Recent Articles of Interest

From SSRN:

• Avishalom Westreich, An International Perspective on Same-Sex Marriage Post Obergefell (and Some Thoughts on Legal Positivism as a Means of Reconciliation): The Israeli Case, (Brigham Young University Journal of Public Law, Forthcoming).
• Sahar F. Aziz, Security and Technology: Rethinking National Security, (2 Tex. A&M L. Rev. 791 (2015)).
• Pok Yin Stephenson Chow, Has Intersectionality Reached its Limits? Intersectionality in the UN Human Rights Treaty-Body Practice and the Issue of Ambivalence, (Human Rights Law Review, 2016 (Forthcoming)).
• Candace B. Ford, Marriage, Religion, and the Art of Judging in Post-Obergefell Louisiana, (43 S.U. L. REV. ___ (2016)).
• Casey E. Faucon, Polygamy after Windsor: What's Religion Got to Do with It?, (Harvard Law & Policy Review, Vol. 9, p. 471, 2015).
• Ruth Colker, Freedom to Choose to Marry, (Columbia Journal of Gender and Law, Vol. 30, No. 2, 2016).
• Uladzislau Belavusau & Dimitry Kochenov, On the 'Entry Options' for the 'Right to Love' : Federalizing Legal Opportunities for LGBT Movements in the EU, (EUI Department of Law Research Paper No. 2016/09 (2016)).

From SSRN (Islamic Law):

• Yusuf Sani Abubakar, Anowar Zahid & Ruzian Markom, Insurable Interest Under Life Insurance And Family Takaful, (Shariah Journal, Vol. 23, No. 2 (2015) 343-364).
• Anowar Zahid, et. al., Qarinah: Admissibility of Circumstantial Evidence in Hudud and Qisas Cases, (Mediterranean Journal of Social Sciences, Vol. 6, No. 2, March 2015).

Recent Prisoner Free Exercise Cases

In Dolan v. Lowe, 2016 U.S. Dist. LEXIS 35118 (MD PA, March 18, 2016), a Pennsylvania federal district court upheld prison authorities' refusal to allow an inmate to change his religious designation from Christian-Catholic to Islam so he could participate in Ramadan.

In Langford v. Koskela, 2016 U.S. Dist. LEXIS 35712 (WD MI, March 21, 2016), a Michigan federal district court rejected a Muslim inmate's challenge to misconduct sanctions imposed when he refused to give a urine sample for drug testing while he was abstaining from food and water for Ramadan.

In Hayes v. Bruno, 2016 U.S. Dist. LEXIS 35996 (D CT, March 21, 2016), a Connecticut federal district court rejected a claim by an Orthodox Jewish inmate that the prison's Common Fare diet, which had been certified as kosher by two rabbis who served a prison chaplains, did not meet Orthodox kosher standards because of the method of preparation.

In Weddle v. Baker, 2016 U.S. Dist. LEXIS 36133 (D NV, March 21, 2016), a Nevada federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 37307, Jan. 11, 2016) and dismissed a Jewish inmate's complaint that he was denied kosher meals.

In Cox v. Cronin, 2016 U.S. Dist. LEXIS 36549 (WD NY, March 18, 2016), a New York federal magistrate judge recommended dismissing an inmate's complaint that barring him from NA meetings violated his free exercise rights because he had adopted NA as his religion. The court concluded that defendants were protected by qualified immunity.

In Al-Fuyudi v. Corrections Corporation of America, 2016 U.S. Dist. LEXIS 36687 (WD OK, March 22, 2016), an Oklahoma federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 37750, Jan. 26, 2016) and dismissed a complaint by a Muslim inmate in a private prison that he was not provided a proper and nutritionally adequate halal diet, was denied the right to wear a kufi at all times, and was not provided religious materials, access to Muslim television programs, and additional chapel time for services.

In Oliver v. Harner, 2016 U.S. Dist. LEXIS 36835 (SD IL, March 22, 2016), an Illinois federal district court allowed an Assembly of Yahweh inmate to move ahead with his complaint against the prison chaplain that he was denied a kosher diet.

In McCombs v. Parker, 2016 U.S. Dist. LEXIS 36906 (WD NC, March 22, 2016), a North Carolina federal district court dismissed without prejudice an inmate's complaint that he was denied a kosher diet and was denied the ability to attend a Messianic Jewish prayer service when the volunteer who was supposed to supervise it was ill.

