Transcript Available For SCOTUS Arguments In Abercrombie & Fitch

The full transcript of this morning's Supreme Court arguments in EEOC v. Abercrombie & Fitch Stores is now available from the Court's website. AP reports on the oral arguments in the Title VII religious accommodation case, saying that the Justices seemed to support prospective employee Samantha Elauf's position. At issue is the kind of notice that is needed to be given to an employer before its obligation to try to accommodate religious exercise is triggered.

SCOTUS Will Hear Oral Arguments Today In Abercrombie & Fitch Religious Accommodation Case

The U.S. Supreme Court this morning will hear oral arguments in EEOC v. Abercrombie & Fitch Stores, Inc. (Docket No. 14-86).  In the case,  the 10th Circuit held that there is a strict notice requirement before an employer is required under Title VII of the 1964 Civil Rights Act to accommodate religious beliefs. Merely wearing  hijab to an employment interview did not give notice that a job applicant wore it for religious purposes or needed religious accommodation because of its conflict with Abercrombie's clothing policy. (See prior posting.)  More than a dozen amicus briefs have been filed in the case. Links to all the briefs, as well as to a preview of the arguments, are available from SCOTUSblog.

European Court Says Bulgaria Violated Religious Rights of Muslims By Inadequate Response To Mosque Demonstration

The European Court of Human Rights in a Chamber Judgment yesterday held that Bulgarian authorites violated Muslim worshipers' right to practice their religion by the inadequate response to a demonstration in front of a mosque in the center of Sofia in 2011.  In the demonstration, leaders, members and supporters of the Bulgarian political party Ataka clashed with Muslim worshippers who had gathered for Friday prayer. In Karaahmed v. Bulgaria, (ECHR, Feb. 24, 2015), the court said:

the outcome of the police’s response that day was that a large number of demonstrators were able to stand within touching distance of Banya Bashi mosque, to shout insults at praying worshippers, to engage in threating and provocative gestures and actions, and ultimately to gain access to the mosque. They enjoyed a virtually unfettered right to protest at the mosque that day, while the applicant and the other worshippers had their prayers entirely disrupted. It is plain, therefore, the police’s actions were confined simply to limiting the violence which broke out that day and that no proper consideration was given to how to strike the appropriate balance in ensuring respect for the effective exercise of the rights of the demonstrators and the applicant and the other worshippers.

Novinite reports on the decision.

Settlement Agreed To In NYC Circumcision Regulation Challenge

The New York Observer reported yesterday that New York Mayor Bill DeBlasio's administration has reached a settlement agreement with the ultra-Orthodox Jewish community in a lawsuit (see prior posting) challenging the New York City Health Department's regulations requiring mohels to obtain written consent from parents before using the oral suction method (metzitzah b’peh) of performing a ritual circumcision. Under the settlement agreement reached after long negotiations with rabbinic authorities, the city will use local health care providers to educate the community about the risks of herpes infection in infants. Jewish leaders will help the city identify the mohel who performed the circumcision on any infant who becomes infected with HSV1.  If genetic testing shows the mohel was the source of the infection, the Jewish community will permanently remove him as a mohel, and he will be subject to financial penalties if he continues to perform circumcisions.  However the list of those removed will not be made public.  This arrangement will lead to a settlement of the pending litigation and repeal of the informed consent requirements.

Report Finds Increased Hostility To Religion In America

Earlier this month, Liberty Institute released the 2014 Edition of its publication Undeniable: The Survey of Hostility to Religion in America. It concludes that there has been a 133% increase in religious hostility attacks in the U.S.in the past three years.  The 393-page report surveys legal challenges in four areas: attacks on religious liberty in the public arena; attacks on religious liberty in the schoolhouse; attacks on religious liberty of churches and ministries; and attacks on religious liberty in the military.

