Bakery Owners Pay Judgment To Pursue Appeal In Same-Sex Wedding Cake Case

The Willamette Week reported Monday that the Oregon bakery that had been ordered by the state Bureau of Labor and Industries to pay $135,000 in damages for refusing to bake a cake for a same-sex commitment ceremony, in order to appeal the ruling, paid the judgment (plus interest) on Monday. The owners of Sweet Cakes by Melissa decided to pay the $136,927 now due, instead of securing an appeal bond for the amount of the judgment. (See prior related posting.)  Supporters of the bakery owners have contributed at least $517,000 to them through crowdsourcing websites.

Suit Challenges Virginia School's Addition of Gender Identity To Non-Discrimination Rules

As reported by the Washington Post, last week a suit was filed in state court in Virginia challenging the Fairfax County School Board's addition of "gender identity" to its non-discrimination policy.  The change was made to comply with federal interpretation of Title IX of the 1964 Civil Rights Act.  The complaint (full text) (Liberty Counsel press release) in Lafferty v. School Board of Fairfax County, (VA Cir. Ct., filed 12/21/2015), contends that the change violates a Virginia statute that prohibits local jurisdictions from enacting broader anti-discrimination protections than are accorded by state law. A state Attorney General's Opinion, however, had concluded that school boards do have the power to bar discrimination on the basis of sexual orientation and gender identity.

The suit was brought by the head of the Traditional Values Coalition and by an anonymous high school student identified in the complaint as Jack Doe.  The suit contends:

Because the new policy and code of conduct are not sufficiently defined, Jack Doe has no way of knowing whether he can, for example, question someone who appears to be a girl using the boys’ restroom or locker room, refer to someone by a certain pronoun or even compliment someone on his/her attire without being subject to discipline for “discrimination.”...

Jack Doe is terrified of the thought of having to share intimate spaces with students who have the physical features of a girl, seeing such conduct as an invasion of his privacy, invasion of fellow students’ privacy and a violation of the though[t] patterns and understanding about male and female relationships which are part of his cultural values. 

Second Lawsuit Challenges Exclusion of Parochial Schools From Montana Tax Credit Plan

As previously reported, earlier this month a state court lawsuit was filed in Montana challenging an administrative rule that excludes religiously affiliated schools from participating in the state's new law that provides state income tax credits for contributions to student scholarship organizations.  This week a second challenge was filed, this time a lawsuit in federal court brought by parents and by the Association of Christian Schools International. (Pacific Legal Foundation press release.) The complaint (full text) in Armstrong v. Kadas, (D MT, filed 12/28/2015), alleges that enforcement of the administrative rule violates the U.S. Constitution's establishment, free exercise and equal protection clauses, as well as Montana law. Great Falls Tribune reports on the lawsuit.

Priest Charging Injury From False Accusations May Proceed With Most of His Claims

This week, a Missouri federal district court handed down two decisions in a suit by a Catholic priest who claims he has been falsely accused of child sexual abuse.  According to the court:

Plaintiff Reverend Xiu Hui “Joseph” Jiang is a Chinese-born ordained Catholic priest in the Archdiocese of St. Louis. Jiang asserts that ... A.M. and N.M. falsely accused him of sexually abusing their minor son for the purpose of monetary gain. Jiang also asserts that [two] officers of the St. Louis Metropolitan Police Department, conducted an inadequate investigation of the abuse allegations and targeted plaintiff for prosecution because of his religion and ethnicity. He alleges that [the City] ... failed to properly train the officers.... Jiang further asserts that ... Survivors Network of Those Abused by Priests ... led a public smear campaign against him which included making false accusations of child molestation in the media. The criminal case against Jiang ... was voluntarily dismissed shortly before trial....

According to the complaint ... had they conducted a more thorough investigation, they would have learned that the minor child had made unfounded claims of sexual abuse in the past and that he was mentally and emotionally troubled; that defendants A.M. and N.M. had a history of making unfounded allegations against the Catholic Church for financial gain; and that there were circumstances that made it impossible for plaintiff to have committed the abuse as alleged.

