Carson Want IRS To Penalize CAIR Over Its Call For Him To Leave Presidential Race

As previously reported, last month the Council on American-Islamic Relations called for Dr. Ben Carson to withdraw from the Republican Presidential contest after Carson told an interviewer that a Muslim should not be made President and that Islam is inconsistent with the U.S. Constitution.  Now, as reported by today's Washington Times, Dr. Carson is urging the Internal Revenue Service to immediately revoke CAIR's tax-exempt status.  Carson has posted a petition on his campaign website saying in part:

The Council on Islamic-American Relations (CAIR), a U.S. Muslim group, recently demanded that I withdraw as candidate for the 2016 presidential race. By doing so, the organization has brazenly violated IRS rules prohibiting tax-exempt nonprofits like CAIR to intervene in a political campaign on behalf of—or in opposition to—a candidate. 

5th Circuit (With Dissents) Denies En Banc Rehearing In Non-Profit Contraceptive Mandate Cases

In East Texas Baptist University v. Burwell, (5th Cir., Sept. 30, 2015), the U.S. 5th Circuit Court of Appeals denied a panel rehearing and, by a vote of 4-11, denied an en banc rehearing in three related cases, all raising challenges to the Obama administration's accommodation for religious non-profits that object to the Affordable Care Act requirement that their health insurance policies cover contraceptive services. The 3-judge panel held that plaintiffs had not shown a substantial burden on their religious exercise. (See prior posting.) Judge Jones, joined by Judges Clement and Owen filed a dissent from the denial of the en banc rehearing, saying in part:

This case goes to the heart of religious liberty protected by the Religious Freedom Restoration Act (“RFRA”).... How ironic that this most consequential claim of religious free exercise, with literally millions of dollars in fines and immortal souls on the line, should be denied when nearly every other individual religious freedom claim has been upheld by this court. How tragic to see the humiliation of sincere religious practitioners, which, coming from the federal government and its courts, implicitly denigrates the orthodoxy to which their lives bear testament. And both ironic and tragic is the harm to the JudeoChristian heritage whose practitioners brought religious toleration to full fruition in this nation. Undermine this heritage, as our founders knew, and the props of morality and civic virtue will be destroyed.

Austin American-Statesman reports on the rehearing denial.

Britain Exempts Sikhs From Safety Helmet Requirements

Britain's Department for Work and Pensions issued a press release yesterday announcing that Sikhs who wear turbans for religious reasons are now exempt in almost all workplaces from safety helmet rules.  Previously, an exemption was available only for Sikhs working in the construction industry.  Parliament in enacting the Deregulation Act 2015 extended the exemption to all industries.  Under Sections 6 and 7 of the Act, however, safety helmets may still be required for Sikh first responders and those in the military. Law & Religion UK blog reports on the changes.

USCIRF Extended To December 11 As Part of Congressional Continuing Resolution

The U.S. Commission on International Religious Freedom has received at least a temporary reprieve.  On Wednesday President Obama signed the Continuing Appropriations Act that funds the government until December 11.  The funding provisions are a rider to HR 719, the TSA Office of Inspection Accountability Act of 2015. (Full text of Act.)  In addition, Sec. 147 of the Act extends the life of the U.S. Commission on International Religious Freedom to December 11.  Without this extension, USCIRF would have ceased to exist on Sept. 30.

School Sued Over Refusal To Allow Religious Allusion On Donor's Plaque

A lawsuit was filed Wednesday against the Colorado School of Mines by an alumnus (a former member of the school's football team) because the school rejected an inscription he chose for his donor plaque.  The complaint (full text) in Lucas v. Johnson, (D CO, filed 9/30/2015), contends that as part of the school's fundraising campaign for a new Athletic Complex, donors could purchase a personalized nameplate to be placed in the new football locker room.  The donor could place a 3-line quote, along with certain other information, on his or her nameplate.  Alumnus Michael Lucas submitted only one line for his quote: "Colossians 3:23 & Micah 5:9."  The school rejected the quote because if one went to the text of the Colossians reference, it included mention of "the Lord." A school faculty member soliciting contributions told Lucas that his nameplate could not use a quote that contained the words God, Lord, or Jesus, but he could choose another Bible verse that did not contain those words.  Plaintiff contends this policy violates his 1st and 14th Amendment rights.  Alliance Defending Freedom issued a press release announcing the filing of the lawsuit.

