Suit Challenges University's Anti-Harassment Policy

A suit was filed this week in an Iowa federal district court challenging the constitutionality of Iowa State University's anti-harassment policy and the required online anti-harassment training program for all students and staff.  The Student Code of Conduct defines discriminatory harassment as:

unwelcome behavior directed at an individual or group of individuals based on race, ethnicity, pregnancy, color, religion, national origin, physical or mental disability, age, marital status, sexual orientation, gender identity, genetic information, status as a U.S. veteran (disabled, Vietnam, or other), or other protected class when the behavior has the purpose or effect of substantially interfering with the student's education or employment by creating an intimidating, hostile, or demeaning environment.

Harassment may include some instances of First Amendment protected speech.  The complaint (full text) in Dunn v. Leath, (SD IA, filed 10/17/2016), alleges that the policy violates students' free speech, due process, equal protection and free exercise rights. The complaint reads in part:

131. Plaintiff seeks to exercise his sincerely held religious beliefs by discussing and advocating for his Christian faith and his Christian viewpoint on marriage, sexuality, abortion, and other issues in controversy.

132. Defendants’ promulgation and enforcement of each of the policies complained of herein substantially burden Dunn’s free exercise of religion by preventing and chilling him from sharing his religious views.

... 134. This policy is neither neutral nor generally applicable because it punishes speech critical of another religious belief or deemed offensive to listeners because of their religious beliefs while not sanctioning other speech.

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

Court Approves Contentious Annexation By Kiryas Joel

As reported by the New York Law Journal, a New York state trial court judge last week, in a 97-page decision, upheld actions by the municipalities involved to allow the Village of Kiryas Joel-- inhabited almost entirely by Satmar Hasidic Jews-- to annex 164 acres of land from the Town of Monroe. Respondents contended that opposition to the annexation was motivated by anti-Semitism. Petitioners argued that the annexation reflected Kiryas Joel's desire to engage in religious segregation and to encourage an in-migration of residents from the Hasidic Jewish community in Brooklyn.  While much of the court's opinion dealt with the adequacy of the environmental review involved, the court also dealt with Establishment Clause claims and allegations of discrimination.  In Village of South Blooming Grove v. Village of Kiryas Joel Board of Trustees, (Orange Cnty. Sup. Ct., Oct. 11, 2016), the court held that the individual and organizational challengers lack standing to raise an Establishment Clause claim, and even if they had standing their claim would fail on the merits, saying in part:

The fact that most of the Village's residents belong to the same religious community does not extinguish the secular purpose of the annexation.

The court also rejected petitioners' claim that the annexation violated a provision in the Town of Monroe Ethics Code that prohibits causing voluntary segregation, saying that this is a provision that only applies to recruitment of personnel.

France's Le Pen Would Extend Ban On Religious Symbols In Public

In France, right-wing National Front Party leader Marine Le Pen told a TV station this week that if she is elected President next year, she will extend to all public places the ban on "conspicuous religious symbols" like Muslim headscarves that now applies to public schools. As reported today by New Europe, Le Pen says the ban will include the kippah (skullcap) worn by many observant Jews.  She explained:

It is clear that kippahs are not the issue within our country. But for the sake of equality, they should be prohibited. If I requested to ban solely Muslim attire, people would slam me for hating Muslims.

I know it’s a sacrifice, but I think the situation is too serious these days… I think every French person, including our Jewish compatriots, can understand that if we ask them for a sacrifice in order to help fight against the advance of this Islamic extremism… they will make the effort, they will understand, I am absolutely convinced because it will be in the best interests of the nation.

The French Jewish community has condemned Le Pen's proposal. Washington Times surveys Le Pen's chances in the election.

Court Denies Preliminary Injunction In Church's Challenge To State Transgender Nondiscrimination Laws

In Fort Des Moines Church of Christ v. Jackson, (SD IA, Oct. 14, 2016), an Iowa federal district court refused to issue a preliminary injunction to bar enforcement against a church of  provisions of the Iowa Civil Rights Act and the Des Moines City Code.  The laws prohibit discrimination on the basis of gender identity in places of public accommodation. Both statutes exempt religious acts of religious institutions.  The church sued after the Iowa Civil Rights Commission issued a guide stating that the anti-discrimination provisions may apply to non-religious activities of a church that are open to the public. The church wants to publicize on its website and in its church bulletin its policy of limiting its rest rooms on the basis of anatomy as identified at birth or by one's original birth certificate.  The policy includes the following rationale:

This policy is consistent with and required by God’s Word, which sets forth the distinctiveness, complementariness and immutability of the male sex and female sex as Jesus Christ himself taught in Matthew 19:4. God’s Word also teaches that physical privacy and personal modesty spring from the physical conditions and unique characteristics of the sexes.

While refusing to dismiss the lawsuit, the court also denied a preliminary injunction because plaintiff is unlikely to succeed on the merits. The court rejected plaintiff's vagueness challenge, and rejected its as-applied free speech challenge because it is unlikely that the laws would ever apply to plaintiff's activities. All of the activities the church indicated it engaged in were religious in nature.  The court rejected plaintiff's free exercise challenge because the anti-discrimination provisions are neutral laws of general applicability. (See prior related posting.)

Suit Charges FLDS Towns With Discrimination Against Non-FLDS Members

The FLDS-controlled towns of Colorado City, Arizona and Hilldale, Utah, along with the FLDS Church, were sued last week in federal district court for discriminating against non-members of the Church. The allegations in the complaint (full text) in Prairie Farms. L.L.C. v. Town of Colorado City, (D AZ, filed 10/12/2016) are summarized in a news article from the Phoenix New Times:

Alleged illegal arrests by a cult-run police force have spurred a new federal lawsuit against two polygamous towns on the Arizona-Utah border.

Three businessmen who are former members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints allege ... that officials in the rural towns ... violated their constitutional rights. They claim the officers with the Colorado City/Hildale marshal's office arrested two of them for trespassing on land they were leasing, that the marshal's office failed to investigate reports of vandalism on the leased land, and that Colorado City officials refused to provide water and garbage services to the property.