In Jiang v. Porter I, (ED MO, Dec. 28, 2015), the court denied SNAP's motion to dismiss the conspiracy, defamation and infliction of emotional distress claims against it, and concluded that the lawsuit is not covered by Missouri's anti-SLAPP statute.

In Jiang v. Porter II, (ED MO, Dec. 28, 2015), the court dismissed the vicarious liability,  unconstitutional policy and practice, failure to train and supervise, and infliction of emotional distress claims against the City of St. Louis.  However the court refused to dismiss equal protection, due process, abuse of process, infliction of emotional distress and civil rights conspiracy claims against two police officers.

Story of Justice McReynolds' Anti-Semitic Photo Refusal Is Debunked

National Law Journal reported yesterday that research by a staffer in the U.S. Supreme Court curator's office has proven false an often-repeated story that no 1924 photograph of Supreme Court justices was taken because the anti-Semitic Justice James McReynolds' would not sit next to Justice Louis Brandeis for the photo.  It turns out that group photos are taken only when a new justice comes onto the court, which was not the case in 1924.  It was the case however that one photo studio that was passed over for the 1923 photo lobbied Chief Justice Taft for an extra photo in 1924, and McReynolds (known for his disagreeable temperament) balked at the idea.  McReynolds does appear in nine other group photos between 1914 and 1941 with Jewish justices, though never next to them because the tradition of seating-by-seniority did not place him there.

UK's Department of Education Clarifies Religious Education Requirements

Britain's Department of Education yesterday issued a Guidance Note (full text) assuring schools that their Religious Education curriculum does not need to change in response to a court decision (see prior posting) last month holding that schools cannot completely exclude the study of non-religious beliefs. According to the Department, the decision does not mean that equal time must be given to teachings of humanism. Schools can continue to give precedence to the teachings of major faith groups, and the curriculum of non-religiously affiliated schools must "reflect the fact that the religious traditions in Great Britain are, in the main, Christian whilst taking account of the teaching and practices of the other principal religions represented in Great Britain."

ISIS Fatwas Cover Topics Including Slavery of Infidels and Harvesting of Organs From Apostates

Reuters reported yesterday that among the documents seized from ISIS by U.S. Special Forces in a raid in Syria in May are a number of fatwas (religious rulings) on issues such as the rape of female prisoners, treatment of slaves with minor children, and when a son may steal from his father to for travel funds to fight jihad.  A booklet dated October 2014 and titled From Creator’s Rulings on Capturing Prisoners and Enslavement discusses rules on enslaving women captured from defeated infidels. These are in addition to the ISIS fatwa (full text) reported on last week by Reuters that approves the harvesting of human organs from apostates for transplantation into Muslims.

UPDATE: Here is the full text of the fatwa on sexual intercourse with captured infidel women who are taken as slaves.

Recent Articles of Interest

From SSRN:

• John Witte, 'To Serve Right and to Fight Wrong': Why Religion, Human Rights, and Human Dignity Need Each Other, (Marta Cartabia and Andrea Simoncini, eds., Pope Benedict XVI’s Legal Speeches in Comparative Perspective (Cambridge University Press, 2015), 106-122).
• Alessandro Spina, Reflections on Science, Technology and Risk Regulation in Pope Francis’ Encyclical Letter Laudato Si’, (European Journal of Risk Regulation 4/2015).
• Piro Rexhepi, Mainstreaming Islamophobia: The Politics of European Enlargement and the Balkan Crime-Terror Nexus, (East European Quarterly, vol. 43, no. 2-3, 2015, pp. 189-214).
• Elizabeth Shakman Hurd, Expert Religion: The Politics of Religious Difference in an Age of Freedom and Terror, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2015/97).
• Rachel Nadelman, 'Let Us Care for Everyone's Home': The Catholic Church's Role in Keeping Gold Mining out of El Salvador, (CLALS Working Paper Series No. 9, Dec. 2015).
• Nelson Tebbe & Paul Horwitz, Religious Institutionalism — Why Now?, (Brooklyn Law School, Legal Studies Paper No. 429, Dec. 2015).
• D.E. Frydrychowski, A Critique of Blackstone's Praemunire, (December 21, 2015).
• Bernard Jackson, Law and Narrative in the Book of Ruth: A Syntagmatic Reading, (December 20, 2015).
• David M. Shapiro, To Seek a Newer World: Prisoners’ Rights at the Frontier, (Northwestern Public Law Research Paper No. 15-48 (Dec. 2015)).
• Robert W. Emerson & Jason R. Parnell, Franchise Hostages: Fast Food, God, and Politics, (Journal of Law and Politics, Vol. 29, No. 353, p. 353-396, 2014).
• Martha Bailey, The Marriage Law of Jane Austen's World, (Persuasions On-line, V.36, No.1 (Winter 2015)).

