10th Circuit Requires Strict Notice For Religious Accommodation, Ruling In Favor of Abercrombie & Fitch

In EEOC v. Abercrombie & Fitch Stores, Inc., (10th Cir., Oct. 1, 2013), the U.S. 10th Circuit Court of Appeals ruled in favor of Abercrombie & Fitch in a case in which a Muslim applicant for employment who wore a hijab (Muslim headscarf) to her employment interview was not hired. The EEOC claimed that Abercrombie failed to provide reasonable religious accommodation to Samantha Elauf whose hijab conflicted with Abercrombie's "look policy."  The court held that the EEOC had failed to show that Elauf had informed Abercrombie that she wore her hijab for religious purposes and that she needed a religious accommodation due to a conflict with Abercrombie's clothing policy. In describing a strict notice requirement, the majority said:

[E]ven if an employer was generally aware of the beliefs and observances that are traditionally associated with a particular religious group, and also knew that the applicant or employee displayed symbols associated with that group—or even that the applicant or employee specifically claimed to be a member of that group—ordinarily, the employer would still not know whether the conflicting practice in question actually stemmed from religious beliefs unless the particular applicant or employee informed the employer, because under Title VII ... religion is a uniquely personal and individual matter. ...

[E]ven if an employer has particularized, actual knowledge of the religious nature of the practice—that is, knowledge that the practice of a particular applicant or employee stems from his or her religious beliefs—that still would not be sufficient information to trigger the employer’s duty to offer a reasonable accommodation. That is because the applicant or employee may not actually need an accommodation. In other words, an applicant or employee may not consider his or her religious practice to be inflexible; that is, he or she may not feel obliged by religion to adhere to the practice.

Judge Ebel dissented in part, concluding that the case should be remanded for a jury trial. [Thanks to Steven H. Sholk for the lead.]

Anti-Gay Pastor Will Run For Governor Of Massachusetts

In Massachusetts, controversial anti-gay pastor Scott Lively announced in a press release on Monday that he will run for governor of the state, although he conceded that "it would take a miracle from God" for him to win.  Activists have sued Lively for fomenting anti-gay repression in Uganda. (See prior posting.) Explaining why he will run, Lively said in part:

The people of this state need a candidate who can clearly and unapologetically articulate Biblical values without fear or compromise. They need a candidate who will tell the simple truth that abortion is murder, and homosexuality is condemned by God (but that Jesus forgives and heals those who repent). That parents and not the state have authority over their children, because government is our servant and not our master. That socialism is slavery and humanism breeds corruption. But mostly they need a leader who will remind the people that Massachusetts was founded upon Jesus Christ and the Bible and that our future security and prosperity depend on restoring our trust in Him. “Blessed is the nation whose God is the Lord!” Psalm 33:12.

Edge yesterday reported on Lively and his decision to run.

3rd Circuit Upholds Sentence Imposed On Rabbi For Money Laundering

In United States v. Fish, (3rd Cir., Oct. 1, 2013), the U.S. 3rd Circuit Court of Appeals upheld a 46 month prison sentence imposed on a Brooklyn, New York rabbi who, in a plea agreement, plead guilty to one count of conspiracy to commit money laundering. (See prior posting.) The Orthodox rabbi, Mordchai Fish, was part of a scheme to launder money through tax exempt Jewish charities. The appeals court agreed with the trial court that the criminal activity qualified as sophisticated money laundering that called for a two-level sentencing enhancement under the federal Sentencing Guidelines. AP reports on the decision.

Arizona Appeals Court Upholds School Voucher Program

In Niehaus v. Huppenthal, (AZ App., Oct. 1, 2013), the Arizona Court of Appeals upheld against state constitutional challenge Arizona's Empowerment Scholarship Accounts program that provides school vouchers for students with disabilities. Parents can apply the scholarship money to any of eleven permissible uses, including tuition at private and parochial schools. The court held that the program does not violate Article 2, Section 12, of the Arizona Constitution that provides "n]o public money . . . shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment."  The court held:

The ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion. Any aid to religious schools would be a result of the genuine and independent private choices of the parents.

