Recent Prisoner Free Exercise Cases

In Ali v. West, 2017 U.S. Dist. LEXIS 6197 (ED WI, Jan. 17, 2017), a Wisconsin federal district court allowed a Muslim inmate to proceed against the prison chaplain, program director and warden on his claim that his request to be placed on the Ramadan participation list was initally ignored and then denied.

In Kemp v. Liebel, 2017 U.S. Dist. LEXIS 8021 (SD IN, Jan. 20, 2017), an Indiana federal district court dismissed on qualified immunity grounds a suit by Jewish inmates against the Director of religious services alleging that their free exercise rights were infringed when for 9 months they were denied congregate religious services and study because no outside religious authority had been found to evaluate and certify inmates who could lead them.

In Luginbyhl v. Glanz, 2017 U.S. Dist. LEXIS 8101 (ND OK, Jan. 20, 2017), an Oklahoma federal district court dismissed a complaint by a Hebrew Israelite inmate that he was denied a kosher diet and a seder plate and unleavened bread meals for Passover. Plaintiff had received a vegan religious diet.

In Fields v. Robinson, 2017 U.S. Dist. LEXIS 7946 (ED VA, Jan. 19, 2017), a Virginia federal district court dismissed a Muslim inmate's complaint over the conditions imposed for receiving the Common Fare diet. He could not miss over 25% of his meals and could not give his food away to other inmates.

In Timmons v. Bradshaw, 2017 U.S. Dist. LEXIS 8219 (SD FL, Jan. 19, 2017), a Florida federal magistrate judge recommended that an inmate be allowed to move ahead with his complaint that he was denied a kosher diet. He alleged that authorities applied a doctrinal knowledge test and required verification of his religion from a rabbi.

The Obama Administration Website Is Archived

As reported by CNN, as with past administrations the White House website of the Obama Administration disappeared when President Trump was sworn in, and whitehouse.gov now links to the Trump administration website.  However all the material that was on the Obama administration website has been archived by the National Archives and Records Administration and is now available at this archived URL: https://obamawhitehouse.archives.gov/.  Conveniently when readers click on links to material from the Obama administration (as in Religion Clause posts), they are automatically redirected to the post on the archived site.

Trump Attends Traditional Inaugural Interfaith Prayer Service

This morning, President Donald Trump attended an interfaith prayer service at the Washington National Cathedral.  The service is traditionally held the day after the presidential inauguration. Washington Post reports:

The national prayer service... included a rabbi, an imam, a Baha’i leader, a Hindu priest and everyone in between — but with no sermon, the service included little topical content directly addressing Trump’s incipient presidency. Instead, the service focused on biblical readings, patriotic music and Christian hymns, and prayers for the country and its leadership.

This earlier article from the Washington Post lists all the participants in the service.

Religion and Trump's Inauguration

Deseret News today has a lengthy article titled The role religion played in Trump's inauguration. Reviewing the music, the invocations, the swearing-in, the prayer service at St. John's Episcopal Church this morning, and more, the report says in part:

Church choirs sang, a half-dozen religious leaders prayed and Trump mentioned God in his inauguration speech..... Trump's religiously rich ceremony was notable for a president whose personal faith wasn't a prominent part of his campaign. He formed a powerful partnership with evangelical Christian leaders and promised to make it safe to say "Merry Christmas," but he sometimes stumbled when asked to share his own beliefs.

Washington Post has a full transcript as well as analysis of the sermon delivered by Southern Baptist Pastor Robert Jefress at this morning's prayer service at St. John's. His remarks included this hardly-veiled political reference:

When I think of you, President-elect Trump, I am reminded of another great leader God chose thousands of years ago in Israel. The nation had been in bondage for decades, the infrastructure of the country was in shambles, and God raised up a powerful leader to restore the nation. And the man God chose was neither a politician nor a priest. Instead, God chose a builder whose name was Nehemiah.

And the first step of rebuilding the nation was the building of a great wall. God instructed Nehemiah to build a wall around Jerusalem to protect its citizens from enemy attack. You see, God is NOT against building walls!

