Church, Not Town, Owns Cemetery

In First Congregational Church of Harwich v. Eldredge, (MA Land Ct., Aug. 18, 2017), the Massachusetts Land Court held that the First Congregational Church of Harwich rather than the Town of Harwich has title to a cemetery adjacent to the Church and also has title to the Memorial Garden in which cremated remains of Church member families are buried. The litigation was filed when the Church objected to the Town's plans to move to another area of the cemetery the cremated remains that are now buried above unmarked and unknown graves.  The court said in part:

[L]ike the Church, the Town and the Cemetery Commission are entrusted to honor the dead. They have a special duty to honor the remains of those deceased whose descendants can no longer be found. Their authority does not extend to the power to order the existing cremains disinterred, but they are authorized to care for and preserve the area of the Memorial Garden under which the unidentified graves are located. The Cemetery Commission is permitted to take actions necessary for the preservation of these grave sites and to ensure that they are not further disturbed, including the power to bar any further interring of cremains in the Memorial Garden directly over the unmarked graves. The Church may continue to inter cremains in other areas of the Cemetery over which there are no ancient burial grounds.

Cape Cod Chronicle has a more extensive report on the decision.

West Virginia County Settles Suit By Lesbian Couple Who Were Harassed By Clerk

Americans United announced yesterday that Gilmer County, West Virginia has agreed to settle a lawsuit brought by a lesbian couple who were harassed by a county clerk when they applied for a marriage license. Deputy Clerk Debbie Allen told the couple that they were an abomination to God. (See prior posting.) Under the settlement, the county apologized to the couple and issued a public statement admitting wrongdoing.  The County has also paid damages and has agreed to employee training to avoid future abuse.

Mattis Will Take Time Implementing Trump's Policy On Transgenders In Military

Yesterday Secretary of Defense Jim Mattis issued a Statement (full text) on the manner in which he intends to implement President Trump's recent Memorandum barring enlistment of transgender individuals in the military and calling for a study of how to deal with transgender individuals currently serving. Mattis said in part:

Our focus must always be on what is best for the military’s combat effectiveness leading to victory on the battlefield.  To that end, I will establish a panel of experts serving within the Departments of Defense and Homeland Security to provide advice and recommendations on the implementation of the president’s direction.  Panel members will bring mature experience, most notably in combat and deployed operations, and seasoned judgment to this task.  The panel will assemble and thoroughly analyze all pertinent data, quantifiable and non-quantifiable.... 

Once the panel reports its recommendations and following my consultation with the secretary of Homeland Security, I will provide my advice to the president concerning implementation of his policy direction.  In the interim, current policy with respect to currently serving members will remain in place. 

Preliminary Injunction Denied To Students Opposed To Transgender Bathroom Access Policy

In Doe v. Boyertown Area School District, (ED PA, Aug. 25, 2017), a Pennsylvania federal district court refused to issue a preliminary injunction to bar a school district from continuing its year-old practice of allowing transgender students to use the bathrooms and locker rooms corresponding to their gender identity. Plaintiffs are students who claim that their right to privacy, as well as Title IX, are violated by the school's policy. According to the court:

At bottom, the plaintiffs are opposed to the mere presence of transgender students in locker rooms or bathrooms with them because they designate them as members of the opposite sex and note that, inter alia, society has historically separated bathrooms and locker rooms on the basis of biological sex to preserve the privacy of individuals from members of the opposite biological sex.

In a 142-page opinion the court held that plaintiffs had no shown that they are likely to succeed on the merits, saying in part:

The plaintiffs have not identified and this court has not located any court that has recognized a constitutional right of privacy as broadly defined by the plaintiffs.... 

WFMZ-TV News reports that an appeal is planned.

8th Circuit: OK To Ban Religious Leafleting On Plaza of Sports Arena

In Ball v. City of Lincoln, Nebraska, (8th Cir., Aug. 29, 2017), the U.S. 8th Circuit Court of Appeals held that the city did not infringe the free speech rights of a city resident who insisted on handing out Christian religious literature in the plaza area of a municipal sports arena to those attending high school basketball tournaments. A majority of the 3-judge panel held that the entire plaza area is a non-public forum, and the policy barring leafleting in that area is reasonable. Judge Melloy dissented in part, concluding that a portion of the plaza area is a traditional public forum. Lincoln Journal-Star reports on the decision.

An Unusual Prisoner Case Finds NGE Should Be Held To Be A Religion

In a somewhat surprising prisoner free exercise decision this week, a Virginia federal district court held that the Virginia Department of Corrections violated RLUIPA and the First Amendment when it refused to recognize the Nations of Gods and Earths (NGE) as a religion and instead designated it a gang or "Security Threat Group."  In Coward v. Robinson, (ED VA, Aug. 28, 2017), the court in a 47-page opinion citing what was clearly an extensive evidentiary record concluded that "there is insufficient evidence in this record to conclude that the NGE is a violent, racially supremacist gang."  It went on: "Even if the Department could show that designating the NGE as a gang subject to a zero
tolerance policy serves a compelling interest, it cannot demonstrate that its policies are the least restrictive means of furthering that interest."

A number of things make this case interesting. It was initially filed in 2010. Appeals in the case (sub. nom. Coward v. Jabe) wound their way up to the 4th Circuit three separate times.  In one of its opinions, the 4th Circuit held that even though it had held NGE is not a religion in an unrelated 2012 case, that decision was based on the evidence at trial, and did not mean that NGE would not found to be a religion in other cases.  Finally, unlike the vast majority of prisoner cases which are argued pro se, here plaintiff in the proceedings leading to this week's decision had high power counsel.  Plaintiff was represented by two lawyers from Kirkland & Ellis, one of whom had previously been a law clerk for Supreme Court Chief Justice John Roberts.

7th Circuit: Illinois May Apply Education Laws To Bible Colleges

In Illinois Bible Colleges Association v. Anderson, (7th Cir., Aug. 29, 2017), the U.S. 7th Circuit Court of Appeals rejected challenges to three Illinois statutes that require all colleges to obtain state approval before they may issue degrees.  Plaintiffs claimed that applying these statutes to Bible Colleges violates their 1st and 14th Amendment rights. The Court disagreed, saying;

[Plaintiffs] first argue the Illinois regulations violate the Establishment Clause by entangling the government with their religious operations. However, the plaintiffs have not sought ... approval from the State under the applicable statutes. Therefore, there is no basis to believe that the regulations would infringe on their religious beliefs or practices or would unnecessarily entangle the government in religion.... Likewise, the plaintiffs’ Free Exercise claim fails because the statutes are neutral laws of general application and apply equally to secular and religious institutions. The plaintiffs’ Equal Protection claim fares no better: While the state statutes exempt older educational institutions..., when no improper discrimination is involved, the government may include a grandfather clause in legislation without violating the guarantee of Equal Protection. Finally, the student-plaintiff alleges a violation of his right to practice a profession of his choice. But the regulations do not impact that choice. Rather, they merely determine whether he may obtain a degree from specific post-secondary institutions.

French Court Says School Must Offer Muslim Children An Alternative To Pork At Lunch

According to The Guardian yesterday, in France a trial court judge has told local officials that they must re-institute a policy of offering an alternative to pork meals for school lunches. A court in Dijon told officials in Chalon-sur-Saône that a refusal to offer an alternative for Muslim children is not "in keeping with the spirit of the international convention on the rights of children" nor "in the interests of the children." The the mayor of Chalon-sur-Saône, a member of the right wing Les Républicains party, argued that by requiring all children to eat together, the city was upholding the French Republic’s principle of laïcité  (secularism). The city plans an appeal.

Religious Freedom and Holocaust Envoys Escape State Department Cuts

In a move applauded by Senate Foreign Relations Chairman Bob Corker, Secretary of State Rex Tillerson has notified the Senate that he plans to pare down the number of Special Envoys in the State Department. According to CNN, Tillerson will eliminate or downgrade as many as 36 of the nearly 70 special envoy spots. However three special envoy offices will be expanded: those dealing with religious freedom, Holocaust issues and HIV/AIDS.

