Proposed Oklahoma Bill Would Eliminate Marriage Licenses

Oklahoma State Representative Todd Russ has introduced a bill into the Oklahoma legislature that would create a unique response to federal decisions requiring the issuance of marriage licenses to same-sex couples.  As reported by KSWO News, his bill would do away with marriage licenses.  Instead, under HB 1125 couples may be married in a religious ceremony, after which the member of the clergy performing the ceremony would file a "certificate of marriage" with the clerk of court.  Individuals who do not want to be married in a religious ceremony could file an "affidavit of common law marriage" with the clerk of court. Under the bill, judges would no longer be able to perform marriage ceremonies. The bill retains current language limiting marriage to opposite-sex couples, even though the 10th Circuit has invalidated that limitation. (See prior posting.)  Rep. Russ sees the bill as restoring marriage "to what it was supposed to be and was originally a holy matrimony and a very solemn and spiritual vow."  Any progress of the bill through the legislature may be followed here.

Suit Seeks To Require Foreign Terrorist Designation For Hindu Nationalist Group

The Hindu reports that Sikhs for Justice filed a declaratory judgment action in a New York federal district court last week seeking to require Secretary of State John Kerry to designate an Indian Hindu nationalist group as a "foreign terrorist organization."  The lawsuit claims that Rashtriya Swayamsevak Sangh (RSS) has targeted Muslim, Sikh and Christian minorities in an attempt to turn India into a homogeneous Hindu nation. Prime Minister Narendra Modi's Bharatiya Janata Party has ties to RSS. Last week a New York federal district court dismissed on immunity grounds a suit brought directly against Modi for his alleged role in Gujarat anti-Muslim rioting in 2002. (See prior posting.)

Civil Rights Complaint With A Twist-- Baker Refuses To Add Anti-Gay Message To Cake

AP today reports on a complaint filed with the Colorado Civil Rights Division against bakery owner Marjorie Silva by a customer who wanted her to create a cake with an anti-gay marriage message on it.  Silva agreed to bake a Bible-shaped cake for customer Bill Jack, but refused his request to put hateful anti-gay words on the cake along with two men holding hands with an X over them. Silva told Jack that she would give him icing and a pastry bag so he could write the words himself.  This did not satisfy Jack, and he filed a complaint alleging that he was discriminated against based on his creed. The complaint comes as Republicans in the Colorado legislature are looking at legislative changes to protect business owners who refuse to provide services for same-sex weddings. [Thanks to Tom Rutledge for the lead.]

Company Settles EEOC Suit; Rejected Rastafarian Applicant Gets $50K In Damages

The EEOC announced Tuesday that Mims Distributing Co., a Colorado-based beer distributor, has agreed to settle an EEOC suit filed against it on behalf of a Rastafarian applicant for employment.  Mims refused to hire Christopher Alston as a delivery driver unless he would cut his hair.  Under a consent decree, Mims will pay $50,000 in damages, adopt a formal religious accommodation policy and conduct annual anti-discrimination training.

Custody Provisions Did Not Violate Father's Free Exercise Rights

In Roderick v. Lynn, (WA App., Jan 20, 2015), a Washington state appeals court rejected a father's contention that provisions of a parenting plan ordered in a child custody suit violated his free exercise rights. The mother was given sole decision-making authority as to the child's religious upbringing, and the father was prohibited from moving with the child to Israel.  The appeals court said that no free exercise problem arises so long as the father is not prohibited from sharing his faith with the child. It added that the trial court's order limiting the father's contact with the child was not an attempt to abridge the father's religious freedom, but was based on the trial court's finding that he had an untreated mental health condition that endangered the child.

