Presidential Proclamation Recognizing Religious Freedom Day

President Obama yesterday issued a Proclamation designating January 16, 2017 as Religious Freedom Day.  The date is the 231st anniversary of the passage of the Virginia Statute for Establishing Religious Freedom in 1786. The President's Proclamation reads in part:

Religious freedom safeguards religion, allowing us to flourish as one of the most religious countries on Earth, but it also strengthens our Nation as a whole. Brave men and women of faith have challenged our conscience and brought us closer to our founding ideals, from the abolition of slavery to the expansion of civil rights and workers' rights. And throughout our history, faith communities have helped uphold these values by joining in efforts to help those in need -- rallying in the face of tragedy and providing care or shelter in times of disaster.

Obama Appoints Two Members To Holocaust Memorial Council

With only days left in office, President Obama continues to make appointments to various federal councils and advisory committees.  Among the appointments announced yesterday were two to the Holocaust Memorial Council-- Grant Harris and Andrew Weinstein.

Morocco Implementing Burqa Ban

According to UPI, in Morocco this week the government began to give notices to businesses that they must stop making and selling burqas. Government officials say the ban stems from instances in which criminals have used burqas to disguise themselves during robberies. Others however suggest that the ban of the head-to-toe garment is aimed at conservative Muslims in the country. [Thanks to Scott Mange for the lead.]

3rd Circuit: Church Welcome Sign Does Not Violate Establishment Clause

In Tearpock-Martini v. Shickshinny Borough, (3d Cir, Jan. 4, 2017), the U.S. 3rd Circuit Court of Appeals rejected an Establishment Clause challenge to a church sign put up by a Pennsylvania town on a right-of-way near plaintiff's home.  The sign depicts a cross and a Bible and reads "Bible Baptist Church Welcomes You!", and has an arrow pointing toward the church.  The court concluded that plaintiff failed to show that the Borough treated the Church more favorably than others.

Suit By FLDS Members Against Warren Jeffs' Former Lawyers Is Dismissed

In Bistline v. Jeffs, (D UT, Jan. 11, 2017), a Utah federal district court dismissed a suit that had been brought by former members of the FLDS Church against the law firm of  Snow Christensen & Martineau and one of its attorneys.  The suit claimed that the attorneys through amending and reinstating the United Effort Plan Trust gave Warren Jeffs the ability to impose his control over assets and property and oppress FLDS members.   The court dismissed malpractice, breach of fiduciary duty, fraud, negligent misrepresentation, civil conspiracy and civil RICO claims on statute of limitations grounds, except as to one plaintiff whose claims were dismissed as inadequately pleaded. Finally the court dismissed claims under the Trafficking Victims Protection Reauthorization Act, holding in part:

Plaintiffs suggest that Defendants are nonetheless liable because Defendants drafted the Trust documents that made Jeffs’ revelations guiding tenets in how the Trust was managed. Plaintiffs’ theory would make attorneys vicariously liable for the acts of a client in the mismanagement of a trust simply because the attorneys prepared documents giving the client discretion in how the trust was managed. This theory is not sufficient to state a claim under 18 U.S.C. § 1589(a)....

Plaintiffs theorize that because one of the reinstated Trust’s purposes was to further FLDS doctrines, and because some FLDS doctrines are illegal, the drafters of the Trust furthered illegal acts. This theory is not sufficient to support Plaintiffs’ claim that Defendants abused a legal process under 18 U.S.C. §1589(a)(3). The Trust’s provisions and the authority it gives are centered on the distribution of property in a way that would meet the just wants and needs of the FLDS community. Plaintiffs cite no authority for the proposition that allowing a client to distribute trust property on the basis of religious principles is an abuse of a legal process.

KETV News reports on the decision.

Priest Sues Diocese Claiming Retaliation For Cooperating With Law Enforcement

AP reported yesterday that a Catholic priest in Palm Beach County, Florida has sued his former diocese alleging that he was driven out of his position in retaliation for his contacting law enforcement authorities to report another priest who had shown sexually explicit photos of young boys to a 14-year old boy. Plaintiff Rev. John Gallagher, who had become head priest of Holy Name of Jesus parish, says that after he wrote Church officials accusing Palm Beach Diocese officials of trying to cover up the case, Bishop Gerald Barbarito drove him out by turning the Spanish-speaking portion of the parish against him. Barbarito also had diocese priests read a statement at all Masses saying that Gallagher was spreading falsehoods.

