Israeli Rabbi Tells Jewish Students At The Technion To Avoid Christmas Tree

As reported yesterday by Arutz Sheva and Haaretz, in Israel, the rabbi of the renowned university the Technion has created a furor by telling Jewish students that they should not enter the Student Union because of a Christmas tree that is being displayed there. Rabbi Elad Dokow wrote:

The Christmas tree is a religious symbol – not Christian, but even more problematic – pagan. Halakha [Jewish religious law] clearly states that whenever it is possible to circumvent and not pass through a place where there is any kind of idolatry, this must be done. So one should not enter the student union if it's not necessary to do so. 

The Technion-- an over 100-year old research university-- which prides itself on welcoming students of all religions and communities rejected Dokow's views, saying that it is determined to continue being an example of tolerance and coexistence.

England's Charity Commission Refuses To Register Jedi Order As A Religion

Last week, the Charity Commission for England and Wales rejected an application by the Temple of the Jedi Order (TOTJO)-- an organization whose doctrines are inspired by Star Wars-- to be entered onto the register of charities. (Full text of Commission's Dec. 16 ruling.) TOTJO claimed that its purpose is: "To advance the religion of Jediism, for the public benefit worldwide, in accordance with the Jedi Doctrine." The ruling says in part:

... [R]eligion in charity law is characterised by belief in one or more gods or spiritual or non-secular principles or things, and a relationship between the adherents of the religion and the gods, principles or things which is expressed by worship, reverence and adoration, veneration intercession or by some other religious rite or service. In addition, that it must be capable of providing moral and ethical value or edification to the public and characterised by a certain level of cogency, seriousness, cohesion and importance.

... The Commission has ... concluded that Jediism does not meet the characteristics of a religion for the purposes of charity law....

The Commission also rejected the argument that TOTJO should be listed as a charity under the promotion of moral or ethical improvement standard. The Guardian reports on the ruling.

USCIRF Appoints Singshinsuk As Executive Director

The U.S. Commission on International Religious Freedom announced yesterday that  Erin D. Singshinsuk, who has served since September as the Commission's Acting Executive Director has now been named Executive Director. According to the press release:

Ms. Singshinsuk has over 25 years of experience managing and working directly in support of federal commissions.  She has been affiliated with numerous organizations with an international focus, including the U.S. Institute of Peace (USIP) where she served as the Vice President for Management and the Chief Financial Officer.

Where Will Ivanka and Her Husband Pray?

Politico reported yesterday on the speculation swirling in Washington over which Orthodox synagogue "first-daughter" Ivanka Trump and  her husband Jared Kushner will make their religious home.  Many are suggesting that Georgetown's Kesher Israel is a front-runner.  Meanwhile The Forward speculates that the couple might opt for a private synagogue, or build a private one of their own, saying: "In-house worship spaces are a hot commodity for the observant wealthy."

Senate Judiciary Chairman Refers Planned Parenthood Groups For Possible Prosecution

U.S. Senator Chuck Grassley, Chairman of the Senate Judiciary Committee announced last week that he is referring several Planned Parenthood affiliates and companies, as well as the Planned Parenthood Federation of America, to the FBI and the Department of Justice for investigation and possible prosecution for conspiracy to violate 42 USC §289g-2, the law that bans buying or selling of human fetal tissue. In a letter (full text) to the Attorney General and Director of the FBI, Grassley indicated he was attaching a lengthy report (full text) from the Committee's Majority Staff.

Winter Solstice Displays Counter Religious Ones

Again this year, the Freedom From Religion Foundation is erecting Winter Solstice signs and displays to counter religiously themed Christmas displays on public property.  Beginning last weekend, a Bill of Rights "Nativity Scene" was placed in the Iowa State Capitol to counter a traditional Nativity Scene that went up there for the first time. (FFRF press release, Dec. 15).  And in Shelton, Connecticut, a lawsuit was settled allowing a winter solstice "Let Reason Prevail" sign to be placed on city property to counter religious displays by the American Legion (in another park) and the Cub Scouts. Ultimately the American Legion display was also changed to a secular one because light bulbs on the original angel display burned out. (Valley Independent Sentinel, Dec. 14).

UPDATE: Here is the full text of the Shelton, CT settlement agreement.

