vacant parcel of land, to treat the school and all other religious groups equally and to publicize its non- discrimination policies and practices [by signage and on the Internet].  The township also agreed that its leaders and various township employees will attend training on the requirements of RLUIPA.  In addition, the county will report periodically to the Justice Department.

The other suit was brought by the Michigan Islamic Academy (see prior posting).  In settling that suit, Pittsfield Township's insurers will pay $1.7 million in damages and attorneys' fees.  CAIR-MI described this as "one of the largest-ever RLUIPA settlements."  As part of the settlement, Michigan Islamic Academy agreed to add a residential development with "significant landscape buffering" between the school and adjacent residential lots.

Muslim Palestinian Teacher's Discrimination Claims Survive Motion To Dismiss

In Hashem v. Hunterdon County, (D NJ, Sept. 20, 2016), a New Jersey federal district court refused to dismiss certain claims by a New Jersey high school history teacher that her school and her supervisors discriminated and retaliated against her on the basis of religion, race and national origin.  The teacher, Sireen Hashem, a Muslim Arab of Palestinian descent, was reprimanded for showing a video, at the suggestion of another teacher who had also shown it, featuring the young Nobel laureate Malala Yousafzai, the Pakistani girl's education advocate. Subsequently Hashem's contract was not renewed.  According to the court:

Hashem alleges that she was instructed not to "teach current events in the same manner as her non-Arab, non-Palestinian and non-Muslim colleagues." ...On a separate occasion, Hashem was allegedly told "not [to] mention Islam or the Middle East in her class, and that she "should not bring her culture, life experience or background into the classroom."

While dismissing a number of her claims, the court allowed the teacher to move ahead with claims for employment discrimination, disparate treatment, retaliation and discriminatory discharge.

Baptist Joint Committee Appoints New Executive Director

In a press release issued earlier this week, the Baptist Joint Committee for Religious Liberty announced that it has chosen Amanda R. Tyler as its next executive director. She will replace Brent Walker who is retiring.  The Baptist Joint Committee is a D.C.-based advocacy group that promotes both religious liberty and separation of church and state.

Appeals Court Upholds Ban On Father Discussing Religion During Child Visitation

In Koch v. Koch, (FL App., Sept. 28, 2016), a Florida state appellate court upheld a trial court's order in a parenting plan that was part of a divorce proceeding prohibiting the father from discussing any religious matters during his two hours per week visitation time with his 3 children.  The trial court had concluded that religiously-based admonishments, threats of damnation, and demonization of the children’s mother was abusive to the children, causing them anxiety and severe emotional distress.

Jewish Religious Court Lacks Standing To Appeal Bankruptcy Stay of Its Proceedings

As previously reported, last year a New York federal bankruptcy court held that the statutory automatic stay of proceedings against a debtor that is triggered by the filing of a petition in a bankruptcy reorganization applies to invalidate proceedings against a debtor and its principals brought in a Jewish religious court (bais din). In In re Congregation Birdchos Yosef, (SD NY, Sept. 27, 2016), a New York federal district court dismissed for lack of standing an appeal of the bankruptcy court's decision brought by the Jewish religious court involved:

 Any effect on the Bais Din from that decision is indirect, seeks to challenge orders directed at third parties, and is insufficient to confer standing.....

Appellant argues that “[t]he Bais Din is a gatekeeper who ensure [sic] that community members can seek to enforce community standards and Jewish law,” and that the Bankruptcy Court’s Order enforcing the automatic stay “interferes with this function.”... This contention underscores the lack of any direct, financial impact the Bankruptcy Court’s Order has had – or could have – on the Bais Din....

That the Bais Din claims that its or its constituents’ constitutional right to the free exercise of religion was impaired by the Bankruptcy Court’s ruling does not give it standing.

Supreme Court Calendar Adjusted This Year For Jewish High Holidays

National Law Journal reports that the U.S. Supreme Court has adjusted its argument calendar to accommodate the Jewish High Holidays which this year come in early October.  The first day of Rosh Hashana falls on Oct. 3-- the first Monday in October.  While 28 USC Sec. 2 requires the Supreme Court to begin its term on the first Monday in October, this year the Court will only hold a brief session that day for announcements and swearing in new members of the Supreme Court bar. The Court also will not sit at all on Yom Kippur, October 12.  Currently 3 Justices are Jewish-- Justices Ginsburg, Breyer, Kagan.  Supreme Court nominee Merrick Garland is also Jewish.

Islamist Sentenced By International Criminal Court For Destruction of Religious Sites In Mali

In In the Case of  The Prosecutor v. Ahmad Al Faqi Al Mahdi, (ICC,  Sept. 27, 2016), a trial chamber of the International Criminal Court sitting in The Hague unanimously found Ahmad Al Faqi Al Mahdi guilty of war crimes for directing attacks against religious and historic buildings-- primarily mausoleums that were UNESCO World Heritage sites-- in Timbuktu, Mali in 2012. The Chamber sentenced Al Mahdi, leader of a morality brigade known as the Hesbah, to 9 years in prison.  A summary issued by the International Court sets out background:

In early April 2012, following the retreat of Malian armed forces, the groups Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM) took control of Timbuktu. From then until January 2013, Ansar Dine and AQIM imposed their religious and political edicts on the territory ... the Hesbah....

The mausoleums of saints and mosques of Timbuktu are an integral part of the religious life of its inhabitants.... These mausoleums are frequently visited by the residents – they are places of prayer and, for some, places of pilgrimage....

Mr. Al Mahdi expressed his opinion that all Islamic jurists agree on the prohibition of any construction over a tomb, but recommended not destroying the mausoleums so as to maintain relations between the population and the occupying groups. Nevertheless, Ag Ghaly [the Ansar Dine leader] gave the instruction to proceed.... Despite his initial reservations, Mr Al Mahdi accepted to conduct the attack without hesitation on receipt of the instruction.... He ... wrote a sermon dedicated to the destruction of the mausoleums, which was read at the Friday prayer at the launch of the attack. He personally determined the sequence in which the buildings were to be attacked.

The International Criminal Court issued a press release announcing the decision. AP reports on the case.

City Seeks To Ban Elaborate Christmas Display

In Plantation, Florida, the city-- citing code violations-- is asking a Broward County court to enjoin Mark and Kathy Hyatt from erecting the elaborate Christmas display that they have put up at their home for the last 23 years.  According to WSVN News yesterday, the Hyatts' neighbors complain that the display draws thousands to the neighborhood each year between Thanksgiving and the end of December, creating noise, litter and severe traffic problems.

State High School Athletic Association Sued Over Its Refusal To Allow Broadcast of Pre-Game Prayers

In Tampa, Florida yesterday, a Christian high school filed a lawsuit in federal district court against the Florida High School Athletic Association (FHSAA) which refused to allow the school to use the loudspeaker at a state football championship game for pre-game prayer.  The complaint (full text) in Cambridge Christian School v. Florida High School Athletic Association, (MD FL, filed 9/27/2016), alleges that both Cambridge Christian and its opponent at the game, another private Christian school, wanted to lead students, teacher and fans in communal prayer before the game.  FHSAA, the state agency that supervises and regulates interscholastic athletics for both public and private schools in Florida, refused on the ground that as a state agency, it could not legally grant permission of this kind, especially since the stadium in which the championship game was being played is a public facility paid for mostly by tax dollars. The teams ended up praying together on the field, but could not be heard by spectators and fans.

The school contends that the refusal to allow it to use the loudspeaker for prayer, while it is available for non-religious messages and cheer leading before, during and after the game, violates its rights under the free exercise, free speech and establishment clauses of the state and federal constitutions as well as under the Florida Religious Freedom Restoration Act. Tampa Bay Times reports on the filing of the lawsuit.

Preliminary Injunction Denied In Challenge To Grants To Churches

Americans United reported Monday that a Massachusetts state trial court has denied a preliminary injunction in Caplan v. Town of Acton, Massachusetts, a suit challenging the town's approval of three Community Preservation grants to restore core facilities and religious imagery of two active local churches. (See prior posting.) Plaintiffs contended that the grants violate the Anti-Aid provision of the Massachusetts constitution.

Catholic Order Sued For Release of Records of Abusive Priests

AP reports on a lawsuit filed in Cook County Illinois Circuit Court on Monday against  a Chicago-based religious order, the Claretians Missionaries, seeking release of all records relating to allegations of abuse by any of its priests.  The suit was filed by Eric Johnson, a 51-year old Colorado man who says that he was abused over 40 years ago by a 15-year old boy, Bruce Wellems, who later became a prominent Claretian priest known for his work with at-risk youths. In the 1990's the Claretians promised Johnson that they would closely monitor Wellems and not allow him access to children unless another adult was present.  Johnson filed suit when the Claretians did not follow through on that promise.

