Russia Extends Reach Into France Via New Orthodox Cathedral

A newly-constructed Russian Orthodox Cathedral in the heart of Paris is a symbol of Russian use of religion to extend the country's political reach.  World Policy Blog yesterday reported:

The controversial Sainte-Trinité Russian Orthodox cathedral, set to be consecrated by the Russian Patriarch Kirill in early December, is the result of determined diplomacy by the Kremlin and lobbying of French officials, including François Fillon, the new favorite to win France’s 2017 presidential election....

The $120 million cathedral was financed by the Russian state and backed by President Vladimir Putin. The structure was completed as his country’s relations with France and its NATO allies nosedived over the deployment of Russian firepower in Syria and Ukraine.

While those interventions have come to define Putin’s presidency, the riverside “St Vladimir’s,” as the cathedral has been nicknamed, represents another side of his foreign policy. Also divisive, it is a high water mark in his use of faith and power abroad.

Title VII Can Cover Transgender Discrimination

In Mickens v. General Electric Co., (WD KY, Nov. 29, 2016), s Kentucky federal district court ruled that Title VII of the 1964 Civil Rights Act supports a claim for employment discrimination brought by a transgender African American male employee.  The court said in part:

Significantly, Plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female should look and act like.

WFPL yesterday reported on the decision.

Feds Bring RLUIPA Suit Against County That Barred Mosque Construction

The U.S. Department of Justice announced yesterday that it has filed suit against Culpeper County, Virginia alleging that it violated the Religious Land Use and Institutionalized Persons Act by denying a sewage permit application to the Islamic Center of Culpeper.  The complaint (full text) in United States v. County of Culpeper, VA, (WD VA, filed 12/12/2016) alleges that denial of the"pump and haul" permit prevents the Islamic Center from building a mosque on land it has purchased. The land's zoning classification permits religious land use by right.

Attorney General Lynch Speaks To Interfaith Event About Hate Crimes

Attorney General Loretta Lynch yesterday spoke on the Justice Department’s Commitment to Combating Hate Crimes (full text of remarks) at an interfaith event held at the All Dulles Area Muslim Society (ADAMS) Center in Reston, Virginia.  She said in part:

[A]ll of us have seen the flurry of recent news reports about alleged hate crimes and harassment – from hijabs yanked off of women’s heads; to swastikas sprayed on the sides of synagogues; to slurs and epithets hurled in classrooms....

These incidents – and these statistics – should be of the deepest concern to every American.  Because hate crimes don’t just target individuals.  They tear at the fabric of our communities, and they also stain our dearest ideals and our nation’s very soul.  There is a pernicious thread that connects the act of violence against a woman wearing a hijab to the assault on a transgender man to the tragic deaths of nine innocent African Americans during a Bible study at Mother Emanuel AME in Charleston, South Carolina.... Regardless of our faith, we believe in our common humanity.... That is why the Department of Justice – and the entire Obama Administration – regards hate crimes with the utmost seriousness, whether they target individuals because of their race, their religion, their gender or their sexual orientation.  And that is why we have worked tirelessly over the last several years to bring those who perpetrate these heinous deeds to justice.

U.S. and Britain Explore Definition of Anti-Semitism

On Dec. 1 the U.S. Senate passed by unanimous consent S.10, the Anti-Semitism Awareness Act of 2016. (ADL press release with background information.) In the convoluted language of much federal legislation, the bill would have instructed the Department of Education to use the definition of Anti-Semitism developed by the State Department's Special Envoy to Monitor and Combat Anti-Semitism-- including examples in an accompanying Fact Sheet-- in enforcing Title VI of the 1964 Civil Rights Act. Title VI prohibits discrimination in programs receiving federal financial assistance.

The basic definition of Anti-Semitism incorporated by the bill is:

Anti-Semitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.

Beyond this, though, the accompanying Fact Sheet includes in the definition of Anti-Semitism criticism of Israel which demonizes Israel, applies a double standard not demanded of any other democratic nation, or denies Israel's right to exist.  As reported last week by The Forward, S.10 has died in the House of Representatives as critics raised concerns that the bill could threaten federal funding at universities where speakers criticize Israel without a push back from college administrators.

Meanwhile yesterday Britain's Prime Minister Theresa May announced that Britain will formally adopt the definition of anti-Semitism developed by the International Holocaust Remembrance Alliance-- the same definition as the basic statement incorporated in S.10.  This comes after the House of Commons Home Affairs Committee in October published a report on Antisemitism in the UK, and the Government this month published a Response to Home Affairs Committee Report. The Government's Response discusses at some length the question of whether or when criticism of Israel should be classified as Anti-Semitism.

Massachusetts Modifies Reference To Churches As Public Accommodations; Suit Dismissed

Alliance Defending Freedom announced that today the churches and pastors who are plaintiffs in Horizon Christian Fellowship v. Williamson filed a Notice of Voluntary Dismissal in their lawsuit after the Attorney General's Office made a change in its website and the Massachusetts Commission Against Discrimination made changes to language in a Guidance document on when a church can be considered a place of public accommodation subject to state's ban on discrimination on the basis of gender identity. Originally (see prior posting) the Gender Identity Guidance stated:

Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.

The revised Gender Identity Guidance reads:

The law does not apply to a religious organization if subjecting the organization to the law would violate the organization’s First Amendment rights. See Donaldson v. Farrakhan, 436 Mass. 94 (2002). However, a religious organization may be subject to the Commonwealth’s public accommodations law if it engages in or its facilities are used for a “public, secular function.” Id.

Originally a page on the Attorney General's website had made a categorical reference to "houses of worship" as an example of a "place of public accommodation."  That reference has been dropped.  A letter from the chief of the state's Civil Rights Division explained why the changes were made.

Recent Articles of Interest

From SSRN:

• Kathleen Brady, The Disappearance of Religion from Debates About Religious Accommodation, (20 Lewis & Clark L. Rev., Issue No. 4, in Symposium, Law and Religion in an Increasingly Polarized America, Forthcoming).
• Andrew Koppelman, Lupu, Tuttle, and Singling out Religion, (111 Northwestern University Law Review Online 41 (2016)).
• Avishalom Westreich, Changing Motherhood Paradigms: Jewish Law, Civil Law, and Society, (Hastings Women's Law Journal, Vol. 28, No. 1, Forthcoming).
• Mitchell Landrigan, Protests Outside Abortion Clinics Constitutionally Protected Speech?, (Alternative Law Journal 41(1) 2016).

From elsewhere:

• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, (PLI, 2016 Revision).

Presidential Proclamation Of Human Rights Day and Week

Last Friday, President Obama issued a Presidential Proclamation declaring December 10 as Human Rights Day and the week beginning December 10 as Human Rights Week. The Universal Declaration of Human Rights was adopted by the United Nations General Assembly on December 10, 1948. The Presidential Proclamation reads in part:

Far too many people around the world are still denied their human rights and fundamental freedoms, and we must work to end the discrimination that is too often felt by LGBT individuals, people with disabilities, immigrants, women and girls of all ages, and members of religious, ethnic, and other minorities. And we must strengthen our ongoing efforts to rid the world of violence, oppression, and hatred.

Recent Prisoner Free Exercise Cases

In Pickering v. California Department of Corrections, 2016 U.S. Dist. LEXIS 167867 (ED CA, Dec. 5, 2016), a California federal magistrate judge recommended dismissing an inmate's claims that defendants have hindered the practice of his Astru/Odinic faith. However the court recommended that plaintiff be allowed to proceed with his retaliation claim.

In Malone v. Selby, 2016 U.S. Dist. LEXIS 168764 (SD IL, Dec. 6, 2016), an Illinois federal district court permitted an inmate to move ahead with a claim that a corrections official destroyed or discarded plaintiff's Bible concordance.

In Lane v. Tavares, 2016 U.S. Dist. LEXIS 168965 (MD PA, Dec. 7, 2016), a Pennsylvania federal district court accepted a magistrate's recommendation and allowed a Muslim inmate to move ahead with a claim that the prison doctor intentionally interfered with his attempt to gain safe access to Friday Prayers.

In Alderson v. Kelley, 2016 U.S. Dist. LEXIS 168233 (ED AR, Dec. 6, 2016), and Arkansas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 169173, Oct. 28, 2016) and dismissed an inmate's complaint that his request to have a beard for religious reasons was previously denied.

