Recent Articles of Interest

From SSRN:

• Amélie Barras & Dia Dabby, Only Skin Deep? Revising the Secular Narrative Through Circumcision, (Heather Shipley (ed.), Globalized Religion and Sexual Identity: Contexts, Contestations, Voices (Brill Academic Publishing, 2014), 86-106).
• Ifzal Mehmood, Siddiq Ali Chishti & Muhammad Hassan, Right of Women to Divorce: Adjudication of Redemption (Khul‘) in Islamic Law and Pakistani Law, a Critical Analysis of the Orthodox Islamic Scholars and Recommendations of Pakistani Courts on the Basis of Legal Opinion (Ijtihad), (Australian Journal of Basic and Applied Sciences, 2015).
• Kathryn Chan, The Advancement of Religion as a Charitable Purpose in an Age of Religious Neutrality, (September 12, 2015).
• Lynne Marie Kohm, The Unspoken Consequences of Obergefell: Calling Convictional Christian Scholars, (September 15, 2015).
• Steve Sanders, RFRAs and Reasonableness, (Indiana Law Journal, Forthcoming).
• Kellen R. Funk, Shall These Bones Live? Property, Pluralism, and the Constitution of Evangelical Reform, (Law and Social Inquiry, Forthcoming).
• Kari E. Hong, Obergefell's Sword: The Liberal State Interest in Marriage, (University of Illinois Law Review, Forthcoming).

From SmartCILP:

• Sonu Bedi, The Horizontal Effect of a Right to Non-Discrimination in Employment: Religious Autonomy Under the U.S. Constiution and the Constitution of South Africa, 95 Boston University Law Review 1181-1204 (2015).
• Robin Fretwell Wilson, Bargaining for Civil Rights: Lessons From Mrs. Murphy for Same-Sex Marriage and LGBT Rights, 95 Boston University Law Review 951-993 (2015).
• Michelle Kundmueller, The Devil Is In All the Details (Not Just In Georgia), [LEXIS link], 13 First Amendment Law Review 221-261 (2014).

Church Denied Injunction Against Noise From Downtown Festival

A Nevada federal district court last week refused to grant a preliminary injunction to a downtown Las Vegas church that fears noise and road closings from the annual Life Is Beautiful festival will interfere with its ability to hold its regular weekend services.  The festival is scheduled for this coming weekend.  While the parties worked out some compromises, the festival would not agree to cancel concerts on two stages near the church on Saturday and Sunday nights. The church refused suggestions to move its services elsewhere.  In Amistad Christiana Church v. Life Is Beautiful, LLC, (D NV, Sept. 18, 2015), the court rejected the argument that the grant of the special use permit to the festival violates the church's free exercise rights. The permit does not selectively burden the church.  The court relied heavily on the U.S. Supreme Court's statement in its 1988 Lyng case that: "The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens." The court also rejected the church's private nuisance claim.

Paper Profiles Mat Staver and His Organzation Liberty Counsel

The Orlando Sentinel this weekend carries a lengthy profile of Mat Staver and his and his Christian conservative legal organization, Liberty Counsel.  Staver has recently been in the news because of his high profile representation or Rowan County, Kentucky Clerk Kim Davis who refuses to issue marriage licenses to same-sex couples.  Here is an excerpt from the article:

The maelstrom that formed earlier this month around Davis — an Apostolic Christian who said she was acting on her faith — involves factions Staver knows well. Liberty Counsel, a Maitland-based legal organization he founded, has spent decades representing the conservative vanguard in debates over abortion, gay marriage and religion's place in the public sphere.

In the process, the nonprofit has ballooned from a tiny venture collecting less than $200,000 in yearly donations to a multipronged organization that hauled in more than $4 million in the 2013 tax year, employs 10 staff attorneys, runs an outreach to Israel and even released its own feature film last year.