Arkansas Law Barring Cities From Expanding LGBT Protections Becomes Law Without Governor's Signature

AP reports that yesterday, Arkansas Governor Asa Hutchinson allowed SB 202 to become law without his signature. The legislation bars local governments from adopting or enforcing anti-discrimination laws that protect classes not covered by the state civil rights law.  The bill is aimed at preventing cities from expanding their anti-discrimination laws to cover discrimination on the basis of sexual orientation.  The bill's sponsor, Sen. Bart Hester, said: "To think we could have different civil rights laws in every city is not realistic and not conducive to a good business environment."  The bill does not bar local governments from expanding non-discrimination policies applicable only to their own employees.

Settlement Requires Michigan City To Allow "Reason Station" Near "Prayer Sation" In City Hall

Yesterday, a federal district court approved a settlement in a suit brought by an atheist who was refused space for a table in the atrium of Warren, Michigan's city hall for a "reason station,"  even though the city had permitted a local pastor to operate a "prayer station" in the atrium since 2009. (See prior posting.) The court's order (full text) in Marshall v. City of Warren, (ED MI, Feb. 23, 2015) requires the city to allow the Reason Station to operate on terms no less favorable than those granted to the Prayer Station. The city must also pay attorneys' fees of $100,000 to the ACLU of Michigan. The ACLU issued a press release calling the settlement "a complete win for our side and for the First Amendment." The Detroit Free Press had additional background.

Suit Against Gym Alleges Religious Discrimination Against Muslim Athlete

A suit alleging religious discrimination in a place of public accommodation was brought in an Ohio federal district court yesterday against an LA Fitness facility in Cincinnati.  The complaint (full text) in Fall v. LA Fitness, (SD OH, filed 2/23/2015), filed by Mohamed Fall, a 28-year old former college basketball star and a practicing Muslim who regularly works out at LA Fitness, alleges that for over a year, after exercising, Fall "customarily retreats to an empty, obscure corner of the men's locker room, next to an empty coat rack, faces the wall and conducts Salat, or prayer, quietly to himself for approximately 5 to 10 minutes." On January 29, while in the middle of prayer, Fall, an immigrant from Senegal, was surrounded by three LA Fitness employees and told management had decided that he could no longer pray anywhere at the gym.  Fall claims he was singled out because he is a Muslim, saying that he has seen non-Muslims at the gym engage in religious prayer and related activities such as making the sign of the cross. WCPO News reports on the lawsuit.

Australian Court Says Polyamory Is Not "Sexual Orientation" Under Sex Discrimination Act

In Bunning v Centacare, (FCCA, Feb. 11, 2015), an Australian Federal Circuit Court judge dismissed a sexual orientation discrimination complaint filed against a Catholic social service agency by former employee Susan Bunning.  Bunning had worked most recently as the agency's Coordinator of Family Support, but was dismissed after it became known that she led a polyamorous lifestyle. She sued under the Sex Discrimination Act 1984.  The court held that plaintiff has no cause of action because polyamory-- the practice of engaging in multiple sexual relationships with the consent of all the people involved-- is sexual behavior, not sexual orientation. Financial Review reports on the decision.

Recent Articles of Interest

From SSRN:

• Pamela Foohey, When Faith Falls Short: Bankruptcy Decisions of Churches,(February 13, 2015).
• Laura Marie Winocur, Competing Visions of the Modern Secular State in Law and Policy, (February 12, 2015).
• Robert T. Miller, Experience Explained: Review of David Skeel's "True Paradox", (U Iowa Legal Studies Research Paper No. 15-02, Jan. 2015).
• Mattheew P. Cavedon, Mere Ultramontanism, (December 14, 2013).
• Mark Cammack, Adriaan Bedner & Stijn Van Huis, Democracy, Human Rights, and Islamic Family Law in Post-Soeharto Indonesia, (New Middle Eastern Studies, Forthcoming).
• Ronald Turner, Title VII and the Roberts Court's Worldview Supremacy, (65 Labor Law Journal 149 (Fall 2014)).
• Hamed Ghoddusi & Sajjad Khoshroo, Islamic Finance and the Energy Sector,(February 16, 2015).
• Ari Z. Bryen, Martyrdom, Rhetoric, and the Politics of Procedure, (Classical Antiquity, Vol. 33, Issue 2, pp. 243–280 (2014)).