In Willison v. Davis, 2016 U.S. Dist. LEXIS 169241 (SD OH, Dec. 7, 2016), an Ohio federal magistrate judge recommended dismissing a suit against the state Religious Services Administrator brought by an inmate who change his religion to Natsarim (Messianic Judaism) and was initially denied kosher meals and participation in the Passover feast.

In Quiero v. Muniz, 2016 U.S. Dist. LEXIS 170733 (MD PA, Dec. 8, 2016), a Pennsylvania federal magistrate judge recommended that an inmate be allowed to proceed with his challenge to a policy that denied him access to bible studies, church services, and chaplains while in the restricted housing unit. UPDATE: The court adopted the magistrate's recommendations at 2017 U.S. Dist. LEXIS 11766, Jan. 27, 2017.

In Young v. Biter, 2016 U.S. Dist. LEXIS 170992 (ED CA, Dec. 9, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint about his ability to practice his religion and denial of a kosher diet.

7th Circuit Hears Oral Arguments Over State Regulation of Bible Colleges

The U.S. 7th Circuit Court of Appeals on Thursday heard oral arguments in Illinois Bible Colleges Association v. Anderson (audio of oral arguments).  In the case, an Illinois federal district court rejected constitutional challenges by a group of Bible Colleges to three Illinois statutes that regulate institutions of higher education in the state, including religiously-affiliated ones. (See prior posting.) [Thanks to James Robideau for the lead.]

Town Sued Over Cross On Christmas Tree

As reported yesterday by Fox 59 News, the ACLU has filed suit on behalf of a resident of Knightstown, Indiana against the city challenging the cross that tops the Christmas tree in the town square. The tree has been displayed for many years. However plaintiff Joseph Tompkins says that the cross is "is the preeminent symbol of Christianity," and this makes the display religious and a violation of the Establishment Clause. Other town residents support the cross and have various ideas for showing their support.

UPDATE: On Dec. 12, the Knightstown Council had the cross atop the Christmas tree removed, saying it could not win the lawsuit filed by the ACLU. Town residents unsuccessfully attempted to block the bucket truck removing the cross. (Fox 59 News).

Briefing Change In SCOTUS Transgender Case May Have Substantive Impact

In October, the U.S. Supreme Court granted certiorari in Gloucester County School Board v. G.G., a high profile case on bathroom choice by transgender students in schools receiving federal funds. (See prior posting.) Today SCOTUSblog reports that the Court, in an action that will have unusual impact has extended the time for filing briefs in the case.  The extension of time means that it is more likely that Justice Scalia's vacancy on the Court will be filled before the case is argued, eliminating the chance for a 4-4 split.  In addition, according to Amy Howe at SCOTUSblog:

[T]he schedule change ... means that the federal government’s position in the case will be determined by the Trump, rather than Obama, administration. Deference to the Obama administration’s interpretation of federal law has been a central feature of G.G.’s argument, and it was the basis for the lower court’s ruling in G.G.’s favor. The Trump administration will not take office in time to file a brief supporting the school board, but it could nonetheless reverse course before G.G. files his brief. Such a change could substantially alter the arguments that G.G. makes and the justices consider. Indeed, if the Trump administration does rescind the existing Department of Education letter or issue its own guidance on the question, the justices could opt to send the case back to the lower court for reconsideration in light of that new guidance.

4th Circuit Hears Employment Discrimination Case

The U.S. 4th Circuit Court of Appeals yesterday heard oral arguments in Abeles v. Metropolitan Washington Airports Authority. (Audio of full oral argument.) In April, a Virginia federal district court rejected plaintiff's claim that she was discriminated against because of her Orthodox Jewish faith when she was suspended for five days after stayed off work on the last two days of Passover. (District court opinion.) Among the issues on appeal are whether plaintiff followed proper procedures in requesting time off, and whether RFRA and the Virginia Religious Freedom Act apply to the case.  Becket Fund has links to documents in the case.

Congress Gives Final Passage To Defense Authorization Act-- Some Sections Impact Religion

Yesterday the Senate gave final approval to S.2943 as amended by Conference Report 114-840, the National Defense Authorization Act for Fiscal Year 2017. (Full text). The 975-page bill, which now goes to the President for his signature, contains the following provisions of interest to those who follow church-state and religious liberty developments:

• Sec. 549 which calls for data collection on hazing notes that victims are often members of protected classes such as race and religion.
• Sec. 585 authorizes award of the distinguished service cross posthumously to Chaplain Joseph Verbis LaFleur for acts of valor while a Japanese prisoner of war during World War II.
• Sec. 591. Repeals the requirement for a chaplain at the United States Air Force Academy appointed by the President.
• Sec. 1085. A sense of Congress resolution that there should be within the National Security Council a Special Adviser to the President on International Religious Freedom who should serve as liaison with the Ambassador at Large for International Religious Freedom, the United States Commission on  International Religious Freedom, Congress and religious nongovernmental organizations.
• Sec. 1263 (Part of the ‘Global Magnitsky Human Rights Accountability Act). Authorizes the President to impose sanctions on any foreign person who is responsible for extrajudicial killings, torture or other gross human rights violations against individuals in a foreign country who, among other things, exercise, defend or promote freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections.
• Section 2829F provides for return of certain lands at Fort Wingate, New Mexico to the Zuni Tribe and Navajo Nation. Certain of the land is to be held in trust with shared cultural and religious access by the Zuni and Navajos.

The final bill did not include the controversial Russell Amendment which would have allowed religious organizations that enter government contracts to require that their employees adhere to the organization's religious tenets. This would have permitted religious organizations that oppose same-sex marriage to refuse to hire those in same-sex relationships. (Background).

Company Using FLDS Child Labor Held In Contempt

In Perez v. Paragon Contractors Corp., (D UT, Dec. 6, 2016), a Utah federal district court held that a construction company which had previously been enjoined from using child labor was in contempt for now, in cooperation with the FLDS Church, using unpaid child labor to harvest pecans at a Ranch with which the construction company contracted. The court found that

The FLDS church closed its non-public schools during the pecan harvest. In contrast, the public schools in the area were not closed. Instead of going to school for their education, the children congregated at the schools, loaded into vans, and were sent to the Ranch, in good weather and bad.

The children’s working conditions were often harsh. The children did not have an opportunity to rest if they wanted and often were not given any lunch.

The court required the construction company to pay $200,000 into a fund to be used to compensate children who were forced to work on the Ranch at a rate equal to minimum wage plus overtime. The court also appointed a special master to evaluate ongoing compliance with the injunction for 5 years. Salt Lake Tribune and Fox 13 reports on the decision. (See prior related posting.)

Church Lacks Standing In Recall Petition Counterclaim

In City of El Paso, Texas v. Tom Brown Ministries, (TX App., Dec. 7, 2016), a Texas state appeals court dismissed on standing grounds a counterclaim by a church that had been involved in recall efforts against the mayor of El Paso who supported re-establishing domestic partnership benefits for city employees. In this phase of the long-running case, at issue was the Church's counterclaim against the city and the Mayor in his official capacity contending that they violated the Church's constitutional right to circulate recall petitions when they brought suit claiming that the Church's recall activities violated election laws. The court concluded in part:

[T]he City never took any unconstitutional actions against Appellees and never applied any unconstitutional policies against them. Rather, it was Cook [the Mayor], in his individual capacity, who sought redress for private injuries arising from Appellees’ alleged violations of the Election Code in circulating the recall petitions, and it was this Court that directed the City to decertify the recall petitions and to cancel the recall election.... The City never engaged in any past unconstitutional conduct toward Appellees, and there is no basis for any fear the City will unlawfully enforce the Election Code against Appellees in the future.

4th Circuit Hears Oral Arguments In Two Religion Cases

Yesterday the U.S. 4th Circuit Court of Appeals heard arguments in American Humanist Association v. Maryland-National Capital Park and Planning Commission (audio of oral arguments). In the case, a Maryland federal district court rejected an Establishment Clause challenge to the 90-year old Peace Cross, a 40-foot tall Veteran's Memorial in the shape of a cross. (See prior posting.) Reporting on the oral arguments, the Washington Post said in part:

Two appeals court judges clearly stated that there is no way to view the Peace Cross in Bladensburg other than as a symbol of Christianity.