Nor does the program violate Article 9, Section 10 of the Arizona Constitution that provides: "[n]o tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation." Here, according to the court: "The specified object of the ESA is the beneficiary families, not private or sectarian schools."

The Arizona Daily Star reports on the decision.

Key Claims Of Favoritism To Jewish Private Schools Can Move Ahead

The Lower Hudson Journal News reports that on Monday, a New York federal district court dismissed a number of claims in a class action lawsuit against East Ramapo, NY school officials, but allowed key claims to move ahead. According to the report:

The lawsuit can now confront several of the most divisive issues in East Ramapo, including the placement of Hasidic and other Orthodox [Jewish] students in private special-education schools at public expense, the alleged purchase of religious textbooks for private schools, and whether the school board tried to sell two schools at below-market rates.

[The judge] also allowed the lawsuit to look at whether the school board hired Long Island-based lawyer Albert D’Agostino in 2009 as part of a conspiracy to place special-education students in private schools in a manner that forfeits state reimbursements.

The school district has long had tension between public school parents and the school board which they accuse of favoring Orthodox Jewish private schools. (See prior posting.)

Suit On Use Of Community Rooms For Religious Programs Settled

Liberty Counsel announced yesterday that a settlement has been reached in its lawsuit against Plainfield, Illinois, over policies that barred use of Community Rooms for a dozen specific types of activities including use for "Religious services or other religious purposes." The lawsuit (see prior posting) challenged the refusal to allow Liberty Counsel to use a room for an educational program promoting a Christian view of the founding of America. Under the settlement, the city will now allow the program, and will also change its policies to provide: "The Village does not prohibit an applicant from presenting civic, cultural, educational or informational programs from a religious viewpoint."

Disgruntled Church Member Can Proceed On Various Claims Against Church and Its Personnel

In Zhelezny v. Olesh, (OH App., Sept. 30, 2013), an Ohio state appellate court reversed in part a trial court's dismissal of a suit by a disgruntled former church member against the church, its pastors and various of its members.  Apparently the former church member, Vladimir Zhelezny, protested publicly against the church and its pastor in ways that led to heated arguments and physical confrontations.  As a result the pastor sent Zhelezny a letter in 2008 restricting his access to the church for one year, and then extended the ban for a second year.  After a 2010 altercation, a deputy sheriff removed Zhelezny from church premises and filed criminal trespass charges that were eventually dismissed.  Subsequently Zhelezny was involved in another physical confrontation at the church. Zhelezny sued alleging assault and battery; extortion;  malicious prosecution; violation of civil rights; civil conspiracy; and  intentional infliction of emotional distress.

The court held that the trial court erroneously relied on the ban letters in dismissing on the pleadings malicious prosecution and assault and battery claims, since the letters were not made part of the pleadings. The trial court also erred in dismissing most of the other state law claims on ecclesiastical abstention grounds. They can be decided without a need to examine purely ecclesiastical issues. However the federal civil rights conspiracy claims would require interpretation of ecclesiastical documents, which a civil court may not do.

Magistrate Rules On Admissibility of Expert Opinion In Negligent Supervision Suit Against LDS Church

In A.R. v. Corporation of the President of the Church of Jesus Christ of Latter-day Saints, 2013 U.S. Dist. LEXIS 140679 (D CO, Sept. 30, 2013), a Colorado federal magistrate judge ruled on an expert's qualifications and the portions his report that are admissible in a lawsuit charging the LDS Church with negligent hiring, negligent supervision, breach of fiduciary duty, and outrageous conduct.  The suit was filed by a 15-year old who had sexual relations with a 40-year old LDS Sunday school teacher who, she subsequently found out through Facebook, was engaged to another woman. The teacher, who has plead guilty to sexual assault, is also being sued. In assessing the expert's qualifications, the court said in part:

... [A]bsent any proof that there is a specific standard of care that applies to churches who are hiring Sunday school teachers, Mr. Isenstadt is qualified to render an opinion regarding the limited topic of the desirability of conducting a background check as part of hiring practices in general.