From SmartCILP:

• Zachary R. Calo, Carhart Lecture Series. Christianity, Islam, and Secular Law, 39 Ohio Northern University Law Review 879-900 (2013).
• Michelle A. McKinley, Standing On Shaky Ground: Criminal Jurisdiction and Ecclesiastical Immunity In Seventeenth-Century Lima, 1600-1700, 4 UC Irvine Law Review 141-174 (2014).
• Lena Salaymeh, Every Law Tells A Story: Orthodox Divorce In Jewish and Islamic Legal Histories, 4 UC Irvine Law Review 19-63 (2014).
• Christopher Tomlins, Demonic Ambiguities: Enchantment and Disenchantment in Nat Turner's Virginia, 4 UC Irvine Law Review 175-202 (2014).

Will A Supreme Court Decision Legalizing Same-Sex Marriage Apply To Tribal Governments?

Today's New York Times carries an article titled Among the Navajos, a Renewed Debate About Gay Marriage.  The two largest Indian tribes-- the Navajo Nation and the Cherokee Nation-- ban same sex marriage, though at least ten smaller tribes have legalized same-sex unions.  The national debate on the issue is causing some Navajos to consider repealing a 2005 tribal law--  the Dine Marriage Act-- which prohibits same-sex unions on the Navajo reservation. The Times article quotes an expert as saying that even if the Supreme Court decides that bans on same-sex marriage are unconstitutional, this will not affect tribal bans. That conclusion is based on the principle that tribes were not signatories to the Constitution and are not bound by it. The Times article, however, fails to mention the Indian Civil Rights Act which does bind tribal governments.  25 USC Sec. 1302 provides in part:

No Indian tribe in exercising powers of self-government shall... deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law....

Thus the invalidation of same-sex marriage bans on either 14th Amendment equal protection of due process grounds would appear to demand a similar result under Section 1302.

Recent Prisoner Free Exercise Cases

In Bausman v. California Department of Corrections and Rehabilitation, 2015 U.S. Dist. LEXIS 20213 (ED CA, Feb. 18, 2015), a California federal magistrate judge allowed a Native American inmate to move ahead with his complaint under RLUIPA that a change in regulations prohibiting possession of certain religious artifacts integral to participation in daily Native American cultural, traditional, ceremonial, and spiritual life substantially burdened his religious exercise.

In Blair v. CDCR, 2015 U.S. Dist. LEXIS 20751 (ED CA, Feb. 20, 2015), a California federal magistrate judge dismissed a complaint of a Jewish inmate that his temporary placement with a cellmate who was Muslim violated his free exercise and RLUIPA rights.

Judge Reprimanded For Questioning Defendant Over Religious Head Covering

In In re Ladenburg, (WA Commn. on Judicial Conduct, Feb. 20, 2015), the Washington Commission on Judicial Conduct in a consent order reprimanded municipal court judge David Ladenburg for challenging a criminal defendant wearing a fedora in the courtroom for religious reasons. The facts, as stipulated by the parties, showed that the judge told the defendant who said the hat was worn as part of his Jewish belief that he must bring evidence supporting his decision to wear that particular kind of head covering.  The judge threatened otherwise to have it removed.  In defense of his actions, the judge said he was unfamiliar with wearing of a fedora instead of a yarmulke. In 2006, the same judge had been issued an admonishment by the Commission for requiring a Muslim woman wearing a headscarf for religious reasons to remove it or leave his court room. (See prior posting.) The Tacoma News Tribune reports on yesterday's Commission action.