Teacher Fired For Marrying Same-Sex Partner Sues Catholic High School

The North Carolina ACLU yesterday announced the filing of a federal lawsuit on behalf of a teacher who was fired by a Catholic high school in Charlotte after the teacher announced on Facebook that he planned to marry his long-time same-sex partner. Plaintiff Lonnie Billard had taught for over ten years at the school and in 2012 was named the Teacher of the Year. The lawsuit alleges that the firing violates Title VII of the 1964 Civil Rights Act. WFAE reports on the lawsuit.

Feds Unable To Find Compromise On Contraceptive Coverage Mandate

Last July, in response to the U.S. Supreme Court's remand in Zubik v. Burwell several federal agencies sought suggestions on ways to further accommodate objections by religious non-profits to  furnishing their employees coverage for contraceptive services in employer health plans. The National Law Journal this week reported that after receiving over 54,000 comments, the agencies are not modifying the current rules.  In a Jan. 9 FAQ Release, the Department of Labor said in part:

the comments reviewed by the Departments in response to the RFI indicate that no feasible approach has been identified at this time that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.

The federal government also began filing status reports reflecting this decision with the various Courts of Appeal to which the cases had been remanded.

In Israel, A Victory and a Setback For Women's Prayer At Western Wall

In Israel today, proponents of equal rights for women at the Western Wall won a victory in the High Court of Justice. Haaretz reports that the Court ordered an end to special body searches of women suspected of smuggling in Torah scrolls for women to read at the Wall-- a practice strongly opposed by the Orthodox rabbi in charge of the Western Wall space. The decision is in response to a petition to the High Court to allow women to bring in their own Torah scrolls.  It was filed by four women who are members of the split -off "Original Women of the Wall" who want egalitarian prayer in the women's section of the Wall rather than a separate mixed prayer space for men and women that was negotiated by the larger "Women of the Wall" group.  The Court also gave religious authorities 30 days to explain why women cannot pray as they wish in the women's section of the wall, or alternatively to allow them to pray in another area that provides similar proximity to the Western Wall.

Meanwhile The Forward reported Monday that the East Jerusalem Development Authority took down a sign pointing to the existing egalitarian prayer space in the Robinson's Arch area near the Wall after an Orthodox Jewish group complained that it had been put up without a proper permit.

Sessions Hearings Include Questions On Religious Liberty

The Senate Judiciary Committee yesterday held hearings on the nomination of Senator Jeff Sessions for Attorney General of the United States.  Don Byrd at Blog From the Capital has conveniently put together video excerpts from the lengthy hearing which deal with issues of religious liberty, including Donald Trump's past proposal for a temporary ban on Muslims entering the U.S.

ADF Announces New Head of Organization

The conservative Christian advocacy group Alliance Defending Freedom announced yesterday that its long-time president Alan Sears is moving to the position of "Founder," while Michael Farris will serve as ADF's new president, CEO and general counsel. Farris was the founding president of the Home School Legal Defense Association and of Patrick Henry College.

Minnesota County Rejects Muslim Cemetery

City Pages reports that in Chisago County, Minnesota, county commissioners on Dec. 21 by a vote of 3-2 rejected the recommendation of the county Planning Commission refused to approve the use of 16 acres as a cemetery for the Islamic Community of Bosniaks, a Bosnian congregation with a mosque in Minneapolis-St. Paul.  The vote came after many neighbors expressed opposition on grounds ranging from traffic concerns, to the Muslim practice of burying their dead without a casket, to openly anti-Muslim attitudes.

European Court Rejects Muslim Parents' Complaints About Mixed Swim Lessons In Schools

In Osmanoğlu and Kocabaş v. Switzerland, (ECHR, Jan. 10. 2017) (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment rejected a challenge by Muslim parents to a Swiss educational requirement that their young daughters attend mixed swim lessons.  The Court's press release summarized the decision:

The Court ... observed that the authorities’ refusal to grant ... an exemption from swimming lessons had been an interference with the freedom of religion, that interference being prescribed by law and pursuing a legitimate aim (protection of foreign pupils from any form of social exclusion).

The Court emphasised, however, that school played a special role in the process of social integration, particularly where children of foreign origin were concerned. It observed that the children’s interest in a full education, facilitating their successful social integration according to local customs and mores, took precedence over the parents’ wish to have their daughters exempted from mixed swimming lessons and that the children’s interest in attending swimming lessons was not just to learn to swim, but above all to take part in that activity with all the other pupils, with no exception on account of the children’s origin or their parents’ religious or philosophical convictions.