Suit Challenges Religious Impact on Public School's Curriculum

A lawsuit brought in a Florida state court last month on behalf of a 5th grader by the student's father attacks the way in which a Florida school district teaches about religion and the way in which it allows religion to impact its secular curriculum, including teaching about evolution. The complaint (full text) in Silver v. School Board of Palm Beach County, Florida, (FL Cir. Ct., filed 11/24/2015), contends that textbooks "provide false, misleading, and dangerous information about certain religions, and purposely omit factual information if it appears unfavorable to them and/or politically incorrect.... "  It goes on to allege that "the danger of fundamentalist religion is often obscured and downplayed due to the failure of Defendant School Board to properly monitor its textbooks, and the efforts of fundamentalist religious believers to impose their un-scientific, irrational beliefs such as creationism, which masquerades as science upon the children of this state and county." The lawsuit also contends that the curriculum inaccurately portrays Islam as a peaceful religion, and that schools teach "terrible lies about Jews as if they were historical fact." WPFB reported on the lawsuit in a Dec. 16 posting.

The complaint contends that the school district's practices violate various statutory and state constitutional provisions on education, as well as the 1st Amendment's free exercise and establishment clauses. [Thanks to Scott Mange and Ed Brayton for information on the case.]

Recent Prisoner Free Exercise Cases

In Smith v. Artus, 2015 U.S. Dist. LEXIS 170473 (ND NY, Dec. 22, 2015), a New York federal district court refused to dismiss a Muslim inmate's claim for injunctive and declaratory relief against the prison's ban on engaging in demonstrative prayer in the prison yard during recreation period.

In Chesser v. Director, Federal Bureau of Prisons, 2015 U.S. Dist. LEXIS 170661 (D CO, Dec. 22, 2015), a Colorado federal district court allowed a Muslim inmate to move ahead with his claims that the prison policy of housing Muslims with ties to terrorism in long term solitary confinement solely because of these ties violates RFRA and that his conditions of confinement violate RFRA.

In Williams v. Valazair, 2015 U.S. Dist. LEXIS 171559 (WD OK, Dec. 22, 2015), an Oklahoma federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 171325, Nov. 9, 2015) and dismissed a Muslim inmate's complaint that he was denied a common fare meal tray during a 4-day time span, apparently because the list had not been updated to include him.

Top Ten Religious Liberty and Church-State Developments of 2015

Each year in December I attempt to pick the most important church-state and religious liberty developments of the past year.  This year was rich with possibilities, and some of my picks actually arose in a broader context but have will have an important impact on religious liberty claims or church-state challenges.  So here are my Top Ten picks.  I welcome readers' comments since I am sure that not everyone will agree with all the choices.

1. In Obergefell v. Hodges, the U.S. Supreme Court holds that the Constitution requires marriage equality, striking down state laws that bar same-sex marriages.
   
   
2. The battle continues over the adequacy of the Obama administration's accommodation for religious non-profits that object to the Affordable Care Act contraceptive coverage mandate. The U.S. Supreme Court will decide the issue this term after granting certiorari in seven cases.
   
   
3. Some states expand RFRA laws to protect objectors to same-sex marriage. Indiana's law provokes particular controversy forcing the legislature to backtrack. Meanwhile around the country some Christian-owned businesses continue to refuse to provide services they see as furthering same sex marriage or LGBT rights, while Kentucky county clerk Kim Davis garners national attention for her refusal to issue same-sex marriage licenses.
   
