FLDS Leader Lyle Jeffs Denied Bond In Food Stamp Fraud Case

On Monday, a U.S. Magistrate Judge in Salt Lake City, Utah granted the prosecution's request to deny bond to FLDS Church bishop Lyle Steed Jeffs who is charged with conspiracy to commit food stamp fraud and conspiracy to commit money laundering. Jeffs and ten others are charged with diverting millions of dollars in food stamp benefits to church leaders who then reallocated the benefits. (See prior posting.) KSL News reports that prosecutors convinced the court that Jeffs poses an extreme flight risk, despite the absence of precedent for denying bond in a welfare fraud case. Seven of the other defendants have been released on bond, subject to GPS monitoring and other conditions.

Court Says Jihadist's Religious Faith Was Not Reason For Life Sentence

In Shnewer v. United States, ( NJ, March 2, 2016), a New Jersey federal district court rejected a claim by a jihadist who was sentenced to life in prison for conspiracy to kill United States military personnel that his religious beliefs were improperly used in determining his sentence.  As reported by NJ Advance Media, at issue was the sentence imposed on Mohamad Shnewer, a key figure in a foiled plot to kill soldiers at Fort Dix and other military installations. In rejecting Shnewer's claims, the court said in part:

This Court did not use Mr. Shnewer’s devout Muslim faith to help this Court reach the conclusion that it would sentence him to ... life imprisonment, but rather ... this Court believed that Mr. Shnewer could not be rehabilitated and therefore posed a threat if released based upon his violent radical Islamic beliefs. This did not run afoul of the Constitution and did not amount to this Court using Mr. Shnewer’s devout Muslim faith to determine his sentence. 

RLUIPA Challenge Settled; Soup Kitchen Gets Permit To Operate

JDSupra reported yesterday on the settlement of three related RLUIPA lawsuits that were filed against the City of Norwich, Connecticut by St. Vincent de Paul Place, a ministry of The Polish Roman Catholic Congregation.  The suits sought authorization to continue to operate a soup kitchen and food pantry, and offer related services, at the site of a former parochial school. The Stipulated Judgment (full text) in St. Vincent de Paul Place, Norwich, Inc. v. City of Norwich, (D CT, Feb. 12, 2016), provides that the city will issue a special permit, subject to specified hours of operation, to the church.  The city commission approved the settlement at a public meeting, despite continued opposition from neighbors. City commissioners did not want to risk liability for the church's legal fees that the city would have incurred if it continued to litigate and ultimately lost. (See prior related posting.)

Fired Gay Music Director Sues Chicago Archdiocese for Discrimination

Following an EEOC complaint filed last year (see prior posting), the former music director of a suburban Chicago Catholic parish has now filed an employment discrimination suit in federal district court against the parish and the Archdiocese of Chicago. The Chicago Tribune reported yesterday on the lawsuit by Colin Collette against the Holy Family Catholic Community in Inverness and the Archdiocese, alleging violations of the federal Civil Rights Act, the Illinois Human Rights Act and the Cook County Human Rights Ordinance.  Collette was fired last July after he announced that he was engaged to be married to his longtime partner Will Nifong.  Collette says church leaders knew he was gay long before he posted his engagement notice on Facebook, and his subsequent marriage to his partner.  Collette is seeking damages, back pay and reinstatement.

Supreme Court Denies Cert. In Bus Ad Case; Thomas Dissents

Yesterday the U.S. Supreme Court denied certiorari in American Freedom Defense Initiative v. King County, Washington, (Docket No. 15-584, cert. denied 3/7/2016). However Justice Thomas wrote an 8-page dissent to the denial of cert.  Justice Alito joined the dissent. (Order List at pg. 59).  They urged the Court to use the case to resolve the split among Circuits on whether advertising space on public buses should be categorized for First Amendment purposes as designated public forums or limited public forums.  Transit authorities have greater control over content in limited public forums.  AFDI, the appellant in this case, has been involved in a number of the other cases raising the same issue, and some of its ads in other cases have been attacked as anti-Muslim. (See prior posting.)