UPDATE: Here is the full text of Sec. Tillerson's letter to Sen. Corker. It details some of the changes as follows:

The Ambassador-at-Large for International Religious Freedom (IRF) will continue to be an ambassador-level position confirmed by the U.S. Senate, and will be organized under and report to the Under Secretary for Civilian Security, Democracy, and Human Rights (J). Additionally, IRF will assume the functions and staff of the U.S. Special Representative for Religion and Global Affairs, U.S. Special Representative to Muslim Communities, U.S. Special Envoy to the Organization of Islamic Cooperation, and Special Advisor for Religious Minorities in the Near East and South/Central Asia.

Suit Challenges Trump Ban On Transgender Individuals In Military

Yesterday three individuals and two advocacy groups filed a federal lawsuit challenging the constitutionality of the Trump Administration's recently implemented policy on transgender individuals serving in the military.  The complaint (full text) in Karnoski v. Trump, (WD WA, filed 8/28/2017) summarizes the lawsuit:

5. In the evening of Friday, August 25, 2017, President Trump followed up on his tweets and implemented an official federal policy of discrimination against transgender individuals in military service .... Among other things, President Trump has mandated that the U.S. military return to its earlier policy and practice of discrimination against transgender people, including by discharging them. He has also maintained and extended the current bar on accession into the military of individuals known to be transgender.... Last, he has singled out for adverse treatment the health care needs of transgender service members.

6. Dripping with animus, the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment. They are unsupported by any compelling, important, or even rational justification.

Lambda Legal announced the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• David W. Opderbeck, Lex Machina Non Est: A Response to Mark Lemley's 'Faith-Based Intellectual Property', (Seton Hall University School of Law, Legal Studies Research Paper Series, 2017).
• Steven A. Ramirez, Social Justice and Capitalism: An Assessment of the Teachings of Pope Francis from a Law and Macroeconomics Perspective, (August 1, 2017).
• Richard K. Sherwin, Vico's Providence Today, (August 23, 2017).
• Julia Leininger, It's Institutions, Not Theology! Muslim Actors’ Influence on Democratization in Mali, (Politics and Religion, Volume 9, Issue 4 December 2016 , pp. 815-842).
• Uladzislau Belavusau, Hate Speech, (Max Planck Encyclopedia of Comparative Constitutional Law, Oxford University Press, 2017 Forthcoming).
• Magda Slabbert, Pregnancy Loss: A Burial or Medical Waste, (Journal of Contemporary Roman-Dutch Law, Vol. 80, p. 102-112, 2017).
• Jaber Seyvanizad, Islamic International Law Concerning Law of Treaties, (International Conference on Law, Political Science and Islamic Instructions, Tehran, 2017).
• Marina Nehme, Australian Charities and Not-for-Profit Commission: Enforcement Tools and Regulatory Approaches, (Australian Business Law Review Vol. 45, 79-107 (2017)).

From SmartCILP:

• Jamil Ammar & Songhua Xu, Yesterday's Ideology Meets Today's Technology: A Strategic Prevention Framework for Curbing the Use of Social Media by Radical Jihadists, 26 Albany Law Journal of Science & Technology 235-322 (2016).

Recent Prisoner Free Exercise Cases

In West v. Palmer, 2017 U.S. Dist. LEXIS 131109 (ND IA, Aug. 17, 2017), an Iowa federal district court dismissed a suit by a high security inmate at the Civil Commitment Unit for Sexual Offenders who complained that the facility does not offer Pentecostal religious services and he is not allowed to attend services outside the facility.

In Anderson v. Cox, 2017 U.S. Dist. LEXIS 131202 (D NV, Aug. 17, 2017), a Nevada federal magistrate judge recommended dismissing a Wiccan inmate's complaint that Wiccans are denied access to incense, herbs and teas, and that a ritual area used by Wiccans was destroyed.  He recommended that plaintiff be allowed to move ahead with his claim of retaliatory cell searches because of his religion.

In Brisman v. Quinn, 2017 U.S. Dist. LEXIS 131523 (ND NY, Aug. 16, 2017), a New York federal magistrate judge recommended dismissing an inmate's claim that a package containing religious beads was not delivered to him.

In Ludwick v. Rubenstein, 2017 U.S. Dist. LEXIS 130501 (ND WV, Aug. 16, 2017), a West Virginia federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 131620, July 14, 2017) and dismissed an inmate's complaint about removal of religious items from his cell when inmates are on strip cell search.

In Thompson v. Mississippi Department of Corrections, 2017 U.S. Dist. LEXIS 132387 (ND MI, Aug. 17, 2017), a Mississippi federal district court granted a Rastafarian inmate who had been forced to cut his hair an injunction requiring authorities to allow him to grow his hair according to the tenets of his religion.

In Ahdom v. Etchebehere, 2017 U.S. Dist. LEXIS 133380 (ED CA, Aug. 20, 2017), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that as a vegetarian he was not enrolled in the Religious Meat Alternative program, and that made him ineligible to participate in Ramadan meals (until he was ultimately granted an exception).

In Murray v. McKay, 2017 U.S. Dist. LEXIS 133566 (ED CA, Aug. 18, 2017), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that as a high security inmate with medical issues he was not allowed to attend any church services.

In Fletcher v. Bokinstrke, 2017 U.S. Dist. LEXIS 133747 (D SC, Aug. 18, 2017), a South Carolina federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 134081, July 14, 2017) and dismissed a Muslim inmate's complaint that on one day during Ramadan, because of a security lock down, he was not served his evening meal until 11:00 pm.

In Hansler v. Kelley, 2017 U.S. Dist. LEXIS 133096 (WD AR, Aug. 21, 2017), an Arkansas federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 134103, July 20, 2017), and allowed an inmate to move ahead with a number of his claims growing out of the ban on his possessing or reading the Witches' Craft Wiccan Bible and the Book of Grimoires.

In Fisher v. Devore, 2017 U.S. Dist. LEXIS 136552 (WD AR, Aug.23, 2017), an Arkansas federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 135189, July 26, 2017) and dismissed a Jewish inmate's complaint that the kosher meals he was served were not prepared in a way that properly adhered to religious dietary laws.

UPDATE: In a settlement agreement in Bartlett v. Atencio, (D ID, Aug. 11, 2017), Idaho prisons must offer a Common Fare No Touch menu with a majority of meals that are pre-packaged or double-sealed frozen meals that are kosher
certified.

Belarus Court Refuses To Bar Construction On Former Jewish Cemetery Sites

JTA reports that last week a court in Belarus  refused to grant an injunction against two construction projects on the sites of former Jewish cemeteries. The Tsentralny District Court held that it lacks jurisdiction to prevent construction of apartment buildings on two former Jewish cemeteries in the city of Gomel.  The court also refused to enjoin an ongoing project on the site of a former Jewish cemetery in the city of Mozyr.  The suit was filed by Yakov Goodman, an american Jewish activist who is attempting to preserve Jewish heritage sites in Belarus.  Authorities in Gomel said they did not have information indicating that the site was that of a cemetery.

Trump Implements Continued Ban On Transgender Enlistment In Military

Yesterday President Trump issued a Presidential Memorandum (full text) implementing his previously announced intent to bar enlistment of openly transgender individuals in the U.S. military and to authorize the discharge of those already serving.  This action prevents the change in policy initiated by the Obama administration from taking effect.  President Trump's Memorandum reads in part:

In my judgment, the previous Administration failed to identify a sufficient basis to conclude that terminating the Departments' longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year's policy change would not have those negative effects....

The Secretary of Defense, and the Secretary of Homeland Security with respect to the U.S. Coast Guard, shall:

 (a)  maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018, until such time as the Secretary of Defense, after consulting with the Secretary of Homeland Security, provides a recommendation to the contrary that I find convincing; and

 (b)  halt all use of DoD or DHS resources to fund sex reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex....

As part of the implementation plan, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall determine how to address transgender individuals currently serving in the United States military.  Until the Secretary has made that determination, no action may be taken against such individuals under the policy set forth in section 1(b) of this memorandum.

New Mexico Paramilitary Christian Group Members Arrested In Child Abuse Investigation

Earlier this week, New Mexico authorities raided the Fence Lake (NM) compound of the paramilitary Aggressive Christianity Missions Training Corps in a child abuse investigation.  They arrested sect co-leader Deborah Green and two other group members, while another member was arrested in Truth or Consequences, New Mexico. According to People, the defendants are variously charged with child abuse, criminal sexual penetration, failure to report a birth, and bribery of a witness. Peter Green has been charged with 100 counts of criminal penetration of a child.