FLDS Members Continue To Resist DOL Subpoenas On Religious Grounds

Since 2013, the U.S. Department of Labor has been investigating whether federal child labor and wage and hour laws were violated in the 2012 harvest at the  Southern Utah Pecan Ranch. According to a Salt Lake Tribune report last September, Paragon Contractors was paid to furnish labor for the harvest, and the Labor Department suspects that FLDS Church members-- schoolchildren and their parents-- were deployed to take part in the harvest without pay.  Instead they merely got to keep half of the pecans they harvested. Paragon is owned by Brian Jessop, an FLDS Church leader, and apparently he turned over amounts the company was paid for the harvest to the Church.  In an opinion last September (see prior posting), a Utah federal district court ruled that under RFRA, church member Vergel Steed did not have to respond to a Department of Labor subpoena seeking information about the internal affairs and organization of the Church. Steed claimed that he believes the identity of Church leaders, the Church's organization and its internal affairs are sacred matters and he has vowed not to discuss them.

The Labor Department has also subpoenaed other FLDS Church members.  AP and the Salt Lake Tribune report that yesterday the same Utah federal judge handed down a ruling that may be the first step toward excusing two brothers of former FLDS Church leader Warren Jeffs from responding to subpoenas seeking information about working conditions on the farm as well as FLDS Church structure and leadership.  Judge David Sam ruled that Lyle and Nephi Jeffs have sincere religious beliefs that prevent them from answering questions by outsiders about the FLDS Church's labor practices, but they must answer questions about phone calls allegedly telling children to take off from school to work and telling parents to work without pay. The judge however heard arguments later yesterday on whether the government has a compelling interest in obtaining the Jeffs' testimony beyond this.  All of this came only a day after the ruling by the U.S. Supreme Court in Holt v. Hobbs giving a broad reading to religious liberty protections in federal law. (See prior posting.)

Supreme Court Hears Arguments In Fair Housing Act Disparate-Impact Case

The U.S. Supreme Court heard oral arguments today in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.  At issue in the case is whether disparate-impact claims are cognizable under the Fair Housing Act, or whether there must be a showing of intentional discrimination.  While this case involves claims of racially discriminatory impact, the Court's decision will apply to cases involving religious discrimination as well.  The transcript of full oral arguments is available from the Supreme Court's website. SCOTUSblog's case page contains links to all the briefs in the case as well as to the 5th Circuit's decision below.  SCOTUSblog also reports on today's arguments.

Cert. Denied In Dispute Over Characterization of Communications With Priest

The U.S. Supreme Court yesterday denied certiorari in Roman Catholic Church of the Diocese of Baton Rouge v. Mayeux, (Docket No. 14-220, cert. denied 1/20/2015) (Order List). In the case, the Louisiana Supreme Court held that a trial court could decide whether a communication between a teenager and a priest over the 14-year old's romantic relationship with a parishioner amounted to a confession regardless of the Church's characterization of the communication. (See prior posting.) The Baton Rouge Advocate reports on the denial of review.

Some Thoughts On Today's Supreme Court Decision In Holt v. Hobbs

Today's Supreme Court decision in Holt v. Hobbs (see prior posting) is likely to lead to a dramatic increase in resources that federal district courts must devote to the dozens-- if not hundreds-- of prisoner RLUIPA cases that are filed each year.  Federal courts, under 28 USC Sec. 1915A, are required to conduct an early preliminary screening of prisoner lawsuits in order to dismiss those that have no chance of success.  It has been common for district courts to dismiss cases at this preliminary stage on the ground that the inmate has failed to show a "substantial burden" on his or her religious exercise.  Often courts have reached that conclusion on the basis that, while an inmate was denied the ability to carry out some particular religious ritual or requirement, the inmate had a number of other ways to practice his or her faith.  Today the Supreme Court rejected that approach, saying:

[T]he District Court erred by concluding that the grooming policy did not substantially burden petitioner’s religious exercise because “he had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays.”... In taking this approach, the District Court improperly imported a strand of reasoning from cases involving prisoners’ First Amendment rights. See, e.g., O’Lone v. Estate of Shabazz, 482 U. S. 342, 351–352 (1987); see also Turner v. Safley, 482 U. S. 78, 90 (1987). Under those cases, the availability of alternative means of practicing religion is a relevant consideration, but RLUIPA provides greater protection. RLUIPA’s “substantial burden” inquiry asks whether the government has substantially burdened religious exercise (here, the growing of a 1⁄2-inch beard), not whether the RLUIPA claimant is able to engage in other forms of religious exercise.