Meanwhile Reuters reported yesterday:

Humorous ads for a documentary film that aims to promote understanding and tolerance of Muslims went up in New York subways on Monday after the movie's production company won a legal battle with the city's transit authority....

The advertisements debuted after a federal court in Manhattan ruled in October that being Muslim was a religious, not a political, identity. The Metropolitan Transportation Authority has a policy prohibiting political speech in ads on public transportation.

Federal Jury Says FLDS Twin Towns Discriminated

Yesterday an Arizona federal district court jury agreed that the towns of Colorado City, Arizona, and Hildale, Utah, and their joint water company systematically discriminated, in violation of the Fair Housing Act, against individuals who are not members of the FLDS Church in providing housing, utilities and police services. As reported by Deseret News, even though the jury awarded damages of $2.2 million to six residents, prior to the jury verdict the parties had negotiated a $1.6 million settlement under the Fair Housing Act.  According to a Justice Department press release, the suit was also filed by the government under 42 USC 14141.  The Sec. 14141 civil action does not include the right to a jury trial, so the jury's findings on that portion of the government's suit are advisory:

In its advisory verdict, the jury found that the Colorado City Marshal’s Office, the cities’ joint police department, operated as an arm of the FLDS church in violation of the establishment clause of the First Amendment; engaged in discriminatory policing in violation of the equal protection clause of the 14th Amendment and the establishment clause; and subjected individuals to unlawful stops, seizures and arrests in violation of the Fourth Amendment.

(See prior related posting.)

Supreme Court: Alabama Must Recognize Georgia's Order Granting Same-Sex Spouse Adoption Rights [CORRECTED]

The U.S. Supreme Court today in a summary per curiam opinion reversed the Alabama Supreme Court's refusal to recognize a Georgia court's approval of the adoption of one woman's children by her lesbian partner.  In V.L. v. E.L., (Sup. Ct., March 7 2016), the Supreme Court held that the Constitution's full faith and credit clause requires Alabama courts to recognize the Georgia adoption order.  The Alabama Supreme Court had wrongly concluded that Georgia courts lacked jurisdiction to enter the order.  The issue arose in the context of the adoptive mother seeking visitation rights after the couple separated. New York Times reports on the decision. [Note correction-- an earlier version of this posting incorrectly referred to Louisiana instead of Alabama.]

In Israel, Western Wall Compromise May Be Unraveling

In Israel, the much-heralded compromise approved by Prime Minister Netanyahu's cabinet at the end of January to construct a separate prayer space at the Western Wall for egalitarian prayer now seems to possibly be unraveling.  Jerusalem Post reported yesterday that opposition from the Chief Rabbinate and much of the Orthodox religious establishment is growing.  A meeting between the Prime Minister and Israel's two chief rabbis scheduled for yesterday was canceled as the Prime minister asked the chief rabbis along with the current Orthodox administrator of the Western Wall to submit proposals for changes in the agreement. The Orthodox establishment appears to be particularly opposed to the arrangement that would create a committee to regulate the proposed new prayer space, with the Reform and Conservative (Masorti) movements in Judaism given seats on the committee. Several Israeli Orthodox rabbis have made scathing attacks against the Reform movement in recent weeks. On Saturday, the Sephardi Chief Rabbi of Jerusalem, Shlomo Amar, referring to the Reform and Conservative movements, said:

It is not permitted in any way to give it [the Western Wall] over to disgrace and shame in the hands of those who purport to pray and act with immodesty and clownishness, which is a desecration of that which is holy, and the trampling of the inheritance of Israel throughout the generations in a brazen and cruel manner.

