Sikh Army Captain Sues Seeking Religious Accommodation

U.S. Army Captain Simratpal Singh, a Sikh, filed suit yesterday in federal district court in the District of Columbia seeking an injunction to require the Army to allow him to continue to serve without requiring him to shave, cut his hair or remove his turban.  According to the complaint (full text) and memorandum in support of application for a TRO and preliminary injunction (full text), Singh was granted a temporary accommodation last December (see prior posting), but as its March 31 expiration approached Singh was ordered to report for special helmet testing and several days of safety-mask testing. No one else in the army has been subjected to this kind of testing.  According to the complaint, "the Army’s discriminatory testing and regulations expose Captain Singh to serious consequences of military discipline and the loss of his career for his religious exercise." The complaint alleges violations of RFRA as well as of the 1st and 5th Amendments.  Becket Fund issued a press release announcing the filing of the lawsuit.

China Charges Human Rights Lawyer Criminally

Radio Free Asia reported yesterday that Chinese authorities have now arrested a Chinese human rights lawyer on criminal charges after he assisted Protestant churches in resisting an urban "improvement" campaign that required removal of their roof-top crosses:

Zhang Kai's initial period of detention in an unknown location under "residential surveillance" reached the end of its six-month limit last week, and the lawyer was immediately held instead under criminal detention on suspicion of "disturbing public order" and "endangering state secrets," a fellow lawyer told RFA....

Chinese media aired footage of Zhang last Friday "confessing" to the charges, and accused U.S.-based Christian rights group ChinaAid of supporting him.

The confession appears to have been coerced.

Cert. Denied In Challenge To N.J. Conversion Therapy Ban

The U.S. Supreme Court yesterday denied certiorari in Doe v. Christie, (Docket No. 15-195, cert. denied 2/20/2016) (Order List.)  In the case, the U.S. 3rd Circuit Court of Appeals upheld a New Jersey statute that prohibits mental health professionals from engaging in "sexual orientation change efforts" with minors. (See prior posting.) Liberty Counsel issued a press release on the Court's action.

Cert Denied In Prisoner Free Exercise Case Over Alito's Dissenting Opinion

The U.S. Supreme Court today denied certiorari in Ben-Levi v. Brown, (Docket No. 14-1086, cert. denied 2/29/2016) over a lengthy dissent to denial of review by Justice Alito (at pg. 39 of Order List). In the case, the lower courts (district court, 4th Cir.) upheld a rule of the North Carolina prison system which requires either a minyan (ten participants) or the presence of a qualified leader (such as a rabbi) in order for a Jewish Bible study group to meet.  Other religious groups were allowed to meet without a specified number of participants or an outside volunteer.  The prison system's rule for Jewish inmates was based on the prison system's understanding of Jewish religious doctrine. Dissenting from the denial of review, Justice Alito wrote:

In essence, respondent’s argument—which was accepted by the courts below—is that Ben-Levi’s religious exercise was not burdened because he misunderstands his own religion..... The argument that a plaintiff’s own interpretation of his or her religion must yield to the government’s interpretation is foreclosed by our precedents.... Even assuming that respondent accurately identified the requirements for a group Torah study under Jewish doctrine—and that is not at all clear—federal courts have no warrant to evaluate “‘the validity of [Ben-Levi’s] interpretations.’”

[Thanks to Marty Lederman via Religionlaw for the lead.] 

Justice Department Investigating Mosque Zoning Dispute In Nebraska

According to yesterday's Omaha World-Herald, the U.S. Justice Department is investigating complaints by leaders of a mosque in Lexington, Nebraska, that the town is burdening their religious freedom in raising zoning objections to the use of a former downtown laundry building for Muslim prayer.  Somali workers from a local meat packing plant use the building for prayer 5 times a day. The paper reports:

City officials maintain that mosque leaders are ignoring local zoning laws and thumbing their noses at requirements for building permits and fire-code inspections.

They insist that the flap is about a lack of parking, not a denial of religious freedom, and that it wasn’t spurred by “Islamophobia.”

.... We’re just trying to plan and redevelop that part of our town,” said Lexington City Manager Joe Pepplitsch.... Let’s find an alternative.”

But local Muslim leaders question why a community that has hosted waves of immigrants seems to be taking such a hard line against them. They had gathered for prayers in two smaller buildings for eight years before expanding into and later buying the larger laundry next door. They see plenty of empty parking stalls nearby at two city-owned lots.