Recent Articles of Interest

From SSRN:

• Jeffrey A. Redding, Shamim Ara and the Divorce Politics of a Secular and Modern India, (October 8, 2016).
• Shamsul Falaah, Theocratic Constitutionalism: A Discourse on the Political System, Democracy, Judiciary and Human Rights Under Islamic Theocratic Constitutionalism, (Waikato Islamic Studies Review, Vol. 2, No. 2, 2016).
• Sahar F. Aziz, The Headscarf Debates: Conflicts of National Belonging (Book Review), Contemporary Sociology: A Journal of Reviews, Vol. 45, Iss. 2, p. 204-206, 2016.
• Guido Calabresi & Eric S, Fish, Federalism and Moral Disagreement, (Minnesota Law Review, Forthcoming).
• Douglas NeJaime & Reva Siegel, What Obergefell v. Hodges Should Have Said, Concurring Opinion, (in What Obergefell v. Hodges Should Have Said (Jack Balkin ed., 2017 Forthcoming).
• Katherine M. Franke, Opinion of Justice Katherine Franke in Obergefell v. Hodges, (inWhat Obergefell Should Have Said (Yale U. Press 2017), Jack Balkin ed., Forthcoming).
• Ben Boer, Culture, Rights and the Post-2015 Development Agenda, (Heritage, Culture and Rights: Challenging Legal Discourses, A. Durbach, L. Lixinski, eds, Hart Publishing, UK, Forthcoming).
• Christoph Engel, The Solidarity Motive, (MPI Collective Goods Preprint, No. 2016/14 (2016)).

From SmartCILP:

• Special Issue: Islamic Law: Its Sources, Interpretation, Its Economics, Finance and the Translation Between It and Laws Written in English. Articles by Rafat Y. Alwazna, Abdul-Hakim Al-Matroudi, Mustafa Shah, Ramon Harvey, Shafi Fazaluddin, Valentino Cattelan, Sami Al-Daghistani, Abbas Mehregan, Daniel Vazquez-Paluch, Fahad Al-Zumai, Mohammed Al-Wasmi and Hanem El-Farahaty. 29 International Journal for the Semiotics of Law 251-501 (2016).

European Court Rules On Jurisdiction In Annulment Action By Third Party

Last week, the Court of Justice of the European Union issued an interpretation of European Council regulations on judicial cooperation in civil matters in the context of an extremely unusual annulment action.  Edyta Mikołajczyk (EM) is heir to the estate of Zdzisława Czarnecka (ZC), first wife of Stefan Czarnecki (SC).  SC died apparently in 2012. ZC died in 1999.  SC had remarried in 1956, to Marie Louise Czarnecka (MLC). In a suit in Poland, EM brought an action to annul SC's second marriage to MLC, claiming that SC's first marriage to ZC had not been dissolved at the time of his marriage to MLC.  If successful, this would presumably mean that EM stands to inherit a larger portion of SC's estate than otherwise.  In Mikołajczyk v. Czarnecka, (CJEU, Oct. 13, 2016), the Court of Justice held that its regulation on recognition and enforcement of judgments in matrimonial matters applies to an action for annulment of marriage brought by a third party following the death of one of the spouses.  However, the Court of Justice went on to hold that under the jurisdictional provisions of the regulation, the annulment action should have been brought in France, where SC and MLC had lived, and not in Poland where EM resides. Law & Religion UK has more on the decision.

Recent Prisoner Free Exercise Cases

In Garner v. Muenchow, 2016 U.S. Dist. LEXIS 141335 (ED WI, Oct. 12, 2016), a Wisconsin federal district court dismissed an inmate's complaint that correctional officers treated Muslim inmates differently than others in access to vendor catalogs to order religious items and access to a Qur'an from the chapel.

In Annabel v. Michigan Department of Corrections, 2016 U.S. Dist. LEXIS 142269 (WD MI, Oct. 14, 2016), a Michigan federal district court dismissed a broad series of claims of mistreatment by a Jewish inmate, including harassment on the basis of his religion and interferences with his kosher diet.

In Hamilton v. Deputy Warden, 2016 U.S. Dist. LEXIS 142299 (SD NY, Oct. 13, 2016), a New York federal district court, while dismissing many claims, allowed a Muslim inmate to move ahead with his complaint against one defendant that he was denied access to religious services.

In Bullock v. Mitchell, 2016 U.S. Dist. LEXIS 142624 (WD NC, Oct. 13, 2016), a North Carolina federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that authorities were attempting to reclassify the Moorish Science Temple of America as a gang and its members as "security threat individuals."

In Wilcox v. Brown, 2016 U.S. Dist. LEXIS 142625 (WD NC, Oct. 13, 2016, a North Carolina federal district court dismissed an inmate's complaint that Rastafarian services were suspended.

Suit Charges Jehovah's Witness Congregation With Negligence In Employing Sexual Attacker

The Salt Lake Tribune reports on a suit filed in Utah state court last Wednesday against a Roy, Utah, Jehovah's Witness congregation, church leaders, and the Watchtower Bible and Tract Society charging negligence in allowing a man with a history of inappropriate sexual behavior to become an instructor in the church. Plaintiff alleges that she was sexually attacked by the instructor at least three times.  She also charges that the Roy church created a judicial committee to investigate whether the girl engaged in inappropriate sexual behavior, forcing plaintiff and her parents to listen to a 4-5 hour recording of one of the purported sexual attacks on her.

Buddhist Center Can Pursue Misrepresentation and As Applied, But Not Facial, RLUIPA, Challenges [CORRECTED]

In Thai Meditation Association of Alabama v. City of Mobile, 2016 U.S. Dist. LEXIS 142651 (SD AL, Oct. 12, 2016), an Alabama federal magistrate judge recommended dismissing facial claims under RLUIPA by a Buddhist meditation center whose zoning approval was denied.  The court rejected facial RLUIPA equal terms, discrimination and substantial burden challenges, but allowed plaintiff to proceed on its "as applied" challenges under RLUIPA.  The magistrate judge also recommended allowing plaintiff to move ahead with a negligent misrepresentation claim growing out of a zoning official's assurances that the meditation center would be treated as a house of worship for zoning purposes and that planning approval rather than seeking  use variance was the proper procedure to follow.