Four more sect members were arrested yesterday on charges of failing to register the births of their 11 children.  They were apprehended as they were allegedly trying to flee the state in two vans filed with children. Fox News, reporting this, says that the group describes itself as "revolutionary for Jesus" and provides a free spiritual "ammo pack" to anyone requesting one.  Its website includes anti-Semitic and anti-same sex marriage language.

Discussing interviews with ex-members of the sect, AP reports that:

[L]eaders of the Aggressive Christianity Missions Training Corps exercised control over followers by forcing them into hard labor and refusing to give their children medical care. When members complained, sect co-leader Deborah Green would hold "trials" against them for questioning her authority.... The trials led to banishment to isolated sheds without toilets and from the sect's compound without being allowed to take their children....

Fired Employee Loses Religious Discrimination Suit Against Kansas Secretary of State

According to the Topeka Capital-Journal,  a Kansas federal district court jury rejected a religious discrimination claim by a former employee in the business services division in the state Secretary of State's office.  Plaintiff Courtney Canfield claimed that assistant secretary of state Gary Laughlin had told Canfield's grandmother-- a long-time friend of Lauglin's-- that Canfield had been fired because she did not attended church. At trial, the secretary of state's office said it had fired Canfield for sporadic attendance, breaching office cellpohne policies and creating a distraction for other employees.

$1M Award By Religious Arbitration Panel Is Vacated

In Matter of Young Israel of Eltingville, Inc. v Oorah, Inc., (Richmond Cty. NY S.Ct., June 30, 2017), a New York trial court vacated a $1 million damage award entered by a Jewish religious arbitration panel in a long-running dispute between a Young Israel synagogue and the Kars4Kids charitable organization. (See prior posting.)  Apparently the litigation grew out of a disagreement over which entity was responsible for certain renovations in the building which the two organizations agreed to share.  The court held that Sidney Stadler, who held himself out as president of Young Israel at the time the agreement to arbitrate was signed, in fact lacked authority to enter into the arbitration agreement on behalf of the synagogue.

NY Court Invalidates Service of Process on Sabbath, Focusing On Competing Sabbath Times

New York General Business Law Sec. 13 provides:

Whoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which such person is a party to be adjourned to that day for trial, is guilty of a misdemeanor.

In Signature Bank NA v. Koschitzki, (NY Kings Cty. Sup. Ct., July 27, 2017), a New York state trial court vacated a default judgment against Sabbath observant Jews who were served before the end of the Sabbath on a Saturday afternoon.  Defendants were served at 5:30 pm on November 26, 2016. There are two methods used by Jews to determine when the Sabbath ends.  One method would have resulted in Sabbath ending at 5:15. The other method, relied upon by defendants, would have ended the Sabbath at 5:43. The court said:

The Court understands that there is disagreement as to the time at which Sabbath ends among different groups of observant Jews. This Court does not believe it would be appropriate for it to determine the manner in which religious custom should be observed by any individual group or require that one particular group's traditions be adhered to uniformly. The time asserted by defendants is not unreasonable given the conflicting opinions contained in different religious sources.

Arutz Sheva reporting on the decision has more details on the two computational methods.

Court Interprets Scope of Food Stamp Fraud For Upcoming FLDS Leader's Trial

As previously reported, last year eleven leaders and members of the polygamous FLDS Church were indicted on charges of conspiracy to commit food stamp fraud.  The indictments claim that FLDS leaders required food stamp recipients to donate their benefits to a central clearing house which then redistributed food and household items to all in the community, whether or not they were food-stamp eligible. All defendants except Lyle Jeffs have either reached plea bargains or had charges against them dismissed.  In anticipation of this remaining defendant's trial, the government has filed a motion regarding jury instructions that will be given. In United States v. Jeffs, (D UT, Aug. 23, 2017), the court ruled that it will not instruct the jury that donating food items acquired through SNAP benefits is illegal, saying in part:

donation of SNAP benefits (i.e., the funds provided to a household on an EBT card) without the exchange of food products is prohibited.... SNAP benefits may only be used by the household to purchase eligible food for the household. Thus, the funds placed on the EBT card must be used to purchase eligible food for the household and any other use of those funds, including donation, is prohibited. However, there is no statute or regulation that would prohibit the donation of food items obtained through the use of SNAP benefits.

The court said that otherwise a SNAP recipient could be prosecuted "if they donated cookies to a school bake sale that were made from food obtained through the use of SNAP benefits." Fox13 News reports on details.

Christian Group Sues Southern Poverty Law Center Over "Hate Group" Label

The Fort Lauderdale, Florida-based D. James Kennedy Ministries on Tuesday filed suit in an Alabama federal district court against the Southern Poverty Law Center for damages suffered when SPLC placed the Christian group on its Anti-LGBT Hate Group list. According to Al.com:

The lawsuit alleges that the SPLC "illegally trafficked in false and misleading descriptions of the services offered by DJKM and committed defamation against DJKM arising from the publication and distribution of false information that libels the ministry's reputation and subjects the ministry to disgrace, ridicule, odium, and contempt in the estimation of the public," according to a statement by the ministry....

Other defendants in the lawsuit include Amazon and Guidestar. The ministry alleges that it was excluded from the Amazon Smile program, which allows customers to donate to the charity of their choice when making a purchase.

Coach Loses Bid To Pray On 50-Yard Line

In Kennedy v. Bremerton School District, (9th Cir., Aug. 23, 2017),  the U.S. 9th Circuit Court of Appeals affirmed the district court's denial of a preliminary injunction sought by a Washington-state high school football coach who in a widely publicized challenge to his school district was suspended for kneeling and praying on the football field 50-yard line immediately after games.  The appeals court concluded that Coach Joseph Kennedy was not likely to succeed on the merits of his free speech claim  It held that in kneeling and praying on the 50-yard line, Kennedy was speaking as part of his public employment.  His employer had the right to order him not to speak in his official capacity in the manner which he did.  The court added:

On Friday nights, many cities and towns across America temporarily shut down while communities gather to watch high school football games. Students and families from all walks of life join “to root for a common cause” and admire the young people who step proudly onto the field.... While we “recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of [these] occasions,” such activity can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all.... That is why the “preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission.”

Judge Smith filed a concurring opinion to express his view that the school district's actions actions were also justified to avoid violating the Establishment Clause. The majority held that it need not reach the Establishment Clause issue.  Kitsap Sun reports on the decision.

Religious Order Loses Attempt to Stop Pipeline

In Transcontinental Gas Pipeline Co., LLC v. Permanent Easement for 2.14 Acres, (ED PA, Aug. 23, 2017), a Pennsylvania federal district court held that Transcontinental Pipeline Co. has the right to condemn and take immediate possession of property of the Adorers of Christ religious order so that the company can build its Atlantic Sunrise Pipeline.  The court said in part:

Adorers claim that they "exercise their religious beliefs by, among other things, caring for and protecting the land they own," and that their efforts to "preserve the sacredness of God's Earth" are integral to the practice of their faith.  However, the Adorers have failed to establish how Transco's possession of the right of way on their land will in any way affect their ability to practice their faith and spread their message. They have not presented one piece of evidence that demonstrates how their religious beliefs will be abridged in any way.

Fired Pastor's Contract Suit Dismissed Under Ministerial Exception and Excessive Entanglement Doctrines

In Lee v. Sixth Mount Zion Baptist Church of Pittsburg, (WD PA, Aug. 22, 2017), a Pennsylvania federal district court dismissed a breach of contract claim brought by a pastor against the church that had terminated his employment.  Rev. William Lee claims that the church breached his contract by not compensating him under the clause relating to termination without cause. the church argued that Lee was terminated for failing to fulfill his duties and responsibilities under the contract. The court dismissed on ministerial exception and excessive entanglement grounds, saying in part:

[T]he “ministerial exception” recognizes the right of a religious institution in exercising its First Amendment guarantee of religious liberty and autonomy in matters ecclesiastical to terminate from employment a Pastor such as Rev. Lee. Rev. Lee’s dispute with the Church regarding his termination from employment fully implicates such rights....

The Church argues that where Rev. Lee failed in spiritual stewardship, financial stewardship and responsiveness to Church leadership, as determined by the Church and its Congregation, his termination was for cause under § 12.3.... 