Meanwhile RNS and The Forward report that Ivanka Trump and her husband Jared Kushner (who are Orthodox Jews) received a ruling from a rabbi close to them that it was permissible for them to travel in a car from activities such as the post-inaugural balls even after sunset that begins the Jewish Sabbath.  The ruling came from concerns for protecting the couple’s safety.

Homeowners Sue Over Opposition To Their Christmas Display

A lawsuit alleging violations of the federal Fair Housing Act and the Idaho Human Rights Act has been filed by a Hayden, Idaho couple who are in a battle with their neighbors and their homeowners association over an elaborate Christmas display they put on every year to raise funds for two local charities.  The display, which includes a live nativity scene with a small camel, sheep, donkey, Santa Claus, and the Grinch, attracts large crowds.  The complaint (full text) in Morris v. West Hayden Estates First Addition Homeowners Association, Inc., (D ID, filed 1/13/2017), alleges religious discrimination, contending that the Homeowners Association objects to the couple's Christian beliefs being pressed on others in the neighborhood.  KHQ News report on the lawsuit.

West Virginia School District Sued Over Bible Lessons

As announced in a press release from Freedom From Religion Foundation, the organization has filed suit against the Mercer County, West Virginia schools challenging  the "Bible in the Schools" program which provides Bible study to elementary and middle school students in 19 schools.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Mercer County Board of Education, (SD WV, filed 1/18/2017), contends that Bible classes have been taught in the county schools for over 75 years, and that the Bible instruction by teachers who travel from school to school violates the Establishment Clause.

Court Orders Further Hearing In Suit By Church Member Challenging His Expulsion

In Campbell v. Shiloh Baptist Church, 2016 Conn. Super. LEXIS 3277 (CT Super. Ct., Dec. 1, 2016), plaintiff Thedress Campbell claims that Shiloh Baptist Church and its pastor removed him from the membership list and barred him from the church without following the church's bylaws.  Campbell had questioned expenditures by the pastor and had reported asbestos in the church to state authorities.  The Connecticut trial court held in part:

Although the Connecticut Supreme Court has articulated a preference for the application of the neutral principles approach in property disputes, it has not had occasion to articulate whether such an approach is to be followed in the resolution of other types of internal church conflicts. This court believes that it would....

... [T]he Constitution and Bylaws of the Church vests the authority for the expulsion or dismissal of members in the membership or congregation of the Church.... [T]he court is not deprived by the first amendment of jurisdiction to resolve whether the plaintiff was in fact expelled from the Church because this decision is not so intertwined with religious principles that it can make this determination without interfering with a legitimate claim to the free exercise of religion. Such an issue may be resolved in the present case by the application of neutral principles of law, here those of the secular laws of corporations. The evidence presented to the court did not address whether the voice of the Church was given expression by vote of its membership.... [T]herefore the court orders that the hearing be continued for the limited purpose of determining whether the Church had actually spoken, or whether the ... letter [informing him of his dismissal] was an ultra vires act of Pastor Porter and Deacon Jones.

Florida Supreme Court Denies Review In Tax Credit Scholarship Challenge

Yesterday in McCall v. Scott, (FL Sup. Ct., Jan. 18, 2017) the Florida Supreme Court declined to hear in appeal in a case challenging the constitutionality of Florida's Tax Credit Scholarship Program.  In August, a state appeals court held that a group of plaintiffs-- advocacy organizations, teachers, parents and religious and community leaders-- lack standing to pursue the case. (See prior posting.) Tampa Bay Times reports on the state Supreme Court's action.

Court Upholds Refusal To Accommodate Correctional Officer's Khimar

In Tisby v. Camden County Correctional Facility, (NJ App., Jan. 18, 2017), a New Jersey state appeals court upheld the refusal by the warden of a state correctional facility to grant a religious accommodation to a female Muslim corrections officer who sought to wear a khimar (a tight fitting head covering without a veil) at work.  The appeals court agreed that the requested accommodation would impose an undue hardship in light of the safety risks involved and the ability to hide contraband in head coverings. NJ.com reporting on the decision says that plaintiff will appeal to the state Supreme Court.

