Religious Beliefs of Presidential Candidates Continue To Be Focus of Interest

International Business Times yesterday reviewed the religious faiths of each of the remaining candidates in the Republican and Democratic races for President of the United States, saying:

Some of the candidates’ paths to faith are more complicated than others, as they either deepened or found their faith at different points in their lives. Here we take a look at how each candidate identifies religiously, as well as at the religions of their children, spouses and parents.

Candidates' religious beliefs continue to spark controversy and interest.  As reported by the Wall Street Journal, candidate Ted Cruz yesterday dismissed his communications director Rick Tyler who had been his chief spokesman after Tyler posted on social media a video that misquoted a remark by rival Marco Rubio.  The misquote suggested that Rubio did not think the Bible had many answers in it, when in fact Rubio had said just the opposite.

Meanwhile last week, The Forward published an interesting opinion piece by Rabbi Valerie Lieber titled We Need To Out Bernie Sanders As A Jew-- For His Own Good.

Advocacy Organization Launches New Name and Website

The religious freedom advocacy organization Liberty Institute announced last week that it has changed its name to First Liberty Institute. The change is intended to emphasize the organization's focus on religious liberty. It has also launched a newly designed website with a new URL. First Liberty has released its 2016 edition of Undeniable: The Survey of Hostility to Religion in America. (full text).

UC Irvine Rejects Endowed Chairs in Religious Studies Because of Donor Restrictions

The University of California Irvine is rejecting some $6 million in contributions to create four endowed chairs relating to the religions and history of India. Inside Higher Ed reports that an Ad Hoc Committee on Endowed Chairs in the School of Humanities has recommended against the chairs because the agreements establishing them "include language that is not consistent with University policies related to religious and academic freedom."  (Full text of committee's report).  The report recommends rejection, regardless of agreement modifications, of two chairs proposed by the Dharma Civilization Foundation (DCF)-- one a chair in Indic and Vedic Civilization Studies and a second in Modern India Studies-- because "DCF is unusually explicit and prescriptive on appropriate disciplinary formations, what constitutes good or acceptable scholarship, and, indeed, what constitutes good or acceptable scholars."  According to Inside Higher Ed, The Dharma Civilization Foundation is:

a California entity that seeks to fund the academic study and teaching of Indian religions as a corrective to what it describes as widespread misrepresentations of Hinduism by scholars who do not practice the religion.

The Committee also recommended that two other proposed chairs endowed by families-- one chair in Jain Studies and one in Sikh Studies-- be returned to the dean's office for further review.  The Dean of the School of Humanities accepted all the recommendations.

Recent Articles of Interest

From SSRN:

• George Mader, Binding Authority: Unamendability in the United States Constitution — A Textual and Historical Analysis, (Marquette Law Review, Forthcoming).
• Nathan S. Chapman, The Establishment Clause, State Action, and Town of Greece, (William & Mary Bill of Rights, Vol. 24, 2015).
• Adam Lamparello, Contextualizing the Free Exercise of Religion, (February 16, 2016).
• Harry G. Hutchison, Hobby Lobby, Corporate Law, and Unsustainable Liberalism: A Reply to Judge Strine, (Harvard Journal of Law and Public Policy, Vol. 39, 2016).
• Leo E. Strine, Criminal Justice and (a) Catholic Conscience, (Santa Clara Law Review, Vol. 56, 2016, Forthcoming).
• Michael W. McConnell & Luke W. Goodrich, On Resolving Church Property Disputes, (Arizona Law Review, Forthcoming).
• Annalee Hickman Moser, We Believe in Being Honest: Dependency Exemptions for LDS Missionaries, (December 1, 2015).
• Twana A. Hassan, A Historical Analysis of the Development of Free Speech Justifications, (The Journal Jurisprudence, Vol. 28 (2015), 487-506).