UPDATE: The magistrate's recommendations were adopted by the court in Thai Meditation Association of Alabama v. City of Mobile, 2016 U.S. Dist. LEXIS 150360 (SD AL, Oct. 31, 2016).

9th Circuit Upholds Required Disclosures By Pregnancy Clinics

In National Institute of Family and Life Advocates v. Harris, (9th Cir., Oct. 14, 2016, the 9th Circuit Court of Appeals upheld California's FACT Act which requires licensed pregnancy counseling clinics to disseminate a notice on the existence of publicly-funded family planning services, including contraception and abortion.  Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed. The court affirmed the district court's denial of a preliminary injunction to three religiously-affiliated non-profits, rejecting free speech and free exercise objections. The court concluded that the required notice by licensed facilities is professional speech subject to intermediate scrutiny. UPI reports on the decision. [Thanks to Scott Mange for the lead.]

English Consistory Courts Deny Requested Headstone Inscriptions

In England, Consistory Courts are ecclesiastical courts with jurisdiction over Church of England property and churchyards.  Two recent Consistory Court opinions deny families' requests for inscriptions on tombstones.  Law & Religion UK reports on a September decision from the Diocese of Carlisle refusing to allow the addition of a Masonic symbol to a headstone, concluding it is in violation of Churchyard Regulations. In a second case, The Telegraph reported yesterday on a decision from the Diocese of Ely refusing to allow a sentimental statement from a wife on her husband's headstone. The court said: A memorial stone is not the right place for a statement about how members of the family feel about the deceased nor how they would address him or her were they still alive. Passages of scripture, which have a timeless quality, are to be preferred."

3rd Circuit Gives Muslim Inmate Victory On Retaliation and RFRA Claims

In Mack v. Warden, (3d Cir., Oct. 11, 2016), the U.S. 3rd Circuit Court of Appeals in a lengthy opinion gave an unusual victory to an inmate who claims that anti-Muslim harassment by two correctional officers caused him to refrain from praying while at his paid work assignment at a federal prison commissary.  He contends that he was terminated from his work assignment for orally complaining to a supervisor about the harassment.  The suit was filed pro se, and inmate Charles Mack lost at the trial court level.  However he prevailed on a number of his claims on appeal at which he was represented by law students from Duke University's Appellate Litigation Clinic.

One of the defendant officers slapped Mack on his back, sticking an "I Love Bacon" sign on him, and then threatened to have him fired when he later objected.  The appeals court held 2-1 that Mack's oral complaint to a prison guard about the mistreatment qualifies as a petition for the redress of grievances protected by the 1st and 14th Amendments.  It thus supports a 1st Amendment retaliation claim. Second the appeals court held unanimously that a claim for damages under RFRA (as opposed to RLUIPA) lies against individual officers for their ultra vires acts, even though a prison policy or regulation is not being challenged, and that the alleged conduct substantially burdened plaintiff's religious exercise. The court however refused to extend a Bivens damage remedy for 1st Amendment free exercise violations and also dismissed plaintiff's equal protection claim. Penn Live reports on the decision.

Alabama Chief Justice Appeals Suspension With Cryptic Motion For Recusals

As previously reported, two weeks ago Alabama's Court of the Judiciary suspended Alabama Supreme Court Chief Justice Roy Moore for the remaining two years of his term on charges stemming primarily from his order to state probate judges telling them they had a duty under Alabama law to refuse to issue marriage licenses to same-sex couples despite controlling U.S. Supreme Court precedent to the contrary.  The decision has been followed by a series of appellate moves by Moore.  On Sept. 30, Moore filed a Notice of Appeal with the Alabama Supreme Court. Then on Oct. 10, Moore filed a Motion (full text) to recuse four current and three former Alabama Supreme Court Justices from hearing the appeal.  The grounds for seeking recusal of 6 of the 7 were filed only in a sealed affidavit with the following cryptic explanation:

Because Case No. 1150818 has been maintained under seal by the present and former justices who sat on that case, the argument for this section is not presented in this public filing. However, the facts presented in the attached Sealed Affidavit of Chief Justice Roy S. Moore amply demonstrate that the Justices, present and former, who sat on Case No. 1150818, have disqualified themselves by their biased and unconscionable actions in that case not only from participating in this case but also from playing any role in selecting a substitute Court.... Media organizations and members of the public, if they so choose, may intervene in Case No. 1150818 to demand that the records of that case be made public.

The motion also argued:

The selection of replacement Justices should be made by a random drawing from a pool of names consisting of all sitting circuit judges.

In an October 12 public statement, Moore urged the unsealing of the referenced case, saying in part:

I call upon the press to demand that the Alabama Supreme Court unseal Case No. 1150818 and, if necessary, to intervene in that case. The public has a right to know why I have requested that the justices, who participated in that case, be disqualified from playing any role in my appeal. The Court has refused my requests to unseal Case No. 1150818. I ask the Supreme Court and the media to act...

EEOC General Counsel Will Leave In December

According to the National Law Journal, earlier this week P. David Lopez announced that he will resign in December as general counsel of the U.S. Equal Employment Opportunity Commission. Lopez, who has held his position for six and one-half years, is the longest-serving general counsel in the agency's history.  His term was scheduled to end in 2018.  The EEOC enforces U.S. employment discrimination laws, including laws barring religious discrimination in employment.

Oklahoma Governor Declares Today "Oilfield Prayer Day"

On Oct. 10, Oklahoma Governor Mary Fallin issued a Proclamation (full text) declaring today "Oilfield Prayer Day." The Proclamation invites "people of all faiths to thank God for the blessings created by the oil and natural gas industry and to seek His wisdom and ask for protection." Americans United wrote the Governor asking her to withdraw the Proclamation. (Full text of letter).

Law and Religion Prof Seriously Injured In Attack

Above the Law reports that law professor Leslie Griffin, an expert and prolific writer in the area of law and religion, was seriously injured when she was attacked in a Henderson, Nevada park near her home last Friday.  The brutal attack, allegedly perpetrated by a man who was out of jail on supervised release after a domestic battery incident, occurred while Griffin was jogging.  Griffin is William S. Boyd Professor of Law at University of Nevada Law Vegas Law School.  We all wish Prof. Griffin a full and speedy recovery.

