Fayetteville Voters Approve Controversial Anti-Discrimination Law

In Fayetteville, Arkansas on Tuesday voters approved the city's controversial Uniform Civil Rights Protection Ordinance.  According to the Arkansas Democrat-Gazette, complete unofficial returns show 7,666 votes for and 6,860 against the Ordinance that bars discrimination in employment, public accommodations, real estate, contracts and voting on the basis of sexual orientation and gender identity. Opponents, many of whom object that the religious exemptions in the ordinance are too narrow, have filed suit challenging the legality of the Ordinance. They claim it violates free exercise and free speech rights as well as Arkansas' recently enacted Intrastate Commerce Improvement Act that prohibits counties, municipalities and other political subdivisions from expanding civil rights protections beyond those found in state law. (See prior posting.)

Suit Challenges Kapparot Ceremonies Under California's Unfair Competition Law

In Los Angeles a group of animal rights activists have filed a state court lawsuit seeking to stop public kapparot ceremonies.  The Jewish Journal reports on the lawsuit, filed August 26,  challenging the pre-Yom Kippur ceremony which uses live chickens that are subsequently slaughtered.  Apparently, at least in previous years, in the Pico-Robertson neighborhood kapparot has been promoted with booths set up in parking lots, large banners and barkers in chicken costumes. Some say that the anti-kapparot protests in the Pico-Robertson area of Los Angeles have now driven the practice underground.

The lawsuit contends that the practice violates California's Unfair Competition Law (Bus. & Prof. Code Sec. 17200- 17210). The law's definition of unfair competition includes "any unlawful ... business act or practice."  A suit for an injunction and damages may be brought by "a person who has suffered injury in fact and has lost money or property as a result of the unfair competition."  The complaint, filed on behalf of seven plaintiffs, claims that in transporting, storing, and slaughtering the chickens, and later disposing of their blood and fecal matter, the six synagogues and five individuals named as defendants violate an average of eleven laws. Plaintiffs claim interesting losses to give them standing: expenses for travel to kapparot protests, time lost from work as a result of attending the protests and the cost of printing leaflets. One plaintiff claimed veterinarian bills for two chickens she rescued from one of the synagogues named as a defendant.

Suit Challenging Teaching of Evolution Dismissed

In Smith v. Jefferson County Board of Education, (D WV, Aug. 25, 2015), a West Virginia federal district court dismissed a suit, filed pro se by a historically litigious plaintiff, seeking to have the court outlaw the teaching of evolution in public schools. The complaint filed by plaintiff, a parent and taxpayer, is described by the court:

The three page complaint alleges that the Defendants have “fostered the propagation of religious faith” in West Virginia public schools, by way of “denying the Plaintiff’s accurate scientific mathematical system of genetic variations that proves evolution is a religion.”

National Center for Science Education reports on the decision.

Clergy-Penitent Privilege Does Not Shield Disclosure of Writer of Defamatory Letter

In Jaime Doe v. Catholic Diocese of Rockford, (IL App., Sept. 4, 2015), plaintiff sued seeking the identity of the writer of an allegedly defamatory letter about her son.  The letter, sent to the pastor of the parish, alleged that plaintiff's son engaged in the sexual touching of another minor child.  The appeals court affirmed the trial court's order that the writer of the letter be disclosed.  In doing so, the court concluded that the letter is not covered by the Clergy-Penitent Privilege, saying in part:

The writer was a volunteer for a religious-education program conducted by the parish and had the responsibility of monitoring the children in the program. In our view, at least on the present record, the statements in issue are simply not of the character of a confession or admission for which the writer was seeking spiritual guidance. Rather, they are outlining a potential source of risk for the parish and the children if J. Doe were to repeat such conduct while participating in the educational program offered by the parish. This is fundamentally not a matter of conscience for the writer; rather it is a matter of risk management for the writer as an agent of the parish and a guardian of children. Accordingly, we hold that the clergy-penitent privilege is simply inapplicable.

