Recent Prisoner Free Exercise Cases

In Sanchez v. Mitchell, 2016 U.S. Dist. LEXIS 157853 (D MA, Nov. 15, 2016), a Massachusetts federal district court dismissed an inmate's complaint that his free exercise rights were infringed when he was removed from the kosher diet list because he had received 3 incident reports within 30 days.

In Demara v. Barker, 2016 U.S. Dist. LEXIS 158191 (ED CA, Nov. 15, 2016), a California federal magistrate judge dismissed with leave to amend a Native American inmate's complaint that authorities lost a religious package sent to him containing an engraved flute and ceremonial beads and instruments. This prevented him from attending flute ceremonies which caused him to be ostracized by his tribe.

In Kindred v. King, 2016 U.S. Dist. LEXIS 158203 (ED CA, Nov. 15, 2016), a California federal magistrate judge, while dismissing a number of claims by a Native American civil detainee of interference with his religious practices, permitted plaintiff to move ahead with a claim that two of the defendants denied him spiritual or sacred items that do not implicate safety and security concerns.

In Sirleaf v. Wall, 2016 U.S. Dist. LEXIS 158256 (ED VA, Nov. 15, 2016), a Virginia federal district court dismissed for failure to exhaust administrative remedies a complaint by an inmate who was "a member of the Common Wealth of Israel" that he was denied Ecumenical Pilgrim Feast, worship items and the right to celebrate the birthday and coronations of Emperor Haile Selaisse.

In Venkataram v. Bureau of Prisons, 2016 U.S. Dist. LEXIS 158767 (SD FL, Nov. 15, 2016), a Florida federal magistrate judge recommended dismissing with leave to amend a Hindu inmate's complaint that he was denied vegetarian meals that conform to his religious beliefs.

In Amaker v. Fischer, 2016 U.S. Dist. LEXIS 158785 (WD NY, Nov. 16, 2016), a New York federal magistrate judge allowed a Nation of Islam inmate to file an amended complaint alleging that a corrections officer prevented him from possessing his religious materials.

In Hearns v. Gonzales, 2016 U.S. Dist. LEXIS 159016 (ED CA, Nov. 15, 2016), a California federal magistrate judge refused to allow an inmate to amend his complaint to add a claim that a corrections officer poured bleach over his prayer rug and then confiscated it in retaliation for his filing this lawsuit.

In Feiger v. Smith, 2016 U.S. Dist. LEXIS 159731 (ED CA, Nov. 16, 2016), a California federal magistrate judge dismissed a Jewish inmate's claims under state law (Unruh Civil Rights Act and Bane Act) regarding problems with the kosher diet program and religious services, but rejected defendants' immunity defense.

In Olodumare v. U.S. District Court, 2016 U.S. Dist. LEXIS 160369 (SD FL, Nov. 17, 2016), a Florida federal magistrate judge dismissed as "a hodgepodge of unsupported assertions written in incomprehensible legalistic gibberish" a pleading captioned "All Writs of Habeas Corpus Declared by God."

Mother Challenges State's Law On Emancipation of Minors

In a suit filed earlier this week in a Minnesota federal district court, the mother of a 17-year old challenges the Minnesota statute that allows minors who are living separate and apart from their parents or legal guardians and who are managing their own financial affairs to alone consent to their own personal medical, dental, mental and other health services.  The complaint (full text) in Calgaro v. St. Louis County, (D MN, filed 11/16/2016), challenges the furnishing of medical treatment to the 17-year old-- including furnishing prescription drugs and clinical treatment for gender transition from male to female. The complaint also challenges a determination by the minor's school district of emancipation so that the mother is not entitled to the teen's school records or to participate in the minor's educational decisions.  Plaintiff claims that, because there is no procedure for the parent to challenge the determination of emancipation that was made without court order, this deprives her without due process of her parental rights to make decisions on the care of her child. Thomas More Society announced the filing of the lawsuit. NBC News reports on the litigation.

Missouri Appeals Court: Frozen Pre-Embryos Are Marital Property, Not Children

In McQueen v. Gadberry, (MO App., Nov. 15, 2016), a Missouri state appellate court in a 2-1 decision held that frozen pre-embryos created from the husband's sperm and the wife's eggs for the purpose of in vitro fertilization are to be treated as marital property in a divorce proceeding, rather than being treated as children. The appeals court upheld the trial court's award of the pre-embryos to the husband and wife jointly with the stipulation that they could be used only with the consent of both parties.  The wife had argued that because Mo. Rev. Statutes Sec. 1.205 declares that "the life of each human being begins at conception," the court should have treated the pre-embryos as children and awarded her custody so that she could have them implanted to become pregnant. The majority held, however, that applying this declaration to pre-embryos would infringe the father's right to privacy and his right not to procreate.  The majority observed:

We balance the interests of the parties in this case because the frozen pre-embryos are still in vitro and have not been transferred to or implanted in McQueen’s uterus, and therefore, the disposition of the frozen pre-embryos does not implicate McQueen’s right to bodily integrity in the area of reproductive choice under Roe which would outweigh any of Gadberry’s interests in avoiding parenthood.

Judge Dowd, dissenting, argued that the embryos should have been treated as children and the trial court should have applied the statutory provisions on child custody in awarding them. He argued that the father already made a reproductive decision in creating the embryos and so has no further reproductive decision to protect. AP reports on the decision.

NY Town Settles Construction Dispute With Sikh Temple

According to NBC News, on Wednesday a settlement agreement between the Town of Oyster Bay, New York and the Guru Gobind Singh Sikh Center was filed with a federal district court. The Sikh Temple had sued under RFRA claiming that the town's stop work and environmental review orders were issued to appease residents who are hostile to the temple and its worship. (See prior posting.) Under the settlement the temple agreed to make certain construction changes and the town board agreed that it would no longer be authorized to serve as the oversight committee for the site plan approval process.

Spanish Judge Clears Artist Who Used Stolen Consecrated Hosts

In Madrid, Spain, a trial court judge this week dismissed a suit which charges artist Abel Azcona with offending religious sentiments in violation of Spanish Penal Code Sec. 525.  The section prohibits publicly disparaging the dogmas, beliefs, rites or ceremonies of members of a religious confession. As reported by CNA:

Azcona stole more than 240 consecrated hosts from Masses celebrated in the cities of Madrid and Pamplona. He later took nude photos of himself arranging them on a floor to spell the word ‘pederasty.’ In November 2015, he displayed the photos as part of an art display in a city-owned exhibition hall available for public use. When that exposition was over, the would-be artist sold the consecrated hosts for more than $268,000....

The judge claimed Azcona made use of the hosts "discreetly, without his conduct being able to be characterized as disrespectful, offensive or irreverent." The exhibition of the artwork "does not constitute derision of the beliefs, rites or ceremonies of the Catholic Church nor is it an affront to those who profess or practice said beliefs," according to the judge.

 The Spanish Association of Christian Lawyers which filed the suit (see prior posting) says it will file an appeal.

Suit Challenging Indiana Anti-Discrimination Laws Moves Ahead

As reported by the Indianapolis Star, an Indiana state trial court judge is allowing a lawsuit filed by three conservative advocacy organizations to move ahead.  The suit challenges laws barring discrimination on the basis of sexual orientation.  The organizations assert that the laws infringe on their free exercise rights. The suit challenges the ordinances of four Indiana cities as well as the so-called "fix" to Indiana's Religious Freedom Restoration Act that prevents using RFRA to discriminate. The order (full text) in Indiana Family Institute, Inc. v. City of Carmel, Indiana, (IN Super. Ct., Nov. 16, 2016), however, requires plaintiffs to file an amended complaint adding the state of Indiana as a party. In a statement (press release), plaintiffs' counsel said:

Plaintiffs currently stand stripped of the heightened legal protection provided under RFRA and must host speakers and hire employees who advocate for same-sex marriage contrary to their religious beliefs. We believe in the constitutionally protected free-exercise of religion that affects people who advocate for traditional marriage, just as it protects all other religious beliefs.

Developments In Two Diocese Bankruptcies

There have been developments this week in bankruptcy proceedings of two different Catholic dioceses.  RNS reports that the Archdiocese of St. Paul and Minneapolis has filed a revised plan under Chapter 11 offering to pay $132 million to settle nearly 450 child sex abuse claims asserted against its clergy.  Lawyers for the claimants, however, say that the offer is far too small.

Meanwhile in New Mexico, the Diocese of Gallup has been prevented from finalizing its exit from bankruptcy because of a new suit filed against it by Sisters of the Blessed Sacrament, a religious order that founded St. Michael Indian School in Arizona.  According to Tuesday's Alamogordo Daily News, a new suit against the Sisters of Blessed Sacrament claims a woman was sexually abused at the school by a Franciscan friar. The Sisters have in turn filed suit against the Diocese of Gallup.