   
4. The U.S. Supreme Court becomes active on prisoners' rights issues, including claims for religious accommodation by inmates.  The Supreme Court gives RLUIPA a broad interpretation in Holt v. Hobbs.  It also interprets the "three strikes" provision that limits indigent prisoner litigation; hears oral arguments in a case on maximum fee payments by indigent prisoners litigating multiple cases; and grants certiorari on a question of exhausting administrative remedies before suing.
   
   
5. The rise of ISIL creates questions about the proper label to apply to the struggle against jihadists.  The dispute centers over the use of terminology such as "the war against radical Islam" that could be misinterpreted to suggest the U.S. is broadly at war with all Muslims.
   
   
6. The Supreme Court interprets the elements of Title VII employment discrimination claims (including claims for accommodation of religious practices) in Abercrombie & Fitch (employer motives) and Mach Mining (EEOC conciliation requirement).
   
   
7. The expression of virulent anti-Muslim sentiment raises free speech and anti-discrimination issues in cases involving anti-Muslim bus ads and a business seeking to create a "Muslim free zone."
   
   
8. The EEOC rules that discrimination on basis of sexual orientation is barred by the "sex discrimination" ban in Title VII of the 1964 Civil Rights Act.
   
   
9. The Supreme Court holds that specialty license plates  are government speech, thus impacting the many cases on license plates with religious themes or symbols.
   
   
10. The successful referendum to overturn Houston's Equal Rights Ordinance positions the battle over transgender rights as next struggle between conservative religious groups and civil rights advocates.

Ecclesiastical Abstention Does Not Require Dismissal of Suit Over Control of Unification Church's Assets

In Family Federation for World Peace and Unification International v. Moon, (DC App., Dec. 24, 2015), the District of Columbia Court of Appeals reversed the D.C. Superior Court's dismissal of a complicated dispute over control of a D.C. non-profit corporation, UCI, which over the years has managed hundreds of millions of dollars of assets donated to Reverend Sun Myung Moon's Unification Church. The trial court had invoked the ecclesiastical abstention doctrine, concluding that the dispute could not be resolved without the court deciding questions of religious doctrines.  The appellate court disagreed.

UCI was created in 1977.  In 2006, Preston Moon, one of Rev. Moon's sons became president of UCI and one of its five directors. In 2008, Rev. Moon appointed another son, Sean Moon, (Preston's younger brother) as the next leader of the Church's worldwide religious organization.  This "disappointed" Preston who, apparently assumed that he would be appointed to the religious as well as financial leadership of the Church.  In response to Sean's appointment, Preston took a number of steps to divest the Church of its control over UCI and its assets.

Those actions are challenged in this case by three entities connected with the original Unification Church and by two individuals who Preston removed as directors of UCI. The suit claims that Preston improperly took control of UCI's board, ignoring the long-standing practice of electing individuals nominated by Rev. Moon. The suit also alleges diversion of assets and self-dealing.  In reversing the trial court's dismissal of the case, the court said in part:

From plaintiffs’ allegations, it appears that a profound alteration in the corporation ... occurred under Preston Moon. An organization plainly established to promote the preservation of African wildlife and acquiring vast funds on that basis might well be barred from switching its purpose to expenditures on domestic cats and dogs regardless of how technically such a switch might be read into the text of its articles of incorporation. On the present record, we cannot say with confidence that a somewhat analogous transformation cannot be shown to have occurred here. And, in any event, the allegation that corporate funds were used here to benefit one of the directors personally would appear readily subject to court review....

[W]e agree with plaintiffs that the record at this early stage of a difficult and complicated dispute with many ramifications does not support a conclusion that the trial court must engage in inquiry banned by the First Amendment in order to resolve any of plaintiffs’ claims.... Were we to hold that, based on the current record, the First Amendment precludes our civil courts from adjudicating plaintiffs’ claims, then it would approach granting immunity to “every nonprofit corporation with a religious purpose from breach of fiduciary suits . . . and prevent any scrutiny of questionable transactions.”

The court also resolved jurisdictional and standing issues.

Donald Trump's Christmas Card Covers All Bases

The New York Daily News reports that the Christmas card which Donald Trump mailed to his supporters this week covered all the bases after his campaign emphasis on the need to say Merry Christmas instead of "Happy Holidays."