Recent Articles and Book of Interest

From SSRN:

• Raphael Cohen-Almagor, Hate and Racist Speech in the United States: A Critique, (Philosophy and Public Issues, Vol. 6, No. 1, pp. 77-123, 2016).
• Niousha Roshani, Grassroots Perspectives on Hate Speech, Race, & Inequality in Brazil & Colombia, (Berkman Klein Center Research Publication No. 2016-18, Dec. 2016).
• Andrew Sellars, Defining Hate Speech, (Berkman Klein Center Research Publication No. 2016-20, Dec. 2016).
• Robert Faris, Amar Ashar, Urs Gasser & Daisy Joo, Understanding Harmful Speech Online, (Berkman Klein Center Research Publication No. 2016-21, Dec. 2016).
• Chinmayi Arun & Nakul Nayak, Preliminary Findings on Online Hate Speech and the Law in India, (Berkman Klein Center Research Publication No. 2016-19, Dec. 2016).

From SSRN:

• Aaron R. Petty, Religion, Conscience, and Belief in the European Court of Human Rights, 48 George Washington International Law Review 807-851 (2016).
• Vincent J. Samar, The Potential Impact of Hobby Lobby on LGBT Civil Rights, 16 Georgetown Journal of Gender & Law 547-591 (2015).

Recent Book:

• Jane Calderwood Norton, Freedom of Religious Organizations, (Oxford Univ. Press, Aug. 2016).

Recent Prisoner Free Exercise Cases

In Brooks v. Williams, 2016 U.S. Dist. LEXIS 171453 (SD IL, Dec. 12, 2016), an Illinois federal district court allowed an inmate to move ahead with this complaint that he was denied access to Rastafari Sabbath services, but dismissed without prejudice has claim that he was denie access to a holy Piby religious text.

In Alamiin v. Patton, 2016 U.S. Dist. LEXIS 172044 (WD OK, Dec. 13, 2016), an Oklahoma federal district court while dismissing a number of claims allowed an inmate to move ahead with his claim regarding an improper halal diet.

In Parkell v. Senato, 2016 U.S. Dist. LEXIS 172419 (D DE, Dec. 13, 2016), a Delaware federal district court dismissed on qualified immunity grounds the two-year delay in furnishing kosher meals to an inmate whose religious beliefs combined Judaism and Wicca.

In Davies v. Toole, 2016 U.S. Dist. LEXIS 172978 (SD GA, Dec. 14, 2016), a Georgia federal magistrate judge concluded that a Muslim inmate stated a colorable claim for injunctive relief and nominal damages for refusal to provide him a vegan diet. A preliminary injunction was denied.

In El-Shaddai v. Stainer, 2016 U.S. Dist. LEXIS 173755 (CD CA, Dec. 13, 2016), a California federal district court dismissed complaints seeking accommodations for a kosher diet, religious name change, Messianic Hebrew religious services and ritual herbal smoking blends by an inmate claiming to be a practitioner of various occult traditions including the Hermetic Order of Melchizedek.

In Bey v. Pennsylvania Board of Probation & Parole, 2016 U.S. Dist. LEXIS 174301 (MD PA, Dec. 15, 2016), a Pennsylvania federal magistrate judge recommended that an inmate who is an adherent of Moorish Science Temple of America be allowed to move ahead on his Establishment Clause challenge to a Therapeutic Community program, alleging it has a religious component.

Maine OK's Pagan Priest Wearing Goat Horns In License Photo

The Washington Post reported today that a Pagan Priest, Phelan Moonsong, won the right earlier this month to wear a pair of goat horns in his Maine drivers license photo. Apparently Maine's motor vehicle bureau approved his request after he told them he had been in contact with the ACLU.  The state says that Moonsong did not mention that the goat horns were religious when he initially visited the Bureau of Motor Vehicles.

Firing Clerk Who Refused To Process Same-Sex Marriage Licenses Did Not Violate Title VII

In Summers v. Whitis, (SD IN, Dec. 15, 2016), an Indiana federal district court held that an Indiana County Clerk did not violate Title VII of the 1964 Civil Rights Act when she fired a deputy clerk who refused, on religious grounds, to process marriage licenses for same-sex couples. The court held:

Here, the court finds no objective conflict between Summers’ duties as a deputy clerk and her religious opposition to same-sex marriage. When it came to marriage licenses, Summers’ job merely required her to process the licenses by entering data and handing out information. Specifically, she had to pull up the application, verify that certain information was correct, collect a statutory fee, print a form, and record the license in a book for public record. At bottom, she was simply tasked with certifying–on  behalf of the state of Indiana, not on her own behalf– that the couple was qualified to marry under Indiana law. The duties were purely administrative.

