Army Grants Greater Dress and Grooming Accommodation For Sikhs and Muslims

The Army yesterday issued Directive 2017-03 revising Army uniform and grooming standards to allow greater religious accommodation, particularly for Sikh and Muslim members of the Army. The new directive allows religious accommodation to be granted at the brigade level to Sikhs to wear a turban or under-turban/patka, with uncut beard and uncut hair.  For Muslims, brigade-level approval is allowed for hijabs. The Directive allows a similar religious accommodation for beards, which would affect Muslims, Orthodox Jews, and perhaps soldiers of other religious faiths.  Certain exceptions apply, particularly in relation to those who need to wear protective masks. Also, without the need for granting of a religious accommodation, the Directive allows women to wear dreadlocks and individuals to wear certain religious bracelets. The Atlantic reports on the new Directive.

Study Shows Religious Affiliation of New 115th Congress

Pew Research Center yesterday published its study of the religious makeup of the new 115th Congress.  91% of the members of Congress describe themselves as Christian.  There is more religious diversity among Democrats in Congress than among Republicans.  Of the 295 Republicans, 293 are Christian and 2 are Jewish.  Of the 242 Democrats, 194 are Christian, 28 are Jewish, 3 are Buddhist, 3 are Hindu, 2 are Muslim, 1 is Unitarian Universalist, 1 is religiously unaffiliated, and 10 declined to state their religious affiliation. Of the 484 Christian members of Congress, 168 are Catholic, 13 are Mormon and 5 are Orthodox Christian.  The others span various Protestant denominations, most being Baptist, Methodist, Anglican/ Episcopal, Presbyterian and Lutheran.

Ivanka and Jared Choose A Synagogue

The Forward yesterday reported that First Daughter Ivanka Trump and her husband Jared Kushner have decided on a home in the Kalorama neighborhood of Washington, D.C. and will attend synagogue at the nearby Chabad Lubavitch congregation known as TheSHUL of the Nation's Capital. The small congregation draws 40 to 60 worshipers each Sabbath. As observant Jews, Kushner and his family do not drive on the Sabbath and thus need a synagogue within walking distance.

India Supreme Court Gives Broad Reading To Law Banning Religious Appeals To Voters

In Singh v. Commachen, (Sup. Ct. India, Jan. 2, 2016), the Supreme Court of India in a 4-3 decision yesterday interpreted broadly Sec. 123(3) of the Representation of the People Act which prohibits appealing to voters on the basis of religion, race, caste, community or language.  Indian Express reports on the decision and its impact:

By a 4-3 majority ruling, a seven-judge Constitution Bench held that an election will be annulled not only if votes are sought in the name of the religion of the candidate but also when such an appeal hinges on religion of voters or candidate’s election agents or by anybody else with the consent of the candidate.

The third class will include religious and spiritual leaders, often engaged by candidates to mobilise their followers. The majority view interpreted Section 123(3) ... to mean that this provision was laid down with an intent “to clearly proscribe appeals based on sectarian, linguistic or caste considerations ... and send out the message that regardless of these distinctions, voters were free to choose the candidate best suited to represent them.”....

Meanwhile ... [three justices] dissented ..., holding that the expression “his” used [in the statute] in conjunction with religion, race, caste, community or language is in reference to the candidate, in whose favour the appeal to cast a vote is made, or that of a rival candidate when an appeal is made to refrain from voting for another.

“To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction,” the minority judgment said.

Another Challenge Filed To HHS Rule on Transgender and Pregnancy Termination Discrimination

Another lawsuit has been filed challenging the Department of Health and Human Services rules that bar discrimination on the basis of gender identity or termination of pregnancy in the delivery of medical services by, among others, health facilities receiving federal financial assistance. Plaintiffs in this suit are Catholic organizations, including the entity that administers self-funded health plans for Catholic employers. The complaint (full text) in Catholic Benefits Association v. Burwell, (D ND, filed 12/28/2016) alleges that the rule requires plaintiffs to act in contravention of Catholic teachings:

HHS has taken a little-remarked-upon section of the ACA that prohibits discrimination “on the basis of sex” and turned it into a mandate that coerces Catholic hospitals and other healthcare providers into performing, supporting, and even covering gender transition procedures, and coerces other Catholic employers, even Catholic dioceses, into covering them. The 1557 Rule also prevents Catholic entities from discriminating on the basis of “termination of pregnancy,” a phrase that likely creates an abortion mandate.

Catholic Review reports on the lawsuit.

Last month, a similar challenge was filed in the same North Dakota federal district court by different plaintiffs. (See prior posting). Last week a Texas federal district court issued a nation-wide preliminary injunction against enforcement of the rules being challenged. (See prior posting).

New Jersey Mosque Wins Zoning Challenge

In Islamic Society of Basking Ridge v. Township of Bernards, (D NJ, Dec. 31, 2016), a New Jersey federal district court granted partial summary judgment to plaintiffs claiming religious discrimination by a township against an Islamic organization.  The court summarized its 57-page decision as follows:

This case requires the Court to examine a township planning board’s denial of a Muslim congregation’s site plan application to build a mosque.... Plaintiffs challenge the Planning Board’s decision on two bases: (1) Defendants’ disparate application of an off-street parking requirement between Christian churches and Muslim mosques, pursuant to the Religious Land Use and Institutionalized Persons Act...; and (2) the purported unconstitutional vagueness of a parking ordinance... under the Federal and New Jersey Constitutions. After careful consideration, the Court determines that Plaintiffs are entitled to judgment on the pleadings with regard to both issues.

