11th Circuit: Moorish Property Owner May Replead Constitutional Claims

In Bey v. City of Tampa Code Enforcement, (11th Cir., April 8, 2015), the U.S. 11th Circuit Court of Appeals dismissed, with leave to amend, a complaint alleging free exercise, RLUIPA and due process violations against a Tampa Code enforcement officer who cited Nura Washington Bey for displaying unpermitted signs, building without a permit, and failing to obtain a special use permit to operate a private recreational facility.  At issue was property Bey owned, known as Al Moroc Humanity Park, which was used each Sunday by Bey and her "fellow Moorish nationals" to practice their Islamic faith.  The court held that while Bey might be able to allege facts to support her First Amendment and RLUIPA claims, she had alleged little in her complaint. Instead she relied primarily on her claim that as a Moorish national she is outside the jurisdiction of the magistrate who presided at the Code enforcement hearing, and that she is entirely exempt from local land use regulations by reason of the First Amendment.

Jewish Prison Chaplaincy In Canada Featured

Canadian Jewish News today carries an in-depth cover story on Jewish prison chaplaincy in Canada.  It focuses particularly on the work of Rabbi Zushe Silberstein, head of Chabad Chabanel in Montreal.  Correctional Service Canada says there are 177 inmates in Canadian prisons who identify as Jewish.

Obama and Biden Speak At White House Easter Prayer Breakfast

Both Vice President Joe Biden and President Obama yesterday addressed the annual Easter Prayer Breakfast at the White House (full text of remarks). While Catholic News Service reported at length on his religious remarks, much of the media gave prime billing to President Obama's three apparently off-script sentences:

On Easter, I do reflect on the fact that as a Christian, I am supposed to love.  And I have to say that sometimes when I listen to less than loving expressions by Christians, I get concerned.  But that's a topic for another day. (Laughter and applause.)

 Christian Post covers the event.

5th Circuit Hears Oral Arguments In ACA Non-Profit Contraceptive Mandate Case

The U.S. 5th Circuit Court of Appeals yesterday heard oral arguments (audio recording of full arguments) in East Texas Baptist University v. Burwell.  In the case, a Texas federal district court enjoined the government from enforcing the Affordable Care Act contraceptive coverage mandate against two Baptist universities and a Presbyterian seminary.  The court concluded that under RFRA the contraceptive mandate accommodation calling for objecting religious non-profits to complete a self-certification form imposes a substantial burden on the schools' free exercise rights. (See prior posting.) Federal agencies have made some changes in the manner in which non-profits may opt out subsequent to the district court decision.  Houston Chronicle reports on the oral arguments.

FOIA Lawsuit Will Seek Documents On Religious Organizations Care For Imigrant Minors

The ACLU announced last Friday that it plans to file a Freedom of Information Act lawsuit to obtain documents relating to HHS Administration for Children and Families' contracts with Catholic Charities and other religious organizations for care of refugee and undocumented minors.  ACLU claims that these organizations are restricting refugee and undocumented immigrant teenagers' access to reproductive health services, including contraception and abortion. An ACLU staff attorney said:

We believe deeply in religious freedom. But religious freedom does not include the right to take a government contract that requires providing access to health care, and then refuse to provide a teen who has been raped the health care she needs.

The ACLU added:

Recently, the federal government released proposed regulations requiring federal contractors who care for unaccompanied minors to provide access to contraception, emergency contraception, and abortion if a teen has been raped. In response, the United States Conference of Catholic Bishops, one of the groups that received a government-funded contract to provide care to these teens, said any requirement that they provide information about contraception or abortion, even a referral or the arrangement for such services, would violate their religious freedom.

[Thanks to Will Esser via Religionlaw for the lead.]

