Israel's High Court Recognizes Conversions Performed Outside of the Chief Rabbinate's Jurisdiction

Israel's High Court of Justice yesterday dealt another blow to the monopoly power of the country's Chief Rabbinate.  The Jerusalem Post reports that the Court, in an 8-1 decision, held that non-Israeli nationals who convert to Judaism through private Orthodox rabbinical courts-- rather than through the Chief Rabbinate's State Conversion Authority-- are eligible for citizenship under Israel's Law of Return.  Last year, a group of senior Orthodox rabbis gave up on trying to make the State Conversion Authority more accessible-- particularly to the many Soviet immigrants who are not recognized as Jewish under religious law-- and instead created their own non-state Orthodox conversion system known as Giyur Kahalacha.  It has converted some 150 people so far.  In Israel's complicated religious-political system, recognition under the Law of Return will likely require the Interior Ministry to register these converts as Jewish in the Population Registry. Then the question will be whether the Chief Rabbinate will recognize them as Jewish for purposes of marriage. Two leaders of the United Torah Judaism Party said that they would demand legislation to overturn the Court's decision.

Federal Agencies Adopt Final Rules On Partnering With Faith-Based Organization

Following up Notices of Proposed Rulemaking issued last August (see prior posting), yesterday, nine federal agencies published their final regulations implementing Executive Order 13559 that President Obama signed in 2010.  That Executive Order approved recommendations of the President's Advisory Council for Faith-Based and Neighborhood Partnerships. Yesterday's 304-page release (full text) titled Fundamental Principles and Policymaking Criteria for Partnerships With Faith-Based and Other Neighborhood Organizations adopts regulations aimed at preventing discrimination and assuring appropriate separation of religion and government.  A White House blog post describes the new rules.  The regulations:

Require agencies to ensure that all decisions about Federal financial assistance are based solely on merit, without regard to an organization's religious affiliation....

 Make clear that faith-based organizations are eligible to participate in federally funded social service programs on the same basis as any other private organization.

 Clarify what activities can and cannot be supported with direct Federal financial assistance by replacing use of the term "inherently religious activities" with the term "explicitly religious activities" and providing examples....

Prohibit organizations that receive Federal financial assistance from discriminating against beneficiaries ... based on religion ... or a refusal to attend or participate in a religious practice.

Require faith-based organizations that receive direct Federal financial assistance for domestic social service programs to provide written notice of certain protections to beneficiaries of the program....

In adopting the final regulations, the agencies refused to either broadly prohibit employment discrimination on the basis of religion by all recipients of Federal grants, or to clarify that such faith-based hiring is permissible. The Hill reports on the new rules.

ALJ Recommends Damages Against B&B That Rejected Civil Union Ceremony

In Wathen v. Walder Vacuflo, Inc., (IL Hum. Rts. Commn., March 22, 2016), an Illinois Human Rights Commission Administrative Law Judge-- after a recommended finding of liability entered last September-- recommended imposing damages of $30,000 for emotional distress arising out of a bed-and-breakfast's refusal to host a same-sex civil union ceremony, as well as $51,218 in attorneys' fees and costs.  The ALJ also recommended issuance of a cease-and-desist order and an order requiring Timber Creek Bed-and-Breakfast to host a celebration ceremony for complainants at 2011 rates. Reporting on the decision, WAND News published a statement from the B&B owner, who said in part:

We are not looking for a fight, but when immoral laws are purposely passed (or deemed constitutional) that blatantly conflict with God’s Word and when the heavy hand of government tries to force us as Christians to embrace sinful behavior, we have a moral obligation to resist and stand for Biblical truth. 

Virginia Governor Vetoes "Religious Freedom" Bill As Discriminatory

As he had promised, Virginia Governor Terry McAuliffe, a Democrat, yesterday vetoed Senate Bill 41 that protected 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. (See prior posting.) In his veto message (full text), McAuliffe described the bill as one that shields "those who actively discriminate against same-sex couples" from civil liability.  McAuliffe said in part:

Although couched as a “religious freedom” bill, this legislation is nothing more than an attempt to stigmatize.  Any legitimate protections  ... are duplicative of the First Amendment ...; Article I, Section 11 of the Constitution of Virginia; and the Virginia Religious Freedom Restoration Act.  Any additional protections are styled in a manner that prefers one religious viewpoint—that marriage can only validly exist between a man and a woman—over all other viewpoints.  Such a dynamic is not only unconstitutional, it equates to discrimination under the guise of religious freedom.