The third judge on the appeals panel just as strongly said that the marble-and-cement monument is a secular war memorial honoring the death and sacrifice of those lost in battle.

Yesterday the 4th Circuit also heard oral arguments in EEOC v. COMSO: Energy, Inc. (audio of oral arguments). In the case, a West Virginia federal district court awarded damages to an Evangelical Christian mine employee who who objected to biometric hand scanning to track time and attendance, believing that it involves the Mark of the Beast forbidden in the Book of Revelation. (See prior posting.)

German Top Court Says Muslim School Girl Must Take Part In Mixed Swim Classes

Germany's Federal Constitutional Court-- the country's highest court-- yesterday ruled that an 11-year old Muslim school girl must take part in mixed gender swim classes. According to The Guardian, the girl's parents objected to her taking part even wearing the full-body burkini, saying it still revealed the shape of her body in violation of Islamic law.  The court concluded that there are no binding rules in Islam to define proper clothing.

Israeli Rabbinate Will Adopt New Standards Likely To Validate Conversion of Ivanka Trump

As previously reported, in Israel in July the country's Supreme Rabbinical Court (which hears appeals in personal status matters) ruled that it will not recognize religious conversions performed by U.S. modern Orthodox Rabbi Haskel Lookstein.  Lookstein is the New York rabbi who officiated in the conversion of Donald Trump's daughter Ivanka. In recent years, the Israeli Rabbinate has become more restrictive in recognizing conversions performed abroad.  Now however it appears that Donald Trump's victory in the U.S. presidential election has even impacted the Israeli Rabbinate.  According to JTA, in separate announcements yesterday both Israel's Ashkenazi and Sephardi chief rabbis announced that they will convene a meeting next week with the Chief Rabbinate Council and the Supreme Rabbinical Court to create standards for determining which rabbis' conversions will be recognized.  Once a rabbi is on the list, his conversions will be automatically recognized without further investigation. Chief Rabbi Yitzhak Yosef suggested that the standards will result in recognition of Ivanka Trump's conversion.

Wedding Videographers Sue To Refuse Same-Sex Couples

The owners of a St. Cloud, Minnesota film and media production company filed suit yesterday in federal district court claiming that the Minnesota Human Rights Act violates their rights under the 1st and 14th Amendments by requiring them "to produce videos promoting a conception of marriage that directly contradicts their religious beliefs if they produce videos promoting marriages between one man and one woman."  The complaint (full text) in Telescope Media Group v. Lindsey, (D MN, filed 12/6/2016), alleges that Carl Larsen and Angel Larsen "desire to counteract the current powerful cultural narrative undermining the historic, biblically-orthodox definition of marriage as between one man and one woman by magnifying God’s beautiful design and purpose for marriage through their creative storytelling and promotional talents." Plaintiffs argue:

The First Amendment prevents the government from compelling people to create, express, support, or promote a message not of their own choosing or to speak when they would rather remain silent.

KSTP-TV News reports on the lawsuit.

Catholic Principal's Suit Dismissed On Ministerial Exception Ground

In Ginalski v. Diocese of Gary, 2016 U.S. Dist. LEXIS 168014 (ND IN, Dec. 5, 2016), an Indiana federal magistrate judge dismissed employment discrimination claims brought by a former principal of a Catholic high school whose contract was not renewed. The principal contended that she was fired because of her sex, age and disability.  The court held that the ministerial exception requires dismissal of her claims, saying:

requiring Andrean High School to reinstate Ginalski as principal or by punishing it for not renewing her contract would violate Andrean High School's freedom under the Religion Clauses to select its own ministers.

Probation Requirement To Stay Away From Church Is Too Broad

In People v. Saltekoff, (CA App., Nov. 30, 2016), a California appellate court reversed and remanded to the trial court a condition of probation imposed on Jonathan Saltekoff who pleaded guilty to attempted kidnapping of a 9-month old infant. The trial court had required that Saltekoff stay at least 100 yards away from Bethel Church, the church to which Saltekoff's parents belonged.  It was also the church in which the kidnapping victim's family was very active, and they did not want to have to worry about Saltekoff showing up. The appeals court said:

Here, we assume the challenged condition burdens defendant’s exercise of religion, because it bars him completely from going to his family’s church. This bar is in place regardless of whether the victim is present or not. The record supports a restriction on defendant’s occupying the same space as the victim at any given time, but it likely does not support banning defendant from his family’s church absent the victim’s presence there. Of course, the church itself may choose to place limits and restrictions on its attendees. But government restrictions on defendant’s free exercise of his religion must be narrowly tailored to support a compelling state interest.

Merkel Calls For Burqa Ban In Germany

The Los Angeles Times reports that yesterday German Chancellor Angela Merkel called for a ban in Germany on the burqa and niqab that fully cover the face of Muslim women who wear them.  In a policy speech to her party's congress, she said, "Here, we show our faces, so full veiling is not appropriate." She called for a ban to be enacted wherever it is legally possible, such as in courtrooms, public schools and universities, and at traffic stops and police checks. Focusing on the need for acceptance of German cultural norms, Merkel said:

Our law takes precedence over honor codes, tribal or family rules and over sharia law. That has to be spelled out clearly.

Britain Releases Report On Integration of Ethnic Communities

Britain's Department for Communities and Local Government yesterday released a report (full text) (Executive Summary) by Dame Louise Casey on integration and opportunity in isolated and deprived communities. It examines immigration and settlement patterns. As reported by BBC News, the report gives attention to the rapid increase in Britain's Muslim population which stands at 2.8 million-- a 72% increase from 2001 to 2011.  In its section on religion, the report says in part:

We remain an officially Christian country with our Head of State, Her Majesty the Queen, also Supreme Governor of the established Church in England, while at the 2011 Census, 59% of us described ourselves as Christian. But that figure had fallen significantly from 72% a decade earlier. And the Church of England has seen a steady decline in church attendance over the last half century, with the proportion of the population attending Sunday services now only one third of that in the 1960s.

At the same time there has been a shift away from mainstream Christian denominations and a growth in evangelical and Pentecostal churches, largely reflecting changes in ethnic diversity.

There has also been an increase in the variety of faiths being practiced. Fifty years ago, Judaism – at less than 1% of the population – was the largest non-Christian faith in the UK. Now it is the fourth largest non-Christian faith with 269,000 people identifying as Jewish in the 2011 Census behind Islam (2.8 million people), Hinduism (833,000), and Sikhism (432,000).

Congress Passes State Department Authorization Act Including Various Religious Liberty Provisions

Yesterday evening the U.S. House of Representatives passed S. 1635, the Department of State Operations Authorization and Embassy Security Act, Fiscal Year 2016 (full text). The bill, which had been passed by the Senate in April, now goes to the President for signature. The 160-page bill includes these provisions relating to religious liberty and religious discrimination:

• Section 105 calling for a report assessing the U.S.-China Dialogue, including among many other items an assessment the treatment of political dissidents, media representatives, and ethnic and religious minorities;
  
• Section 106 calling for a report which "(1) describes in detail all known widespread or systematic civil or political rights violations, including violations that may constitute crimes against humanity against ethnic, racial, or religious minorities in Burma, including the Rohingya people; and (2) provides recommendations for holding perpetrators of the violations described in paragraph (1) accountable for their actions."
  
• Section 107 appropriating $500,000 "to be used in support of efforts by American and European Jewish and other civil society organizations, focusing on youth, to combat anti-Semitism and other forms of religious, ethnic, or racial intolerance in Europe."
  
• Section 122 which expresses the sense of Congress opposing anti-Israel and anti-Semitic incitement in the Palestinian Authority.
  
• Section 131 authorizing an Interagency Atrocities Prevention Board.
  
• Section 133 authorizing a bilateral joint action plan with the European Union to combat prejudice and discrimination.
  
• Section 141 sense of Congress calling for additional sanctions against North Korea including "specific designations relating to human rights abuses."
  
• Section 215 barring racial, ethnic or religious discrimination in assignments of foreign service personnel to work in particular geographic areas.
  
• Section 223: requiring an international religious freedom training program for Foreign Service Officers be developed and implemented.