Indonesian Governor Being Prosecuted For Blasphemy For Campaign Statement

In Indonesia, Basuki Tjahaja Purnama (also known as "Ahok"), former Deputy Governor of Jakarta who has been serving as its governor since late 2014 has now been charged with blasphemy because of statements made in his campaign for re-election as governor in the upcoming February elections. As reported yesterday by AlJazeera, Ahok who is a member of the Chinese Christian minority in Indonesia angered Muslims when he accused his election opponents of misusing against him a Quranic verse that suggests Muslims should not choose non-Muslims as leaders. After more than 100,000 Muslims took to the streets to demand Ahok's prosecution, the police began an investigation and eventually concluded that the case should go to court for a determination of whether of not Ahok committed blasphemy.  If found guilty, he could be sentenced to 5 years in prison.  Ahok has apologized, saying he was criticizing his election opponents, not the Quran.

In Israel, Anti-Noise Bill Aimed At Mosques Falters When Legislators Realize It Also Bars Jewish Sabbath Alerts

The Washington Post reported yesterday that in Israel this week, ultra-Orthodox Jewish government ministers stopped progress in the Knesset (Parliament) on a government-approved bill that would have prevented religious institutions from using loud speakers.  The law was aimed at mosques in which the five-times-per-day calls to prayer are broadcast through loudspeakers attached to the top of minarets.  Jewish Israelis living close to Muslim neighborhoods have complained for years, especially about the early morning calls to prayer that wake them. Arab Israelis had strongly opposed the law, one Arab Knesset member calling it "a populist and racist attempt to incite against the Arab public."  What stopped the bill however was the realization by Orthodox Jewish Knesset members that the bill, written in broad terms, would also outlaw sirens used in Jewish neighborhoods to alert Jews to the start of the Sabbath.

Jehovah's Witness Sues After He Is Fired For Refusing To Wish Customers "Merry Christmas"

In a suit filed last week in a Tennessee federal district court, plaintiff who worked as a cashier at a Murphy Oil service station alleged that the actual reason that he was fired from his position was that his district manager objected to his refusal to wish customers a "Merry Christmas."  The complaint (full text) in Appleyard v. Murphy Oil USA, Inc., (WD TN, filed 11/10/2016), says that plaintiff's Jehovah's Witness religion does not celebrate Christmas and prohibits its members from wishing others a Merry Christmas.  Plaintiff contends that his firing amounts to religious discrimination in violation of Title VII of the 1964 Civil Rights Act. BNA Daily Labor Report has more on the lawsuit.

EEOC Settles With Trucking Firm Over Complaints By Sikh Job Applicants

The EEOC announced yesterday that it has entered a conciliation agreement with J.B. Hunt Transport, Inc. in connection with complaints by four East Indian Sikh job applicants based in California who say the company refused to provide an alternative to its hair sample drug testing policy.  Maintaining uncut hair is a Sikh article of faith. Under the agreement, which avoids litigation, the company will pay $260,000 in damages and will extend conditional offers of employment to the four complainants.  The company also agreed to designate an EEO consultant, develop complaint procedures, and conduct employee EEO training.

Cert. Denied In Kansas Science Curriculum Challenge

On Monday, the U.S. Supreme Court denied review in COPE v. Kansas State Board of Education, (Docket No. 16-229, cert. denied 11/14/2016). (Order List.)  In the case, the U.S. 10th Circuit Court of Appeals dismissed on standing grounds an Establishment Clause challenge to Kansas' curriculum standards for science instruction in grades K-12, saying that "COPE offers only threadbare assertions that the Standards intend to promote a non-religious worldview." (See prior posting.) Topeka Capital-Journal reports on the denial of certiorari.

RFRA Does Not Protect FLDS Members' Food Stamp Fraud

As previously reported, in February the U.S. Attorney's Office for the District of Utah announced indictments against eleven leaders and members of the polygamous FLDS Church charging them with conspiracy to commit food stamp fraud and conspiracy to commit money laundering.  Under FLDS doctrine known as the Law of Consecration, faithful members who were food stamp recipients were required to donate their benefits to the FLDS church through a clearinghouse known as the Bishop’s Storehouse. Food and household items were then redistributed to all in the community, whether or not they were food-stamp eligible. Now, in United States v. Jeffs, (D UT, Nov. 15, 2016), a Utah federal district court rejected the argument that this practice is protected by RFRA and the 1st Amendment.

The court held that one of the defendants, FLDS leader Lyle Jeffs, did not have a sincerely held belief in the Law of Consecration; however other defendants did. Only one of those defendants-- the one who was actually eligible to receive SNAP (food stamp) benefits-- though showed a "substantial burden" on his religious beliefs. The court went on, however, to find that the government has shown a compelling interest in limiting SNAP benefits to the purchase of food to be used by the eligible recipient's household, and that the SNAP statutes and regulations are the least restrictive means of furthering that interest.  The court also rejected defendants' 1st Amendment claims. Fox 13 reports on the decision.

Washington Supreme Court Hears Arguments In Florist's Refusal of Flowers For Gay Wedding

The state of Washington's Supreme Court yesterday heard oral arguments in Ingersoll v. Arlene's Flowers, Inc.  At issue is a decision by a state trial court holding that a florist shop and its owner violated the Washington Law Against Discrimination and the state's Consumer Protection Act when the shop's owner advised a customer that for religious reasons she could not provide flower arrangements for his same-sex wedding ceremony. (See prior posting.) The oral arguments (video of full arguments) were heard by the Court sitting at Bellevue College, where the justices the prior day visited with students and spoke to classes.

AP reports at length on the oral arguments, including a report on this exchange at the beginning of appellant's presentation:

"A Muslim graphics designer should not be compelled to create designs promoting a Jewish Friends of Israel group, a gay public relations manager shouldn't be forced to promote the Westboro Baptist Church, and a Christian floral designer shouldn't be forced to create custom wedding designs for a wedding that is not between one man and one woman," Stutzman's attorney, Kristin Waggoner, told the court.

Waggoner immediately ran into questions. Justice Susan Owens brought up the state's first and only black justice, the recently deceased Charles Z. Smith, who had to stay in separate hotels from other attorneys when he traveled the country while working for the Justice Department in the 1960s.

"How is this different?" Owens asked. "Because I'm sure some of the owners of those hotels would profess they had strongly held religious beliefs that prohibited racial integration."

For one thing, Waggoner responded, renting out a hotel room isn't a form of artistic expression or speech deserving of protection. Stutzman's floral arrangements do constitute expression protected by the Constitution, the lawyer said, and the government can't compel that expression.

Alliance Defense Fund has a case page with links to the pleadings, briefs and opinions in the case.

Court Holds Title VII Applies To Sexual Orientation Discrmination

In U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, (WD PA, Nov. 4, 2016), a Pennsylvania federal district court held that Title VII's ban on discrimination because of sex prohibits discrimination on the basis of sexual orientation.  The court said in part:

That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate. Because this Court concludes that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination “because of sex"....

An EEOC press release discusses the decision.

British Court Says Sex Segregated Religious Schools OK Under Equality Act

In Interim Executive Board of X School v Chief Inspector of Education, Children's Services And Skills, (EWHC (Admin), Nov. 8. 2016), a British trial court held that sex-segregated classes from the 5th grade on in an Islamic school do not violate the Equality Act 2010. In reaching its conclusion, the court distinguished U.S. Supreme Court case of Brown v. Board of Education. The High Court judge said in part:

The essence of her case is that "making separate but equal provisions for boys and girls (or blacks and whites, or heterosexuals and lesbians and gay men etc.) cannot be divorced from the historic and current societal treatment of the less powerful group." Put another way, but to the same effect, segregation has the tendency to promote social and cultural stereotypes about the role of women in society....

Insofar as segregation on the ground of sex is practised in mixed schools in the UK, it is a practice carried out by a minority of schools with a Jewish, Christian and Islamic ethos, with the full participation of parents.

In short, segregation in mixed schools in this country is not the practice of government; it cannot be envisaged as any reflection of the mores and attitudes of wider society; it is only capable of being seen as a reflection of the mores, attitudes, cultures and practices of the faith groups who have been permitted to do it.

Law & Religion UK has more on the case.