This legislation is also bad for business and creates roadblocks as we try to build the new Virginia economy.

Washington Times reports on the governor's action.

Catholic School Principal's Title VII Suit Dismissed Under "Ministerial Exception"

In Fratello v. Roman Catholic Archdiocese of New York, (SD NY, March 29, 2016), a New York federal district court held that the "ministerial exception" to Title VII of the 1964 Civil Rights Act precludes the former lay principal of a Catholic elementary school from suing for employment discrimination.  Plaintiff alleged that her employment was terminated as a result of gender discrimination and retaliation. In relying on the ministerial exception doctrine as set out in the U.S. Supreme Court's 2012 Hosanna-Tabor decision, the district court said in part:

There is no dispute that Plaintiff is not a member of the clergy and that she would not be considered a minister for purposes of Church governance. But the issue here is one of U.S., not canon, law, and “minister” for purposes of the ministerial exception has a far broader meaning than it does for internal Church purposes. 

Obama Speaks At White House Easter Prayer Breakfast

Yesterday, President Obama (introduced by Vice President Joe Biden) spoke at his annual Easter Prayer Breakfast in the State Dining Room at the White House. (Full text of remarks.) The President said in part:

[I]n light of recent events, this gathering takes on more meaning.  Around the world, we have seen horrific acts of terrorism, most recently Brussels, as well as what happened in Pakistan -- innocent families, mostly women and children, Christians and Muslims.  And so our prayers are with the victims, their families, the survivors of these cowardly attacks. 

... [T]hese attacks can foment fear and division.  They can tempt us to cast out the stranger, strike out against those who don’t look like us, or pray exactly as we do.  And they can lead us to turn our backs on those who are most in need of help and refuge.  That’s the intent of the terrorists, is to weaken our faith, to weaken our best impulses, our better angels. 

... [I]f Easter means anything, it’s that you don’t have to be afraid.  We drown out darkness with light, and we heal hatred with love, and we hold on to hope.  And we think about all that Jesus suffered and sacrificed on our behalf -- scorned, abandoned shunned, nail-scarred hands bearing the injustice of his death and carrying the sins of the world.

AP reported on the President's remarks.

Alaska Appeals Court: Reconsider Sex Offender's Bar On Taking His Children To Church

In Binder v. State of Alaska, (AK, March 30, 2016), an Alaska appeals court remanded a case to the trial court to reconsider defendant's request that his conditions of probation be modified to allow him to visit and attend church with his children. The court said that it was not enough to leave this issue to the discretion of defendant's probation officer. Instead the court should decide whether, for example, defendant could attend church with his children supervised by a person approved by the court or his probation officer. The appeals court explained:

When probation conditions potentially infringe fundamental constitutional rights, a sentencing judge must scrutinize the conditions and consider whether less restrictive alternatives might suffice.

Bible Colleges Lose Challenge To State Regulation

In Illinois Bible Colleges Association v. Anderson, (ND IL, March 28, 2916), an Illinois federal district court rejected constitutional challenges by a group of Bible Colleges to three Illinois statutes that regulate institutions of higher education in the state.  The statutes generally require approval by the state Board of Higher Education to operate a degree-granting college or grant degrees or certificates of completion.  Plaintiffs argued, among other things, that the statutes "subordinate the Church’s responsibility to God in deciding how to properly educate students in religious teaching" and "unconstitutionally restrict... their ability to accurately describe the nature of the Bible Colleges’ curricula by regulating the use of the terms 'Bachelor’s,' 'Master’s,' or 'Doctorate' degrees." The court rejected plaintiffs' establishment clause, free exercise, speech, association and equal protection challenges to the statutes and dismissed the complaint.