Massachusetts Catholic Bishops Issue Letter Opposing Death Penalty For Marathon Bomber

In Boston, as the jury in the trial of Boston Marathon bomber Dzhokhar Tsarnaev is about to begin its deliberations, the Catholic bishops of Massachusetts issued a letter (full text) setting out the Catholic Church's opposition to the death penalty for Tsarnaev:

The Church has taught that the cases in which the execution of the offender is an absolute necessity are “rare, if not practically nonexistent.”.... The defendant in this case has been neutralized and will never again have the ability to cause harm. Because of this, we, the Catholic Bishops of the Commonwealth of Massachusetts, believe that society can do better than the death penalty.

WCVB News reports on the Bishop's letter. The jurors in the case are not sequestered. (Background).  The letter, dated April 7, was in fact released yesterday ahead of the start of jury deliberations this morning. While the religious make-up of the jury does not appear to have been publicly reported, Massachusetts in almost 45% Catholic. (Background).

Dad Awarded Right To Make Medical Decisions Because Mom Objects To Vaccinations

In Archer v. Cassel, 2015 Conn. Super. LEXIS 515 (CT Super. Ct., March 10, 2015), a Connecticut trial court awarded the father of two children final authority to make health care decisions for them, largely because the mother has religious objections to their being vaccinated.

Tax Court Says Bet Din Arbitration Clause In Demand Trust Does Not Destroy Gift Tax Exclusion

In Mikel v. Commissioner, (USTC April 6, 2015), the U.S. Tax Court held that a clause in a demand trust (a so-called Crummey trust)  providing that any disputes about its interpretation "shall be submitted to arbitration before a panel consisting of three persons of the Orthodox Jewish faith" (a beth din) did not prevent distributions under the trust from qualifying for the annual gift tax exclusion.

Under the trust, 60 children and grandchildren of the husband and wife creating the trust had the right to demand a distribution of $24,000 per year. Trustees could also make additional distributions.  The trust provided that any beneficiary who filed an action in a court of law challenging a distribution would lose his or her benefits under the trust.  The IRS had contended that these provisions prevented the beneficiaries from receiving a "present interest in property"-- the requirement for the gift tax exclusion-- because as a practical matter the right to the distributions were not legally enforceable in court. The Tax Court disagreed concluding first that the right to a distribution would be enforceable before a bet din, and secondly that the clause discouraging court actions applies to discretionary distributions by the trustees, not annual demand amounts. BNA Daily Tax Report (subscription required) reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Webb v. Broyles, 2015 U.S. Dist. LEXIS 39755 (WD VA, March 30, 2015), a Virginia federal district court permitted a Buddhist inmate to move ahead with his claim that the food services manager falsely accused him of violating the religious diet agreement in order to save money by getting him suspended from the Common Fare diet.

In Guillory v. Weber, 2015 U.S. Dist. LEXIS 39127 (ND NY, March 27, 2015), a New York federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 39836, March 6, 2015) and dismissed complaints by a Jewish inmate regarding lack of religious services on one day, no meal for breaking Fast of Tammuz, and lack of a microwave to heat meals to eat in the Sukkah and inability to access the Sukkah on certain days.

In Washington v. Chaboty, 2015 U.S. Dist. LEXIS 40245 (SD NY, March 30, 2015), a New York federal district court refused to dismiss an inmate's complaint that his placement in the special housing unit was was unconstitutionally in retaliation for his giving a copy of the Qur'an with attached material to a corrections officer. The court dismissed his complaint about the lack of religious services and classes in SHU.

In Jenkins v. Stutsman County Correction Center Commissioner Chairman, 2015 U.S. Dist. LEXIS 40614 (D ND, March 30, 2015), a North Dakota federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 40612, March 4, 2015) and dismissed a Muslim inmate's complaint about the food furnished to him during Ramadan.

In Sessing v. Beard, 2015 U.S. Dist. LEXIS 40834 (ED CA, March 30, 2015), a California federal magistrate judge recommended dismissing a complaint by an inmate seeking to have authorities construct an outdoor worship area for the exclusive use of adherents of Asatru/Odinism. A shared pagan grounds area already existed.