From the White House For Christmas: Playlists and Concern For Persecuted Christians

On Wednesday, in anticipation of Christmas, the White House posted The Obamas' and Bidens' Holiday Playlists on the White House Spotify channel.  The Obamas' number one pick is "O Tannenbaum, Vince Guaraldi Trio (A Charlie Brown Christmas)," while "Santa Claus is Comin’ to Town, Bruce Springsteen" tops the Bidens' playlist.

The President also posted a more serious statement on Persecuted Christians at Christmas, saying in part:

At this time, those of us fortunate enough to live in countries that honor the birthright of all people to practice their faith freely give thanks for that blessing.  Michelle and I are also ever-mindful that many of our fellow Christians do not enjoy that right, and hold especially close to our hearts and minds those who have been driven from their ancient homelands by unspeakable violence and persecution.

In some areas of the Middle East where church bells have rung for centuries on Christmas Day, this year they will be silent; this silence bears tragic witness to the brutal atrocities committed against these communities by ISIL.

NYC Taxi Appeals Unit Says Religious Belief of Driver Does Not Justify Gender Discrimiination

Triggered by a New York Post article, a number of media outlets last week reported on a Sept. 3, 2015 decision of the New York City OATH Taxi and Limousine Tribunal Appeals Unit.  In Taxi & Limousine Commission v. Tamsir Drammeh , the Appeals Unit upheld a hearing officer's decision that a Muslim cab driver violated a Commission rule prohibiting any action that is "against the best interest of the public" when he refused to transport a female passenger in the front seat of his cab for religious reasons. When a family of four hailed the cab, the driver told them that all four could sit in back, or the husband could sit in front, but the wife could not. The Hearing Examiner concluded: "That his religion did not allow him to sit next to a woman is not an acceptable defense in an occupation that is operated to serve the public." Affirming that decision, the Appeals Unit stated:

There is strong public policy which prohibits a TLC licensee from engaging in “invidious discrimination while serving the public” .... In addition, it is well established that a taxicab driver is required to possess sufficient self-restraint to deal in a mature fashion with the everyday conflicts inherent in his job.... This includes a situation where the driver’s religious beliefs may conflict with his obligations and duties as a taxi driver to transport members of the public.

Here, the respondent’s determination that it would be proper for the passenger’s husband to sit in the front seat, but not proper for the passenger to do so solely because of her gender, evidenced a discriminatory attitude and constituted an action against the best interests of the public.

The cabbie was fined $350 and suspended for one day.

Illinois Nuns Sue To Challenge Zoning Denial

A federal lawsuit was filed last week by an order of Catholic nuns to challenge the denial of a conditional use permit by McHenry County, Illinois. Fraternité Notre Dame already has a monastery, church, seminary, convent, retreat center, bakery, printing press and cemetery on its 95 acres of property. It now wants to add a barn in order to build a commercial kitchen, process grapes and brew beer.  It also wants to add a school with attached dormitory; nursing home with hospice services; and gift shop and tasting area to sell pastries, religious and inspirational articles, and its own wine and beer. The complaint (full text) in Fraternité Notre Dame, Inc. v. County of McHenry, (ND IL, filed 12/16/2015), contends that the denial of zoning approval violates RLUIPA as well as the equal protection clauses of the Illinois and federal constitutions.  Northwest Herald reports on the lawsuit.

Proposed Bill In New Mexico Would Amend RFRA To Protect Religiously- Based LGBT Discrimination

While New Mexico already has a Religious Freedom Restoration Act, last week two legislators pre-filed a bill for the new session that would expand the state's RFRA to permit businesses to refuse to conduct business with gay, lesbian and transgender individuals where the business has religious objections to doing so. Think Progress reports that the new House Bill 55, while prohibiting businesses from using religion to justify racial or gender discrimination, does not prohibit using religion to justify LGBT discrimination.  The Bill provides:

Nothing contained in the Human Rights Act shall ... burden a person's free exercise of religion by requiring the person to provide a service or to conduct business in a manner inconsistent with adherence to that person's sincerely held religious belief unless that adherence is based on race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition. 