NJ Advance Media reports on the decision.

Israeli Former Chief Rabbi Reaches Plea Deal In Bribery Case

Times of Israel reported last week that Israel's former Ashkenazi chief rabbi Yona Metzger has reached a plea deal with Israeli prosecutors.  He will plead guilty to fraud, theft, conspiracy, breach of trust, money laundering, tax offenses and accepting bribes, in exchange for a reduced jail sentence.  Metzger was charged with receiving NIS 10 million ($2.6M (US) at current exchange rates) in bribes, and keeping NIS 7 million for himself. As previously reported, the bribes came, among others, from wealthy businessmen seeking to convert to Judaism, and for other services he performed in his role as Chief Rabbi. Many of the bribes came in the form of donations to non-profit organizations tied to Metzger.

Recent Articles of Interest

From SSRN:

• Yinka Olomojobi, Marriage in Nigeria Across Ages: Problems and Prospects,(September 24, 2016).
• Effie Fokas, Comparative Susceptibility and Differential Effects on the Two European Courts: A Study of Grasstops Mobilizations Around Religion, (Oxford Journal of Law and Religion, 0, 1-33, 2016).
• Eva Brems, Corina Heri,  Saïla Ouald Chaib & Lieselot Verdonck, Head-Covering Bans in Belgian Courtrooms and Beyond: Headscarf Persecution and the Complicity of Supranational Courts, (Forthcoming, Human Rights Quarterly, Fall 2017).
• Keren Weinshall Margel, Udi Sommer, & Ya'acov Ritov, Ideological Influences on Governance and Regulation: The Comparative Case of Supreme Courts, (Regulation & Governance, Forthcoming).
• Ioannis Iglezakis, The Legal Regulation of Hate Speech on the Internet and its Conflict with Freedom of Expression, (December 26, 2016).

From SmartCILP:

• Curtis Schube, A New Era in the Battle Between Religious Liberty and Smith: SOGI Laws, Their Threat to Religious Liberty, and How to Combat Their Trend, 64 Drake Law Review 883-917 (2016).

Church of Norway Formally Separated From the State Today

As reported by Sputnik News, today the Church of Norway, a Lutheran institution, officially became a separate entity after 500 years as an arm of the state. The movement toward disestablishing the Church was begun by Parliament in 2008. (See prior posting.) As of today, 1,250 priests and bishops will no longer be government officials. However, ties between the state and church remain. Norway's Constitution was amended to implement today's change.  While Article 2 now reads: "Our values will remain our Christian and humanistic heritage," Article 16 provides:

The Norwegian church, an Evangelical-Lutheran church, shall remain the Norwegian National Church and will as such be supported by the State.

However prior provisions making the Evangelical-Lutheran Church the "official religion" of the nation and placing the king in charge of religious matters were eliminated.

Recent Prisoner Free Exercise Cases

In Oliver v. Adams, 2016 U.S. Dist. LEXIS 177694 (ED CA, Dec. 22, 2016), a California federal magistrate judge allowed an inmate to move ahead with his suit for injunctive relief to the extent he claims systemic discrimination against Shetaut Neter throughout the California correctional system, but dismissed on various grounds other claims relating to past denials of a religious diet and other religious accommodations.

In Sirleaf v. Robinson, 2016 U.S. Dist. LEXIS 178028 (ED VA, Dec. 21, 2016), a Virginia federal district court dismissed without prejudice for failure to exhaust administrative remedies an inmate's claims that he was denied religious feasts of his "Common Wealth of Israel" faith.

In Colliton v. Bunt, 2016 U.S. Dist. LEXIS 178765 (SD NY, Dec. 27, 2016), a New York federal district court rejected a complaint that plaintiff's probation conditions requiring attendance at treatment and involvement in the community interfere with his lifestyle of prayer.

In Stewart v. Richardson, 2016 U.S. Dist. LEXIS 178809 (SD NY, Dec. 27, 2016), a New York federal district court allowed an inmate to move ahead with some claims alleging that his religious material, including his bible and family-made items, were confiscated.

In Rials v. Avalos, 2016 U.S. Dist. LEXIS 178827 (ND CA, Dec. 27, 2016), a California federal district court dismissed with leave to amend a complaint by an inmate who was a member of the Moorish Science Temple of America that a rules violation report placed in his file reduced his ability to practice his religion.

In France v. Allman, 2016 U.S. Dist. LEXIS 178843 (ND CA, Dec. 27, 2016), a California federal magistrate judge dismissed a complaint by an Odinist inmate that his request for religious meals was denied.

In Beaver v. Nevada, 2016 U.S. Dist. LEXIS 179307 (D NV, Dec. 23, 2016), a Nevada federal district court dismissed with leave to amend an inmate's complaint over denial of a diet based on his religious belief that he should not eat things with a conscience.

In Fields v. Paramo, 2016 U.S. Dist. LEXIS 179423 (ED CA, Dec. 28, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that his request for a religious circumcision was denied.

In Floyd v. Williams, 2016 U.S. Dist. LEXIS 179903 (SD GA, Dec. 29, 2016), a Georgia federal magistrate judge recommended dismissing a Muslim inmate's complaint that because he was a Tier II inmate, he was not permitted to participate in a second Eid-ul-Fitr feast paid for by inmates, but limited to those in general population.