Medical Examiner Need Not Wait To See If Religious Objection To Autopsy Is Made

In Rugova v. City of New York, (NY App. Div., Sept. 8, 2015), a New York intermediate appellate court held that the trier of fact should determine whether the Medical Examiner's 36-hour delay in informing next of kin that an accident victim's body was available amounted to interference with a family's burial rights (right of sepulcher). However the court held that the Medical Examiner was not liable for conducting an autopsy after the accident even though that was inconsistent with the family's Muslim religious beliefs. The court said in part:

As a matter of statute, the Medical Examiner has extensive authority to perform autopsies within the exercise of professional discretion ... including where, as here, circumstances indicate that the death was accidental....  

Pursuant to statute, compelling public necessity is only required where the Medical Examiner has received an objection on religious grounds from a surviving friend or relative or has reason to believe that an autopsy is contrary to the decedent's religious beliefs.... While plaintiffs obviously could not make such objection, since they had not been informed of decedent's death, it is submitted that the Medical Examiner's office was not obligated to wait and see if an objection would be made before performing the autopsy....

District Judge Lifts Contempt Sanction and Orders Kentucky Clerk Released From Jail

Today as Republican Presidential candidates Mike Huckabee and Ted Cruz prepared to visit Rowan County (KY) Clerk Kim Davis (CNN), federal district judge David Bunning ordered her released from jail.  His order (full text) read in part:

On September 8, 2015, Plaintiffs filed a Status Report at the Court’s behest.  According to the Report, Plaintiffs have obtained marriage licenses from the Rowan CountyClerk’s Office. The Court is therefore satisfied that the Rowan County Clerk’s Office is fulfilling its obligation to issue marriage licenses to all legally eligible couples, consistent with the U.S. Supreme Court’s holding in Obergefell  and this Court’s August 12, 2015 Order. For these reasons, the Court’s prior contempt sanction against Defendant Davis is hereby lifted. 

Accordingly, IT IS ORDERED as follows:

1.Defendant Davis shall be  released  from the custody of the U.S. Marshal forthwith. Defendant Davis shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples. If Defendant Davis should interfere in any way with their issuance, that will be considered a violation of this Order and appropriate sanctions will be considered....

In a footnote to his order, Judge Bunning said:

While the Status Report reflects that Plaintiffs’ marriage licenses have been altered so that “Rowan County” rather than “Kim Davis” appears on the line reserved for the name of the county clerk, Plaintiffs have not alleged that the alterations affect the validity of the licenses. Nor do the alterations impact the Court’s finding that the deputy clerks have complied with the Court’s Order.

Washington Post reports on the court's action.

UPDATE: As Kim Davis was released from jail on Tuesday afternoon, Republican presidential hopeful Mike Huckabee, standing beside her, told the media: "If somebody needs to go to jail, I am willing to go in her place, and I mean that,"(The Hill).

Satanic Temple Asks To Place Baphomet On Arkansas Capitol Grounds

In a press release today, The Satanic Temple announced that it has formally asked the Arkansas’ Capitol Arts and Grounds Commission for permission to place its "Baphomet" monument on the Capitol grounds next to an already-authorized Ten Commandments monument.  The Satanic Temple contends that when Arkansas earlier this year enacted SB 939 authorizing the Ten Commandments monument, it effectively opened the Capitol grounds to private donations and may not engage in viewpoint discrimination in accepting them.It says it will place an inscription on the Baphomet monument reading:

Be it known to all that this statue commemorates the history of law in the United States of America. From the deplorable Satanic Witch Hunts, the cherished doctrines of due process, presumption of innocence and the protection of minorities from the tyranny of mob rule became part of the established foundation of American jurisprudence.

Baphomet was unveiled in a ceremony in Detroit earlier this summer. (See prior posting.) A Hindu group also wants to place a monument on the Arkansas Capitol grounds. (See prior posting.)