Brazilian Legislator Speaking At Evangelical Rally Orders Arrest For Lesbian Kiss In Audience

Global Voices reported last week on a Sept. 15 incident in Brazil in which police arrested two young women who stood on their chairs and demonstrably kissed each other romantically during an evangelical event in the city of São Sebastião.  Pastor Marco Feliciano, a Brazilian congressman and president of the House Commission for Human Rights and Minorities, interrupted his presentation to the audience of 70,000 to order police to arrest the two women. He told the audience: "This here isn't palace where anything goes, It’s the house of God."  Subsequently Feliciano justified his actions on Twitter, saying that the women were violating Art. 208 of the Brazilian Penal Code that prohibits disturbing a ceremony or practice of religious worship.

Faith Healing Mother's Conviction Upheld In Tennessee

In State of Tennessee v. Crank, (TN Ct. Crim. App., Sept. 26, 2013), the Tennessee Court of Criminal Appeals affirmed the conviction of Jacqueline Crank on one charge of child abuse or neglect related to the 2002 death of her teenage child.  The mother turned to prayer instead of medical treatment for her daughter who eventually died of cancer.  Tennessee has an exemption (TN Stat 39-15-402(c)) from child abuse charges for treatment  "through prayer alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner thereof in lieu of medical or surgical treatment." This exemption was apparently too narrow to cover Crank's attempts at faith healing.  Crank argued that this exemption is vague, and violates the Establishment Clause and equal protection clause, apparently attempting to get the court for that reason to strike down the entire child neglect statute. The court held, however, that even if the exemption is unconstitutional, it would just strike it from the law and uphold the remainder of the child neglect statute.  The court also refused to apply the Tennessee Preservation of Religious Freedom Act to the case because it was not enacted until several years after the prosecution in this case was commenced.

Sikhs In U.S. Continue To Be Stereotyped As Terrorists Because of Their Turbans

Last week the ACLU sent a letter (full text) to top officials of the Mississippi Department of Transportation complaining about mistreatment of a Sikh truck driver by DOT officers who told him that his kirpan was illegal. One officer taunted him, declaring that Sikhs are depraved and terrorists. Ultimately he was arrested for failing to obey an officer's command. As reported by an ACLU press release, when the truck driver returned to Mississippi for his court date, the judge ordered him ejected from the courtroom for wearing a turban, calling it a "rag," and delayed his hearing to the end of the day. All of this generated a Justice Department investigation and a revision of county non-discrimination policy. The ACLU also plans to file an ethics complaint against the judge.

Meanwhile, according to Arutz Sheva yesterday, the Sikh Coalition has asked major U.S. retailers to remove from their shelves Halloween masks of Osama bin-Laden wearing a turban, fearing that Sikhs are being stereotyped as terrorists because of their turbans. The action comes after last weekend's attack in New York on Columbia University faculty member Dr. Prabhjot Singh who was surrounded by a large group of teens shouting "get Osama" and "terrorist". [Thanks to Jack Levey for the lead.]

Recent Prisoner Free Exercise Cases

In Ford v. Palmer, (2d Cir., Sept. 24, 2013), the Second Circuit reversed the district court's dismissal of a Muslim inmate's retaliation claim. Plaintiff claims a corrections officer threatened to poison him for his reporting the officer's failure to provide him with hot water for his Ramadan breakfast.

In Williams v. Secretary Pennsylvania Department of Corrections, (3d Cir., Sept. 26, 2013), the Third Circuit affirmed the dismissal of a complaint by a Muslim inmate about the presence of a Christmas tree and Christmas wreaths in the interfaith chapel where Muslims held their weekly Jumu'ah services. The tree was placed in the back of the chapel during Muslim services.