To be clear, Summers did not perform marriage ceremonies or personally sign marriage licenses or certificates. She was not required to attend ceremonies, say congratulations, offer a blessing, or pray with couples. Her employer did not make her express religious approval or condone any particular marriage. Summers remained free to practice her Christian faith and attend church services. She was even free to maintain her belief that marriage is a union between one man and one woman. Thus, she was not forced to “choose between [her] religious convictions and [her] job.”...

... [T]he court does not question the sincerity of Summers’ beliefs. She maintains that “it’s not God’s law to have [same-sex couples] marry,” ... and has pointed to select verses from the Bible in support. That is fine; she has every right to believe that. However, that belief, no matter how sincerely espoused, does not objectively conflict with the purely administrative duty to process marriage licenses. Summers’ desire to avoid handling forms related to activities of which she personally disapproves is not protected by federal law. Title VII is not a license for employees to  perform only those duties that meet their private approval.

The court held, alternatively, that any religious conflict was with federal law, not with an employment requirement.

Voting Fraud Indictments Are Latest In Battle Over Hasidic Development In NY Town

As reported yesterday by The Forward, since 2012 the village of Bloomingburg, New York has been embroiled in a battle over whether an ultra-Orthodox Jewish community would expand into the town:

To the Orthodox and their allies, resistance to new Jewish neighbors can look like anti-Semitism. To the non-Orthodox, the arrival of a Hasidic community, with its schools and its institutions and its rabbinic authority, can feel like an invasion.

In Bloomingburg, local governments and an Orthodox developer have faced off in court, and in raucous village meetings, amid a volley of accusations of voter fraud and hate crimes.

The Forward article traces what appeared to be the success of Satmar Hasidim in expanding into the village. (See prior Religion Clause postings on Bloomingburg.) However yesterday, the U.S. Attorney's Office for the Southern District of New York announced the indictment (full text) of three men on charges of conspiracy to corrupt the electoral process in Bloomingburg in order to obtain clearance to build a housing development for members of the Satmar community:

In pursuit of millions of dollars in profits from a real estate development project, the defendants allegedly hatched a cynical ploy to corrupt the electoral process in Bloomingburg.  As alleged, to get public officials supportive of their development project elected to local government, the defendants concocted a scheme to falsely register voters who did not live in Bloomingburg, including some who had never even set foot there.  And to cover up their voter fraud scheme, the defendants allegedly back-dated fake leases and even placed toothpaste and toothbrushes in empty apartments to make them appear occupied by the falsely registered voters.  Profit-driven corruption of democracy cannot be allowed to stand no matter who does it or where it happens.

One of those indicted was developer Shalom Lamm whose father, Norman Lamm served for many years as president of Yeshiva University. The Forward reports on the indictments.

A fourth man was indicted and has pleaded guilty to charges of conspiracy to submit false voter registrations. (Full text of Information.)

Court Allows Peanuts Christmas Poster To Go Back Up, With Minor Change

As previously reported, on Tuesday of this week the Kileen, Texas school board voted to support a middle school principal who told a staff member to take down a 6-foot tall Peanuts character Christmas poster because it featured a Biblical quotation, or else to remove the religious language from it. Texas Values blog reports on the quick reaction.  On Wednesday, a lawsuit was filed on behalf of Dedra Shannon, the school clinic aide who had put up the poster.  The complaint (full text) in Shannon v. Kileen Independent School District, (TX Dist. Ct., filed 12/14/2016), contends that the censoring of the poster violates Shannon's free speech and free exercise rights. Yesterday, Texas Attorney General Ken Paxton moved to intervene on Shannon's side, arguing that "Texas must ensure that schools respect the ability of religious people to express freely their ideas and not misapply establishment principles." (Full text of Plea in Intervention.) Yesterday afternoon the court issued a temporary restraining order allowing Ms. Shannon to again put up her Christmas poster, but required an additional line on it stating: "Ms. Shannon’s Christmas Message."

Evangelical Leader Opposes Trump's Choice For Secretary of State

In his Washington Update this week, Christian Evangelical leader Tony Perkins voices strong opposition to President-Elect Donald Trump's choice for Secretary of State.  Perkins has the following to say about the nominee, ExxonMobil CEO Rex Tillerson:

The Left, which doesn't usually need a reason to oppose Trump's choices, won't find many here, since the ExxonMobil executive may be the greatest ally liberals have in the Cabinet for their abortion and LGBT agendas. That should be particularly alarming to conservatives, who've spent the last eight years watching the State Department lead the global parade for the slaughter of innocent unborn children and the intimidation of nations with natural views on marriage and sexuality.... 