So courts will now need to concentrate on the "compelling interest" and "least restrictive means" prongs of RLUIPA in initial screening of complaints.  More cases are likely to survive initial screening when those elements are the focus.  In prison contexts, generally one of two sorts of compelling interests are asserted-- (1) prison security or (2) budgetary concerns in accommodating prisoner religious practices.  In Holt, security and safety were asserted, and the Court conceded that those are compelling interests. However it suggested that budgetary concerns (such as those asserted when inmates seek religious diets) pose a more difficult question, saying:

Congress stated that RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” §2000cc–3(c). See Hobby Lobby.... 

When it comes to evaluating whether the government has shown that its restriction on religious exercise is the least restrictive means of furthering a compelling governmental interest, the Court emphasized that the inquiry must be narrowly focused:

The Department argues that its grooming policy represents the least restrictive means of furthering a “‘broadly formulated interes[t],’” ... namely, the Department’s compelling interest in prison safety and security. But RLUIPA, like RFRA, contemplates a “‘more focused’” inquiry and “‘requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”––the particular claimant whose sincere exercise of religion is being substantially burdened.’”... RLUIPA requires us to “‘scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants’” and “to look to the marginal interest in enforcing” the challenged government action in that particular context....

How far must this individualization go?  Must authorities consider how likely it is that the particular claimant will create a security risk?  Should the evaluation of alternatives depend, for example, on whether the particular inmate seeking to grow a beard has a history of attempting to smuggle contraband? The more individualized the determination must be, the fewer cases that will be able to be disposed of at the preliminary screening stage.

Finally one additional portion of the Court's opinion adds complexity to the question of when a religious exemption from a prison rule must be granted. The Court said:

[T]he District Court went astray when it relied on petitioner’s testimony that not all Muslims believe that men must grow beards. Petitioner’s belief is by no means idiosyncratic....  But even if it were, the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is “not limited to beliefs which are shared by all of the members of a religious sect.”

Those who follow Religion Clause's weekly summary of prisoner free exercise cases know that inmates professing a wide variety of religious beliefs seek religious accommodations relating to grooming, clothing, possession of religious items, worship space, congregate religious services, religious dietary restrictions, and more.  The Supreme Court has now reaffirmed the conclusion of most courts that an inmate may invoke RLUIPA to require accommodation of a totally idiosyncratic belief-- so long as it is sincerely held. Religious visions shared by no one else apparently still qualify.

Supreme Court Unanimously Upholds Muslim Inmate's Right To Grow Half-Inch Beard

Today in Holt v. Hobbs, (Sup. Ct., Jan 20, 2015), the U.S. Supreme Court unanimously held that the Arkansas Department of Corrections policy that prevents a Muslim inmate from growing a one-half inch beard for religious reasons violates the Religious Land Use and Institutionalized Persons Act.  In an opinion by Justice Alito the court held that it is irrelevant for purposes of RLUIPA that an inmate has other means of practicing his religion. While cases invovling prisoners' First Amendment rights invoke that reasoning, RLUIPA provides greater protection.  The court went on to reject the state's contention that its no-beard policy is the least restictive means of furthering a compelling state interest. It found unpersuasive the state's arguments regarding contraband and identification of inmates. The Court added that prison officials still have ample ways to maintain security, saying that "in applying RLUIPA’s statutory standard, courts should not blind themselves to the fact that the analysis is conducted in the prison setting."

Justice Ginsburg filed a short concurring opinion, joined by Justice Sotomayor, emphasizing that here, unlike in the Hobby Lobby case, accommodating petitioner's religious beliefs would not detrimentally affect third parties who do not share his beliefs. Justice Sotomayor filed a separate concurring opinion saying: "I do not understand the Court’s opinion to preclude deferring to prison officials’ reasoning when that deference is due—that is, when prison officials offer a plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them."