Churches Sue To Enjoin Massachusetts Ban on Gender Identity Discrimination

Four churches have filed a federal lawsuit alleging that recent changes to Massachusetts' public accommodation anti-discrimination law violate the churches' free exercise and free speech rights. As previously reported,  the law now bans discrimination on the basis of gender identity, and requires public accommodations to allow restroom use consistent with a person's gender identity. Last month, the Massachusetts Commission Against Discrimination released a Gender Identity Guidance setting out the Commission's interpretation of the new law and suggesting that in some situations, the anti-discrimination ban can apply to churches. The complaint (full text) in Horizon Christian Fellowship v. Williamson, (D MA, filed 10/11/2016), contends that all church activities, even ones not overtly religious, are expressions of the churches' religious mission.  The complaint focuses on provisions in the law that bar public accommodations from discriminating and from inciting others to discriminate.  It alleges:

22. The Churches desire to preach and post on their websites sermons addressing God’s design for human sexuality and the Churches’ beliefs about “gender identity,” but reasonably fear that if they were to do so they would violate the Act’s prohibitions.

23. The Act’s prohibitions would also apply to a church bulletin and website that included an explanation that the women’s restrooms are reserved for biological females, while the men’s restrooms are reserved for biological males.

Plaintiffs also filed a motion for a preliminary injunction and a memorandum in support of the motion (full text). ADF issued a press release announcing the filing of the lawsuit.

TRO Lifted In Challenge To Kaporos Ceremonies

Just as Yom Kippur was beginning on Tuesday evening, a California federal district court dissolved a TRO that it had issued last week (see prior posting) in a challenge under California's business practices law to the pre-Yom Kippur ritual of kaporos. In addition to lifting the TRO, the court ordered the parties to meet to set a date for a preliminary injunction hearing. (Full text of court order). The case has attracted significant attention, including the filing of an amicus brief by a Houston law professor Josh Blackman. AP reports on developments. The Atlantic says that the restraining order had no effect because defendants (Chabad of Irvine) had not scheduled a ceremony.  Instead Jews performed the koporos ceremony at a local slaughterhouse because of changes in California law.

Denver Archbishop Reflects on How a Catholic Should Vote in 2016

Last week, Denver Archbishop Samuel Aquila posted a lengthy discussion on the Archdiocese's website titled Voting as a Catholic in 2016: How Should a Catholic Vote. Recounting a dinner conversation he had recently had with a group of Catholics, Aquila said in part:

All pretty much agreed that, when it comes to life issues, Catholic politicians on both sides of the aisle have put party ideology before their faith and living their faith in the public square.

The Archbishop's comments focused primarily on issues of abortion, the Obamacare contraceptive coverage mandate and Proposition 106 on the Colorado ballot to legalize physician assisted suicide.

Federal Commission Issues Report on Human Rights In China

Last week, the Congressional-Executive Commission on China (created by law in 2000 to monitor China's international human rights compliance) released it 346-page 2016 Annual Report (full text). The letter transmitting the Report to President Obama includes a summary of findings on religious liberty:

The report notes the Chinese government’s efforts to expand political influence over the activities and growth of religious communities through both a national-level “sinicization” campaign and the convening of the first National Conference on Religious Work in 15 years. The report also notes the detention of Catholic clergy and Falun Gong practitioners, the ongoing demolition campaign targeting church buildings in Zhejiang province, and continued efforts to control the leadership of Tibetan Buddhism and restrict the religious practices of Uyghur Muslims. The report recommends expanded U.S. leadership on international religious freedom, through coordinated multilateral efforts and bilateral interactions that stress the strategic and economic value of promoting this fundamental freedom. The report also recommends that the Administration use existing law to restrict entry visa access for individuals complicit in severe religious freedom violations.

Crux has more on the Annual Report released on Oct. 6.

Muslim Caseworker Sues Charging Religious Discrimination

A Bangladeshi Muslim woman who was a social worker and had been employed as a case manager by a behavioral healthcare company filed suit in an Oregon state court last week charging religious, racial, national origin and disability discrimination in her termination.  The complaint (full text) in Rahman v. Cascade Behavioral Healthcare, Inc., (OR Cir., Ct., filed 10/7/2016), claims, in part, that adverse employment action against her stemmed from her refusing for religious reasons to shake hands with men (including her boss), her wearing of a hijab, and her praying at work up to three times per day. The Oregon Bureau of Labor & Industries had dismissed her complaint filed with them, finding inadequate evidence of discrimination. (Full text of OBLI order).  The Oregonian reports on the lawsuit.

Religious Comment Does Not Invalidate Civil Protection Order

In Majeed v. Majeed, (OH App., Oct. 7, 2016), an Ohio appellate court held that a religious comment made by a magistrate at the end of a hearing at which the magistrate agreed to issue a wife a domestic violence civil protection order was not grounds for overturning the order.  The wife, who testified that her husband was Muslim, had the following exchange with the magistrate at the end of the hearing at which the husband did not appear:

The Petitioner: Thank you very much for your time. The Court: Be careful. Take care of yourself. The Petitioner: Yes, with God’s help I’ve been depressed and it’s the worst feeling in the world to feel like Jesus is not real. I just got back with Jesus and I’d like it to stay there.  The Court: An[d] He would like you to stay there also. The Petitioner: Yes, ma’am. The Court: Thank you, ma’am. The Petitioner: God bless.

The appeals court said in part: "there is nothing in the record to indicate that religious beliefs affected the trial court’s issuance of a domestic violence CPO."

Recent Articles of Interest

From SSRN:

• Mark W. Cordes, Schools, Worship, and the First Amendment, (Suffolk University Law Review, Vol. 48, 2015).
• Jeremy Waldron, Desanctification of Law and the Problem of Absolutes, (June 5, 2016).
• Christoph Engel, The Solidarity Motive, (MPI Collective Goods Preprint, No. 2016/14 (2016)).
• L. Joe Dunman, Blind Imitation: The Revolting Persistence of Bowers v. Hardwick, (Thomas M. Cooley Law Review, Vol. 33, No. 1, 2016).