Suit Challenging Social Media Policing of Anti-Islamist Posts Is Dismissed

In American Freedom Defense Initiative v. Lynch, (D DC, Nov. 9, 2016), the DC. federal district court dismissed a suit against the federal government by two anti-Islamist organizations and their leaders, including well-known activist Pamela Geller.  The groups complain that Facebook, YouTube, and Twitter have repeatedly removed their postings.  They sue the U.S. Attorney General seeking a declaratory judgment that Sec. 230 of the Communications Decency Act is unconstitutional.  That section protects social media sites from liability for policing content to remove objectionable material.  Plaintiffs contend that if Sec. 230 were held unconstitutional, the sites would no longer censor their posts.  The court dismissed for lack of standing, holding that any impact of a declaratory judgment here is speculative, and at most would only indirectly affect the behavior of social media companies.

2015 Hate Crime Data Released

Yesterday, the FBI released its report on Hate Crime Statistics 2015. The ADL which follows hate crime data closely has compiled a summary of the new report's findings and of changes from 2014:

Reported hate crime incidents increased seven percent – from 5,479 to 5,850.

Religion-based crimes increased twenty-three percent, from 1,014 in 2014 to 1,244 in 2015.  Crimes directed against Jews increased nine percent; 53 percent of the total number of reported religion-based crimes were directed against Jews and Jewish institutions.

Reported crimes against Muslims increased 67 percent, from 154 in 2014 to 257 in 2015.  257 anti-Muslim hate crimes is the second most reported against Muslims ever – second only to the backlash crimes in 2001, after the 9/11 terrorist incidents.

In 2015, crimes directed against LGBT people increased almost four percent, from 1,017 to 1,053 – and, in just the third year of data collection on crimes directed against individuals on the basis of their gender identity, the numbers increased from 98 in 2014 to 114 in 2015 – now almost two percent of all hate crimes.

14, 997 law enforcement agencies in the United States participated in the 2015 data collection effort – a decrease from 15,494 participating agencies in 2014.....  88 percent of all participating police agencies affirmatively reported zero (0) hate crimes to the FBI (including at least 66 cities over 100,000)....

There were 18 hate crime murders reported in 2015, the most since 1994, and the second most over all 25 years of data collection.

... [T]his is the first year for anti-Sikh, anti-Hindu, and anti-Arab hate crimes (anti-Mormon and anti-Eastern Orthodox and other religious denominations, too.  The anti-Eastern Orthodox crimes were the largest reported in this new category – 48 in 2015)....

[Thanks to Michael Lieberman for the ADL data.]

Supreme Court Denies Review In Prof's Religious Speech Case

The U.S. Supreme Court today denied certiorari in Payne v. University of Southern Mississippi, (Docket No. 16-290, cert. denied 11/14/2016) (Order List).  In the case, a Mississippi federal district court held that the 1st Amendment does not preclude a faculty member at a public university being disciplined for religious speech made as part of his duties as a professor. (See prior posting.) The decision was affirmed at 643 Fed. Appx. 409 (5th Cir., April 12, 2016).

Donald Trump On His SCOTUS Appointment, Abortion Rights and Marriage Equality

Last night, CBS' "60 Minutes" broadcast an hour-long interview (full text and video) by Leslie Stahl with President-elect Donald Trump and with members of his family. Portions of the interview dealt with the impact of his Supreme Court nomination on abortion rights and marriage equality. Here are excerpts from the interview:

Lesley Stahl: One of the things you’re going to obviously get an opportunity to do, is name someone to the Supreme Court. And I assume you’ll do that quickly?

Donald Trump: Yes. Very important.

Lesley Stahl: During the campaign, you said that you would appoint justices who were against abortion rights. Will you appoint-- are you looking to appoint a justice who wants to overturn Roe v. Wade?

Donald Trump: So look, here’s what’s going to happen-- I’m going to-- I’m pro-life. The judges will be pro-life. They’ll be very—

Lesley Stahl: But what about overturning this law--

Donald Trump: Well, there are a couple of things. They’ll be pro-life, they’ll be-- in terms of the whole gun situation, we know the Second Amendment and everybody’s talking about the Second Amendment and they’re trying to dice it up and change it, they’re going to be very pro-Second Amendment. But having to do with abortion if it ever were overturned, it would go back to the states. So it would go back to the states and--

Lesley Stahl: Yeah, but then some women won’t be able to get an abortion?

Donald Trump: No, it’ll go back to the states.

Lesley Stahl: By state—no some --

 Donald Trump: Yeah.

Donald Trump: Yeah, well, they’ll perhaps have to go, they’ll have to go to another state.

Lesley Stahl: And that’s OK?

Donald Trump: Well, we’ll see what happens. It’s got a long way to go, just so you understand. That has a long, long way to go....

***

Lesley Stahl: Well, I guess the issue for [the LGBTQ community] is marriage equality. Do you support marriage equality?

Donald Trump: It-- it’s irrelevant because it was already settled. It’s law. It was settled in the Supreme Court. I mean it’s done.

Lesley Stahl: So even if you appoint a judge that--

Donald Trump: It’s done. It-- you have-- these cases have gone to the Supreme Court. They’ve been settled. And, I’m fine with that.

Recent Articles of Interest

From SSRN:

• Steven Douglas Smith, Naturalism and the Trajectory of History, (San Diego Legal Studies Paper No. 16-229 (2015)).
• Charles J. Reid, Same Sex Unions and the Catholic Church: How Law and Doctrine Evolve, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 16-27, 2016).
• Rinie Steinmann, The Core Meaning of Human Dignity, (Potchefstroom Electronic Law Journal, Vol. 19, 2016).
• Choice Ubangha, Hate Speech in Cyberspace: Why Education is Better than Regulation, (April 12, 2016).
• Robert J. Delahunty, An Epitaph for ISIS? The Idea of a Caliphate and the Westphalian Order, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 16-25, 2016).

Church Entitled To Hearing On Religious Liberty Defense To Day Care Licensing

In Our Lady of Victory Catholic Church v. Department of Human Services, (PA Commonw. Ct., Oct. 31, 2016), a 3-judge panel of the Pennsylvania Commonwealth Court held that the Pennsylvania Department of Human Services has authority to issue cease and desist orders to enforce its regulations requiring any daycare center that cares for seven or more children to obtain a certificate of compliance.  However the court remanded for an evidentiary hearing the church's claim that requiring a certificate of compliance for its preschool (which it claims is part of its religious ministry) infringes its free exercise rights under the federal and state constitutions and under Pennsylvania's Religious Freedom Protection Act.  The Legal Intelligencer reports on the decision.

Recent Prisoner Free Exercise Cases

In Omaro v. O'Connell, 2016 U.S. Dist. LEXIS 153846 (WD NY, Nov. 4, 2016), a New York federal district court granted summary judgment to a Muslim inmate, finding that his free exercise rights were infringed when he was wrongly removed from the Ramadan call out meal schedule. The court referred the case to a magistrate judge for a settlement conference on damages.  The court dismissed plaintiff's equal protection challenge.

In Holmes v. Engleson, 2016 U.S. Dist. LEXIS 155201 (ND IL, Nov. 9, 2016), an Illinois federal district court refused to dismiss an inmate's complaint that his dreadlocks and beard that he wore for religious reasons were shaved against his will.

In Simmons v. Hulette, 2016 U.S. Dist. LEXIS 155721 (ND CA, Nov. 9, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that he has been denied a traditional Lakota Inipi Purification Ceremony, access to a drum circle and talking circle, medicine and materials for ceremonies and a competent spiritual adviser.

In Cooper v. Bower, 2016 U.S. Dist. LEXIS 155988 (WD KY, Nov. 9, 2016), a Kentucky federal district court allowed an inmate to move ahead with his complaint that he was not allowed to receive a copy of the Qur'an that had been purchased for him by a relative instead of from funds in his inmate account.

In Yaacov v. Mohr, 2016 U.S. Dist. LEXIS 156199 (ND OH, Nov. 10, 2016), an Ohio federal district court dismissed a Jewish inmate's complaint that he is unable to obtain kosher vegan meals.

In Parkerson v. Ferns, 2016 U.S. Dist. LEXIS 156210 (D OR, Nov. 10, 2016), an Oregon federal district court dismissed for failure to exhaust administrative remedies and inmate's complaint that he was suspended from receiving kosher meals because he ate non-kosher food from the commissary as well.

In Tilmon v. Keith, 2016 U.S. Dist. LEXIS 156512 (WD LA, Sept. 14, 2016), a Louisiana federal magistrate judge dismissed a Muslim inmate's complaint that in 2012 he was unable to observe Eid ul Adha. However he was permitted to proceed with his claim that unwanted exposure to second-hand tobacco smoke and synthetic marijuana smoke interfered with his ability to pray.

