False Online Prayer Website Closed Down

This week Washington state's attorney general Bob Ferguson announced that his office had reached an agreement with Christian Prayer Center, a website that offered online viewers prayers in English or Spanish for amounts ranging from $9 to $35.  According to the AG office's release, the website featured non-existent clergy and false consumer testimonials:

The websites contained fictitious testimonials from consumers using stock photos that claimed they successfully prayed to avoid home foreclosure, deliver a healthy baby, win the lottery, obtain negative results on an HIV test and put cancer into remission....

Between 2011 and 2015, CPC collected more than $7 million from 125,000 consumers nationwide. Some of these consumers were charged repeatedly, resulting in a total of over 400,000 transactions.

The settlement requires the website operators, among other things, to end unfair and deceptive business practices, return funds to consumers and pay attorneys' fees of $500,000.

Kerry Says ISIS Guilty of Genocide

As reported by CNN, Secretary of State John Kerry today said he had determined that ISIS (also known as Daesh) is guilty of genocide. At a news conference this morning (video  and full text of Kerry's statement), he said in part:

My purpose in appearing before you today is to assert that, in my judgment, Daesh is responsible for genocide against groups in areas under its control, including Yezidis, Christians, and Shia Muslims. Daesh is genocidal by self-proclamation, by ideology, and by actions – in what it says, what it believes, and what it does. Daesh is also responsible for crimes against humanity and ethnic cleansing directed at these same groups and in some cases also against Sunni Muslims, Kurds, and other minorities.

Kansas Passes Law Allowing Student Religious Groups To Limit Membership To Adherents

The Kansas legislature yesterday gave final passage to SB 175 (full text) that is designed to allow student religious groups at colleges and universities to restrict their leaders or their membership to those who share or comply with the organizations beliefs.  The bill provides in part:

No postsecondary educational institution may ... deny a religious student association any benefit available to any other student association ... based on such association's requirement that [its] leaders or members ...: (a) Adhere to the association's sincerely held religious beliefs; (b) comply with the association's sincerely held religious beliefs; (c) comply with the association's sincere religious standards of conduct; or (d) be committed to furthering the association's religious missions....

The bill gives a cause of action to any student group injured by a violation of this provision.  AP reports on the bill and some of the incidents leading up to it. It is expected that Gov. Sam Brownback will sign the bill into law.

Suit Against Dearborn Police On Forced Hijab Removal Is Withdrawn

Last July, a Muslim woman filed a federal lawsuit against the Dearborn, Michigan police department charging that she was required to remove her headscarf (hijab) while being booked on traffic charges. (See prior posting.) Now, according to yesterday's Dearborn Press & Guide, plaintiff Maha Aldahami has dropped the lawsuit.  It says that her attorney withdrew the suit when the city produced video that contradicted plaintiff's claims. The city says it follows a stringent policy on head coverings, and that an internal investigation showed no wrongdoing. According to MLive, Aldhalimi's lawyer says the suit was dropped because Dearborn satisfactorily amended its policy on religious head coverings after the lawsuit was filed.

Many Claims of Non-Liturgical Navy Chaplains Are Dismissed; Several Claims Survive

In In re Navy Chaplaincy, (D DC, March 16, 2016), a challenge to Navy procedures for selection and promotion of chaplains that has wound its way through the courts for over 16 years, the D.C. federal district court dismissed a substantial number of plaintiffs' claims.  The case has already generated over 20 decisions in the courts.  In the case (actually 3 consolidated cases), plaintiffs (Non-Liturgical Protestants) challenged both Navy policies and the practices of chaplain selection boards.  As explained by the court in its 59-page opinion:

[T]hey contend that the faith group categories recognized by the Navy are discriminatory and arbitrary..... In particular, they claim that the categories reflect neither religious demographics nor legitimate similarities or differences among the worship traditions represented.  Second, they allege that in the past ... the [Chaplain Corps] used religious quotas to apportion chaplain opportunities among various faith groups..... Third, Plaintiffs challenge a number of facially neutral personnel practices - both current and historical - that they believe have allowed religious bias to infect selection board outcomes.

