Group Files FOIA Suit Seeking Disclosure of New IRS Church Audit Procedures

Alliance Defending Freedom filed a Freedom of Information Act lawsuit on Thursday seeking IRS documents on changes in  procedures for church tax inquiries or examinations.  The complaint (full text) in Alliance Defending Freedom v. Internal Revenue Service, (D DC, filed 4/9/2015) also asks for all documents that were referred to in a July 2014 press release by Freedom From Religion Foundation. That press release (see prior posting) indicated that FFRF had settled a lawsuit against IRS over non-enforcement of non-profit limits against churches because IRS had now created new procedures for initiating church investigations. One News Now reports on ADF's lawsuit.

3rd Circuit Invalidates Portion of Religious Worker Visa Rules

The U.S. Third Circuit Court of Appeals in Shalom Pentecostal Church v. Acting Secretary U.S. Department of Homeland Security, (3d Cir., April 7, 2015), invalidated a provision in Department of Homeland Security regulations on qualification for an I-360 special immigrant religious worker visa.  The court summarized its decision as follows:

The Immigration and Nationality Act (INA) enables an immigrant to obtain a visa as a “special immigrant religious worker” if the immigrant meets certain statutory criteria, including that he has been “carrying on” religious work for at least the two years preceding the filing of the visa petition.  This case presents the question whether a requirement imposed in the relevant regulation [8 CFR 204.5(m)] that this religious work have been carried on “in lawful immigration status” crosses the line from permissible statutory interpretation by the responsible agency to ultra vires regulation contrary to the clear intent of Congress.....  [T]he District Court here concluded that the regulation is ultra vires because it contradicts the plain language of the INA..... For the reasons set forth below, we agree. We therefore will affirm the District Court’s order as to the invalidity of the regulation but will reverse and remand for further fact-finding on the remaining visa criteria.

Courthouse News Service reports on the decision.

Southern Baptist Convention Urges Prayer Sessions On Morning of Same-Sex Marriage Arguments

The U.S. Supreme Court hears oral arguments in the same-sex marriage cases on April 28.  The Ethics & Religious Liberty Commission of the Southern Baptist Convention in a web posting is urging organizations and churches to set aside time that morning "to appeal to God to preserve marriage in our land."  It sets out a sample prayer guide to use.  It adds:

The command to pray for leaders is an appeal to pray for leaders, who in Paul’s time were avowed enemies of Christ and his church. Still, despite their hostility to the burgeoning Christian movement, Paul says that government is a gift from God meant for our good, and that Christians should pray for government officials’ betterment and their wisdom; that they’d execute justice accurately and indiscriminately. So we must....

The outcome of this decision will shape the landscape of the church’s ministry in the United States for generations to come; and it will have significant consequences on the future of religious liberty.

[Thanks to Center for Inquiry for the lead.] 

White House Supports National Ban on LGBTQ Conversion Therapy

The White House has announced that the Administration supports a national ban on sexual orientation conversion therapy for minors.  In an Official White House Response to a petition on We the People website, senior advisor Valerie Jarrett wrote in part:

When assessing the validity of conversion therapy, or other practices that seek to change an individual’s gender identity or sexual orientation, it is as imperative to seek guidance from certified medical experts. The overwhelming scientific evidence demonstrates that conversion therapy, especially when it is practiced on young people, is neither medically nor ethically appropriate and can cause substantial harm.

As part of our dedication to protecting America’s youth, this Administration supports efforts to ban the use of conversion therapy for minors.

New York Times reporting on Jarrett's response also reported that an “all-gender restroom” has been created in the Eisenhower Executive Office Building to provide an additional option for transgender individuals working on the White House staff who are not comfortable using either the men’s or women’s restrooms.

New Employment Discrimination Suits-- Ballpark Ushers and Firefighters

NBC Washington reported yesterday that three ballpark ushers for the Washington Nationals who lost their jobs have sued alleging religious discrimination against Seventh Day Adventists. Plaintiffs claim in the federal court lawsuit that the team recently changed its work policy and schedule for ushers in a way that precludes them from taking off for religious reasons from Friday evening and Saturday afternoon games. There has also been an increase in home games and concert events at the park. During the 2013 season, the team accommodated plaintiffs' Sabbath observance, but at the end of the season fired them because of their need to miss work on their Sabbath.

Connecticut Law Tribune reports on a recent suit in federal district court in Connecticut by a Jehovah's Witness firefighter who contends that there has been a pattern of harassment against him ever since he refused several years ago for religious reasons to march in a Memorial Day Parade. He also refuses to take part in flag-raising ceremonies at the Hamden fire house.

Ministry Can Proceed On RLUIPA Equal Terms Claim Over Transitional Housing

In Holy Ghost Revival Ministries v. City of Marysville, (WD WA, April 7, 2015), pastors who operate a group "Mack houses"-- low-cost transitional housing facilities for released convicts, many of whom are registered sex offenders-- brought suit in federal district court.  They claim that the city has a policy of discriminating against them because of their religion and that city officials promote citizen complaints about Mack houses.  The court concluded that there was not religious discrimination because the city's objections rest on the fact that the housing caters to registered sexual offenders.  However the court did permit plaintiffs to proceed on one of their RLUIPA claims:

Because the complaint alleges that the Mack Houses, which are religious institutions, were singled out by the City for enforcement of the zoning code, the court concludes that Plaintiffs have adequately alleged treatment on a less than equal basis with secular comparators, such as other group housing institutions.

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.