FOIA Request Aimed At Human Trafficking Grant To Catholic Bishops

The ACLU earlier this month filed a Freedom of Information Act lawsuit seeking the release of records related to the federal government’s award of Trafficking Victim Protection Act funds to the U.S. Conference of Catholic Bishops (USCCB).  According to the complaint (full text) in ACLU v. Administration for Children and Families, (SD NY, filed 3/17/2016), in 2009 the ACLU filed a lawsuit claiming that the federal government violated the Establishment Clause by allowing USCCB under a 2006 grant to enter subcontracts with religiously-based reproductive health care restrictions in them.  Those subcontracts barred subcontracting agencies from furnishing abortion and contraception services or referrals to trafficking victims. The lawsuit was ultimately dismissed as moot because the government was no longer contracting with USCCB.  However in 2015 USCCB received a new grant, and the ACLU is now seeking documents to determine whether religiously-based restrictions are again being imposed. LifeSite News yesterday reported on the lawsuit.

Sikhs Sue Over Army Accommodation of Religious Practices

A lawsuit was filed yesterday by three observant Sikhs who have enlisted in the Army, but who are encountering difficulties in obtaining accommodation to allow them to continue to wear beards, uncut hair, and turbans.  The 54 page complaint (full text) in Singh v. McConville, (D DC, filed 3/29/2016), alleges in part:

[T]he Army has a long pattern and practice of discriminating against Sikhs.... The Army’s regulations promise that soldiers whose religious exercise poses no significant obstacle to the military’s mission will be generously accommodated.... [H]owever, the regulations themselves are defective and foster religious discrimination on a number of levels.... [T]hey force soldiers who need religious accommodations to violate their religious beliefs before they can apply for an accommodation, even if their religious exercises would clearly have no impact on the military’s compelling interests.

The regulations are also ... require soldiers to reapply for a religious accommodation every time they have a “transfer of duty stations, or other significant change in circumstances”..... The ambiguity in the regulations also creates an environment where the Army feels free to delay resolving requests for accommodation for long periods of time, leaving future soldiers in limbo and potentially forcing them to forgo other education and career opportunities while they wait for the Army’s decision.

Becket Fund issued a press release announcing the filing of the lawsuit.

Suit By Man Injured Through Faith Healing May Proceed

In Sung-Ho Hwang v. Grace Road Church, (ED NY, March 14, 2016), a New York federal district court allowed a mentally ill man (in a suit through his conservator) to move ahead with negligent infliction of emotional distress and negligent supervision claims against a Korean-based church and its members who forced him off his prescription medications and attempted to cure him through religious healing. Plaintiffs' treatment of defendant-- including tying his wrists, ankles, and knees in a chair or bed with duct tape, and placing a sock in his mouth to restrain his screams at night-- led to amputation of his right leg and exacerbation of his psychotic symptoms.  The court rejected a number of procedural defenses and, in permitting the negligent infliction claim to move forward, said:

Even if the church and its members had no duty to plaintiff until the moment they restrained him, they acquired a duty to exercise reasonable care to secure his safety during the period of his restraint.

New York Law Journal reports on the decision.

Supreme Court In Unusual Order Floats Alternative Compromise In Contraceptive Mandate Cases

The U.S. Supreme Court today issued an unusual Order (full text) in Zubik v. Burwell and the six other cases consolidated with it, less than a week after the Court heard oral arguments in the case.  In what is apparently an attempt to avoid a 4-4 split in the case, the Court has essentially drafted its own version of a compromise on provision of contraceptive coverage in health insurance policies for employees of religious non-profits, and is asking the parties whether they will buy into it. The Order reads in part:

The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.  Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners. 

For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.

The parties may address other proposals along similar lines, avoiding repetition of discussion in prior briefing.....

Initial reactions from the non-profits suggest that they may be willing to accept this version of the compromise. A press release from the Becket Fund, counsel for Little Sisters of The Poor, petitioners in one of the cases, describes the Court's Order as an "excellent development."

Arbitration Clause In Mosque's By-Laws Covers Misappropriation Claims

In Matahen v. Sehwail, (NJ App., March 24, 2016), members of a local mosque sued claiming that defendants (also members of the mosque) misused the mosque's credit card for personal expenses and legal expenses of the mosque's Imam. Plaintiffs also claimed that one of the defendants was improperly maintained on the mosque's health insurance plan after he ceased working for the mosque and his children's school tuition was paid for by the mosque.  A New Jersey state appeals court held that an arbitration clause in the mosque's by-laws applies to these claims and ordered the claims be referred to arbitration. The clause provides:

The board shall create an Islamic Arbitration Committee of 3-5 members in case of disagreement among board members or general assembly members of matters related to the center, such committee shall consist of a Lawyer, an Imam, and Community Leaders. All disputes arising hereunder shall be resolved by arbitration by the aforementioned committee....