Muslim Nanny Sues Actor Couple

According to The Wrap, in a suit filed in Los Angeles Superior Court on Thursday, Sarah Alaseri (a young Muslim woman) is seeking damages for religious discrimination (as well as sexual harassment) against actor Steve Howey and his wife Sarah Shahi.  Alaseri was employed by the couple as a nanny. The suit claims that Howey and Shahi ridiculed Alaseri's religious beliefa and practices-- including mocking her for dressing modestly, fasting and wearing a headscarf when praying.

More On Presidential Voting By Religious Groupings

Earlier this week, the Pew Research Center, using exit polls, published How the faithful voted: A preliminary 2016 analysis.  It breaks down the vote in last Tuesday's Presidential election by faith group.  The group giving Donald Trump the largest percentage-- 81%-- of their vote were described in the survey as "White born-again/ evangelical Christians". The category overlaps some of the other categories reported: Protestant/ other Christian- 58%; White Catholic- 60%. Groups giving Trump the lowest percentage of their votes were: Jewish- 24%; Hispanic Catholic- 26%; Religiously unaffiliated- 26%.

In the same vein, yesterday the New York Times posted an article titled Religious Right Believes Donald Trump Will Deliver on His Promises, saying in part:

Now that he has won, evangelical leaders say they are confident Mr. Trump will deliver on the political promises he made to them. These include appointing a conservative to the Supreme Court, defunding Planned Parenthood, protecting businesses that refuse to provide services for same-sex weddings and rescinding the mandate in the Affordable Care Act that requires insurance coverage for birth control.

And with Gov. Mike Pence of Indiana, an evangelical with a record of legislating against abortion and same-sex marriage, as vice president, Christian leaders say they feel reassured they will have access to the White House and a seat at the table.

U.S. Muslim Leaders Urge Messages of Hope At Friday Prayers

A press release yesterday from CAIR urged Muslim prayer leaders and imams to address post-presidential election anxieties in sermons during their regular Friday prayer services today. An outline of talking points for leaders prepared by Sh. Omar Suleiman, president of the Yaqeen Institute for Islamic Research in Texas, was included. Here are some excerpts:

We have to come to terms with the idea that will be faced with some level of hardship with our faith regardless of the circumstances. Part of ending harm towards the community collectively is individually being ready to dispel stereotypes. In Makkah, the public display of the faith was the protest of the Companions. We must also continue to publicly be unapologetically Muslim....

It’s very easy for us to say that they all hate us, and there is no good left in the people. Instead let us remind ourselves that the Prophet (peace be upon him) prayed for the people most sincerely when their rejection for him was most severe. He prayed for them at Ta’if when they struck him in the face, and at Uhud when they almost killed him....

The under 25 voters were almost unanimous in expressing what type of America they wanted to live in. And it is not one of bigotry or xenophobia. We have to make sure we continue to invest in the younger generation so that they don’t repeat the mistakes of the past (and in this case, the present). We must continue to build institutions that will stand for justice and peace for generations to come. The Day of Judgment has not come yet, and even if it had, we would still be required to finish planting what is in our hands.

Suit Challenges University's Service Learning Requirements

A suit filed yesterday in a Wisconsin federal district court challenges the constitutionality of the University of Wisconsin, Eau Claire's service learning program.  All students must complete 30 hours of community service in order to graduate; however activities that directly involve promoting religious doctrine, proselytizing, or worship are not eligible for credit. The complaint (full text) in Liebl v. Schmidt, (WD WI, filed 11/10/2016), alleges that the two students who are bringing suit were not allowed to count time teaching religious education classes to children as community service, while students could receive service-learning credit for a variety of activities that involve non-religious instruction or non-religious persuasion and recruitment. The suit alleges that this policy violates plaintiffs' 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

Chabad Files RLUIPA Lawsuit In New Jersey Town

North Jersey.com reports on a RLUIPA lawsuit filed Nov. 1 by an Orthodox Jewish Chabad group against the mayor, property maintenance officer and Zoning Board of Adjustment of Woodcliff Lake, New Jersey. The suit challenges denials of variances and waivers by the zoning board which Chabad sought in order to build a house of worship on its property. According to the report:

The lawsuit ... allege[s] that the congregation has been the victim of a "targeted effort" to block them from developing a house of worship in Woodcliff Lake - something that the congregation alleges has caused "unjustified fear" and "prejudice" of Orthodox Jews. Chabad also alleges that Mayor Carlos Rendo made various statements that Chabad was attempting to "turn the borough into a little Jerusalem" and that the "town will be littered with black hats walking the town on Saturdays," (a reference to Hassidic Orthodox Jews.)

10th Circuit: Ten Commandments Monument Violates Establishment Clause

In Felix v. City of Bloomfield, (10th Cir., Nov. 9, 2016), the U.S. 10th Circuit Court of Appeals agreed with the district court (see prior posting) that a Ten Commandments monument erected by a former city councilman on the Bloomfield, New Mexico city hall lawn violates the Establishment Clause. Among other things, the court held that plaintiffs who are polytheistic Wiccans demonstrated sufficient injury to have standing even though they only saw the monument and never read the text on it. The court went on to hold:

The apparent purpose and context of the Monument’s installation would give an objective observer the impression of official religious endorsement. In arriving at this conclusion, we examine the text of the Monument, its placement on the lawn, the circumstances of its financing and installation, and the timing of this litigation.

It held that disclaimers on and around the monument failed to "negate the more powerful statement of endorsement conveyed by a decision to place the Monument on government land." Nor did the later addition of a number of secular monuments cure the violation.

Down-Ballot Results of Interest

In a pre-election post I identified several down-ballot contests that were of interest to those following religious issues. Here are the results from yesterday in those contests:

1. Oklahoma Question 790 that would have amended the state constitution to eliminate the ban on use of public funds to support religious institutions was defeated-- 43% yes and 57% no.
2. Missouri Constitutional Amendment 3 that would have imposed a cigarette tax to fund early childhood initiatives and would have exempted grants in the program from the ban on use of funds to support religious entities was defeated 59% to 41%.
3. Montana Supreme Court candidate Kristen Juras whose conservative Christian religious beliefs became a campaign issue was defeated 56% to 44%.
4. Ohio District 37 state legislature candidate Casey Weinstein sho had been a plaintiff in a suit against the U.S. Air Force Academy alleging Christian proselytizing lost 57% to 43%.
5. In Missouri, Republican Attorney General candidate Josh Hawley who disagrees with the state's position in the Trinity Lutheran case now before the U.S. Supreme Court in which the state denied a playground grant to a church on state constitutional grounds won 59% to 41%.

Some Early Press Reactions To Trump's Surprise Victory

For Religion Clause readers, here are some early press reactions to Donald Trump's unexpected win in yesterday's presidential election that may be of interest:

• Evangelicals Hand Victory To Donald Trump (Christianity Today).
• Trump's Win, the Greatest Victory for anti-Semitism in America Since 1941 (Haaretz).
• Mixed reaction to Trump from prominent Muslim Americans (AlJazeera).
• Vatican prays Trump presidency will promote peace amid conflict (Catholic News Agency).
• The End of Roe v. Wade Is Now a Real Possibility (Cosmopolitan).

Priest's Anti-Abortion Video Raises Questions On Limits For Advocacy

On Sunday just ahead of Tuesday's presidential election, Rev. Frank Pavone, national director of the activist anti-abortion group Priests for Life, posted a live video on Facebook which, as reported by the Washington Post, "raised questions for some about what is appropriate antiabortion and political activism in the church."  The video in which Pavone endorsed Donald Trump for president because of the anti-abortion Republican platform showed an actual aborted fetus on the altar. Pavone said the fetus was given to him for burial by a pathologist. In a post on the blog of the Archdiocese of New York, a spokesman strongly criticized Pavone, saying in part:

A human being has been sacrificed and the altar of God has been desecrated, all for politics. Everyone who respects the dignity of every human person should reject and disavow this atrocity.

A post on Friendly Atheist blog includes a link to Pavone's full 44 minute video.

Another Court Challenge To HHS Rules On Medical Services For Transgender Individuals

Following on a lawsuit filed in August (see prior posting), yesterday a lawsuit was filed by different plaintiffs challenging new rules (full text) adopted by the Department of Health and Human Services in May.  The rules bar discrimination on the basis of gender identity in the delivery of medical services by, among others, health facilities receiving federal financial assistance.  The complaint (full text) in Religious Sisters of Mercy v. Burwell, (D ND, filed 11/7/2016), filed by a religious order, a health care system, a Catholic university with a nursing program, and the state of North Dakota, alleges that the new rules violate various statutory and constitutional provisions. It says in part:

The Regulation not only forces healthcare professionals to violate their medical judgment, it also forces them to violate their deeply held religious beliefs.... The Regulation also undermines the longstanding sovereign power of States such as North Dakota to regulate healthcare, ensure appropriate standards of medical judgment, and protect its citizens’ constitutional and civil rights.