[T]he Court concludes that any determination whether Rev. Lee failed in his spiritual and financial stewardship and responsiveness to Church leaders is a matter best left to the Church alone. Otherwise, the Court and jury would need to probe how the Church evaluated spiritual success and leadership under its doctrine.... Prohibited considerations of ecclesiastical hierarchy are directly implicated in the assessment that Rev. Lee did not adequately respond to Church leadership.

India's Supreme Court Invalidates Triple Talaq Divorces For Muslims

India's Supreme Court today, by a vote of 3-2, invalidated the Sunni Muslim practice of divorce by triple talaq.  In Bano v. Union of India, (India S.Ct., Aug. 22, 2017), in 3 opinions spanning 395 pages, three justices agreed (in 2 separate opinions) that triple talaq is invalid.  Two other justices concluded that the practice is not unconstitutional, but urged the government to legislate on the matter within 6 months and would have enjoined use of the divorce procedure during that period.

Justice Nariman's opinion, joined by Justice Lalit concluded:

it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 [Right to Equality] of the Constitution of India. In our opinion, therefore, the 1937 Act [Muslim Personal Law (Shariat) Application Act], insofar as it seeks to recognize and enforce Triple Talaq ... must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.

Justice Joseph concluded that "triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat."  He continued:

The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible.... What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.

Chief Justice Khehar, Joined by Justice Nazeer, concluded that triple talaq is protected by Article 25 of the Constitution that protects freedom of religion, saying in part:

It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’, must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be (-including self-proclaimed rationalists, of the same faith). Article 25 obliges all Constitutional Courts to protect ‘personal laws’ and not to find fault therewith. Interference in matters of ‘personal law’ is clearly beyond judicial examination....

However, he qualified this by calling on the government to modify the situation by legislation, saying:

[we] are satisfied, that this is a case which presents a situation where this Court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution. We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’. We hope and expect, that the contemplated legislation will also take into consideration advances in Muslim ‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States....

Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat' as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months.

The Quint reports on the decision.

Suit Says School Personnel Harassed Children and Family of Devil-Worship Cult Leader

NewsOK reports on a suit filed in an Oklahoma state court yesterday against Putnam (OK) school officials by the leader of a Devil-worshiping cult and his wife who contend that their children were mistreated in school because of their religion and that the family was subjected to false allegations of improper parenting.  Adam Daniels is dastur of the Dakhma of Angra Mainyu, which describes itself on its website as anti-Catholic and anti-Christian. It became known for the Black Mass that it sponsored in 2014.  The lawsuit, seeking $300,000 in damages, claims that the Daniels children were bullied and harassed in school by teachers and other students. It also contends that false reports by school officials to child welfare authorities led to 40 visits from Child Protective Services personnel.

Recent Prisoner Free Exercise Cases

In Chaparro v. Ducart, (9th Cir., Aug. 14, 2017), the 9th Circuit affirmed the dismissal of an inmate's complaint that he was removed from the chapel ducat list for failing to attend a chapel service.

In Rush v. Malin, 2017 U.S. Dist. LEXIS 126529 (SD NY, Aug. 9, 2017), a New York federal district court reinstated a claim against a prison chaplain for failing to submit the Eid ul-Fitr event packet for the Shi'a Muslim inmates in 2014.

In Robinson v. Cate, 2017 U.S. Dist. LEXIS 126557 (ED CA, Aug. 8, 2017), a California federal magistrate judge recommended dismissing as moot a Muslim inmate's religious diet claims because recent changes in regulations now allow him to opt for either a kosher of Halal-compliant diet.

In Thomas v. Bzoskie, 2017 U.S. Dist. LEXIS 129512 (D MN, Aug. 14, 2017), a Minnesota federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 130019, May 8, 2017) and dismissed a Muslim inmate's complaint that authorities refused to permit Muslim communal worship and refused to allow him to wear a kufi or keep a prayer rug or prayer oil in his cell.

In Rivera v. Michigan Department of Corrections, 2017 U.S. Dist. LEXIS 128973 (WD MI, Aug. 14, 2017), a Michigan federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 129768, July 13, 2017) and dismissed complaints by an inmate over refusal to allow mail from Moorish Science Temple of America-1928 Grand Body, and telling plaintiff to tear up his religious preference form listing that group.

In Dyson v. Federal Bureau of Prisons, 2017 U.S. Dist. LEXIS 130184 (D DC. Au. 15, 2017), a D.C. federal district court dismissed as no properly the subject of a habeas corpus action an inmate's complaint that he was forced to consume fluids and provide a urine sample while he was fasting for Ramadan.

In Carter v. Myers, 2017 U.S. Dist. LEXIS 130286 (D SC, Aug. 15, 2017), a South Carolina federal district court allowed plaintiff to move ahead with her claim for nominal damages and injunctive relief growing out of jail authorities requiring her to remove her hijab for her booking photo. The magistrate's recommendation in the case is at 2017 U.S. Dist. LEXIS 130581, July 5, 2017.

In Tanksley v. Litscher, 2017 U.S. Dist. LEXIS 130340 (WD WI, Aug. 15, 2017), a Wisconsin federal district court in a lengthy opinion upheld prison officials' refusal to allow an inmate serving a long sentence for sexual assault of a child to obtain Hermetic Order of the Golden Dawn  Initiatory Tarot cards because some of the cards depict nude human figures.

In Irvin v. James, 2017 U.S. Dist. LEXIS 130810 (ED CA, Aug. 15, 2017) a California federal magistrate judge recommended dismissing a list of claims by a Muslim inmate relating to denial of chapel access, denial of religious foods (including dates), denial of prayer oil, kufis and religious packages, and failure to hire a Muslim chaplain.

In Bynum v. Poole, 2017 U.S. Dist. LEXIS 131063 (MD NC, Aug. 17, 2017), a North Carolina federal magistrate judge recommended denying summary judgment to a Muslim inmate who complained about cancellation of a Jumah Service on one Friday.

Tolling Provision Applies While Priest Is Outside State On Orders of Church Superiors

In Commonwealth v. McCormick, 2017 Mass. App. Unpub. LEXIS 791 (MA App., Aug. 15, 2017), a Massachusetts state appeals court upheld the convictions of a Catholic priest on five counts of rape of a child.  The court rejected defendant's argument that the statute of limitations tolling provision violates the federal Establishment Clause and his free exercise rights under the Massachusetts Declaration of Rights. The state statute of limitations excludes from the computation of time under the limitations period any time during which the defendant is not "usually and publicly a resident" of Massachusetts.  Plaintiff was outside the state during periods in which he was working at a camp on the orders of his superiors in the Catholic church.

Australian Catholic Bishops React To Planned Plebiscite On Same-Sex Marriage

As reported earlier this month by CBC News, Australia's government is planning a mail survey beginning Sept. 12 of Australians on the issue of same-sex marriage. However it is facing a court challenge arguing that the government does not have authority to conduct this type of plebiscite without obtaining authority from Parliament.  Meanwhile the Sydney Morning Herald reported yesterday that Catholic bishops in Australia have threatened that if same-sex marriage is legalized, parish employees, including teachers in Catholic schools, who marry a same-sex partner may well be fired.

Recent Articles of Interest

From SSRN:

• Nicholas Aroney, Religious Authority in Public Spaces: The Challenge of Jurisdictional Pluralism, (August 11, 2017).
• John Infranca, (Communal) Life, (Religious) Liberty, and Property, Michigan State Law Review, (Forthcoming).
• Dwight G. Newman, Implications of the Ktunaxa Nation / Jumbo Valley Case for Religious Freedom Jurisprudence, (in Dwight Newman, ed., Religious Freedom and Communities (Toronto: LexisNexis, 2016)).
• Caroline Mala Corbin, 'Terrorists are Always Muslim But Never White': At the Intersection of Critical Race Theory and Propaganda, (Fordham Law Review, Forthcoming).
• Paul H. Robinson & Sarah M. Robinson, 1963 – Birmingham Church Bombing – Civil Rights, (In Tragedy, Outrage & Reform: Crimes that Changed Our World, (Paul H. Robinson & Sarah M. Robinson, eds., Forthcoming)).

Court Dismisses Church Trustee Challenges As Moot

In Johnson v. Barnes, (IN App., Aug. 17, 2017), an Indiana appellate court dismissed as moot a case in which the trial court had removed three trustees of the Pilgrim Baptist Church and ordered new elections. Those former trustees challenged the trial court's action in removing them.  The appeals court held that since new elections have been held, the choice of trustees by church members in those elections is controlling.