Pope Francis Reforms Church's Annulment Process

As reported by CNN and Vatican Radio, Pope Francis today issued two Apostolic  Letters motu proprio (by the Pope's own initiative) introducing major changes in the Church procedures for annulling marriages. One of the letters, Mitis Iudex Dominus Iesus (full text in Latin and Italian) reforms the Code of Canon Law of the Latin Church, while the other, Mitis et misericors Iesus (full text in Latin and Italian) reforms the Code of Canon Law for Oriental Churches. According to CNN, the documents make three major changes in the annulment process:  (1) they eliminate a second review by a cleric before a marriage can be nullified; (2) they give bishops the ability to fast-track and grant the annulments themselves in certain circumstances, for example when spousal abuse or an extramarital affair has occurred; and (3) they provide that the annulment process should be free, except for a nominal fee for administrative costs, and should be completed within 45 days.

Saga of Recalcitrant Rowan County Clerk Continues

Developments over the Labor Day weekend have made same-sex marriage opponent Kim Davis-- the Rowan County, Kentucky Clerk who was remanded to jail on civil contempt charges Thursday for refusing to allow her office to issue marriage licenses-- into a high profile symbol of conservative Christian resistance to the U.S. Supreme Court's same-sex marriage decision. (On details of her jailing, see prior posting.)  As reported by the Washington Post, on Friday morning, Deputy Clerk Brian Mason began issuing marriage licenses without Davis' name appearing on them. The County Attorney had ruled that deputy clerks do not need Davis' approval to issue licenses.  However Davis' attorneys argue that these licenses are void.   Marty Lederman at Balkinization blog on Saturday posted a detailed analysis of Kentucky law on this and related issues.

Meanwhile Davis' attorneys have filed motions seeking to get Davis released from jail. Before Davis was held in contempt, she had already filed an appeal with the 6th Circuit seeking to overturn the preliminary injunction that had been issued ordering her to end her resistance. (See prior posting). On Sunday, her attorneys filed an amended notice of appeal (full text), appealing the contempt citation against her as well as the district court's order clarifying that its injunction required issuance of licenses to all qualified couples, not just the plaintiffs in the lawsuit. A Liberty Counsel press release announcing the filing said in part:

“While most Americans are enjoying the extended holiday weekend with family and friends, Kim Davis sits in isolation for the fourth day in jail,” said Mat Staver, Founder and Chairman of Liberty Counsel. “We are working through the holiday to secure Kim’s freedom”....

In a subsequent press release on Monday announcing a press conference and rally for this afternoon, Davis' attorneys said:

Kim Davis has never sought the spotlight. Although some people have said she is a hero and some accuse her of wanting to be a martyr, neither is true. Kim bristles at the thought. She loves God, loves people, and loves her job. She remains faithful to all three and that is why she is here in jail. She may be a prisoner because of her faith, but Kim is freer than most Americans.

Yesterday, Davis' attorneys also filed a separate emergency motion for an injunction (full text) asking the 6th Circuit Court of Appeals to bar enforcement against her of Kentucky Governor Steve Beshear's memo ordering Clerks to comply with the Supreme Court's same-sex marriage decision, and asking that the court exempt her from being required to authorized same-sex marriages. Marty Lederman has extensive analysis of this motion as well.

Mic reports that conservative politicians are drawing analogies to the civil rights movement.  Iowa Congressman Steve King said that Davis should be considered for the Rosa Parks award, and Republican presidential candidate Mike Huckabee compared the Supreme Court's same-sex marriage decision to the Dred Scott decision.

Catholic Bishops Issue Labor Day Statement

The U.S. Conference of Catholic Bishops this weekend issued its annual Labor Day Statement, saying in part:

The continuing struggles of most families to make ends meet are on display before our eyes, both at home and abroad. This Labor Day, we have a tremendous opportunity to reflect on how dignified work with a living wage is critical to helping our families and our greater society thrive....

This Labor Day, the violation of human dignity is evident in exploited workers, trafficked women and children, and a broken immigration system that fails people and families desperate for decent work and a better life. How do we participate in this wounding of human dignity, through choices about the clothes we wear, food we eat, and things we buy--most of which is unaffordable to the very workers who make it? .... These are difficult questions to ask, yet we must ask them. 