California Court Issues TRO Against Kaporos Practices

As previously reported, in late September an animal rights group filed suit against Chabad of Irvine in a California federal district court challenging Chabad's promotion of the pre-Yom Kippur ceremony of kaporos that involves use of live chickens which are then slaughtered. (Complaint in United Poultry Concerns v. Chabad of Irvine, (CD CA, filed 9/29/2016)). The complaint contended that defendants are in violation of California's unfair business practices law. On Oct. 6, the court on its own motion ordered plaintiff to show cause why the case should not be dismissed for lack of standing. (Full text of court order.)  On Oct. 7, plaintiff filed a response (full text) arguing in part:

UPC has standing under the Unfair Competition Law based on its diversion of organizational resources spent addressing Defendants’ unlawful activity and attempting to convince authorities to take action. 

The court was apparently convinced.  It issued another order (full text) on Oct 7 granting plaintiff a temporary restraining order barring defendants from killing chickens or other animals in exchange for a fee or donation in violation of California Penal Code Sec. 597(a). It set a hearing on whether to order a preliminary injunction for October 13, the day after Yom Kippur-- effectively barring the pre-Yom Kippur practice by defendants for this year.

Recent Prisoner Free Exercise Cases

In Rush v. Malin, 2016 U.S. Dist. LEXIS 137779 (SD NY, Oct. 4, 2016), a New York federal district court denied a preliminary injunction to a Shi'a Muslim inmate who was not permitted to observe Muharram/Ashura separately from Sunni Muslims.

In Khan v. Barela, 2016 U.S. Dist. LEXIS 139052 (D NM, Sept. 30, 2016), a New Mexico federal magistrate judge dismissed a complaint by a Muslim inmate that prison officials failed to give him a requested daily prayer schedule and Islamic Observance Calendar and required him to remain in a pod while Christian sermons were being presented.

No Religious Exemption To Immunization Requirements For Merely Moral Objections

In Watkins-El v. Department of Education, (ED NY, Oct. 6, 2016), a New York federal district court refused to grant a preliminary injunction, upholding a New York school's denial of a religious exemption from immunization requirements for plaintiff's children. An exemption is available only for "genuine and sincere religious beliefs...." The court said in part:

Although plaintiff asserts that his religion is "Islamism" and that he is a Moor, he does not claim that the tenets of Islamism or Moorish culture prohibit vaccinations.... Instead, Plaintiff bases his opposition on the assertion that these vaccines contain "monkey cells, pork derivatives, and aborted human fetuses," which Plaintiff's religion dictates he cannot consume.... Plaintiff's opposition to these substances may be genuine and sincere, but he has not demonstrated that it stems from a religious, rather than simply moral, belief.... Furthermore, Plaintiff presents no evidence that these vaccines in fact contain the substances to which he objects.

First Grade Teacher's Age Discrimination Suit Dismissed Under Ministerial Exception

In Ciurelo v. St. Regis Parish, (ED MI, Oct. 7, 2016), a Michigan federal district court held that federal (ADEA) and state (ELCRA) age discrimination claims brought by a former 1st grade teacher in a Catholic school are barred by the ministerial exception doctrine. The teacher's contract was not renewed after eight years of teaching. Finding that plaintiff was the type of employee to whom the doctrine applies, the court said in part:

While this Court has considered all the factors identified in the Hosanna-Tabor majority opinion, it concludes that the paramount factor of religious function ... provides the decisional pathway here. Plaintiff was unquestionably engaged in two important religious functions on a daily basis: religious teaching for 20 to 30 minutes and leading the morning prayers. These activities are the hallmark of religious exercises through which religious communities transmit their received wisdom and heritage to the next generation of believers. The First Amendment provides a shield to the church and her officials against a secular government’s incursion by way of its employment-law litigation process, which may undermine the freedom to appoint those entrusted with such matters of faith.

Liberal Jewish Groups Ask Israel's High Court To Order Egalitarian Prayer Space At Western Wall

As reported by YNet News, yesterday groups representing Reform and Conservative Judaism and the group Women of the Wall filed an amended petition with Israel's High Court of Justice asking it to order the government to provide egalitarian prayer space at the Western Wall (Kotel).  After long negotiations a compromise had been approved by the government early this year, but the agreement unraveled after objections from ultra-Orthodox parties in the government. (See prior posting.) A press release from the Israel Movement for Reform and Progressive Judaism describes yesterday's court filing:

The petition ... demands ... [establishment of] a permanent, national praying platform, respectable and accessible, serving as an official and organized part of the Kotel site, and which will regularly hold prayer services with no gender separation.... 

Furthermore, the petition demands ensuring suitable budgets for the building and on-going maintenance of the site in one of two ways – either complete implementation of the government decision to establish an egalitarian platform by Robinson’s arch or the establishment of a third prayer platform in the existing Kotel area (alongside a separate men’s and women’s section).

Furthermore, the petitioners demand that as part of the Kotel Heritage Foundation institutions, proper representation shall be given to the Reform and Conservative Movements and to Women of the Wall, and that the regulation regarding subordination to the Chief Rabbinate hereby be omitted from the Foundation regulations.

[Thanks to Scott Mange for the lead.]

New York Archdiocese Creates New Victim Compensation Fund

AP reports that on Thursday New York's Catholic Archbishop, Cardinal Timothy Dolan, announced a new compensation alternative for victims of clergy sex abuse.  The Archdiocese has established a new fund that will be administered by attorney Kenneth Feinberg who managed the federal 9-11 compensation fund.  For those who received compensation, records of the abuse and the Church's response to it will remain private unless disclosed by the victim. Those with pending abuse claims will have until Jan. 31 to apply for compensation.  Beginning Feb. 1, victims who have not yet filed claims will be able to apply to the fund. [Thanks to Tom Rutledge for the lead.]