In Brown v. Ducart, 2016 U.S. Dist. LEXIS 179948 (ND CA, Dec. 29, 2016), a California federal district court permitted an inmate who is a minister affiliated with the United Kings Against Genocidal Environments religious community to move ahead with his claim that his group's religious material was confiscated and that he was told he could not assemble in the prison chapel until he changes his "religious ideology," as well as the name of his group.

Happy New Year 2017 !

Dear Religion Clause Readers:

Happy New Year 2017! I hope you continue to find Religion Clause a useful, if not indispensable, source of news on religious liberty and church-state developments.  While I focus primarily on developments in the United States, I have increased my coverage of international law-and-religion issues that are of special interest.

In a year in which distrust of media outlets and concerns over "fake" news reports have gained prominence, I hope I have remained reliably objective in my posts and have provided links to an abundance of primary source material for your use in fleshing out your understanding of developments.  I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, and others working professionally dealing with church-state relations and religious liberty concerns.

Last year was a year of surprises-- not the least of which were the untimely death of U.S. Supreme Court Justice Antonin Scalia and the election of Donald Trump as President of the United States.  Both of these will significantly impact church-state and religious liberty developments in 2017.

The aphorism "Predictions are very difficult, particularly if they are about the future" has variously been ascribed to Neils Bohr, Yogi Berra and others.  Well here is my difficult, and some might say foolhardy, prediction for 2017.  The year has the potential of bringing seismic developments in the church-state and religious liberty arenas.  There are three areas to watch.

First, religious liberty claims are increasingly seen as part of the "culture wars"-- a religious, social and political divide that became more salient with the election of Donald Trump.  A fundamental issue that is likely to pervade a number of specific disputes this year is how to distinguish a "religious" claim that enjoys special legal protection from a cultural claim that is subject to the will of political majorities.

Second, the added wall of separation provided by Blaine Amendments in numerous state constitutions is under challenge in the Supreme Court in the Trinity Lutheran case.  This challenge coincides with Donald Trump's designation as Secretary of Education of an individual who is a vigorous proponent of school choice.  In recent years, Blaine Amendments have been a primary stumbling block for school vouchers and similar plans.

Third, during the campaign, Donald Trump promised evangelical audiences that repeal of the Johnson Amendment was high on his agenda.  Repeal would mean that houses of worship could actively participate in political campaigns and still keep their non-profit status.  The revolution in campaign financing resulting from on-line fundraising from millions of supporters that was finely tuned in the 2016 elections could be supplemented by the raising of what would effectively be tax-deductible campaign funds to finance electioneering by religious organizations.

Continue to read Religion Clause to find out if developments bear out any of my speculative suggestions.  I also remind you that the Religion Clause sidebar contains links to a wealth of resources.  Please e-mail me if you discover broken links or if there are other links that I should consider adding.

Thanks to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  Thank you for making Religion Clause the most recognized source for keeping informed on the intersection of religion with law and politics.  I encourage you to recommend Religion Clause to colleagues and friends who might find it of interest.  It is accessible via Twitter and Facebook, as well as through traditional online access and RSS feeds.

Best wishes for 2017!  Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year.

Howard M. Friedman

Court Enjoins Health Care Gender Identity and Abortion Non-Discrimination Rule

Today, in a 46-page opinion, a Texas federal district court issued a nationwide preliminary injunction barring enforcement of a regulation issued by the Obama administration under the Patient Protection and Affordable Care Act that prohibits discrimination on the basis of gender identity or termination of pregnancy in health care programs that receive federal financial assistance. In Franciscan Alliance, Inc. v. Burwell, (ND TX, Dec. 31, 2016), a Texas federal district court, in a suit by eight states and three private health care providers, first held that the Department of Health and Human Services exceeded its authority in interpreting the statutory ban on "sex" discrimination to include discrimination on the basis of gender identity, stating:

Title IX and Congress’s incorporation of it in the ACA unambiguously adopted the binary definition of sex.

The court also concluded that the health care providers have shown a substantial likelihood that the challenged Rule violates the Religious Freedom Restoration Act in requiring them to perform and provide insurance coverage for gender transitions and abortions in violation of their religious beliefs. Becket Fund issued a press release announcing the decision.

Judge Reed O'Connor who handed down the decision had previously issued a nationwide injunction baring enforcement of federal guidelines interpreting Title IX as barring discrimination by schools on the basis of gender identity. (See prior posting.)

Obama Appoints 4 To Holocaust Memorial Council

Even though the formal change in Administrations is less than a month away, President Obama continues to make Presidential appointments to various councils.  Yesterday the White House announced that the President intends to appoint four individuals to the United States Holocaust Memorial Council. The four are: Walter Ray Allen Jr. (a retired professional basketball player), Deborah A. Oppenheimer (an independent film producer), Scott Straus (University of Wisconsin professor), and Jeremy M. Weinstein (Stanford University professor). According to the U.S. Holocaust Memorial Museum website:

The [Holocaust Memorial] Council, which meets twice a year, consists of 55 members appointed by the president, as well as five members each from the Senate and House of Representatives and three ex-officio members from the Departments of Education, Interior, and State. Presidential appointments serve for a five-year term; 11 members’ terms expire each year.

Clergy Who Will Speak At Trump Inaugural Announced

The Washington Post reported this week on the religious figures who will deliver prayers as part of Donald Trump's inauguration ceremony. According to the Trump Inaugural Committee, religious readings will be delivered by Cardinal Timothy Dolan, the Rev. Franklin Graham, Rabbi Marvin Hier, Bishop Wayne T. Jackson, the Rev. Samuel Rodriguez and Pastor Paula White.