Suit By Web Designer Challenges LGBT Anti-Discrimination Law

Last week, Lorie Smith, the owner of a Colorado graphic and web design company, filed suit in federal district court challenging the constitutionality of Colorado's public accommodation anti-discrimination law.  The complaint (full text) in 303 Creative LLC v. Elenis, (D CO, filed 9/20/2016) alleges that the anti-discrimination provisions as they apply to plaintiffs violate various provisions of the 1st and 14th Amendments, including the free exercise clause.  The complaint alleges:

7. Colorado law makes it unlawful for Lorie and 303 Creative to publish, display, or mail any communication stating that they will not design, create, or publish websites celebrating same-sex marriages. See Colo. Rev. Stat. § 24-34-601(2)(a).

8. Colorado law also makes it unlawful for Lorie and 303 Creative to publish, display, or mail any communication indicating that a person’s patronage at 303 Creative is “unwelcome, objectionable, unacceptable, or undesirable” because of sexual orientation. See Colo. Rev. Stat. § 24-34-601(2)(a).

9. Therefore, Lorie and 303 Creative cannot explain on 303 Creative’s website their religious belief that God designed marriage as an institution between one man and one woman and why they cannot create wedding websites promoting and celebrating any other conception of marriage.

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

Court Requires School To Allow Transgender 5th Grader To Use Bathrooms Matching Her Gender Identity

In Board of Education of Highland Local School District v. U.S. Department of Education, (SD OH, Sept. 26, 2016), an Ohio federal magistrate judge granted a preliminary injunction to a fifth grade transgender girl requiring her school to allow her to use the girls' restroom.  The court found that she was likely to succeed on her Title IX and equal protection claims, saying in part:

the Sixth Circuit, as well as several other courts of appeals, have held that sex-discrimination claims based on gender noncomformity are cognizable under Title IX’s close cousin, Title VII.

Finding that heightened scrutiny is called for on plaintiff's equal protection claim, the court said in part:

Amici from school districts in twenty states around the country ... provide further support for the Court’s conclusion that Highland cannot show that allowing a transgender girl to use the girls’ restroom would compromise anyone’s privacy interests. When they adopted inclusive policies permitting transgender students to use bathrooms and locker rooms that correspond with their gender identity, all of these school districts wrestled with the same privacy concerns that Highland now asserts.... The school administrators agreed that although some parents opposed the policies at the outset, no disruptions in restrooms had ensued nor were there any complaints about specific violations of privacy.

The court conversely denied the school's motion for a preliminary injunction to prevent federal agencies from enforcing their interpretation of Title IX.

EEOC Sues Over Hospital's Requirement For Clergy Certification To Grant Religious Accommodation

AP reports that the EEOC filed a religious discrimination lawsuit in a Pennsylvania federal district court last Thursday charging that Erie (PA)'s St. Vincent Hospital wrongfully fired six employees who refused for religious reasons to get flu shots.  At issue is the hospital's requirement that for employees to obtain religious exemptions from the requirement, they must present a certification from a member of the clergy.  The six employees who did not provide proof of their religious beliefs were adherents of  Russian Orthodox, Independent Fundamental Baptist, Christian mysticism, Methodist and nondenominational Christian faiths. [Thanks to Tom Rutledge for the lead.]

Court Refuses To Invoke Ministerial Exception Doctrine To Dismiss Discrimination Suit At Early Stage

In Yin v. Columbia International University, (D SC, Sept. 26, 2016), a South Carolina federal district court, agreeing with a magistrate's recommendation, rejected defendant's invocation of the ministerial exception doctrine as a basis for dismissing for failure to state a claim (Rule 12(b)(6)) a Title VII and the Equal Pay Act lawsuit.  Plaintiff, a female Asian-American Ph.D., was terminated from her faculty position at CIU, a multi-denominational Christian college. She claimed racial, gender and national origin discrimination as well as retaliation. The college claimed that plaintiff (who taught in the school's education program) was required to further the spiritual and pastoral mission of the University including teaching the gospel, spreading the Christian faith, and participating in worship.  However the court held since plaintiff's complaint does not reflect these duties, it is too early in the proceedings to dismiss on ministerial exception grounds.

Recent Articles of Interest

From SSRN:

• Farrah Ahmed, The Autonomy Rationale for Religious Freedom, Modern Law Review, Forthcoming.
• Jason C. Roberts, Unwinding Non-Native Control over Native America's Past: A Statistical Analysis of the Decisions to Return Native American Human Remains and Funerary Objects under the Native American Graves Protection and Repatriation Act, 1992–2013, (University of Hawaii Law Review, Vol. 38, 2016).
• James M. Oleske, Grand Theory or Discrete Proposal? Religious Accommodations and Health Related Harms, (73 Washington and Lee Law Review Online 387 (2016)).
• Amos A. Israel-Vleeschhouwer, Engaging Religious Laws, Players and Communities: Confronting Religious Dis-Empowerment, (in Kyriaki Topidi & Lauren Fielder (eds.), Religion as Empowerment: Global Legal Perspectives (Routledge, 2016), 149-181).
• Abhilasha Shrawat, The Dark Side of Personal Law: Gender Inequality, (September 19, 2016).

From SmartCILP:

• Rob Atkinson, Liberalism, Philanthropy, and Praxis: Realigning the Philanthropy of the Republic and the Social Teaching of the Church, 84 Fordham Law Review 2633-2675 (2016).
• Roni Adil Elias, Transforming the Business Corporation into a Religious Association: How Burwell v. Hobby Lobby Stores, Inc. Made the Religious Values of Fictional Persons Mean More than the Reproductive Rights of Women, 40 N.Y.U. Review of Law & Social Change 1-27 (2016).
• Mark Strasser, Narrow Tailoring, Compelling Interests, and Free Exercise: On ACA, RFRA and Predictability, 53 University of Louisville Law Review 467-508 (2016).
• Symposium. Religion and the Law. Introduction by Eloisa C. Rodriguez-Dod; articles by Beverly Moran, Rahimjon Abdugafurov, Haider Ala Hamoudi, Karima Bennoune, Marie A. Failinger, Timothy J. Tracey, Shawn Markus Crincoli, Mary Anne Case, Frank S. Ravitch, Robert Katz, Asma T. Uddin and SpearIt. 11 Florida International University Law Review 1-219 (2015).
• Waris Husain, Simmering Shia Genocide in Pakistan: Early Warning and Action, 6 Human Rights & Globalization Law Review 3-28 (2015/2016).

New Guam Law Lifting Abuse Limitation Period Will Likely Force Archdiocese Into Bankruptcy

AP reports that Guam Governor Eddie Calvo on Friday signed Substitute Bill No. 326-33 (full text) which retroactively eliminates the statute of limitations for civil suits alleging child sexual abuse. Passage came after abuse allegations were leveled against Guam's Catholic Archbishop Anthony Apuron.  A letter (full text) from the Apostolic Administrator of the Archdiocese of Agana read at mass on Sept. 18 says that he is urging the Vatican to remove Apuron and appoint a successor.  He apologizes to victims, but says that retroactive lifting of the statute of limitations will likely force the Archdiocese to file for bankruptcy.

Recent Prisoner Free Exercise Cases

In Whitney v. Varner, 2016 U.S. Dist. LEXIS 127018 (MD PA, Sept. 19, 2016), a Pennsylvania federal district court held that where an inmate refused to provide a written indication of his religious preference, prison officials could not be found to have substantially burdened the exercise of his unknown belief.

In Sims v. Frakes, 2016 U.S. Dist. LEXIS 127229 (D NE, Sept. 19, 2016), a Nebraska federal district court allowed a Native American inmate to proceed on his claim for prospective injunctive relief challenging limitations placed on sweat lodge and Pow Wow ceremonies.

In Windham v. Rodriguez, 2016 U.S. Dist. LEXIS 127501 (ED CA, Sept. 19, 2016), a California federal magistrate judge rejected a Muslim inmate's claim that destruction of his Qur'an by a corrections officer substantially burdened his religious exercise, and held that to the extent he is suing for deprivation of property, he has an adequate post-deprivation remedy.

In Gray v. Perkins, 2016 U.S. Dist. LEXIS 128117 (D NH, Sept. 20, 2016), a New Hampshire federal district court dismissed an inmate's complaint that in a cell search his Bibles, religious books, and religious pamphlets were seized and not returned.