In Booker v. Graham, 2016 U.S. Dist. LEXIS 37100 (ND NY, March 21, 2016), a New York federal magistrate judge told defendants to wait until the completion of discovery to move for summary judgment in a case in which Muslim inmates complained that they could not attend daily Ramadan services or consult with an imam during a lock down and that they received inappropriate Ramadan food.

In Smith v. Davis, 2016 U.S. Dist. LEXIS 37325 (ND CA, March 21, 2016), a California federal district court dismissed two of the defendants in a Muslim inmate's suit claiming that Muslim inmates were limited to one congregational prayer service per day and could not meet in groups of 5 or more for prayer. The suit continues against two others.

Lower Courts Applying Tougher RLUIPA Standards In Prisoner Cases

Last year's Supreme Court decision in Holt v. Hobbs on prisoner rights (see prior posting) is slowly beginning to impact otherwise routine prisoner claims in lower courts.  Muhammad v. Wheeler, (ED AR, March 22, 2016) involves a rather typical RLUIPA challenge by a Muslim inmate to the availability of a Halal diet in his Arkansas prison.  A vegetarian diet that complies with Halal requirements was available, but a Halal compliant diet containing meat was not. The federal magistrate judge who first heard the case recommended rejecting the claim on the ground that plaintiff had not shown a substantial burden on his religious exercise. (2016 U.S. Dist. LEXIS 36816, Jan. 19, 2016). However the district court rejected this portion of the recommendation.  In refusing to grant summary judgment to either side, the court said in part:

It is certainly conceivable that providing halal meat to Mr. Muhammad would increase security concerns and require considerable resources to the extent that deciding not to provide it at all furthers a compelling government interest. However, ... [defendants] fail to make properly that argument..... For example, in support of their cost argument, they claim that changing their policy would incur an increase of “over $9,600 for one serving of meat” and that “depending on which meal plan an inmate is on, meat is generally served three times per day”... They calculate this substantial figure by multiplying the difference in cost between halal meat and regular meat by 16,020, the total number of inmates housed by the ADC. This is precisely the type of generalized argument that is not allowed under the RLUIPA. The proper focused inquiry under the RLUIPA is whether denying halal meat to Mr. Muhammad, not all ADC inmates, furthers a compelling government interest.

Even if ... [defendants] successfully demonstrated that completely denying Mr. Muhammad access to halal meat furthers a compelling government interest, they fail to show how their no-halal-meat policy is the least restrictive means of serving that interest....  For example, nothing in the record indicates how often halal meat would need to be served to satisfy Mr. Muhammad’s religious needs. Does Mr. Muhammad require three servings of meat a day or one serving a year? They also fail to respond to Mr. Muhammad’s proposed compromise – a pescatarian meal plan that combines the three halal fish items already served in the common fare plan with the vegetarian plan.... It is unclear to the Court whether this plan fits within Mr. Muhammad’s own beliefs regarding a halal diet, but if he claims that offering a pescatarian meal plan would no longer place a substantial burden upon his religious exercise, ... [defendants] must show how refusing to provide such a plan furthers a compelling government interest and is the least restrictive means of doing so. 

White House Issues Easter Greetings and Plans For Annual Easter Egg Roll

On Friday, President Obama extended Good Friday and Easter greetings, saying:

Michelle and I join our fellow Christians in observing Good Friday and celebrating Easter this weekend. This is a time to remember the sacrifices made for us and hold all who suffer close to our hearts. Yet it is also a time to rejoice, give thanks for the Resurrection, and unite with Christians around the world in proclaiming, "Christ has risen; He has risen indeed." We wish all who celebrate a blessed and joyful Easter.

The White House on Friday also announced (full text) the full program, activities, and talent line-up for the 2016 White House Easter Egg Roll that will be held on the South Lawn of the White House on Monday. Over 35,000 tickets have been issued for the event.

UN Report On Religious Freedom In Denmark Released

On March 22, the United Nations Special Rapporteur on Freedom of Religion or Belief filed his Preliminary Findings (full text) on his visit to Denmark to review the status of religious freedom there.  The Evangelical Lutheran church is the established church of the country.  Some 160 other groups enjoy either "recognition" or "acknowledgement."  The lengthy report observes in part:

The existing system is obviously non-egalitarian. While virtually no one questions the spirit of freedom that prevails in Denmark, including in the area of religion or belief, the principle of equality certainly does not govern the treatment of diverse religious communities. This contrasts starkly with the everyday culture in Denmark which indeed is markedly egalitarian....