New York Trial Court Holds State's "Get" Law Unconstitutional In Some Applications

In an important decision handed down last week, a New York state trial court held unconstitutional, at least in some situations, the New York statutory provision allowing a divorce court to pressure a Jewish husband economically to give a Jewish religious bill of divorce ("get") to his wife.  Under New York's DRL §236B(6)(o), when a wife sues for divorce the court may consider her husband's maintenance of a barrier to her remarriage in deciding on distribution of marital property or the award of spousal maintenance.

In Masri v. Masri, (NY Sup Ct Orange Cty, Jan. 13, 2017), the court recognized that a previous state appellate case had upheld the constitutionality of the statutory provision where the husband has withheld a get to extract concessions from the wife in the matrimonial litigation. However the court distinguished the case before it from that precedent. The court said in part:

The withholding of a Get to extort financial concessions from one's spouse constitutes simony, i.e., an exchange of supernatural things for temporal advantage. When the husband himself so unambiguously subordinates his religion to purely secular ends, he may properly be said to have forfeited the protective mantle of the First Amendment, and the court may, quite rightfully and without constitutional hindrance, impose the secular remedies authorized by the Domestic Relations Law.

Here, however, there is not the slightest evidence that the Defendant has withheld a Get from Plaintiff to extract concessions in matrimonial litigation or for other wrongful purposes. According to Plaintiff's own evidence, Defendant has invoked religious grounds for refusing to cooperate in obtaining a Jewish religious divorce, i.e., that Plaintiff by going to secular court has waived her right to rabbinical arbitration concerning the Get....

... [I]n the circumstances presented here, increasing the amount or the duration of Defendant's post-divorce spousal maintenance obligation pursuant to DRL §236B(6)(o) by reason of his refusal to give Plaintiff a Jewish religious divorce or "Get" would violate the First and Fourteenth Amendments.... There is no evidence that the Defendant has withheld a Get to extract concessions ... or for other wrongful purposes. The religious and social consequences of which Plaintiff complains flow not from any impropriety in Defendant's withholding a "Get", but from religious beliefs to which Plaintiff no less than Defendant subscribes. To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment.

New York Law Journal reports on the decision.

In SCOTUS Oral Argument On Trademark Law, Blasphemy Becomes Relevant

The U.S. Supreme Court today heard oral arguments in Lee v. Tam (transcript of full oral argument).  At issue is whether the disparagement provision in the Lanham Act is an unconstitutional restriction on speech. The statute provides that the Patent and Trademark Office may refuse to register a trademark that disparages individuals, institutions, beliefs or national symbols, or brings them into contempt or disrepute.  In the case the PTO refused to register "The Slants" as the name of a rock band on the ground that the name is disparaging to Asians. SCOTUSblog's case page has links to a wealth of primary and secondary material on the case.

In his rebuttal in today's oral argument, Deputy Solicitor General Malcolm Stewart made an interesting reference to trademarks that may constitute illegal insults to religion under the law of a foreign country:

The preparation of the principal register is not just an ancillary consequence of this program. It's the whole point to provide a list of trademarks so other people know what has been approved, what's off limits.

And the consequence of Mr. Connell's position is that the government would have to place on a principal register, communicate to foreign countries the biased racial epithets, insulting caricatures of venerated religious figures. The test for whether the government has to do that can't be coextensive with the test for whether private people can engage in that form of expression.....

... [T]he government, at the very least, has a significant interest in not incorporating into its own communications words and symbols that the public and foreign countries will find offensive.

(See prior related posting.)

City Removes Cross From Park To Settle Lawsuit

A settlement has effectively been reached in Freedom From Religion Foundation v. City of Santa Clara, a suit challenging a cross on city owned property in Santa Clara, California. (See prior posting.) The cross was originally donated in 1953 by the Lion's Club to mark the site of the second Spanish Catholic mission established in the city in 1777. According to a press release yesterday from FFRF, the cross has been removed and donated to the Catholic Santa Clara University. The case remains pending in a California federal district court until motions to dismiss are filed and approved.