4,000 Faith Leaders Oppose Repeal of Johnson Amendment

As reported by Americans United, this week a letter signed by more than 4,000 faith leaders from all 50 states (full text) was sent to members of Congress urging them to keep the Johnson Amendment in the Internal Revenue Code.  That Amendment, which Donald Trump has promised to repeal, prohibits non-profits, including houses of worship, from supporting or opposing candidates in political elections. The letter says in part:

Faith leaders are called to speak truth to power, and we cannot do so if we are merely cogs in partisan political machines. The prophetic role of faith communities necessitates that we retain our independent voice.....

Changing the law to repeal or weaken the “Johnson Amendment” – the section of the tax code that prevents tax-exempt nonprofit organizations from endorsing or opposing candidates – would harm houses of worship, which are not identified or divided by partisan lines. Particularly in today’s political climate, engaging in partisan politics and issuing endorsements would be highly divisive and have a detrimental impact on congregational unity and civil discourse.

Northern Ireland Court Says No Right To Same-Sex Marriage

A trial court judge in the High Court of Northern Ireland yesterday held that the rights of same-sex couples under the European Convention on Human Rights are not infringed by the law of Northern Ireland which allows them only enter civil partnerships rather than full marriage.  As reported by The Independent, the decision comes in two cases heard together.  A press release by the court describes the opinion in one of the cases.  The judge pointed out that the European Court of Human Rights has already held that same-sex marriage is not a right under the Convention.  The judge observed, however:

To the frustration of supporters of same sex marriage the Assembly has not yet passed into law any measure to recognise and introduce same sex marriage. Their frustration is increased by the fact that the Assembly has voted by a majority in favour of same sex marriage, but by reason of special voting arrangements which reflect the troubled past of this State, that majority has not been sufficient to give the vote effect in law.

The Democratic Unionist Party has blocked passage of a law to allow same-sex marriage in Northern Ireland, even though it is recognized in the Irish Republic, England, Scotland and Wales. Law & Religion UK reports on the decision.

USCIRF Issues New Report on Blasphemy Laws Around the World

The U.S. Commission on International Religious Freedom this week released a report titled Respecting Rights? Measuring the World’s Blasphemy Laws. The report Overview describes the content:

This report examines and compares the content of laws prohibiting blasphemy (“blasphemy laws”) worldwide through the lens of international and human rights law principles.... This study seeks to evaluate the language and content of blasphemy laws to understand what aspects of these laws adhere to—or deviate from—international and human rights law principles.

Particularly useful to researchers is the Compendium of Laws set out as an Annex to the Report which reproduces the actual language of blasphemy provisions in the more than 70 nations that have such provisions.

Survey Reveals References To God or The Divine In Every State Constitution

In a study posted yesterday, Pew Research Center finds that "God or the divine is mentioned at least once in each of the 50 state constitutions and nearly 200 times overall."  The researchers add:

Of the 116 times the word [God] appears in state constitutions, eight are in the Massachusetts constitution, and New Hampshire and Vermont have six references each. Perhaps surprisingly, all three of these states are among the least religious in the country, according to a 2016 Pew Research Center analysis.

International Criminal Court Orders Reparations For Attack On Religious Buildings In Mali

In a press release, the International Criminal Court summarized its 61-page opinion in Prosecutor v. Al Madhi, (ICC, Aug. 17, 2017) imposing reparations on  Al Faqi Al Mahdi who had previously been convicted of war crimes for his part in attacking ten mausoleums that were part of the cultural heritage in Timbuktu, Mali:

Today, 17 August 2017, Trial Chamber VIII of the International Criminal Court ... issued a Reparations Order in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi, concluding that Mr Al Mahdi is liable for 2.7 million euros in expenses for individual and collective reparations for the community of Timbuktu for intentionally directing attacks against religious and historic buildings in that city. Noting that Mr Al Mahdi is indigent, the Chamber encourages the Trust Funds for Victims ("TFV") to complement the reparations award and directed the TFV to submit a draft implementation plan for 16 February 2018.

Vaccination of Children In Temporary State Custody Over Parental Religious Objection Is Not Authorized

In In re Elianah T.-T., (CT Sup. Ct., Aug. 15, 2017), the Connecticut Supreme Court held that the state's Commissioner of Children and Families is not authorized to require vaccination of children who are in temporary custody of the state where parents object to the vaccination. Here the parents' objection was based on religious beliefs. The statute allowing the Commissioner to authorize medical treatment of children in temporary state custody is not broad enough to include authorizing preventive care. Justice Rogers joined by Justice Eveleigh filed a concurring opinion.  AP reports on the decision.

Israel's High Court Says Women Must Be Allowed To Serve As Rabbinical Court Administrators

Times of Israel reports that Israel's High Court of Justice ruled yesterday that women must be allowed to serve in administrative positions as directors of rabbinical courts.  Previously they have been precluded from serving by a rule providing that to be eligible for that administrative position, the person must be eligible to serve as a city rabbi.  According to the Times:

The new requirements ordered by the court on Wednesday are that the candidate be a resident of Israel, possess a rabbinical court advocate license or a law practicing license along with a master’s degree in Jewish law or Talmud, have at least seven years of experience in rabbinical court appearances, and possess “character and lifestyle befitting a director of rabbinical courts.”

Roy Moore Moves To Run-Off Against Luther Strange In Alabama U.S. Senate Primary

As reported by AP and the New York Times, former Alabama Supreme Court Chief Justice Roy Moore came in first, capturing 38.9% of the vote, in yesterday's Alabama Republican primary for U.S. Senate. He will face incumbent Luther Strange, who received 32.8% of the vote, in the second round of the primary on Sept. 26.  Moore was removed as Chief Justice in 2003 when he refused to obey a court order to remove a Ten Commandments monument that stood on the state courthouse grounds.  After being re-elected as Chief Justice, last year he was suspended from his position for instructing probate judges to deny marriage licenses to same-sex couples. (See prior posting.)

Court Dismisses Claim That Solar Project Infringes Sacred Indian Mounds

The Springfield Republican reports that on Friday a Massachusetts federal district court dismissed a lawsuit that sought to stop development of a 6-acre solar farm in Shutesbury, Massachusetts. Plaintiffs contended that the property contained sacred Indian mounds and sacred stone landscapes.  According to the paper:

Two archaeologists ... had found no evidence of sacred structures or burial mounds on the property. However, the plaintiffs claimed that only a "tribal historic preservation officer" could make that determination.

In dismissing the case, [Judge] Mastroianni concluded that the plaintiffs and their consultants have no legal right to enter the property.

The religious land use statute "does not create a substantive right for a person to carry out religious activities on property owned or controlled by another," and the Historic Preservation Act only covers federal or federally assisted projects.

State Department Releases 2016 International Religious Freedom Report

Yesterday the State Department released its 2016 International Religious Freedom Annual Report (full text). In remarks on the Report, Secretary of Sate Tillerson highlighted concerns about religious liberty in Iran, Saudi Arabia, Turkey, Bahrain, China, Pakistan and Sudan. Importantly, Tillerson also emphasized the State Department's conclusion that ISIS is engaged in genocide as well as in crimes against humanity:

As we make progress in defeating ISIS and denying them their caliphate, their terrorist members have and continue to target multiple religions and ethnic groups for rape, kidnapping, enslavement, and even death.

To remove any ambiguity from previous statements or reports by the State Department, the crime of genocide requires three elements: specific acts with specific intent to destroy in whole or in part specific people, members of national, ethnic, racial, or religious groups. Specific act, specific intent, specific people.

Application of the law to the facts at hand leads to the conclusion ISIS is clearly responsible for genocide against Yezidis, Christians, and Shia Muslims in areas it controls or has controlled.

ISIS is also responsible for crimes against humanity and ethnic cleansing directed at these same groups, and in some cases against Sunni Muslims, Kurds, and other minorities. 

More recently, ISIS has claimed responsibility for attacks on Christian pilgrims and churches in Egypt.

The protection of these groups – and others subject to violent extremism – is a human rights priority for the Trump administration.

We will continue working with our regional partners to protect religious minority communities from terrorist attacks and to preserve their cultural heritage.

The full report surveys the state of religious freedom in some 195 countries around the world.