Recent Articles of Interest

From SSRN:

• Elisabeth Fontugne, Respecting Religion: How Court and Congress Impermissibly Treaded on Sacred Ground to the People's Detriment, (December 15, 2015).
• Jared A. Goldstein, How the Constitution Became Christian, Roger Williams Univ. Legal Studies Paper No. 167 (Feb. 2016).
• Daniel L. Chen & Jo Thori Lind, The Political Economy of Beliefs: Why Fiscal and Social Conservatives/Liberals Come Hand-in-Hand, (March 1, 2016).
• Aileen M. Marty, Elana Marty-Nelson & Eloisa C. Rodriguez-Dod, The Intersection of Law, Religion, and Infectious Disease on the Handling and Disposition of Human Remains, (Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen & Elizabeth Sepper eds., Cambridge University Press, Spring 2017 Forthcoming).
• Sherif Girgis, Nervous Victors, Illiberal Measures: A Response to Douglas Nejaime and Reva Siegel, (Yale Law Journal Forum, 2016).
• Brian McCall, Why it is Good to Stop at a Red Light: The Basis of Authority and Obligation, (Journal of Catholic Legal Studies, Forthcoming).
• Scott W. Gaylord, RFRA Rights Revisited: Substantial Burdens, Judicial Competence, and the Religious Nonprofit Cases, (Elon University Law Legal Studies Research Paper No. 2016-07 (2016)).
• Travis S. Andrews, Delegating Religious Liberty: The Executive's Role in Accommodating Religion, (February 1, 2016).

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

• Neil Weinstock Netanel, Introduction to: From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print, (Oxford University Press 2016).
• Asim Jusic, SAS v. France and the French Burkha Ban: Public Moral Order of Laïcité and the Struggle Against Disloyal Groups, (February 24, 2016).
• Gautam Bhatia, A Right to Faith: Individual, Community, State and Religious Freedom Under the Indian Constitution, (February 28, 2016).
• Mary Anne Case, The Role of the Popes in the Invention of Complementarity and the Vatican's Anathematization of Gender, (Forthcoming Religion and Gender Habemus Gender Special Issue 2016).
• Naveed Ahmad, Hurmat Sumaiya Binti Bashir & Yousfi Karima, Status of Women in Islam: A Perspective, (“Status of Women in Islam: A Perspective” Global Islamic Economics Magazine, Volume 43, 2015).

From SmartCILP and elsewhere:

• Andre P. Audette & Christopher L. Weaver, Faith in the Court: Religious Out-Groups and the Perceived Legitimacy of Judicial Decisions, [Abstract], 49 Law & Society Review 999-1022 (2015).
• Callum Brown, Thomas Green & Jane Mair, Religion in Scots Law: Report of an Audit at the University of Glasgow, (Feb. 2016).

Religious Accommodations for Saturday Presidential Caucuses Surveyed

The Campaign Legal Center last week published an interesting survey of the extent to which states that hold Saturday caucuses in Presidential elections provide accommodations for Jews, Seventh Day Adventists and other Saturday Sabbath observers. It concluded in part:

Some state parties make accommodations for those who are unable to caucus in person due to religious observance. However, absentee procedures in these states are limited, not well publicized or conducted through ad hoc mechanisms without clear standards—or even no standards at all.

However the survey pointed to practices of the Democratic Party in Washington state and Wyoming as excellent examples of accommodation that should be used as models.  They allow voters to submit surrogate affidavits if they are unable to caucus in person because of religious observance, military service, disability, illness or work schedule. [Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Young v. Muhammad, 2016 U.S. Dist. LEXIS 24711 (CD CA, Feb. 24, 2016), a California federal district court accepted most of a magistrate's recommendations (2015 U.S. Dist. LEXIS 176470, Dec. 22, 2015) and dismissed claims by an inmate who was removed from the Ramadan list and Muslim services for a period of time after he argued over religious theology with other inmates.

In Dawson v. Beard, 2016 U.S. Dist. LEXIS 24806 (ED CA, Feb. 26, 2016), a California federal magistrate judge dismissed an inmate's complaint that he was denied access to religious services on numerous occasions, and denied the right to fast.