The court pointed out that the "general assembly" is the general membership of the mosque, and all the plaintiffs and individual defendants were members. New Jersey Law Journal reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Suit Challenges Pennsylvania City's Abortion Clinic Buffer Zone

Last week, three women who regularly act as pro-life "sidewalk counselors" outside two abortion clinics filed suit in a Pennsylvania federal district court challenging the constitutionality of Harrisburg's "Interference With Access To Health Care Facilities" Ordinance.  The ordinance bars congregating, patrolling, picketing or demonstrating within 20 feet of any health care facility entrance, exit or driveway.  The complaint (full text) in Reilly v. City of Harrisburg, (MD PA, filed 3/24/2016) contends that the ordinance violates freedom of expression, free exercise of religion, freedom of assembly, equal protection and due process rights. Liberty Counsel announced the filing of the lawsuit.

Bangladesh Court Throws Out Petition Seeking To End Islam As State Religion

As reported by Voice of America, yesterday a 3-judge panel of Bangladesh's High Court rejected on procedural grounds a controversial petition filed 28-years ago seeking to eliminate the designation of Islam as the country's state religion.  Petitioners argued that recognition of Islam-- practiced by 90% of the population-- as the state religion is inconsistent with the country's secular constitution and discriminates against religious minorities. As soon as the case opened in court yesterday, the judges ruled that because the secular group filing it never registered with authorities, it has no right to file a petition.

Wedding Chapel That Objects To Performing Same-Sex Ceremonies Lacks Standing For Most of Its Challenges

In 2014, two Christian ministers and their wedding chapel known as the Hitching Post brought suit in an Idaho federal district court to enjoin the city of Coeur d'Alene from enforcing its LGBT anti-discrimination ordinance against them, and for damages. In Knapp v. City of Coeur d'Alene, (D ID, March 25, 2016), the court held that because the city conceded within a week of the filing of the lawsuit that the religious chapel is exempt from the anti-discrimination law, plaintiffs lack standing to seek an injunction.  At most the chapel can sue for lost business on the one day after same-sex marriages became legal that it was closed out of fear it would be required to perform same-sex marriages.  The court did not reach the merits of whether plaintiffs' free speech, free exercise, equal protection and due process rights were in fact infringed on that day. (See prior related posting.)

UPDATE: The suit was eventually settled by the city paying plaintiffs $1000. (CDA Press, May 3, 2016).

Suit Challenges North Carolina's Anti-Transgender Law

The ACLU, Equality North Carolina and three individuals yesterday filed a federal lawsuit challenging a statute enacted last week in North Carolina which bars transgender individuals from using school and public agency bathrooms that correspond with their gender identity.  The law also more broadly pre-empts local anti-discrimination laws. (See prior posting.)  The complaint (full text) in Carcaño v. McCrory, (MD NC, filed 3/28/2016) contends that the law was enacted for the purpose of disadvantaging members of the LGBT community and is based on animus against LGBT people.  Plaintiffs allege that the law violates the Equal Protection Clause and Title IX of the 1964 Civil Rights Act, and infringes their right to privacy and right to refuse unwanted medical treatment.  Wall Street Journal reports on the lawsuit.

UPDATE: North Carolina Attorney General Roy Cooper said at a news conference that he will not defend the state's new law against the challenge in this lawsuit.  He called the law a national embarrassment and unconstitutional.  Cooper is running against incumbent Republican Gov. Pat McCrory who signed the anti-transgender bill. (AP, BuzzFeed, 3/29/2016).