State Exception To Priest-Penitent Privilege Violates Louisiana Religious Freedom Act

The Baton Rouge Advocate reports on a Louisiana state trial court decision handed down on Friday that upholds, on religious freedom grounds, a priest's right to refuse to disclose confidential information regarding sexual abuse of minors received during confession. The court invalidated a provision in LA Children's Code Sec. 609(A)(1) which requires clergy to report abuse or neglect that threatens a child's physical or mental health or welfare, notwithstanding any privilege.  Apparently relying on Louisiana's Preservation of Religious Freedom Act, the court held that while the state has a compelling interest in protecting children from abuse, this is not the least restrictive means of furthering that interest. The decision by Judge Mike Caldwell comes in a suit by Rebecca Mayeaux, now 22, who says that in 2008 she told Rev. Jeff Bayhi during confession that she was being abused by a 64-year old parishioner. Under the ruling, Mayeaux will be able to testify about what she told Bayhi, but her attorneys will not be permitted to argue to the jury that Bayhi was required to report her allegations to authorities.  The ruling is subject to immediate appeal to the Louisiana Supreme Court.  The lawsuit, originally filed in 2009, has already been up to the state Supreme Court once. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Kif Augustine-Adams, Religious Exemptions to Title IX, (February 19, 2016).
• Matthew W. Bourda, Turning the Water to Blood: How Burwell v. Hobby Lobby Drove the Religious Freedom and Restoration Act Out of Touch with Society, (41 T. Marshall L. Rev. Online 160 (2016)).
• Levi Cooper, Legislation for Education: The Munkács Regulations Enacted by Rabbi Tsevi Elimelekh of Dynów, (Polin: Studies in Polish Jewry 30 (2017), Forthcoming).
• Shaun Alberto de Freitas, Religious Associational Rights and Sexual Conduct in South Africa: Towards the Furtherance of the Accommodation of a Diversity of Beliefs, (February 20, 2016).
• Asim Jusic, From Formal Equality to Positive Neutrality to Positive Inferiority (for Some): The European Court of Human Rights’ Limited Influence on Constitutional Changes and Religion in Hungary, (Vienna Journal of International Constitutional Law, Vol. 10, 2016).
• Mohamed A. Arafa, Insights on Divine (Islamic) Law: Islamophobia versus Terrorism, Death Penalty, and Transitional Justice, (CALUMET: Intercultural Law & Humanities Review (Online) 2016).
• Kristine S, Knaplund, Becoming Charitable: Predicting and Encouraging Charitable Bequests in Wills, (77 U. Pitt. L. Rev. (Fall 2015).

From SSRN (Marriage):

• Robin Bradley Kar, Against Marriage Essentialism: A Legal Grounding for Obergefell and Same-Sex Marriage, (University of Illinois Law Review, Forthcoming).
• Gregg Strauss, The Positive Right to Marry, (February 24, 2016).
• Kaiponanea T. Matsumura, A Right Not to Marry, (Fordham Law Review, Vol. 84, 2016).

El Al Sued In Israel Over Gender-Based Reseating To Accommodate Religious Objections

A widely anticipated test case has been filed in court in Israel against El Al Airlines over its practice of accommodating Orthodox Jewish men who, for religious reasons, refuse to sit beside unrelated female passengers. New York Times reported Friday on the discrimination suit filed by the Israel Religious Action Center on behalf of 81-year old Renee Rabinowitz who was pressured by a flight attendant to change seats on a flight from Newark to Tel Aviv.  Rabinowitz is described by the Times as "a sharp-witted retired lawyer with a Ph.D. in educational psychology, who escaped the Nazis in Europe as a child." Rabinowitz moved to Israel from the United States some ten years ago.  Both her second and first husbands were rabbis. The Religious Action Center had been looking for at test case where it was clear that flight attendants, as opposed to passengers alone, were involved in the seating change.

Recent Prisoner Free Exercise Cases

In Shehee v. Ahlin, 2016 U.S. Dist. LEXIS 22708 (ED CA, Feb. 24, 2016), a California federal magistrate judge recommended dismissing a suit by a Hindu civil detainee that he was denied his religious vegan diet.

In Perez v. Watts, 2016 U.S. Dist. LEXIS 20497 (SD GA, Feb. 19, 2016), a Georgia federal district court adopted (as supplemented by the court) a magistrate's recommendation (2015 U.S. Dist. LEXIS 173384, Dec. 31, 2015) and dismissed monetary damage claims brought by a Santeria inmate claiming interference with his ability to practice his religion. (See prior related posting.)

In Powell v. Morris, 2016 U.S. Dist. LEXIS 20971 (D MS, Feb. 22, 2016), a Mississippi federal magistrate judge dismissed a Muslim inmate's complaint that he was not provided halal meals or Taleem study classes.

In Blalock v. Jacobsen, 2016 U.S. Dist. LEXIS 21168 (SD NY, Feb. 22, 2016), a New York federal district court dismissed a Muslim inmate's complaint about limits on his ability to have has prison-issued pants shortened to comply with religious principles.