Suit Challenges Zoning Approval For Temporary Jewish School

A resident of Ramapo, New York filed suit in a state trial court earlier this month challenging the decision of the Ramapo Zoning Appeals Board which allowed an Orthodox Jewish congregation to convert a single family residence into a temporary school.  The Board relied on a provision of the zoning code that allows use of temporary modular trailers as classrooms for up to two years while obtaining approval to build a permanent school. The residence meets fire and building codes.  The complaint (full text) in Katz v. Town of Ramapo, (Rockland Cty Sup. Ct., filed 12/19/2016) contends that zoning authorities should have required the school to go through the procedures to obtain a special use permit, including a public hearing.  According to the Lower Hudson News, zoning officials say it would not make sense to require tearing down of the house and replacing it with temporary modular trailers, and that kind of burden could not be justified under RLUIPA.

Obama Designates New Monuments Including Sacred Native American Site

Yesterday President Obama issued Executive Orders designating the Gold Butte area in the Mojave Desert in Nevada (full text of Executive Order) and the buttes known as Bears Ears in southeast Utah (full text of Executive Order) as National Monuments. The Bears Ears site is sacred to a number of Native American tribes, including the Ute Mountain Ute Tribe, Navajo Nation, Ute Indian Tribe of the Uintah Ouray, Hopi Nation, and Zuni Tribe. In a Statement, President Obama emphasized that he also has established a Bears Ears Commission to bring tribal expertise and traditional knowledge to the management of the Bears Ears National Monument.  In a statement on the White House website, the president of the Navajo Nation shared his thoughts on the establishment of Bears Ears National Monument.

UPDATE: Utah Gov. Gary Herbert (press release) and Utah Attorney General Sean Reyes (press release) both announced their opposition to the designation of Bears Ears.  Reyes said in part:

The sacred tribal areas in and around Bears Ears should absolutely be protected but in a way that is legally sound and that makes sense. A national monument in San Juan County does not preserve the land but divests it from the very people for whom it is sacred. The local Navajo will no longer be able to gather medicine or firewood, graze cattle, hunt, maintain their livelihoods or access the mountain heights for their religious ceremonies....

My office is working closely with the Governor’s office, federal and state legislators, and San Juan County to file a lawsuit challenging this egregious overreach by the Obama Administration. This case is different from other past challenges by states and counties and we are confident in our chances of success. But the courtroom is not our only option. Our federal delegation is working hard to defund the designation or rescind it altogether. Additionally, we look forward to working with the new Presidential Administration on ways to curtail or otherwise address the designation.

Plea Agreement Reached In FLDS Food Stamp Fraud Prosecution

AP reports that Seth Jeffs, a high-ranking member of the polygamous FLDS Church, has accepted a plea deal in his prosecution for food stamp fraud. Under FLDS doctrine known as the Law of Consecration, faithful members who were food stamp recipients were required to donate their benefits to the FLDS church through a clearinghouse known as the Bishop’s Storehouse. Food and household items were then redistributed to all in the community, whether or not they were food-stamp eligible. (See prior posting.) Last month Jeffs lost in his attempt to have his indictment dismissed on religious free exercise grounds. In the plea agreement, Jeffs pleaded guilty to felony fraud and prosecutors accepted the 6 months he has already served in jail as his punishment. Conspiracy and money laundering charges were dropped, and Jeffs was released from jail yesterday.  Jeffs could have faced 20 years in prison. Jeffs is the second of 11 defendants to reach a plea agreement with prosecutors, and plea deals with other defendants are possible.

UPDATE: Fox News (Jan. 4) reports that 6 other defendants pleaded guilty in plea deals that merely require them to take a class on the proper use of SNAP (food stamp) benefits.

NYPD To Allow Turbans and Beards For Religious Purposes

In an attempt to accommodate Sikh officers, the New York Police Department announced Wednesday that officers who are granted religious accommodation from the Department's Equal Opportunity Office will be allowed to wear one-half inch beards. They may also wear blue turbans  with a hat police shield attached, instead of the traditional police cap. New York Times and the New York Daily News report on the new policy which was announced by Police Commissioner  James O’Neill standing with a group of Sikh officers in turbans after an NYPD Academy graduation ceremony.

Sikh Neurologist Brings Title VII Suit Against Practice Group

The Sikh Coalition this week announced the filing of a Title VII lawsuit on behalf of a neurologist who claims that he was not hired by a physician‐owned  multi‐specialty medical group in Clarksville‐Montgomery County, Tennessee because of his religion, race and national origin.  The complaint (full text) in Singh v. Premier Medical Group, P.C., (MD TN, filed 12/27/2016) alleges:

Only after requesting information regarding Plaintiff’s appearance, and receiving and reviewing photographs of Plaintiff and information about his Sikh religious beliefs did Defendants refuse to hire Plaintiff.

Amish Sue Over City Requirement For Equine Diapers

Two members of the Old Order Swartzentruber Amish sect filed suit last week in a Kentucky state court challenging a 2014 amendment to Auburn, Kentucky's animal waste ordinance requiring horses and other large animals to wear animal catching devices.  As reported by WBKO and Bowling Green Daily News, the ordinance targets the Amish, requiring their horses to wear equine diapers.  The sect's elders decided that it violates religious principles to comply with the requirement. A number of Amish have already been prosecuted under the ordinance. (See prior posting). The lawsuit contends that the ordinance violates state and federal constitutional provisions as well as the Kentucky Religious Freedom Restoration Act.