This year's statement gives particular attention to Pope Francis' recent encyclical, Laudato Si’ (see prior posting).  The USCCB website also makes available extensive legislative advocacy statements and background materials on labor and employment.

Catholic Diocese Can Move To Trial In 20-Year Battle To Create A Cemetery

Last week, a New York federal district court came down with another decision in the battle-- waged since 1994-- by the Catholic Diocese of Rockville Centre, New York to develop the Queen of Peace Cemetery in the Long Island village of Old Westbury.  The cemetery, which would be on a vacant 97-acre parcel that was once a horse farm, has already been the subject of extensive state court litigation. At issue in this lawsuit are restrictions imposed by the Village under its Places of Worship (POW) zoning law.  In Roman Catholic Diocese of Rockville Centre, New York v. Incorporated Village of  Old Westbury, (ED NY, Sept. 3, 2015), the court rejected a facial constitutional challenge to the POW law as well as a RLUIPA equal terms claim.  A 2011 federal court decision rejected various other federal and state claims. (See prior posting.), However last week's decision allowed the Diocese to proceed to trial on a RLUIPA substantial burden claim, an as-applied constitutional challenge to the POW law, a First Amendment Free Exercise claim, a retaliation claim and a claim for unlawful search of the cemetery site by a village official. New York Law Journal today has more background on the case.

Recent Articles of Interest

From SSRN:

• Antony Barone Kolenc, Not 'For God and Country': Atheist Military Chaplains and the Free Exercise Clause, (48 U.S.F. L. Rev. 395 (2014)).
• James M. Oleske, Doric Columns Are Not Falling: Wedding Cakes, the Ministerial Exception, and the Public-Private Distinction, (Maryland Law Review, Vol. 75, 2015, Forthcoming).
• Erwin Chemerinsky & Michele Goodwin, Religion Is Not a Basis for Harming Others, (Georgetown Law Journal, 2015/16, Forthcoming).
• Chad G. Marzen & William Woodyard, Catholic Social Teaching, the Right to Immigrate, and the Right to Regulate Borders: A Proposed Solution for Comprehensive Immigration Reform Based Upon Catholic Social Principles, (September 3, 2015).
• Steven J. Heyman, A Struggle for Recognition: the Controversy Over Religious Liberty, Civil Rights, and Same-Sex Marriage, (First Amendment Law Review, Forthcoming).
• Robert A. Kahn, Rethinking the Context of Hate Speech (Book Review: Michael Herz & Peter Molnar, The Content and Context of Hate Speech: Regulation and Responses), (First Amendment Law Review, Forthcoming).
• Isam M. Shihada,The Backlash of 9/11 on Muslims in Mohsin Hamid's The Reluctant Fundamentalist, (International Journal of Humanities and Cultural Studies, Vol. 2, Issue 2 (2015)).
• Angela Riley & Kristen A. Carpenter, Owning Red: A Theory of Indian (Cultural) Appropriation, (Forthcoming Texas Law Review (2016)).

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

• Paul Andrew Gwaza & Yusuph Moses Garba, Promoting Ethnic and Religious Harmony in Nigeria through Fidelity to Human Rights Principles, (August 30, 2015).
• Bernard M. Levinson, 'Better that You Should Not Vow than that You Vow and Not Fulfill': Qoheleth's Use of Textual Allusion and the Transformation of Deuteronomy's Law of Vows, (in Reading Ecclesiastes Intertextually. Edited by Katharine Dell and Will Kynes. Library of Hebrew Bible/Old Testament Studies 587. London: T&T Clark, Pages 28–41, 2014).
• Patrick McKinley Brennan, An Essay on Christian Constitutionalism: Building in the Divine Style, for the Common Good(s), (Rutgers Journal of Law and Religion, Forthcoming).
• Aleksandra Lis & and Tomasz Pietrzykowski, Animals as Objects of Ritual Slaughter: Polish Law after the Battle Over Exceptionless Mandatory Stunning,(August 29, 2015).
• Peter Oliver, Companies and Their Fundamental Rights: A Comparative Perspective, (64 International and Comparative Law Quarterly, pp 661-696, 2015).