In Avery v. Elia, 2016 U.S. Dist. LEXIS 21367 (ED CA, Feb. 19, 2016), a California federal magistrate judge recommended dismissing the complaint of a Wiccan inmate that he was not permitted to ceremonially burn wood in a fire pit.

In Cary v. Robinson, 2016 U.S. Dist. LEXIS 20876 (WD MI, Feb. 22, 2016), a Michigan federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 21810, Feb. 2, 2016)  and permitted a Native American inmate to move ahead with his free exercise and equal protection challenges to confiscation and desecration of his medicine bag.

In Johnson v. Brown, 2016 U.S. Dist. LEXIS 20929 (ND AL, Feb. 22, 2016), an Alabama federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 21916, Feb. 1, 2016) and dismissed a Muslim inmate's complaint regarding limitation of Sunnah inmates' access to the "Masjid" classroom and occasional interruption of religious services.

In Ramos v. Department of Corrections, 2016 U.S. Dist. LEXIS 22311 (D CT, Feb. 24, 2016), a Connecticut federal district court allowed an inmate who is a member of the Santeria religion to move ahead with his complaint that his free exercise and equal protection rights were infringed when he was not allowed to possess tarot cards to practice his religion.

In Cruz v. Collins, 2016 Mass. App. Unpub. LEXIS 194 (MA App., Feb. 25, 2016), a Massachusetts state appeals court reversed a trial court's dismissal of a RLUIPA claim by a Nation of Islam inmate challenging limits on his access to  use classroom space to pray and study throughout the week.

In Hays v. Helder, 2016 U.S. Dist. LEXIS 23093 (WD AR, Feb. 25, 2016), an Arkansas federal district court adopted a magistrate's recommendation and dismissed (partly on res judicata grounds) a complaint by a member of the Cherokee Indian faith that he was denied access to his medicine bag.

Title IX Religious Organization Exemption Does Not Bar Retaliation Claim Against Catholic High School

In Goodman v. Archbishop Curley High School, Inc., (D MD, Feb. 26, 2016), a Maryland federal district court refused to dismiss a former high school librarian's Title IX retaliation claim against the Catholic high school from which she was fired.  Librarian Annette Goodman reported to the school's administration evidence that another faculty member was having a sexual affair with one of the school's students. The school fired Goodman claiming that she delayed too long reporting her concerns to the school. Goodman says the firing was an attempt to deflect attention from the school's indifference to sexual abuse.  The court rejected the school's claim that Title IX's religious organizations exemption requires dismissal of Goodman's lawsuit, saying in part:

The position of the Defendants ... is that Title IX’s religious organizations exemption bars any employment discrimination or retaliation claim against them if they define their actions as tenets of their religion. There is a noticeable lack of case authority supporting such a broad application of the religious exemption.

The court also rejected defendants' claims that their rights under the First Amendment and RFRA would be violated by allowing the suit to move forward.

Church Fails In RLUIPA Challenge To Village's Zoning Ordinance

In Truth Foundation Ministries, NFP v. Village of Romeoville, (ND IL, Feb. 26, 2016), an Illinois federal district court denied a preliminary injunction to a small congregation serving mainly African immigrants that found itself in violation of the village's zoning code after it had spent over $50,000 expanding a building it was leasing for use as a church.  The court concluded that the church had failed to show a substantial likelihood of success in its claim that the town's zoning requirements violate RLUIPA's complete exclusion, unreasonable exclusion and equal terms provisions.

Trump Pledges To Work To Eliminate Ban on Religious Non-Profits Endorsing Candidates

In a news conference in Ft. Worth, Texas today, Republican candidate Donald Trump-- saying that Christians are afraid to have a lobby because it threatens their tax exempt status-- pledged to work to eliminate the Johnson amendment that prevents non-profits, including religious non-profits, from endorsing or opposing political candidates. (Video of news conference, this portion at 1:44).  This came after evangelical Pastor Robert Jeffress endorsed Trump at the news conference (video at 1:42).

Trump Speculates Audit of His Tax Returns Stems From Religious Discrimination

As reported by Politico, during last night's contentious CNN Republican presidential debate Donald Trump said that he has not released his tax returns because they are the subject of a routine IRS audit. Then in an interview with CNN's Chris Cuomo immediately following the debate, Trump said:

But the one problem I have is that I’m always audited by the IRS, which I think is very unfair. I don’t know, maybe because of religion, maybe because I’m doing something else, maybe because I’m doing this, although this is just recently.

Cuomo followed up asking Trump what he meant by religion, and Trump responded:

Well maybe because of the fact that I’m a strong Christian, and I feel strongly about it. And maybe there’s a bias.  You see what’s happened. I mean, you have many religious groups have been complaining about that. They’ve been complaining about it for a long time.

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."