8th Circuit Upholds Nebraska's Funeral Picketing Law

In Phelps-Roper v. Ricketts, (8th Cir., Aug. 11, 2017), the U.S. 8th Circuit Court of Appeals upheld Nebraska's Funeral Picketing Law against both facial and as-applied challenges brought by members of the Westboro Baptist Church.  WBC has historically picketed military funerals-- which its members consider "patriotic hoopola"-- with anti-gay messages and other messages about national policies that WBC considers opposed to Biblical teachings.  The challenged Nebraska law prohibits picketing within 500 feet of a cemetery, mortuary, or church beginning one hour before and ending two hours after the start of a funeral. In upholding the law, the court concluded:

The rights of all speakers, including Phelps-Roper and others at funerals, to publically express their beliefs are protected by the First Amendment—but are not absolute....  Mourners, because of their vulnerable physical and emotional conditions, have a privacy right not to be intruded upon during their time of grief.... NFPL strikes a balance between these competing interests of law-abiding speakers and unwilling listeners in a way that is not facially unconstitutional. We likewise find that Phelps-Roper has failed to demonstrate that the NFPL was applied to her in an unconstitutional manner.

Omaha World-Herald reports on the decision.

Trial Judge Upholds Catholic School's Refusal To Re-enroll Students After Disruptive Year

NJ Advance Media reports that a New Jersey trial court judge yesterday, in a three-hour long decision read from the bench, upheld a Catholic school's refusal to re-admit two girls for this year after their father sued the school to get one of the girls on the boy's basketball team. The judge agreed with school officials that the parents had been disruptive to the school community, saying that the court does not have the authority "to meddle" in the school's ecclesiastical decision. The Archdiocese of Newark issued a statement on the decision.

Sikh Cadets Sue West Point Over Headgear Requirement

Two cadets who are observant Sikhs and who enrolled in the U.S. Military Academy at West Point filed suit in a Michigan federal district court yesterday contending that the Army has failed to follow its own regulations that allow Sikhs to serve without giving up their Sikh grooming and dress obligations.  The complaint (full text) in New Cadet Candidate Chahal v. Seamands, (ED MI, filed 8/14/2017), asserts that the Sikh cadets

are only welcome to remain at the Academy with their unshorn hair, beards, and turban on one condition: they must agree to wear the West Point “tar bucket”—a decorative hat worn in ceremonial parades a few times each year....

 For them, wearing the tar bucket over, or in place of, their turbans would desecrate their religious values....

The suit claims that requiring the cadets to wear the "tar bucket" violates their rights under the 1st and 5th Amendments and under RFRA.  Courthouse News Service reports on the lawsuit.

Australian Commission Recommends That Child Sex Abuse Learned In Confession Must Be Reported To Authorities

Australia's Royal Commission into Institutional Responses to Child Sexual Abuse yesterday issued a release  (which includes links to full text) announcing its publication of a report titled Criminal Justice.  The report puts forward 85 recommendations for reforms aimed at providing fairer responses to victims of institutional child sexual abuse. Here is the Commission's summary of its recommendations on disclosure of abuse learned by clergy during confessions:

The report recommends making failure to report child sexual abuse in institutions a criminal offence. This recommendation extends to information given in religious confessions. Clergy should not be able to refuse to report because the information was received during confession.

Persons in institutions should report if they know, suspect or should have suspected a child is being or has been sexually abused.

The Royal Commission heard of cases in religious settings where perpetrators who made a religious confession to sexually abusing children went on to reoffend and seek forgiveness. The report recommends there be no exemption, excuse, protection or privilege from the offence granted to clergy for failing to report information disclosed in connection with a religious confession.

AP reports on the Commission's action.

4th Circuit: Federal Law Does Not Entitle Disabled Students To Education In Their Religious Traditions

In M.L. v. Smith, (4th Cir., Aug. 14, 2017), the U.S. 4th Circuit Court of Appeals held that the Individuals with Disabilities Education Act (IDEA) does not require a public school system to instruct disabled Orthodox Jewish students in the customs and practices of their religion as part of the statutorily assured "free appropriate public education."  M.L.'s parents wanted his individualized education program to include instruction that would prepare M.L. for life in the Orthodox Jewish community.  The court concluded, however, that the school's only duty is to provide access to the same kind of secular education offered to others. Americans United issued a press release announcing the decision.

Recent Articles of Interest

From SSRN:

• Kevin H. Govern, International Humanitarian Law (IHL): Five Key Dynamics Shaping the Global Landscape, Security, and Freedom of Religion and the Way Ahead, (Chapter 4 in The Persecution and Genocide of Christians in the Middle East - Prevention, Prohibition, & Prosecution, Edited by Ronald J. Rychlak and Jane F. Adolphe (Angelico Press, 2017)).
• Caroline Mala Corbin, Government Employee Religion, (Arizona State Law Journal, Forthcoming).
• Lotem Perry-Hazan & Oshrat Perelstain, Mobilizing Ethnic Equality in Admissions to Schools: Litigation, Politics, and Educational Change, (Journal of Educational Change, Forthcoming).
• David B.Oppenheimer, Dr. King's Dream of Affirmative Action, (August 7, 2017).
• Joel Harrison, Autonomy and the Liberal Imagination in Jane Calderwood Norton's Freedom of Religious Organizations, (July 16, 2017).
• Scientia Moralitas, International Journal of Multidisciplinary Research, Vol. 2, No. 1, 2017. (Articles by Ioan Gheorghe Rotaru; Ganoune Diop; Mihaela Alexandra Tudor; and Cosmin Tudor Ciocan; Godina Bojan, Arpad Kovacs; Arthur Wagner, Alexandru Bulearcă).
• Donna Farag, From Tweeter to Terrorist: Combatting Online Propaganda When Jihad Goes Viral, (American Criminal Law Review, Vol. 54, No. 4, 2017).
• Catherine Jean Archibald, Transgender Bathroom Rights Post-Obama, (Forthcoming, Tennessee Journal of Race, Gender, and Social Justice).
• Shawn Fields, Is it Bad Law to Believe a Politician? Campaign Speech and Discriminatory Intent, (San Diego Legal Studies Paper No. 17-297, 2017).

From SSRN (Islamic Law):

• Joshua T. Carback, On Sharia in American Family Law: Confronting the Dangers of Legal Pluralism, (January 17, 2016).
• Jaber Seyvanizad, WMD Under Islamic International Law, (International Journal of Law, Volume 3; Issue 1; January 2017; Page No. 12-16).

Suit Seeks To Protect Eruv In New Jersey Township

A suit was filed last week in New Jersey federal district court against the Township of Mahwah, NJ, seeking to prevent its use of a zoning ordinance that prohibits signs on utility poles as a basis to require Orthodox Jews to dismantle an eruv that was set up in a portion of the township.  The eruv, created by agreement with the local utility company, makes use of lechis (thin plastic pipes) on utility poles.  The complaint (full text) in Bergen Rockland Eruv Association, Inc. v. Township of Mahwah, (D NJ, filed 8/11/2017), contends that the township's enforcement actions target the Orthodox Jewish community's exercise of religion, and thus violates the 1st and 14th Amendments as well as RLUIPA. NorthJersey.com reports on the lawsuit. [Thanks to Steven A. Sholk for the lead.]

2nd Circuit: Pregnancy Discrimination Claim Against Synagogue Can Proceed

In Shultz v. Congregation Shearith Israel of the City of New York, (2d Cir., Aug. 10, 2017), the U.S. 2nd Circuit Court of Appeals held that giving an employee a notice of termination of employment can be an "adverse employment action" under Title VII of the 1964 Civil Rights Act even though the notice is rescinded before the date that the firing becomes effective.  The court thus allowed a long-time Program Director for a New York synagogue to move ahead with her claim that she was given a termination notice because of disapproval of the fact that she was pregnant at the time of her recent marriage.  The court also allowed her to move ahead with her claim under the Family Medical Leave Act. [Thanks to Rabbi Michael Simon for the lead.]

Recent Prisoner Free Exercise Cases

In Hoever v. Belleis, (11th Cir., Aug. 10, 2017), the 11th Circuit held that denial of an English language Bible and devotional materials to an inmate for 20 days while in disciplinary confinement did not impose a substantial burden on his religious exercise.

In Harris v. Holmes, 2017 U.S. Dist. LEXIS 124062 (D NJ, Aug. 7, 2017), a New Jersey federal district court refused to issue a preliminary injunction against a prison's new policy on purchase of religious oils.