Most of Rabbinical College's Challenges To Land Use Restrictions Are To Proceed To Trial

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, (SD NY, Sept. 29, 2015), a New York federal district court ruled on various motions in challenges to the land use ordinances of the Village of Pomona, New York that allegedly were adopted to prevent plaintiffs from constructing a planned rabbinical college. (See prior related posting.)  In a 145-page opinion, the court imposed limited sanctions on defendants for their destruction of a relevant Facebook posting:

Because Defendants concealed—and failed to disclose—the relevant Facebook post and potentially a portion of the accompanying text messages, the jury will be instructed that it may infer that the contents of the Facebook Post indicated discriminatory animus towards the Hasidic Jewish population. Defendants also will be precluded from offering evidence to rebut that specific inference, though they can still present evidence to indicate that the Challenged Laws were not adopted for discriminatory reasons.

The court went on to allow plaintiffs to proceed on their equal protection, free exercise, freedom of association, RLUIPA, Fair Housing Act and various state law challenges, denying motions by both parties for summary judgment.  However the court dismissed plaintiffs' free speech challenge, holding that "the fact that building a rabbinical college might enable religious speech does not render its construction speech itself."

Respondents In Oregon Wedding Cake Case Refuse To Post Bond For Their Appeal

As previously reported, in July the Oregon Bureau of Labor and Industries, as part of a cease and desist order, levied $135,000 in damages against the owners of Sweet Cakes by Melissa Bakery for their refusal to provide a wedding cake to a same-sex couple. Instead of paying the damages the owners have filed an appeal with the state court of appeals, but, according to yesterday's Oregonian, they refuse to provide the bond or irrevocable letter of credit that is required to pursue the appeal. Aaron and Melissa Klein apparently claim financial hardship even though crowdfunding sites set up to support them have raised some $515,000. State officials have now filed in court seeking a judgment that will allow them to attach assets belonging to the Kleins. [Thanks to Scott Mange for the lead.]

Anchorage, Alaska Passes LGBT Anti-Discrimination Law Over Religious Objections

Late Tuesday night, the Anchorage, Alaska Assembly by a vote of  9-2 enacted amendments to the city's equal rights ordinance barring discrimination on the basis of sexual orientation and gender identity in housing, employment, public accommodations and education. (Full text of Ordinance as proposed.) Alaska Dispatch News reporting on the Assembly's actions says that the ordinance will take effect when signed by Assembly Chair Dick Traini, expected on Friday. Mayor Ethan Berkowitz does not plan to veto the ordinance. A package of 17 proposed amendments (full text) were largely rejected. They focused on expanding religious exemptions and rules for gender-segregated restrooms.  According to the Dispatch News:

In the end, only two were approved: a Flynn amendment stating that nothing in the law would trump state and federal First Amendment rights, and an Evans amendment adding a reference to a Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church and School vs. EOCC, to define a “ministerial exemption.”

The Assembly narrowly rejected Assembly Chair Dick Traini's proposals to extend the city’s existing religious preference law to “nonprofit affiliates,” such as Providence Alaska Medical Center, and to add language that would prevent employers from firing employees for expressing religious views.

Opponents of the law, who argue that it infringes religious liberty, plan to seek a referendum to repeal it. The Assembly rejected a proposal to require a public advisory vote on the measure.  Alaska Public Media reported:

Opposition to the bill came primarily from two socially conservative Assembly Members from the Eagle River Chugiak area, Amy Demboski and Bill Starr, both of whom say it infringes on residents’ religious and free speech rights. Much of the audience was wearing red–a sign of opposition to the measure, called for by a coalition of conservative faith groups. After hours of impassioned testimony that often addressed the crowd instead of fellow Assembly Members, Starr left his seat behind the dais to speak from the floor as a citizen rather than official.

“I buy into that Bible, that book, that says homosexuality and that type of deviant behavior is wrong.”

He then slipped on a red vest before receiving the night’s only standing ovation.

“And I’ll tell you what red is–somebody said ‘well what what are you wearing red for?’ It’s the blood of Jesus Christ folks, that’s what it represents.”