The Court also noted that the authorities had offered the applicants very flexible arrangements ... such as allowing their daughters to wear a burkini.... The Court accordingly found that by giving precedence to the children’s obligation to follow the full school curriculum and their successful integration over the applicants’ private interest in obtaining an exemption from mixed swimming lessons for their daughters on religious grounds, the domestic authorities had not exceeded the considerable margin of appreciation afforded to them ... which concerned compulsory education.

A Chamber Judgment may be appealed to the Grand Chamber. [Thanks to Law & Religion UK for the lead.]

Cert. Petition Filed In California Repairative Therapy Ban

A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Welch v. Brown, cert. filed 1/3/2017).  In the case, the 9th Circuit rejected facial free exercise and Establishment Clause challenges to California's ban on state-licensed mental health professionals providing "sexual orientation change efforts" for patients under 18. (See prior posting.) Pacific Justice Institute issued a press release announcing the filing of the petition for review.

Kentucky Enacts New Abortion Restrictions; Suit Filed Challenging Required Disclosures

In Kentucky yesterday, Gov. Matt Bevin signed into law H.B. 2 (full text), which, as described by CNN:

requires a physician or technician to perform an ultrasound, describe and display the ultrasound images to the mother, and provide audio of the fetal heartbeat to the mother before she may have an abortion. The text of the bill says the pregnant woman may choose to avert her eyes from the images, and request the volume of the heartbeat be turned down or off.

The law frames required disclosures in terms of providing information about the "unborn child."

The state's sole licensed abortion provider and three physicians immediately filed suit challenging the constitutionality of the law.  The complaint (full text) in EMW Women's Surgical Center, P.S.C. v. Beshear (WD KY, filed 1/9/2017), contends that the law violates rights of both physicians and patients. An ACLU press release announced the filing of the lawsuit.

The Governor also signed S.B. 5 which prohibits abortions after 20 weeks of pregnancy, with limited exceptions. Both H.B. 2 and S.B. 5 took effect immediately on signing. [Thanks to Tom Rutledge and Scott Mange for the leads.]

Cert. Denied In Buddhist Temple Dispute

The U.S. Supreme Court yesterday denied review in Tung v. China Buddhist Association, (Docket No. 16-450, cert. denied 1/9/2017). (Order List).  In the case, a New York state intermediate appellate court refused to order a Buddhist Temple to hold a membership meeting with a receiver determining those eligible to vote, holding that courts will not intervene in predominantly religious disputes. New York's highest court (Court of Appeals) affirmed in a summary decision. (See prior posting.) [Thanks to Mark Chopko for the lead.]

Claim For Interference With Inheritance Lies Against Legion of Christ

In Americans United For Life v. Legion of Christ of North America, Inc., (RI Super., Jan. 4, 2017), a Rhode Island trial court held that a claim of tortious interference with expectation of inheritance is cognizable under Rhode Island law.  At issue is a claim by an anti-abortion organization that Legion of Christ through fraud and undue influence induced Gabrielle Mee, a devout Catholic, to change her will to divert to Legion of Christ the 10% of her estate (equaling as much as $6 million) originally left to the pro-life group.  Her will already left 90% to Legion of Christ, and plaintiffs claim that had Ms. Mee learned of the charges of sexual abuse that surfaced as to Father Marcial Maciel Delgollado, the founder and former leader of Legion of Christ, she might well have completely cut them out of her will.  While allowing the tortious interference claim to move ahead, the court dismissed separate claims based on fraud and undue influence. AP reports on the decision. (See prior related posting.)

Problems In NY Town Experiencing Explosive Growth of Hasidic Jewish Community

Yesterday's Lower Hudson Journal News carried a very long investigative report titled Ramapo Nears Breaking Point, documenting the dislocations and conflict created by "chaotic, high-density sprawl" in a Rockland County, New York town that has seen explosive growth of its ultra-Orthodox, primarily Hasidic, Jewish community.  Here are a few excerpts from the report on the town of Ramapo:

While unprecedented population growth and a clash of cultures — complete with accusations of favoritism, anti-Semitism, racism and corruption — are symptoms of the changes, the Ramapo story is really one of loose zoning, lax enforcement of fire and building codes, and largely unchecked, out-of-control development....

Often, unchecked expansion is marked by dubious construction methods and materials, such as housing additions made of plywood. Extensions and even new structures are frequently built toward the back of lots, with no street access for emergency vehicles or municipal records of what’s actually there....

Rockland County had the state's highest population percentage increase in 2014.... While demand for housing keeps developers busy — and property values high — the town’s tax base has been eroded by an ever-growing number of tax-exempt yeshivas and synagogues, among other factors.....