EEOC Suit On Flu Shot Exemptions Is Settled

The EEOC last week announced a settlement of a religious discrimination lawsuit it had filed against the Erie, Pennsylvania-based Saint Vincent Health Center.  At issue was a requirement by the health center that in order for employees to obtain religious exemptions from the requirement they obtain flu shots, they were required to present a certification from a member of the clergy.  Six employees who claimed religious exemptions were not able to present documentation from clergy. (See prior posting.) Under the settlement the health center will pay $300,000 in back pay and damages and offer the employees reinstatement.  A consent decree was also agreed upon under which, among other things, the employer is barred from rejecting a religious accommodation request merely because the employee's belief is not an endorsed teaching of any particular religion or denomination. National Law Review reports on the settlement.

Kentucky Governor Declares 2017 As "Year of the Bible"

On Dec. 19, Kentucky Governor Matt Bevin signed a Proclamation (full text) declaring 2017 to be the "Year of The Bible."  A similar designation was given by the governor to 2016.  The Proclamation notes the Bible Reading Marathon that begins on January 1 in which leaders in each Kentucky county will take 15 minute shifts reading through the entire Bible. The Lexington Herald-Leader last week reported on the governor's signing of the proclamation.

City Changes Policy On Arrestees Wearing of Religious Head Coverings

As previously reported, in May a Muslim woman filed suit in federal court against the city of Long Beach, California and its police complaining that her hijab (headscarf) was forcefully removed while she was being booked by police and held overnight in jail.  The Long Beach Press-Telegram reported yesterday that the police have now changed their policy regarding religious headgear.  Last month police chief Robert Luna issued an order providing:

If an arrestee is wearing a religious head covering, employees shall make all reasonable efforts to allow this practice, except where safety and security concerns dictate otherwise.

The jail administrator says this means that the person arrested will be allowed to keep his or her head covering unless there is concern that the person is potentially suicidal and could use the item to harm himself or herself.

Top Ten Religious Liberty and Church-State Developments of 2016

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year.  This was a busy year, and a number of the important developments amounted to themes that spanned many months.  So here are my Top Ten picks for the rather chaotic year that is currently coming to an end. I welcome e-mail comment from those who disagree with my choices.

1. The unexpected death of Justice Scalia leaves the Supreme Court split on important issues, including the challenges to the Obamacare contraceptive coverage mandate.

2. Religion plays unusual roles in the Presidential election contest.  Donald Trump raises issues of Muslim immigration, repeal of the Johnson amendment, draws support from Evangelicals despite a personal history that might raise questions with religious conservatives, and receives support from the alt-Right which includes anti-Semitic elements.  Hillary Clinton who has deep personal religious roots does not emphasize these in her campaign.

3. Transgender rights-- particularly access to bathrooms-- become a religious as well as political issue as the Obama administration asserts that existing anti-discrimination provisions in federal law cover discrimination on the basis of sexual orientation and gender identity.

4. Supreme Court grants review in ERISA "church plan" exemption cases.  Billions of dollars in potential underfunding of retirement plans by religiously-affiliated health care systems around the country are at issue.

5. Fallout from the legalization of same-sex marriage continues as various wedding service providers assert the right to refuse to serve same-sex couples, Mississippi's Conscience Protection Act is struck down, and Alabama Chief Justice Roy Moore appeals his suspension growing of his resistance to accepting the Supreme Court's marriage equality ruling.

6. Latin crosses as part of veterans' memorials, in parks, and on county seals and the like become the latest focus of the battle over religious displays on public property.

7. State "Blaine Amendments" again become the focus of attention as the Supreme Court grants review in the Trinity Lutheran Church case and Oklahoma voters defeat a proposal to eliminate Blaine Amendments from the state constitution.

8. Federal and state RFRA's continue to be asserted, often but not always unsuccessfully, in unusual contexts-- e.g. challenging "In God We Trust" on currency, as a defense to tax evasion charges, as a defense to food stamp fraud, in connection with bankruptcy discharges, and in treatment of transgender employees.

9. Congress expands the U.S. role in protecting international religious freedom by passing the Frank R. Wolf International Religious Freedom Act.

10.  Justice Department sues cities under Religious Land Use and Institutionalized Persons Act for placing zoning impediments in the way of mosque construction.

For an alternative view of the Top Ten Religious Liberty Stories of 2016, see this post by Baptist Joint Committee blogger Don Byrd.

National Menorah Lighting Ceremony, With More Tension Than Usual

As reported by WTOP, yesterday in Washington, on the Ellipse near the White House, American Friends of Lubavitch sponsored the lighting of the National Menorah.  According to the Washington Examiner, the ceremony was more tense than usual. Representing the Obama Administration, Acting Treasury Undersecretary for Terrorism and Financial Intelligence Adam Szubin helped light the Menorah after remarks concluding with a hope "that our lights steadily increase, until the world is illuminated by a continual and unwavering light." But Rabbi Levi Shemtov representing the event sponsors used the theme of light to criticize the Obama Administration for its decision last week not to veto a U.N. Security Council resolution sharply criticizing Israel's settlement policies.  Shemtov said:

... [S]ome of us are so sad at what happened there with regard to Israel. We must remember that the way to counter any darkness, any disappointment is not with harsh rhetoric, not with anger, but when we create light, the darkness dissipates.