The court dismissed most of plaintiffs' claims for lack of standing or on mootness or statute of limitations grounds. However the court allowed two former chaplains to proceed with their complaint that the Navy violated their free speech rights by interfering with their form of prayer. More specifically they allege that they were reprimanded for ending their prayer "in Jesus name." The court also allowed plaintiffs to move ahead with their non-selection for promotion claims.  In addition, the Navy did not seek dismissal of challenges to policies on the promotion and early retirement selection board process.

Obama's Nominee To Supreme Court Has Said Little On Religious Freedom Issues

Today President Obama nominated Chief Judge Merrick Garland to fill the seat of the late Justice Antonin Scalia on the U.S. Supreme Court. (President's remarks announcing the nomination). (White House  media release with background information).  While Garland has served on the D.C. Circuit for 19 years (and served as Chief Judge since 2013) he has had little to say in judicial opinions about religious liberty or church-state separation.

The only opinion involving religious freedom claims actually authored by Judge Garland was Ciralsky v. CIA, 355 F.3d 661 (Jan. 30, 2004) which involved a claim by a former CIA lawyer that he had been fired solely because of his practice of the Jewish religion.  The opinion dealt solely with procedural issues growing out of the complaint being long, repetitive and argumentative.

Garland has served on 3-judge panels in a number of cases involving religious freedom or religious discrimination issues, joining an opinion written by one of the other judges on the panel.  Here is a brief summary of those cases:

• Henderson v. Kennedy, 253 F.3d 12 (Feb. 13, 2001), rehearing denied 265 F.3d 1072 (Oct. 2, 2001): The court ruled against evangelical Christians who claimed a National Park Service regulation prohibiting the sale of t-shirts on the National Mall violated RFRA and the equal protection clause.
  
• Levitan v. Ashcroft, 281 F.3d 1313 (March 8, 2002): in a Catholic inmate's challenge to a prison rule barring consumption small amounts of wine as part of Communion, the court held that a religious practice need not be a mandatory part of a religious creed to be protected by 1st Amendment.
  
• Conservation Law Foundation v. FERC, 216 F.3d 41 (June 23, 2000). The court found that there was no violation of the American Indian Religious Freedom Act by the Federal Energy Regulatory Commission in its re-licensing of a hydroelectric project.
  
• In re England, 375 F.3d 1169 (July 27, 2004). Non-liturgical chaplains sued the Navy alleging discrimination.  The court refused to compel the Secretary of the Navy to release selection board members from their oath of confidentiality, to allow them to testify about selection board proceedings.
  
• McKeithan v. Boarman, 2012 U.S. App. LEXIS 9024 (April 12, 2012). Summary dismissal of a suit charging discrimination based on sex and religion for failure to state a claim.
  
• Village of Bensenville v. FAA, 2006 U.S. App. LEXIS 1166 (Jan. 17, 2006). The court refused to grant a stay pending appeal of a district court opinion allowing expansion of O'Hare Airport. At issue was a RFRA challenge to the relocation of remains from a cemetery.

Finally, Garland was a member of several en banc panels that ruled (either summarily or in opinions by others) on issues related to religious rights:

• In Priests for Life v. United States HHS, 808 F.3d 1 (May 20, 2015), Judge Garland was part of the en banc panel that denied a rehearing in a case that rejected a religious non-profit's challenge to the Obamacare contraceptive mandate compromise.  Garland did not join either the concurring or dissenting opinions filed with the per curiam order.  The case is currently before the U.S. Supreme Court.
  
• In re Charges of Judicial Misconduct, 769 F.3d 762 (Aug. 12, 2014). Judge Garland was part of the en banc panel that accepted the recommendation of a special committee to dismiss misconduct charges against Judge Edith Jones. One of the charges involved Jones invoking her religious beliefs to justify the death penalty.
• Newdow v. Roberts, 2010 U.S. App. LEXIS 27590 (June 29, 2010). Judge Garland was part of an en banc panel that denied a rehearing in case challenging religious elements in Presidential inaugurations.

If Garland is confirmed, he will bring the number of Jewish justices on the Supreme Court to 4.  The remaining 5 justices are Catholic. The New Yorker has an excellent background piece on other aspects of Chief Judge Garland's career.