In Bethel v. Jenkins, 2016 U.S. Dist. LEXIS 128815 (SD OH, Sept. 21, 2016), an Ohio federal district court, adopting a magistrate's recommendation, held that an exception that treated religious books shipped to inmates more favorably than other books did not violate the Establishment Clause or equal protection clause.

In Furnace v. Gipson, 2016 U.S. Dist. LEXIS 129156 (ED CA, Sept. 20, 2016), a California federal magistrate judge recommended that an inmate be permitted to file and proceed with his third amended complaint claiming that prison authorities denied him a religious name change and denied his request to purchase religious items. UPDATE: The court adopted the magistrate's recommendations at 2016 U.S. Dist. LEXIS 160521, Nov. 17, 2016.

In Eleby v. Graham, 2016 U.S. Dist. LEXIS 129831 (ND NY, Sept. 21, 2016), a New York federal magistrate judge recommended dismissing a complaint by a Nation of Islam inmate who objected to a 6-day period during Ramadan where, because of a lockdown, Muslim inmates were not permitted to meet for communal meals or prayer and were provided a bag meal instead of a hot halal meal to break fast at sun up.

In Lewis v. Maye, 2016 U.S. Dist. LEXIS 129861 (D KS, Sept. 21, 2016), a Kansas federal magistrate judge recommended dismissing a suit by a Nation of Islam inmate who contended that the prison chaplain did not consider the NOI holiday of Savior's Day important enough to be recognized or given precedence over other activities in the multi-faith Life Connections Program.

In Harris v. Escamilla, 2016 U.S. Dist. LEXIS 130006 (ED CA, Sept. 22, 2016), a California federal magistrate judge recommended dismissing a Muslim inmates's complaint that during a cell search a corrections officer stepped on his Qur'an and there was delay in his obtaining a replacement copy.

In Miles v. Guice, 2016 U.S. Dist. LEXIS 130316 (ED NC, Sept. 23, 2016), a North Carolina federal district court dismissed a suit by a member of Nations of Gods and Earths who wanted group worship, holiday fasting, a vegan diet and written materials, and wanted to possess a medallion or flag.

In Howard v. Foster, 2016 U.S. Dist. LEXIS 130465 (D NV, Sept. 23, 2016), a Nevada federal district court refused to dismiss an inmate's complaint about conduct that an officer assigned to oversee Muslim religious services was disruptive and yelled so that inmates were unable to complete their services.

No Taxpayer Standing To Challenge NC Magistrate Opt-Out Law

In Ansley v. Warren, (WD NC, Sept. 20, 2016), a North Carolina federal district court dismissed for lack of standing an Establishment Clause challenge to North Carolina's S.B. 2 that allows magistrates to recuse themselves from performing same-sex marriages on the basis of sincerely held religious beliefs. Plaintiffs, asserting taxpayer standing, pointed to expenditures involved in implementing the opt-out provisions.  The court held, however:

Plaintiffs have not pointed to the establishment of any specific appropriation of funds by the legislature to implement the allegedly unconstitutional purpose of S.B. 2. The funding provisions that Plaintiffs challenge here—travel expenses for magistrates and retirement contributions—are not “expenditures made pursuant to an express [legislative] mandate and a specific [legislative] appropriation,” ... but are “incidental expenditure[s] of tax funds in the administration of an essentially regulatory statute,” which is not sufficient for the purposes of standing.

Dealing with a separate due process concern, the court said:

Because a magistrate’s “sincerely held religious objection” is secret, a person appearing before a state magistrate on a matter in said magistrate’s jurisdiction will not be aware of a potential bias against them. A law that allows a state official to opt out of performing some of the duties of the office for sincerely held religious beliefs, while keeping it a secret that the official opted out, is fraught with potential for harm that could be of constitutional magnitude.... But such matters must be dealt with as they arise.

Limit On Parolee's Ability To Attend Church Is Too Broad

In United States v. Hernandez, (ED NY, Sept. 20, 2016), a New York federal district court held unconstitutional a condition of supervised release limiting church attendance that was imposed on defendant after he completed 4 years in prison for receiving child pornography.  Defendant, a 38-year old man, was not permitted to attend church services where minors are present. The court said that this totally prevents him from attending the church of his choice with his father. The court concluded:

Defendant has a right to attend church services. Preventing him from going to his place of worship because the services are also attended by minors unnecessarily burdens that right. It is reasonable to apply a condition that defendant not physically touch minors while attending church services, unless doing so is a part of his religious obligation.... This condition is narrowly tailored. It strikes the necessary balance of allowing defendant to exercise his freedom to associate and participate in religious services, while protecting minors.

Muslim Safety Officer Awarded $100,000 In Discrimination Suit

In Dingus v. Tennessee Department of Safety, (ED TN, Sept. 20, 2016), a Tennessee federal district court, on remand from the 6th Circuit, awarded damages of $100,000 to a former Tennessee safety officer for mental anguish and emotional distress he suffered as a result of religious discrimination.  De'Ossie Dingus, a Sunni Muslim, sued under Title VII claiming discrimination and harassment over the years. Knoxville News Sentinel reports on the decision.

Interlocutory Appeal Unavailable In Ministerial Exception Case

In Trinity Christian School v. Commission on Human Rights & Opportunities, 2016 Conn. Super. LEXIS 2256 (CT Super. Ct., Aug. 22, 2016), a Connecticut trial court dismissed an interlocutory appeal from a decision of the state Commission on Human Rights.  In the case, a Commission referee refused to dismiss a pregnancy discrimination claim brought by an employee against Trinity Christian School.  The school appealed claiming that it is immune from liability under Connecticut's Religious Freedom Restoration Act.  The court held however that any defense the school has is under the ministerial exception doctrine, which is an affirmative defense to liability.  Therefore an interlocutory appeal is not available. The court rejected the school's argument that merely requiring it to defend the case with an affirmative defense would impose a burden on religious belief.

Hearing On Hyde Amendment And Born Alive Protection Act

Yesterday the House Judiciary Committee's Subcommittee on the Constitution and Civil Justice held a hearing titled The Ultimate Civil Right: Examining the Hyde Amendment and the Born Alive Infants Protection Act.  The hearing was held as the 40th anniversary of the Hyde Amendment approaches.  A video of the full hearing and transcripts of prepared testimony by witnesses are available on the committee's website. The Born Alive Infants Protection Act (HR 3504) has passed the House but has not been voted on by the Senate.

Religious Scholar Among Recipients of Nation Medals of Arts and Humanities

Yesterday President Obama presented the 2015 National Medals of the Arts and Humanities to 22 awardees. (Full text of President's remarks.) Among them was Princeton Professor of Religion Elaine Pagels, who has written widely on Gnosticism  and early Christianity.  The citation presented to her reads:

The 2015 National Humanities Medal to Elaine Pagels for her exploration of faith and its traditions.  Through her study of ancient manuscripts and other scholarly work, she has generated new interest and dialogue about our contemporary search for knowledge and meaning.

Gay Student Sues Catholic High School That Barred His Bringing Same-Sex Date To Homecoming

Lance Sanderson, a former student at Memphis, Tennessee's Christian Brothers High School, filed suit in a Tennessee state court on Tuesday alleging that the private Catholic boy's school-- which receives federal funds-- violated Title IX when it prohibited him from bringing his same-sex date from another school to the school's Homecoming Dance.  NBC News reports that the suit seeks $1 million in damages for breach of contract, intentional infliction of emotional distress, negligent training and a violation under Title IX of the 1972 Education Amendments.  The Obama administration, and several courts, have recently concluded that Title IX is broad enough to include sexual orientation discrimination. IdentitiesMic has more details on the failed attempts by the school to work out a compromise with Sanderson, and its ultimate policy statement that technically would have allowed him to bring a same-sex date from his own school.

Fire Department Can Exclude Employee's Religious Messages From E-Mail System

In Sprague v. Spokane Valley Fire Department, (WA App., Sept. 21, 2016), the Washington state Court of Appeals, in a 2-1 decision, upheld a fire department's termination of a firefighter who insisted on using the department's internal e-mail system to distribute religious messages.  Jonathan Sprague, founder of the Spokane Christian Firefighters Fellowship, was found to have violated departmental policies limiting use of the e-mail system to official communications. He sent out messages, including scriptural passages, on meetings of his group. Judge Korsmo's majority opinion concluded:

It should go without saying that a fire department's business is firefighting, not discussion of religion. Pointing out that Mr. Sprague violated the prohibition against public use in that specific manner did not thereby convert the policy to one of opposition to religious speech any more than challenging use of e-mails to promote chess tournaments or a political candidate could be interpreted as anti-chess or anti-political speech. The policy was anti-private use, not anti-religion.