[T]he understanding of religion in Denmark very much focuses on the dimension of the person’s inner conviction. This seems to echo a Christian and more specifically Lutheran understanding of redemption through faith alone (“sola fide”). As a result, aspects of ritual or ceremonial religious practice are relegated into a mere external sphere, which allegedly has less relevance and is less worthy of recognition. From the perspective of non-Christian religions, this can become worrisome. Two issues have arisen in various talks over the last few days, namely, the ban on ritual slaughter without prior stunning of the animal, enacted in February 2014, and public demands to outlaw religiously motivated circumcision of male infants.

[Thanks to Niels Valdemar Vinding via Religionlaw for the lead.] 

Blasphemy Prosecutions In Egypt On The Rise

AP yesterday reported that since 2011, the number of blasphemy prosecutions in Egypt have risen dramatically. According to the report:

Two years ago, the military ousted the Muslim Brotherhood from power, and since then the government has been waging a harsh crackdown on Islamists.

Yet in the past three years, prosecutions on charges of insulting Islam have risen dramatically. From three such cases in 2011, there were 21 cases in the courts in 2015, around half targeting Christians.... Nine of the 2015 cases led to convictions and prison sentences, while the rest are still in the courts.

Part of the rise is connected to the spread of social media.... Many of the cases have originated in comments or videos posted on the Internet.... But also, prosecutors and judges have aggressively pursued the cases, aiming to show that the state is still "protecting Islam" even as it cracks down on Islamists.

6th Circuit: Names of Applicants For Non-Profit Tax Status Are Not Confidential

In a case which is highly charged politically, the U.S. 6th Circuit Court of Appeals this week held that the names, addresses, and taxpayer-identification numbers of applicants for tax-exempt status are not confidential information protected by 26 USC Sec. 6103.  The decision, United States v. NorCal Tea Party Patriots, (6th Cir., March 22, 2016), grew out of discovery requests in a lawsuit alleging that the IRS used political criteria to select applications from so-called tea party groups for special scrutiny. Washington Times reported on the decision.

North Carolina Regulates Transgender Bathroom Use and Pre-Empts Local Anti-Discrimination Laws

In a hurriedly-called special session, the North Carolina General Assembly on Wednesday passed House Bill 2 (full text) regulating the use by transgender individuals of bathrooms and changing facilities in public schools and government offices.  The new law also pre-empts local employment and public accommodation anti-discrimination laws. Governor Pat McCrory signed the bill Wednesday night.

The new law requires any multiple occupancy bathroom or changing facility to be designated for and used only by individuals based on the biological sex that is stated on their birth certificate. However special accommodations, such as single occupancy bathrooms, may be made.  The law also declares that

the regulation of discriminatory practices in places of public accommodation is properly an issue of general, statewide concern, such that this Article and other applicable provisions of the General Statutes supersede and preempt any ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement pertaining to the regulation of discriminatory practices in places of public accommodation.

The law includes a similar declaration regarding local employment discrimination ordinances, but permits local government regulations governing their own employees that are not in conflict with state law.

As previously reported, the hurried passage of the law was designed to prevent a recently enacted Charlotte non-discrimination ordinance from going into effect on April 1. In his signing statement (full text), Gov. McCrory said in part:

The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte. This radical breach of trust and security under the false argument of equal access not only impacts the citizens of Charlotte but people who come to Charlotte to work, visit or play. This new government regulation defies common sense and basic community norms by allowing, for example, a man to use a woman's bathroom, shower or locker room.

NBC News reports that many of the state's largest employers are opposed to the new law.

Malaysian Civil Court Orders Recognition of Conversion Back To Christianity

In what the Borneo Post describes as a landmark case, a High Court judge in the Malaysian state of Sarawak has ordered the National Religion Department (NRD) to change a man's registration from Muslim to Christian and also to recognize his name change. The Star describes the decision in more detail. The man had been born into a Christian family, but the family converted to Islam when he was 8.  The court said in part:

His conversion to the Muslim faith was not of his own volition but by virtue of his parents’ conversion when he was a minor.

He is not challenging the validity of his conversion as a minor. But having become a major, he is free to exercise his right of freedom to religion and he chose Christianity.

The NRD had insisted on a letter of release from a Syariah Court, but the High Court concluded that the man's constitutionally protected religious freedom rights entitled him to obtain relief from a civil court.

In N.J., Registered Sex Offender Not Barred From Mentoring Youth In Church Ministry

In State of New Jersey v. S.B., (NJ App., March 22, 2016), a New Jersey appellate court held that  a youth ministry associated with a church, where a registered sex offender is a congregant volunteer, is not a "youth serving organization" under New Jersey's sex offender statute.  In the case, defendant had notified church pastors and elders of his prior sexual assault convictions, as required by state law.  The church nevertheless allowed defendant to supervise and mentor 12 to 17 year-olds at scheduled events of the No Limits Youth Ministry, such as outings, movie nights, concerts, youth group meetings, and day camp.  In affirming the dismissal of an indictment of defendant for participating in a "youth serving organization", the court concluded that the legislature deliberately excluded religious organizations from the definition of organizations in which sex offenders are barred.