Saudi Artist Sues Watch Company For Appropriating His Hajj Etching

Luxembourg's i24 News reports today that Saudi artist Ahmed Mater has filed suit in France's Grand Instance Court seeking $1.5 million in damages against the watch company, Omega.  Mater says that Omega used his photogravure "Magnetism (Photograuve) III" without his consent in an ad for the company's new Seamaster Aqua Terra watch.  Mater's etching-- intended to suggest pilgrims on Hajj moving around the Kaaba-- shows a black cubic magnet surrounded by neat steel filings.  Omega says its intent was to advertise the watch's anti-magnetic properties.  Mater's lawyers say Omega has led the public to believe that Mater is mocking religion.

In Second Speech On Terrorism, Obama Again Rejects Idea of War With Islam

For the second time this week (see prior posting), President Obama delivered a major speech (full text) on combating terrorism, with significant attention to the relationship of violent extremism and Islam.  Yesterday, addressing an international Summit on Countering Violent Extremism held at the State Department, the President said in part:

[W]e have to confront the warped ideologies espoused by terrorists like al Qaeda and ISIL, especially their attempt to use Islam to justify their violence.  I discussed this at length yesterday.  These terrorists are desperate for legitimacy.  And all of us have a responsibility to refute the notion that groups like ISIL somehow represent Islam, because that is a falsehood that embraces the terrorist narrative. 

At the same time, we must acknowledge that groups like al Qaeda and ISIL are deliberately targeting their propaganda to Muslim communities, particularly Muslim youth.  And Muslim communities, including scholars and clerics, therefore have a responsibility to push back, not just on twisted interpretations of Islam, but also on the lie that we are somehow engaged in a clash of civilizations; that America and the West are somehow at war with Islam or seek to suppress Muslims; or that we are the cause of every ill in the Middle East....

And finally, we have to ensure that our diverse societies truly welcome and respect people of all faiths and backgrounds, and leaders set the tone on this issue.

Groups like al Qaeda and ISIL peddle the lie that some of our countries are hostile to Muslims.  Meanwhile, we’ve also seen, most recently in Europe, a rise in inexcusable acts of anti-Semitism, or in some cases, anti-Muslim sentiment or anti-immigrant sentiment.  When people spew hatred towards others -- because of their faith or because they’re immigrants -- it feeds into terrorist narratives.  If entire communities feel they can never become a full part of the society in which they reside, it feeds a cycle of fear and resentment and a sense of injustice upon which extremists prey.  And we can’t allow cycles of suspicions to tear at the fabric of our countries....  

 Violent extremists and terrorists thrive when people of different religions or sects pull away from each other and are able to isolate each other and label them as “they” as opposed to “us;” something separate and apart.  So we need to build and bolster bridges of communication and trust....

I’d like to close by speaking very directly to a painful truth that’s part of the challenge that brings us here today.  In some of our countries, including the United States, Muslim communities are still small, relative to the entire population, and as a result, many people in our countries don’t always know personally of somebody who is Muslim.  So the image they get of Muslims or Islam is in the news.  And given the existing news cycle, that can give a very distorted impression.  A lot of the bad, like terrorists who claim to speak for Islam, that’s absorbed by the general population.  Not enough of the good -- the more than 1 billion people around the world who do represent Islam, and are doctors and lawyers and teachers, and neighbors and friends....

The world hears a lot about the terrorists who attacked Charlie Hebdo in Paris, but the world has to also remember the Paris police officer, a Muslim, who died trying to stop them.  The world knows about the attack on the Jews at the kosher supermarket in Paris; we need to recall the worker at that market, a Muslim, who hid Jewish customers and saved their lives.  And when he was asked why he did it, he said, “We are brothers.  It's not a question of Jews or Christians or Muslims.  We're all in the same boat, and we have to help each other to get out of this crisis.”