Judge Lawrence-Berrey filed a concurring opinion.  Chief Judge Fearing dissented in an opinion that begins with a quotation from the Biblical Book of Matthew. He said in part:

The majority holds that the fire department held the prerogative to preclude the use of its e-mail for the voicing of religious messages. I note that a government entity, as a general proposition, enjoys this prerogative. Nevertheless, the Spokane Valley Fire Department opened its email system to employee messages of solving personal problems and societal ills through the grace of God when the fire department delivered employee assistance programs newsletters, through the department e-mail, addressing those same problems and ills. The Spokane Valley Fire Department's discipline of Sprague for addressing a topic from Sprague's spiritual perspective constituted viewpoint discrimination in violation of Sprague's free speech rights. The government may not prefer secular chatter over religious oration.

Faith-Based Recovery Home Loses Challenges To Fire Code Enforcement

In Affordable Recovery Housing v. City of Blue Island, (ND IL, Sept. 21, 2016), an Illinois federal district court in a 40-page opinion dismissed a claim under RLUIPA and its Illinois counterpart, the 1st and 14th Amendments, as well as under the Fair Housing Amendments Act, brought against the city by a faith-based recovery home for drug and alcohol addicts. At issue was the city's enforcement of its fire code sprinkler system requirement that led to the eviction of 73 men from the facility, and the city refusal to grant an accommodation that would have given the facility 3 years to install a sprinkler system.

The court held that the eviction was pursuant to the fire code, not the zoning code, so RLUIPA does not apply. Moving to the claim under the Illinois Religious Freedom Restoration Act, the court then held that the eviction stemming from a delayed enforcement of the fire code and the refusal to grant an accommodation did not impose a substantial burden on the facility's religious exercise and, in any event, the city's enforcement of its sprinkler regulations was in furtherance of a compelling governmental interest. The court also rejected the claim that the city violated RLUIPA by demanding that the facility apply for a special use permit.

Massachusetts Supreme Court Upholds Rulings In Landlord's Assault On Muslim Tenant

In Commonwealth v. Obi, (MA Sup Jud Ct, Sept 21, 2016), the Massachusetts Supreme Judicial Court upheld a series of rulings by a trial court judge in the criminal trial of a female landlord for assault and battery after she pushed a tenant, who is Muslim, down a flight of stairs. Defendant Daisy Obi, described by the court as "a septuagenarian Christian minister," had  history of harassing tenants, but in this case she also made a number of anti-Muslim statements to tenant Gilhan Suliman with whom she had a number of landlord-tenant issues.

After a jury trial, the trial judge sentenced Obi to 6 months in jail and 18 months probation with two special conditions: (1) she must disclose to prospective tenants that she had been convicted of assaulting a tenant and she had several previous harassment prevention orders issued against her, and (2) she must attend an introductory class on Islam. The court upheld the disclosure requirement, and refused to consider Obi's challenge to the requirement she attend a class on Islam since objections to it were not raised at trial. However the court observed:

conditions of probation that touch on religion and risk incursion upon constitutionally protected interests should be imposed only with great circumspection.

Finally the Court upheld the trial judge's refusal to allow defendant to exercise a peremptory challenge against a juror who wore a headscarf of the type commonly worn by Muslim women.

VA Updates Guidelines On Religious Exercise At Its Facilities

On Aug. 19, the Veterans Administration issued an internal memorandum (full text) updating its Policy Guidance on Religious Exercise and Religious Expression In VA Facilities.  The memo revises a 2014 Guidance.  A press release yesterday from the Chaplain Alliance for Religious Liberty welcomes the revision, saying in part:

This should make clear that churches may sing Christmas carols and distribute Christmas cards at VA hospitals. Further, veteran organizations may set up MIA/POW tables that include a sacred text.

Russian Supreme Court Bans Aum Shinrikyo As Terrorist Organization

According to Interfax and Russia Beyond the Headlines, the Russian Supreme Court yesterday agreed with the Prosecutor General's Office and the Federal Security Service that Aum Shinrikyo is a terrorist organization. The decision to ban the organization's activities in Russia was made after an in camera hearing by the Court.  Wikipedia describes Aum Shinrikyo as a Japanese doomsday cult best known for its 1995 Sarin attack on the Tokyo subway system. Aum Shinrikyo combines elements of Eastern religions and Christianity, but is generally seen as an offshoot of Japanese Buddhism.

Magistrates Lack Standing To Challenge Memo From Administrative Office On Same-Sex Marriages

In Breedlove v. Warren, (NC App., Sept. 20, 2016), the North Carolina Court of Appeals dismissed for lack of standing a suit by two former magistrates who objected on religious grounds to a Memo issued by the state Administrative Office of the Courts (AOC) indicating that magistrates have a constitutional duty to perform marriages for same-sex couples on the same basis as other marriages, and that refusal to do so is grounds for suspension or removal from office. The two resigned after they were not granted religious accommodations. The Court concluded that, despite the AOC memo, under North Carolina law it is various judges, not the AOC, that has authority to sanction, suspend or remove magistrates. The Court concluded:

the allegations in plaintiffs’ complaint... fail to demonstrate an injury that defendants were capable of inflicting upon plaintiffs, and by extension fails to show that such an injury could be redressed.

WRAL News reports on the decision, and reminds readers that late last year the North Carolina legislature enacted a bill giving magistrates the right to opt out of performing marriages on the basis of sincerely held religious beliefs. (See prior related posting.)

Court Denies Preliminary Injunction To Football Coach Seeking To Pray On Field

According to AP, a Washington federal district court judge on Monday denied a preliminary injunction to high school football coach Joe Kennedy.  The coach, who says he was acting in accordance with his Christian beliefs, was suspended with pay by the Bremerton, Washington school district after he insisted on praying at mid-field at the end of games. He sued, claiming the school's directive barring him from doing so is unconstitutional. (See prior posting.) The denial of preliminary relief means that the school does not have to immediately reinstate Kennedy.

Does Sharia-Compliant Financing By Non-Profit Cause Loss of Property Tax Exemption?

In what may well be a case of first impression, the Islamic Center of Nashville on Monday filed suit in a Tennessee federal district court challenging its inability to maintain its property tax exemption after it financed new building construction employing a well-recognized Sharia-compliant technique that uses a legal fiction to avoid borrowing at interest. The Islamic Center of Nashville has continuously operated the Nashville International Academy, a grade K-8 school, at the same site since 1995.  In 2008 it constructed a new school building on the site, financing the construction through a 5-year Ijara agreement.  The agreement involved transfer of title to an entity owned by the bank in exchange for construction funds, repayment captioned as rent, and a return of title once the required number of "rent" payments had been made.

Tennessee Code Sec. 43-610.7 exempts from property tax:

real and personal property owned by religious, charitable, scientific or non-profit educational institutions which is occupied and used by such institutions purely and exclusively to carry out one or more of its purposes....

In May 2016, the Tennessee State Board of Equalization Appeals Commission concluded (full text of opinion) that, while it was sympathetic with the Islamic Center's sincere desire to comply with its religious principles, the formal transfer of title to an entity owned by the bank meant that the property was not exempt from taxation from 2008 to 2013 (when the Islamic Center regained formal title). The Islamic Center then sued for a declaratory judgment and damages.  The complaint (full text) in Islamic Center of Nashville v. State of Tennessee, (MD TN, filed 9/19/2016) argues:

Here, ICN was ironically denied the religious exemption from property taxes by Defendant specifically because of its adherence to its religious tenets.

The suit claims violations of state and federal RFRAs, RLUIPA, the Elementary and Secondary Education Act, and the Establishment Clause. The Tennessean reports on the lawsuit.

Full Text of Complaint In 2011 Discrimination Suit By Family of Alleged NY/NJ Bomber

As reported today by CNN, the family of Ahmad Khan Rahami-- the alleged New York/ New Jersey bomber-- filed a federal lawsuit in 2011 claiming religious, racial and national origin discrimination by Elizabeth, New Jersey and its police department.  At issue was the city's repeated attempts to apply a 10:00 pm closing ordinance to the Rahami's chicken restaurant, while the family contended that the restaurant came within one of the exemptions in the ordinance.  Here is the full text of the complaint filed by the family in Rahami v. City of Elizabeth,(D NJ, filed 4/6/2011). Alleged bomber Ahmad Rahami was not one of the named plaintiffs in the case.