To hear that Donald Trump may be appointing a man who not only led the charge to open the Boy Scouts to gay troop leaders but whose company directly gives to Planned Parenthood is upsetting at best.... Trump calls Rex a "world class player and dealmaker," but if these are the kinds of deals Tillerson makes -- sending dollars to an abortion business that's just been referred for criminal prosecution and risking the well-being of young boys under his charge in an attempt to placate radical homosexual activists -- then who knows what sort of "diplomacy" he would champion at DOS?

U.S. Sues Sterling Heights, Michigan Over Zoning Denial For Mosque

The Department of Justice announced yesterday that it has filed suit against the city of Sterling Heights, Michigan claiming that the city violated the Religious Land Use and Institutionalized Persons Act by denying a Special Approval Land Use application that would have allowed construction of a mosque on five adjoining lots in the city.  The complaint (full text) in United States v. City of Sterling Heights, (ED MI, filed 12/15/2016), alleges that this is the only special use application for a house of worship that has been denied by the city since 2006.  The mosque became the subject of opposition framed in anti-Muslim terms, and also became a local election issue especially among local Chaldean Christian business owners. Click On Detroit reports on the lawsuit.

This is the second RLUIPA suit filed this week by the Justice Department over denials of land use permits for a mosque. (See prior posting.)

President Hosts Hanukkah Receptions

President Obama yesterday hosted an afternoon and an evening Hanukkah Reception at the White House. In his remarks (full text) at the afternoon reception, he paid tribute to Elie Wiesel who died this year and called on Wiesel's granddaughter to light a Hanukkah menorah.  The evening reception (video of reception remarks) was attended by a number of government officials and the menorah was lit by family members of the late Israeli president Shimon Peres.

UPDATE: Here is the full text of the President's remarks at the evening reception.

Congress Strengthens International Religious Freedom Act

On Tuesday, Congress gave final passage to H.R. 1150, the Frank R. Wolf International Religious Freedom Act (full text). The bill, which amends the 1998 International Religious Freedom Act, is summarized in a press release by Rep. Chris Smith, the bill's sponsor:

The bill will improve U.S. religious freedom diplomacy efforts globally; better train and equip diplomats to counter extremism; address anti-Semitism and religious persecution and mitigate sectarian conflict.  The bill:

• Creates a “Designated Persons List” for individuals who commit egregious violations of religious freedom
• Creates a comprehensive religious prisoners list—persons who are detained, imprisoned, tortured and subject to forced renunciation of faith.
• Integrates religious freedom into every aspect of U.S. foreign policy
• Strengthens the Special Advisor for religious freedom at the National Security Council
• Requires international religious freedom training for all Foreign Service Officers
• Requires that the Ambassador-at-Large for International Religious Freedom report directly to the Secretary of State
• Elevates the position of the ambassador within the federal government
• Creates an “Entity of Particular Concern” designation for non-state actors like terrorist groups
• Requires more frequent presidential actions to counter severe religious freedom violations globally
• Creates a “Special Watch List”—two tier system at State (CPC countries/Special Watch List)
• Sets congressional expectations for staffing of the IRF office and expansion of Religious Freedom Program grants

The bill also provides:

The freedom of thought, conscience, and religion is understood to protect theistic and non-theistic beliefs and the right not to profess or practice any religion.

The bill now goes to the President for his signature.

Swiss Court Says Anti-Muslim Referendum Is Invalid

Daily Sabah reports that yesterday Switzerland's Federal Tribunal held that a referendum supported by the right-wing Swiss People's Party is unconstitutional. The referendum was an attempt to prevent state funding of the University of Fribourg's Swiss Centre for Islam and Society. Four of the high court's 5 judges agreed with the Fribourg regional Parliament that the referendum is unconstitutional because it singles out a particular religion.

Texas School District Nixes Charlie Brown Christmas Poster

In Kileen, Texas, the school board on Tuesday voted to support a middle school principal who told a staff member to take down a 6-foot tall Peanuts character Christmas poster. The principal acted because the poster shows Linus saying: "For unto you is born this day in the City of David a savior which is Christ the Lord...  That’s what Christmas is all about Charlie Brown." The Fort Worth Star-Telegram reports that the poster had been placed by a staff member on the front door of the school nurse’s office. Texas Attorney General Ken Paxton had urged the school district to allow the poster, contending that it was protected by the state's "Merry Christmas Law" that protects certain holiday displays in schools. (See prior posting.)