Questions On Abortion and Gay Marriage Violated Rights of Constable Candidate

In Lloyd v. Birkman, (WD TX, Dec. 2, 2016), a Texas federal district court held that members of the Williamson County (TX) Commissioners' Court violated the equal protection rights of plaintiff when, in an interview for appointment as interim County Constable, they asked him his views on same-sex marriage, abortion and religious affiliation.  The Commissioners had argued that the purpose of their questions was to determine whether the appointee was likely to be electable for a full term to the position in the next popular election. KXAN News reports on the decision.

Azerbaijan and Jewish Groups Will Hold (Competing?) Hanukkah Party At Trump's Hotel

For a number of years, the White House has hosted an annual Hanukkah party.  Yesterday's Jerusalem Post reports that this year there will apparently be competition to President Obama's scheduled Dec. 14 event.  The nation of Azerbaijan, which has developed increasing ties with Israel, has booked space for Dec. 14 at the Trump International Hotel in Washington, D.C., not far from the White House for a Hanukkah Party that will be co-hosted by the Conference of Presidents of Major Jewish Organizations. Invitations for Azerbaijan's party say it will celebrate freedom and diversity. It is not clear from press reports whether the times of the two Hanukkah parties overlap. The Conference of Presidents is made up of over 50 Jewish organizations and represents the organized Jewish community to the Executive Branch.

Victory For Sioux: Army Says Dakota Pipeline Must Find Alternative Route

In a major victory for cultural and religious rights of the  Sioux Tribe, the U.S. Army announced yesterday that will not approve an easement that would allow the proposed Dakota Access Pipeline to cross under Lake Oahe in North Dakota. The pipeline, whose original route would run only a half mile from the Standing Rock Sioux reservation, impinged on sacred tribal burial and historical sites and also created oil spill concerns by the tribe.  Alternative sites will now need to be explored. The Minneapolis Star-Tribune reports on the Army's decision as well as on the background of the dispute. In September, a federal district court had refused to enjoin construction of the pipeline. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Bruce Ledewitz, The Role of Religiously Affiliated Law Schools in the Renewal of American Democracy, (University of Massachusetts Law Review, Forthcoming).
• Mario Ricca, A Modest Proposal: An Overgrown Constitutional Path to Cultural/Religious Pluralism in Italy, (CALUMET – Intercultural Law and Humanities Review, p. 1-46, 11.9.2016).
• Aziz Z. Huq, The Uses of Religious Identity, Practice, and Dogma in 'Soft' and 'Hard' Counterterrorism, (Forthcoming in Security and Human Rights, (Liora Lazarus & Benjamin Goold, eds. Hart Pub. 2017)).
• Jeffrey A. Redding, Formal Marriage, (60 St. Louis U. L.J. 671 (2016)).
• Raphael Cohen-Almagor, Discrimination Against Jewish Women in Halacha (Jewish Law) and in Israel, (British Journal of Middle Eastern Studies, December 2016).
• Jenni Millbank, Reflecting the ‘Human Nature’ of IVF Embryos: Disappearing Women in Ethics, Law, and Fertility Practice, (J Law Biosci (2016)).
• Nqobizwe Mvelo Ngema, Polygamy Versus Equality Rights: Is Polyandry a Solution?, (OIDA International Journal of Sustainable Development, Vol. 09, No. 07, pp. 11-14, 2016).
• Mark A. Drumbl, The Kapo on Film: Tragic Perpetrators and Imperfect Victims, (Washington & Lee Legal Studies Paper No. 2016-13 (2016)).
• Adam Parachin, Charity, Politics and Neutrality, (The Charity Law & Practice Review, Volume 18, 2015).

Recent Prisoner Free Exercise Cases

In Mikell v. Sibanda, 2016 U.S. Dist. LEXIS 163345 (WD PA, Nov. 28, 2016), a Pennsylvania federal magistrate judge dismissed a Muslim inmate's complaint that he did not receive Ramadan meals in 2012 even though he was on the Ramadan list.

In Bizzell v. King County Department of Adult & Juvenile Detention, 2016 U.S. Dist. LEXIS 163639 (WD WA, Nov. 28, 2016), a Washington federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 163725, Oct. 24, 2016) and dismissed without prejudice for failing to exhaust administrative remedies a Muslim inmate's complaint that his request to attend Jum'ah services was denied, as was his request for a kufi and his request to be added to the Ramadan meal list. However the federal magistrate indicated that had plaintiff exhausted his remedies the court would have found the denials of Ramadan meals under an all or none policy and denial of a kufi to violate RLUIPA.

In Hamrick v. Baird, 2016 U.S. Dist. LEXIS 164426 (SD IL, Nov. 29, 2016), an Illinois federal district court allowed an inmate to proceed with his claims that his free exercise, RFRA and equal protection rights were infringed by a policy that barred Muslim inmates from participating in group prayer or group religious activity.

In Salik v. Illinois Department of Corrections, 2016 U.S. Dist. LEXIS 166242 (SD IL, Dec. 1, 2016), an Illinois federal district court permitted a Muslim inmate to move ahead against some of the defendants on his complaint that he was removed from the Ramadan meal list for refusing to attend chapel services; and that he was initially denied a halal diet and then was placed on a diet more restrictive that his religion required.

In Ferguson-El v. Horton, 2016 U.S. Dist. LEXIS 166244 (WD VA, Nov. 30, 2016), a Virginia federal district court dismissed an inmate's complaint that he was threatened with segregation for teaching Sovereign Citizen ideology as part of a meeting for Moorish Science Temple of America adherents.

In Bennett v. Burt, 2016 U.S. Dist. LEXIS 166452 (WD MI, Dec. 2, 2016), a Michigan federal district court dismissed an inmate's complaint that he lost 4 days work until he was transferred from a work assignment that would have required him to work on Saturday (his Sabbath) to another assignment.

In Winnett v. Bray, 2016 U.S. Dist. LEXIS 166560 (ED AR, Dec. 2, 2106), an Arkansas federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 166666, Nov. 18, 2016) and allowed an inmate to move ahead on his complaint that he was denied Sabbath meals prepared in compliance with the requirements of his religion.

In Arendas v. Mesa County, 2016 U.S. Dist. LEXIS 166732 (D CO, Nov. 29, 2016), a Colorado federal magistrate judge recommended dismissing an action by an inmate seeking an injunction and $1 million in damages who contended the requirement that he wear an identification wrist band violates his Catholic religious belief that he may not wear a non-medically related unremovable item on his body.

In Etterson v. Newcome, 2016 U.S. Dist. LEXIS 166986 (ED VA, Dec. 1, 2016), a Virginia federal district court dismissed without prejudice for failure to exhaust administrative remedies a Muslim inmate's complaint that he was removed from the list for Ramadan meals after he was observed eating during the fast.

Britain's Equality Commission Publishes New Study On Religion In the Workplace

On Friday, Britain's Equality and Human Rights Commission announced the publication of a lengthy new study titled Religion or Belief: Is the Law Working?. The report focuses on four questions: Is the legal approach to defining a religion or a belief effective? Are the Equality Act exceptions allowing religion or belief requirements to influence employment decisions sufficient and appropriate? Does the law sufficiently protect employees wishing to manifest a religion or
belief at work? Does the law sufficiently protect service users and service providers in relation to religion or belief? The Commission also published an updated Guide for employers to religion and belief in the workplace.  Law & Religion UK has more on the Commission's conclusions.

Satanic Temple Will Challenge Texas' New Fetal Remains Rules

As reported yesterday by Jezebel, the Satanic Temple says that it plans to challenge Texas' new rules requiring burial or cremation of fetal remains as a violation of its members' rights under the Texas Religious Freedom Restoration Act.  A spokesman for Satanic Temple said:

Texas health officials are baldly imposing the view that the fetal tissue is elevated to personhood—a religious opinion that conflicts with our own. If Texas is going to treat the disposal of fetal tissue differently from the disposal of any other biological material, in contradiction to our own religious beliefs, they need to present a compelling state interest for doing so. Of course, there is no such state interest, and it’s perfectly clear the demand for fetal tissue burial is a punitive measure imposed by sadistic theocrats. It’s clear these officials deem harassment an acceptable form of pushing their misguided religious agendas.

The organization plans to file for an injunction as soon as the state attempts to apply the new rules to one of its members. [Thanks to Scott Mange for the lead.]