Obama Sends Ash Wednesday and Lunar New Year Greetings

This past Wednesday, President Obama took time to send holiday greetings to two faith groups.  First he issued a statement (full text) marking Ash Wednesday, saying in part:

Today, Michelle and I join our fellow Christians across the country and around the world in marking Ash Wednesday. Lent is a season of sacrifice and preparation, repentance and renewal. Through reflection on the teachings that guide us, we reaffirm our commitment to God and one another -- and we remember those who are suffering, including those persecuted for their faith.

On the same day, the White House Initiative on Asian Americans and Pacific Islanders released a video message from the President (video and full transcript) sending Lunar New Year greetings, saying in part:

Michelle and I send our warmest wishes to everyone celebrating the Lunar New Year here in America and all around the world. I’ll always remember the parades, fireworks, and gatherings that surrounded the Lunar New Year when I was growing up in Hawaii. And now as President, this celebration is a perfect reminder of the many cultures and faiths that make us who we are as Americans.

The President used his message to again urge immigration reform.

Suit Challenges County Resolution Recognizing Christian Pregnancy Services Organization

The ACLU of Northern California earlier this week announced the filing of a state court lawsuit against the county of Calaveras, California on behalf of several residents and taxpayers who object to a resolution passed by the county Board of Supervisors.  The Resolution (full text) as passed in July 2014 recognizes the local Door of Hope pregnancy center "for serving the women of Calaveras County and helping to save the lives of our most vulnerable children." The complaint (full text) in Lavagetto v. County of Calaveras, (CA Super. Ct., filed 2/13/2015) objects to language in the resolution recognizing Door of Hope, among other things, for "enlighten[ing] and strengthen[ing]the lives of women and young women in Calaveras County by inviting them to test and see for themselves the many blessings that can come from living the teachings of Christ." Plaintiffs contend that the resolution favors one religon over another in violation of provisions in the California constitution which bar the establishment of religion and the expenditure of public funds to aid any religious sect.

D.C. Rabbi Pleads Guilty To Voyeurism Charges

In Washington, D.C. Superior Court yesterday, Rabbi Barry Freundel pleaded guilty to 52 counts of voyeurism.  AP reports that the rabbi, charged with videotaping women in the changing room of the National Capital Mikvah, admitted as part of the plea agreement that his secret recording of women began in 2009, sometimes utilizing three cameras at the same time.  A sentencing hearing is scheduled for May 15.

In Kidnapping Trial, Rabbi Argues Torture To Extract Divorce Document From Husband Complies With Jewish Law

Yesterday in federal district court in Trenton, New Jersey the trial of respected Orthodox Rabbi Mendel Epstein, along with his son and two other rabbis, on conspiracy and kidnapping charges began.  As reported by NJ Advance Media, the defendants are charged with arranging the kidnapping and beating of recalcitrant Orthodox Jewish husbands to force them to give their wives a get-- a Jewish divorce document. Wives or their families paid tens of thousands of dollars for the document. Defense attorneys argued that the rabbis were merely following Jewish law. In his opening statement, Epstein's attorney argued that the Jewish community views a husband who refuses to grant his wife a get as being consumed by evil. He continued, that under Jewish law "force and torture can be used until evil leaves the husband's body and he does what he's supposed to do." (See prior related posting.)

Texas Probate Court Holds Same-Sex Marriage Ban Unconstitutional

While the U.S. 5th Circuit Court of Appeals considers whether to hold Texas' same-sex marriage bans unconstitutional (see prior posting), Jurist reports that a Travis County, Texas Probate Court judge in Estate of Powell, (Travis Co. Prob. Ct., Feb. 17, 2015), rather summarily held that Texas Family Code Sec. 2.401 limiting common law marriages to  heterosexual couples is unconstitutional, as are Sec. 6.204(b) and Texas Constitution Art. I, Sec. 32 that invalidate same-sex marriages.  The decision dismissed challenges by other relatives of the deceased, Stella Marie Powell, to a claim by her same-sex partner that she is entitled to Powell's estate.