In Gross v. Hartley, 2013 U.S. Dist. LEXIS 135012 (ED CA, Sept. 20, 2013) and Belmont v. Hartley, 2013 U.S. Dist. LEXIS 135008 (ED CA, Sept. 20, 2013), a California federal magistrate judge dismissed, with leave to amend, Muslim inmates' complaint that Muslims could use the prison chapel for prayer only when scheduled by the chaplain, and not at other times only with intermittent custodial coverage.

In Jones v. Washington, 2013 U.S. Dist. LEXIS 135067 (WD WA, Sept. 20, 2013), a Washington federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 135082, Sept. 5, 2013) and dismissed, with leave to amend, a Muslim inmate's complaint of religious discrimination and violation of his free exercise and free speech rights when his extended family visits were suspended after officials discovered he was involved in a "romantic" pen pal relationship with someone other than his wife. He was also told to end the pen pal relationship.

In Thomas v. McDaniel, 2013 U.S. Dist. LEXIS 134830 (D NV, Sept. 19, 2013) a Nevada federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 135090, July 22, 2013) and refused to grant summary judgment to a Muslim inmate who claimed that authorities kept him in administrative segregation without a proper hearing in retaliation for his insisting on participating in Muslim group worship, and that this violated his free exercise and equal protection rights.

In Cebertowicz v. Love, 2013 IL App (5th) 120273-U (IL App., Sept. 24, 2013), an Illinois state appellate court upheld dismissal of a Catholic inmate's free exercise claim, finding that he had not alleged facts suggesting that the denial of a meatless diet on all Fridays and Ash Wednesday substantially burdened his free exercise rights.

In Womble v. Berghuis, 2013 U.S. Dist. LEXIS 135443 (WD MI, Sept. 23, 2013), a Michigan federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 136713, Aug. 21, 2013) and refused to grant summary judgment to defendants in a Buddhist prisoner's complaint that he was wrongly taken off a strict vegan diet after a correctional officer inaccurately reported he had been seen eating eggs.

In Weaver v. Amato, 2013 U.S. Dist. LEXIS 136102 (ND NY, Sept. 24, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 136561, May 31, 2013) and dismissed plaintiff's complaint, stated in general terms, that involuntary protective custody inmates are precluded from practicing religion.

In Johns v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 135239 (WD MI, Sept. 23, 2013), a Michigan federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 136893, May 31, 2013) and upheld the denial of a vegetarian diet to a Nation of Islam inmate who changed his religious preference to Buddhist. The denial was based on the inmate's answers to three questions about Buddhism and a vegetarian diet, as well as on his record of food purchases.

In Smith-Bey v. Dodd, 2013 U.S. Dist. LEXIS 137363 (SD IN, Sept. 25, 2013), an Indiana federal district court dismissed free exercise and RLUIPA claims by a Muslim inmate (a member of the Moorish Science Temple of America) who objected to confiscation of a prayer rug, two bottles of prayer oil and prayer socks, as well as to the requirement that prayer oil be purchased from the prison commissary.

Developments In Religious Accommodation In Employment Lawsuits

The Sacramento Bee reported Friday that an Elk Grove, California car dealership, Maita Chevrolet, has settled a religious accommodation lawsuit brought against it by the EEOC. The suit claimed that Maita insisted on scheduling car salesman Anthony Okon, a Nigerian immigrant and Seventh-day Adventist, for Friday night and Saturday work shifts, and eventually fired him when he continued to take leave on Friday nights and Saturdays. Maita will pay its former employee $158,000, and will revise its personnel policy manual and undertake other training and reporting obligations.

Al.com reported last week that the city of Birmingham, Alabama has agreed to settle a Justice Department lawsuit against it claiming that it discriminated against a former public safety dispatcher on religious grounds.  The former employee,  Renee Gunn, who is an adherent of Messianic Judaism, resigned after the city insisted on scheduling her to work on her Sabbath.  Under the settlement, which must still receive court approval, the city will pay Gunn $80,000 in back wages and damages, and will rehire her with a work schedule that does not require her to work on her Sabbath.