In Brandon v. Schroyer, 2016 U.S. Dist. LEXIS 25003 (ND NY, Feb. 26, 2016), a New York federal magistrate judge rejected claims by a Muslim inmate that his free exercise rights were infringed when he was served meals containing pork ten times during a year, and found he had failed to exhaust administrative remedies as to denial of participation in Ramadan and access to congregate religious services.

In Hamilton v. Countant, 2016 U.S. Dist. LEXIS 25329 (SD NY, March 1, 2016), a New York federal district court dismissed a Rastafarian inmate's complaint that authorities seized religious items from the prison chapel, made alterations to the calendar on which the prison listed recognized religious holidays, and refused to provide the cornbread and grape juice required for him to take communion during the Rastafarian Fasika holiday.

In Jarrett v. Snyder, 2016 U.S. Dist. LEXIS 25277 (WD MI, Feb. 29, 2016), a Michigan federal district court permitted a Buddhist inmate to move ahead with his complaint that he was wrongfully removed from the vegetarian meal plan. The magistrate's opinion in the case is at 2016 U.S. Dist. LEXIS 25844, Jan. 11, 2016.

In Hoeck v. Miklich, 2016 U.S. Dist. LEXIS 25940 (D CO, March 1, 2016), a Colorado federal district court accepted a magistrate's recommendation (2015 U.S. Dist. LEXIS 176572, Oct. 26, 2015) and dismissed an inmate's claims that requiring him to change linens and move cells on the Sabbath, denying him an appropriate place to worship, and failing to classify Biblical Christianity as an independent religion violated RLUIPA. Plaintiff was however allowed to proceed on his First Amendment and state law challenges to these practices and his RLUIPA challenge to the grooming policy.

In Shaw v. Upton, 2016 U.S. Dist. LEXIS 26575 (SD GA, March 2, 2016), a Georgia federal magistrate judge recommended dismissing for failure to exhaust administrative remedies an inmate's claim that he was deliberately transferred to another facility to deny him access to a religious vegan diet.

In Tyler v. Lassiter, 2016 U.S. Dist. LEXIS 27161 (ED NC, March 3, 2016), a North Carolina federal district court held that a Jewish inmate's religious exercise was not substantially burdened when for disciplinary reasons he was placed on a vegetarian nutraloaf diet for one week instead of receiving his kosher meals.

In Johnson v. Lewis, 2016 U.S. Dist. LEXIS 27169 (WD NC, March 3, 2016), a North Carolina federal district court rejected a Hebrew Israelite inmate's complaints about the kosher diet he was receiving.

In Stiles v. Cook, 2016 U.S. Dist. LEXIS 27281 (WD NC, March 3, 2016), a North Carolina federal district court dismissed without prejudice for failure to exhaust administrative remedies a suit by a Native American inmate complaining that his "Indian prayer" materials were confiscated.

Court Enjoins Army From Requiring Special Testing of Sikh Officer

In Singh v. Carter, (D DC, March 3, 2016), the D.C. federal district court, invoking RFRA, granted a preliminary injunction protecting religious rights of an Army officer.  The Army had ordered a decorated Sikh Army captain to undergo costly specialized testing with his helmet and protective mask to assure that his religiously required head covering, beard and uncut hair will not interfere with the functions of the helmet and mask. The court said:

At first blush, the challenged order appears to reflect a reasonably thorough and even benevolent decision by the Army to fulfill its duty of protecting the health and safety of this particular Sikh officer.

Yet, that is far from the complete picture. Thousands of other soldiers are permitted to wear long hair and beards for medical or other reasons, without being subjected to such specialized and costly expert testing of their helmets and gas masks. Moreover, other Sikh soldiers have been permitted to maintain their articles of faith without such specialized testing.

See prior related posting.

Alabama Supreme Court Narrowly Avoids Confrontation With SCOTUS On Same-Sex Marriage

The Alabama Supreme Court yesterday in Ex parte State of Alabama ex rel. Alabama Policy Institute, (AL Sup. Ct., March 4, 2016), issued a per curiam order dismissing all pending motions and petitions in a suit that sought to require Alabama probate judges to refuse to issue marriage licenses to same-sex couples.  However the Order also generated six separate opinions from the 9 justices spanning 170 pages. Three of the opinions were particularly defiant of the U.S. Supreme Court's authority to hand down its Obergefell decision.