Supreme Court Grants Cert. In 3 ERISA Church Plan Cases

Today the U.S. Supreme Court granted review in three cases all posing the question of how to interpret the "church plan" exemption in the Employee Retirement Income and Security Act (ERISA). (Order List, Dec. 2, 2016). The cases are Advocate Health Care v. Stapleton, (Docket No. 16-74) (prior posting on 7th Circuit's decision), St. Peter's Health Care v. Kaplan, (Docket No. 16-86) (prior posting on 3rd Circuit's decision), and Dignity Health v. Rollins, (Docket No. 16-258) (prior posting on 9th Circuit's decision).

At issue are the following provisions in 29 USC 1003(b)(2):

(33)(A) The term “church plan” means a plan established and maintained . . . by a church or by a convention or association of churches....

(C) For purposes of this paragraph— (i) A plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization ... [which] is controlled by or associated with a church or a convention or association of churches.

The religiously affiliated health care systems in these cases, rather than the churches they are affiliated with, created the retirement plans for their employees.  In 1983 in a General Counsel Memorandum, the Internal Revenue Service took the position that it is sufficient if the retirement plan was is maintained by a religiously affiliated organization, even if it was initially created by that organization and not the "church" it was affiliated with.  In a series of cases filed around the country, plan beneficiaries have attacked that conclusion and in the cases in which the Court today granted certiorari the plan beneficiaries prevailed.  If the Supreme Court affirms these Circuit Court decisions, retirement plans of various religiously-affiliated organizations will be undefunded in total by billions of dollars.

SCOTUSblog has case pages for each of the cases (case page for Advocate Health Care case with links to case pages for other two cases).

European Court Finds Lack of Fair Hearing For Church Over Expropriation

In Lupeni Greek Catholic Parish v. Romania, (ECHR, Nov. 29, 2016), the Grand Chamber of the European Court of Human Rights held that a Greek Catholic church had been denied a fair hearing in Romania on its claim for compensation for the expropriation by Romania's former Communist government of the church's property followed by its transfer to the Greek Orthodox Church. The court said in part:

The protection of minorities is almost always unpopular and the protection of religious minorities is even more so. Europe has a long history of religious majorities disregarding the rights of religious minorities. This is an area where present-day democratic standards oblige a majority to show restraint, for the sake of respecting minorities. Unfortunately this case shows that States are often reluctant to undo the injustice committed to religious minorities when the interest of the religious majority is at stake.

Law & Religion UK has an extensive discussion of the case.

White House Ready For Holidays; National Christmas Tree Lit

NBC reports that President Obama, Michelle Obama and their daughter Sasha last night lit the National Christmas Tree on the Ellipse. The White House website now includes a 2016 Holidays at the White House page, carrying stories on decorations and activities at the White House for the holiday season.

UPDATE: Here is the full text of the President's remarks at the lighting of the National Christmas Tree.

Brazil's Supreme Federal Court Invalidates Sentences of Abortion Clinic Workers

On Tuesday, a 4-judge panel of the First Chamber of Brazil's Supreme Federal Court overturned the jail sentences of 5 people who were working at an underground abortion clinic near Rio de Janeiro.  Telesur reports:

Judge Luis Roberto Barroso argued in his decision that given that women carry the full burden of reproduction, “there will be full equality only if she is recognized as having the right to decide.”

He argued that women’s health and safety should be ensured without interference, saying, “Having a child determined by the Criminal Code constitutes a serious violation of the physical and psychological integrity of a woman.”

Barroso also noted that criminalization of abortion disproportionately affects poor and marginalized women who face even more restricted access to private services.

Here is the full text in Portuguese of Judge Barroso's opinion. RNS reports that the decision, which is seen as setting precedent "legalizing abortion during the first trimester has caused uproar among politicians with strong ties to Roman Catholic and evangelical faiths, who have gained ground in the current government."

"In God We Trust" On Currency Does Not Substantially Burden Atheists

In New Doe Child #1 v. Congress of the United States, (ND OH, Nov. 30, 2016), an Ohio federal district court rejected several challenges to the United States' use of the motto "In God We Trust" on currency. Various plaintiffs either do not believe in God, or find the use of God's name on currency to be sinful.  The court rejected plaintiffs' 1st Amendment and RFRA free exercise claims as well as their compelled speech and equal protection arguments. The court said in part:

Plaintiffs cannot demonstrate that the use of the motto on currency substantially burdens their religious exercise. Credit cards and checks allow Plaintiffs to conduct the bulk of their purchases with currency not inscribed with the motto. And for cash-only transactions, such as a garage sale or a coin-operated laundromat, the use of the motto on currency does not substantially burden Plaintiffs’ free exercise.... Furthermore, Plaintiffs’ other concerns, that they may be subject to peer pressure or ridicule, or that their children may question their beliefs, are unlike the choice between a “basic benefit and a core belief” described in the Supreme Court’s case law....

(See prior related posting.)

Liability of B&B Upheld For Refusing To Host Same-Sex Ceremony

A 3-member panel of the Illinois Human Rights Commission has adopted a hearing examiner's recommendations (see prior posting) and ruled against a bed-and-breakfast that refused to host a same-sex civil union ceremony.  In Wathen v. Walder Vocuflo, Inc., (IL HRC, Nov. 18, 2016), the commission accepted the recommended damages of $30,000 for emotional distress as well as $51,218 in attorneys' fees and costs. In a press release announcing the decision, the Illinois ACLU said in part:

The Commission’s decision once again sends a clear message that denying couples the use of a public wedding venue in Illinois because they are gay or lesbian is simply not permitted. Business owners cannot pick-and-choose to follow laws simply because they personally disagree with same-sex couples’ decision to marry.

According to the Chicago Tribune, attorneys for the bed-and-breakfast say they will seek review from the full Commission and, if necessary, by the Illinois Court of Appeals.

Australian Judge Says Muslim Plaintiff Cannot Testify Without Removing Veil

Australia's Daily Telegraph reported yesterday that a trial court judge in the Australian state of New South Wales has ruled that a Muslim woman who is plaintiff in a civil case against the state and federal governments may not take the stand in her own trial without removing her veil which conceals her face. Moutia Elzahed, who is one of two women married to a convicted Islamic extremist, is suing over alleged police brutality during a 2014 counter-terrorism raid of her home.  Elzhed says that for religious reasons she cannot show her face to any man outside her family.  She rejected alternatives of testifying in closed court or via a closed circuit television link since either would show her face to the male lawyers involved in the case.  Elzhed also refused to stand when Judge Audrey Balla entered the courtroom.

UPDATE: Here is the full text of the judge's decision.

Mexico Charges Priest With Electioneering Offense

In Mexico on Tuesday, prosecutors-- in a first of its kind case-- filed charges of "vote pressuring" against a Roman Catholic priest. The offense is punishable by a fine.  AP reports:

Prosecutors accuse the priest and two former mayoral candidates of participating in a Mass at a church in the town of Chiautla, in the state of Mexico. The priest allegedly blessed the candidates, and the Mass was allegedly touted as the opening of their campaigns.

Under Mexican law, clergy are not allowed to endorse political candidates. [Thanks to Scott Mange for the lead.]

European Commission Meets With Religious Leaders

According to a European Commission press release, yesterday the Commission sponsored the 12th annual high-level meeting with religious leaders from across Europe to discuss Migration, Integration and European Values. European Commission First Vice-President Frans Timmermans who hosted the meeting said:

Religious leaders play a pivotal role to spur the integration and participation of all their members in Europe as full Europeans, no matter the place of their cradle, no matter their creed. Through these dialogues we identify those common fundamental values that bind us, instead of harping on the issues that divide us.

Article 17 of the Treaty of Lisbon calls for the European Union to maintain open, transparent and regular dialogue with churches and with philosophical and non-confessional organizations. The meeting included Catholic, Orthodox, Protestant, Mormon, Muslim, Jewish, and Hindu religious leaders. In June, the Commission held a similar conference with philosophical and non-confessional organizations. [Thanks to Law & Religion UK for the lead.]

British Plastic Banknotes Raise Problems For Vegans

In Britain, vegans and vegetarians are protesting the country's new currency.  According to The Independent yesterday, the new £5 notes printed on polymer rather than paper contain animal fat. A spokesperson for the Bank of England said of the new banknotes:

We can confirm that the polymer pellet from which the base substrate is made contains a trace of a substance known as tallow. Tallow is derived from animal fats (suet) and is a substance that is also widely used in the manufacture of candles and soap.