Presidential Hopeful Ben Carson Says Islam Is Not Consistent With U.S. Constitution

In an interview today on Meet the Press (video excerpt), Dr. Ben Carson-- currently one of the leading contenders (latest CNN poll) for the Republican Presidential nomination-- asserted that Islam is inconsistent with the U.S. Constitution. Politico reports on Carson's responses to a series of questions from moderator Chuck Todd triggered by Donald Trump's silence last week on an audience member's assertions about Islam and President Obama:

Asked whether his faith or the faith of a president should matter, Carson said, "It depends on what that faith is."

"If it's inconsistent with the values and principles of America, then of course it should matter. But if it fits within the realm of America and consistent with the constitution, no problem," he explained, according to a transcript.

Todd then asked Carson, whose rise in the polls has been powered in large part by Christian conservatives, if he believed that "Islam is consistent with the Constitution."

"No, I don't, I do not," he responded, adding, "I would not advocate that we put a Muslim in charge of this nation. I absolutely would not agree with that."

Carson said he would not necessarily have the same view about voting for a Muslim for Congress.

Recent Prisoner Free Exercise Cases

In Finley v. Nevada ex rel. Nevada Department of Corrections, 2015 U.S. Dist. LEXIS 122165 (D NV, Sept. 14, 2015), a Nevada federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 122167, (May 27, 2015), and dismissed complaints by African American Hebrew Israelite inmates that they were switched from the pre-packaged kosher meal program to the kosher common fare diet.

In Cole v. Danberg, 2015 U.S. Dist. LEXIS 122373 (D DE, Sept. 15, 2015) a Delaware federal district court dismissed a Muslim inmate's objections to a ban on charitable fundraising and institutional accounts; his claim that Muslim inmates are prevented from attending Friday services at the proper time and are not given equal time as other religious groups to conduct services; and the failure to furnish a Muslim inmate clerk and a typewriter. However the court permitted plaintiff to move ahead with has complaint that congregational prayer was banned and a Halal diet was not available.

In Walker v. Scott, 2015 U.S. Dist. LEXIS 122467 (CD IL, Sept. 15, 2015), an Illinois federal district court allowed a civilly committed Muslim inmate to move to trial on his complaint that he was denied a Halal or kosher diet and required to choose either the standard or vegetarian diet.

In Ellis v. Avery Mitchell Correctional, 2015 U.S. Dist. LEXIS 122679 (WD NC, Sept. 15, 2015), a North Carolina federal district court gave plaintiff inmate 20 days to submit evidence that he exhausted administrative remedies in seeking a vegan diet for religious reasons.

In Watkins v. Jones, 2015 U.S. Dist. LEXIS 123648 (ND FL, Sept. 15, 2015), a Florida federal district court adopted in part a magistrate's recommendations (2015 U.S. Dist. LEXIS 123647, Aug. 28, 2015) in a suit by a Muslim inmate and ordered prison officials to make kosher or other religiously acceptable meals available to plaintiff. The court dismissed as moot plaintiff's objection to prior rules barring his quarter-inch beard and dismissed his complaint that there were not separate Sunni Muslim services.

In Munic v. Langan, 2015 U.S. Dist. LEXIS 124662 (MD PA, Sept. 18, 2015), a Pennsylvania federal district court permitted a Jewish inmate to move ahead with is damage claims for denial of kosher meals, denial of visits with his rabbi, and denial of drug and alcohol treatment because of his religious beliefs.

In Damon v. Masters, 2015 U.S. Dist. LEXIS 124754 (SD WV, Sept. 18, 2015), a West Virginia federal district court adopted a magistrate's recommendations and dismissed a complaint by a Nation of Islam inmate that his free exercise rights were infringed when kidney beans were substituted for navy beans at a religious ceremonial meal. UPDATE: The magistrate's recommendation is at  2015 U.S. Dist. LEXIS 125757 (Aug. 25, 2015).

