Tuesday, April 19, 2016

4th Circuit: Title IX Requires School Rest Room Access On Basis of Gender Identity

In a 2-1 decision today, the U.S. 4th Circuit Court of Appeals held that a Virginia school board's policy barring a transgender boy (who had not undergone sex-reassignment surgery) from using the boy's rest rooms at his school violates Title IX's ban on discrimination on the basis of sex.  The school board adopted the policy in order to overturn accommodations made by a high school for the student, and which had been implemented for 7 weeks without incident.  The school board policy called instead for alternative private facilities for transgender students. Citizens speaking in favor of the school board policy at a meeting considering it expressed fears about privacy, and even expressed concern that "non-transgender boys would come to school wearing dresses in order to gain access to the girls’ restrooms."

In G.C. v. Gloucester County School Board, (4th Cir., April 19, 2016), the majority opinion written by Judge Floyd held that the U.S. Department of Education's interpretation of its own regulations is entitled to deference. A DOE interpretation concluded that when schools separate students on the basis of gender, generally schools must treat transgender students consistent with their gender identity.  A concurring opinion by Judge Davis suggested that the appeals court should have entered a preliminary injunction against the school board instead of remanding the case to the trial court.  Judge Niemeyer dissenting argued in part:
This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect. More particularly, it also misconstrues the clear language of Title IX and its regulations. And finally, it reaches an unworkable and illogical result.
AP reporting on the decision quotes North Carolina Law Professor Maxine Eichner who says that the decision also impacts North Carolina's recently enacted law regulating the use of public school rest rooms by transgender individuals.  North Carolina is in the 4th Circuit.

U.S. Commission on Civil Rights Condemns Recent State Religious Liberty Bills

Yesterday the U.S. Commission on Civil Rights issued a statement (full text) condemning recent state enactments and proposals protecting religious liberty at the expense of equal treatment for the LGBT community.  The statement reads in part:
Religious freedom is an important foundation of our nation. However, in the past, ‘religious liberty’ has been used to block racial integration and anti-discrimination laws. Those past efforts failed and this new attempt to revive an old evasive tactic should be rejected as well. The North Carolina and Mississippi laws, and similar legislation proposed in other states, perverts the meaning of religious liberty and perpetuates homophobia, transphobia, marginalizes the transgender and gay community and has no place in our society.
The Commission said that it will shortly release a new report on the issue of religious liberty.

Two members of the 8- member Commission (Gail Heriot and Peter Kirsanow) issued a separate statement (full text) in their individual capacities asking their Commission colleagues "to please take a deep breath."  They argued in part:
none of [the state bills] deserves to be referred to in the derisive terms used by the Commission majority. Those that deal with religious liberty issues are not merely using religion as a “guise” or “excuse” as the Commission majority alleges. All of them address real issues in reasonable ways; none is simply an attack on the LGBT community.
This separate statement was not posted on the Commission's website, but instead on the website of The New American Civil Rights Project with a link to the statement appearing in an ADF press release.

New Resource On RLUIPA Land Use Cases

The Dalton & Tomich law firm announced yesterday that it has posted on its website the first comprehensive list of RLUIPA land use cases along with basic information about the claims involved. It has also posted a bibliography of leading articles on RLUIPA's land use provisions.

British Judge Rules In Muslim Parents' Dispute Over Sons' Circumcisions

In Exeter (county Devon) in England, a family court judge has ruled that a Muslim father cannot have his 4 and 6 year old sons circumcised over the objection of the boys' mother who is now separated from the father.  As reported yesterday by The Plymouth Herald, the father, a devout Muslim living in England but who was born in Algeria, argued that circumcision would be in accordance with his religious beliefs and in the boys' best interests. The judge said that she is deferring any decision on ordering the circumcision until the boys are old enough to make mature choices on their own, and are able to appreciate the consequences and longer-term effects of their decisions.  However this does not mean that they must reach adulthood before making their decisions. The judge said in part:
First and foremost, this is a once and for all, irreversible procedure.  There is no guarantee that these boys will wish to continue to observe the Muslim faith with the devotion demonstrated by their father, although that may very well be their choice.

SSI Benefit Formula Does Not Violate Free Exercise Rights

In Herron v. Social Security Administration, 2016 U.S. Dist. LEXIS 50343 (ED VA, April 14, 2016), a Virginia federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 51224, March 10, 2016) and dismissed a free exercise and other constitutional challenges to the manner in which SSI benefits are computed.  Under Social Security rules, if an SSI recipient lives in the same household as his or her spouse, a portion of the spouse's income may be attributed to the SSI recipient in computing benefits.  Plaintiff Bridget Herron claimed that this rule requires her to live with her fiance before (or without) marriage, in violation of her religious beliefs, in order to avoid a reduction in benefits.
As to Herron's allegation that the SSA [Social Security Administration] policies interfere with the free exercise of her religious beliefs, the SSA determines benefits based on income, and the policies were not "undertaken for religious reasons." ... If Herron wishes to marry in accordance with her religious beliefs, the SSA's policies do not prevent her from doing so. Because Herron fails to allege facts sufficient to challenge the rationality of the SSA's policies, she fails to plausibly allege the elements of a violation of her constitutional rights as to her right to marry and her right to the free exercise of her religious beliefs.
The court also concluded that Herron had not exhausted her administrative remedies.