From SSRN (Non-U.S. and Comparative Law):

• Omar Salah & Christa Rautenbach, Islamic Finance: A Corollary to Legal Pluralism or Legal Diversity in South Africa and the Netherlands?, (Comparative and International Law of Southern Africa, Forthcoming).
• David M. Tanovich, J(TR): Time to Remove Religion From the Oath, ((2014) 6 Criminal Reports (7th) 211-214)).
• Shalu Nigam, The Privileges of Being a Hindu, Upper Caste and Elite Class, Male in India, (February 10, 2016).
• Francesco Duranti, The Constitutional Reform on State-Church Relationships, (Two Centuries of Norwegian Constitution: Between Tradition and Innovation - Edited by Giuseppe Franco Ferrari - Eleven International Publishing, 2015).
• Sean T. Murphy, Submission to the Special Joint Committee on Physician Assisted Dying, (January 31, 2016).
• Irene Merker Rosenberg & Yale L. Rosenberg, Comparative American and Talmudic Criminal Law, (2016).

From SmartCILP:

• Monica Garcia-Salmones Rovira, Faith, Ritual and Rebellion in 21st Century (Positivist) International Law. (Reviewing Jorge Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective; Jean d'Aspremont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules; International Legal Positivism in a Post-Modern World, edited by Jorge Kammerhofer and Jean d'Aspremont) 26 European Journal of International Law 537-555 (2015).
• Mark Strasser, Definitions, Religion, and Free Exercise Guarantees, 51 Tulsa Law Review 1-38 (2015).

Recent Prisoner Free Exercise Cases

In Mu'min v. Wingard, 2016 U.S. Dist. LEXIS 18479 (WD PA, Feb. 16, 2016), a California federal district court dismissed a Muslim inmate's complaint that he was denied the use of his legal religious name by the religious librarian.

In Simmons v. Upton, 2016 U.S. Dist. LEXIS 18421 (SD GA, Feb. 16, 2016), a Georgia federal magistrate judge recommended dismissing for failure to exhaust administrative remedies a Muslim inmate's  complaint that the new inmate religious practices policy violated his free exercise rights.

In Watson v. Pressley, 2016 U.S. Dist. LEXIS 17355 (D SC, Feb. 11, 2016), a South Carolina federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 17994, Jan. 21, 2016) and dismissed an inmate's complaints about restrictions on various of his Muslim religious practices.

[CORRECTION] In Hilson v. Beaury, 2016 U.S. Dist. LEXIS 19844 (ND NY, Feb. 17, 2016), a New York federal district court refused, on the ground of qualified immunity, to allow an inmate to move ahead with his complaint over delay in processing his request to change his religion from Protestant to Muslim. UPDATE:This part of the recommendation was adopted by the court at 2016 U.S. Dist. LEXIS 35058, March 18, 2016.

In Clark v. Davis, 2016 U.S. Dist. LEXIS 19971 (ND CA, Feb.17, 2016), a California federal district court dismissed allowed an inmate's complaint regarding prior prison rules on confidentiality of clergy relationships with death row inmates.

In Trapani v. Pullen, 2016 U.S. Dist. LEXIS 20500 (ND NY, Feb. 17, 2016), a New York federal district court allowed a Jewish inmate to move ahead with his complaint that he was deprived of kosher meals for a two week period.

Trump's Week of Controversial Religious Allusions

Donald Trump tonight won the South Carolina Republican primary, capping a week in which his religious rhetoric has sparked controversy.  On Thursday, Trump clashed with Pope Francis.  As reported by CNN:

One of the more unlikely battles to jolt a presidential campaign emerged Thursday when Pope Francis said Trump is "not Christian" if he wants to build a wall along the U.S.-Mexico border. Trump, true to form, shot back that the pontiff's comments were "disgraceful."

But by Thursday evening, the GOP front-runner was doing something unusual: de-escalating a fight.

"I don't like fighting with the Pope," Trump said at a GOP town hall in South Carolina hosted by CNN. "I like his personality; I like what he represents."

Trump called the Pope a "wonderful guy" and blamed the day's drama on the press.

Yesterday at a rally in South Carolina, Trump invoked a probably inaccurate story that has circulated on the Internet for years. As reported by the Washington Post:

As the crowd cheered him on, Trump told them about Pershing — “rough guy, rough guy” — who was fighting terrorism in the early 1900s. Trump didn't say where this happened, but variations of this story online usually state that it happened in the Philippines during the Philippine-American War — part of the island nation's protracted battle for independence — early in Pershing’s career.