Becket Fund issued a press release announcing the filing of the lawsuit.

Religion Clause Feed On Social Media Is Back

To Readers Who Follow Religion Clause on Twitter, Facebook or Google+--

I discovered only today that the company providing automatic posting of Religion Clause feed to various social media sites closed its doors on Nov. 1 without sending me notice. (I guess that's what happens when one uses free online providers :).)  I now have a new provider so that Religion Clause is back on social media.

Some Issues of Religion In Tomorrow's Down-Ballot Contests

Religion has not dominated very many down-ballot contests in tomorrow's election.  However for those interested in religious liberty and church-state issues, there are several contests to watch. [Thanks to Don Byrd at Blog From the Capital for keeping an eye on these down ballot issues.]

1. Oklahoma State Question 790 asks voters to repeal provisions in Oklahoma's state constitution (Art. 2, Sec. 5) that prohibits the use of public funds or property for the direct or indirect benefit of any religion or religious institution.  This section of the state constitution was the basis for the Oklahoma Supreme Court to order removal of a Ten Commandments monument.
   
2. Missouri Constitutional Amendment 3 would increase the tax on cigarettes to create an Early Childhood Health and Education Trust Fund that will make grants to both public and private entities.  Part of the amendment excludes grant funds distributed from the Trust Fund from the restrictions of Missouri Constitution Art. IX, Sec. 8 which prohibits use of public funds to support any religious creed, sectarian purpose or religious educational institution. The proposed Amendment also bars use of trust funds for any abortion services not necessary to save the life of the mother.
   
3. The conservative Christian religious beliefs of one of the candidates for Justice of the Montana Supreme Court-- attorney and law professor Kristen Juras-- has become a campaign issue. (See prior posting.)
   
4. In a contest for state legislature in Ohio, Casey Weinstein who is running in House District 37 (Summit County), has been challenged over a lawsuit filed on his behalf when he was an Air Force Academy cadet. According to the Cleveland Plain Dealer, an ad sent out by state Republican Party focuses on a lawsuit in which Weinstein was one of the plaintiffs objecting to alleged Christian proselytizing at the Air Force Academy. Weinstein's father Mikey Weinstein is head of the Military Religious Freedom Foundation that filed the suit.
   
5. The result of the state Attorney General contest in Missouri may impact a major free exercise case currently before the U.S. Supreme Court-- Trinity Lutheran Church v. Pauley. At issue is the denial-- because of Missouri's Blaine Amendment-- of a state Playground Scrap Tire Surface Material Grant that would have allowed a church to resurface a playground at its day care and preschool facility. The state, represented by the current Democratic state Attorney General Chris Koster (who is now a candidate for governor), is defending the denial. However Republican Attorney General candidate Josh Hawley sides with the church and filed an amicus brief in support of of it on behalf of a Pentecostal Christian denomination. (US Law Week, Nov. 2, reports).

Watching Tomorrow's Presidential Election Results Through Denominational Lenses

For election watchers who are also concerned about religious issues, the results of tomorrow's Presidential contest will provide interesting glimpses into the reactions of several religious groups to each of the candidates.  Here are trends to watch:

1. Evangelical Christians have been divided over supporting Donald Trump, with some supporting him and others part of the "never Trump" movement (see Washington Times, Nov. 6). Trump has emphasized his support for repeal of the Johnson Amendment that bars campaigning by religious non-profits, and the pro-life views of individuals he will nominate to the Supreme Court. (Christian Post, Nov. 4).
2. Muslim Americans have been rattled by rhetoric from Donald Trump that is perceived to be anti-Muslim.  Voting participation is likely to be high among American Muslims. (see AlJazeera's Nov. 6 report on voting in Dearborn, Michigan).
3. Many Mormons in America are uneasy with Donald Trump's policies and his personal rectitude.  This has made third party candidate Evan McMullin, who is a Mormon (and whose running mate Mindy Finn is Jewish), a viable contender in Utah. (Salon, Oct. 14).
4. Many Jewish Americans are alarmed by the anti-Semitism disseminated by some Trump followers and the alleged anti-Semitic "dog-whistles" in Trump's own campaign statements and ads. (Nov. 6 CBS News report).  However others in the Jewish community believe that Trump will be a stronger supporter of Israel, or at least of Israel's current government policies. (Op Ed Nov. 7 from The Forward).  Also it has not gone unnoticed by the Jewish community that both Chelsea Clinton and Ivanka Trump are married to Jewish husbands. (Ivanka has converted to Judaism). (Oct. 2 JTA article).
5. Conservative Catholics were offended by an e-mail exchange between Clinton Campaign Chairman John Podesta, his Communications Director Jennifer Palmieri and supporter John Halpin. The e-mail was disclosed by Wikileaks. (Oct. 18 Op-Ed from Cincinatti.com). UPDATE: However many see broader remarks by Pope Francis as being anti-Trump. (Irish Central, Nov. 7).

Recent Articles and Book

From SSRN:

• Sally Tyler, Of Temples and Territory: The ICJ's Preah Vihear Decision and Implications for Regional Dispute Resolution, (University of the District of Columbia Law Review, Forthcoming).
• Shaun  Alberto de Freitas, Doctrinal Sanction and the Protection of the Rights of Religious Associations: Ecclesia De Lange v The Presiding Bishop of the Methodist Church of Southern Africa, (Potchefstroom Electronic Law Journal, Vol. 19, 2016).
• Nancy Levit, After Obergefell: The Next Generation of LGBT Rights Litigation, (84 UMKC L. Rev. 605 (2016)).
• Ashraf Booley, The Rights and Freedoms of Moroccan Women: Has the 2004 Reforms Benefited Moroccan Women?, (Potchefstroom Electronic Law Journal, Vol. 19, 2016).
• R.P.C.R. Rajapakse & Hiruni Nirmali Kaushala, Islamic Banking in Sri Lanka - A Literature Review, (Imperial Journal of Interdisciplinary Research (IJIR) Vol 2. Issue 6 pp. 1346-1352 (2016)).
• Mohamed Badar, The Self-Declared Islamic State (ISIS / Da‘Esh) and Ius Ad Bellum Under Islamic International Law, (The Asian Yearbook of Human Rights and Humanitarian Law (2017) vol. 1).
• Muhammad Masum Billah, Extensive Use of Ḥilah in Islamic Banking and Finance, ((2015) 59.1 Islamic Quarterly 65-88).

From SmartCILP and elsewhere:

• F. Peter Phillips, Ancient and Comely Order: The Use and Disuse of Arbitration by New York Quakers, 2016 Journal of Dispute Resolution 81-114.
• Neil Foster, Freedom of Religion and Balancing Clauses in Discrimination Legislation, Oxford Journal of Law and Religion (2016).

New Book:

• Leslie C. Griffin, Law and Religion: Cases and Materials, Fourth Edition, (Foundation Press, 2016).

Recent Prisoner Free Exercise Cases

In Sioleski v. Capra, 2016 U.S. Dist. LEXIS 150556 (SD NY, Oct. 31, 2016), a New York federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that authorities refuse to recognize him as a Native American because he did not prove tribal affiliation; thus he is unable to attend Native American religious services, festivals and dances.

In Sokolsky v. California, 2016 U.S. Dist. LEXIS 150754 (ED CA, Oct. 31, 2016), a California federal magistrate judge denied a preliminary injunction to a civil detainee complaining that his rights to practice his Jewish religion were infringed and he was denied medically appropriate food.

In Chesser v. Rivas, 2016 U.S. Dist. LEXIS 151944 (SD IL, Nov. 2, 2016), a California federal district court adopted a magistrate's recommendations and, while dismissing a number of claims, permitted a Muslim inmate to move ahead with his equal protection challenge to restrictions on his teaching or learning Arabic and wearing shortened pants.

In Chesser v. Walton, 2016 U.S. Dist. LEXIS 151940 (SD IL, Nov. 2, 2016), an Illinois federal district court dismissed a Muslim inmate's challenge to the congregate prayer policy that limited limited Muslims to once a week instead of the five daily group prayers. However plaintiff was permitted to proceed with his retaliation claim.

In Quezada v. Cate, 2016 U.S. Dist. LEXIS 152213 (ED CA, Nov. 1, 2016),  a California federal magistrate judge recommended concluding that plaintiff met the criteria for a "vexatious litigant" and should be required to post $10,000 in security before proceeding with his complaint that he was denied Jewish kosher meals.