Trump To Be Sworn In On Family Bible and Lincoln Bible

According to Religion News Service, at his inauguration this Friday, Donald Trump will take the oath of office on two Bibles-- his family Bible given to him by his mother in 1955 when he graduated Sunday school, and the Lincoln Bible borrowed from the Library of Congress. The Lincoln Bible was also used by President Obama during his swearing in ceremonies.

Chanel Sued By Former Employee Alleging Denial of Religious Accommodation

The Fashion Law reported yesterday on a religious discrimination lawsuit filed last November in a California state trial court against the fashion company Chanel.  Mia Komarevic, former manager of a Chanel outlet in San Francisco, alleges that after she reported a Director who had violated company policy by wearing merchandise out of the store for the night and then returning it as new, her fellow managers retaliated in several ways.  Among other things, they attempted to force her to resign by refusing to grant her a religious accommodation, forcing her to work on Sundays in violation of her Serbian Orthodox beliefs. Ultimately she was fired for unspecified "performance reasons." Earlier this month, defendants removed the case to federal district court for the Northern District of California. (Komarevic v. Chanel, Inc., (Case No. 4:17-cv-00008).

Ten More Appointed To U.S. Holocaust Memorial Council

Yesterday the White House announced that President Obama has appointed ten more individuals to the board of the U.S. Holocaust Memorial Council. Perhaps the best-known among this group of appointees is Melissa Rogers who has served in the Obama administration as Executive Director of the White House Office of Faith-Based and Neighborhood Partnerships. Also appointed was Sarah Hurwitz who has served as Michelle Obama's speech writer. Others appointed to the Council are: Daniel Benjamin; Michael Bosworth; Raffi Freedman-Gurspan; Samuel Gordon; Allan Holt; Edward Lazarus; Susan Lowenberg; and Maureen Schulman. Fifty-five members of the Council are appointed by the President for 5 year terms.

UPDATE: On Jan. 17 the President added one more appointee to the Holocaust Memorial Council-- Benjamin Rhodes who has been Obama's Deputy National Security Advisor for Strategic Communications.

Religious Leaders Have Have Variety of Top Agenda Items For President Trump

In advance of Donald Trump's inauguration on Friday, religious leaders have a variety of suggestions for Trump's top agenda items.  Here is a sampling:

Tony Perkins, president of the Family Research council, says:

To start, religious liberty in the military needs to be addressed. Over the past several years we have witnessed chaplains being disciplined for their faith, and religious speech being censored. President-elect Trump can direct that religious liberty in the military be clarified and strengthened, and that appropriate training is conducted to ensure the law is followed.

In addition, our foreign policy, contrary to the law, has not prioritized religious freedom like it should. President-elect Trump must direct that religious freedom be properly integrated into all foreign policy of the United States at every level....

[G]overnment nondiscrimination legislation is needed to protect supporters of marriage between one man and one woman.  People of faith should not be punished by the government for living in accordance with their beliefs.

Rev. Robert Sirico, president of the Acton Institute says:

Abolish the Office of Faith-Based Initiatives.

Even though there is long-standing precedent for government at all levels to contract with various church-affiliated organizations, such as the Lutheran Samaritas or Catholic Charities USA, these organizations end up going to great lengths to separate their services from their religious mission. This alters the genius of faith-based charities, their effectiveness and their very mission.

This well-intentioned subsidy obfuscates the nature of religious charities by incentivizing them to draw a stark line between their faith and their works. What animates believers to care for the poor is precisely their religious belief — not to serve the interests of the state, politicians and their bureaucracies.

Franklin Graham, president of the Billy Graham Evangelistic Association and Samaritan’s Purse, says:

I think maybe God has allowed Donald Trump to win this election to protect this nation for the next few years by giving maybe an opportunity to have some good judges.

Elijah M. Brown, general secretary of North American Baptist Fellowship, says:

President-elect Trump should ... demonstrate his sincere commitment to the many individuals and faith communities around the world living at the edge of extinction by nominating in his first 100 days an ambassador-at-large for international religious freedom.