“They were having terrorism problems, just like we do,” Trump said. “And he caught 50 terrorists who did tremendous damage and killed many people. And he took the 50 terrorists, and he took 50 men and he dipped 50 bullets in pigs’ blood — you heard that, right? He took 50 bullets, and he dipped them in pigs’ blood. And he had his men load his rifles, and he lined up the 50 people, and they shot 49 of those people. And the 50th person, he said: You go back to your people, and you tell them what happened. And for 25 years, there wasn’t a problem...."

Finally, this morning as Vice-President Joe Biden, rather than President Barack Obama, attended Justice Scalia's funeral mass, Donald Trump tweeted:

I wonder if President Obama would have attended the funeral of Justice Scalia if it were held in a Mosque? Very sad that he did not go!

Prayer At School Board Meetings Governed By School Prayer Criteria

In Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, (CD CA, Feb. 18, 2016), a California federal district court, in a 26-page opinion, held that invocations at school board meetings are governed by case law relating to school prayer, not by the line of cases on legislative prayer. Emphasizing that students regularly attend and make presentations at school board meetings, the court found the invocation policy unconstitutional, saying in part:

Because of the distinct risk of coercing students to participate in, or at least acquiesce to, religious exercises in the public school context, the Court finds the legislative exception does not apply to the policy and practice of prayer in Chino Valley School Board meetings.

The court also invalidated the Board’s practice of praying reading from the Bible and making religious statements at various points in school board meetings. (Court's order).  FFRF issued a press release announcing the decision.

Court Rejects Free Exercise Defense To Federal Cockfighting Conviction

In United States v. Olney, 2016 U.S. Dist. LEXIS 19947 (ED WA, Feb. 18, 2016), a Washington federal district court, after a bench trial, convicted Shane Scott Olney of sponsoring an Unlawful Animal Fighting Venture in violation of 7 U.S.C. § 2156(a)(1). The court rejected defendant's claim

that as a baptized Catholic, and an enrolled member of the Yakama Nation, he "has a sincerely held religious belief that the Holy Scriptures quoted in Genesis 1:26-28 ... entitles him to rule over his fighting roosters, to breed them, exhibit them, train them, and to present them for gamecock fighting."....

The court explained:

Aside from the fact that the conduct Defendant claims to be protected is not the conduct for which he was tried and convicted, the Court finds the federal statute at issue does not unconstitutionally encroach upon his First Amendment rights....

The Court finds that the statute at issue is a neutral law of general applicability and thus, it is reviewed for a rational basis.... Here, the statute is related to prevention of cruelty to animals and thus, survives rational basis review.

Former Employee's Fraud Claim Against Diocese Dismissed

In Simon v. Finn, (MO Cir. Ct., Feb. 16, 2016), a Missouri state trial court dismissed a fraud claim against the Catholic Diocese of Kansas City- St. Joseph brought by Colleen Simon, formerly the director for social ministries of a local parish.  Simon was dismissed after a newspaper article disclosed that she was in a same-sex marriage.  While Simon claimed that she was falsely assured by the Diocese that her same-sex marriage would not impact her employment, the court said:

For the Court to inquire into the knowing falsity of the Diocesan agents’ ... representations to Plaintiff about her sexual orientation relative to her position in the Diocese would impermissibly entangle the Court in matters and decisions purely canonical, since the Court must necessarily examine the religious views and practices of the Diocese in an attempt to perceive the reasonableness of Plaintiff’s reliance on the Diocese’s representations.

However the court permitted Simon to move ahead with her claim that the Diocese violated Missouri law requiring it to furnish any former employee requesting it a letter describing his or her service. It also permitted Simon to move ahead with her wage and hour claim. ADF issued a press release announcing the court's decision.

UPDATE: Catholic Culture reported Feb. 23 that the Diocese and Simon have entered an undisclosed settlement of the wage and hour and the severance letter claims.