CNN Says Warren Jeffs Still Directs FLDS Church From Prison

In a long investigative report on convicted sexual offender and FLDS Church leader Warren Jeffs, CNN quotes a private investigator who says that while day-to-day matters are run Jeffs' brother, Jeffs himself still "actively directs church matters from prison." CNN produced an hour-long special last night on Jeffs and life inside the polygamous FLDS Church.

DOJ Files RLUIPA Suit Against Illinois City Over Mosque Rezoning

The U.S. Department of Justice announced yesterday that it has filed suit against the city of Des Plaines, Illinois alleging that the city violated RLUIPA when it refused to rezone a vacant office building to allow the American Islamic Center to operate a place of worship there. The complaint (full text) in United States v. City of Des Plaines, Illinois, (ND IL, filed 9/30/2015) alleges the city violated the substantial burden, equal terms and discrimination provisions of RLUIPA. As summarized in the press release:

The complaint alleges that the city imposed parking standards and other zoning criteria that were not supported under its zoning ordinance and that it had never imposed on non-Muslim places of worship.

Chicago Tribune reports on the lawsuit.

Pope Francis Met With Kim Davis; Supports Conscientious Objection

In a press release issued yesterday, Liberty Counsel disclosed that Rowan County, Kentucky Clerk Kim Davis met with Pope Francis at the Vatican Embassy in Washington last Thursday. Davis' husband was also at the private meeting during which the Pope, speaking in English, thanked Davis for her courage and presented her with rosaries for her parents who are Catholic. Davis has refused to issue marriage licences to same-sex couples, and was jailed for contempt for several days as a result. (See prior posting.) In a press conference on his plane back to Rome (before the meeting with Davis was announced publicly), the Pope told reporters that conscientious objection is a human right. When asked whether that applies to government officials, the Pope responded: "It is a human right and if a government official is a human person, he has that right."

Archdiocese Must Go To Trial On Teacher's Hostile Work Environment Claims

In Bohnert v. Roman Catholic Archbishop of San Francisco, (ND CA, Sept. 25, 2015), a California federal district court refused to dismiss a hostile work environment and emotional distress suit by by a former biology teacher in a boys' Catholic high school.  As described by the court, male students at the school sexually harassed the teacher, including disseminating several "upskirt" photos and videos of her.  In a 38-page opinion, the court rejected the Archdiocese's  motion for summary judgment on its "ministerial exception" and "church autonomy" defenses, finding that numerous factual issues remain.

Recent Articles of Interest

From SSRN:

• Meital Pinto, The Absence of the Right to Culture of Minorities Within Minorities in Israel: A Tale of a Cultural Dissent Case, (4 Laws 579–601 (2015)).
• Janne Elisabeth Nijman, Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium, (Martti Koskenniemi, Monica García-Salmones, and Paolo Amoroso (Eds.), International law and Religion (Forthcoming)).
• Eric Heinze, Hate Speech and Democratic Citizenship, (in Hate Speech and Democratic Citizenship, Oxford University Press, February 2016).
• Darryl Li, Jihad in a World of Sovereigns: Law, Violence, and Islam in the Bosnia Crisis, (Law and Social Inquiry, 2015).
• Christopher R. Hoyt, Income Tax Deductions for Charitable Bequests of IRD, (September 24, 2015).

From SSRN (Same-Sex Marriage):

• James M. Donovan, Half-Baked: The Demand by For-Profit Businesses for Religious Exemptions from Selling to Same-Sex Couples, (Loyola of Los Angeles Law Review, Vol. 49, 2015).
• Patrick Talbot, Same-Sex Marriage and Religious Liberty Clashes in the U.S., After Obergefell v. Hodges: (An American Constitutional Challenge), (Anthology on Religious Freedom by Center of Ethics and Socio-Religiosity Studies Petra Christian University (PCU), Forthcoming).
• Anthony C. Infanti, Victims of Our Own Success: The Perils of Obergefell and Windsor, (Ohio State Law Journal Furthermore, Forthcoming).
• Peter Nicolas, Obergefell's Squandered Potential, (California Law Review Circuit, 2015 Forthcoming).