Belgium's Constitutional Court Invalidates Required Religious Education Courses

Flanders Today reported earlier this month that Belgium's Constitutional Court has struck down the requirement that all students in elementary or secondary school take either a religious education course in one of the six recognized religions, or take a course in ethics.  In a religious freedom challenge to the requirement, the Court held that parents can now opt out of the requirement for their children, without being required to explain the reasons for their decision. [Thanks to Paul de Mello for the lead.]

U.N. Tribunal Convicts Former Serb Leader of Genocide

The United Nations Criminal Tribunal for the Former Yugoslavia in a press release yesterday announced the highest level conviction yet in the ethnic cleansing of Bosnian Muslims and Bosnian Croats from territory claimed by Bosnian Serbs in the 1990's:

Trial Chamber III of the International Criminal Tribunal for the former Yugoslavia (ICTY) today convicted Radovan Karadžić, former President of Republika Srpska (RS) and Supreme Commander of its armed forces, of genocide, crimes against humanity and violations of the laws or customs of war committed by Serb forces during the armed conflict in Bosnia and Herzegovina (BiH), from 1992 until 1995. He was sentenced to 40 years’ imprisonment.

Karadžić was convicted of genocide in the area of Srebrenica in 1995, of persecution, extermination, murder, deportation, inhumane acts (forcible transfer), terror, unlawful attacks on civilians and hostage-taking. He was acquitted of the charge of genocide in other municipalities in BiH in 1992.

The Office of the Prosecutor issued a statement welcoming the convictions. New York Times reports on the conviction.

University's Limits on Religious Speech Create 1st Amendment Concerns

In Faulkner v. University of Cincinnati, (SD OH, March 23, 2016), an Ohio federal district court refused to dismiss a suit against the University of Cincinnati by one of its former lower level administrators, Mark Faulkner, who was sent a "corrective action" letter from the University's Office of Equal Opportunity and Access.  The letter was issued after he made references to Jesus and Biblical teachings in a lecture on "servant leadership" that he was asked to deliver at a leadership training course.  In the letter, Faulkner was told that he  "should refrain from using biblical quotations during presentations and work related interactions." The court said in part:

The University’s asserted interest in avoiding an employee’s discomfort at hearing biblical references (or in another context, hearing references to Buddhist teachings or the Quran, or the principles of atheism) simply and plainly do not outweigh Faulkner’s interests in free speech and in the free exercise of his religious principles.

The court also refused to dismiss a vagueness and overbreadth challenge to the University's Discriminatory Harassment Policy.

2nd Circuit Affirms Win By Rockland County Villages Charged With Anti-Hasidic Discrimination

In the long battle between Hasidic residents and others in parts of Rockland County, New York, the Second Circuit has affirmed the district court's dismissal (see prior posting) of a complaint by Mosdos Chofetz Chaim, a Hasidic religious educational institution, that local villages discriminated against Hasidic Jews in actions opposing the building of a 60-unit adult student housing development.  In Bernstein v. Village of Wesley Hills, (2d Cir., March 23, 2016), the U.S. Second Circuit Court of Appeals concluded that plaintiffs' had not produced sufficient evidence for a jury to find disparate treatment or discriminatory animus.  Instead, it said the villages had a genuine concern about environmental impact of the development. Lower Hudson Journal News reports on the decision.

"Unfit" Parent Loses Right To Assert Religious Objection To Immunization of Her Children

In In re Deng, (MI App, March 22, 2016), a Michigan state appeals court held that a court can order immunizations for children placed in foster care after the children's parents have been found unfit despite the mother's religious objections to vaccination of her children. The court said in part:

We recognize that, were respondent a fit parent entitled to the control and custody of her children, MCL 333.9215(2) would undoubtedly allow her to forego the immunization of her children otherwise required by the Public Health Code on the grounds of a religious objection. However, this provision is inapplicable on the present facts for the simple reason that the children are not being immunized as a result of provisions in the Public Health Code.... [R]ather, ... the court exercised its broad authority to enter dispositional orders for the welfare of a child under its jurisdiction....

MLive reports on the decision.