From SmartCILP:

• Symposium: From the Magna Carta to the Montgomery March: The Career of Rights in the Anglo-American Legal Tradition. Articles by Winston P. Nagan, Bradley W. Miller, James R. Stoner, Jr., Adam J. MacLeod, Dwight G. Duncan, David VanDrunen and Michael J. DeBoer. 6 Faulkner Law Review 1-196 (2014).
• Symposium: Pursuit of Happiness in Interreligious Perspective. Articles by His Holiness the 14th Dalai Lama, Matthieu Ricard, Ch-Rab Jonathan Sacks, Michael J. Broyde, The Most Rev. Katharine Jefferts Schori, Luke Timothy Johnson, Seyyed Hossein Nasr and Khaled Abou El Fadl; response by Vincent J. Cornell. 29 Journal of Law & Religion 5-123 (2014).

Recent Prisoner Free Exercise Cases

In Brinkman v. Linderman, (9th Cir., Sept. 3, 2015), the 9th Circuit affirmed an Arizona district court's dismissal of complaints by an inmate that he was denied a private worship area and ceremonial foods and was not allowed to use an open flame during certain religious ceremonies.

In Atkins v. Maryland Division of Correction, 2015 U.S. Dist. LEXIS 114932, (D MD, Aug. 24, 2015), a Maryland federal district court permitted an inmate to proceed with his RLUIPA claim for declaratory relief and his free exercise claim against the chaplain for denying him kosher meals for 29 months.

In Twigg v. PrimeCare Medical, Inc., 2015 U.S. Dist. LEXIS 115169 (MD PA, Aug. 31, 2015), a Pennsylvania federal district court dismissed an inmate's claim that inadequate medical treatment violated not just his 8th Amendment rights, but also his free exercise rights when gastrointestinal pain made it impossible for him to attend religious services.

In Clay v. Livingston, 2015 U.S. Dist. LEXIS 115702 (ND CA, Aug. 31, 2015), a California federal magistrate judge dismissed a complaint by a Muslim inmate who wanted lunch each day in addition to the Ramadan menu.  For the first 9 days he was not provided lunch.

In Frazier v. June, 2015 U.S. Dist. LEXIS 116699 (D SC, Sept. 2, 2015), a South Carolina federal district court permitted an inmate to move ahead with his claim that his free exercise rights were infringed when his Bible was confiscated because of a limit on the number of books an inmate may have in his cell.

In Moon v. Samuels, 2015 U.S. Dist. LEXIS 117092 (SD IL, Sept. 2, 2015), an Illinois federal district court permitted a Muslim inmate to move ahead with his complaint that prison officials prohibited Muslim prisoners from engaging in group prayer, while permitting inmates of other faiths to do so.

In Moon v. Walton, 2015 U.S. Dist. LEXIS 117660 (SD IL, Sept. 3, 2015), an Illinois federal district court allowed a Muslim inmate to move ahead with his complaint that prison policy barred Muslim inmates from rolling up or cuffing the legs of their pants as called for by Muslim doctrine.

NY Education Commissioner Grants Religious Exemption From MMR Vaccination Requirement

In Appeal of N.C., (NYSED, Aug. 3, 2015), the New York Commissioner of Education granted a religious exemption from the public school immunization requirement to the son of a woman who had developed religious objections after her son had all of his immunizations except his second dose of the MMR vaccine.  The mother is an immigrant and a member of the Russian Orthodox Church. Her religious objections were formed after a conversation with a friend and research "on a few Bible and Christian blogs."  The Commissioner described petitioner's objections as follows:

Petitioner states that “our fate is in the hands of our Lord, even if He decides that we should have a flu or measles.”  She further states that “mortality is, and should be, in God’s hands” and thus “vaccination intercedes upon God’s rightful realm, as if being in God’s care alone is not assurance enough for us.”  In addition, petitioner states that she objects to vaccinations because they “contain cells of animal origin” which is counter to religious teachings that “blood [is] sacred” and should not be mixed “with foreign blood or any other impure matters.”  Petitioner further states that the “final straw” is that “a number of vaccines contain cells from aborted fetuses” and “abortion is clearly considered a mortal sin and is [an] abhorrent act to any Christian.”