UPDATE: Religion News Service has two interesting articles regarding Garland's religious beliefs: Merrick Garland is Jewish. Does it matter? and Obama plays the Jewish card, leaving GOP in a pickle.

UPDATE 2: Another opinion written by Judge Garland, Payne v. Salazar, 619 F.3d 56 (2010), should probably also be classified as a religious freedom case.  At issue were procedural questions on when a plaintiff can bring suit because of retaliation against her by her supervisor for filing a religious discrimination complaint.

House Unanimously Passes Resolution Calling ISIS Actions "Genocide"

On Tuesday, the U.S. House of Representatives passed by a vote of 393-0 House Concurrent Resolution 75 (full text) that expresses the sense of Congress that atrocities committed by ISIS against Christians and other ethnic and religious minorities should be labeled war crimes, crimes against humanity and genocide. As pointed out in this CNN Op-Ed by Frida Ghitis:

This was one more maneuver in a long-running battle between Congress and the administration. Months ago, Congress set a deadline of March 17 for the State Department to designate ISIS actions as genocide. But according to news reports, Obama administration officials say it appears likely the administration will let the deadline pass while it ponders the legal consequences of the designation.

Some have charged that the State Department's concern is that once ISIS's actions are labelled "genocide," under the Convention on the Prevention and Punishment of the Crime of Genocide the United States would be committed to "prevent" and "punish" it. However, in a State Department press briefing on Monday, spokesman John Kirby said in part:

[T]here’s a legal definition for genocide. But I don’t want to get into the specifics of it at this point given that the Secretary’s still working his way through his own determination.... [H]e’s taking it very seriously, and ... he wants to take an analytical approach to this based on the best information that’s available....  [T]he argument that somehow it’s being slow-walked or slow-rolled because of the likely pressure that it might result in further calls for military action just is baseless....

Tennessee Legislature Passes Bill To Prevent Religious Indoctrination In Schools

As reported by The Tennesseean, the Tennessee legislature yesterday gave final passage and sent to the governor for his signature HB 1905 (full text). The bill, responding to concern about a middle school social studies unit on Islam, is intended to prevent religious indoctrination. It provides:

The inclusion of religion in textbooks, instructional materials, curriculum, or academic standards shall be for educational purposes only and shall not be used to promote or establish any religion or religious belief.

The bill requires local school boards to develop, with public comment, policies on inclusion of religion in the curriculum. It requires schools to make syllabuses for courses in grades 6-12 publicly available. It calls for revision of the current social study standards and requires teacher training institutes to provide instruction on "what is constitutionally permissible when teaching religious content and strategies for dealing with religious content in curriculum that are educationally sound, fair, neutral, and objective." [Thanks to Blog from the Capital for the lead.]

Israeli Court Sentences Muslim Preacher For Incitement To Racism

In Israel this week, a Jerusalem Magistrate's court sentenced a Muslim preacher to 11 months in prison (and another 6 months suspended) on three counts of incitement to racism.  According to YNet News, Sheikh Khaled Mughrabi regularly delivered speeches at al-Aqsa Mosque, filmed them and uploaded some of them to YouTube.  In one speech, Mughrabi said that the Holocaust was a result of the Jews’ corruption and took place because Jews prepared "special bread" for Passover by kidnapping children, placing them in a barrel full of needles, and using their blood to make the bread. The indictment referred specifically to 3 speeches in the summer of 2015.

Florida Governor Signs Pastor Protection Act

On March 10, Florida Governor Rick Scott signed HB 43, known as the Pastor Protection Act. (Full text) (Bill history).  The new law protects clergy as well as churches, religious organizations and their employees from liability or penalties for refusing to solemnize a marriage or refusing to provide goods, services, or facilities related to the marriage solemnization or celebration where doing so would violate a sincerely held religious belief. Liberty Counsel issued a press release on the governor's action.

"Seven Drums" Believer Wins Right To Wear Fox Hat In License Photo

Willamatte Week and KTAU report on an Oregon man who recently won his administrative appeal to allow him to wear unusual head gear in his driver's license photo. The man, Jay Bishop, is a practitioner of the Washat religion, generally known as the Drummer-Dreamer or Seven Drums faith.  It is rooted in a Native American belief system held by Nez Perce tribes. Bishop wears a cable knit hat that looks like an orange and cream fox head-- the fox is his religious totem. While the local DMV office last summer allowed him to wear the hat in his license renewal photo, when the license got to the state level for review it was rejected because it was not compatible with the state's facial recognition software. Bishop was without a license for 9 months while his appeal was ongoing.  The DMV said it attempts to accommodate religious beliefs, but had never heard of this religion.