Pennsylvania Appeals Court Orders New Trial For Msgr. Lynn On Priest Abuse Cover-Up

In Commonwealth of Pennsylvania v. Lynn, (PA Super. Ct., Dec. 22, 2015), in a 2-1 decision, a Pennsylvania state appeals court vacated the 2012 conviction of Msgr. William J. Lynn who was the first U.S. priest criminally convicted of covering up sexual molestation of minors by another priest. (See prior posting.) The case was remanded for a new trial.  In the case, which was already on remand from the state Supreme Court (see prior posting), the majority concluded that while prior bad acts can be introduced into evidence to show elements such as knowledge, motive and intent relating to the crimes charged, here the introduction of evidence relating to Lynn's handling of complaints against 21 priests in addition to the two priests whose actions Lynn was charged with covering up went too far.  The majority said in part:

The potential for this evidence to unfairly prejudice Appellant was high, both because it involved the sexually abusive acts of numerous priests committed against children over several decades, and because of the high volume of the evidence admitted. Therefore, we conclude that the probative value of that evidence, in toto, did not outweigh its potential for unfair prejudice, and that this potential prejudice was not overcome by the trial court’s cautionary instructions.

Judge Donohue filed a dissenting opinion, saying in part:

The record supports a finding that both Lynn and his predecessors handled prior allegations of sexual abuse against other priests with the motive and intent of shielding the Church from scandal. Thus, there is support for the conclusion that the way Lynn handled the allegations of abuse made against Avery and Brennan “grew out of” and was “caused by” the way Lynn’s predecessors and Lynn himself handled past allegations of sexual abuse committed by other priests.

Philadelphia Inquirer reports on the decision. [Thanks to How Appealing for the lead.]

Suit Challenges Maine's Restriction On Loud Preaching Outside of Abortion Clinic

In Portland, Maine this week, a Christian pastor filed suit in federal district court challenging the constitutionality of a Maine statute designed to protect abortion facilities.  The law essentially prohibits demonstrating outside an abortion clinic with noise loud enough to be heard inside.  The complaint (full text) in March v. Mills, (D ME, filed 12/21/2015), contends that the statute violates plaintiff's 1st and 14th Amendment rights by targeting his religious, Christian, Pro-Life messages. He alleges in part:

Plaintiff considers it his vocation to encourage women to avoid the sin of abortion and to help them repent from their previous sins.... Plaintiff preaches outside of the abortion facility in order to better reach these women and to give women a last-chance alternative to their life-ending decision.

The suit claims that the restriction on his speech is a content-based prior restraint.  Thomas More Law Center issued a press release announcing the filing of the suit.

FFRF's Secular Nativity Display Removed From Texas Capitol After It Provokes Ire of Governor

The Texas State Preservation Board has a policy that allows displays in public areas of the Capitol upon filing of an appropriate application and a letter of sponsorship from the governor, lieutenant governor or a member of the state legislature.  Receiving approval of its application, on December 18 the Freedom From Religion Foundation put up a Bill of Rights Nativity display which it describes as:

featur[ing] Founding Fathers Benjamin Franklin, Thomas Jefferson, and George Washington gathered in reverence before the Bill of Rights, overseen by the Statue of Liberty. In addition to the "nativity," the display also features a sign celebrating the Winter Solstice.

However, three days later the exhibit was removed after Governor Greg Abbott expressed strong opposition to it.  In a letter (full text) to the Executive Director of the State Preservation Board, the governor (who is Chairman of the Board) contended that the display did not meet the requirement that approved displays promote a "public purpose."  He wrote in part:

[T]he exhibit deliberately mocks Christians and Christianity. The Biblical scene of the newly born Jesus Christ lying in a manger in Bethlehem lies at the very heart of the Christian faith. Subjecting an image held sacred by millions of Texans to the Foundation’s tasteless sarcasm does nothing to promote morals and the general welfare. To the contrary, the Foundation’s spiteful message is intentionally designed to belittle and offend....

This is not an exhibit that spreads a secular message in an effort to educate the public about nonreligious viewpoints; it instead denigrates religious views held by others.... [T]he exhibit promotes ignorance and falsehood insofar as it suggests that George Washington, Benjamin Franklin, and Thomas Jefferson worshipped (or would worship) the bill of rights in the place of Jesus.