Further details about production were not released, but depending on the kind of animal fat used the bills could also create problems for certain religious groups.

Muslim Lawyers' Groups Strategize Over Trump Administration

National Law Journal reported Monday that Muslim lawyers' groups around the country are planning ahead for the issues that may arise in the Trump administration, saying in part:

"People right now are struggling to figure out where we're going to focus our efforts," said Fatema Merchant, a member of the Capital Area Muslim Bar Association (CAMBA) board....

Civil rights, hate crimes, First Amend­ment protection, immigration law and election law are some of the concerns of the 100-member organization.... The challenge is to determine how to spend the group's energy. "We can't do everything," she said.

CAMBA is among Muslim attorney groups nationwide grappling with changes expected in the professional and private lives of Muslim lawyers following Trump's election. Of particular worry is his proposal to create a Muslim registry.

Final Texas Rules On Disposal of Fetal Remains Are Adopted

Texas Tribune reports that yesterday the Texas Health and Human Services Commission filed final rules on disposition of fetal tissue with the Secretary of State's office.  Under the rules, which take effect December 19, hospitals, abortion clinics and other health care facilities may not dispose of fetal remains in sanitary landfills and instead are required to cremate or bury all remains regardless of the period of gestation. Amendments to the proposed rules that appear in the final rules clarify that the requirements do not apply to miscarriages or abortions that occur at home. Also, to protect privacy, birth or death certificates will not be required before disposal. Health care facilities, not patients, will be responsible for the costs of burial or cremation. [Thanks to Scott Mange for the lead.]

Pakistan Sentences 5 To Death In Killing of Christian Couple Over Supposed Qur'an Burning

Last Wednesday a judge on Pakistan's Anti-Terrorism Court imposed the death sentence on five Muslims for torturing and killing a Christian couple who, it was alleged, had burned pages from the Qur'an in the brick kiln where they worked. Eight others were sentenced to two years in prison. Morning Star News, reporting on the sentences, recounts:

Hundreds of villagers in Kot Radha Kishan, incited by Muslim leaders calling for violence via mosque loudspeakers, were involved in the Nov. 4, 2014 assault in which 26-year-old Shahzad Masih and his five-months pregnant wife, Shama, 24, were thrown into a burning brick kiln....

Masih and his wife worked as bonded laborers at the brick kiln when the throng descended on them after area Muslims accused them of committing blasphemy by burning Quranic pages....

On Nov. 2, 2014 Shama Masih was cleaning her quarters ... when she found amulets of her late father-in-law, who had used them in the practice of black magic. The amulets may have contained koranic verses, and a Muslim co-worker, Muhammad Irfan, noticed half-burnt papers and accused the family of desecrating the Koran, relatives said.

Supreme Court Denies Cert. In Ecclesiastical Abstention and RFRA Cases

The U.S. Supreme Court today denied review in Pfeil v. St. Matthews Evangelical Lutheran Church, (Docket No. 16-210, cert. denied 11/28/2016) (Order List).  In the case the Minnesota Supreme Court held that the 1st Amendment's ecclesiastical abstention doctrine prohibits holding a church and its pastors liable in a defamation action for statements made during church disciplinary proceedings seeking to excommunicate plaintiffs. (See prior posting.)

Today the Supreme Court also denied certiorari in Oklevueha Native American Church of Hawaii v. Lynch, (Docket No. 16-418, cert. denied 11/28/2016) (Order List). In the case the 9th Circuit, rejecting a RFRA defense, held that a church and its founder were properly denied an exemption from federal laws that prohibit the possession and distribution of cannabis. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Carissima Mathen & Michael Plaxton, Legal Education, TWU, and the Looking Glass, ((2016) 75 Supreme Court Law Review (2d) 223).
• Asli U. Bali & Hanna Lerner, Constitution Writing, Religion and Democracy: Introduction, (Constitution Writing, Religion and Democracy, Cambridge University Press, 2017, Forthcoming).
• Darrell A. H. Miller, Institutions and the Second Amendment, (66 Duke Law Journal 69 (2016)).
• Alexander Tsesis, Campus Speech and Harassment, (Minnesota Law Review, Vol. 101, 2017).
• Brian Christopher Jones & Austin Sarat, Justices As 'Sacred Symbols': Antonin Scalia and the Cultural Life of the Law, (British Journal of American Legal Studies (2017) Forthcoming.).
• David L. Sloss, Incorporation, Federalism, and International Human Rights, (Human Rights and Legal Judgments: The American Story (Austin Sarat ed., Cambridge Univ. Press 2017).
• Melissa Murray, Obergefell v. Hodges and Nonmarriage Inequality, (104 Calif. L. Rev. 1207 (2016)).
• Sandra Alcaide & Lynne Marie Kohm, Obergefell: A Game-Changer for Women, (14 Ave Marie L. Rev. 101 (2016)).

From SmartCILP and elsewhere:

• Luz E. Nagle & Bolaji Owasanoye, Fearing the Dark: The Use of Witchcraft to Control Human Trafficking Victims and Sustain Vulnerability, 45 Southwestern Law Reveiw 561-593 (2016).
• Stephanie N. Phillips, A Text-Based Interpretation of Title VII's Religious-Employer Exemption, 20 Texas Review of Law & Politics 295-340 (2016).
• Symposium Issue: Law, Stewardship, and the Dominion Mandate: Environmental Policy from a Christian Legal Perspective. Foreword by B. Keith Faulkner; introduction by Ian S. Lamont; articles by John Copeland Nagle, Lucia A. Silecchia, Tory L. Lucas and Edna Udobong. 10 Liberty University Law Review 331-500 (2016).
• Symposium on Religion and Family Law. University of Illinois Law Review, Vol. 2016, No. 4.

Before DeVos, Trump Offered Secretary of Education Post To Jerry Falwell, Jr.

As previously reported, Donald Trump last week picked school-choice advocate Betsy DeVos as his nominee for Secretary of Education.  AP reported yesterday that Trump had first offered the position to Liberty University president Jerry Falwell Jr.:

Falwell tells The Associated Press that Trump offered him the job last week during a meeting in New York. He says Trump wanted a four- to six-year commitment, but that he couldn't leave Liberty for more than two years.

Falwell says he couldn't afford to work at a Cabinet-level job for longer than that and didn't want to move his family, especially his 16-year-old daughter.

Recent Prisoner Free Exercise Cases

In Porter v. Wegman, (9th Cir., Nov. 23, 2016), the 9th Circuit reversed a distrcit court's summary judgment for defendant and remanded for trial an inmate's complaint that he was wrongly switched from a kosher diet to a vegetarian diet and was denied dietary accommodations during multi-day Passover observances.

In Davilla v. Watts, 2016 U.S. Dist. LEXIS 160966 (SD GA, Nov. 21, 2016), a Georgia federal magistrate judge recommended denying a preliminary injunction to a Santeria practitioner who sought additional ability to practice his religion.

In Sanford v. Madison County, 2016 U.S. Dist. LEXIS 161906 (SD IL, Nov. 22, 2016). an Illinois federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 161904, Nov. 4, 2016) and allowed a Muslim inmate to file an amended complaint alleging that defendants imposed unconstitutional restrictions on his religious practices.

In White v. Wright, 2016 U.S. Dist. LEXIS 161870 (ED WI, Nov. 22, 2016), a Wisconsin federal district court allowed a Muslim inmate to move ahead with his complaint that jail authorities interfered with, and harassed him during, his prayers, and often denied him his vegan diet.

In Yah'Torah v. Hicks, 2016 U.S. Dist. LEXIS 162315 (D NJ, Nov. 22, 2016), a New Jersey federal magistrate judge permitted an inmate to reinstate the head of the Religious Issues Committee as a defendant in his suit complaining that he was denied access to fragrant oils for religious purposes.

In Hauseur v. Clark, 2016 U.S. Dist. LEXIS 162849 (ED CA, Nov. 22, 2016), a California federal magistrate judge recommended allowing amendments to assert claims under California's Civil Code 51.7 and the Bane Act by an inmate who complained about the standards for kosher meals he received and about the failure to provide Jewish religious services on many occasions. The court dismissed plaintiff's claim under the Unruh Civil Rights Act.