The Laurinburg Exchange reported last week that the EEOC has has filed suit against two corporations that operate a chain of Kentucky Fried Chicken Restaurants in North Carolina and South Carolina for refusing to accommodate the religious beliefs on an employee.  Sheila Silver, a convert several years ago to the Pentecostal faith, was fired by Scottish Food Systems Inc. and Laurinburg KFC Take Home Inc. when she insisted on wearing a skirt instead of the pants required by the company's dress code.

Alabama Police Enlist Christian Pastors To Aid At Crime Scenes

The Atlantic last week reported on a new program instituted by the Montgomery, Alabama police department which places Christian pastors at crime scenes to counsel victims and witnesses, and pray with them. The department's chaplain acknowledges an evangelistic element in the program that is aimed largely at the city's black community. Its aim is to reduce Montgomery's murder rate, but the constitutionality of the program is questionable. Similar programs are apparently already functioning in Dayton, Ohio and Arlington, Texas. [Thanks to Scott Mange for the lead.]

Suit Challenges Kansas' Adoption of National Science Standards

Citizens for Objective Public Education (COPE) on Friday announced that it has filed a federal lawsuit challenging the adoption by the Kansas State Board of Education of the National Academy of Sciences Framework for K-12 Science Education  and the Next Generation Science Standards based on that Framework. The complaint (full text) in COPE v. Kansas State Board of Education, (D KA, filed 9/26/2013) contends that these:

will have the effect of causing Kansas public schools to establish and endorse a non-theistic religious worldview ... in violation of the Establishment, Free Exercise, and Speech Clauses of the First Amendment, and the Equal Protection Clauses of the 14th Amendment....

The F&S take impressionable children, beginning in Kindergarten, into the religious sphere by leading them to ask ultimate religious questions like what is the cause and nature of life and the universe - "where do we come from?"...

Instead of explaining to students that science has not answered these religious questions, the F&S seek to cause them to accept that controversial materialistic/ atheistic answers are valid.

The Huffington Post, reporting on the lawsuit, describes it as a suit by an anti-evolution group challenging a science curriculum that teaches evolution.

Recent Articles of Interest

From SSRN:

• Hassan J. Ndzovu, Is the Inclusion of the Kadhi Courts in the Kenyan Constitution Against the Principle of a Secular State?, (September 18, 2013).
• Iain T. Benson, The Search for Pluralism in the Writings of Said Nursi and John Courtney Murray: Prophetic Pluralism in Islam and Roman Catholicism, (September 19, 2013).
• Olga Litsenberger, German Lutherans and Catholics in Russia: Settling, Population Changes, Peculiarities of Integration and Adaptation, (July 8, 2013).
• Iain T. Benson, Law Deans, Legal Coercion and the Freedoms of Association and Religion in Canada, (The Advocate, Vol. 71, Part 5, pp. 671-675, September 2013).
• Iain T. Benson, Religious Interfaith Work in Canada and South Africa with Particular Focus on the Drafting of the South African Charter of Religious Rights and Freedoms, (HTS Teologiese Studies/Theological Studies, 69(1), July 2013).
• John Obi Ifediora, The Blood Libel Legend: Its Longevity and Popularity, (August 31, 2013).
• B. Jessie Hill, Anatomy of the Reasonable Observer, (79 Brooklyn Law Review (Forthcoming)).
• Adis Duderija, Maqāsid Al Shari Ah, Gender Egalitarian Qur’Ānic Hermeneutics and the Reformation of Muslim Family Law, (in Maqasid Al Shari’ah and Contemporary Muslim Reformist Thought, ed. Adis Duderija, Palgrave 2014, Forthcoming).
• Adis Duderija, Neo-Traditional Salafis in the West: Agents of (Self)-Exclusion, (in Samina Yasmeen, Muslims in the West and Social Exclusion, Ashgate, 2014, Forthcoming).
• Alex Reed, Subsidizing Hate: A Proposal to Reform the Internal Revenue Service's Methodology Test, (Fordham Journal of Corporate and Financial Law, Vol. 17, p. 824, 2012). 