11th Circuit Upholds Contraceptive Mandate Accommodation, But Delays Enforcement Pending SCOTUS Decision

Yesterday in a consolidated appeal of cases coming from Alabama and Georgia, the U.S. 11th Circuit Court of Appeals in a 2-1 decision upheld the Obama Administration's accommodation for religious non-profits that object to the Affordable Care Act's contraceptive coverage mandate.  In Eternal Word Television Network, Inc. v. Burwell, (11th Cir., Feb. 18, 2016), the majority, in an 86-page opinion by Judge Pryor, held that the accommodation does not violate the protections of the Religious Freedom Restoration Act, because it does not substantially burden the religious exercise of non-profits.  Alternatively the majority concluded that the government has met RFRA's compelling interest and least restrictive means tests. Judge Pryor, in a n 86-page majority opinion, said in part:

We recognize that the plaintiffs sincerely abhor and object to the subsequent acts taken by the government and their TPA [third party administrator], which ultimately result in the TPA providing contraceptive coverage to their plan participants and beneficiaries. We acknowledge that they “may not accept [the] distinction” that we draw here between their conduct and the downstream, separate conduct of HHS and the TPAs to provide coverage.... But we simply cannot say that RFRA affords the plaintiffs the right to prevent women from obtaining contraceptive coverage to which federal law entitles them based on the de minimis burden that the plaintiffs face in notifying the government that they have a religious objection. 

Judge Anderson filed a 3-page concurring opinion focusing on the "less restrictive means" issue.

Judge Tjoflat, in a 55-page dissent, said in part:

If the substantial-burden test were as the majority believes it to be, federal judges would have to decide whether the burden itself substantially violated the adherent’s beliefs. That is, the majority would necessarily shift the gaze of its “objective inquiry” to the merits of religious belief. In this Bizarro World, it would be secular courts making ex cathedra pronouncements on whether Muslims are truly put out by requirements to shave their beards...., whether Seventh-day Adventists are sufficiently deterred from accepting employment by requirements to work on Saturdays..., whether Santeria priests could just make do without ritual sacrifice or Ache-infused beads and shells..., and whether the sacramental use of peyote is really that big of a deal to members of the Native American Church.... But, of course, the Constitution does not vest in the judiciary the authority to declare winners and losers in matters of faith.

Despite the majority's views on the merits, it stayed enforcement of the accommodation against plaintiffs pending the Supreme Court's decision later this term on the identical issue in Zubik v. Burwell.  Daily Report has more on the decision.

Canadian Clergy Sex Abuse Class Action Settled For $30 Milliion

The National Post reports that a court in Quebec has approved a $30 million settlement-- the largest in a clergy sex abuse case in Quebec history.  The case-- a class action brought in 2012-- alleged that at least 60 deaf students at the Catholic Church-run Montreal Institute for the Deaf (a boy's boarding school) were abused between 1940 and 1982. The suit named 28 members of the Clercs de St. Viateur du Canada and 6 lay people working at the school as offenders.

Texas Lt. Gov. Seeks To Dispute Judicial Conduct Commission On Chaplaincy Program

In a press release yesterday, Texas Lieutenant Governor Dan Patrick announced that he has requested a formal opinion from state attorney general Ken Paxton on the constitutionality of a volunteer Justice Court Chaplaincy Program created by Montgomery County Justice of the Peace Wayne Mack.  (Full text of request for AG Opinion and Brief in Support.)  Mack, who is also the County Coroner, created the chaplaincy program to help grieving family, friends and witnesses at death scenes to which the coroner is called.  To recognize these volunteer chaplains, Mack also invites them to give a brief prayer to open his justice of the peace court proceedings.  A complaint was filed against Mack with the State Commission on Judicial Conduct. The Complaint was eventually dismissed, but the Commission urged Mack to end the chaplaincy program and to modify the opening prayer ceremony. Patrick hopes that an Attorney General's Opinion will clarify that the programs are constitutionally permissible.

South Dakota Legislature Passes Bill On Transgenders In School Restrooms; 3 Other LGBT Bills Pending

This week the South Dakota legislature passed and sent to  Gov. Dennis Daugaard HB 1008 (full text) that provides:

Every restroom, locker room, and shower room located in a public elementary or secondary school that is designated for student use and is accessible by multiple students at the same time shall be designated for and used only by students of the same biological sex. In addition, any public school student participating in a school sponsored activity off school premises which includes being in a state of undress in the presence of other students shall use those rooms designated for and used only by students of the same biological sex.