Obama Appoints Delegation To Babi Yar Commemoration

Yesterday President Obama announced the appointment of a Presidential Delegation to attend the Commemoration of the 75th Anniversary of the Babyn Yar Massacre in the Ukraine. The 4-person delegation is headed by Marie Yovanovitch, U.S. Ambassador to Ukraine, and also includes the chairman of the U.S. Holocaust Memorial Council.  The History Channel summarizes the events in Kiev in 1941:

The German army took Kiev on September 19, and special SS squads prepared to carry out Nazi leader Adolf Hitler’s orders to exterminate all Jews and Soviet officials found there. Beginning on September 29, more than 30,000 Jews were marched in small groups to the Babi Yar ravine to the north of the city, ordered to strip naked, and then machine-gunned into the ravine. The massacre ended on September 30, and the dead and wounded alike were covered over with dirt and rock.

Perhaps reflecting current international tensions in the area, the White House announcement used the Ukrainian term (Babyn Yar) rather than the more commonly used Russian name (Babi Yar) for the site.

European Court: Greece Violated Rights of Conscientious Objector

In Papavasilakis v. Greece, (ECHR, Sept. 15, 2016) [full text in French], the European Court of Human Rights in a Chamber Judgment found that a Jehovah's Witness' freedom of thought, conscience and religion (Art. 9 of the European Convention on Human Rights) were infringed by procedures used in Greece to consider his application to perform alternative civilian service instead of military service. As summarized by the Court's English-language press release:

Domestic law provided that the Special Board, when it examined applications for exemption from military service for conscientious objectors, had to be composed of two university professors, one senior or other advisor at the State Legal Council and two high-ranking army officers. Accordingly, if at the time it interviewed Mr Papavasilakis the Special Board had sat with all of its members present, the majority would have been civilians. However, only the two officers and the chairman were present on that day. In the Court’s view Mr Papavasilakis could thus have legitimately feared that, not being a member of a religious community, he would not succeed in conveying his ideological beliefs to career officers with senior positions in the military hierarchy.

A Chamber Judgment may be appealed to the Grand Chamber.

USCIRF Gets Acting Executive Director

Last week, the U.S. Commission on International Religious Freedom announced the appointment of Erin D. Singshinsuk as its Acting Executive Director while it searches for a person to fill that position on a permanent basis. The new appointee has been affiliated with several organizations having an international focus including the U.S. Institute for Peace where she served as the Vice President for Management and CFO.  Singshinsuk replaces Jackie Wolcott, the previous executive director, who was appointed to be a member of the Commission in March. (See prior posting.)

Court Employee Sues Under Title VII When Fired For Refusing To Process Same-Sex Marriage Licences

A Title VII lawsuit was filed earlier this month in a Florida federal district court by an employee of the Broward County, Florida clerk's office who was fired because she refused to process marriage license applications for same-sex couples. The complaint (full text) in Parker v. Forman, (SD FL, filed 9/9/2016), contends that plaintiff Yanicka Parker, as a Christian, has a sincere religious belief "that persons of the same sex cannot and should not be morally or legally recognized as husband and wife, and that God will judge individual Christians, as well as the society of which they are a part, who condone or institute same sex marriages."  The complaint asserts:

There were many other clerks available, willing and able to perform same sex marriages.

... Given that issuing marriage licenses to same sex couples was a miniscule part of the clerk’s job and overall responsibilities, and Ms. Parker was willing and able to perform all other aspects of her job, Defendant ... could have easily accommodated her religious beliefs.

Plaintiff seeks an injunction and damages for defendants' refusal to accommodate her religious beliefs. Christian Post yesterday reported on the lawsuit.

Court Refuses To Bar Enforcement of Anti-Discrimination Law Against Wedding Invitation Designers

In Brush & Nib Studio LC v. City of Phoenix, (AZ Super. Ct., Sept. 19, 2016), an Arizona trial court refused to issue a preliminary injunction to prevent enforcement of Phoenix, Arizona's public accommodation anti-discrimination ordinance against a business that designs custom wedding invitations. Refusing to dismiss on ripeness grounds, the court held that the law does not violate plaintiffs' free speech or free exercise rights. Rejecting plaintiffs' compelled speech argument, the court said in part:

Here, there is nothing about custom wedding invitations made for same-sex couples that is expressive.... The printing of the names of a same-sex couple on an invitation or thank you note does not compel Plaintiffs to convey a government mandated message, such as an endorsement or pledge in favor of same-sex marriages, nor does it convey any message concerning same-sex marriage.... It is absurd to think that the fabricator of a wedding invitation for a same-sex couple has endorsed same-sex marriage merely by creating or printing that invitation. Moreover, there is nothing about the creative process itself, such as a flower or vine or the choice of a particular font or color, that conveys any pledge, endorsement, celebration, or other substantive mandated message by Plaintiffs in regard to same-sex marriage.

Responding to plaintiffs' free exercise challenge, the court said in part:

the sale of wedding invitations free of the names of same-sex couples clearly is not the exercise of religion, and certainly is not a burden on the free exercise of their religion. Nothing about the ordinance has prevented the Plaintiffs from participating in the customs of their religious beliefs or has burdened the practice of their religion in any way.

ADF which represented plaintiffs in the case issued a press release responding to the decision. The press release is accompanied by links to pleadings in the case and to the relevant city ordinances.

4th Circuit: Sectarian Invocations Led By County Commissioners Are Permissible

In a 2-1 decision today, the U.S. 4th Circuit Court of Appeals, reversing the trial court, upheld the practice in Rowan County, North Carolina Board of Commissioners of opening their meetings with an invocation led on a rotating basis by one of the commissioners.  In Lund v. Rowan County, North Carolina,  (4th Cir., Sept. 19, 2016), the majority in a 54-page opinion held that the Board's practice is constitutional under the U.S. Supreme Court's Town of Greece  decision, saying in part:

The Board’s legislative prayer practice falls within our recognized tradition and does not coerce participation by nonadherents. It is therefore constitutional.

The district court (see prior posting) had held that Town of Greece does not cover sectarian invocations delivered by the county commissioners themselves instead of invited clergy. The majority, however, said:

Nowhere did the [Supreme] Court say anything that could reasonably be construed as a requirement that outside or retained clergy are the only constitutionally permissible givers of legislative prayer.

Judge Wilkinson, dissenting, said in part:

This combination of legislators as the sole prayer-givers, official invitation for audience participation, consistently sectarian prayers referencing but a single faith, and the intimacy of a local governmental setting exceeds even a broad reading of Town of Greece.

Charlotte Observer reporting on the decision says that the ACLU, representing plaintiffs, will ask for en banc review.

Recent Articles and Upcoming Conference of Interest

From SSRN:

• James M. Oleske, A Regrettable Invitation to 'Constitutional Resistance,' Renewed Confusion Over Religious Exemptions, and the Future of Free Exercise, (20 Lewis & Clark L. Rev. in Symposium, 'Law and Religion in an Increasingly Polarized America', (Forthcoming)).
• Sarah M. Stephens, Employer Conscience after Hobby Lobby and the Continuing Conflict between Women's Rights and Religious Freedom, (2016).
• Richard W. Garnett, Justice Scala, Religious Freedom, and the First Amendment, Notre Dame Law School Legal Studies Research Paper No. 1637 (2016).
• Nuel Chinonyelum Oji, Obergefell v Hodges and the Problem of Judicial Legislation, (University of Nigeria Bar Journal(UNBJ) 3 (2016) 147).
• Catherine Jean Archibald, Transgender Bathroom Rights, (Duke Journal of Gender Law & Policy, Forthcoming).
• Riley Fredrick, Marriage Equality: The Paralleled Progress between Public Approval and Supreme Court Decision-Making, (Florida State University Law Review, Forthcoming).

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

• Paul Maginn & Graham Ellison, ‘Ulster Says No’: Regulating the Consumption of Commercial Sex Spaces and Services in Northern Ireland, (Urban Studies, Forthcoming).
• Aleksandra Gliszczynska-Grabias & Wojciech Sadurski, Law of Ritual Slaughter and the Principle of Religious Equality, (Journal of Law, Religion and State, Forthcoming).
• Jeffrey A. Redding, Transgender Rights in Pakistan?: Global, Colonial, and Islamic Perspectives, (September 11, 2016).
• Satvinder Juss, The Justiciability of Religion, (Forthcoming in the Journal of Law and Religion - Cambridge University Press).
• Howard Kislowicz, On Collective Constitutional Rights: Lessons for Religious Rights from Language Rights, ((2016) 75 S.C.L.R. (2d) 31).
• Solomon A. M. Ekwenze, Nigeria's Multi-Religious Platform: A Myth or Reality - Public Holidays a Question, (September 7, 2016).
• Federico Masera, State, Religiosity and Church Participation, (September 14, 2016).
• Connor M. Ewing, The Structural Articulation of 'Equal Dignity', (August 28, 2016).