In Ealy v. Keen, 2015 U.S. Dist. LEXIS 40883 (MD PA, March 31, 2015), a Pennsylvania federal district court dismissed a Muslim inmate's complaints regarding additional Islamic classes, lack of a separate Halal meal plan, Ramadan arrangements, and rules on prayer oil and religious materials.

In Butts v. Martin, 2015 U.S. Dist. LEXIS 40908 (ED TX, March 30, 2015), a Texas federal district court dismissed a Hasidic Jewish inmate's complaint that on one occasion he was told by a corrections officer that he would either have to remove his yarmulke or leave the chow hall.  He left.

In Thompson v. Holm, 2015 U.S. Dist. LEXIS 42028 (ED WI, March 30, 2015), a Wisconsin federal magistrate judge concluded that an allegedly wrongful removal of a Muslim inmate from the Ramadan participation list, which resulted in him missing two Ramadan meal bags, did not substantially burden his religious exercise.

Study of Projected World Religion Population Growth Shows Muslims Will Almost Equal Christians By 2050

The Pew Forum last week released a study titled The Future of World Religions: Population Growth Projections, 2010-2050. The study shows that Muslims are the only major religious group projected to increase at a faster rate than the wold population as a whole.  According to the report:

by 2050 there will be near parity between Muslims (2.8 billion, or 30% of the population) and Christians (2.9 billion, or 31%), possibly for the first time in history.

Buddhists are the only major religious group that is projected to have a decline in absolute numbers by 2050

Recent Articles of Interest

From SSRN:

• Marc O. DeGirolami, Free Exercise by Moonlight, (San Diego Law Review, Forthcoming).
• Twana A. Hassan, A Historical Analysis of the Development of Free Speech Justifications, (March 28, 2015).
• Frank S. Ravitch, Be Careful What You Wish for: Why Hobby Lobby Weakens Religious Freedom, (Brigham Young University Law Review, Forthcoming).
• Robert L. Howse, Joanna Langille & Katie Sykes, Pluralism in Practice: Moral Legislation and the Law of the WTO After Seal Products, (George Washington International Law Review, (2015 Forthcoming)).
• Mark Tushnet, Civil Rights Policy, (April 2, 2015).
• Marc Greendorfer, Brief of Tri Valley Law as Amicus Curiae in Support of Respondents in Same Sex Marriage Cases Nos. 14-556, 14-562, 14-571 and 14-574, (April 2, 2015).
• Scott D. Gerber, Law and Religion in Colonial Connecticut, (55 Am. J. Legal Hist. 205, (April 2015)).
• Christopher McCrudden, Transnational Culture Wars, (I.CON International Journal of Constitutional Law, Forthcoming).
• James M. Oleske, 'State Inaction,' Equal Protection, and Religious Resistance to LGBT Rights, (University of Colorado Law Review, Vol. 87, 2015, Forthcoming).

From SSRN (Non-U.S. Law):

• Michael Ramsden & Luke Marsh, Same Sex Marriage in Hong Kong: The Case for a Constitutional Right, (The International Journal of Human Rights (Volume 19, Issue 1, January 2015, pages 90-103).
• M.B. Hooker, Succession to Muslim Estates in Singapore: Sources of Law and Choice of Law, (Australian Journal of Asian Law, Vol. 15, No. 2, article 5, 2014).
• Rebecca French, What Is Buddhist Law?, (Buffalo Law Review, Forthcoming).
• Haider Ala Hamoudi, Wasfi H. Al-Sharaa & Aqeel Al-Dahhan, The Resolution of Disputes in State and Tribal Law in the South of Iraq: Toward a Cooperative Model of Pluralism, (in Negotiating State and Nonstate Law: The Challenges of Global and Local Legal Pluralism (Michael A. Helfand, ed. Cambridge University Press 2015)).

From SmartCILP and elsewhere:

• Corri Zoli, Emily Schneider & Courtney Schuster, Armed Conflict and Compliance in Muslim States, 1947-2014: Does Conflict Look Different Under International Humanitarian Law?, 40 North Carolina Journal of International Law & Commercial Regulation 679-738 (2015).
• Church & State, April 2015 Issue.