Malaysia's Federal Court Upholds State Ban On Producing Book Contrary To Islamic Law

As reported by Bernama and Malaysian Insider, Malaysia's Federal Court yesterday upheld against freedom of expression and other challenges Section 16 of the Selangor Syariah Law which criminalizes producing, disseminating or possessing for sale any book or document that is contrary to Islamic law.  ZI Publications and its director Mohd Ezra Mohd Zaid were charged by Selangore state authorities with violating Section 16 by publishing a book titled "Allah, Love and Liberty" written by a Canadian author and Muslim reformer Irshad Manji. ZI and Zaid challenged the validity of the state law in the Federal Court.  But Justice Raus, writing for a 5-judge panel, said that the constitutional protections for freedom of expression must be read together with provisions declaring Islam as the country's religion and giving states the power to control or restrict propagation of any religious doctrine or belief among persons professing the religion of Islam.

Estate Loses Income Tax Deduction For Large Contributions To Churches Because of Will Challenges

In Estate of DiMarco v. Commissioner, (T.C., Sept. 21, 2015), the U.S. Tax Court denied the estate of John DiMarco a deduction on its 2010 income tax return for a $314,942 contribution to two churches.  DiMarco's will left his residuary estate to the churches he attended regularly at the time of his death. The Tax Court held that because of various challenges to the will, it was not clear until 2013 that the churches would receive the contributions.  Thus presumably any deduction would have to be taken in that year, if income was available to offset against the deduction. The court affirmed the tax commissioner's assessment of a $108,588 deficiency for 2010.

5th Circuit's Revised Opinion Again Allows School To Reject Jumbotron Ad of Tattooed Jesus

Last week in Little Pencil, LLC v. Lubbock Independent School District, (5th Cir., Sept. 23, 2015), the U.S. 5th Circuit Court of Appeals denied an en banc rehearing, but granted a panel rehearing, in a religious free speech case.  The panel withdrew its earlier brief opinion that merely adopted the reasoning of the district court and substituted an opinion that reached the same result-- dismissing the complaint-- but on somewhat narrower grounds.  At issue was a high school's refusal to display on its football field jumbotron an ad depicting a tattooed Jesus and a website URL, as part of a marketing concept using a new way to share the Bible's teachings. In its new opinion, the court s

We hold that the football field was a limited public forum and LISD’s content-based, viewpoint-neutral limitations were reasonable in the light of a Texas law against tattoo parlors serving minors and LISD policies against visible tattoos.... The plaintiffs' Establishment Clause claim fails because LISD may legitimately exclude the ad for its tattoo content without a "risk [of] fostering a pervasive bias or hostility to religion..."

The court also rejected due process, equal protection and free exercise claims.

USCIRF Sunsets Sept. 30 If New Legislation Is Not Passed

While most of the Congressional attention to Sept. 30 has focused on the broad expiration of government funding on that date if a Continuing Resolution is not passed (background), less noticed is the fact that authorization for the U.S. Commission on International Religious Freedom also sunsets on that date.  Not surprisingly, last week USCIRF attempted to call attention to the problem by issuing a press release.  In Congress, S. 2078 has been introduced to extend the Commission for another four years, but so far it has only been reported out of committee in the Senate.

Recent Prisoner Free Exercise Cases

In Thomas v. Morris, 2015 U.S. Dist. LEXIS 125911 (ED WI, Sept. 21, 2015), a Wisconsin federal district court allowed an inmate to move ahead with his complaint that certain jail officials refused to honor his food requests relating to Passover 2015.

In Thomas v. Lawler, 2015 U.S. Dist. LEXIS 126135 (MD PA Sept. 22, 2015), a Pennsylvania federal district court dismissed a Muslim inmate's complaints that the multi-faith chapel contains offensive religious iconography; he is unable to pray shoulder to shoulder with other Muslims due to inadequate space; he is unable clean himself prior to religious services; and the chapel's location up 4 flights of steps often means he cannot attend prayer services because his health prevents his climbing stairs,

In Gee v. Sabol, 2015 U.S. Dist. LEXIS 126872 (MD PA, Sept 22, 2015), a Pennsylvania federal district court rejected an inmate's complaint that he was denied kosher meals, finding he had not established that he has a sincere religious belief in Judaism.