Specifically petitioner alleged that "the MMR vaccine, the only vaccine at issue in this case, does contain human diploid cells that use aborted fetal cell lines."

The Commissioner held:

Based on the record before me, I conclude that the weight of the evidence supports petitioner's contentions that her opposition to the MMR vaccine stems from sincerely held religious beliefs.

New York Post last week reported on the decision.

7th Circuit Again Upholds Contraceptive Mandate Accommodation For Religious Non-Profits

In Grace Schools v. Burwell, (7th Cir., Sept. 4, 2015), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, rejected a RFRA challenge to the Obama administration's accommodation under the Affordable Care Act for religious non-profits that object to furnishing contraceptive coverage under their health insurance policies. The majority, relying to a large extent on the Circuit's recent decisions in Notre Dame and in Wheaton College, held that the accommodation does not impose a substantial burden on the free exercise rights of various Indiana-based Catholic non-profit charitable, educational and health care institutions.  The majority said in part:

The accommodation does not serve as a trigger or a conduit for the provision of contraceptive services.... It is the operation of federal law, not any actions that the plaintiffs must take, that causes the provisions of services that the plaintiffs find morally objectionable. The accommodation has the legal effect of removing from objectors any connection to the provision of contraceptive services. As we noted above, every other circuit court to consider the issue of whether the mandate imposes a substantial burden on religious exercise has come to the same conclusion.

However the majority maintained the district court's injunction in the case for 60 days to give the district court time to consider certain other arguments raised by plaintiffs.

Judge Manion dissented, saying in part:

The HHS accommodation is the long and winding extension cord the government uses to power its contraceptive mandate. It winds through regulations and additions and revisions. The court, through a perfunctory examination, interprets the accommodation’s twisted framework and holds that it frees the religious nonprofits from having to power the mandate themselves and, thus, does not violate the RFRA. The court is wrong: A thorough examination reveals that the accommodation’s tangled mess is hiding the fact that the extension cord gets its power from the nonprofits’ health plans and must be plugged in before it will work. It also exposes the fact that the government is forcing the nonprofits to plug in the accommodation themselves by signing the self‐certification or providing the alternative notice.

Tennessee Judge Says Obergefell Ended State Jurisdiction Over Contested Divorces

A Tennessee Chancery Court Judge, in what can only be described as a fit of judicial pique, last week used a divorce case in which he had substantial doubt about the parties' credibility to launch a verbal attack on the U.S. Supreme Court's same-sex marriage decision and develop a rather far-fetched theory of the decision's impact.  In Bumgardner v. Bumgardner, (TN Chan., Aug. 31, 2015), the court said in part:

With the U.S. Supreme Court having defined what must be recognized as a marriage, it would appear that Tennessee' s judiciary must now await the decision of the U. S. Supreme Court as to what is not a marriage, or better stated, when a marriage is no longer a marriage. The majority' s opinion in Obergefell, regardless of its patronizing and condescending verbiage, is now the law of the land....

Thus, it appears there may now be, at minimum ... concurrent jurisdiction between the state and federal courts with regard to marriage/divorce litigation. Perhaps even more troubling, however, is that there may also now be a new or enhanced field of jurisprudence— federal preemption by " judicial fiat." ...

[R]egardless of the states' traditional regulation of the area of marriage and divorce..., what actually appears to be the intent and ( more importantly) the effect of the Supreme Court ruling is to preempt state courts from addressing marriage/ divorce litigation altogether. ...

The conclusion reached by this Court is that Tennesseans, corporately, have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/ central institutions such as marriage and, thereby, at minimum, contested divorces. Consequently, since only our federal courts are wise enough to address the issues of marriage— and therefore contested divorces— it only follows that this Court' s jurisdiction has been preempted. ...