Chief Justice Roy Moore who has been in the lead in resisting same-sex marriage in Alabama (see prior posting) wrote the longest and most defiant opinion.  He actually submitted two opinions totaling 106 pages-- one an opinion on why he now decided not to recuse himself, even though he had done so at earlier stages of the case, and the second longer opinion attacking the U.S. Supreme Court's same-sex marriage decision. Explaining why he was willing to concur in the dismissal of the suit, Moore said:

Today this Court by order dismisses all pending motions and petitions and issues the certificate of judgment in this case. That action does not disturb the existing March orders in this case or the Court's holding therein that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional.

In perhaps his most radical attack, Moore said (at pp. 87-88):

The general principle of blind adherence to United States Supreme Court opinions as "the law of the land" is a dangerous fallacy that is inconsistent with the United States Constitution. Labeling such opinions as "the rule of law" confuses the law itself -- the Constitution -- with an opinion that purports to interpret that document.

Article VI, by its plain terms, binds "the judges in every state" to obedience to the Constitution itself, not to unconstitutional and illegitimate opinions of the United States Supreme Court. Just as the little boy in Hans Christian Andersen's tale pointed out that the Emperor, contrary to the assertions of his courtiers, was actually stark naked, so also the "judges in every state" are entitled to examine Supreme Court opinions to see if they are clothed in the majesty of the law of the Constitution itself rather than in naked propositions of men with no cognizable covering from that document.

Moore also emphasized religious liberty in his attack on the Obergefell majority, saying in part (at pg. 58):

The Obergefell majority, conspicuously overlooking the "essential and historic significance" of the connection between religious liberty and "supreme allegiance to the will of God," failed to appreciate the seriousness of imposing a new sexual-revolution mandate that requires Alabama public officials to disobey the will of God.

Justices Parker and Murdock also wrote defiant concurring opinions, while Justice Shaw's concurring opinion was highly critical of Chief Justice Moore's approach.

Justice Bolin's somewhat temperate concurrence is of particular interest. He said in part:

Although I have many times not agreed with a decision of the United States Supreme Court, or a decision of the Alabama Supreme Court for that matter, I have never criticized an opinion from any court in the manner in which I regrettably do so today. I am, however, able to count to five--and I know that five votes trump four; and, although that does not make it right, it does make it a majority opinion....

The foregoing being said, I am further compelled to concur specially to express my concern, which remains to be determined in future cases, that the Obergefell decision may have emasculated this State's entire statutory licensing scheme governing "marriage" to the point of rendering it incapable of being enforced prospectively.

Al.com reports at length on the decision.

Church of Cannabis Leader Sues Former Police Chief For Defamation

According to a report yesterday from WKYC News, in Indianapolis, Indiana, the founder of the First Church of Cannabis has filed a defamation against the city's former police chief Rick Hite.  At a police news conference shortly before the church's inaugural service, the police chief warned that anyone smoking marijuana at the church would be prosecuted.  Referring to the Church's leader Bill Levin, the police chief said: "As Jim Jones once did within our state, he led a group of people into a place of no return. We don't want that to happen again in this state."

8th Circuit: Westboro Church Challenge To Picketing Law Should Be Dismissed As Moot

In 2014, a Missouri federal district court rejected a vagueness challenge mounted by the Westboro Baptist Church to Missouri statutes that banned protest activities within three hundred feet of a funeral. (See prior posting.)  However, while a motion to amend the judgment was still pending, the Missouri legislature repealed the statutes at issue.  In Phelps-Roper v. Koster, (8th Cir., March 4, 2016), the 8th Circuit Court of Appeals held that when the statutes were repealed, the district court should have vacated its judgment and dismissed the case as moot. It also held that the district court had improperly computed the amount of attorneys' fees that should be awarded to plaintiff.