8th Circuit Upholds Denial of Citizenship To Muslim In U.S. On Religious Worker's Visa

In Al-Saadoon v. Lynch, (8th Cir., March 14, 2016), the U.S. 8th Circuit Court of Appeals upheld the denial of the naturalization application filed by an Islamic scholar and his wife who entered the U.S. from Iraq on a religious worker's visa.  Initially the USCIS denied the application on the ground that applicants were not of good moral character.  The district court affirmed on the ground that information on applicants' naturalization application showed that the husband changed religious employers a few months before getting the required INS pre-approval for the change.  The 8th Circuit held that the district court's findings are supported by substantial evidence.  In an interesting footnote, the 8th Circuit said:

The district court stated an alternative basis for its denial of Hamod's petition for naturalization. It concluded that "even if some of Hamod's religious worker services to the ICCC starting in 2000 were voluntary and not paid . . . , those services constitute unauthorized employment." Hamod argues that this conclusion violates his right to freely exercise his religion. In particular, he argues that ... the district court's decision regarding voluntary services punishes him for exercising his religion through volunteer work in his local community of faith. We decline to address Hamod's free-exercise claim, however, because the record clearly supports the district court's primary basis for the petition's denial—Hamod was actually employed by the ICCC before he received the authorization required by his visa.

9th Circuit Rules In Favor of Church's Homeless Ministry

In Harbor Missionary Church Corp. v. City of San Buena Ventura, (9th Cir., March 14, 2016), the U.S. 9th Circuit Court of Appeals held that the district court abused its discretion when it refused to issue a preliminary injunction to allow a church to continue to operate its homeless ministry from the same site as its church building. The city had denied a conditional use permit to the church. The appeals court said in part:

The Church asserts that its religion calls for it “to provide for both spiritual and temporal needs together.” The district court erred by questioning the validity of the Church’s religious beliefs and by determining that its homeless ministry could be divided piecemeal when the Church insisted on the importance of keeping its homeless ministry as a whole at the same location....

The district court abused its discretion when it concluded, without analysis, that a complete denial of the conditional use permit was the least restrictive means by which the City could further its compelling interest in public safety. On remand, the district court should ... detail why the conditional use permit recommended by the City’s staff would or would not sufficiently protect the neighborhood from any negative effects shown to be the result of the Church’s ministry to the homeless.

9th Circuit Hears Oral Arguments In Dispute Over Control of Sikh Dharma Company

The U.S. 9th Circuit Court of Appeals last Thursday heard oral arguments in Puri v. Khalsa (Docket No. 13-36024) (video of full oral arguments).  Courthouse News Service has extensive background on the case in which Bibiji Inderjit Kaur Puri, the widow of the leader of the Sikh Dharma faith, is seeking a seat on the board of the company that makes Yogi Tea and which also controls various parts of the Sikh Dharma religious movement. Here is an excerpt from CNS's excellent report:

Bibiji sued in Multnomah County [Oregon] Circuit Court, claiming that her husband had wanted her to be a board member and accusing the board of Unto Infinity of inflating their salaries and executing a self-serving sale of the company's cereal division that cheated Sikh Dharma....

The parties agreed to settle in arbitration. But Bibiji moved the case to Federal Court, claiming the settlement was never ratified and was unfair.... There, U.S. District Judge Michael W. Mossman dismissed the case, finding that Bibiji lacked standing to sue ... because she is not a board member. He also found that the First Amendment prohibited him from installing the leaders of a religious organization.

On Thursday, Bibiji's lawyer ... urged a panel of the Ninth Circuit to apply "neutral principles of law" rather than a First Amendment exception.

(See prior related posting.)