Suit Charges NY Community College With Anti-Semitic Hiring Practices

A lawsuit filed last month in federal district court in New York charges the Brooklyn-based Kingsborough Community College and Stuart Suss (who served variously as its Provost, Vice President for Academic Affairs and Interim President) with discrimination against faculty and faculty candidates whose dress or appearance was obviously Jewish (labeled in the complaint as "Outward Jews").  The complaint (full text) in Lax v. City University of New York, (ED NY, filed 2/16/2016) alleges that in 2000 Jews comprised a large percentage of department chairs and of the college-wide Personnel & Budget Committee, but that since then Suss has engaged in hiring and personnel practices designed to reduce or eliminate the number of outward Jews on the faculty and on the P&B Committee in violation of Title VII and New York state and city anti-discrimination laws. Yesterday's Algemeiner has more on the lawsuit.

Lawsuit Filed Against Mystic Rabbi By Woman Who Paid $214,000 For Matrimony and Torahs

The New York Post reported  yesterday on a lawsuit filed against Rabbi Chaim Sharabi, a controversial mystic in the Orthodox Borough Park community, by a woman who claims she paid Sharabi $214,000 after he promised to find her a husband and to purchase three Torah scrolls in her name to be placed in synagogues in Brooklyn and in Israel.  Plaintiff Cecilia Lifschitz says that Sharai never performed on his promises.  Sharabi says he did match Lifschitz with a man, but that things did not work out between them, and that he did purchase the Torah scrolls.

RLUIPA Challenge To Fire Safety Rules By Faith-Based Organization Fails

Affordable Recovery Housing v. City of Blue Island, (ED IL, March 23, 2016), involves a challenge to the action of officials of a Chicago suburb who evicted residents of a recovery home that used faith based methods to treat drug and alcohol abuse.  The city acted because the facility failed to comply with safety regulations requiring fire sprinklers in buildings that house overnight guests. In the case, an Illinois federal district court held that the city's action did not violate various provisions of the federal Religious Land Use and Institutionalized Persons Act nor similar provisions of  the Illinois Religious Freedom Restoration Act, saying in part:

Plaintiff argues that Blue Island’s eviction of its 73 residents substantially burdened its ability to exercise its religion by effectively rendering religious exercise impracticable. However, the City’s eviction was pursuant to its fire safety code, not its zoning ordinance. Because Blue Island was not “impos[ing] or implement[ing] a land use regulation”..., this action falls outside of the regulatory scope of RLUIPA and IRFRA.

The court also rejected plaintiff's free exercise claim, saying that any burden is merely "the incidental effect of a neutral, generally applicable, and otherwise valid regulation...."

Transcript of Arguments In Zubik Case Is Now Available

The full transcript of today's oral arguments in Zubik v. Burwell, the contraceptive coverage mandate accommodation case, is now available. Lyle Denniston at SCOTUSblog has an interesting analysis of the arguments.

Supreme Court Will Hear Oral Arguments Today In Contraceptive Coverage Mandate Accommodation Challenge

This morning the U.S. Supreme Court hears oral arguments in Zubik v. Burwell and six other cases consolidated for argument with it. (Hearing List.)  The cases all involve challenges to the Obama Administration's Affordable Care Act accommodation for religious non-profits.  Religious non-profits that object to including coverage for contraceptive services in their employee health plans may opt out in favor of coverage that is furnished instead directly by the organization's insurer or third-party administrator. Although there is a split among circuits on the issue, all of the cases being argued today involve appeals court decisions upholding the mandate.  The cases raise fundamental issues of interpretation and application of the Religious Freedom Restoration Act.

The Court has allotted 90 minutes for oral argument of the consolidated cases. Argument time for the religious non-profits will be divided between former Solicitor General Paul D. Clement and Jones Day partner Noel J. Francisco. Arguing for the government will be U.S. Solicitor General Donald B. Verrilli, Jr.  The SCOTUSblog case page furnishes links to the dozens of briefs from parties and amici that have been filed, as well as links to extensive commentary on the cases. A transcript of the oral arguments should be available later in the day from the Supreme Court's website.

While the arguments are taking place, outside the Supreme Court building a rally is planned by Little Sisters of the Poor, the non-profit that has been the face of the challengers on social media and in an op-ed last week in the New York Times. Planners say that hundreds of religious women, college students, and clergy will participate.  An op-ed in Sunday's Washington Post by Prof. Douglas Laycock counters the arguments by Little Sisters.

With the recent death of Justice Scalia, it is possible that the Court could split 4-4 in the case, which would result in affirmance of the Circuit Court decisions.  The first such 4-4 affirmance was published today in a case involving interpretation of the Equal Credit Opportunity Act.