In Denegal v. Brazelton, 2015 U.S. Dist. LEXIS 126982 (ED CA, Sept. 22, 2015), a California federal magistrate judge recommended that an inmate be allowed to move ahead against one of the defendants on his complaint that he was denied his right to a name change for religious reasons.

In Karafili v. Cruzen, 2015 U.S. Dist. LEXIS 127094 (ND CA, Sept. 22, 2015), a California federal district court permitted a Muslim inmate to move ahead with his complaint that Muslim group prayer was disrupted one day even though Muslim inmates had received permission to pray in groups of up to 15.

In Bouman v. Broome, 2015 U.S. Dist. LEXIS 127555 (SD MS, Sept. 23, 2015), a Mississippi federal district court adopted a magistrate's recommendations and dismissed a Jewish inmate's complaint seeking $9 million in damages for violation of  his free exercise rights when he was disciplined for taking his Passover meal out of the dining area into his cell.

In Stinski v. Chatman, 2015 U.S. Dist. LEXIS 128061 (MD GA, Sept. 24, 2015), a Georgia federal district court, adopting in part a magistrate's recommendations, allowed a Wiccan inmate to move forward against various defendants with complaints involving denial of religious items and observances, and complaints as to forced shaving and haircut.

In Begnoche v. DeRose, 2015 U.S. Dist. LEXIS 128633 (MD PA, Sept. 24, 2015), a Pennsylvania federal district court dismissed complaints by a Native American inmate regarding availability of a Native American spiritual adviser and celebration of the Green Corn Feast.

In Webb v. Broyles, 2015 U.S. Dist. LEXIS 128784 (WD VA, Sept. 24, 2015), a Virginia federal magistrate judge recommended dismissing an inmate's complaint that he was wrongly removed from the Common Fare diet.

Pope Francis Addresses Clergy Sex Abuse and New Definitions of Marriage

As reported by Vatican Radio, Pope Francis today in Philadelphia held a private meeting with victims of clergy sexual abuse. He then addressed a meeting of bishops and departed from his prepared remarks to begin as follows:

I hold the stories and the suffering and the sorrow of children who were sexually abused by priests deep in my heart.  I remain overwhelmed with shame that men entrusted with the tender care of children violated these little ones and caused grievous harm.  I am profoundly sorry. God weeps.

The crimes and sins of the sexual abuse of children must no longer be held in secret.  I pledge the zealous vigilance of the Church to protect children and the promise of accountability for all.

They, the survivors of abuse, have become true heralds of hope and ministers of mercy. We humbly owe each one of them and their families our gratitude for their immense courage to shine the light of Christ on the evil of the sexual abuse of children.

I’m telling you this because I’ve just met with a group of sex abuse victims who are being helped and accompanied here in Philadelphia.

The remainder of his remarks to the bishops are also carried in the same Vatican Radio coverage. Those remarks included the following, which appears to be a reference to the legal recognition of same-sex marriage:

Needless to say, our understanding, shaped by the interplay of ecclesial faith and the conjugal experience of sacramental grace, must not lead us to disregard the unprecedented changes taking place in contemporary society, with their social, cultural – and now juridical – effects on family bonds.  These changes affect all of us, believers and non-believers alike.  Christians are not “immune” to the changes of their times.  This concrete world, with all its many problems and possibilities, is where we must live, believe and proclaim.

Until recently, we lived in a social context where the similarities between the civil institution of marriage and the Christian sacrament were considerable and shared.  The two were interrelated and mutually supportive.  This is no longer the case. 

Church Official's Defamation Suit Dismissed On Ecclesiastical Abstention Grounds

In Dermody v. Presbyterian Church (USA), (KY Cir. Ct., Sept. 21, 2015), a Kentucky trial court dismissed on ecclesiastical abstention grounds a defamation suit by PCUSA's former Deputy Executive Director of Mission against PCUSA.  Plaintiff Roger Dermody based his claim on PCUSA's informing people outside the governing body of the church that Dermody had violated PCUSA's ethics policies, apparently by allowing pastors under his supervision to set up a new non-profit organization to support the creation of new worship communities. The court concluded that if it were to adjudicate the defamation claim and the defense of truthfulness, it would have to determine whether Dermody had in fact committed ethics violations, which would require it to interpret church doctrine and policies. [Thanks to Tom Rutledge for the lead.]