In Hedin v. Castillo, 2016 U.S. Dist. LEXIS 162528 (D OR, Nov. 23, 2016), an Oregon federal district court adopted a magistrate's findings (2016 U.S. Dist. LEXIS 163020, Sept. 27, 2016) and dismissed on various grounds claims by an inmate that changes had restricted his ability to practice his Asatru faith.

In Fletcher v. Kelly, 2016 U.S. Dist. LEXIS 162443 (ED AR, Nov. 23, 2016), an Arkansas federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 163028, Oct. 28, 2016) and dismissed (for failure to exhaust administrative remedies against him) one of the defendants in a suit by a Cherokee Nation inmate who is seeking use of a sweat lodge and a number of other ceremonial items.

Canadian Court Refuses Parent's Religious Accommodation Request

In E.T. v. Hamilton-Wentworth District School Board, (ON Super. Ct. Jus., Nov. 23, 2016), an Ontario (Canada) trial court rejected an attempt by the father of two elementary school students to require his children's school to notify him in advance of specific curriculum areas being taught to his children so he could withdraw them from classes, lessons or activities that conflict with his Greek Orthodox religious beliefs.  The father contended that he has an obligation to protect his children from "false teachings," including moral relativism and issues surrounding human sexuality. While the school had a religious accommodation guideline and the parent had shown a sincere religious belief as to matters of marriage and sexuality that are inconsistent with the school's curriculum, the court upheld the school's refusal to grant his requested accommodation, saying in part:

Accommodation by non-attendance, which is sought by the applicant, would allow him to isolate his children from aspects of the curriculum that in his religious belief would amount to "false teachings". However isolation is antithetical to the competing legislative mandate and Charter values favoring inclusivity, equality and multiculturalism.

LifeSite News reports on the decision. 

British Court Rejects Challenge To Jewish Cemetery's Refusal To Allow Exhumation

In Britain this week, a High Court judge has denied an application for leave to obtain judicial review of a decision by a Jewish cemetery that refused to allow a man's body to be exhumed for reburial in Israel.  According to the Jewish Chronicle, the case involves the late Joseph Charazi who was buried in a Jewish cemetery in Hertfordshire in 1993. Charazi was born in Israel and his wife Anne claims his dying wish was to be buried back there. However in 1993 his widow could not afford to send his body that distance. In 2011, his widow herself moved to Israel and now wants to carry out Charazi's wishes even though 4 of Charzi's children oppose the move.  Adath Yisroel Burial Society that administers the cemetery followed a ruling of the rabbinate that the body should not be exhumed.  The court held that a decision of a religious body in a matter of a religious nature is generally not amenable to judicial review.

Lawyers Battle Over Upcoming Series On Scientology

On Nov. 29, the A&E Network will premiere the series "Leah Remini: Scientology and the Aftermath."  Since August the Church of Scientology has been sending letters to A&E and its parent ABC attempting to prevent the series from being aired. This week The Underground Bunker published 4 letters-- two from Leah Remini’s attorney Douglas E. Mirell, and replies from Scientology attorney Gary S. Soter summarizing them as follows:

In the exchange, Mirell calls Pouw’s many letters to A&E libelous and defamatory, accusing the church of maliciously trying to harm Remini’s reputation and interfere with her contract with A&E. Mirell demands that Scientology retract the letters and pay Remini $1.5 million as compensation. Soter, in his two replies, said the church would pay nothing and it stood by what it said about Remini.

President Issues 2016 Thanksgiving Day Proclamation

Today is Thanksgiving.  President Obama issued the formal Thanksgiving Day 2016 Presidential Proclamation yesterday.  It reads in part:

The Pilgrims were grateful they could rely on the generosity of the Wampanoag people, without whom they would not have survived their first year in the new land, and together they celebrated this bounty with a festival that lasted for days and prompted the tradition of an annual day of giving thanks.

This history teaches us that the American instinct has never been to seek isolation in opposite corners; it is to find strength in our common creed and forge unity from our great diversity. On that very first thanksgiving celebration, these same ideals brought together people of different backgrounds and beliefs, and every year since, with enduring confidence in the power of faith, love, gratitude, and optimism, this force of unity has sustained us as a people. It has guided us through times of great challenge and change and allowed us to see ourselves in those who come to our shores in search of a safer, better future for themselves and their families.

Indiana Appeals Court Hears Oral Arguments In RFRA Defense To Tax Evasion

On Monday, the Indiana Court of Appeals heard oral arguments (video of full arguments) in Tyms-Bey v. State of Indiana. In the case, defendant charged with tax evasion filed notice that he intended to raise a religious freedom defense under Indiana's Religious Freedom Restoration Act. The trial court struck the defense and defendant filed this interlocutory appeal.  Washington Post reports in more detail on the case.

Court Says Teacher Was Not Fired Because of His Religious Beliefs

In Diss v. Portland Public Schools, (D OR, Nov. 22, 2016), an Oregon federal magistrate judge granted summary judgment to defendants in a suit by former public school teacher William Diss who claims that he was fired because of his religious beliefs.  Diss, a devout Catholic, was active in the anti-abortion movement. When his school principal arranged for representatives of a federally-funded Teen Outreach Program to speak to students in various classes, Diss would not allow them to speak to his students because the outreach program was administered by the local Planned Parenthood organization. Diss pointed to this and to the principal's asking him to refrain from using religious phrases such as "God bless" in professional communications as evidence of violation of his First Amendment rights.  However, the court concluded:

Defendants have shown that they had valid, non-discriminatory reasons to discipline and terminate Plaintiff.  The record contains multiple reports from administrators and colleagues describing Plaintiff's ineffective and rigid teaching style, as well as a pattern of complaints about Plaintiff's disrespectful and demeaning conduct towards his students, colleagues, and administrators.

Trump Picks School Choice Advocate For Secretary of Education

The Detroit News reports that Donald Trump has chosen Betsy DeVos, a national leader in the school choice movement as his nominee for Secretary of Education:

DeVos is chair of the American Federation for Children, a Washington, D.C.-based single-issue organization devoted to expanding school of choice options across the country....

DeVos is a former Michigan Republican Party chairwoman whose husband, Dick, unsuccessfully ran for governor in 2006.

The DeVos family, heirs to the Amway Corp. fortune, are the most prolific donors to the Michigan Republican Party, GOP officeholders and candidates....

In 2000, Betsy and Dick DeVos funded an unsuccessful statewide ballot initiative to amend the state Constitution to allow tax dollars to be used for private school tuition through education vouchers. They have since advocated for school vouchers in other states.

Earlier today, before the choice was publicly announced, Breibart News carried an article opposing DeVos which it headlined: Potential Trump Education Chief Pick Betsy DeVos Is Pro-Common Core, Family Donated To Clinton Foundation.

UPDATE: DeVos says she is not a supporter of Common Core, clarifying her position on her website.

Court Again Refuses To Narrow Injunction Against Title IX Transgender Guidelines

In State of Texas v. United States, (ND TX, Nov. 20, 2016), a Texas federal district court denied defendants' request for a partial stay of the court's previously issued nationwide preliminary injunction against enforcement of Department of Education Title IX Guidelines barring discrimination by schools on the basis of gender identity. This is the second time the court has refused to narrow its preliminary injunction. Defendants had sought removal of non-plaintiff states from the reach of the injunction. The court said in part:

The Court remains convinced that Plaintiffs, not Defendants, have shown a great likelihood of success on the merits of their claims....   The federal statutes prohibiting discrimination on the basis of “sex”—the scope and meaning of which Defendants claim now includes gender identity—were promulgated more than forty years ago.... The federal government did not articulate, much less enforce, the Guidelines’ interpretation of sex as including gender identity for nearly fifty years after Title VII was passed in 1964 and the Court views this delay as strong evidence that Defendants will suffer no irreparable injury if a stay is denied and enforcement of the Guidelines delayed until their legality is established.

Liberty Counsel issued a press release announcing the decision.