Indiana County Fights Creche Suit By Enacting Open Forum Law

The Batesville (IN) Herald-Tribune reports that last week the Franklin County, Indiana Commissioners passed Ordinance 2015-02 to create a public forum on the county courthouse grounds permitting displays, demonstrations, exhibits, rallies and other expressive activities without regard to viewpoint under a neutral permit process.  The action was taken in response to a lawsuit filed against the county last month challenging the constitutionality of a life size Nativity Scene displayed on the courthouse lawn. (See prior posting.)

UPDATE: According to WLWT, on Feb. 10 plaintiffs dropped the lawsuit.

St. Paul-Minneapolis Archdiocese Files For Bankruptcy Reorganization

On Friday, the Catholic Archdiocese of Saint Paul and Minneapolis filed for Chapter 11 Bankruptcy Reorganization. In a letter (full text) announcing the decision, Archbishop John Nienstedt said it "will allow the finite resources of the Archdiocese to be distributed equitably among all victims/ survivors [of clergy sexual abuse].  It will also permit the Archdiocese to provide essential services required to continue its mission within this 12-county district." The Archdiocese has posted the full text of the Voluntary Petition and other legal and financial documents in the case. Reporting on the filing, MPR News points out that it will stop civil trials that were set to begin on Jan. 26.

More Preliminary Details of Pope's September U.S. Visit Emerge

Preliminary details of Pope Francis' itinerary during his September visit to the United States are becoming known.  From a report by CBS/AP on the Pope's news conference yesterday and a report by the Washington Times on details disclosed by Archbishop Bernardito Auza, the Pontiff's likely schedule so far looks like this:

Washington D.C. Sept. 22-24:

• Arrival- evening of  Sept. 22
• Welcoming ceremony at White House- morning of Sept. 23
• Mass at Basilica of the National Shrine of the Immaculate Conception (for bishops, consecrated and religious men and women, seminarians and representatives from humanitarian and Catholic charitable organizations).  At the Mass, the Pope will canonize 17th-century founder of the first Missions in California, Junipero Serra- later on Sept. 23
• Address to Joint Session of Congress- Sept. 23 or 24
• Leave for New York-afternoon of Sept. 24

New York- Sept. 24-26

• Address to United Nations General Assembly (including opening of Post-2015 Sustainable Development Summit, with many heads of state attending)- morning of Sept. 25
• Mass in Madison Square Garden
• Visit to Ground Zero Memorial
• Visit to St. Patrick's Cathedral
• Inter-ethnic meeting
• Leave for Philadelphia- early morning of Sept. 26

Philadelphia (World Meeting of Families)- Sept. 26-27

• Prayer Vigil- Sept. 26
• Visit to a children's hospital or juvenile prison
• Mass- Sept. 27
• Depart for Rome- evening of Sept. 27

Even with this ambitious schedule, there were things that had to be omitted.  The Pope said he would have liked to enter the U.S. through the Mexican border "as a sign of brotehrhood and help to the immigrants." But, he joked: ..."going to Mexico without going to visit the Madonna (of Guadalupe) would be a drama. A war could break out!"

Employee Who Objected To Biometric Scanning As Mark of the Beast Wins $150,000 Verdict

The Clarksburg Exponent Telegram reports that a jury in a West Virginia federal district court last Thursday awarded $150,000 in compensatory damages to a former employee of Consol Energy (the mining operation of Consolidation Coal Co.) in a Title VII suit charging failure to accommodate his Evangelical Christian religious beliefs. Beverly R. Butcher Jr., a laborer at the mine, objected to biometric hand scanning to track time and attendance, believing that it involves the Mark of the Beast forbidden in the Book of Revelation. The company however relied on a letter from the manufacturer of the hand scanner assuring that it does not assign the Mark of the Beast, and suggesting that objecting employees scan their left, instead of their right, hand.  The company refused other accommodations suggested by Butcher, and the EEOC sued on his behalf. (See prior posting.) In addition to the jury's damage award, the judge will still determine back and forward pay. Defendants plan an appeal.