Supreme Court Preserves Abortion Status Quo In Louisiana While It Considers Similar Case

Th U.S. Supreme Court today issued an order preserving the status quo in Louisiana while the Court considers Whole Woman's Health, the abortion case from Texas that was argued this week. (See prior posting.) The 5th Circuit had stayed a district court's preliminary injunction against enforcement of a Louisiana law requiring abortion providers to have admitting privileges at a local hospital. The 5th Circuit's stay had the effect of allowing Louisiana's contested law to go into effect. Today in June Medical Services LLC v. Gee the U.S. Supreme Court issued the following order:

Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole, No. 14A1288 (June 29, 2015), the application to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on February 24, 2016, presented to Justice Thomas and by him referred to the Court, is granted and the Fifth Circuit’s stay of the district court’s injunction is vacated.

Justice Thomas would deny the application.

This order was in response to June Medical's Emergency Application to Vacate Stay of Preliminary Injunction Pending Appeal (full text).

Georgia's Republican Governor Opposes "Religious Freedom" Bill on Biblical Grounds

As a number of state legislatures consider enacting religious freedom bills to protect opponents of same-sex marriage, one of the most contentious of the bills has been Georgia's HB 757 which among other things would bar government from taking any adverse action against any person or faith-based organization based wholly or in part on the person or organization believing, speaking or acting in accordance with their belief that marriage should be between a man and a woman and sexual relations should be reserved to such a union.  The Atlanta Journal Constitution reported yesterday that Georgia's Republican Governor Nathan Deal took a surprisingly strong stand against the legislation:

Amid a growing outcry from powerful corporations over Georgia’s “religious liberty” proposal, Gov. Nathan Deal issued his strongest warning yet to lawmakers who are debating controversial legislation seen as a conservative answer to the Supreme Court’s same-sex marriage ruling.

In stark terms, the Republican said he would reject any measure that “allows discrimination in our state in order to protect people of faith,” and urged religious conservatives not to feel threatened by the ruling....

Standing in the lobby of a government building after a ribbon-cutting ceremony, he laid out a lengthy condemnation of the measure from a biblical perspective, first noting that he is a Southern Baptist who took religion courses at Mercer University.

“What the New Testament teaches us is that Jesus reached out to those who were considered the outcasts, the ones that did not conform to the religious societies’ view of the world … We do not have a belief in my way of looking at religion that says we have to discriminate against anybody. If you were to apply those standards to the teaching of Jesus, I don’t think they fit.”

India Effectively Denies Visas To USCIRF Delegation

The U.S. Commission on International Religious Freedom said in a press release yesterday that the government of India has effectively denied visas to a USCIRF delegation that was to visit India to assess religious freedom conditions in that country. India failed to issue requested visas in time for the delegation's scheduled departure today.

Australian Report On Laws That Encroach On Traditional Freedoms

On Wednesday, the Australian Law Reform Commission released  its report titled Traditional Rights and Freedoms—Encroachments by Commonwealth Laws. Chapter 5 of the report deals with Australian laws that may be seen as interfering with freedom of religion, including anti-discrimination laws. Law and Religion Australia blog has more on the report.

2nd Circuit: MTA Rule Change Makes Challenge To Rejection of Anti-Muslim Ad Moot

In American Freedom Defense Initiative v. Metropolitan Transit Authority, (2d Cir., March 3, 2016), the U.S. 2nd Circuit Court of Appeals upheld the dismissal on mootness grounds of a suit against the New York Metropolitan Transit Authority challenging the MTA's refusal to accept an anti-Islamic ad that a pro-Israel group wished to run on the back of MTA buses.  The ad which portrayed a menacing‐looking man with his face mostly covered by a head scarf included the quote:  "Killing Jews is Worship that draws us close to Allah." Then beneath the quote, the ad stated:  "That’s His Jihad.  What’s yours?"  While the case was pending, the MTA changed its property from a designated public forum
to a limited public forum and barred any ad that is "political in nature." (See prior related posting.) New York Post reports on the decision.