From SmartCILP:

• Zachary Bray, RLUIPA and the Limits of Religious Institutionalism, (2016 Utah Law Review 41-103).
• Julia L. Ernst, How Should the South African Constitutional Court Approach Tensions Between Women's Rights and Religious Rights?, 60 New York Law School Law Review 493-516 (2015/16).
• Ruth C. Stern & J. Herbie DiFonzo, Dogging Darwin: America's Revolt Against the Teaching of Evolution, 36 Northern Illinois University Law Review 33-82 (2016).

Upcoming Conference:

• Religious Critiques of Law, Pepperdine University, March 9-10, 2017.

Recent Prisoner Free Exercise Cases

In Scarpinato v. Indiana State Prison, 2016 U.S. Dist. LEXIS 122795 (ND IN, Sept. 12, 2016), an Indiana federal district court dismissed an inmate's complaint that he was not allowed to have a Bible in his cell during periods he was in segregation.

In Thomas v. Lakin, 2016 U.S. Dist. LEXIS 123182 (SD IL, Sept. 12, 2016), an Illinois federal district court allowed a Muslim inmate to move ahead with claims that jail authorities denied his request for a copy of the Qur'an, a prayer mat, religious worship services, and a religious diet.

In Hanson v. New Hampshire State Prison Literary Review Commission, 2016 U.S. Dist. LEXIS 123935 (D NH, Sept. 12, 2016), a New Hampshire federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 123936, Aug. 17, 2016) and dismissed an inmate's complaint that he was not allowed to receive a package containing the religious book The Shaolin Grandmasters' Text, and a non-religious book, Sailing a Serious Ocean, sent along with it.

In Gayle v. Harmon, 2016 U.S. Dist. LEXIS 124565 (ED PA, Sept. 13, 2016), a Pennsylvania federal district court, dismissing a case, held that restrictions on attending religious services for those in administrative segregation are rationally related to a legitimate penological interest.

In Stocking v. Semple, 2016 Conn. Super. LEXIS 2210 (CT Super. Ct., Aug. 10, 2016), a Connecticut state trial court dismissed an inmate's complaint that he was continually denied access to religious services.

In Aiello v. West, 2016 U.S. Dist. LEXIS 124739 (WD WI, Sept. 14, 2016), a Wisconsin federal district court allowed a Jewish inmate to move forward with his RLUIPA challenge to the ban on inmate-led group religious services, but dismissed plaintiff's 1st Amendment challenge to that ban as well as his challenges relating to availability of ritual foods for the Passover seder and to changes in the kosher meal menu.

In Munson v. Butler, 2016 U.S. Dist. LEXIS 124817 (SD IL, Sept. 13, 2016), an Illinois federal district court dismissed a Buddhist inmate's complaint that he was not able to receive a low soy lacto-ovo vegetarian diet.

In Beamon v. Dittmann, 2016 U.S. Dist. LEXIS 124879 (ED WI, Sept. 14, 2016), a Wisconsin federal district court upheld a prison's ban on Nations of Gods and Earths material despite plaintiff's claim that his beliefs were derived from various religious traditions.

In Salgado v. NYS Department of Corrections & Community Supervision, 2016 U.S. Dist. LEXIS 126659 (WD NY, Sept. 14, 2016), a New York federal magistrate judge recommended that a Muslim inmate be allowed to proceed with his complaint that he was not allowed to wear his Dihk'r prayer beads outside of his cell.

Inmate Has Broader Damage Remedy Under RFRA Than Under RLUIPA

In Crowder v. Lariva, 2016 U.S. Dist. LEXIS 122966 (SD IN, Sept. 12, 2016), an Indiana federal district court permitted a Hebrew Israelite inmate to move ahead against one of the prison chaplains on his complaint that he was denied a kosher diet. Because plaintiff was a federal inmate, he sued (in addition to his 1st Amendment claim) under RFRA instead of RLUIPA, and the court held that he had broader remedies as a result:

Jones [the chaplain] also argues that because the Seventh Circuit in Nelson v. Miller, 570 F.3d 868, 887 (7th Cir. 2009), held that the similarly-worded RLUIPA does not allow for the collection of money damages against individuals, the same reasoning should apply to RFRA. But there are at least two important differences between RLUIPA and RFRA that compel a different conclusion. First, ... the statutory language of RFRA defines "government" as, among other things, an "official (or other person acting under color of law)." ...Congress thus envisioned at least some individual-capacity suits under RFRA.... Second, RFRA, which applies to federal action, and RLUIPA, which is applicable to state action, arise from different principles.,,, [T]he portion of RFRA that authorizes lawsuits against the states was held unconstitutional because such an application exceeded Congress's power under the Enforcement Clause of the Fourteenth Amendment in City of Boerne v. Flores.... RLUIPA was enacted in response to City of Boerne ... as an exercise of Congress's spending power[.] ...[I]nterpreting that statute to allow damages actions against state officials in their individual capacities would 'raise serious questions regarding whether Congress had exceeded its [constitutional] authority.'" ... [S]uch considerations are not at issue when applying RFRA because RFRA's application to federal action is not based on the Spending Clause.... For these reasons, the Court concludes that RFRA does allow for the recovery of monetary damages against officers in their individual capacities

Federal Court Dissolves TRO Against Native American Pipeline Demonstrators

According to a National Lawyers Guild press release, yesterday a North Dakota federal district court dissolved an ex parte temporary restraining order it had issued a month earlier against the Standing Rock Sioux Tribal Chairman and others who had participated in demonstrations against construction of the Dakota Access Pipeline.  Demonstrators claim that the pipeline corridor runs through and near many Lakota/ Dakota tribe sacred burial and historical sites. Last week a D.C. federal district court refused to enjoin construction of the pipeline, but federal agencies are considering whether or not to grant permits for the project. (See prior posting.) The effect of yesterday's the order is to leave dealing with demonstrations to local officials.

Happy Constitution Day!

Tomorrow is Constitution Day-- the 229th anniversary of the signing of the Constitution by the delegates to the Constitutional Convention. In many cities the event was celebrated today instead of on the weekend.  Of course the primary protections for religious liberty were not part of the document as signed in 1787, but instead were part of the First Amendment-- ratified two years later in 1789.  However the original body of the Constitution did contain some protection for religious liberty and religious pluralism through the provision in Article VI:

[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Happy Constitution Day!

Defendant Wears Religious Texts As Protest Against Judge

The New York Post reports (with accompanying photos) that on Wednesday a defendant charged with various drug offenses appeared in a Brooklyn, New York trial court wearing a shirt he had made from newsprint carrying Hebrew writings of the late Lubavitcher Rebbe. He also wore a paper hat carrying seven of the Ten Commandments.  Defendant Aaron Akaberi-- who has professed a series of different religious beliefs-- says he did this as a protest against the judge who had refused to allow him to read passages from Jewish texts into the record at an earlier pre-trial hearing. His hearing was adjourned to a later date.

Voyeuristic Rabbi's 6+ Year Sentence Upheld On Appeal

In Freundel v. United States, (DC Ct. App., Sept. 15, 2016), the D.C. Court of Appeals upheld the trial court's sentence totaling over 6 years in prison imposed on Rabbi Barry Freundel who, under a plea agreement, pleaded guilty to 52 counts of voyeurism. Freundel had secretly videotaped 150 women in the changing room of the mikveh (ritual bath) at Washington's Kesher Israel Synagogue. The trial court sentenced Freundel to consecutive 45-day sentences on each count. On appeal, Fruendel argued that the consecutive sentences violate the double jeopardy clause, contending that his offenses involved only a single course of conduct. The appeals court disagreed, saying in part:

Under Mr. Freundel’s interpretation, once a defendant unlawfully recorded one victim, all future voyeuristic recording, even of different victims with different recording devices in different locations and at different times, would not be separately punishable as long as the defendant in some sense had a single voyeuristic purpose....“This is surely not a result which the legislature intended.”

AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

Brooklyn District Elects First Hasidic Female Judge In New York

The Windsor Terrace Patch reports that Rachel Freier will become the first Hasidic Jewish woman elected as a judge in New York state.  Frier won 41% of the votes in a 3-way Democratic primary for 5th District Civil Court in Kings County.  The district encompasses various communities in Brooklyn.  Apparently Freier will be unopposed in the November election.  Freier, a mother of six and and attorney, is particularly known for her role in founding Ezras Nashim, an all-female volunteer EMT service for the observant Jewish community.

