Data On Religious Affiliation of Super Tuesday Voters

The Pew Research Center yesterday compiled data in post titled A Closer Look At Religion in the Super Tuesday States.  It reports in part:

Overall, nearly half of all people in the 12 Super Tuesday states who identify as or lean toward the Republican Party (47%) are evangelical Protestants....

Massachusetts, one of the five states outside the South to vote Tuesday, is the biggest exception to this trend; only 10% of Massachusetts Republicans are evangelicals, while fully half (50%) are Catholics....

Among Democrats, people with no religious affiliation are the largest group in three of the 11 states that will vote Tuesday....

Members of historically black Protestant churches also are a key Democratic constituency.... 

Evangelicals are the single biggest group among Democrats in Tennessee (39%), and they make up 20% of all Democrats in the 11 states that will vote Tuesday.

In Massachusetts (27%) and Texas (26%), about a quarter of Democrats are Catholics; in Texas, the overwhelming majority of Catholic Democrats (79%) are Hispanic....

FFRF Sues Over Governor's Removal of Bill of Rights "Nativity" Display

As previously reported, last December Texas Gov. Greg Abbott, as chairman of the Texas State Preservation Board, forced the executive director of the Board to remove from the state capitol rotunda a previously-approved display by the Freedom From Religion Foundation of a Bill of Rights "nativity" scene.  The display included figures of the founding fathers and a sign about the Winter solstice. The Governor complained that the display mocks Christians and Christianity. Yesterday, FFRF filed a lawsuit challenging the governor's action and requesting a declaratory judgment, injunction and nominal damages. The complaint (full text) in Freedom From Religion Foundation, Inc. v. Abbott,  (WD TX, filed 2/25/2016), contends:

Defendants have violated the Plaintiff’s Free Speech, Equal Protection and Due Process rights, and ... have violated the Establishment Clause, by removing and excluding the Plaintiff’s protected speech, a display, from a public forum, because of the content of the Plaintiff’s speech.

FFRF issued a press release announcing the filing of the lawsuit.

Amicus Briefs Supporting Government In Zubik Case Are Filed

Feb. 17 was the deadline to file amicus briefs with the U.S. Supreme Court in support of the government's position in Zubik v. Burwell and its companion cases which challenge the accommodation for religious non-profits that object to the contraceptive coverage mandate under the Affordable Care Act.  21 amicus briefs were filed, and SCOTUSblog has links to most of them, as well as to the amicus briefs supporting petitioner which where due last month. (See prior posting.) Oral argument is set for March 23. With the death of Justice Scalia, the possibility of an evenly divided court is present.  That would affirm the Circuit Court decisions in all 7 of the cases in which review was granted.

Airline Faces Religious Objection To In-Flight Movie

According to Haaretz, Israel's El Al Airlines yesterday faced an unruly passenger demand for religious accommodation.  On a flight from Warsaw, Poland to Tel Aviv, an ultra-Orthodox Jewish passenger objected that the in-flight movie being shown was immodest.  He began pushing and striking at the screens showing it, breaking two of them. The movie was "Truth," an "R" rated film starring Cate Blanchett, Robert Redford and Dennis Quaid.  El Al has faced at least one prior incident of passengers objecting to the in-flight movies, and a number of times has faced religious demands by passengers for sex-segregated seating assignments. (See prior related posting.)

Feds Indict FLDS Leaders On Food Stamp Fraud Charges

The U.S. Attorney's Office for the District of Utah announced on Tuesday the unsealing of an indictment against eleven leaders and members of the polygamous FLDS Church charging them with conspiracy to commit food stamp fraud and conspiracy to commit money laundering.  (Full text of indictment in United States v. Jeffs). According to the U.S. Attorney's Office:

The indictment alleges church leaders diverted SNAP proceeds from authorized beneficiaries to leaders of the FLDS Church for use by ineligible beneficiaries and for unapproved purposes. A large percentage of FLDS Church members living in the Hildale, Utah – Colorado City, Arizona, community known as Short Creek receive SNAP benefits, amounting to millions of dollars in benefits per year.

Essentially, FLDS leaders required food stamp recipients to donate their benefits to a central clearing house which then redistributed food and household items to all in the community, whether or not they were food-stamp eligible. The indictment includes counts seeking criminal forfeiture of assets.  Daily Beast  reports further on the indictments.

Housing Crunch For Orthodox Jews In New Jersey Places Focus On Real Estate Practices [UPDATED]

AP reported yesterday on the influx of ultra-Orthodox Jews into the town of Lakewood, New Jersey and surrounding communities.  AP reports that the influx is of Hasidic Jews, but as a commenter on Twitter to an earlier version of this post points out, the Jews in Lakewood, and the yeshiva that attracts them are largely in the Orthodox Lithuanian Jewish ("Yeshivish") tradition, not Hasidic. Nevertheless here is AP's report:

A housing crunch in Lakewood, home to one of the nation’s largest populations of Hasidic Jews, has triggered what residents of neighboring communities say are overly aggressive, all-hours solicitations from agents looking to find homes for the rapidly growing Jewish community.

The complaints have prompted towns, including Toms River, to update their “no-knock” rules and related laws, adding real estate inquiries to measures that already limit when soliciting can occur and allow residents to bar solicitations.

But Jewish leaders and others say the no-knock laws unfairly target Orthodox Jews and those seeking to help them find houses. Many current residents came to the community to study at one of the largest yeshivas in the world and eventually settled down....

On the other hand, some of the solicitation activity is reminiscent of the kind of activity that led to the federal Fair Housing Act's ban on "blockbusting."  42 USC Sec. 3604(e) makes it illegal:

For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin.

AP describes one homeowner's experience:

James Jackson didn’t want to sell his home but thanked the black-suited man for his interest anyway.

That’s when the man put his hand on Jackson’s shoulder and told him he might want to reconsider. Many of his neighbors in the New Jersey shore town of Toms River, the man said, already planned to sell to Jewish buyers like those he represented.

“He asked me why I would want to live in a Hasidic neighborhood if I wasn’t Hasidic,” Jackson recalled. “He asked if I would really be happy, if it would be in my family’s best interests.”

Indiana City Strengthens LGBT Anti-Discrimination Protections

As reported by the Evansville Courier & Press, Evansville, Indiana city council on Monday, by a 7-2 vote, passed Ordinance G-2016-05 (full text) which expands anti-discrimination protections for gay, lesbian, bisexual and transgender individuals.  Previously the city banned discrimination on the basis of sexual orientation and gender identity, but the city's Human Relations Commission essentially lacked enforcement power. Investigation and mediation were solely voluntary on the part of the parties. The new ordinance gives the Human Relations Commission the same enforcement powers in cases of LGBT discrimination, as in discrimination on other bases. The new ordinance however also enacts new exemptions from the city's anti-discrimination provisions.  It exempts religious and religiously affiliated organizations, as well as private social clubs. City Council rejected proposed broader exemptions for individuals and non-profits with a "religious conscience."

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.