Meanwhile, the Smithsonian's SmartNews last week carried an interesting account of how the tradition of a national menorah began in 1979 when Abraham Shemtov pressed the idea:

... [T]he secretary of the interior initially denied him a permit to put a menorah on government property, on the grounds that it would violate the First Amendment.... What happened next was a classic piece of Washington insider work. Shemtov ... "called his friend Stu Eizenstat, an adviser to President Jimmy Carter.  Eizenstat gave the secretary a choice: Either approve the permit or deny the National Christmas Tree’s permit too. If he disobeyed, Eizenstat would take the matter straight to Carter, who would side with Eizenstat—a major embarrassment for the secretary."  Shemtov got the permit, and a tradition was born.

Cert Filed In RFRA Case Decided By Armed Forces Court of Appeals

On Dec. 23, a petition for certiorari (full text) was filed with the U.S. Supreme Court in United States v. Sterling.  In the case, the U.S. Court of Appeals for the Armed Forces held that a Marine Lance Corporal failed to establish a prima facie case under RFRA in defending against charges growing out of her work space posting of unauthorized signs containing Biblical quotations. (See prior posting.)  The petition for review by the Supreme Court frames the question presented as:

whether the existence of a forced choice between what religion and government command is necessary to establish a "substantial burden" under the Religious Freedom Restoration Act.

Independent Journal Review reports on the filing of the cert. petition.

Recent Articles of Interest

From SSRN:

• Belinda Carpenter, Gordon Tait, Carol Quadrelli & Ian Thompson, Investigating Death: The Emotional and Cultural Challenges for Police, (Policing and Society, 26(6), pp. 698-712 (2015)).
• Neil James Foster, Churches and the Law of Sanctuary in Australia, (March 4, 2016).
• Neil James Foster, How Should Religious Marriage Celebrants Respond If Same Sex Marriage Is Introduced in Australia?, (September 25, 2015).
• Fabienne Bretscher, The Swiss Judiciary and International Human Rights Bodies: A Closer Look at Muslim Religious Practices in Public Schools, (June 14, 2016).
• Joel Nolette, Whole Woman's Health v. Hellerstedt: Judicial Review When the Court Wants To, (Georgetown Journal of Law & Public Policy, Vol. 14, No. 2, 2016).
• Susan A. Bandes, Compassion and the Rule of Law, (International Journal of Law in Context vol. 13 issue 2 (2017 Forthcoming)).
• Eric Franklin, A More Charitable Charity: Administrative Necessity Provides an Opportunity to Promote Altruism in Charities, (December 14, 2016).

From SSRN (Islamic Law);

• Ibrahim Nuruddeen Muhammad, Waqf Based Philanthropy: A Definition and Obstacles to Waqf Knowledge Acquisition in North-Western Nigeria, (1st Kano Waqf International Conference (KWIC) (Dec. 2016).
• Sakirman MSI, Indonesia Islamic Law Study on Children Nasab,  (December 21, 2016).
• Avner M. Emon, Fiqh (A Historiography), (Fiqh: The Oxford Handbook of Islamic Law, Edited by Anver M. Emon and Rumee Ahmed (2016)).
• Avner M. Emon, Ijtihad, (Ijtihad: The Oxford Handbook of Islamic Law Edited by Anver M. Emon and Rumee Ahmed (2015).

From SmartCILP:

• Reza Afshari, LGBTs in the Islamic Republic of Iran. (Reviewing Lesbian, Gay, Bisexual and Transgender Rights in Iran: Analysis from Religious, Social, Legal and Cultural Perspectives, by the International Gay and Lesbian Human Rights Commission), 38 Human Rights Quarterly 814-834 (2016).
• Nehaluddin Ahmad, Ahmad Masum & Abdul Mohaimin Ayus, Freedom of Religion and Apostasy: The Malaysian Experience, 38 Human Rights Quarterly 736-753 (2016).
• Jeffrey A. Herman, Resolving ERISA's "Church Plan" Problem, 31 A.B.A. Journal of Labor & Employment Law 231-256 (2016).
• B. Jessie Hill, The First Amendment and the Politics of Reproductive Health Care, 50 Washington University Journal of Law & Policy 103-122 (2016).

Court Upholds Vaccination Requirement For Paramedic Clinical Students

In George v. Kankakee Community College, 2016 Ill. App. Unpub. LEXIS 2760 (IL App., Dec.. 20, 2016), an Illinois state court of appeals upheld a hospital's policy requiring community college students enrolled in the clinical portion of the school's paramedic course at the hospital to receive various vaccinations.  Plaintiff Nicholas George asserted religious objections to the vaccines and argued that the religious freedom and equal protection provisions of the Illinois constitution required he be granted an exemption. The court disagreed, holding that the vaccination requirement is a neutral law of general application, and that the Illinois Constitution allows requirements that may restrict religious freedom in order to promote the safety of the citizens of the state. The court also rejected various other state law challenges.

Recent Prisoner Free Exercise Cases

In Ali v. Eckstein, 2016 U.S. Dist. LEXIS 175024 (ED WI, Dec. 19, 2016), a Wisconsin federal district court ordered a Muslim inmate who sued over his inability to sign up to participate in Ramadan to file an amended complaint curing pleading deficiencies.