Salesperson Is Independent Contractor, So Title VII Does Not Apply

The Pittsburgh Tribune-Review reported yesterday that a Pennsylvania federal district court has dismissed a suit against a bathroom remodeling company brought by a woman who was fired from her sales position when she refused to continue to attend Bible-based sales training sessions.  A federal court jury Tuesday concluded that the plaintiff was an independent contractor rather than employee, so the religious discrimination provisions of Title VII and state law do not apply.

Court Upholds Modified Version of School's Annual Christmas Production

In Freedom From Religion Foundation v. Concord Community Schools, (ND IN, Sept. 14, 2016), an Indiana federal district court upheld against an Establishment Clause attack a modified version of the annual Christmas Spectacular put on by an Indiana high school. The court had previously issued a preliminary injunction against the 2014 and proposed 2015 versions that included a live Nativity Scene. (See prior posting.) The court now ordered the parties to submit briefs as to whether claims regarding those versions are now moot, and if they are not, what remedies are appropriate. The court then concluded that the version of the Christmas Spectacular actually performed in 2015 after the issuance of the preliminary injunction-- a version that modifies the nativity scene and adds Chanukah and Kwanzaa elements-- does not violate any of the Establishment Clause tests.  The court said in part:

At bottom, the endorsement test involves a holistic, qualitative assessment of the totality of the circumstances of a given display. Here, based on the circumstances and presentation of the show as a whole, and the way in which an objective, reasonable observer would likely perceive it, the Court finds that the Christmas Spectacular that was actually performed in 2015 did not convey a message of endorsement of religion.

An FFRF press release, which contains links to prior pleadings in the case, discusses yesterday's decision.

US Civil Rights Commission Issues Report On Religious Liberty vs. Civil Rights

Last week (Sept. 7), the U.S. Commission on Civil Rights released a 306-page briefing report titled Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.  Here is a portion of the Commission's Findings:

The Commission endorses the briefing panelists’ statements as summarized at page 21 of the Report in support of these Findings.

(1) schools must be allowed to insist on inclusive values; 2) throughout history, religious doctrines accepted at one time later become viewed as discriminatory, with religions changing accordingly; 3) without exemptions, groups would not use the pretext of religious doctrines to discriminate; 4) a doctrine that distinguishes between beliefs (which should be protected) and conduct (which should conform to the law) is fairer and easier to apply; 5) third parties, such as employees, should not be forced to live under the religious doctrines of their employers [unless the employer is allowed to impose such constraints by virtue of the ministerial exception]; 6) a basic [civil] right as important as the freedom to marry should not be subject to religious beliefs; and 7) even a widely accepted doctrine such as the ministerial exemption should be subject to review as to whether church employees have religious duties.

Further, specifically with regard to number (2) above, religious doctrines that were widely accepted at one time came to be deemed highly discriminatory, such as slavery, homosexuality bans, and unequal treatment of women, and that what is considered within the purview of religious autonomy at one time would likely change.

Yesterday, the U.S. Catholic Bishop's Ad Hoc Committee on Religious Liberty released a statement (full text) highly critical of the statement in the Report by Commission Chairman Martin Castro.  The Bishops said in part:

For the current Chairman of the United States Commission on Civil Rights, religious liberty is reduced to "nothing except hypocrisy," and religion is being used as a "weapon… by those seeking to deny others equality." He makes the shocking suggestion that Catholic, evangelical, orthodox Jewish, Mormon, and Muslim communities are comparable to fringe segregationists from the civil rights era. These statements painting those who support religious freedom with the broad brush of bigotry are reckless and reveal a profound disregard for the religious foundations of his own work.

[Thanks to Jeff Ziegler for the lead.]

NYT: Russia Uses Orthodox Church To Extend Its Political Influence

The New York Times, in a front-page story posted online yesterday, explores how Russia is using the Russian Orthodox Church to extend the country's political influence.  Here is an excerpt:

While tanks and artillery have been Russia’s weapons of choice to project its power into neighboring Ukraine and Georgia, Mr. Putin has also mobilized faith to expand the country’s reach and influence. A fervent foe of homosexuality and any attempt to put individual rights above those of family, community or nation, the Russian Orthodox Church helps project Russia as the natural ally of all those who pine for a more secure, illiberal world free from the tradition-crushing rush of globalization, multiculturalism and women’s and gay rights.

Thanks to a close alliance between the Russian Orthodox Church and the Kremlin, religion has proved a particularly powerful tool in former Soviet lands like Moldova, where senior priests loyal to the Moscow church hierarchy have campaigned tirelessly to block their country’s integration with the West. Priests in Montenegro, meanwhile have spearheaded efforts to derail their country’s plans to join NATO.

But faith has also helped Mr. Putin amplify Russia’s voice farther west, with the church leading a push into resolutely secular members of the European Union like France.

Catholic Diocese and Franciscan Order Settle Abuse Lawsuits

AP reported yesterday that the Catholic Diocese of Youngstown, Ohio and a Franciscan order based in Hollidaysburg, Pennsylvania have agreed to pay $900,000 to settle lawsuits involving 28 claims of abuse committed by a now deceased Brother in the order, Joseph Baker.  The abuse occurred in Catholic schools in Warren, Ohio between 1986 and 1990. Baker committed suicide in 2013.

Indiana's Bar On Name Changes By Non-Citizens Challenged As Violating Transgender Rights

Yesterday the battle over transgender rights-- which has often had religious overtones-- took a different turn with the filing of a federal court lawsuit by a transgender male from Mexico who was granted political asylum in the United States and who lives in Indiana.  At issue is an Indiana law that prohibits non-citizens from obtaining a legal change of name. The complaint (full text) in Doe v. Pence, (SD IN, filed 9/13/2016), contends that the law violates plaintiff's 1st and 14th Amendment rights, saying in part:

For a transgender person, a change of name is in many cases a necessary part of treatment for Gender Dysphoria....  Transgender people face a heightened risk of discrimination, harassment, and violence when their transgender status is known to others. Being referred to by or having to identify oneself by a name traditionally associated with the person’s sex assigned at birth, rather than with the person’s lived gender, can “out” a transgender person to others, revealing their private medical information and putting them at serious risk of harm.

Plaintiff asserts, in in addition to equal protection, autonomy and privacy claims, a free speech right to change his name:

Indiana Code Section 34-28-2-2.5(a)(5) violates the First Amendment right to freedom of speech by compelling speech from Plaintiff that betrays and falsely communicates the core of who he is.... For transgender persons, communicating their name and expressing their gender is speech protected by the First Amendment. Plaintiff’s adoption of the traditionally masculine name “John” conveys the message that he is a man, an essential component of personal identity.

MALDEF issued a press release announcing the filing of the lawsuit. Wall Street Journal reports on the lawsuit.

Social Security Employee Fighting LGBTQ Awareness Training On Religious Grounds

A new controversy pitting Christian religious beliefs against LGBTQ rights has erupted at the Social Security Administration.  LGBTQ Nation reports today that David Hall, a 14-year employee at the Social Security office in Champaign, Illinois, has been suspended for two days and anticipates being fired for refusing to watch a training video on LGBTQ awareness.  Hall, a Christian, was refused a religious accommodation to excuse him from the requirement to sign a form acknowledging that he had completed the awareness training.  Hall, who has hired a lawyer, says: "I am not going to certify sin." He argues that the video is "promoting an agenda and lifestyle" that he does not agree with. Hall says he has LGBTQ friends and family and is not judging anyone.  He says: "I’m simply trying to live out my life, my faith and be obedient to the will of God."

Speeches To Value Voters Summit Now Online

The annual Value Voters Summit was held last week in Washington, D.C.  Videos of speeches by more than 25 political and religious leaders to the conservative Christian attendees at the Summit are available online.  Speakers included Donald Trump, Mike Pence, Reince Priebus, Oliver North and Rick Santorum.

Cert Petition Filed In "Sister Wives" Challenge To Polygamy Law

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Brown v. Buhman.  In the case, U.S. 10th Circuit Court of Appeals dismissed on mootness grounds the constitutional challenge to Utah's bigamy law that had been filed by the polygamous family from the television show "Sister Wives." (See prior posting). A federal district court had held most of Utah's plural marriage ban unconstitutional. (See prior posting.) Jonathan Turley who represents petitioners discusses the filing on his blog.

Title VII's Religious Organization Exemption Protects Salvation Army

In Garcia v. Salvation Army, (D AZ, Sept. 12, 2016), an Arizona federal district court dismissed a Title VII religious discrimination claim brought against the Salvation Army by a former social services coordinator for the organization.  Plaintiff claimed that she was subjected to discrimination, retaliation, and hostile work environment after she stopped attending services at the Salvation Army’s Estrella Mountain Corps where she was employed.  The court held that Title VII's religious organization exemption applies to plaintiff's claim, and that the Salvation Army did not waive the defense by failing to assert it as an affirmative defense.