University Settles Suit By Christian Counseling Student

The Springfield News-Leader reports that last month Missouri State University agreed to pay former student Andrew Cash $25,000 to settle a lawsuit brought by him charging that he was suspended from the Masters program in Counseling because of his religious beliefs. (See prior posting.) Cash says he was not allowed to complete his internship at a Christian counseling institute because it refuses to counsel same-sex couples, a position which Cash embraces. Under the settlement, Cash cannot seek readmission to Missouri State University.

Prosperity Gospel Pastor, Bishop Eddie Long, Dies

As reported by CNN and AP, controversial Atlanta area mega-church pastor, Bishop Eddie Long, died Sunday morning of cancer at age 63. At its height, his New Birth Missionary Baptist Church where he preached a "prosperity gospel" had 25,000 members.  CNN summarizes his career:

Long was a national figure and one of the most innovative and polarizing pastors in the contemporary church. He was also a paradox.

He was a preacher who led an infamous march against same-sex marriage and denounced homosexuality, but he also settled a lawsuit by four young men who said he pressured them into sexual relationships....

He was a man who gave away cars and paid the college tuition of needy people, but he also was investigated by Congress after a charity he created had provided him with a million-dollar home and a Bentley luxury car.

"When he spoke, black people all over the country listened to him," said Shayne Lee, a sociologist who studies the black Pentecostal church. "He was part of the repackaging of Christianity for post-civil rights African-Americans."

Egyptian Prosecutors Say Insufficient Evidence In Case Of Attack On Christian Woman

According to AP, in Egypt prosecutors have dropped a case against several members of a Muslim mob allegedly involved last May in stripping a Christian woman of her clothes and parading her naked through the streets in a village in Minya province.  The mob was reacting to a rumor that the woman's son had an affair with a Muslim woman.  Prosecutors cited a lack of evidence, but another case growing out of the same violence, which also targeted Christian homes, continues in court.

Recent Articles of Interest

From SSRN:

• Huma Tahir & Iffat Tahira, Freedom of Religion and Status of Religious Minorities in Pakistan, (International Journal of Management Sciences and Business Research, Vol. 5, Issue 12, Dec. 2016).
• Elizabeth Sepper, The Role of Religion in State Public Accommodations Laws, (60 St. Louis University Law Journal, Forthcoming).
• Valentino Cattelan, Legal Pluralism, Property Rights and the Paradigm of Islamic Economics, (JKAU: Islamic Economics, 30 (1) (2017)).
• John Witte & Joel A. Nichols, 'Come Now Let Us Reason Together’: Restoring Religious Freedom in America and Abroad, (Notre Dame Law Review, 92:1, 2016).
• John Witte, “Foreword,” to Rafael Domingo, God and the Secular Legal System, (Cambridge: Cambridge University Press, 2016), ix-xii).
• Dimitry Gegenava, Recognition of the Religious Marriage in Georgian Legislative Reality, (Journal of Law, #1, 2015).
• Seema Mohapatra, Assisted Reproduction Inequality and Marriage Equality, (Chicago-Kent Law Review, Forthcoming).
• Jessica A. Clarke, Protected Class Gatekeeping, (New York University Law Review, Vol. 92, No. 1, 2017).

Recent Prisoner Free Exercise Cases

In Aguilar v. Lemke, 2017 U.S. Dist. LEXIS 2526 (ND IL, Jan. 5, 2017), an Illinois federal district court allowed an inmate to move ahead with his claim that his placement in segregation in violation of his due process rights resulted in restrictions on his ability to practice his Roman Catholic religion.

In Garrett v. Stephens, (5th Cir., Jan 12, 2017), the 5th Circuit upheld dismissal of an inmate's claim that confiscation of his property forced him to modify his daily religious practices.

In Sareini v. Burnett, 2017 U.S. Dist. LEXIS 3083 (ED MI, Jan. 10, 2017), a Michigan federal district court held that the Supreme Court's 2015 decision in Holt v. Hobbs is not a basis for reopening a court's 2011 dismissal of an inmate's religious items and holiday claims.