In Harvey v. Segura, 2015 U.S. Dist. LEXIS 124998 (D CO, Sept. 17, 2015), a Muslim inmate complained that authorities confiscated his only kufi, while prison officials contended that they took a second kufi which he was not entitled to keep under prison regulations.  A Colorado federal district court, adopting a magistrate's recommendation, dismissed the suit, but ordered officials to conduct a search of plaintiff's personal property. If he has no kufi, one must be furnished to him. If he does have one, this is to be reported to the court so it can consider sanctions for frivolous litigation.

Proposed Legislation Would Exempt Christian Scientists From ACA Individual Mandate

On Thursday, the House Ways and Means Committee voted (legislative history)  to forward on to the full House of Representatives H.R. 2061, the Equitable Access to Care and Health ("EACH") Act (full text). The proposed bill would extend the current religious conscience exemption in the Affordable Care Act that applies to Amish and Old Order Mennonites to also include Christian Scientists. (Background). The bipartisan bill currently has 170 co-sponsors in the House.  An identical Senate Bill (S. 352) has 30 co-sponsors.  The bill is still in committee in the Senate.

Top Massachusetts Court Hears Arguments On Whether Religiously-Motivated Corporal Punishment Disqualifies Foster Parents

Last week (Sept. 10), the Massachusetts Supreme Judicial Court heard oral arguments (video of full arguments) in Magazu v. Department of Children and Families (docket and links to briefs). As summarized by the Court at issue is:

Whether it was proper for the Department of Children and Families to deny the plaintiffs' request to become foster parents on the basis of the parents' religiously motivated use of corporal punishment on their biological children.

Wall of Separation blog discusses the case.

Pope Arrives In U.S. Tuesday; White House Guest List Already Raises Controversy

Pope Francis will arrive in the United States on Tuesday afternoon. Here is his official schedule. One event already creating controversy is the reception for the Pope on the South Lawn of the White House on Wednesday morning before his personal meeting with the President. According to Religion News Service today, while it is expected that nearly 15,000 people will attend the reception, conservative Catholics and at least one Vatican official are upset at invitations that have been extended to "a number of gay Catholics and LGBT advocates, an openly gay Episcopal bishop, and to a nun who is a prominent social justice activist." Other officials in the Vatican however apparently have no problem with the guest list.

6th Circuit Denies Kim Davis Stay of Injunction Pending Appeal

Yesterday in Miller v. Davis, (6th Cir., Sept. 17, 2015), the U.S. 6th Circuit Court of Appeals denied a motion by Rowan County, Kentucky Clerk Kim Davis to stay the preliminary injunction against her, pending appeal. The district court had enjoined Davis from refusing to issue marriage licenses to same-sex couples.  The appeals court said that Davis had not sought a stay from the district court, as required by Federal Rules, before asking the Court of Appeals for a stay.  Davis argued that it would have been useless to go to the district court first.

UPDATE: Marty Lederman at Balkinization blog (9/19) has a lengthy discussion of whether Kim Davis or her office is in violation of the federal district court's injunction in the implementation of the issuance by a deputy clerk of marriage licences with modified language.

8th Circuit Creates Circuit Split On ACA Contraceptive Mandate Accommodation For Religious Non-Profits

Disagreeing with the decisions of several other Circuit Courts of Appeal, yesterday the 8th Circuit held that the Obama administration's contraceptive coverage accommodation for religious non-profits violates RFRA.  In Sharpe Holdings, Inc. v. U.S. Department of Health and Human Services, (8th Cir., Sept. 17, 2015), the court held the requirement that CNS International Ministries and Heartland Christian College complete notification forms to opt out of providing coverage imposes a substantial burden on their exercise of religion:

Even if the ACA requires that insurance issuers and group health plans include contraceptive coverage regardless of whether CNS and HCC self-certify, it also compels CNS and HCC to act in a manner that they sincerely believe would make them complicit in a grave moral wrong as the price of avoiding a ruinous financial penalty.... [I]f one sincerely believes that completing Form 700 or HHS Notice will result in conscience-violating consequences, what some might consider an otherwise neutral act is a burden too heavy to bear.... Religious beliefs need not be “acceptable, logical, consistent, or comprehensible to others” to deserve protection.

