Qualified Immunity For Commissioners Asking Religious Questions To Constable Candidate

In Lloyd v. Birkman, (WD TX, April 1, 2016), a Texas federal district court held that members of the Williamson County (Texas) Commissioners' Court enjoyed qualified immunity in a suit by an unsuccessful candidate for County Constable.  The position was normally an elected one, but the current Constable resigned and the next election was over one year away. Thus under state law the Commissioners had the power to appoint a new Constable to serve until the next general election.  During interviews for the position, Commissioners asked candidates about their church membership, views on gay marriage and abortion, and political ideology. Plaintiff contended that these questions violated his rights of free expression and association, as well as the free exercise and establishment clauses. The court, however, concluded that there was not "clearly established law" that this line of questioning was improper in the context of private interviews for an interim appointment to a normally elective position. (See prior related posting.)

Business Owner Unsuccessful In Suing Churches That Opposed New Strip Club

In Harrington v. Hall County Board of Supervisors, (D NE, March 31, 2016), a Nebraska federal district court dismissed a number of claims brought by the owner of an adult entertainment company against two churches that circulated a petition opposing attempts to open a strip club in Hall County, Nebraska. The court also dismissed claims against a director of one of the churches.  The adult entertainment company owner alleged that the churches engaged in a conspiracy to adopt and enforce an unconstitutional zoning resolution. Plaintiff also alleged violations of the antitrust laws, defamation, tortious interference with business relationships, infliction of emotional distress, and negligence.  The court additionally rejected the claim that individual members of the County Board of Supervisors violated the Establishment Clause when at a public hearing they thanked supporters of the petition for supporting Christian values.

Recent Articles of Interest

From SSRN:

• Paul Horwitz, Against Martyrdom: A Liberal Argument for Accommodation of Religion, (Notre Dame Law Review, Vol. 91, No. 4, 2016).
• Tim S. Braimah, Divorcing Sexual Orientation from Religion and Politics: Utilizing the Convention Grounds of Religion and Political Opinion in Same-Sex Oriented Asylum Claims, (International Journal of Refugee Law, 2015).
• John D. Blum, Restoring the Parameters of Public Health in a Time of Hobby Lobby and Ebola: The Case for a Wellness Account, (2 Belmont Law Review 119 (2015)).
• John Fahner, Free Conscience in Decline: The Insignificance of the Free Exercise Clause and the Role of the Religious Freedom Restoration Act in the Wake of Hobby Lobby, (2 Belmont Law Review 185 (2015)).
• M. Cathleen Kaveny, Law, Religion, and Conscience in a Pluralistic Society: The Case of the Little Sisters of the Poor, (Boston College Law School Legal Studies Research Paper No. 394, March 2016).
• Vincy Fon, A Talmudic Bankruptcy Solution: The CCC Principle, (March 21, 2016).

From elsewhere:

• Justice, The Legal Magazine of the International Association of Jewish Lawyers and Jurists, No. 57, Winter 2015-2016.

Recent Prisoner Free Exercise Cases

In Navarro v. Herndon, 2016 U.S. Dist. LEXIS 39682 (ED CA, March 25, 2016), a California federal magistrate judge recommended that a Native American inmate be allowed to move ahead with his complaints regarding denial of access to a sweat lodge, to a  spiritual advisor and to religious property.

In Seagraves v. Treachler, 2016 U.S. Dist. LEXIS 40992 (D NJ, March 29, 2016), a New Jersey federal district court permitted a Muslim inmate to move ahead with his free exercise and RLUIPA claims that the prison chaplain denied his request for vegetarian meals.

In Bey v. Pennsylvania Board of Probation & Parole, 2016 U.S. Dist. LEXIS 41017 (MD PA, March 29, 2016), a Pennsylvania federal district court adopted a magistrate's recommendations that an inmate who was a member of the Moorish Science Temple of America and objected to the Therapeutic Community program in which he was required to participate can move ahead with an establishment clause, but not a free exercise clause, claim.

In Presley v. Scott, 2016 U.S. Dist. LEXIS 40107 (ND AL, March 28, 2016), an Alabama federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 41087, March 2, 2016) and dismissed for failure to exhaust administrative remedies a Native American inmate's complaint that authorities seized his medicine bag and the refused to allow him to retrieve religious objects when he was transferred.

In Hoever v. Bellelis, 2016 U.S. Dist. LEXIS 41168 (ND FL, March 29, 2016) a Florida federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 41174, Feb. 24, 2016) and dismissed an inmate's complaint that he was denied his English version of the Bible and two devotional books for 26 days.  During that time he had his own Spanish Bible and could pray.

In Givens v. Vaughn, 2016 U.S. Dist. LEXIS 41208 (SD IL, March 29, 2016), an Illinois federal district court allowed an African American Hebrew Israelite inmate to move ahead with complaints regarding denial of group Sabbath day services and ending of his kosher diet as well as retaliation and equal protection claims.