In Santos v. Holland, 2017 U.S. Dist. LEXIS 3682 (ED CA, Jan. 10, 2016), a California federal magistrate judge, ruling on an inmate's habeas corpus petition, recommended concluding that a state court was reasonable when it held that an inmate's free exercise rights were not violated by using his religious necklace with the Eternal Warrior Shield as evidence of affiliation with the Mexican Mafia.

In Skandha v. Spencer, 2017 Mass. App. Unpub. LEXIS 45 (MA App., Jan. 12, 2017), a Massachusetts state appeals court rejected an inmate's claim that his religious rights were violated by the requirement that he sign a diet sheet in advance of receiving a vegan meal.

In Faulker v. Phillips, 2016 U.S. Dist. LEXIS 181805 (SD CA, Dec. 2, 2016), a California federal magistrate judge recommended that an inmate's complaint that he was denied a kosher diet be dismissed on various grounds, with one narrow exception.

In Blair v. Thompson, 2017 U.S. Dist. LEXIS 5164 (WD KY, Jan. 13, 2017), a Kentucky federal district court dismissed an inmate's claim of a conspiracy to interfere with the practice of his religion by stealing, moving, and destroying his religious materials.

In Venkataram v. Bureau of Prisons, 2017 U.S. Dist. LEXIS 5418 (SD FL, Jan. 12, 2017), a Florida federal magistrate judge recommended that a Hindu inmate be permitted to proceed with his claim seeking declaratory relief that his 1st Amendment and RLUIPA rights were infringed by the failure to provide him a vegetarian diet prepared and served in accordance with his religious beliefs.

In Gonzalez v. Rivera, 2017 U.S. Dist. LEXIS 4612 (ED AR, Jan. 12, 2017), an Arkansas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 181873, Dec. 16, 2016) and permitted an inmate to proceed with his complaint that he was not given meatless meals on Good Friday and that Catholic Easter services were not available even though they were proved to Protestant prisoners.

In Stein v. Mohr, 2016 U.S. Dist. LEXIS 181896 (SD OH, Dec. 13, 2016), an Ohio federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 181898, Dec. 6, 2016) and dismissed an inmate's complaint that he was not placed on the list to attend the Asatru religious feast of Yule, that he was not allowed to make a copy of a religious poster, and that the chapel library had only 3 Asatru religious books and they were subsequently stolen.

Indiana RFRA Not Defense To Tax Evasion

In Tyms-Bey v. State of Indiana, (IN App., Jan. 13, 2017), an Indiana appeals court, in a 2-1 decision, held that a state RFRA defense cannot be raised in a tax evasion prosecution.  According to the majority opinion:

as a matter of law ..., in the context of Indiana’s RFRA, there is a compelling governmental interest in collecting income tax revenue. Moreover, we hold as a matter of law that the least restrictive means of furthering that compelling interest is uniform and mandatory participation in the income tax system. There are no facts that [defendant] could proffer with respect to his exercise of religion that would not be overcome by the State’s compelling interest and the means used by the State in furthering that interest. 

Judge Najam dissenting said in part:

Tyms-Bey’s alleged RFRA defense may ultimately not succeed, but he is entitled to his day in court. The majority’s holding that, in effect, Tyms-Bey has not stated a claim under RFRA and that he is not even entitled to present evidence in support of his alleged defense is too quick to dispose of Tyms-Bey’s claim and denies him the particularized adjudication that is expressly afforded to him by Indiana’s RFRA.

NJ Court Upholds Historic Preservation Funds To Churches In State Constitutional Challenge

In Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders, (NJ Super., Jan 9, 2017), a New Jersey trial court upheld a county's allowing churches to be among those receiving grants from the county's Historic Preservation Trust Fund.  Even though Art. 1, Par. 3 of the New Jersey Constitution prohibits the use of tax funds to build or repair any church or place of worship, the court said that the constitutional provision "is not meant to be read literally" but must be read "in conjunction with the State's longstanding tradition of neutrality in church-state relations...." The Daily Record reports on the decision.

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.