Georgia Governor Will Veto Religious Liberty Bill

Georgia Governor Nathan Deal announced this morning that he will veto HB 757, the expansive Free Exercise Protection Act passed earlier this month by the state legislature. (See prior posting.)  As reported by CNN, the Republican governor has been under pressure from major business, technology and entertainment companies to veto the bill which was seen as condoning discrimination against members of the LGBT community.  In his veto message (full text), Gov. Deal said in part:

If indeed our religious liberty is conferred by God and not by man-made government, we should need the “hands off” admonition of the First Amendment to our Constitution. When legislative bodies attempt to do otherwise, the inclusions and omissions in their statues can lead to discrimination, even though it may be unintentional. That is too great a risk to take.

Some of those in the religious community who support this bill have resorted to insults that question my moral convictions and my character. Some within the business community who oppose this bill have resorted to threats of withdrawing jobs from our state. I do not respond well to insults or threats. The people of Georgia deserve a leader who will made sound judgments based on solid reasons that are not inflamed by emotion....

As I've said before, I do not think we have to discriminate against anyone to protect the faith based community in Georgia of which my family and I are a part of for all of our lives.

California Board of Regents Adopts Proposal Aimed At Campus Anti-Semitism

Last Thursday, the University of California Board of Regents unanimously adopted "Principles Against Intolerance" (full text) as a response to an increase in anti-Semitic incidents on UC campuses. The Introduction to the new document explains:

During the 2014-15 academic year, the Regents received correspondence and public comment from a variety of sources expressing concern that there has been an increase in incidents reflecting anti-Semitism on UC campuses. These reported incidents included vandalism targeting property associated with Jewish people or Judaism; challenges to the candidacies of Jewish students seeking to assume representative positions within student government; political, intellectual and social dialogue that is anti-Semitic; and social exclusion and stereotyping. Fundamentally, commenters noted that historic manifestations of anti-Semitism have changed and that expressions of anti-Semitism are more coded and difficult to identify. In particular, opposition to Zionism often is expressed in ways that are not simply statements of disagreement over politics and policy, but also assertions of prejudice and intolerance toward Jewish people and culture.

Anti-Semitism, anti-semitic forms of anti-Zionism and other forms of discrimination have no place at the University of California.

As reported by the New York Times,  the version of the document that was adopted eliminated previously proposed language that would have condemned all forms of anti-Zionism.

More Recent Prisoner Free Exercise Cases

In Greenhill v. Clarke, 2016 U.S. Dist. LEXIS 37439 (WD VA, March 23, 2016), a Virginia federal district court refused to grant a preliminary injunction to a Muslim inmate complaining about access to Jum'ah services, restrictions on beard length and handling of religious meals.

In Patterson v. Berrett, 2016 U.S. Dist. LEXIS 37788 (D NV, March 22, 2016), a Nevada federal district court dismissed an inmate's complaint that wearing an identification wristband violates his free exercise rights.

In Guillory v. Hodge, 2016 U.S. Dist. LEXIS 37898 (SD MS, March 23, 2016), a Mississippi federal  magistrate judge dismissed a Muslim inmate's complaint that his overcrowded cell made it difficult for him to perform Salat and Wudu; he was not allowed to have various religious items; and denied a modified meal schedule for Ramadan.

In Dawson v. Beard, 2016 U.S. Dist. LEXIS 38115 (ED CA, March 23, 2016), a California federal magistrate judge dismissed a claims by a House of Yahweh inmate that he was denied access to religious services and the right to fast.

In McBride v. Michigan Department of Corrections, 2016 U.S. Dist. LEXIS 38398 (ED MI, March 24, 2016), a Michigan federal district court adopted a magistrate's recommendations and refused to dismiss complaints by deaf inmates that their rights were infringed by failure to provide sign interpreters at religious services.

In Davis v. Federal Bureau of Prisons, 2016 U.S. Dist. LEXIS 38629 (D CO, March 24, 2016), a Colorado federal district court adopted a magistrate's recommendations and dismissed an inmate's claim that correspondence restrictions violated his free exercise rights.

In Abdul-Aziz v. Lanigan, 2016 U.S. Dist. LEXIS 38884 (D NJ, March 24, 2016), a New Jersey federal district court while dismissing some claims allowed Muslim inmates to move ahead on complaints seeking injunctive and declaratory relief alleging that they were denied daily Halal meats and meals; donated Halal feast meals; personal prayer oils; and congregational prayer.