Disclaimer Requirement Violates Pregnancy Center's Free Speech Rights

In Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, (D MD, Oct. 4, 2016), a Maryland federal district court held that a Baltimore ordinance requiring limited purpose pregnancy centers to post specified disclaimers is unconstitutional as applied to the pregnancy center bringing the lawsuit.  The ordinance requires centers to post signs in their waiting rooms stating that they do not provide or make referrals for abortion or birth control services. The court, applying strict scrutiny, held that this compels the pregnancy center to speak, delivering information that it would not otherwise transmit. The court said in part:

The City identifies two interests to support the Ordinance: (1) to protect the public from deceptive business practices, and (2) to promote public health by “ensuring that individuals who seek reproductive health services have access to truthful information about the services available at Pregnancy Centers.”...

[H]ere, even if there had been bountiful evidence of misleading advertising, there is no evidence that women were coming to the Center under false pretenses and suffering harmful health consequences because of it. Thus, the City has not satisfied the “demanding standard” of showing that the Ordinance actually promotes a compelling interest in solving a specific problem.

ADF issued a press release announcing the decision and linking to other pleadings and court decisions in the long-running litigation.

Suit Over High School Assignment On Islam Moves Forward

In Wood v. Board of Education of Charles County, (D MD, Sept. 30, 2016), a Maryland federal district court refused to completely dismiss a suit by parents of an 11th grader who complained that their daughter's World History assignments "promot[ed] the Islamic religion over other faiths" and "required the students . . . to profess statements on the teachings and beliefs of Islam in written worksheets as graded homework assignments." The father warned the school against retaliating against his daughter for her adherence to her Christian faith. The court dismissed plaintiffs' claim for injunctive relief as moot since their daughter had now graduated.  However the court allowed the parents to move ahead with their Establishment Clause and compelled speech claim for damages against the school's principal and vice principal, saying in part:

Here, while discovery and trial may or may not prove otherwise, Plaintiffs allege in the Complaint that in addition to learning facts about the background and beliefs relevant to Islam, Defendants required C.W. to “confess” the Islamic Profession of Faith....

The court also allowed the father-- who was barred from school grounds after threatening media coverage and a lawsuit-- to move ahead with his claim of retaliation. The court dismissed due process, Title VI and Title IX claims. See prior related posting.)

Conviction of Baptist Missionary In Russia Upheld On Appeal

As reported by Baptist Press, on Sept. 30 in Oryol, Russia, a city 220 miles southwest of Moscow, an appellate court upheld the conviction of Baptist missionary Donald Ossewaarde who was fined the equivalent of $642 (US) for violating Russia's anti-terrorism law amendments (full text in Russian) adopted earlier this year.  Among other things, the law limits who can operate as a foreign missionary and restricts locations where they can pray or proselytize. (See prior posting.) Ossewaarde, who held religious services in his home without notifying authorities, argued that technically his activities were not banned because he did not represent any officially registered religious organization.

Favoring Religious Over Non-Religious Objections Is Not Religious Discrimination

In Brown v. Our Lady of Lourdes Medical Center, Inc., (NJ App., Oct. 3, 2016), a New Jersey state appellate court held that a community health educator who was fired for refusing to comply with a medical center's compulsory flu vaccination policy could not establish a prima facie case of religious discrimination under New Jersey's Law Against Discrimination.  Plaintiff argued that by permitting exemptions for those with religious objections, but not for those opposed to vaccination for other reasons, her employer had discriminated by favoring religious over non-religious grounds. According to the court:

[Plaintiff]  did not allege that the adverse employment action taken against her was because of her membership in a protected class. Without any allegation that she was a member of a protected class based upon her race, color, religion, sex, or national origin, plaintiff's LAD discrimination claim was futile.

New Jersey Law Journal reports on the decision.

Settlement Reached In Suit By College Researcher Who Claimed Anti-Creationism Discrimination

The College Fix today reports that a six figure settlement has been approved by a California state trial court in Armitage v. Board of Trustees of the California State University.  In the suit (see prior posting), a former electron microscope technician in the Biology Department of California State University Northridge claimed that he was terminated because of hostility to his published research findings supporting "young earth" creationist theory. The suit alleged infringement of plaintiff's free exercise and academic freedom rights.

Suit Claims Kaporos Violates California's Business Practices Law

A lawsuit was filed last week in a California federal district court by an animal rights group challenging the legality under California law of the pre-Yom Kippur ritual of kaporos (or kapparot) practiced by many observant Jews.  The ritual involves waving a live chicken overhead to symbolically transfer one's sins to it, and then slaughtering the chicken. The complaint (full text) in United Poultry Concerns v. Chabad of Irvine, (CD CA, filed 9/29/2016) alleges that the ritual as implemented by Chabad of Irvine constitutes an "unlawful business practice" under California's Business and Professions Code because the practice violates the state's ban on "intentional and malicious killing of animals" other than for use as food (California Penal Code Sec. 597(a), 599c).  The complaint adds:

taking out vengeance on an innocent animal for one’s own shortcomings is exactly the type of societal evil the legislature sought to prohibit in enacting this provision. 

According to the complaint Chabad charges $27 to each person for furnishing and disposing of the chicken, making a $25 profit per chicken. The suit seeks a preliminary and permanent injunctions and declaratory relief. On Monday, UPC issued a press release announcing the filing of the lawsuit.

New California Law Requires Disclosure of Title IX Exemptions

As reported by The Advocate, last Friday California's Gov. Jerry Brown signed S.B. 1146 (full text) into law.  The new law requires religiously affiliated schools in California that have obtained an exemption from any of the anti-discrimination provisions of Title IX or California's Equity in Higher Education Act to publicly disclose that fact.  The federal Department of Education has granted exemptions nationwide to some 43 colleges and universities (6 in California) from non-discrimination requirements that conflict with the schools' religious tenets. These variously include bans on discrimination on the basis of sexual orientation or gender identity, as well as on other grounds. California schools now must disclose this fact to students, faculty and applicants for admission in publications, student orientation and other specified ways. Information on exemptions must also be filed with California's Student Aid Commission.