From SmartCILP:

• John Infranca, Institutional Free Exercise and Religious Land Use, 34 Cardozo Law Review 1693-1750 (2013).

In Split Decision, South Carolina High Court Says Trustees' Defamation Suit Against Pastor Can Proceed

In a 3-2 decision in Banks v. St. Matthew Baptist Church, (SC Sup. Ct., Sept. 25, 2013), the South Carolina Supreme Court held that a defamation lawsuit by former trustees of a church against the church's pastor can proceed under the "neutral principles of law" approach without violating the First Amendment.  In the case, the trustees complained that at a congregational meeting, the pastor falsely charged them with mismanagement of funds, failing to insure an apartment building purchased with church funds and placing a mortgage on church property without his knowledge.

Chief Justice Toal and Justice Kittredge dissenting argued:

the Trustees ignore the pertinent facts that the alleged defamation took place during a congregational meeting and that the allegedly defamatory statements directly concerned their continued leadership, both financial and spiritual. Thus, the dispute here involved integral components of ecclesiastical governance.

In Illinois Challenge To Same-Sex Marriage Ban, Court Allows Further Proceedings On Equal Protection and Due Process Challenges

In Darby v. Orr, (IL Cir. Ct., Sept. 27, 2013), an Illinois state trial court gave a substantial victory to proponents of same-sex marriage in the state.  First the court held that the same-sex marriage ban is not facially neutral and that plaintiffs have alleged facts which, if proven at trial, would establish that they belong to a suspect or quasi-suspect class protected by the state constitution's equal protection clause.  It also allowed plaintiffs to move ahead on their due process challenge, holding that "the present case allows the Illinois courts to consider, for the first time, whether the concept of choice as an aspect of the fundamental right to marry ... might apply to same-sex couples seeking to marry." The court however dismissed plaintiffs claims that the same-sex marriage ban amounts to unconstitutional sex discrimination, violates the right to privacy protected by the state constitution and violates the special legislation ban in the state constitution. The Chicago Tribune reports on the decision.

A Kansas School Board Votes To Allow Student-Led Prayer At All Activities

At its Sept. 23 meeting, The Kansas USD 480 School Board (in Liberal Kansas) voted unanimously "to allow student led prayer at all USD 480 activities." (Board minutes). Last Tuesday's High Plains Leader & Times reported on the move:

Several years ago, LHS discontinued prayer at events like football games. Administration voiced concern that, by making the P.A. system available for prayers led by students or community members, the district could be perceived as sanctioning or even promoting traditional Christian prayer in violation of federal law. Student-led prayers then moved to the football field itself, prior to the game. However, no microphone or speaker system allowed spectators to hear such prayers. Monday night's vote will permit students to utilize the P.A. system for prayer before football games and all other special activities in the district.

Board president Delvin Kinser said that the LHS Christian fellowship group, StandOut, would participate in student-led prayer with enthusiasm.

[Thanks to Friendly Atheist blog via Scott Mange for the lead.]

New Jersey Trial Court Says State Equal Protection Guarantee Requires Allowing Same-Sex Marriage; Appeal Planned

In Garden State Equality v. Dow, (NJ Super. Ct., Sept. 27, 2013), a New Jersey State trial court held that after the U.S. Supreme Court's Windsor decision extending federal spousal benefits to same-sex married couples (but not to couples merely in civil unions), the equal protection guaranties of the New Jersey state constitution requires the state to extend the right to marry to same-sex couples. Previously New Jersey only recognized civil unions. The court ordered that its decision not take effect until Oct. 21 in order to give the state time to either effectuate or appeal the ruling. Friday's New Jersey Star-Ledger reports on the decision. According to PolitickerNJ on Friday, a spokesman for New Jersey Governor Chris Christie said that the administration would appeal the ruling to the New Jersey Supreme Court.