In Dunn v. Todd, 2017 U.S. Dist. LEXIS 124302 (ND NY, July 10, 2017), a New York federal district court dismissed with leave to amend an inmate's complaint that he was unable to contact his pastor and family.

In Keaton v. Ponte, 2017 U.S. Dist. LEXIS 124303 (SD NY, Aug. 4, 2017), a New York federal district court dismissed with leave to amend an inmate's complaint about strip searches in the chapel area.

In Shields v. Ahern, 2017 U.S. Dist. LEXIS 125424 (ND CA, Aug. 8, 2017), a California federal district court dismissed a Muslim inmate's complaints regarding halal meals, hiring of a Muslim chaplain, group prayer and study, religious items and books, and receiving packages from an Islamic vendor.

In Buckley v. County of San Mateo, 2017 U.S. Dist. LEXIS 125420 (ND CA, Aug. 8, 2017), a California federal district court dismissed with leave to amend a former inmate's complaint that his free exercise rights were infringed because Kosher meals provided were not actually Kosher and he was not allowed to wear certain religious items outside of his cell.

In Zapata v. Ducart, 2017 U.S. Dist. LEXIS 125453 (ND CA, Aug. 8, 2017), a California federal district court allowed a Messianic Jewish inmate to move ahead with his complaint that he was not allowed to participate in the kosher diet program.

In Ali v. Romero, 2017 U.S. Dist. LEXIS 125696 (D MD, Aug. 7, 2017), a Maryland federal district court refused to dismiss at least until the prison chaplains had been served an inmate's complaint over the lack of Islamic prayer services.

In Holmes v. Engleson, 2017 U.S. Dist. LEXIS 126228 (ND IL, Aug. 9, 2017), an Illinois federal district court dismissed a Rastafarian inmate's complaint that his dreadlocks and beard were removed forcibly.

In Simmons v. Williams, 2017 U.S. Dist. LEXIS 126294 (SD GA, Aug. 9, 2017), a Georgia federal magistrate judge recommended that a Muslim inmate be allowed to move ahead with his action for injunctive relief (but not his damage claims) under the 1st Amendment and RLUIPA for being dragged through a commons area wearing wet boxer shorts, which violated his religious beliefs that he must keep his awrah covered in the presence of others.

Judge Wrongly Relied On Defendant's Christian Religious Background To Enhance Sentence

In Miller v. People of the Virgin Islands, (VI Sup. Ct., Aug. 9, 2017), the Virgin Islands Supreme Court remanded for re-sentencing a case in which defendant plead guilty as an accessory after the fact to embezzlement of funds from a hospital.  The Supreme Court concluded that the sentencing judge wrongly relied on defendant's religion to impose a longer sentence that the one recommended in defendant's plea agreement. The sentencing judge had referred to defendant's "claims to Christianity and her theology degree" in explaining the longer sentence.

Free Exercise Claim Against Hospital Over Diet For Daughter Moves Ahead

In Dixon v. Department of Health and Human Services, (ED MI, Aug. 11, 2017), a Michigan federal district court allowed parents whose daughter was ordered hospitalized for mental health treatment to proceed with several claims.  Among them is a claim that the hospital is violating the parents' free exercise rights by feeding their daughter pork with knowledge of the family's religious beliefs.

Court Refuses To Enforce Arbitration Award In Church Control Dispute

In Patterson v. Shelton, (ED PA, Aug. 11, 2017), a Pennsylvania federal district court dismissed an attempt to obtain enforcement of an arbitration award entered over ten years ago in a dispute over control of the General Assembly of the Church of the Lord Jesus Christ.  The underlying litigation began 22 years ago.  the court said in part:

Petitioner seeks to have this Court adjudicate a church controversy by confirming an Arbitration Award, albeit one that was vacated, which would require extensive inquiry into church matters. A solution to the parties’ problems involves more than mere application of neutral principles of law. It involves a deeper look into the church’s control over its leaders, how they acquire and maintain authority, and how the church is being managed.... Probing deeper into these matters would do exactly what the law prohibits courts from doing: becoming entangled in church issues.

The court also relied on several other grounds in dismissing the case.

Federal Suit By Houston Employees Seeks To Preserve Benefits For Same-Sex Couples

A suit was filed yesterday in a Texas federal district court by Houston city employees and their same-sex spouses seeking to preserve the same spousal benefits that are received by other city employees. In a decision handed down last month, the Texas Supreme Court kept alive a suit by Houston taxpayers challenging the city's extending spousal benefits to same-sex married couples. (See prior posting.) In the complaint (full text) filed yesterday in Freeman v. Turner, (SD TX, filed 8/10/2017), plaintiffs asked the federal district court to declare that the city may not rely on the Texas DOMA Statute and the Texas Marriage Amendment, which have previously been held unconstitutional by federal courts, to justify depriving city employees with same-sex spouses to to the same spousal benefits extended to other married employees. The complaint also asks the court to find that denial or withdrawal of such benefits would be unconstitutional under the equal protection and due process clauses. Texas Observer reports on the lawsuit.

Court Rejects Challenge To Permit Denial For Outdoor Weddings

In Epona v. County of Ventura, 2017 U.S. Dist. LEXIS 126533 (CD CA, Aug. 9, 2017), a California federal district court dismissed a free exercise challenge to the denial of a conditional use permit to Epona Estate  that wants to rent out its premises for outdoor weddings. Plaintiff claimed that the county selectively discriminates against weddings. (See prior related posting.)

Suit Challenges Trump's Reversal of Military Policy On Transgenders

Five members of the military filed suit yesterday challenging President Trump's announcement through Twitter that he will reverse the Obama Administration's policy that allows transgender individuals to serve openly in the military.  The complaint (full text) in Doe v. Trump, (D DC, filed 8/9/2017), contends that the White House counsel's office has turned Trump's decision into official guidance which will be communicated to the Department of Defense.  The suit alleges that Trump's directive unconstitutionally discriminates against transgender individuals, is arbitrary, and that the government is estopped from rescinding plaintiffs' rights.  NPR reports on the lawsuit.

Religious School Asserts Ecclesiastical Abstention Defense

As reported by Houston Chronicle, an Episcopal elementary school in Galveston, Texas has asserted an ecclesiastical abstention defense to a lawsuit filed by the mother of a student alleging an inadequate response by the school to bullying and racial harassment of her sixth-grade son.  Plaintiff says that 3 of her son's classmates gave her son a piece of paper folded to resemble a KKK hood, and bullied them in other ways. The school only required the students to send apology notes, and gave a one day suspension to one of the students.  The defendants' motion to dismiss (full text) in Beans v. Trinity Episcopal School, (TX Dist. Ct., filed 8/1/2017) argues:

As a religious institution, Trinity has a constitutionally-protected freedom to make decisions regarding the discipline of its students without judicial interference. The courts cannot second guess those decisions, even in the guise of purportedly "secular" causes of action arising from tort principles. Plaintiffs' claims ask the Court to intrude upon Trinity's internal affairs and governance relating to discipline, investigation, and standards of conduct—which is precisely what the ecclesiastical abstention doctrine was designed to prevent.

Differential Marriage License Requirement For Foreign Born Held Unconstitutional

In Vo v. Gee, (ED LA, Aug. 8, 2017), a Louisiana federal district court granted a permanent injunction, holding unconstitutional a Louisiana statute that treats differently applicants for a marriage license who were born outside the United States from those born in the U.S. or one of its territories.  Under the law a birth certificate must be produced in order to obtain a marriage license, but those born in the U.S. may obtain a waiver of the requirement.  Those born elsewhere, such as the Vietnamese refugee who is plaintiff in the case, are not entitled to the same type of waiver and must also provide a passport or visa.  The court concluded that this violates the Equal Protection clause as well as the substantive due process right to marriage, even though a subsequent Louisiana law allows a judicial waiver of the birth certificate requirement.  Washington Post reports on the decision.

Case Remanded For Determination of Whether Church Is Hierarchical

In  Slagle v. Church of the First Born of Tennessee, (TN App., Aug. 7, 2017), a case involving a dispute over control of church property after a split among church members, a Tennessee appellate court remanded the case to the trial court for a determination of whether the church was congregational or hierarchical. In doing so, the court noted that a church may be congregational in some respects while it is hierarchical in other respects. The court noted that here the relevant question is whether the church is congregational for purposes of ownership and control of property.