The fast and loose nature of Ramapo development receives tacit approval from local officials who critics say rubber-stamp permits and ignore code enforcement. Often, those officials receive campaign contributions from developers.

Surrounding communities in Rockland County are taking legal steps to control development in order to avoid becoming "the next Ramapo."

Recent Articles and Books of Interest

From SSRN:

• Neil James Foster, Protection of Religious Free Speech in Australia, (Australian Christian Lawyers Conference 2016 - Freedom of Religious Speech).
• Helge Årsheim, Secularist Suspicion and Legal Pluralism at the United Nations, (Religion and Human Rights 11(2): 166-188, 2016).
• Bernard Jackson, Law and Narrative in the Book of Ruth: A Syntagmatic Reading, (August 8, 2016).
• Helge Årsheim, Internal Affairs? Assessing NGO Engagement for Religious Freedom at the United Nations and Beyond, (Anne Stensvold (ed.): Religion, State and the United Nations – Value Politics. London: Routledge, pp. 79-94, 2016).
• Suzanne A. Kim & Katherine A. Thurman, Social Rites of Marriage, (Georgetown Journal of Gender and the Law, Vol. 17, No. 745, 2016).

Recent and Forthcoming Books:

• Daniel L. Dreisbach, Reading the Bible with the Founding Fathers, (Oxford Univ. Press, Dec. 2016).
• Mark Juergensmeyer, Margo Kitts, & Michael Jerryson (eds.), Violence and the World's Religious Traditions, (Oxford Univ. Press, Dec. 2016).
• Kent Greenawalt, When Free Exercise and Nonestablishment Conflict, (Harvard Univ. Press,  May 2017).
• Christopher Lane, Surge of Piety: Norman Vincent Peale and the Remaking of American Religious Life, (Yale Univ. Press, Nov. 2016).

Sri Lankan Judge, Expert In Law and Religion, Dies at Age 90

Christopher Gregory Weeramantry, a distinguished lawyer who served as a judge on the Supreme Court of Sri Lanka and later as a judge on the International Court of Justice died on January 5, 2017 at the age of 90.  The President of the Muslim Council of Sri Lanka published this tribute which outlines Weeramantry's contributions to law and religion:

Judge Weeramantry was undoubtedly well versed in all the major religions and its laws. He successfully interpreted legal principles with the teachings of the major religions of the world- Islam, Christianity, Hinduism and Buddhism in his deliberations at the International Court of Justice. He has been considered a pioneer in bringing religious jurisprudence to the international court of justice.

His biggest contribution to the Muslim community was his book, ‘Islamic Jurisprudence, An International Perspective’....

Weeramantry was also known for having presided over a 1996 case on the International Court of Justice involving advisory opinions on the Legality of the Threat or Use of Nuclear Weapons in which he issued a dissenting opinion taking the position that the use or threat of use of nuclear weapons is illegal in all circumstances.

Recent Prisoner Free Exercise Cases

In Omran v. Prator, (5th Cir., Dec. 30, 2016), the 5th Circuit Court of Appeals affirmed dismissal of a suit by a Muslim inmate who was denied halal or kosher food.

In Quezada v. Cate, 2016 U.S. Dist. LEXIS 179982 (ED CA, Dec. 28, 2016), a California federal magistrate judge recommended that a House of Yahweh inmate be allowed to move forward only on his equal protection damage claim growing out of the suspension of his access to kosher meals.

In Vance v. Wright, 2017 U.S. Dist. LEXIS 82 (D SC, Jan. 3, 2017), a South Carolina federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 180700, Nov. 29, 2016) and dismissed an inmate's claim that he had been denied religious material.

In Hale v. Vannoy, 2017 U.S. Dist. LEXIS 1866 (MD LA, Jan. 4, 2017), a Louisiana federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 181299, Dec. 16, 2016), and dismissed a claim by an inmate who is a follower of the Nation of Gods and Earths that his request for a religious vegetarian diet was refused.