EEOC Sues Over Job Denial To Pentecostal Who Rejected Dress Code Mandate

On Thursday, the EEOC announced that it had filed a religious discrimination suit against the Michigan-based Akebono Brake Corp.  The complaint charges that the company's dress code requires all employees to wear pants.  The company refused to hire as a temporary laborer Clintoria Burnet, a member of the Apostolic Faith Church of God and True Holiness, whose religious beliefs require her as a woman to wear skirts or dresses and not pants. The company failed to offer any religious accommodation to meet Burnet's Pentecostal Christian beliefs.

Another Challenge Filed To "Church Plan" Status of Retirement Plan

Another religiously affiliated health care system has been sued by participants in its retirement plan who claim that the plan is not exempt from ERISA as a "church plan."  The complaint (full text) in Sheedy v. Adventist Health System Sunbelt Healthcare Corp., (MD FL, filed 10.28/2016), contends that the plans are underfunded by $134 million. The complaint alleges that:

the Plans do not meet ERISA's requirements for the "church plan" exemption because they were not "established,"and are not "maintained" by a church.

Reporting on the lawsuit, BNA Daily Report for Executives (Nov. 1, 2016) [subscription required] says:

 The 12-count lawsuit against Adventist Health differs from many of its predecessors because it targets several pension plans, including a multiemployer plan covering several Adventist-affiliated entities and a group of frozen plans in which participants are no longer accruing benefits.

The case is also noteworthy for being the first to target a hospital system with ties to the Seventh-Day Adventist Church. The vast majority of the nearly 40 church plan lawsuits have targeted Catholic health-care providers.

Petitions for certiorari in other cases posing the same issue are pending before the U.S. Supreme Court. (See prior posting).

Georgia Drops Demands For Copies of Sermons In Discrimination Case

As previously reported, last month the Georgia Department of Public Health created significant controversy when, as part of its discovery requests in a religious discrimination lawsuit filed against it by a Seventh Day Adventist lay minister, it asked its former employee to furnish notes or transcripts of his sermons. Christian Post reported this week that Georgia has now dropped that demand, but is still asking for his ministerial credentials; proof he has served with the Seventh Day Adventist church; his contracts with the Church; and details any compensation for his sermons.

3rd Circuit Hears Oral Arguments In Contraceptive Coverage Mandate Case

Yesterday the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Real Alternatives, Inc. v. Burwell. In the case, a Pennsylvania federal district court rejected a challenge by a non-profit, non-religious pro-life group to the scope of the Affordable Care Act contraceptive coverage mandate.  The non-profit argued, among other things, that it should be extended the same exemption from furnishing its employees contraceptive coverage as is given to religious employers. (See prior posting.)

British Court Rejects Imam's Defamation Claim Against BBC

In Begg v. British Broadcasting Corp., (EWHC, Oct. 28, 2016), a British trial court dismissed a defamation claim brought against the BBC by the chief imam of a London mosque.  The claimant,  Shakeel Begg, sued over a description of him included in a BBC current affairs television program. The court concluded however that:

the words complained of ... are substantially true in their meanings: (1) The Claimant is an extremist Islamic speaker who espouses extremist Islamic positions. (2) The Claimant had recently promoted and encouraged religious violence by telling Muslims that violence in support of Islam would constitute a man’s greatest deed.

In an interesting portion of its analysis, the court said:

I turn to consider what is properly to be considered “extreme” in the context of Islam and Islamic doctrinal positions. It is necessary to do so in order to determine that the BBC’s plea of justification for the [words complained of] is made out, viz. “The Claimant is an extremist Islamic speaker who espouses extremist Islamic positions”. The various speeches and posts relied upon by the BBC were given by the Claimant on Islamic issues in his capacity as an Imam and directed to predominantly Muslim audiences. The analysis of what is “extreme” and what are “extremist Islamic positions” is, therefore, necessarily to be judged initially through the prism of Islam.

Then the court (beginning in paragraph 118) sets out ten teachings or beliefs that meet the definition of Islamic extremism. Out-Law.com reporting on the decision notes that this is one of the last cases based on laws that preceded the 2013 Defamation Act.  That Act changed the defense of "justification" to the defense of "truth".

Interview On State of Church-State Relations

For readers who may be interested, Christianity Today's Church Law & Tax today published an interview with me titled Q&A: The Current State of Church-State Relations.

Brazilian Court Awards Damages Against Priest Who Prevented An Abortion

Life Site News reported yesterday that Brazil's appellate court, the Superior Tribunal de Justiça, has ruled in favor of a couple that brought suit against an activist Catholic priest who in 2005 convinced a court to halt an abortion sought by the couple.  The parents had sought a court order to permit the abortion when it became clear that the fetus suffered a severe deformity. Fr. Luiz Carlos Lodi da Cruz, at the time a law student, intervened and successfully sought habeas corpus on behalf of the fetus. Ultimately the child died eight days after birth. The appellate court, in awarding the parents damages equivalent to $18,537 (US), held that the priest had recklessly abused the legal process, causing useless suffering and intense moral damage to the parents.

Sex Abuse Suit Filed Against Guam Archdiocese

As previously reported, in September Guam retroactively eliminated its statute of limitations for civil suits alleging child sexual abuse. In the wake of this, according to AP, a civil lawsuit has now been filed by four former altar boys alleging that decades ago they were molested-- three in the 1970's by Archbishop Anthony Apuron and one in the 1950's by Father Louis Brouillard. The suit names the Archdiocese as well as Apuron and Brouillard as defendants.  Archbishop Apuron, who was relieved of his duties by  the Vatican in June when charges first surfaced, was replaced Monday by Bishop Michael Jude Byrnes, the auxiliary bishop of Detroit, who has been named coadjutor bishop of the Guam archdiocese.

Obama: Army Corps Looking For Alternative Pipeline Route To Protect Sioux Lands

As previously reported, the Sioux Tribe has been embroiled in litigation attempting to stop construction of an oil pipeline near the Standing Rock Indian Reservation in in North and South Dakota, contending that the construction will destroy sacred ancestral Tribal lands.  A federal district court has refused to enjoin the construction. Nevertheless the federal government said it would delay approval of the construction.  Now, NPR reports that on Tuesday President Obama told an interviewer that the U.S. Army Corps of Engineers is examining possible alternate routes for the Dakota Access Pipeline. Obama said in part:

We're monitoring this closely and I think, as a general rule, my view is that there's a way for us to accommodate sacred lands of Native Americans. I think right now the Army Corps is examining whether there are ways to reroute this pipeline in a way. So we're going to let it play out for several more weeks and determine whether or not this can be resolved in a way that I think is properly attentive to the traditions of the first Americans.

In Israel, Egalitarian Protesters Confront Western Wall Authorities

In Israel today, the conflict between ultra-Orthodox Jewish groups and egalitarian streams of Judaism led to physical clashes at the Western Wall.  Haaretz reports that leaders of the Conservative and Reform movements as well as Women of the Wall broke through security guards and carried Torah scrolls to the Wall in protest of the government's continuing failure to follow through on an agreement to create a separate egalitarian prayer space at the Wall. The group had obtained a permit from police for the demonstration; however the Western Wall Heritage Foundation that controls the area was not informed of this.  Young ultra-Orthodox boys confronted the group with scuffles breaking out. In a statement, Prime Minister Netanyahu's office criticized the protest saying: "unilateral breaches of the status quo in the Kotel harm our attempts to reach a compromise."  But a spokesperson for the protesters said that waiting has yielded no results.

Amish Say They Are Targets of Law Requiring Horses To Wear Collection Bags

The Bowling Green Kentucky Daily News reported last week that Amish defendants are challenging an Auburn, Kentucky ordinance (Sec. 90.088(B)) that requires horses and other large animals on city streets to wear collection bags to catch their excrement.  Auburn officials say the law is needed to keep city streets clean and prevent the spread of disease, but the Amish say the bags will frighten their horses.  Defendants in some of the 30 pending cases are arguing that the law unconstitutionally targets a particular group of Amish residents. [Thanks to Scott Mange for the lead.]

Trinity Western Law School Wins Appeal In British Columbia

In Trinity Western University v. Law Society of British Columbia, (BC Ct. App., Nov. 1, 2016), the Court of Appeal for the Canadian province of British Columbia held that the province's Law Society acted unreasonably when it denied approval to a proposed new law school at the Christian-affiliated Trinity Western University. The Law Society's vote was a reaction to a requirement at the University that students sign a Community Covenant that, among other things, does not recognize same-sex marriage. The court summarized its decision in part as follows:

The issue on appeal is whether the Law Society met its statutory duty to reasonably balance the conflicting Charter rights engaged by its decision: the sexual orientation equality rights of LGBTQ persons and the religious freedom and rights of association of evangelical Christians. The Benchers initially voted to approve TWU’s law school. That decision was met with a backlash from members of the Law Society who viewed it as endorsement of discrimination against LGBTQ persons. The Benchers decided to hold a referendum and to be bound by the outcome. A majority of lawyers voted against approval. The Benchers then reversed their earlier position and passed a resolution not to approve TWU’s law school.