UPDATE: The 4th Circuit affirmed the district court's award of damages in U.S. Equal employment Opportunity Commission v. Consol Energy, Inc., (4th Cir., June 12, 2017).

Today Is Martin Luther King, Jr. Day

Today is Martin Luther King, Jr. Day, celebrating the birthday of the famous civil rights leader. This year is the 50th anniversary of the Selma to Montgomery March and of the resulting 1965 Voting Rights Act.  Dr. King was, of course, a Christian minister as well as a civil right leader.  His 1963 Letter From A Birmingham Jail addressed fellow clergy who criticized his tactics and set out his vision of the role of churches in influencing public policy, saying in part:

I have traveled the length and breadth of Alabama, Mississippi and all the other southern states. On sweltering summer days and crisp autumn mornings I have looked at the South's beautiful churches with their lofty spires pointing heavenward. I have beheld the impressive outlines of her massive religious education buildings. Over and over I have found myself asking: "What kind of people worship here? Who is their God? Where were their voices when the lips of Governor Barnett dripped with words of interposition and nullification? Where were they when Governor Wallace gave a clarion call for defiance and hatred?...

There was a time when the church was very powerful--in the time when the early Christians rejoiced at being deemed worthy to suffer for what they believed. In those days the church was not merely a thermometer that recorded the ideas and principles of popular opinion; it was a thermostat that transformed the mores of society.... By their effort and example they brought an end to such ancient evils as infanticide and gladiatorial contests. Things are different now. So often the contemporary church is a weak, ineffectual voice with an uncertain sound. So often it is an archdefender of the status quo. Far from being disturbed by the presence of the church, the power structure of the average community is consoled by the church's silent--and often even vocal--sanction of things as they are.

Recent Articles of Interest

From SSRN:

• Marie Wicks, Prayer is Prologue: The Impact of Town of Greece on the Constitutionality of Deliberative Public Body Prayer at the Start of School Board Meetings, (January 9, 2015).
• Michael M. Karayanni, Groups in Context: An Ontology of a Muslim Headscarf in a Nazareth Catholic School and a Sephardic Ultra-Orthodox Student in Immanuel, (January 12, 2015).
• P.G. Monateri, Diaspora, the West and the Law. The Birth of Christian Literature Through the Letters of Paul and the End of Diaspora, (January 16, 2015).
• Richard W. Garnett, Chief Justice Rehnquist, Religious Freedom, and the Constitution, (Bradford P. Wilson, ed., The Constitutional Legacy of William H. Rehnquist (West Academic Press, 2015 Forthcoming)).
• Nathan B. Oman, International Legal Experience and the Mormon Theology of the State, 1945-2012, (Iowa Law Review, Vol. 100, 2015).

From SSRN (Islamic Law and Muslim Society):

• Rebecca Gould, Ijtihād Against Madhhab: Legal Hybridity and the Meanings of Modernity in Early Modern Daghestan, (Comparative Studies in Society and History 57(1): 35-66 (2015)).
• Karen Busby & Sara Mahboob, Influences on Young Muslim Women in Winnipeg: Preliminary Report on Key Informant Interviews, (December 9, 2014).
• Mohamed A. Arafa, Whither Egypt? Against Religious Fascism and Legal Authoritarianism: Pure Revolution, Popular Coup, or a Military Coup D’État?, (Indiana International & Comparative Law Review, Vol. 24, No. 4, 2014).
• Sharifah Zubaidah Abdul Kader, The Legal Framework of Waqf in Malaysia,(January 9, 2015).
• Ujala Akram, Freedom of Speech, Freedom of Religion And Islam, (European Journal of Law Reform 2014 (6) 2).
• Armaram Shelke, Revisiting ‘The Muslim Women (Protection of Rights on Divorce) Act, 1986’ in the Light of its Impact Over Legal and Jurisprudential Principles, (Symbiosis Contemporary Law Journal (SCLJ), 2013, Volume-II, Number 1).
• Farinaz Zamani & Paula Gerber, Burqa: Human Right or Human Wrong?, ((2014) 39(4) Alternative Law Journal 231).
• Ahmed E. Souaiaia, Theories and Practices of Islamic Finance and Exchange Laws: Poverty of Interest, (International Journal of Business and Social Science, Vol. 5, No. 12; November 2014).
• Mayada Serageldin, On the Demand to Incorporate Shari'a Law into UK Law,(June 16, 2013).