"Biological sex" is defined as "the physical condition of being male or female as determined by a person's chromosomes and anatomy as identified at birth."  The bill goes on to provide that transgender students are to be provided with reasonable accommodation, which "may include a single-occupancy restroom, a unisex restroom, or the controlled use of a restroom, locker room, or shower room that is designated for use by faculty."

According to the Christian Science Monitor, the governor has not yet decided whether to sign the bill. The Argus Leader reports that the governor will meet both with transgender students and with the bill's sponsors before making a decision.

Human Rights Campaign says that two other anti-LGBT bills have been passed by the full House of Representatives, and another anti-transgender bill has passed through committee. HB 1112 passed by the House voids the current transgender policies of interscholastic activities associations and requires that their future policies determine sex by a student's chromosomes and the sex recorded on the student's birth certificate.

HB 1107 passed by the House bars the state from taking any action against a person because that person acts in accordance with a sincerely held religious or moral belief that marriage is between one man and one woman, that sexual relations should be reserved to marriage, or that the terms male and female refer to distinct and immutable biological sexes determined by anatomy and genetics by the time of birth.

Finally, HB 1209 which has recently cleared a House Committee provides:

Any public body ... that accepts any information on a South Dakota birth certificate as official and valid shall accept all information on a South Dakota birth certificate as official and valid in carrying out the public body's legal and official duties.

Army Reservist Sues "Muslim Free" Gun Range

The ACLU of Oklahoma announced yesterday that it, along with the Oklahoma chapter of CAIR, has filed a religious discrimination suit against an Oktaha, Oklahoma gun range that advertises itself as a "Muslim Free Establishment."  The complaint (full text) in Fatihah v. Neal, (ED OK, filed 2/17/2016), contends that plaintiff, a member of the U.S. Army reserves, was denied access to the gun range because of his Muslim faith. News 9 reports on the lawsuit.

EEOC Releases Data On Complaints Received

The EEOC last week released its Fiscal Year 2015 Enforcement and Litigation Data. In fiscal 2015, the agency received 89,385 charges of workplace discrimination.  Of those, only 3,502 (3.9%) charged religious discrimination.  A further breakdown of the data shows that the EEOC found no reasonable cause in 68% of the cases of alleged religious discrimination.

Muslim Technician Sues Charging Employment Discrimination

CAIR-Michigan this week announced the filing of a religious discrimination lawsuit in federal district court against an Indiana-based healthcare technology management organization (with an office in Troy, Michigan) on behalf of an American Muslim Egyptian biomedical technician. The complaint (full text) in Hassane v. Trimedx, (ED MI, filed 2/15/2016) says that plaintiff was hired as a technician in a program that included extensive training. However, after he requested the use of two-weeks earned vacation time to travel to Egypt to celebrate Eid-al-Fitr with his family, he was removed from the training program, placed on probation and denied a promotion and salary increase that all others received. Detroit News reports on the lawsuit.

Oklahoma Supreme Court Upholds Voucher Plan Over Blaine Amendment Objections

In Oliver v. Hofmeister, (OK Sup. Ct., Feb. 16, 2016), the Oklahoma Supreme Court upheld the constitutionality of the state's voucher program that permits children with disabilities to attend any private school of their choice to obtain special education services, whether the school is sectarian or non-sectarian.  The Court held that the program does not violate the "no aid" clause of Oklahoma's Constitution, Art. II, Sec. 5 (Oklahoma's Blaine Amendment), saying in part:

Because the parent receives and directs the funds to the private school, sectarian or non-sectarian, we are satisfied that the State is not actively involved in the adoption of sectarian principles or directing monetary support to a sectarian institution through this scholarship. When the scholarship payment is directed to a sectarian private school it is at the sole and independent choice and direction of the parent and not the State. The scholarship funded through the Act has no bearing on state control of churches. We are convinced that the scholarships funded by the Act have no adverse impact on the ability of churches to act independently of state control and to operate separately from the state.

Tulsa World, reporting on the decision, says that in 2014-15, 61% of the the $2.5 million total vouchers went to religious schools.