Workplace Program Is A "Religion" Under Title VII

In EEOC v. United Health Programs of America, (ED NY, Sept. 30, 2016), a New York federal district court in a 102-page opinion held that programs called "Onionhead" and Harnessing Happiness" that were introduced into the workplace are religious for purposes of Title VII, and not merely a conflict resolution tool. The court also refused to dismiss reverse religious discrimination and hostile work environment claims by various former employees, as well as conventional religious discrimination claim by one former employee. UPDATE: Newsday reports on the decision.

Supreme Court Term Opens With Action On Cert. Petitions and More

The U.S. Supreme Court opened its October 2016 Term on Monday, with the first oral arguments this morning. Here is a round-up of a number of developments leading up to, and occurring on, opening day.

Last Thursday, in advance of opening day, the Court granted review in eight cases (Order List), one of which was McLane Co. v. EEOC, No. 15-1248 (cert. granted limited to one question, 9/29/2016). (SCOTUSblog case page).  While the case involves EEOC charges of gender and age discrimination, the procedural issue which the court will decide may affect EEOC religious discrimination cases as well.  At issue is whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, or whether an appellate court should instead give more deference to the district court's decision. SHRM reports on the case.

As reported by the National Law Journal, on Sunday, the annual Red Mass was held (photos) at the Cathedral of St. Matthew the Apostle in Washington, D.C.  It was attended by Chief Justice Roberts, and Justices Kennedy, Thomas, Alito and Breyer.  The late Justice Scalia's son gave a reading from the Bible at the ceremony.

On Monday, the Court issued its usual lengthy opening-day list of certiorari denials. This year's list of cases covered 64 pages of the 71-page Oct. 3 Order List.  Among the cases in which review was denied was Klingenschmitt v. United States, (Docket No. 15-1445). In a decision by the Court of Federal Claims (see prior posting) which was summarily affirmed by the Court of Appeals for the Federal Circuit, the court rejected claims by a Navy Chaplain that he was that he was wrongfully discharged from the Navy. The refusal to recertify Klingenschmitt as a chaplain culminated a long-running battle between him and the military over military regulations requiring chaplains to deliver inclusive prayers at military event.

Obama Holds Pre-Rosh Hashanah Call With 600 Rabbis

Rosh Hashanah begins this evening. As reported by JTA, last Monday President Obama held a pre-holiday conference call with over 600 rabbis from the Orthodox, Conservative, Reform and Reconstuctionist movements of Judaism.  In his opening remarks (full text), the President said in part:

... Rosh Hashanah is a time for reflection, and I'm not exempt from that. So, looking back on the last eight years, I'm both proud of what we've accomplished together, but also mindful of the work we have before us.....

... [W]e've still got a lot of work to do -- on the refugee crisis, on criminal justice reform, reducing violence, and creating a political culture in this country that’s a little more functional. But a new year brings new hope, and the community represented on this phone call has always known what it means to stand up for the less fortunate, the stranger, the immigrant, the refugee.

Recent Articles of Interest

From SSRN:

• Christopher C. Lund, RFRA, State RFRAs, and Religious Minorities, (San Diego Law Review, Vol. 53, p. 163, 2016 (symposium)).
• Pranoto Iskandar, The Human Right to Non-Religious Beliefs: A Prospectus, (September 23, 2016).
• Christopher C. Lund, Keeping Hobby Lobby in Perspective, (in The Rise of Corporate Religious Liberty (Micah Schwartzman, Chad Flanders, and Zoë Robinson eds., Oxford University Press, 2016)).
• Joel A. Nichols & John Witte, Religious Law and Religious Courts as a Challenge to the State (National Report for United States of America), (Religious Law and Religious Courts as a Challenge to the State: Legal Pluralism from a Comparative Perspective, Ed. Uwe Kischel (Verlag Mohr Siebeck, Tübingen, 2016), 83-111).
• Nelson Lund, Rousseau's Rejuvenation of Political Philosophy: A New Introduction, (Rousseau’s Rejuvenation of Political Philosophy, N. Lund, Palgrave, 2016).
• Michele Goodwin & Allison M. Whelan, Constitutional Exceptionalism, University of Illinois Law Review, 2016, (Forthcoming).
• Paul J. Heald, Christian Libertarianism and the Curious Lack of Religious Objections to the Patenting of Life Forms in the United States, (September 29, 2016).
• Engy Abdelkader, A Comparative Analysis of European Islamophobia: France, UK, Germany, Netherlands and Sweden, (UCLA Journal of Islamic and Near Eastern Law, Vol. 16, 2016).
• G. Michael Fenner, Same-Sex Marriage, Conscientious Objection and an Ambushed Pope, (Creighton Lawyer, Fall 2016).
• Katayoun Alidadi, The Limits of State Law in the Case of an Organized Secular-Humanist Community in the Southern Bible Belt: Model Behaviour Shaping Self-Restrained Law Use, (Rechtsphilosophie: Zeitschrift Fur Grundlagen Des Rechts, Forthcoming 2016).
• Jason N. E. Varuhas, Damages and Human Rights: Introduction, (Chapter 1 of JNE Varuhas, Damages and Human Rights (Hart Publishing, 2016)).
• Jeremy Waldron, What a Dissenting Opinion Should Have Said in Obergefell v. Hodges, (September 28, 2016).
• Iain T. Benson, Undazzling Equality, (September 24, 2016).
• Brian D. Galle, Valuing the Right to Sue: An Empirical Examination of Nonprofit Agency Costs, (September 28, 2016).

From SmartCILP:

• Rowan W. Dorin, "Once the Jews Have Been Expelled": Intent and Interpretation in Late Medieval Canon Law, 34 Law & History Review 335-362 (2016).
• Mohammad Rasekh, Sharia and Law in the Age of Constitutionalism, [Abstract], 2 Journal of Global Justice & Public Policy 259-276 (2016).

Recent Prisoner Free Exercise Cases

In a lengthy opinion in Jackson v. Crawford, 2016 U.S. Dist. LEXIS 130983 (WD MO, Sept. 26, 2016), a Missouri federal district court upheld the prison system's failure to include "atheism" as a religious preference on intake forms, but allowed an inmate to move ahead on his claim that he was not given a sufficient opportunity for a secular alternative to the standard substance abuse program.