From SmartCILP and elsewhere:

• F. Russell Hittinger, Natural Law and Public Discourse: The Legacies of Joseph Ratzinger, [LEXIS link] [Video of lecture], 60 Loyola Law Review 241-271 (2014).
• Peter T. Leeson, Vermin Trials, 56 Journal of Law & Economics 811-836 (2013).
• Symposium, Do the Religious Beliefs of Supreme Court Justices Influence Their Decisions?, Moment, Jan.-Feb. 2015.
• USCIRF Factsheet, Religious Freedom and Nigeria’s 2015 Elections, (Jan. 2015).

Welcome To Law and Religion Australia

Join me in welcoming Law and Religion Australia blog to the Religion Clause sidebar. Law and Religion Australia entered the blogosphere on January 1. It is authored by Neil Foster, Associate Professor of Law at the University of Newcastle, who also describes himself as an Evangelical Christian.  The new entry is particularly welcome as several blogs in area of law and religon have gone dormant in recent months.  I have removed from the sidebar those that have no posts for the last 6 months. A few others are coming close to that period of dormancy. So, welcome aboard.

Recent Prisoner Free Exercise Cases

In Jones v. Foster, 2015 U.S. Dist. LEXIS 3289 (D NV, Jan. 12, 2015), a Nevada federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 180081, Dec. 23, 2014) and denied a preliminary injunction to a Muslim inmate who complained that he was receiving the Common Fare Meal instead of a separate halal or kosher diet.

In Thierry v. Maricopa County Sheriff's Office, 2015 U.S. Dist. LEXIS 3726 (D AZ, Jan. 13, 2015), an Arizona federal district court dismissed with leave to amend a complaint by a Jehovah's Witness inmate seeking a New World Holy Scriptures Bible and complaining that there are no Jehovah's Witness bible studies or meetings, and that only six inmates per pod are permitted to attend church.

In Williams v. Cox, 2015 U.S. Dist. LEXIS 4621 (SD GA, Jan. 13, 2015), a Georgia federal magistrate judge allowed an inmate to move ahead with his claim that he was denied a requested work proscription in observance of the Feast of Shavout.

Illinois Bible Colleges Sue Over Rules On Granting Degrees

AP reports that a lawsuit was filed in Illinois federal district court yesterday by the Illinois Bible Colleges Association challenging Illinois Board of Higher Education rules that prevent Bible colleges from awarding full-fledged "degrees" to their graduates.  They can only award "diplomas" or "certificates" since the religious schools do not offer full collegiate curriculums. The schools say that the state is violating their free exercise and speech rights, as well as ignoring the Establishment Clause, by imposing the regulations on them.

Newest Charlie Hebdo Cover Generates Demonstrations-- Some Violent

Voice of America reports that the newest issue of Charlie Hebdo depicting a weeping Muhammad on the cover in  response to the Paris terrorist attacks generated new demonstrations yesterday in much of Muslim Asia, Africa and the Middle East.  The most violent of the demonstrations was in Niger where  four people were killed and demonstrators set fire to a French cultural center and Christian churches, and attacked Christian shops. (Daily Mail reports five were killed.) Violent demonstrations also occurred in Pakistan, while peaceful demonstrations took place in many other countries.  Islamic law prohibits physical representations of the Prophet Muhammad and other prophets as well. (See prior related posting.)

Meanwhile, as reported in Sunday's The Independent, British Prime Minister David Cameron has criticized remarks made made by Pope Francis at a press conference on Thursday (full text of Pope's press conference).  The Pope said that people who make fun of, or make others' religion into toys, provoke and may find that "a punch awaits" them.