RFRA Excuses Amish Defendant From Being Photographed During Pre-Release Processing

In United States v. Girod, (ED KY, Dec. 30, 2015), a Kentucky federal magistrate judge, accepting a federal RFRA claim, allowed an Amish criminal defendant to be processed for pre-trial release without his being required to pose for identification photographs by the U.S. Marshals Service.  Samuel Girod, charged with selling misbranded drugs in violation of federal law and with obstruction of justice, objected on religious grounds to knowing participation in photography.  Relying on Supreme Court precedent, the district court said in part:

[RFRA] requires that the Court not evaluate the general legitimacy of a stated governmental interest; rather, the Court must judge whether, as to Samuel Girod, the United States has proven a compelling interest servable only by the manner of USMS photography sought.

The court concluded that neither the interest in identifying a defendant if he were to flee nor the interest in pre-rial supervision were compelling as to this particular defendant because of his history of appearing when summoned and his ties to the community.  It added:

If this case centered on rational basis review, the Court likely would require that Girod submit to the Marshals’ processing like everyone else encountering a neutral, generally applied law or policy. Congress elected to revivify a more searching inquiry when a conflict exists between authentic religious exercise and governmental act. To prevent an exemption, the United States must prove, as to the potentially exempt objector, a compelling interest furtherable only by the offending means. The Government has failed in that burden in this particular case, at this particular stage...

Justice Scalia's Opinions on Religion Clauses and Religious Issues (Updated)

The media continue to be filled with tributes to Justice Antonin Scalia who died suddenly over the week end. (See prior posting).  Religion News Service and NPR review Justice Scalia's views on religion, the religion clauses of the 1st Amendment and on social issues that have become religious flash points.

Here are links to cases involving issues of religion, religious exercise or religious speech in which Scalia wrote opinions (either majority, concurring or dissenting):

• Edwards v. Aguillard, (1987) (dissenting opinion)
• Employment Division v. Smith, (1990) (majority opinion)
• Lee v. Weisman, (1992) (dissenting opinion)
• Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, (1993) (concurring opinion)
• Lamb's Chapel v. Center Moriches Union Free School District, (1993) (concurring opinion)
• Board of Education of Kiryas Joel Village School District v. Grumet, (1994) (dissenting opinion).
• Capitol Square Review and Advisory Board v. Pinette, (1995) (opinion of the court)
• City of Boerne v. Flores, (1997) (concurring opinion)
• Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, (2002) (concurring opinion)
• Locke v. Davey, (2004) (dissenting opinion)
• Van Orden v. Perry, (2005) (concurring opinion)
• McCreary County v. ACLU, (2005) (dissenting opinion)
• Elmbrook School District v. Doe, (2014) (dissent to denial of cert.)
• EEOC v. Abercrombie & Fitch Stores, Inc., (2015) (majority opinion)

Here are opinions he wrote on issues of abortion, homosexuality and same-sex marriage:

• Webster v. Reproductive Health Services, (1989) (concurring in part)
• Ohio v. Akron Center for Reproductive Health, (1990) (concurring opinion)
• Planned Parenthood of Southeastern Pennsylvania v. Casey, (1992) (concurring and dissenting)
• Shenck v. Pro-Choice Network of Western New York, (1997) (concurring and dissenting)
• Stenberg v. Carhart, (2000) (dissenting opinion)
• Lawrence v. Texas, (2003) (dissenting opinion)
• Obergefell v. Hodges, (2015) (dissenting opinion)

These lists are almost certainly incomplete.  I invite readers to continue to send along citations to others that should be added.

Zoning For "Houses of Worship" Does Not Include Homeless Services Site

The Albany Times-Union reports that a New York state trial court judge last week overruled the Albany Board of Zoning Appeals decision that would have allowed the non-profit group Family Promise of the Capital Region to use a building in an area zoned to include "houses of worship" to provide services to homeless families.  The site-- a parsonage of the Bethany Reformed Church-- was used to provide daytime child care, access to computers, career and life counseling and a place to pick up mail and make phone calls.  The Board of Zoning Appeals held that the outreach services were part of Bethany's religious mission.  However the court disagreed, saying that a "house of worship" is a place set aside for for some form of religious devotion, ritual or service showing reverence. Critics of the court's decision say the ruling could create problems for all sorts of congregations that make their basements and meeting rooms available for social programs they deem part of their missions.  Family Promise can still apply for a zoning variance to allow it to continue its operations.