The court went on to hold that even if the government has a compelling interest here, it has not used the least restrictive means to achieve its goals. Those less restrictive means include requiring the government to identify the third party administrator who will be responsible for furnishing coverage; having the government directly furnish contraceptive coverage to women whose employers object to doing so; or making contraceptive coverage available through insurance exchanges.

In a second opinion issued yesterday, Dordt College v. Burwell, the 8th Circuit applied its Sharpe Holdings precedent to a similar challenge by two religiously affiliated colleges.

In a press release on the decision, Becket Fund says that the split in Circuits created by yesterday's opinions greatly increases the likelihood that the Supreme Court will grant review in one or more cases raising the issue.  Cert petitions have already been filed in seven other cases in which circuit courts upheld the accommodation rules.

Probate Judge Asks Alabama Supreme Court To Protect His Refusal To Issue Same-Sex Marriage Licences

As reported by AL.com, on Wednesday Alabama Probate Judge Nick Williams filed an "Emergency Petition for Declaratory Judgment and/or Protective Order In Light of Jailing of Kentucky Clerk Kim Davis" (full text of petition) and a Memorandum In Support of the motion (full text). Williams objects on religious grounds to issuing marriage licenses to same-sex couples. The petition begins:

The jailing of Kentucky Clerk Kimberly B. Davis puts at immediate risk the liberty interest of all faithful and religiously sincere public officials in Alabama whose office has responsibility for making decisions as to whether to give sanction and honor to homosexual relationships to include the issuance of a license to engage in sodomy.  These officers need this Court's declaration that their sincerely held religious beliefs do not disqualify them from holding their office.

Last March, the Alabama Supreme Court issued a writ of mandamus ordering Probate Court judges around the state to discontinue the issuance of marriage licenses to same-sex couples, (See prior posting.)  Judge Williams emergency motion was technically filed as a motion in that case, captioned in the motion as Ex parte State of Alabama ex rel Alabama Policy Institute v. King (Case No. 1140460). .

Remaining Challenges To California's Ban On Reparative Therapy For Minors Dismissed

In 2013, the 9th Circuit rejected a facial free speech challenge by mental health providers to California's ban on engaging in sexual orientation change efforts with patients under 18. It also rejected a parental rights claim.  (See prior posting.) Now in Pickup v. Brown, (ED CA, Sept. 15, 2015), a California federal district court dismissed remaining challenges to the statute.  Finding the law is neutral and generally applicable, the court dismissed a facial Free Exercise challenge. The court also rejected, with leave to file an amended complaint, plaintiffs' "as applied" free speech challenge.

Court Says Lutheran Synod Dispute Panel's Decision Was Only Advisory

In Hillenbrand v. Christ Lutheran Church of Birch Run, (MI App., Sept. 15, 2015), a Lutheran pastor who was fired by his congregation filed suit after the Lutheran Church- Missouri Synod (LCMS) Dispute Resolution Panel concluded that the decision to terminate the pastor should be revised, and he should be paid his salary and benefits until he takes another position. The court held that LCMS is congregational and not hierarchical, and that the Dispute Resolution Panel's decision was merely advisory, even if the congregation wrongfully attempted to withdraw from the Synod in order to avoid the dispute resolution process.  The court added:

plaintiff is asking this Court to do exactly what the United States Supreme Court [in Hosanna-Tabor] said courts should not, i.e., impose an unwanted minister on a church.

