Next SCOTUS Nominee Might Be A Hindu

Washington Post, in an article titled What would a Hindu justice mean for the Supreme Court?, reported that D.C. Circuit Judge Sri Srinivasan is on President Obama's shortening list of potential Supreme Court nominees.  He would be the first Hindu justice ever to serve on the Supreme Court.  When sworn in as judge on the D.C. Circuit, Srinivasan took the oath on the Bhagavad Gita. Most of those interviewed by the Post suggested that Srinivasan's faith would have little impact on the positions he would take on the Court.  While Protestants are the largest religious group in the United States, no Protestant (mainline or evangelical) has been on the Supreme Court since Justice Stevens retirement in 2010.

New Federal Inter-Agency Initiative On Religious Discrimination Launched

On Tuesday, the Justice Department announced  "Combating Religious Discrimination Today," a new inter-agency initiative to promote religious freedom, challenge religious discrimination and increase enforcement of religion-based hate crimes.  The new community engagement effort launched by 5 federal agencies, will lead a series of community round tables across the country.  The first was in Newark, New Jersey on Tuesday and focused on addressing bullying and religious discrimination in schools. Among those addressing the round table were Vanita Gupta, head of the Justice Department's Civil Rights Division. (Full text of remarks.)  Subsequent round tables are scheduled for  Dallas, Birmingham (AL), Detroit and Palo Alto (CA).  They will focus on topics such as hate crimes, employment discrimination and discrimination by local zoning officials.

Jail Settles Suits Alleging Muslim Women Were Forced To Attend Christian Services

The Cleveland Plain Dealer reported this week that Cuyahoga County (Ohio) has entered settlements in two separate lawsuits by Muslim women who said they were required by corrections officer Regina Watts to attend Christian religious services when they were serving time in the Cuyahoga County Jail. The women were housed in the "trustee pod" of the jail while serving time in 2014. Sakeena Majeed, who was in jail for misdemeanor assault received a settlement of $48,500.  Sonya Abderrazzaq was serving time for drunk driving settled for $32,500.  The jail has now moved religious services to other space instead of the pod where the two women were housed. [Thanks to Scott Mange for the lead.]

Federal District Judge Says Obergefell Does Not Bind Puerto Rico

In Vidal v. Garcia-Padilla, (D PR, March 8, 2016), a Puerto Rico federal district court held that the recognition of same-sex marriage in Obergefell v. Hodges  does not bind Puerto Rico until further action by the Supreme Court or Congress.  Relying on the so-called Insular Cases decided by the Supreme Court in the early 20th century, the court said "jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment...."  The court concluded:

It is in light of the particular condition of Puerto Rico in relation to the Federal Constitution, with due consideration of the underlying cultural, social and political currents that have shaped over five centuries of Puerto Rican history, that the court examines the effect of Obergefell in the instant case. The court’s analysis, therefore, does not end with the incorporation of the fundamental right to same-sex marriage in the States. Generally, the question of whether a constitutional guarantee applies to Puerto Rico is subject to determination by Supreme Court of the United States.

Lyle Denniston at SCOTUSblog has more on the decision.

Suit Challenges Pastor's Invitation To Texas Mayor To Speak At Groundbreaking For Cross

The Corpus Christi Caller Times reported yesterday on a lawsuit against the pastor of a local church who invited Corpus Christi's mayor to speak at a groundbreaking ceremony for a 210-foot tall cross placed along an Interstate highway near the Texas city. Mayor Nelda Martinez spoke at the ceremony about her late father's dream for a cross at the helm of the Corpus Christi Bay.  The lawsuit filed in state court by Patrick Greene accuses the pastor, Rick Milby, of violating state law-- apparently Art. I, Sec. 6 of the Texas constitution-- when he invited the mayor and council leaders to the groundbreaking. The city attorney calls the lawsuit frivolous.

Divorce Decree Restrictions Violate Mother's Free Exercise Rights

In Black v. Black, (WA App., March 8, 2016), a Washington state appeals court held that a trial court imposed improper conditions on the non-custodial parent in a divorce action.  Charles and Rachelle Black had three children whom they raised in a conservative Christian home and sent to religious-based schools.  After 17 years of marriage, Rachelle informed Charles that she is a lesbian, and two years later filed for divorce. The court's final parenting plan designated Charles as the primary residential parent, awarded him sole decision-making as to the children's religious upbringing and required Rachelle to refrain from having further conversations with the children regarding religion, homosexuality, or other alternative lifestyles. The appeals court reversed, saying:

While the best interests of the children is a trial court’s paramount concern ..., here there is no indication that Rachelle’s prior speech related to her sexual orientation or her religious views ... would cause harm to the children if such speech or conduct occurred in the future. Therefore, we hold that the restrictions are an unconstitutional burden on her freedom of speech and her free exercise of religion. 

What Counts As A "Church"?

RLUIPA Defense blog last week recounted the story of Spokane, Washington's "Jedi Alliance" which bills itself as a church.  Tim and Tyler Arnold purchased a large collection of arcade games. Looking for a place to house them permanently, they purchased a building that formerly was used as a Methodist church.  Then, however, city officials told them that the building was zoned only for residential use or use as church.  So the Arnolds registered as a church, opening the building on Sunday evenings for the public to play the arcade games or patronize the gift shop.  The Arnold brothers said:

Is it a church? Well, it’s a church in the sense that we took over a church building.  Are we here congregating? Yes, we’re here congregating getting together.  We can use all of this pop culture stuff to bring people together, to get people to have a reason to come together in a social setting.

Australian Court Says Sex-Segregated Seating At Muslim Lecture Violates Anti-Discrimination Law

In Bevege v Hizb ut-Tahrir Australia, (NSW Civ & Adm Trib, March 4, 2016), the Civil and Administrative Tribunal of the Australian state of New South Wales held that sex-segregated seating at a lecture sponsored by a Muslim group violates the New South Wales Anti-Discrimination Act of 1977. The sponsor of the lecture, Hizb ut-Tahrir Australia, identifies itself as an 'international political party with a franchise in Australia."  When Alison Bevege attended the group's lecture on American intervention in Iraq and Syria, she was directed to a section of the auditorium reserved for women and children.  Hizb ut-Tahrir argued to the court that separate seating of men and women "is a part of Islam, and Muslims globally are adhering to this practice through choice as part of their belief and culture."

While the Anti-Discrimination Act has an exemption for acts or practices "of a body established to propagate religion that conforms to the doctrine of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion," (Sec. 56(d)), the court concluded that this exemption does not apply.  It was not shown that Hizb ut-Tahrir was established to propagate religion.  Also because Hizb ut-Tahrir argued that Bevege would have been allowed to choose her own seat if she had requested to do so, this shows that separate seating was not necessary to avoid injury to the religious susceptibilities of Muslims attending the lecture.

To avoid similar discrimination in the future, the court ordered that at events sponsored by the organization there must be notices that gender segregated seating is not compulsory, and ushers must be made aware of this.  Law and Religion Australia has more on the decision.

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.