In Mitchell v. Cicchi, 2016 U.S. Dist. LEXIS 131900 (D NJ, Sept. 26, 2016), a New Jersey federal district court allowed a Muslim inmate to move ahead with a claim for nominal damages asserting that his free exercise rights were infringed when he was not allowed to attend an Eid feast because he was in maximum custody status.

In Warrior v. Gonzalez, 2016 U.S. Dist. LEXIS 132639 (ED CA, Sept. 27, 2016), a California federal district court dismissed a suit by a Muslim inmate challenging unclothed visual body cavity searches of Muslim inmates during Ramadan before they were allowed to attend religious programming.

In Williams v. Blood, 2016 U.S. Dist. LEXIS 133517 (D UT, Sept. 27, 2016), a Utah federal district court refused to dismiss for failure to exhaust administrative remedies an inmate's complaint that authorities ended certain Islamic meetings and he was retaliated against for filing grievances about religious diet accommodations.

In Harris v. California Medical Forensic Service, 2016 U.S. Dist. LEXIS 133752 (ND CA, Sept. 28, 2016), a California federal magistrate judge dismissed an inmate's claim that denial of use of marijuana burdened the exercise of his Christian Fundamentalist beliefs.

In Epperson v. Crawford, 2016 U.S. Dist. LEXIS 134065 (WD KY, Sept. 29, 2016), a Kentucky federal district court dismissed a Muslim inmate's complaint that a correctional officer dragged his prayer rug across the floor, but allowed him to move ahead with a complaint alleging retaliation for filing a grievance over the incident.

In Brewer-El v. Beckstrom, 2016 Ky. App. Unpub. LEXIS 662 (KY App., Sept. 30, 2016), a Kentucky state appeals court upheld the dismissal of an inmate's complaint that his grievance would not be considered because he added the suffiix "EL" to his last name. He alleged this infringed his free exercise of religion.

In Williams v. Pollard, 2016 U.S. Dist. LEXIS 134509 (ED WI, Sept. 29, 2016), a Wisconsin federal district court dismissed an inmate's complaint over confiscation of his materials from Fruit of Islam, a subgroup (considered by authorities as a security threat group) within the religious group Nation of Islam. His retaliation claim was also rejected.

In Sharps v. Richardson, 2016 U.S. Dist. LEXIS 135297 (D MD, Sept. 29, 2016) a Maryland federal district court rejected a Muslim inmate's complaint that the vegetarian diet that complies with his religious requirements consists of a repetition of the same meals.

In Johnson v. Federal Bureau of Prisons, 2016 U.S. Dist. LEXIS 135434 (MD PA, Sept. 30, 2016), a Pennsylvania federal district court allowed a Muslim inmate to move forward with complaints that he was not permitted to engage in group prayer and was not allowed to pray in the prison library and at adult education classes.

In Elder v. Cook County Department of Corrections, 2016 Ill. App. Unpub. LEXIS 2117 (IL App., Sept. 30, 2016), an Illinois state appellate court upheld dismissal of a complaint by an inmate who was a follower of Hermeticism that his request for a copy of the Kybalion was ignored.

Constitutional Challenge Filed To Illinois Limits on Conscientious Objection By Doctors

A suit was filed this week in an Illinois federal district court by several pro-life pregnancy centers challenging the constitutionality recently enacted amendments to Illinois Health Care Right of Conscience Act. (See prior posting.)  The new amendments require doctors and health care facilities to inform patients of all health care options and, if the patient requests an option to which the physician has conscientious objections, the physician must refer or transfer the patient elsewhere for the procedure. The complaint (full text) in National Institute of Family and Life Advocates v. Rauner, (ND IL, filed 9/29/2016), alleges that the amendments violate their religious freedom rights and require them to engage in compelled speech:

It would violate the religious and moral beliefs and conscience of Plaintiffs and their staff to comply with SB 1564 § 6.1(1)’s requirement that for every pregnant woman they treat, they must “inform” her that abortion as a “legal treatment option,” and that they must describe “benefits” of abortion that they disagree with.

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

Suit Challenges Veterans' Memorial Featuring Cross

A suit was filed yesterday in a New Jersey federal district court challenging on Establishment Clause grounds a war memorial erected outside the Veterans Memorial public library in Roselle Park, New Jersey.  As pictured and described in a report on the lawsuit by NJ Advance Media, the memorial depicts a soldier kneeling over a grave marked by a cross. The complaint (full text) in American Humanist Association v. Borough of Roselle Park, (D NJ, filed 9/30/2016) alleges in part:

When the government displays an iconic religious symbol – the symbol of Christianity – on its property, it sends a strong message of endorsement and exclusion. This message of religious favoritism is even more problematic because the cross display purports to be a government memorial honoring war dead. No such monument should honor just one religious group, but the cross at issue here does exactly that: it exalts Christian veterans and excludes everyone else.

UPDATE: NJ Advance Media reports that on Oct. 6, in light of the litigation, the Roselle Park Borough Council voted unanimously to dismantle the statue outside the library.

Alabama Chief Justice Roy Moore Suspended From Office Over Same-Sex Marriage Order

Alabama's 9-member Court of the Judiciary today unanimously concluded that Alabama Supreme Court Chief Justice Roy Moore violated various Canons of Judicial Ethics in issuing an order to state probate judges telling them they had a duty under Alabama law to refuse to issue marriage licenses to same-sex couples despite the U.S. Supreme Court's decision finding that denial of marriage licences to same-sex couples is unconstitutional. The Court of the Judiciary also found that Moore should have recused himself in a subsequent case involving same-sex marriage.  The Court suspended Moore from office for the remaining two years of his term.  As reported by NPR, Moore's age will disqualify him from again running for the state Supreme Court in 2018.  A majority of the court voted to completely remove Moore from office, but removal rather than suspension requires a unanimous vote.  In the 50-page opinion in In re Roy S. Moore, (AL Ct. Jud., Sept. 30, 2016), the Court of the Judiciary also took into account the fact that Moore had in 2003 been the subject of proceedings that removed him from office after his resistance to court orders relating to a Ten Commandments monument.

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.