In doing so, the Benchers abdicated their responsibility to make the decision entrusted to them by the Legislature. They also failed to weigh the impact of the decision on the rights engaged. It was not open to the Benchers to simply adopt the decision preferred by the majority. The impact on Charter rights must be assessed concretely, based on evidence and not perception.

... [D]enying approval would not enhance access to law school for LGBTQ students. In contrast, a decision not to approve TWU’s law school would have a severe impact on TWU’s rights.... 

In a diverse and pluralistic society, government regulatory approval of entities with differing beliefs is a reflection of state neutrality. It is not an endorsement of a group’s beliefs.

CBC News reports on the decision. [Thanks to David Fernandes for the lead.]

4th Circuit Grants En Banc Review In Legislative Prayer Case

The U.S. Fourth Circuit Court of Appeals announced this week that it has granted en banc review in Lund v. Rowan County, North Carolina. In the case, a 3-judge panel of the 4th Circuit held in a 2-1 decision that the practice of the Rowan County Board of Commissioners to open its meetings with an invocation led on a rotating basis by one of the commissioners is constitutional under the Supreme Court's Town of Greece decision. (See prior posting.)

Smithsonian Gets Curator of American Religious History

The Washington Post reported last week that the Smithsonian Institution for the first time since the 1890's has hired a Curator of American Religious History.  The post is held by Peter Manseau, the son of a former nun and a priest. (Background.) Funded by a $5 million grant from the Lilly Foundation, Manseau will curate new exhibits on American religious history and add important religious objects to the museum’s collections.  He is planning a 5-year series of events and exhibitions, the first of which will open in June 2017 at the National Museum of American History in Washington.

Judge Wants Greater Restrictions In Settlement of NYPD Muslim Surveillance Suit

As previously reported, in January the parties to a long-running class action challenging practices of the New York Police Department in surveillance Muslims reached a settlement agreement offering greater protections.  However, in Handschu v. Police Department of the City of New York, (SD NY, Oct. 28, 2016), the court rejected the proposed settlement, insisting on three additional restrictions.  As discussed in an ACLU press release on the decision:

The judge ... called for alterations that would:

Clarify the authority of an individual outside the NYPD (a civilian representative) to ensure the NYPD’s compliance with the “Handschu Guidelines” — which govern NYPD surveillance of political and religious activity — even beyond the terms of the reforms proposed by the settlement.

Require that the civilian representative established by the settlement report periodically to the court on the NYPD’s compliance. 

Require the mayor to seek court approval before abolishing the position of civilian representative.

New York Times reports on the decision.

Cert Denied In Ministerial Exception Case

The U.S. Supreme Court today denied certiorari in Melhorn v. Baltimore-Washington Conference of the United Methodist Church, (Docket No. 16-245, cert. denied 10/31/2016) (Order List.) In the case, the Maryland Court of Special Appeals in an unreported opinion (set out in Appendix 1 to the Petition for Certiorari), applied the ministerial exception doctrine to bar a wrongful discharge suit by a pastor who was fired after refusing to accept the $600,000-plus portion of a bequest for upkeep of a cemetery that the church no longer owned.

Recent Articles, Book and Video of Interest

From SSRN:

• Arthur J. Jacobson, The Messiah and the Law, (Cardozo Legal Studies Research Paper No. 502 (2016)).
• Alan C. Weinstein, Regulation of Religious Uses Under the Religious Land Use and Institutionalized Persons Act, (Cleveland-Marshall Legal Studies Paper No. 16-296 (2016)).
• Nomi Maya Stolzenberg, It's about Money: The Fundamental Contradiction of Hobby Lobby, (Southern California Law Review, Vol. 88, 2015).
• Yinka Olomojobi, Legal Dimensions to Religious Freedom in Nigeria, (September 24, 2016).
• James Hill, Whose Best Interest? Why Michigan's New Adoption Law Is Unconstitutional and Prevents the Michigan Department of Health and Human Services from Helping Adoptable Children, (2 Admin. Law Rev. Accord 17, 2016).
• Paola Bergallo & Agustina Michel, Constitutional Developments in Latin American Abortion Law, (International Journal of Gynecology and Obstetrics 135 (2016) 228–231).
• Yinka Olomojobi, Radical Islam & E-Terrorism in Africa, (October 24, 2016).
• Robert W. McGee, Toilets, Transgenders, and the Supreme Court, (October 29, 2016).
• Robert W. McGee, The New Prohibitionism: The Movement to Regulate Personal Behavior, (October 26, 2016).

From SmartCILP:

• Symposium: Religious Liberty and the Free Society: Celebrating the 50th Anniversary of Dignitatis Humanae. Keynote address by John H. Garvey; articles by Paul Horwitz, Thomas C. Berg, Christopher C. Lund, Vincent Phillip Munoz, Brett G. Scharffs, Anna Su, Marc O. DeGirolami, Mark L. Movsesian and Steven D. Smith. 91 Notre Dame Law Review 1287-1569 (2016).
• Karyn Ball, Post-Secular Messianism Against the Law: Judith Butler on Walter Benjamin and 'Sacred Life', [Abstract], 27 Law & Critique 205-227 (2016).
• Janeanne Lubin-Szafranski & Gregory J. Pepe, Catholic Doctrine and Aid in Dying, 34 Quinnipiac Law Review 667-689 (2016).
• Jennifer A. Marshall, Burwell v. Hobby Lobby: Protecting Religious Freedom in a Diverse Society, [Abstract], 10 N.Y.U. Journal of Law & Liberty 327-345 (2016).

Recent Book:

• Daniel P. Dalton, Litigating Religious Land Use Cases, Second Edition, (ABA Book Publishing, Oct. 2016).

New Video:

• European Court of Human Rights, (Oct. 17, 2016).

Recent Prisoner Free Exercise Cases

In Smith v. Lind, 2016 U.S. Dist. LEXIS 146953 (WD WI, Oct. 24, 2016), a Wisconsin federal magistrate judge allowed a Muslim inmate to move ahead with various of his claims relating to denial of adequate Ramadan meals, Eid-ul-Fitr feast foods, and a non-vegan Halal diet, as well as the prohibition on inmate-led services.

In Malone v. Duvall, 2016 U.S. Dist. LEXIS 147031 (SD IL, Oct. 24, 2016), an Illinois federal district court dismissed with leave to amend an inmate's complaint that on one occasion he was denied religious services.

In Houston v. Collerman, 2016 U.S. Dist. LEXIS 148106 (ND NY, Oct 26, 2016), a New York federal district court dismissed without prejudice a Muslim inmate's claim that his free exercise rights were infringed when, because of a false misbehavior report, he was unable to participate in Ramadan and denied his religious meals.

In Goulding v. Kaemingk, 2016 U.S. Dist. LEXIS 148020 (D SD, Oct. 25, 2016), a South Dakota federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 148327, Sept. 23, 2016), and dismissed an inmate's claim that his religious rights were infringed when authorities denied his request to hold his own non-denominational Christian worship services and Bible study on Saturdays.

 In Padilla v. Kernan, 2016 U.S. Dist. LEXIS 148386 (SD CA, Oct. 24, 2016), a California federal district court dismissed for failure to pay a filing fee an inmate's complaint that he was denied kosher meals for a 15 month period.

In Wofford v. Austin, 2016 U.S. Dist. LEXIS 148907 (WD MI, Oct. 27, 2016), a Michigan federal district court dismissed a Nation of Islam inmate's complaint that he was not provided a replacement meal when his Ramadan meal was cross-contaminated by spillage from one part of the meal onto another, and that he was verbally harassed when he complained.

In Espinoza v. Irby, 2016 U.S. Dist. LEXIS 149178 (D AZ, Oct. 25, 2016), an Arizona federal district court dismissed without prejudice for failure to exhaust administrative remedies an inmate's complaint that his kosher diet was discontinued.

In Booker v. Graham, 2016 U.S. Dist. LEXIS 149332 (ND NY, Oct. 26, 2016), a New York federal magistrate judge dismissed a Nation of Islam inmate's complaint that Ramadan observance was impeded by a facility-wide lockdown and that he was denied access to weekly congregate religious services while in administrative segregation. However the court allowed plaintiff to move ahead with his claim of retaliation for filing grievances over the Ramadan lockdown.

In Raines v. Guembe, 2016 U.S. Dist. LEXIS 149978 (ED CA, Oct. 27, 2016), a California federal magistrate judge dismissed a complaint by a Wiccan inmate that there was a 6 week delay in his beginning to receive vegetarian religious meals after he requested them.