2d Circuit Rejects Teacher's Suit Over Classroom Religious Displays

In Silver v. Cheektowaga Central School District, (2d Cir., Nov. 7, 2016), the U.S. 2nd Circuit Court of Appeals affirmed the dismissal of a lawsuit brought by a Christian high school science teacher who was told to remove her classroom display of several Bible verses, other statements about God and a picture of three crosses on a hill. She was also told to prevent guest speakers from promoting religion religiously-themed postings from her classroom. (See prior posting.) The appeals court rejected the teacher's free speech, establishment clause and equal protection clause challenges. The Buffalo News last week reported on the decision.

Justice Department Sues Under RLUIPA Challenging Mosque Zoning Denial

Yesterday the Justice Department filed a civil lawsuit under the Religious Land Use and Institutionalized Persons Act against Bernards Township, New Jersey over the town's refusal to grant zoning approval for construction of a mosque. (DOJ press release). The complaint (full text) in United States v. Township of Bernards, New Jersey, (D NJ, filed 11/22/2016), contends that:

The mosque proposal met with vociferous public opposition. Flyers, social media, and websites denounced the mosque and were filled with anti-Muslim bigotry and references to terrorism and the 9/11 attacks....

The Planning Board ultimately held thirty-nine public hearings over three and a half years. The Planning Board had never held such a large number of hearings for any previous site plan application.... Since at least 1994, this was the first time that the Planning Board had denied a site plan application for a house of worship.

Suit Challenges Kentucky's Denial of "IM GOD" License Plate

The ACLU and Freedom From Religion Foundation yesterday announced the filing of a lawsuit in Kentucky federal district court challenging the state's refusal to approve an atheist's request for a personalized license plate carrying the letters "IM GOD".  The state said the proposed plate is "offensive to good taste and decency." The complaint (full text) in Hart v. Thomas, (ED KY, filed 11/22/2016), asserts both facial and as-applied challenges contending that the denial of the license-plate application amounts to content and viewpoint-based discrimination. The suit also challenges the Kentucky statute that allows denial of personalized plates that promote political or religious beliefs. WDRB reports on the case.

Kyrgyzstan Criminalizes Religious Marriage of Minors

According to Interfax, in Kyrgyzstan last week, President Almazbek Atambayev signed amendments to the country's Family and Criminal Codes banning religious consecration of marriages involving minors.  The new law makes it a criminal offense to enter into marriage with a minor and extends criminal punishment of 3 to 5 years in prison to both clergy and parents who participate in the religious marriage ceremony.  In recent years, increasing numbers of young girls in Kyrgyzstan have been married off in Muslim religious ceremonies, even though the marriage cannot be legally registered.

Bill Introduced In Congress To Bar Muslim Registry

In a press release yesterday, Congresswoman Suzan DelBene who represents the state of Washington in the U.S. House of Representatives introduced HR6382 the No Religious Registry Act. Introduced in response to statements suggesting that President-Elect Donald Trump favors a registry of Muslims in the U.S., the bill would bar the collection of information and the creation of a registry for classifying U.S. nationals, U.S. visa applicants or aliens lawfully present in the U.S. on the basis of religious affiliation,

Israel's High Court of Justice Enjoins Appointment of Military Chief Rabbi

Israel's High Court of Justice today issued an injunction temporarily preventing the Israel Defense Forces from appointing Col. Eyal Karim as the IDF's chief rabbi. As reported by Times of Israel, Karim has made very controversial statements in the past regarding rape of enemy women during wartime.  He also has written that women should not serve in the IDF, women should not sing at army events, and if they do religious soldiers should be permitted to leave. Apparently IDF Chief of Staff Lt. Gen. Gadi Eisenkot did not know of Karim's comments when he nominated him for the military's chief rabbi.  Today's temporary injunction is in response to a petition filed with the Court by the left-wing Meretz Party.  The Court has told Karim to file an affidavit on his past and present views on wartime rape and the role of women in the military. Right-wing Knesset members are encouraging Karim to stick with his views, attacking the right of a court to police the religious views of a rabbi.

Pope Francis Extends Priests' Authority To Forgive Abortion

As reported by Vatican Radio, Pope Francis yesterday issued an apostolic letter, Misericordia et Misera  (“Mercy and Misery”), which extends a number of initiatives begun in the just-ended Jubilee Year of Mercy.  One portion of the Pope's letter may color legal and political debate in the United States:

... [L]est any obstacle arise between the request for reconciliation and God’s forgiveness, I henceforth grant to all priests, in virtue of their ministry, the faculty to absolve those who have committed the sin of procured abortion. The provision I had made in this regard, limited to the duration of the Extraordinary Holy Year, is hereby extended, notwithstanding anything to the contrary. I wish to restate as firmly as I can that abortion is a grave sin, since it puts an end to an innocent life. In the same way, however, I can and must state that there is no sin that God’s mercy cannot reach and wipe away when it finds a repentant heart seeking to be reconciled with the Father. May every priest, therefore, be a guide, support and comfort to penitents on this journey of special reconciliation.

The Washington Post reports that in a press conference a Holy See official, Monsignor Rino Fisichella, said that the pronouncement covers doctors, nurses and others involved in an abortion, as well as the woman obtaining the procedure.

In a separate matter, the Pope's apostolic letter also validated continued hearing of confessions by priests of the controversial right-wing Society of St Pius X. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Amos A. Israel-Vleeschhouwer, The Mandate System as a Messianic Alternative in the Ultra-Religious Jurisprudence of Rabbi Dr. Isaac Breuer, (49(3) Israel Law Review 339-363 (2016)).
• Scott Altman, Taking Precautions When Shaping a Child's Values, (USC Law Legal Studies Paper No. 16-34 (2016)).
• Kathryn Chan, Corporate and Trust Law Dimensions of the Trinity Western University Law School Debate, (November 14, 2016).
• Mickell Branham, Listening to Victims, (in Death Penalty and the Victims, United Nations Human Rights Office of the High Commissioner, September 1, 2016).
• Brice Dickson & Conor McCormick,The Right to Education for Humanity, (67(4) Northern Ireland Legal Quarterly 409-432).
• Joe Pratt, The False Materialism of America's Death Penalty, (November 16, 2016).

From SmartCILP:

• Garrett Epps, Public Funding and the Road to Damascus: The Legacy of Employment Division v. Smith, 94 Oregon Law Review 659-671 (2016).
• Marion Goldman, Dave Frohnmayer and the Apocalypse that Evaporated, 94 Oregon Law Review 633-657 (2016).
• Symposium. My Religion, My Rules: Examining the Impact of RFRA Laws on Individual Rights. Foreword by Bryan A. Hum; articles by Shai Stern, Scott D. Pollock and Bill Piatt. 79 Albany Law Review 621-704 (2015/2016).
• Symposium on the Meaning of Religious Liberty in the Anglo-American Legal Tradition. Articles by Matthew J. Franck, Andy G. Olree, Jonathan Den Hartog, Scott A. Merriman and Jeffrey B. Hammond. 7 Faulkner Law Review 1-128 (2015).
• Imani Jaafar, Practical Islamic Estate Planning: A Short Primer, 42 Mitchell Hamline Law Review 925-939 (2016).
• Charles J. Russo, Religious Freedom in Faith-Based Educational Institutions in the Wake of Obergefell v. Hodges: Believers Beware, 2016 BYU Education & Law Journal 263-308.
• Colloquium: Religious Liberty after Hobby Lobby: A Panel of the 2014 Federalist Society National Lawyers Convention. Introduction by William L. Saunders; Hon. Diarmuid F. O'Scannlain, moderator; Kim Colby, William P. Marshall and Robin Fretwell Wilson, panelists. 48 Connecticut Law Review 969-1011 (2016) [Video of Panel Discussion].

Group Launches Annual "Friend or Foe" Christmas Campaign

Liberty Counsel announced last week that it has launched its fourteenth annual Friend or Foe Christmas Campaign, saying in part:

Liberty Counsel is actively monitoring cases across the country where there is intimidation by officials and groups to remove the celebration of Christmas in public and private sectors. These threats include atheist groups seeking to ban nativity scenes from public property, senior living centers that prohibit residents from singing Christmas carols, public schools that ban students from wearing the Christmas colors of red and green, school officials who censor religious words from Christmas carols and retailers which profit from Christmas while pretending it does not exist.

Its announcement links to a memorandum on legal issues and its annual "Naughty & Nice" list of retailers focusing on whether or not companies use the term "Christmas" in their advertising.