Bakery's Refusal To Place Anti-Gay Messages on Cakes Is Not Religious Discrimination

Scripps Media reported Friday that the Colorado Civil Rights Division has recently ruled in a Letter of Determination finding No Probable Cause that a Denver bakery did not engage in religious discrimination when it refused to bake and decorate two cakes with anti-gay-marriage messages.  William Jack, a Christian, asked the Azucar Bakery to furnish cakes shaped like a Bible decorated with two groomsmen, a cross with red X over it, and with Biblical verses that deal with sin and homosexuality. The bakery owner told Jack that she would bake the cakes, but not decorate them as requested. Instead she would furnish him with a pastry bag and icing so he could decorate it as he wished.  The Division Director's decision concluded that the bakery owner refused to decorate the cakes because Jack had requested "derogatory language and imagery," and not because of Jack's Christian creed. Jack is filing an appeal with the Civil Rights Division. (See prior related posting.)

School Yoga Program Does Not Violate California Establishment Clause

In Sedlock v. Baird, (CA App., April 3, 2015), a California state appellate court held that the yoga program introduced in California's Encinitas Union School District does not violate the Establishment Clause of the California Constitution.  The court concluded:

While the practice of yoga may be religious in some contexts, yoga classes as taught in the District are, as the trial court determined, "devoid of any religious, mystical, or spiritual trappings." 

AP reports on the decision. [Thanks to Bradford Masters and Tom Rutledge for the lead.]

Easter/ Passover Stories From The Weekend

On Friday, the White House released a statement (full text) from the President sending Good Friday and Easter wishes, and indicating that the President will be hosting the annual Easter prayer breakfast on Tuesday.  The statement reads in part:

Michelle and I join our fellow Christians around the world in observing Good Friday and celebrating Easter this weekend. With humility and awe, we give thanks for the extraordinary sacrifice that Jesus made for our salvation. We rejoice in the triumph of the Resurrection. And we renew our commitment to live as He commanded ...

On Saturday, the White House posted a video message from the President sending Passover and Easter wishes.

On Friday, the White House posted a photo of this year's annual White House Seder along with a detailed menu for the evening.

A traditional Passover ritual is the "selling of chametz"-- a symbolic transfer of ownership of food that does not meet Passover standards so an individual will not own leavened foods during the holiday period. JTA reported Friday:

For the past 15 years [the Israeli government] has been symbolically selling all the chametz from state-owned companies, the prison service and Israel’s national emergency supply to Hussein Jabar, an Arab-Israeli resident of Abu Ghosh. It then buys it all back after the holiday is over. The price tag? $5,000.

Obama To Host Annual White House Seder Tonight

Tonight, the first might of Passover, President Obama will continue his annual tradition of holding a Seder for a small group of family and friends at the White House.  Yesterday's Boston Globe recounts the origins of the White House tradition-- a makeshift Seder held in a hotel basement, put together by campaign staff during the 2008 Pennsylvania Democratic primary campaign. Now-Massachusetts State Senator Eric Lesser was one of those staffers.  He and a number other of those former staffers continue to attend each year.  As reported by The Hill, Obama sees the Seder as a way for his daughters to experience the Exodus story.  Over the years, the reading of the Emancipation Proclamation has been added as part of the White House's ceremony.

ADL Releases 2014 Audit of Anti-Semitic Incidents

Earlier this week, the ADL released its 2014 Audit of Anti-Semitic Incidents in the United States. It found that the total number of incidents rose by 21% last year. According to the Report:

In 2014, anti-Semitic incidents were reported in a total of 38 states and the District of Columbia.  Those incidents are categorized in the ADL Audit as follows: Assaults: 36 incidents in 2014, compared with 31 in 2013; Vandalism: 363 incidents in 2014, compared with 315 in 2013; Harassment, threats and events: 513 incidents in 2014, compared with 405 in 2013.