Recent Articles of Interest

From SSRN:

• Deepa Das Acevedo, Divine Sovereignty, Indian Property Law, and the Dispute Over the Padmanabhaswamy Temple, (Modern Asian Studies, 2016).
• Giancarlo Anello, The Islamic Religion in the 'Architecture' of the 2014 Egyptian Constitution, ( Diritto & Questioni pubbliche, Forthcoming (2015)).
• Daniel Augenstein, Freedom of Religion and the Politics of the Liberal Public-Private Divide, (44(1) Netherlands Journal of Legal Philosophy (2015) 8-23).
• J. Patrick Dobel, Ethics: Holy Evil and Theocracy, (Encyclopedia of Public Administration and Public Policy, Third Edition 2015 by Taylor & Francis).
• Frederick Mark Gedicks, 'Substantial' Burdens, (BYU Law Research Paper No. 15‐18, Sept. 2015).
• Eleni Polymenopoulou, A Thousand Ways to Kiss the Earth: Artistic Freedom, Cultural Heritage and Islamic Extremism, (Rutgers Journal of Law and Religion, Volume 17, Fall 2015).
• John W. Ragsdale, Sacred in the City: The Huron Indian Cemetery and the Preservation Laws, (August 20, 2015).
• Nancy J. Knauer, Religious Exemptions, Marriage Equality, and the Establishment of Religion, (University of Missouri-Kansas City Law Review, Vol. 83, No. 1, 2015 Forthcoming).
• Peter Nicolas, Fundamental Rights in a Post-Obergefell World, (Yale Journal of Law & Feminism, Forthcoming.
• Burlette Carter, Brief of Amici Curiae Professor W. Burlette Carter in Support of Neither Party: Obergefell v. Hodges; Deboer v. Snyder; Tango v. Haslam; Bourke v. Beshear,  (GWU Law School Public Law Research Paper No. 2015-32).

From SmartCILP:

• Neil S. Siegel & Reva B. Siegel, Compelling Interests and Contraception, 47 Connecticut Law Review 1025-1043 (2015).

Note also that the various publications listed under "Journals" in the Religion Clause sidebar continue to publish regularly.

IRS Requires Speedier Responses From Applicants for Non-Profit Status

Last week the Internal Revenue Service issued a Memorandum For Exempt Organization Determination Employees (Sept. 8, 2015) giving organizations that apply for tax exempt status less time to submit additional information requested by the IRS. Under the new procedures if an organization does not provide the information by the due date, the case will be closed and fees will not be refunded.  A manager-approved extension of up to 14 days can be granted.  Previously an applicant could get a standard 14 day extension and then its file was held for an additional 90 days before it was closed.

Recent Prisoner Free Exercise Cases

In Ladner v. Hull, 2015 U.S. Dist. LEXIS 118269 (ED VA, Sept. 3, 2015), a Virginia federal district court dismissed a Born-Again Christian inmate's complaint that there were not church services or Bible study sessions available to him. It found that a faith representative was available, and that plaintiff could file requests for other religious needs.

In Cooper v. Sowers, 2015 U.S. Dist. LEXIS 118181 (D MD, Sept. 4, 2015), a Maryland federal district court dismissed a Catholic inmate's complaint that he was not provided a meatless diet on Ash Wednesday and on Fridays during Lent. Prison policy provides no special meal adjustments for those days and leaves it up to each inmate to decide what food to abstain from.

In Mootry v. Flores, 2015 U.S. Dist. LEXIS 118632 (ED CA, Sept. 4, 2015), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that he was denied Jumu'ah prayer services because of a policy barring inmate ministers from leading inmate religious services without a supervising chaplain or volunteer.

In Sherman v. Jess, 2015 U.S. Dist. LEXIS 119282 (ED WI, Sept. 8, 2015), a Wisconsin federal district court dismissed a complaint by a Pagan Wiccan inmate that he did not get his religious text, Book of Shadows, while in temporary lockup.

In Mitchell v. Cate, 2015 U.S. Dist. LEXIS 120059 (ED CA, Sept. 8, 2015), a California federal magistrate judge recommended dismissing a Christian inmate's complaint that he was not allowed to participate in religious activities or speak to a religious adviser during the time he was subject to a restricted modified program.