In Harvey v. Gonzalez, 2016 U.S. Dist. LEXIS 175793 (D CO, Dec. 20, 2016), a Colorado federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 175796, Nov. 21, 2016) and dismissed as moot a Muslim inmate's complaint about confiscation of his Qur'an and his inability to obtain a replacement.

In Carawan v. Mitchell, 2016 U.S. Dist. LEXIS 175858 (WD NC, Dec. 20, 2016), a North Carolina federal district court permitted a Muslim inmate to move ahead with his complaint that he was forced to choose between attending class to earn gain-time credits and attending Muslim worship services held at the same time.

In Husband v. Dougherty, 2016 U.S. Dist. LEXIS 175890 (D AZ, Dec. 19, 2016), an Arizona federal district court dismissed an inmate's claim that his access to the grievance process was blocked because of his religion.

In Baines v. Hicks, 2016 U.S. Dist. LEXIS 176116 (ED VA, Dec. 19, 2016), a Virginia federal district court dismissed a Muslim inmate's complaint regarding removal from the common fare diet and pressure to consume food from the common fare diet that did not meet his religious dietary requirements.

In Walters v. Livingston, 2016 Tex. App. LEXIS 13507 (TX App., Dec. 21, 2016), a Texas state appeals court held that a provision in the state's Religious Freedom Restoration Act that bars a person filing suit if the burden on religious exercise has been cured does not allow the state to avoid liability by curing a burden once the suit has been filed. Here the suit was by a Native American inmate.

In Pigues v. Solano County Jail, 2016 U.S. Dist. LEXIS 176910 (ED CA, Dec. 21, 2016), a California federal magistrate judge recommended dismissal of a suit by a Jehovah's Witness inmate complaining that correctional officers confiscated two religious drawings they thought to be gang related.

In Villalobos v. Bosenko, 2016 U.S. Dist. LEXIS 176924 (ED CA, Dec. 20, 2016), a California federal magistrate judge dismissed a complaint by an inmate who was a recent convert to Buddhism that he was denied a religiously compliant vegetarian diet that could have been served by combining elements of existing diets available to inmates.

In Stathum v. Nadrowski, 2016 U.S. Dist. LEXIS 177492 (D NJ, Dec. 22, 2016), a New Jersey federal district court allowed a Muslim inmate to proceed with his equal protection challenge, but not his free exercise challenge, to requiring him to accept vegetarian meals to satisfy his religious dietary needs instead of kosher meals that were available to Jewish inmates.

Obamas Wish Americans Merry Christmas

In his Weekly Address, posted as a video on the White House website, President Obama and First Lady Michelle Obama wished all Americans a Merry Christmas. In his address, the President briefly reviewed the accomplishments of his Administration. They also recognized Americans in military service.

Settlement Reached In Dispute Over Muslim Cemetery

The town of Dudley, Massachusetts has reached an agreement to settle a suit brought by the Islamic Society of Greater Worcester that will allow a Muslim cemetery to be located in the town. Initial denial of permits led to widely publicized charges of religious discrimination.  The Boston Globe reports:

The settlement, approved Thursday evening by the Dudley Board of Selectmen, should result in an initial 6-acre cemetery on 55 acres of former farmland that would provide enough graves for “several generations of families of the Islamic Society of Greater Worcester,” said Jay Talerman, ... a lawyer for the Islamic Society. Along with some wetlands, the site also contains about another 6 acres that would be suitable for cemetery plots, but under the deal the Islamic Society agrees not to seek to expand the initial cemetery for at least a decade, he said....

Under the new settlement, the cemetery project will come back before the Dudley Zoning Board of Appeals, where “we’ve agreed there will be a special permit granted on mutually agreeable conditions,” [John] Davis [the town's counsel] said. The project will then be reviewed by the Board of Health, and, if plans affect wetlands, by the Conservation Commission...

DHS Removes NSEER Rules, Making Any Muslim Registry Program By Trump More Difficult

Yesterday the Department of Homeland Security issued a release (full text) removing regulations relating to the  National Security Entry-Exit Registration System (NSEERS).  As reported by Vox, in 2011 President Obama had suspended the program, which targeted Muslims, by removing all countries from the list of those to whom the registration requirements apply. The program as it operated after 9-11 required males on non-immigrant visas who are 16 years old or older from 25 countries-- 24 of them Muslim countries-- to register.  The much-criticized program led to 13,000 deportations. Yesterday's action completely removes the regulations.  The Department of Homeland Security, finding that the data captured under SEERS is now available through other means, concluded that the removal of the old rules is merely procedural to delete "regulations related to an outdated, inefficient, and decommissioned program."  DHS was thus able to delete the old rules without going through the notice and comment requirements of the Administrative Procedure Act by invoking the exception for "rules of agency organization, procedure, or practice."

The action, effective with publication in today's Federal Register, means that the incoming Trump Administration, which has variously called for registration of Muslim immigrants, or those entering the U.S. from Muslim countries, will need to go through the full Administrative Procedure Act notice-and-comment requirements to implement a registration system. It will not be able to just reinvigorate SEERS. New York Times also reports on the action by DHS.

2016 Law and Religion Bibliography Published By AALS Section

The Association of American Law Schools Law & Religion Section has issued its Winter 2016 Newsletter which includes an extensive bibliography of books and articles on law and religion published during the past year.  It also includes news about the AALS section and its members.