In Zimbabwe, Businessman Sues Church Leader For False Prophecies of A Debt Cancellation Miracle

In Zimbabwe, a suit was filed last week against United Family International Church leader Prophet Emmanuel Makandiwa and his wife Ruth.  According to Bulawayo24 News, former members of the church-- a businessman and his wife from the country's capital of Harare-- are seeking damages of $6.5 million (US), claiming that the Church leader through false prophecies and fraud convinced them to donate over $1.1 million (US) over a 5-year period by telling them that this would lead to a debt cancellation miracle. Plaintiffs also seek damages for various related conduct, including the Church leader's convincing them to hire a disbarred lawyer to try to recover $1.7 million from a lender.

Recent Articles of Interest

From SSRN:

• Ira C. Lupu & Robert W. Tuttle, Trinity Lutheran Church v. Comer: Paradigm Lost?, (Forthcoming, American Constitution Society for Law & Policy Supreme Court Review, October Term 2016).
• Meghan Boone, The Autonomy Hierarchy, (Texas Journal on Civil Liberties and Civil Rights, Vol. 22, No. 1, 2016).
• Julio C. Colón, Improving Dispute Resolution for Muslims in the United States, (International Conference on Dispute Resolution 2017: Modern Trends in Effective Dispute Resolution, International Islamic University of Malaysia (2017)).
• Nicholas Aroney, Individual, Community and State: Thoughts on Jane Norton, Freedom of Religious Organizations, (July 17, 2017).
• Adam Perry, Pardons and Mercy, (July 30, 2017).
• Robert L. Tsai, Obama's Conversion on Same-Sex Marriage: The Social Foundations of Individual Rights, (Connecticut Law Review, Vol. 50, 2017).

From SSRN (International and Comparative Law):

• Jaclyn L. Neo, Realizing the Right to Freedom of Thought, Conscience, and Religion: The Limited Normative Force of the ASEAN Human Rights Declaration, (Human Rights Law Review (2017, Forthcoming)).
• Jaclyn L. Neo, Secularism Without Liberalism: Religious Freedom and Secularism in a Non-Liberal State, (Michigan State Law Review, 2017).
• John Lunstroth, Human Rights and Cultural Diversity in UNESCO Bioethics, (in Advancing Global Bioethics, Vol. 6: Religious Perspectives on Bioethics and Human Rights (Tham, Joseph, Man Kwan, Kai, Garcia, Alberto (Eds.) 2017, Springer Nature, New York, Forthcoming).

From SSRN (Jewish Law):

• Raphael Cohen-Almagor, The Monopoly of Jewish Orthodoxy in Israel and Its Effects on the Governance of Religious Diversity, (in Anna Triandafyllidou and Tariq Modood (eds.), The Problem of Religious Diversity (Edinburgh: Edinburgh University Press, 2017), pp. 250-272).
• Levi Cooper, Mysteries of the Paratext: Why Did Rabbi Shneur Zalman of Liady Never Publish His Code of Law?, (Diné Israel 31 (2017): 43-84).

Recent Prisoner Free Exercise Cases

In Henry v. Bright, 2017 U.S. Dist. LEXIS 119374 (D SC, July 31, 2017), a South Carolina federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 119701, July 11, 2017) and dismissed a complaint that prison policies do not permit Buddhist inmates to use scented oils.

In Roberts v. Perry, 2017 U.S. Dist. LEXIS 120621 (WD NC, Aug. 1, 2017), a North Carolina federal district court upheld a prison's refusal to recognize "Nation of Israel" (a white-supremacist group) as an approved religion and the concomitant limit on the number of religious texts that an adherent can possess.

In Evans v. Bilal, 2017 U.S. Dist. LEXIS 121795 (ND IL, Aug. 2, 2017) an Illinois federal district court dismissed an inmate's complaint that he was not permitted to participate in religious services with other Muslim inmates.

In Butler v. California Department of Corrections, 2017 U.S. Dist. LEXIS 122724 (ND CA, Aug. 3, 2017), a California federal district court permitted an inmate to move ahead with his attempt to obtain showing of a Nation of Islam video and obtaining a NOI chaplain.

Retaliation Suit By Dismissed Nursing Student Moves Ahead

In Brown v. William Rainey Harper College, 2017 U.S. Dist. LEXIS 121333 (ND IL, Aug. 1, 2017), an Illinois federal district court allowed a student who was dismissed from the Practical Nursing Certificate Program at William Rainey Harper College to move ahead with her complaint that the action taken against her resulted from her practice of praying with her patients, as well as because of her complaints to the Department of Education's Office of Civil Rights.

3rd Circuit Rejects Secular Anti-Abortion Group's Challenge To ACA Contraceptive Mandate

In Real Alternatives Inc. v. Secretary Department of Health and Human Services, (3d Cir. Aug. 4, 2017), a 3-judge panel of the U.S. 3rd Circuit Court of Appeals held unanimously that the Equal Protection Clause does not require the government to provide a secular anti-abortion group with the same exemption from the Affordable Care act contraceptive coverage mandate as is provided to houses of worship. The majority said in part:

Real Alternatives is in no way like a religious denomination or one of its nontheistic counterparts—not in structure, not in aim, not in purpose, and not in function. We do not doubt that Real Alternatives’s stance on contraceptives is grounded in sincerely-held moral values, but “religion is not generally confined to one question or one moral teaching; it has a broader scope.”

The court by a vote of 2-1 also rejected a claim under RFRA that religious exercise of employees who oppose contraceptives, but work for secular employers, is substantially burdened when the government requires the employer to include contraceptive coverage in their health plans. Judge Jordan filed an an opinion dissenting on this issue.  He contended that requiring objecting employees to pay for insurance that includes contraceptive coverage creates a substantial burden and that the government had not used the least restrictive means to achieve a compelling governmental interest. Legal Intelligencer reports on the decision.

Cert. Filed In Wyoming's Disciplining of Judge For Refusing To Perform Same-Sex Marriages

A petition for certiorari (full text) was filed with the U.S. Supreme Court today in Neely v. Wyoming Commission on Judicial Conduct and Ethics, (cert. filed 8/4/2017).  In the case, the Wyoming Supreme Court held that a judge who, because of religious objections, refuses to perform same-sex marriages violates the Wyoming Code of Judicial Conduct. (See prior posting). ADF issued a press release announcing the filing of the petition for review.

German Court Says Church of Flying Spaghetti Monster Is Not a Religion

In Germany, a court in Frankfurt an der Oder has upheld a decision by the Infrastructure Ministry of Brandenburg to deny the Church of Flying Spaghetti Monster (FSM) a permit to put up signs announcing its religious services. As reported this week by The Vanguard, FSM contended that it should be able to erect road signs publicizing its "noodle masses" just as local Catholic and Protestant churches erect signs giving details of their worship services. However the court ruled that FSM is neither a religious community or a community with a common world view.

1st Circuit: Historic Rhode Island Synagogue Owned By New York Congregation

In a decision handed down yesterday, the U.S. 1st Circuit Court of Appeals reversed a Rhode Island federal district court (see prior posting) and held that Rhode Island's historic Touro Synagogue is owned by New York's Shearith Israel congregation. In Congregation Jeshuat Israel v. Congregation Shearith Israel, (1st Cir., Aug. 2, 2017), the court also concluded that a pair of historic silver Torah ornaments worth some $7 million are also owned by the New York congregation.  Retired Supreme Court Justice David Souter, sitting by designation on the case, wrote the opinion for the court, saying that the court should rely on the parties' own agreements which are the "instruments customarily considered by civil courts."  He said in part:

The district court approached the competing claims ... by a conscientious and exhaustive historical analysis.... Much of that history reflected, albeit without directly addressing, the doctrinal tensions between the CSI congregation, committed to preserving Sephardic practice at Touro, and the later Newport congregation that emerged from the 19th century immigration, which included a significant Ashkenazic element. The district court was scrupulous in avoiding any overt reliance on doctrinal precepts....

Nonetheless, the court's historical investigation was unavoidably an immersion in the tensions between two congregations that were not doctrinally identical.... These are circumstances in which we think that the First Amendment calls for a more circumscribed consideration of evidence than the trial court's plenary enquiry into centuries of the parties' conduct....

AP reports on the decision.