In Applegate v. Kokor, 2015 U.S. Dist. LEXIS 120107 (ED CA, Sept. 8, 2015), a California federal magistrate judge dismissed with leave to amend a 252-page complaint alleging "various religious claims against eight Defendants," saying "it is neither time-efficient nor fair to other litigants for the Court to hunt through Plaintiff's Complaint for camouflaged cognizable claims."

In Robinson v. Cate, 2015 U.S. Dist. LEXIS 120870 (ED CA, Sept. 9, 2015), a California federal magistrate judge recommended that a Muslim inmate be permitted to move ahead with free exercise and equal protection claims for injunctive relief on his complaint that the Religious Meat Alternate Program fails to provide a fully Halal diet that is comparable to the fully Kosher diet provided to Jewish inmates.

In Moon v. Unterreiner, 2015 U.S. Dist. LEXIS 121171 (ED MO, Sept. 11, 2015), a Missouri federal district court dismissed on various procedural grounds a suit by an inmate held under home confinement with electronic monitoring who claimed that his free exercise rights are infringed by requiring him to state the times he is going to and leaving his mosque for prayer.

Australian Court Awards Damages For Sexual Abuse By Headmistress of Jewish School

In Erlich v. Leifer, (SC Victoria, Sept. 16, 2015), a trial court in the Australian state of Victoria awarded compensatory and exemplary damages to Hadassa Sara Erlich who as a student in an ultra-Orthodox school was sexually abused by the school headmistress Malka Leifer,  The court found that the school directly and vicariously liable for the psychological injuries to Erlich. In an 82-page opinion, the court described Leifer's unusual position of power over students.  The Melbourne Herald Sun reports on the decision.

EEOC Sues Health Care System For Denying Religious Accommodation

The EEOC announced that it filed suit yesterday against the Minnesota-based North Memorial Health Care for withdrawing a job offer to a Seventh Day Adventist nurse after she requested an accommodation for religious practices.The federal court lawsuit seeks damages for nurse Emily Sure-Ondara, as well as an injunction barring retaliation against employees or job applicants who request religious accommodations.

Denial of Use Permit Did Not Violate RLUIPA

In Livingston Christian Schools v. Genoa Charter Township, (ED MI, Sept. 15, 2015), a Michigan federal district court denied a temporary restraining order to a Christian school that wants to move to property owned by the Brighton Church of the Nazarene.  The township board denied the Church's application to amend its special use permit to allow the school to operate on the property because of objections from neighbors about traffic and non-compliance with the current special use permit. The school claims this violate its rights under RLUIPA.  The court held that the school had not shown a likelihood of success on that claim:

LCS cannot meet its burden in establishing that the denial has more than a minimal impact on its free exercise of religion. The township’s denial of the church’s special use permit does not preclude either the church ... or LCS from freely exercising their religious tenets. The church is free to continue its normal operations pursuant to its existing special use permit. Similarly, LCS is free to continue operating as a religious school, and it has a building in Pinckney that it owns and has been using as the location for its school for the past nine years. Moreover, LCS recently found a second location from which it can operate. The fact that LCS has “ready alternatives” more than sufficient to meet its religious needs despite the township’s denial makes it unlikely that it has suffered a substantial burden on its free exercise of religion.

Abuse Victims Will Press Pope For More Accountability

In an article posted yesterday, the New York Times reports that when Pope Francis visits the United States later this month, survivors of clergy sexual abuse will be pressing him to do more to deal with abusers:

Advocates and victims say that while the church has improved in preventing abuse, it is still resisting full accountability. It blocks efforts to overhaul statute of limitations laws that protect many priests from prosecution and the church from lawsuits that could lead to more payouts to victims, they say. Outside the United States, the church still does not require those who face accusations of abuse to be removed from active ministry. And the Vatican has never explicitly punished a bishop for shielding accused priests, instead quietly accepting a few resignations....

He could also direct archdioceses to release the names of credibly accused American priests, at least 2,400 of whom have never been identified, said Terence McKiernan, the president of BishopAccountability.org,