Pastor Introducing Trump Says Bernie Sanders Must "Come to Jesus"

At a Donald Trump event in Hickory, North Carolina today, Pastor Mark Burns who spoke before Trump and Gov. Chris Christie took the stage called for Bernie Sanders to accept Jesus.  As quoted by Politico, Burns said in part:

Bernie Sanders who doesn't believe in God. How in the world are we going to let Bernie? I mean really? Listen, Bernie gotta get saved. He gotta meet Jesus. He gotta have a come to Jesus meeting.

Egypt's Justice Minister Fired Over Comment Seen As Blasphemous

Egypt's Justice Minister Ahmed El-Zend was dismissed from office yesterday by Egypt's Prime Minister Sherif Ismail after comments that were interpreted as blasphemous went viral. Ahram Online gives background:

Last week, in response to a TV host's question on whether he would jail journalists, El-Zend said, "Even if he was a prophet, peace and blessings be upon him."

The 70-year-old then briefly uttered Islamic words of repentance before adding that "the culprit, whatever his description is... I am not talking about jailing a journalist or jailing a teacher, I am saying jailing a defendant."

El-Zend subsequently asked for forgiveness, saying his comment was a slip of the tongue, but Al-Azhar (the center of Islamic learning in Egypt) issued a statement warning against even unintentional blasphemous comments.

Recent Articles of Interest

From SSRN:

• Robin Fretwell Wilson, 'Getting the Government Out of Marriage' Post Obergefell: The Ill-Considered Consequences of Transforming the State’s Relationship to Marriage, (University of Illinois College of Law Legal Studies Research Paper No. 16-14, March 2016).
• Lauren Sudeall Lucas, The Free Exercise of Religious Identity, (UCLA Law Review, Vol. 64, No. 1, 2017 Forthcoming).
• Marc O. DeGirolami, On Expressivism and Retributivism in 'The Mighty and the Almighty', (Journal of Analytic Theology (Forthcoming)).
• Caroline Mala Corbin, The Contraception Mandate Accommodated: Why the RFRA Claim in Zubik v. Burwell Fails, (American Constitution Society Issue Brief, March 2016).
• Briton Jacob Myer, In Pursuit of Religious Freedom: The RFRA and How It Applies to Non-Profit Organizations and Their Objections to the Accommodation of the Affordable Care Act Contraceptive Mandate, (November 23, 2015).
• Peter Nicolas, Backdating Marriage, (California Law Review, Forthcoming).
• Khaled A. Beydoun, Electing Islamophobia, (March 6, 2016).
• Lloyd Hitoshi Mayer, Fragmented Oversight of Nonprofits in the United States: Does it Work? Can it Work?, (Chicago-Kent Law Review, Vol. 91, No. 3, 2016).

From SSRN (Non-U.S Law):

• Christa Rautenbach, The South African Constitutional Court's Use of Foreign Precedent in Matters of Religion: Without Fear or Favour?, (Potchefstroom Electronic Law Journal, Vol. 18, No. 5, 2015).
• Melissa Crouch, Constitutionalism, Islam and the Practice of Religious Deference: The Case of the Indonesian Constitutional Court, (Australian Journal of Asian Law, Vol. 16, No. 2, Article 6, 2016).
• Nadirsyah Hosen, The Constitutional Court and ‘Islamic’ Judges in Indonesia, (Australian Journal of Asian Law, Vol. 16, No. 2, Article 4, 2016).
• Faridah Jalil, Searching for the Benchmark in the Administration of Islamic Criminal Law: Malaysia Experience, (May 30, 2015).
• Faridah Jalil, Challenges and Prospects on Access to Justice in Malaysia, (November 11, 2015).
• Emilia Justyna Powell & Stephen D. McDowell, Islamic Sovereignty Norms and Peaceful Settlement of Territorial Disputes, (iCourts Working Paper Series No. 47, March 2016).
• Amir Attaran, Commentary: The Limits of Conscientious and Religious Objection to Physician-Assisted Dying after the Supreme Court's Decision in Carter v. Canada, (Health Law in Canada 36(3):86-98, 2016).

From SmartCILP:

• Alan M. Hurst, The Very Old New Separationism, 2015 Brigham Young University Law Review 1-61.
• Mary McDonough, Catholic Health Care and the Affordable Care Act: A Matter of Social Justice, [Abstract], 10 Intercultural Human Rights Law Review 69-116 (2015).
• Wolfgang P, Muller, The Internal Forum of the Later Middle Ages. A Modern Myth?, 33 Law & History Review 887-913 (2015).