Catholic Health Educator Files EEOC Complaint

A First Liberty Institute press release announced the filing on Dec. 21 of an EEOC complaint (full text) on behalf of Alexia Palma, a health educator at Legacy Community Health, a Texas clinic for low income patients.  The complaint charges refusal by new management to continue to accommodate Palma's Catholic religious beliefs. New management refused to allow her, in the family planning class she sometimes taught, to show a video giving information on contraceptive methods instead of personally teaching the material.  She was told she must put aside her religious beliefs. Washington Post reports on the case.

North Carolina's Attempt To Repeal "Bathroom Bill" Fails

As reported by the Washington Post, yesterday's special session of the North Carolina legislature that had been called to repeal the state's controversial anti-transgender "bathroom bill" was unsuccessful in doing so.  It appeared that a compromise had been worked out to repeal the law that prevents transgender individuals from using school and government office building restrooms that match their gender identity. (See prior posting.)  The city of Charlotte repealed its local non-discrimination ordinance that had triggered the state legislature's action.  However, the state repeal bill introduced in the legislature included a six-month moratorium on any city enacting a nondiscrimination ordinance to protect LGBT rights.  That limit was unacceptable to Democrats in the legislature.  Senate President Pro Tempore Phil Berger blamed the failure of the repeal on the Democrats, saying:

Their action proves they only wanted a repeal in order to force radical social engineering and shared bathrooms across North Carolina, at the expense of our state’s families, our reputation and our economy.

Preliminary Injunction Issued Against Illinois Conscience Act Amendments

In Pregnancy Care Center of Rockford, Inc. v. Rauner, (IL Cir. Ct., Dec. 20, 2016), an Illinois state trial court granted a preliminary injunction preventing enforcement against conscientious objectors of recently enacted amendments to the Illinois Healthcare Right of Conscience Act.  According to the court:

While the Conscience Act allows medical care providers to decline to participate in medical procedures to which they have moral objections, the amendments to the Act ... require providers to provide information and referral assistance with respect to a patient's "legal treatment options" as a precondition to invoking the Act's protections.

Invoking intermediate scrutiny of regulation of "professional speech" under the Illinois constitution, the court said that the legislature has imposed an obligation to furnish information only on conscientious objectors.  It goes on:

The Court concludes that plaintiffs have raised a "fair question" about whether SB 1564 unnecessarily burdens their right to be free from government compelled speech to a degree more than necessary to serve the state's interest in educating patients.

CatholicCitizens.org provides a lengthier analysis of the decision.

Suit Challenges College's Speech Zones and Speech Code

A student at Georgia Gwinnett College has filed suit in federal district court challenging the school's Speech Zone and Speech Code Policies. The 76-page complaint (full text) in Uzuegbunam v. Preczewski, (ND GA, filed 12/19/2016), says that plaintiff was stopped from distributing religious literature on campus when he was outside two small designated speech zones, and that when he tried to share his religious views in one of the designated speech zones he was told that his speech constituted disorderly conduct because it had generated complaints. Plaintiff asks for a declaratory judgment and injunction finding that the speech policies violate his free speech, free exercise, equal protection and due process rights. The Daily Signal reports on the lawsuit.

Removal of Secular "Nativity Scene" May Be Viewpoint Discrimination

In Freedom From Religion Foundation v. Abbott, (WD TX, Dec. 20, 2016), a Texas federal district court allowed plaintiff to move ahead with one aspect of its free speech claim in its challenge to the Texas governor's order removing from the Texas State Capitol exhibition area plaintiff's Bill of Rights "Nativity Scene." The display was accompanied by a banner that focuses on the Winter Solstice and separation of church and state.  The Texas State Preservation Board originally approved the display, but Texas Gov. Greg Abbott who is executive director of the Board instructed that it be taken down.  He contended that the display did not meet the requirement of promoting a "public purpose." The court held:

In this case, a genuine issue of material fact exists as to whether Defendants' decision to remove FFRF's exhibit constitutes viewpoint discrimination.

Plaintiff's other 1st and 14th Amendment challenges were dismissed. Dallas News reports on the decision.

Amicus Says Trademark Case Impacts Religious Speech

Next month, the U.S. Supreme Court will hear oral arguments in Lee v. Tam (SCOTUSblog case page).  The case involves a free speech challenge to the Lanham Act which allows the government to deny trademark registration to a mark "which may disparage * * * persons, living or dead, institutions, beliefs,
or national symbols, or bring them into contempt, or disrepute." On Monday the Becket Fund filed an amicus brief in the case focusing on the impact of the disparagement clause on religious speech. The brief argued in part:

Disagreements about deeply important issues such as religion can often be experienced as disparaging.... [I]t would be wrong for the government to punish speech simply because it wants to protect some religious “institutions” and “beliefs” from criticism.

In fact, to its credit, the United States has for many decades led the fight to convince other countries and international bodies to allow disparaging speech, and to resist using the law to punish those who disparage religion or commit blasphemy.

Slovakian President Vetoes Anti-Muslim Bill; Override Expected

AFP reports that in Slovakia yesterday, President Andrej Kiska vetoed as "discriminatory" a bill that would make it more difficult for Muslims and other religious minorities to receive government subsidies.  Currently under Slovakian law, a religion must have at least 20,000 followers in the country in order to qualify for subsidies.  The bill that was passed by the National Council (the Parliament) would increase that number to 50,000.  Some 2,000 to 5,000 Muslims currently live in Slovakia, whose total population is 5.4 million. It is expected that the National Council will override the President's veto after Prime Minister Robert Fico told reporters, "While I am prime minister, I will never agree to establish a unified Muslim community in Slovakia."

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.