UPDATE: In Watkins v. Secretary, Florida Department of Corrections, (11th Cir., Oct. 28, 2016), the 11th Circuit in a brief per curiam opinion affirmed a trial court injunction ordering the state to furnish a kosher diet to an inmate, rejecting the state's const containment and security arguments.

Louisiana Supreme Court Says No Mandatory Reporting of Abuse Discovered In Confessional

In Mayeux v. Charlet, (LA Sup. Ct., Oct. 28, 2016), the Louisiana Supreme Court held that under Louisiana statutes Catholic priests when administering sacramental confession are not "mandatory reporters" of child abuse. Therefore the provision in La. Child. Code art. 609 that eliminates a defense of privileged communications in some instances for mandatory reporters does not eliminate protections for priests.  The court concluded:

Because the provisions of La. Child. Code art. 609 speak only to “mandatory reporters,” a priest when administering the sacrament of confession has no duty to report any confidential communications made during the confession that, by the tenets of the Roman Catholic Church, he is authorized to hear and is also duty bound to keep confidential.

(See prior related posting.)

Preliminary Injunction Against Transgender Student Access To Restrooms Is Denied

In Students and Parents for Privacy v. U.S. Department of Education, (ND IL, Oct. 18, 2016), an Illinois federal magistrate judge issued a report and recommendation denying a preliminary injunction sought by plaintiffs who wish to require suburban Chicago schools to segregate restrooms and locker rooms on the basis of students’ biological sex assigned at birth. The suit also seeks to enjoin the federal government from enforcing its rule requiring transgender students have access to rest room and locker rooms that conform to their gender identity. The court said in part:

The law in the Seventh Circuit concerning the meaning of the term “sex” as used in Title IX may be in flux. Just last week, the Seventh Circuit vacated a decision by a panel of that court that adhered to a longstanding interpretation of the word “sex” in ... Title VII of the Civil Rights Act of 1964 ... as very narrow, traditional and biological. Plaintiffs relied heavily on the now vacated panel decision.... Recent rulings by courts around the country including a district court in the Seventh Circuit evince a trend toward a more expansive understanding of sex in Title IX as inclusive of gender identity. Therefore, the Court cannot say with confidence that Plaintiffs have a likelihood of success on the merits.... 

High school students do not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs. In addition, sharing a restroom or locker room with a transgender student does not create a severe, pervasive, or objectively offensive hostile environment under Title IX given the privacy protections District 211 has put in place in those facilities and the alternative facilities available to students who do not want to share a restroom or locker room with a transgender student....

As previously reported, yesterday the U.S. Supreme Court agreed to review a case from the 4th Circuit raising similar issues.

Supreme Court Grants Review In Transgender School Bathroom Case

The U.S. Supreme Court today granted certiorari in Gloucester County School Board v. G.G., (Docket No. 16-273, cert. granted 10/28/2016) (Order List). The grant of review was limited to Questions 2 and 3 in the Petition for Certiorari.  In the case, the U.S. 4th Circuit Court of Appeals held that a Virginia school board's policy barring a transgender boy (who had not undergone sex-reassignment surgery) from using the boy's rest rooms at his school violates Title IX's ban on discrimination on the basis of sex. (See prior posting.)

NY Municipalities Settle Discrimination Suit Against Them Alleging Anti-Hasidic Bias

JTA reports that the upstate Village of Bloomingburg and the Town of Mamakating, New York have reached a settlement with a developer who sued claiming that the municipalities engaged in an anti-Semitic conspiracy to prevent more Hasidic Jews from moving into the area. The lawsuit filed in 2014 (see prior posting) claimed, among other things, that the municipalities violated the fair housing and civil rights laws in blocking the completion of a 396-unit townhouse project out of fear that would be occupied mostly by Hasidic families. Under the settlement, the developer's company Sullivan Farms II will be be paid by the municipalities' insurer $1.595 million on behalf of  Mamakating and $1.305 million on behalf of Bloomingburg.

European Parliament Lifts Jean-Marie Le Pen's Immunity To Allow Race Hatred Prosecution

AFP and The Forward report that on Tuesday the European Parliament lifted the legal immunity of Jean-Marie Le Pen, former head of France's far-right National Front Party. The move allows French prosecutors to put Le Pen on trial for inciting racial hatred.  The charges stem from a 2014 interview video posted on the National Front website in which Le Pen countered criticism from singer Patrick Bruel, who is Jewish, by using a reference to the Nazi gas chambers. Le Pen said Bruel should "go in the oven."

Synagogue Cited For Loud Siren Marking Start of Sabbath

According to a report yesterday from WABC-TV News, New York City's Department of Environmental Protection (DEP) has issued a citation to a Brooklyn synagogue because of the loud siren it uses weekly to announce the beginning of the Sabbath.  The 106-decibel siren installed this summer by Congregation Bais Yaakov Nechemia D'satmar is sounded for 90 seconds twice each Friday-- about 15 minutes apart. A DEP hearing is scheduled for November 22.

Elaborate Christmas Display Is Not Public Nuisance

According to the Broward County Sun Sentinel, a Florida state trial court judge yesterday dismissed a suit by the city of Plantation, Florida seeking to enjoin Mark and Kathy Hyatt from erecting the elaborate Christmas display that they have annually put up at their home. (See prior posting.) The court ruled that the city had failed to show that the display-- containing 200,000 lights, a movie screen a 30-foot tree and a Ferris wheel for stuffed animals-- constitutes a public nuisance.

3rd Circuit Judge Questions Religious Mix of Syrian Refugees

In Heartland Alliance National Immigrant Justice Center v. U.S. Department of Homeland Security, (7th Cir., Oct. 21, 2016), the U.S. 7th Circuit Court of Appeals in a Freedom of Information Act case upheld the government's refusal to disclose to an advocacy group for asylum seekers the names of so-called "Tier III terrorist organizations." Judge Daniel Manion filed a concurring opinion with extensive dicta questioning the religious mix of Syrian refugees who have been admitted to the country.  He said in part:

I write separately for a second, critical reason, which is my concern about the apparent lack of Syrian Christians as a part of immigrants from that country. It is possible that our case bears a direct link to this enigma.  It is well‐documented that refugees to the United States are not representative of that war‐torn area of the world. Perhaps 10 percent of the population of Syria is Christian, and yet less than one‐half of one percent of Syrian refugees admitted to the United States this year are Christian.... To date, there has not been a good explanation for this perplexing discrepancy.

This is not to suggest that any refugee group is more or less welcome: quite the contrary. The good people of this country routinely welcome immigrants from all over the world. But in a democracy, good data is critical to public debate about national immigration policy.

The Daily Signal reports on Manion's opinion.

Court Allows Suit Against Catholic Order and Diocese Over Pedophile Priest To Continue

In Doe v Congregation of the Mission of St. Vincent De Paul in Germantown, (Queens Cty. NY Sup. Ct., Sept. 13, 2016) a New York trial court in a decision published only this week refused to dismiss negligent hiring and retention, negligent training and supervision, and fraudulent concealment claims against the Vincentian Order and the Roman Catholic Diocese of Rockville Centre. The suit revolves around a priest, Augusto Cortez, who in 2009 was placed on 6 years' probation under a Personal Safety Plan administered by the Vincentians after he pleaded guilty to forcible touching of a 12 year old Brooklyn girl. Plaintiffs in this case allege that Cortez abused their young daughter beginning as early as 2009 (when she was 2 years old) and continuing until 2014 when the abuse was discovered. Cortez fled the country after being questioned by police about the allegations. A New York Times report when the suit was filed in 2015 elaborates:

After [Cortez's] arrest in 2008 ... the plaintiff’s mother sought the counsel of a priest of Mr. Cortez’s order who worked at a parish church in the Diocese of Rockville Centre. He told her that whatever had transpired between Mr. Cortez and the girl in Brooklyn “was just an accident”.... The girl’s mother accepted the priest’s interpretation, the lawsuit said, and “believed it was safe for her and her family” to continue their friendship with Mr. Cortez, who, like the girl’s parents, are from Guatemala.

IRS' Tax Exempt Division Getting New Leader

According to BNA Daily Report for Executives (Oct. 25) [subscription required], the Internal Revenue Service's Tax Exempt and Government Entities Division (TE Division) is undergoing another change in leadership.  Tamera Ripperda who replaced the embattled Lois Lerner as director and has apparently successfully streamlined the Division and eliminated a large backlog is moving to become acting deputy commissioner of the Small Business and Self Employed Division.  The new acting head of the TE Division beginning November 14 will be Margaret A. Von Lienen, who is now director of examinations for exempt organizations.