Recent Prisoner Free Exercise Cases

In Wilson v. Soto, 2016 U.S. Dist. LEXIS 27449 (CD CA, March 2, 2016), a California federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 27451, Jan. 21, 2016) and allowed a Muslim inmate to proceed on a RLUIPA claim for equitable relief growing out of a strip search in the presence of female prison staff. Other claims were dismissed, but some with leave to amend. Plaintiff was required to file an amended complaint in order to move ahead.

In Seina v. Federal Detention Center Honolulu, 2016 U.S. Dist. LEXIS 28544 (D HI, March 7, 2016), a Hawaiian federal district court dismissed a Native American inmate's claim that his right to properly conduct an American Indian Pipe Ceremony was severely hindered because he was not treated for his medical condition (hypertension).

In Hill v. Management Training Corp., 2016 U.S. Dist. LEXIS 28686 (SD MS, March 7, 2016), a Mississippi federal magistrate judge dismissed a Catholic inmate's complaint that because of an expansive lock down, during the one year period of his incarceration he was only able to attend one religious service.

In Johnson v. Nevada Department of Corrections, 2016 U.S. Dist. LEXIS 29355 (D NV, March 7, 2016), a Nevada federal district court permitted a Muslim inmate to proceed with claims that his kufi was confiscated, he was denied halal meals and was not served meals on the Ramadan schedule on time.

In Mujahid Ta'Lib Din v. Albritton, 2016 U.S. Dist. LEXIS 29676 (ND CA, March 8, 2016), a California federal magistrate judge permitted a Muslim inmate to move ahead with his complaint that Muslim congregational prayers during open day room hours were improperly limited.

In Vega v. Hardy, 2016 U.S. Dist. LEXIS 29911 (ND IL, March 9, 2016), an Illinois federal district court permitted an African Hebrew Israelite inmate who had taken a Nazirite vow to move ahead with his complaint that the warden would not permit him to grow a kouplock as part of his hairstyle.

Virginia Legislature Passes Bill To Protect Clergy and Religious Groups That Object To Same-Sex Marriage; Governor Threatens Veto

Yesterday the Virginia General Assembly gave final passage to S.41 (full text) that protects clergy, religious and religiously affiliated organizations and their employees and volunteers acting in the scope of their employment from being required to participate in the solemnization of any marriage or from receiving adverse treatment of any kind by the state because the person acted on the basis of a sincere religious or moral belief that marriage should be only the union of one man and one woman. As reported by the Washington Blaze, Virginia Gov. Terry McAuliffe has said he would veto the bill.  It should be noted that the language of the bill requires careful reading to avoid misinterpreting it as being broader than it is.  Section B. of the bill applies its protection to any "person," but that is limited by the narrow definition of "person" in Section A. The president of the Family Foundation of Virginia accurately, albeit not totally objectively, described the scope of the bill:

This legislation balances the recently discovered right to whatever definition of marriage you want with our nation’s longstanding principle of religious free exercise by ensuring that the heavy hand of government cannot penalize clergy or religious charities simply because of beliefs about marriage.

Suit Seeks Site Plan Approval For Mosque

A suit was filed in New Jersey federal district court by the Islamic Society in a prosperous New Jersey suburb whose attempts to obtain site plan approval for a mosque have been thwarted so far. The complaint (full text) in Islamic Society of Basking Ridge v. Township of Bernards, (D NJ, filed 3/10/2016), summarized the mosque's efforts:

What should have been a simple Board approval for a permitted use devolved into a Kafkaesque process that spanned an unprecedented four years and included 39 public hearings.

 The complaint cites anti-Muslim attitudes among those object to the mosque, and contends that the refusal to approve the sit plan violated RLUIPA, the 1st and 14 Amendments and various New Jersey statutory and constitutional provision.  New York Times reports on the lawsuit. [Thanks to Mel Kaufman for the lead.] 

UPDATE: New Jersey Advance Media reported on March 16 that the Justice Department has opened an investigation into the actions of Bernards Township.