In Thomas v. Dakota County Law Enforcement Center, 2016 U.S. Dist. LEXIS 41596 (D MN, March 29, 2016), a Minnesota federal district court held that because plaintiff, a Muslim inmate, named defendants only n their official capacities, his only claim that can move forward is one that the county had a policy of prohibiting Muslim prisoners from holding religious gatherings.

In Uduko v. Cozzens, 2016 U.S. Dist. LEXIS 42048 (ED MI, March 30, 2016), a Michigan federal district court, while dismissing claims against a number of defendants, allowed an inmate who was Nigerian and a Protestant to move ahead with claims based on retaliation and discrimination against the prison chaplain who barred defendant from leading Protestant services or Bible or study groups, and later barred him from prophesying or praying for others in group services.

In Sanders v. Cain, 2016 U.S. Dist. LEXIS 42069 (MD LA, March 28, 2016), a Louisiana federal district court dismissed an inmate's complaint that Mormons could not worship together on Sundays at the main prison complex and were denied club status, and that his transfer to another part of the prison prevented him from congregating or holding fund raisers with other Mormons.

In Johnson v. Ely State Prison, 2016 U.S. Dist. LEXIS 42378 (D NV, March 30, 2016), a Nevada federal district court, while disagreeing in part with a magistrate's reasons, agreed that material facts remain for the fact finder on a Muslim inmate's complaint that he was prevented from attending Jum'ah for three years while held as a high risk inmate serving disciplinary sanctions.

Refusal To Enter Requested Surname on Birth Certificate Did Not Violate Free Exercise Rights

In Nix El v. Williams, (D DC, March 30, 2016), the D.C. federal district court rejected a claim by the father of a newborn daughter that his religious rights were infringed when D.C. Department of Health officials refused to list his daughter's surname on her birth certificate as "Nix El" rather than as "Nix", the parents' surname. D.C. statutes require the surname to match that of a family member. Plaintiff, who is a member of the Moorish Science Temple, contended that he wished to add "El" to his daughter's name because it is a title of nobility. In the suit, plaintiff had asked for declaratory and injunctive relief, compensatory damages of $136 million plus punitive damages of $1 million per day for each day his daughter did not have a birth certificate.

Montana Court Issues Preliminary Injunction To Allow Parochial School Participation In Tax Credits

According to The Missoulian, in Montana on Thursday, a state trial court judge issued a preliminary injunction barring the Montana Department of Revenue from enforcing its rule that excludes religiously affiliated schools from participating in the state's new School Contributions Tax Credit law. (See prior posting.) The Department of Revenue takes the position that participation in the school aid program by religiously affiliated schools violates state constitutional bans on that prohibit direct and indirect payments or appropriations to religious or sectarian schools.

Mississippi Legislature Sends Governor Broad "Freedom of Conscience" Bill

The Mississippi Legislature today gave final passage to H.B. 1523 (full text) and (adopted amendment). Titled Protecting Freedom of Conscience From Government Discrimination Act, the bill passed the Senate by a vote of 32-17 House by a vote of 69-44.

The statute, one of the broadest to date enacted by states, protects three separate beliefs if held on religious or moral grounds: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth.

The statute protects from any kind of adverse state action a religious organization that on one of these bases refuses to solemnize a marriage or refuses to provide services, accommodations, goods or facilities for a marriage.  It also allows religious organizations to use these beliefs in making employment decisions or decisions regarding the sale, rental or occupancy of housing facilities, or in providing adoption or foster care services.

The statute protects from adverse government action any adoptive or foster parents who guide or raise a child consistent with these beliefs.  It protects any person who refuses provide counseling or fertility services or treatment because of these beliefs (except for emergency medical treatment).

The statute goes on to protect anyone who refuses to provide specific kinds of wedding-related services because of these beliefs, including photography, wedding planning, printing, floral arrangements, dress making, hall or limousine rental or jewelry sales and services.  It also protects any person who imposes sex-specific policies based on these beliefs on students or employees or regarding access to rest rooms, locker rooms and showers.

The statute goes on to protect state employees who speak out on these issues in their private capacity or in the workplace to the extent other political, moral or religious beliefs can be expressed. It allows county clerks to recuse themselves from issuing marriage licences consistent with these beliefs, and allows judges and others to refuse to perform same-sex marriages.

According to CBS News, Republican Gov. Phil Bryant so far refuses to say whether or not he will sign the bill into law.

Court Strikes Down Mississippi's Ban On Adoption By Same-Sex Couples

In Campaign for Southern Equality v. Mississippi Department of Human Services, (SD MS, March 31, 2016), a Mississippi federal district court issued a preliminary injunction barring Mississippi from enforcing its statutory ban on adoption by same-sex couples. After devoting much of the opinion to issues of standing and 11th Amendment immunity, the court held that the Supreme Court's Obergefell decision requires striking down of the Mississippi adoption ban:

... [T]he majority opinion [in Obergefell] foreclosed litigation over laws interfering with the right to marry and “rights and responsibilities intertwined with marriage.”... It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits—expressly including the right to adopt—would then conclude that married gay couples can be denied that very same benefit.

MS News Now reporting on the decision notes that Mississippi was the last state in the country to have a statutory ban on same-sex adoption.

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."