No 1st Amendment Bar To Suit Over Board Seats In Two Sikh Dharma Entities

In Puri v. Khalsa, (9th Cir., Jan. 6, 2017), the U.S. 9th Circuit Court of Appeals, vacating the district court's dismissal, held that neither the ministerial exception doctrine nor the ecclesiastical abstention doctrine requires dismissal of a suit by the widow and children of the deceased spiritual leader of the Sikh Dharma faith alleging they are being frozen out of board positions in two nonprofit Sikh Dharma entities. In rejecting application of the ministerial exception doctrine, the court said in part:

[T]he pleadings do not allege the board members have any ecclesiastical duties or privileges. In assessing the responsibilities attendant to the board positions, it is relevant that the entities involved are not themselves churches, but rather corporate parents of a church. SSSC’s primary responsibility appears to be holding title to church property, and UI, in addition to being ... the direct corporate parent of the Sikh Dharma church – owns and controls a portfolio of for-profit and nonprofit corporations, including a major security contractor and a prominent tea manufacturer. Although the complaint alleges the board members have “fiduciary duties to UI and SSSC to hold assets in trust for the benefit of the Sikh Dharma community,” it is not clear on the face of the complaint that these duties are “religious” or “reflect[] a role in conveying the Church’s message and carrying out its mission.”

Turning to the ecclesiastical abstention doctrine, the court said:

Nothing in the character of th[e] defense will require a jury to evaluate religious doctrine or the ‘reasonableness’ of the religious practices followed . . . Under these circumstances, the availability of the neutral-principles approach obviates the need for ecclesiastical abstention.

Obama Sends Christmas Greetings To Orthodox Christians

January 7 is Christmas in the Orthodox Christian calendar. Yesterday President Obama issued a statement (full text) wishing Orthodox Christians a joyful holiday. The statement said in part:

As worship services take place in churches across the nation and around the world, we reaffirm our commitment to protect the universal and inalienable right of all people to practice their faith and stand in solidarity with communities and congregations that have been persecuted and subjected to violent attacks.

Catholic Hospital Sued Over Refusal Of Sex Reassignment Surgery

Lambda Legal announced yesterday that it has filed a lawsuit in New Jersey federal district court against a Catholic hospital that refused, on religious grounds, to allow a surgeon to perform a hysterectomy on a transgender man as part of his gender reassignment.  The complaint (full text) in Conforti v. St. Joseph's Healthcare System, (D NJ, file 1/5/2017), contends that the refusal discriminates on the basis of sex and gender identity in violation of the New Jersey Law Against Discrimination, and that it constitutes discrimination on the basis of sex in violation of Sec. 1557 of the Affordable Care Act.  According to AP, the hospital says it makes decisions in conformance with ethical and religious guidelines of the U.S. Conference of Catholic Bishops.

Federal Employee Fired For Conducting Baptism Must Rely On Title VII, Not 1st Amendment

In Holly v. Jewell, (ND CA, Jan. 3, 2017), a California federal magistrate judge dismissed a 1st Amendment religious discrimination claim by a former maintenance worker at the San Francisco Maritime National Historic Park. Plaintiff Roger Holly, an African American Baptist Minister who was employed by the Park was fired because, while on break out of uniform, he performed a baptism on the seashore adjoining the Park.  The court held that Title VII provides the sole remedy for discrimination in federal employment, and "Plaintiff has not asserted a First Amendment violation that is distinct from his claim that he suffered employment discrimination and retaliation based on his religion."

4th Circuit Upholds City Policy Requiring Civil Marriage Certificate To Get Spousal Health Care

In Abdus-Shahid v. Mayor & City Council of Baltimore, (4th Cir., Jan. 4, 2017), the U.S. 4th Circuit Court of Appeals upheld Baltimore's policy of requiring city employees to submit proof of their recorded civil marriage certificate to establish a spouse as eligible for health insurance coverage. Plaintiff, a civil engineer employed by the city's Department of Transportation married his wife in an Islamic religious ceremony. They did not obtain a civil marriage license, claiming that to do so would be contrary to their religious beliefs.  The court rejected plaintiff's 1st Amendment free exercise claim, as well as his state constitutional and Title VII claims.

State Sends Religious Publication To Families of Auto Accident Victims

The American Humanist Association in a press release yesterday called attention to an unusual state government practice of disseminating a religious publication. The South Carolina Department of Public Safety sends to families of individuals killed in auto accidents a book titled "A Time To Grieve."  The book is published by a Christian ministry, and contains numerous Bible passages and religious messages offering religious comfort to those who have lost a loved one.  In a letter to the Department of Public Safety, the Appignani Humanist Legal Center sets out at length its Establishment Clause objections to the Department's practice.

UPDATE: As reported by The State (Jan.5), in response to the complaint, the Department of Public Safety has decided to stop the distribution, saying:

We regret that any family member would have misunderstood our intentions or was offended by our effort to offer compassion during such a difficult time. Since this concern was brought to our attention, we have re-evaluated the 'A Time to Grieve' and will no longer send those particular pieces of literature to families following the death of a loved one in a motor-vehicle collision.

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."