2nd Circuit: Students Lack Standing To Challenge Diversion of Dollars To Religious Schools

In Montesa v. Schwartz, (2d Cir., Sept. 12, 2016), the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision, held that plaintiffs-- dozens of students in the East Ramapo Central School District in New York state-- lack standing to sue over funds allegedly diverted by the school board to Orthodox Jewish schools.  The students claim that the diversion-- in part through manipulation of payments under the Individuals With Disabilities Education Act-- led to less funding for the public schools they attend.  In denying standing, the majority said in part:

We have not found a case ... where an appeals court has recognized [plaintiffs'] theory of direct exposure—where the plaintiffs’ exposure is the loss of a favored governmental service or benefit caused, in part, by a diversion of public resources away from such service or benefit to support a preferred religion....  The Student‐Plaintiffs’ injury arises out of being enmeshed in an underfunded school system, not out of being directly exposed to the alleged unconstitutional IDEA Settlements themselves. An alleged causal connection between the underfunding of the school district’s budget and the alleged unconstitutional expenditures is insufficient to give rise to a direct injury. To hold otherwise would impermissibly expand the concept of direct exposure to include injuries that are unrelated to the challenged governmental act but which flow in fact from a government’s decision to fund one program or service at the expense of another.  This is a theory of indirect injury and recognizing it would allow plaintiffs who are only incidentally affected by a challenged governmental expenditure to assert Establishment Clause claims.

Judge Reiss dissented. Courthouse News Service reports on the decision.

Canadian Appeals Court Allows Review of Church's Expulsion of a Member

In Wall v Judicial Committee of the Highwood Congregation of Jehovah's Witnesses, (Alberta Ct. App., Sept. 8, 2016), the Court of Appeals of the Canadian province of Alberta held, in a 2-1 decision, that Canadian civil courts have jurisdiction to review a formal decision by a Jehovah's Witness congregation to disfellowship one of its members. The congregation's Judicial Committee took the action against the member, Randy Wall, on the basis of charges of drunkeness.  A church Appeal Committee upheld the decision over Wall's defense that his action resulted from stress over the church's previous disfellowshipping of his 15 year old daughter and the requirement that he shun aspects of his relationship with her.

The majority held that civil courts have jurisdiction to review the decision of a religious organization where the decision impacts property or civil rights, or if a breach of the rules of natural justice is alleged.  Here Wall alleged sufficient procedural irregularities to give jurisdiction to determine if rules of natural justice were breached.  The appeals court majority also held that Wall can submit new evidence to the trial court on whether the impact of shunning by fellow congregants will result in an economic impact on his real estate business.

Judge Wakeling dissenting said in part:

Relying on basic constitutional principles, I have concluded that, presumptively, religious associations – and more importantly, the constituent members – have the constitutional right to select their own members – those with whom they will worship. This decision to exclude a person from the group may be attributable to irreconcilable religious differences or perceived unacceptable forms of behaviour. One should not have to undertake such an intensely personal pursuit with those with whom they do not wish to associate. A religious association must be solely responsible for this class of decisions.

A civil court must decline to review membership decisions of a religious association....

[S]tate intervention in the affairs of religious organizations is not only contrary to the interests of a democratic community, it is also inimical to the welfare of both religious organizations and their congregants.  Whether a religion prospers and attracts new members and has influence in the greater community should be the product of the efforts of adherents of a religion and the values of the religion, not the level of support provided by state apparatus, including the judicial branch of government.

... Courts have neither the mandate nor the expertise to resolve religious doctrinal disputes.

Where one appellate judge dissents on an issue of law, an appeal as of right to Canada's Supreme Court is available. (Background.)  National Post reports on the decision.

Company Settles With EEOC Over Firing of Seventh Day Adventist

The EEOC announced last week that North Carolina-based Greenville Ready Mixed Concrete, Inc., has agreed to a $42,500 settlement in the EEOC's suit (see prior posting) against it for firing a Seventh Day Adventist employee who refused a Saturday work assignment. The company has also agreed to a 5-year consent decree requiring it to create an anti-discrimination policy, engage in employee training, post notice about the lawsuit and submit periodic reports to the EEOC.

Illinois Court Recognizes Muslim Divorce In India Through Khula

Times of India reported yesterday on a June 28 opinion handed down by a Cook County, Illinois circuit court judge recognizing that a Muslim woman's first marriage had been validly dissolved in India in 2007 through the little-known wife-initiated Sharia law procedure of khula.  The issue arose when the woman's second husband raised as a defense in a divorce proceeding the argument that their marriage was never valid because the wife was never divorced from her first husband.

Recent Articles of Interest

From SSRN:

• Steven Menashi, How Great is the Threat to Religious Freedom, Really?, (Mosaic Magazine, August 17, 2015).
• Michael W. McConnell, Mark E. Schneider, Jay P. Lefkowitz & Steven Menashi, Brief of Amici Curiae Former Justice Department Officials in Support of Petitioners in Zubik v. Burwell, (2016).
• Shachar Eldar & Elkana Laist, The Irrelevance of Motive and the Rule of Law, (New Criminal Law Review, Forthcoming).
• Marc O. DeGirolami, Religious Accommodation, Religious Tradition, and Political Polarization, (Lewis & Clark Law Review, Forthcoming).
• Christopher C. Lund, Religious Exemptions, Third-Party Harms, and the Establishment Clause, (Notre Dame Law Review, Vol. 91, p. 1375, 2016 (symposium)).
• John C. Eastman, No Free Lunch, But Dinner and a Movie (and Contraceptives for Dessert)?, (10 N.Y.U. J. L. & Liberty 282 (2016)).
• Robert Corn-Revere, Hate Speech Laws: Ratifying the Assassin's Veto, (Cato Institute Policy Analysis No. 791 (2016)).

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

• Effie Fokas, Directions in Religious Pluralism in Europe: Mobilizations in the Shadow of European Court of Human Rights Religious Freedom Jurisprudence, (Oxford Journal of Law and Religion, Vol 4, No.1, 54-74 (2015)).
• Luke Beck, The Case against Improper Purpose as the Touchstone for Invalidity under Section 116 of the Constitution, (Federal Law Review, Vol. 44, No. 3, Forthcoming).
• Gbohou Gnantin Hilaire Tegnan & Saldi Isra, Rule of Law and Human Rights Challenges in South East Asia: A Case Study of Legal Pluralism in Indonesia, (April 1, 2016).
• Preethi Kumar Mokshagundam, Dr. Ambedkar's Concept of Social Justice and Indian Constitution Protection for Dalits – A Recent Day Analysis, (August 23, 2016).
• Paul Dermine, Towards the Recognition of a Pan-European Right to Same-Sex Marriage – What If Light Came from the United States?, (June 1, 2016).
• Matthew S. Erie, Sharia, Charity, and Minjian Autonomy in Muslim China: Gift Giving in a Plural World, (American Ethnologist 43(2): 311-423 (2016)).

From SmartCILP:

• Walter C. Long, The Constitutionality and Ethics of Execution-Day Prison Chaplaincy, [Abstract], 21 Texas Journal on Civil Liberties & Civil Rights 1-33 (2015).
• Michael Stokes Paulsen, The Unconscionable War on Moral Conscience (reviewing Robert P. George, Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism), 91 Notre Dame Law Review Rev. 1167-1195 (2016).
• Mark Strasser, Hobby Lobby, RFRA, and Family Burdens, [Abstract], 25 Boston University Public Interest Law Journal 239-264 (2016).
• Special Issue: A Thousand Years of Infamy: The History of the Blood Libel. Edited by Richard H. Weisberg; preface by Richard H. Weisberg; articles by Jeffrey Mehlman, Hannah R. Johnson, Richard H. Weisberg, David Fraser and Vivian Grosswald Curran. 28 Law & Literature 1-95 (2016).

Ethiopia Pardons Muslims Convicted of Opposing Government's Moderate Push

AP reports that in Ethiopia on Saturday, the chief prosecutor pardoned around 1,000 convicts upon the approach of the Ethiopian New Year and Eid al-Adha.  Among them were 135 Muslims convicted on anti-terrorism charges of religious extremism.  The pardoned convicts had participated in months-long anti-government protests in 2012 when the government encouraged the teaching of the moderate Al-Ahbash form of Islam and required that it be taught in an Addis Ababa religious school. [Thanks to Scott Mange for the lead.]