Court Invalidates Louisiana Executive Order Barring LGBT Discrimination

A Louisiana state trial court yesterday struck down as a violation of separation of powers Louisiana Governor John Bel Edwards Executive Order No. JBE 2016-11 (April 13, 2016) (See prior posting). The executive order bars state agencies and offices from discriminating on the basis of sexual orientation or gender identity, as well as on the basis of race, color, religion, sex, national origin, political affiliation, disability or age. In Louisiana Department of Justice v. Edwards, (LA Dist. Ct., Dec. 14, 2016), a challenge to the Democratic Governor's Executive Order brought by the state's Republican Attorney General was successful, the court stating in part:

Executive Order JBE-16-11 constitutes an unlawful ultra-vires act because, regardless of the defendant's intent, the effect of its adoption and implementation, creates new and/or expands upon existing Louisiana law as opposed to directing the faithful execution of existing laws of this state pursuant to the authority granted unto the office of the Governor to issue executive orders.

The New Orleans Times Picayune reports on the decision.

Alabama's CJ Roy Moore Files Brief In Appeal of His Suspension

As previously reported, in September Alabama's 9-member Court of the Judiciary (COJ) concluded that Alabama Supreme Court Chief Justice Roy Moore violated various Canons of Judicial Ethics in issuing an order to state probate judges telling them they had a duty under Alabama law to refuse to issue marriage licenses to same-sex couples. The COJ suspended Moore from office for the remaining two years of his term.  This decision is now on appeal to a specially constituted bench of the Alabama Supreme Court, the regular Justices having recused themselves. Yesterday, Moore filed a 95-page brief setting out his arguments. The brief summarizes them in part as follows:

The JIC [Judicial Inquiry Commission and the COJ did not have the jurisdiction or authority to review the Administrative Orders of the Chief Justice, as such authority is placed solely in this Court.

The COJ violated Rule 16 by imposing a de facto removal (i.e., permanent suspension without pay) upon Chief Justice Moore without the unanimous concurrence of all sitting members....

All charges against Chief Justice Moore must be dismissed because they have no legal basis and are not supported by clear and convincing evidence.... 

Section 159 of the Alabama Constitution, which imposes an automatic suspension upon the mere filing of a complaint with the COJ, represents a gross violation of due process in violation of the Fourteenth Amendment....

The JIC violated the confidentiality mandated by the Alabama Constitution and Rule 5 by disclosing information about Chief Justice Moore’s matter prior to filing charges and the penalty should be dismissal of all charges.

Liberty Counsel issued a press release announcing the filing of the brief.

Court Grants Variance To Allow Digital Church Sign

In Antioch Community Church v. Board of Zoning Adjustment, (MO App., Dec. 13, 2016), a Missouri state appeals court held that the Kansas City Zoning Adjustment Board abused its discretion when it refused to grant a church a variance from the city's sign ordinance.  The church modified its sign which displayed messages by way of manually hung letters to substitute a digital display.  The upgrade cost the church $11,000, and it installed it unaware that the Kansas City sign code prohibits digital displays on church property in residential zones. In ordering the variance granted, the appeals court said in part:

The Church is on a busy roadway nestled in the middle of considerable commercial development. Its sign does not substantially change the character of the neighborhood, and no evidence was introduced to show a substantial detriment to neighboring properties.

KCUR reports on the decision.

Church-State Gadfly Rob Sherman Dies In Small Plane Crash

Robert Sherman, a leading atheist activist and prolific litigant over church-state issues, died this weekend in the crash of a small plane he was piloting.  The Poplar Grove, Illinois resident hosted a popular radio talk show for 22 years; the final show was broadcast in 2007.  As reported by the Chicago Sun-Times:

In the 1980s and 1990s, Mr. Sherman was constantly in the headlines for atheism activism.

As Sun-Times columnist Richard Roeper put it in 1998, “He has battled towns from South Holland to Deerfield to Zion to Palatine to Highland, Ind., and Wauwatosa, Wis., over public displays of religious symbols on water towers, on government property and on official village seals.”...

Mr. Sherman’s philosophy, on matters from the practical to the ecclesiastical, was summarized on robsherman.com, a website created to drum up donations for his planned 2018 [Green Party] congressional run in the 12th district....

And, he emphasized the issue that brought him to public attention. “I will sponsor legislation to get ‘In God We Trust’ off of our money, remove ‘One Nation Under God’ from our Pledge of Allegiance, eliminate the National Day of Prayer and repeal Christmas as a federal holiday,” he wrote next to his likeness on a coin proclaiming “In Rob We Trust.”

Discussion of a number of cases brought by Sherman can be found at this link to past Religion Clause postings.

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.]