Placing those numbers in perspective, however, the Report said:

Despite the increase in incidents, the total number of anti-Semitic acts still represents one of the lowest totals of anti-Semitic acts reported by ADL since it started keeping records in 1979.  Still, the Audit has also identified new trends in anti-Semitic incidents, including the phenomenon of hacking attacks on community and synagogue websites by overseas hackers, which multiplied in 2014.

Magazine Interviews ADF Head

Yesterday's World Magazine carries an interview with Alan Sears, president and general counsel for Alliance Defending Freedom, a leading conservative Christian legal advocacy group. Among other things, Sears discusses his recruitment of ADF volunteer lawyers and use of the Internet to reach out to donors.

Arkansas Legislature Passes Ten Commandments Monument Bill

The Arkansas legislature on Wednesday gave final passage to SB 939, The Ten Commandments Monument Display Act (full text) which directs the secretary of state to arrange for private groups to place a Ten Commandments monument on the State Capitol grounds. The bill has been sent to Governor Asa Hutchinson for his signature.

The bill begins with a series of findings emphasizing the importance of the Ten Commandments as a foundation of the U.S. and Arkansas legal systems. One of the findings reads:

The Ten Commandments represent a philosophy of government held by many of the founders of this nation and by many Arkansans and other Americans today, that God has ordained civil government and has delegated limited authority to civil government, that God has limited the authority of civil government, and that God has endowed people with certain unalienable rights, including life, liberty, and the pursuit of happiness.

The bill also sets out the specific text of the Ten Commandments that is to appear on the monument. The bill authorizes the Attorney General to defend against any legal challenge to the monument, or to request Liberty Legal Institute to prepare and present a defense.  Northwest Arkansas Democrate Gazette reports on the legislature's action.

Citizens Suit Challenges City's Removal of Cross From Dunes Area

A group of Grand Haven, Michigan residents filed suit on Wednesday in state court seeking to force the city to rescind a resolution it adopted in January to remove a 48-foot tall cross from Dewey Hill-- a critical dune. The complaint (full text) in Citizens of Grand Haven v. City of Grand Haven, (MI Cir. Ct., filed 4/1/2015), contends that the city's action violates the free speech and equal protection clauses of the Michigan Constitution.

According to a Nov. 2014 MLive article:

The cross first was erected on Dewey Hill in December 1964 and now only is raised 10 times a year with sponsorship from Grand Haven's First Reformed Church for Worship on the Waterfront. 

During the Grand Haven Coast Guard Festival, the cross is converted to an anchor.

The most recent series of events was triggered by a letter from Americans United which, under the public forum status of Dewey Hill, asked to put up a series of displays marking Festivus, promoting LBGT pride and marriage equality, promoting atheist rights, and promoting reproductive choice.

This led city council in January to pass a resolution to limit access to Dewey Hill and convert the cross into an anchor. (Jan. 6, 2015 MLive article).

The lawsuit filed this week contends:

Defendant's actions in singling out the Dewey Hill Cross, the target of the anti-religious group, and keeping the Coast Guard Anchor, the non-religious part of the monument, constitutes an action regulating speech in a traditional public free speech forum and discrimination on the sole basis of religion, in violation of the Michigan Constitution and Civil Rights Act.

The Grand Haven Tribune has more on the lawsuit.

Hasidic Jewish Property Owners State Claim Against City For Discriminatory Decision To Condemn Buildings

In Shkedi v. City of Scranton, (MD PA, April 1, 2015),  a Pennsylvania federal district court rejected a motion by the city of Scranton and its housing officials to dismiss a civil rights suit filed against them.  Plaintiffs who are the trustees of two trusts that own apartment buildings allege that the city's decision to condemn their buildings for code violations was motivated in part by the fact that defendants are practicing Hasidic Jews.  In concluding that plaintiffs had adequately stated a substantive due process claim, the court said that if defendants' action was motivated by plaintiffs' religion and ethnicity, this would amount to "conscience-shocking behavior." The court also concluded that plaintiffs had stated procedural due process, equal protection and retaliation claims.