Although this Court has some vague familiarity with the governmental theories of democracy, republicanism, socialism, communism, fascism, theocracy, and even despotism, implementation of this apparently new "super -federal -judicial" form of benign and benevolent government, termed " krytocracy" by some and " judi-idiocracy" by others, with its iron fist and limp wrist, represents quite a challenge for a state level trial court. In any event, it should be noted that the victory of personal rights and liberty over the intrusion of state government provided by the majority opinion in Obergefell is held by this Court only to have divested subject matter jurisdiction from this Court when a divorce is contested.

Huffington Post reports on the decision.

10th Circuit Denies En Banc Review, Over 5 Dissents, In Contraceptive Mandate Case

As previously reported, in July, without seeking en banc review, a petition for certiorari was filed with the U.S. Supreme Court for review of the 10th Circuit's panel decision upholding application of the Obama Administration's Affordable Care Act accommodation for religious non-profits to Little Sisters of the Poor. Nevertheless, 10th Circuit judges sua sponte called for a vote on whether the panel decision should be reviewed en banc. In Little Sisters of the Poor Home for the Aged v. Burwell, (10th Cir., Sept. 3, 2015), a majority of the judges voted to deny a rehearing, but 5 judges filed a dissent to the denial. Judge Hartz's dissent, joined by Judges Kelly, Tymkovich, Gorsuch and Holmes, calls the 3-judge panel's decision "clearly and gravely wrong." The dissenters say in part:

the panel majority may be saying that it is the court’s prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a “derivative” religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty.

Christian Post reports on the court's decision.

Oregon Judge Creates Legal Defense Fund After Refusal To Perform Same-Sex Marriages

In Marion County, Oregon, Circuit Judge Vance Day, former chairman of the state Republican Party, has apparently decided for religious reasons not to perform same-sex marriage ceremonies.  This has led to inquiries by the Oregon Commission on Judicial Fitness and Disability as to whether Day has violated the Oregon Code of Judicial Conduct or the Oregon Constitution.  The Oregonian reports that yesterday the Oregon Government Ethics Commission voted unanimously to approve Day's request to establish a legal defense fund in connection with these inquiries.

No Damage Remedy Available To Muslims Placed On No-Fly List For Retaliatory Reasons

In Tanvir v. Lynch, (SD NY, Sept. 3, 2015), Muslim plaintiffs sued claiming that when they refused to become FBI informants, partly because doing so would violate their religious beliefs, the government retaliated by placing them on the No-Fly List.  Subsequently they were removed from the list, but continued to pursue claims for damages.  The court held that it will not extend a Bivens  damage remedy to this new context, and that RFRA does not provide for money damages against federal officers in their personal capacities. The Center for Constitutional Rights issued a press release reacting to the decision.

Constable Applicant Can Sue Over Religious and Ideological Questions In Job Interview

In Texas, County Constable is an elected position, but where a sitting Constable resigns more than a year before the next scheduled election county commissioners may appoint a new constable to serve until the next election.  In Lloyd v. Birkman, (WD TX, Sept. 2, 2015), a Texas federal district court in a 106-page opinion held that one of the unsuccessful candidates for appointment as County Constable in Williamson County, Texas could pursue various claims against the county and individual commissioners because of the questions asked during the interview process for the position. According to the court:

During the interviews, the candidates received questions on their positions on abortion and same-sex marriage, their political affiliations, the churches that they attended, and their political ideology.

While dismissing some of plaintiff's claims, the court permitted plaintiff to move ahead with his claim that the County committed an unlawful employment practice under Title VII and Texas Commission on Human Rights Act by refusing to hire him because of his religious association, moral views, and ethical beliefs. The court held that the "elected official" exemption does not apply. The court also permitted plaintiff to move ahead against the county and individual defendants on his First Amendment retaliation, freedom of expression and association claims; his 14th Amendment Equal Protection claims; and Texas Constitutional claims. The court rejected plaintiff's violation of privacy claims.