Monday, April 18, 2016

Bernie Sanders Speaks To Vatican Conference

On Friday, Democratic presidential hopeful Bernie Sanders delivered an address in the Vatican to a conference of the Pontifical Academy of Social Sciences marking the 25th anniversary of Centesimus AnnusPope John Paul II's encyclical on social and economic justice. RNS has the full text of Sanders' speech. Sanders said in part:
Pope Francis has called on the world to say: “No to a financial system that rules rather than serves” in Evangeli Gaudium. And he called upon financial executives and political leaders to pursue financial reform that is informed by ethical considerations. He stated plainly and powerfully that the role of wealth and resources in a moral economy must be that of servant, not master.
The widening gaps between the rich and poor, the desperation of the marginalized, the power of corporations over politics, is not a phenomenon of the United States alone. The excesses of the unregulated global economy have caused even more damage in the developing countries. They suffer not only from the boom-bust cycles on Wall Street, but from a world economy that puts profits over pollution, oil companies over climate safety, and arms trade over peace.... The issue of wealth and income inequality is the great economic issue of our time, the great political issue of our time, and the great moral issue of our time....
(See prior related posting.)

Suit Challenges School's Refusal To Publicize Scholarship Essay Contests By FFRF and Freethinkers Group

Last week the Freedom From Religion Foundation and the Antelope Valley Freethinkers filed suit in California federal district court against a Los Angeles county school district after the district refused to publicize scholarship essay contests sponsored by the plaintiff groups.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Antelope Valley Union High School District, (CD CA, filed 4/12/2016), contends that while the school publishes scholarship opportunities for students, including those offered by religiously-affiliated groups, it refused to publicize those of plaintiffs because the essay contest themes promote anti-religious expression and contain anti-religious undertones. The complaint alleges that plaintiffs' treatment amounts to viewpoint discrimination in violation of their free speech rights and violates the equal protection clause.  FFRF issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:
From SmartCILP:

Sunday, April 17, 2016

Recent Prisoner Free Exercise Cases

In Williams v. Wilkinson, (10th Cir., April 14, 2016), the 10th Circuit, reversing the district court, held that a Muslim inmate could move ahead with his RLUIPA and 1st Amendment challenges to the denial of his request for a kosher diet, even though a halal diet would have been available to him if he requested it.

In Banks v. United States Marshals Service, 2016 U.S. Dist. LEXIS 45931 (WD PA, April 4, 2016), a Pennsylvania federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 46624, Feb. 24, 2016) and dismissed a damage action alleging that a jail chaplain failed to procure Wiccan tools and a Wiccan bible for plaintiff, and that various defendants failed to provide a volunteer wiccan chaplain.

In Johnson v. Gonzalez, 2016 U.S. Dist. LEXIS 46688 (ED CA, April 6, 2016) a California federal magistrate judge dismissed a Muslim inmate's complaint that religious items including his Qur'an were destroyed when authorities disposed of his excess property in preparation for his move to a segregation unit.

In Dixon v. Allison, 2016 U.S. Dist. LEXIS 46775 (ED CA, April 6, 2016), a California federal magistrate judge dismissed with leave to amend a former inmate's vague claim that his religious rights were infringed when placed in lockdown.

In Locascio v. Longinetti, 2016 U.S. Dist. LEXIS 46918 (D NJ, April 7, 2016), plaintiff sued after his supervised release was revoked for promoting gang signs, namely wearing a shirt with a design that included a swastika that plaintiff claimed was a religious, not a Nazi, symbol. A New Jersey federal district court permitted plaintiff to move ahead with a suit for an injunction to prevent his religion from being used against him in future parole proceedings. It dismissed his claims for damages and overturning of his parole revocation.

In Vaughn v. Wegman, 2016 U.S. Dist. LEXIS 47354 (ED CA, April 7, 2016), a California federal magistrate judge dismissed with leave to amend a Jewish inmate's complaint that he was not allowed to continue his participation in the Jewish Kosher program and services.

In Moorish Science Temple of America, Inc. v. Thompson, 2016 Ky. App. Unpub. LEXIS 269 (KY App., April 8, 2016), a Kentucky state appeals court upheld a prison rule that inmates use their legal name on official documents.  Plaintiff, a member of the Moorish Science Temple of America, had a grievance rejected by prison authorities because he signed it including his "attribute or tribal name." He claimed refusing to allow him to use this violated his free exercise rights.

In Gordon v. Fisher, 2016 U.S. Dist. LEXIS 48305 (ND MS, April 11, 2016), a Mississippi federal district court permitted a Jewish inmate to move ahead with his complaint that his requests for Jewish religious material and food were denied.

In Vincent v. Stewart, 2016 U.S. Dist. LEXIS 48535 (WD WA, April 11, 2016), a Washington federal magistrate judge dismissed with leave to amend a complaint by a Hare Krishna inmate that his religion required his diet to include fresh milk, and the vegan or metabolic diets he was forced to choose between did not satisfy his religious and health needs.

In Talib v. Guerrero, 2016 U.S. Dist. LEXIS 49891 (CD CA, March 14, 2016), a California federal magistrate judge dismissed complaints by four plaintiffs, who were held overnight on a stolen vehicle charge that their religious head dresses and spiritual jewelry were forcibly removed.  The suit involved over a dozen other complaints about his treatment as well.

Parents' Challenge To Ban on "Rod Discipline" of Their Children Rejected

In State of Wisconsin v. Caminiti, (WI App., April 7, 2016), a Wisconsin state appellate court rejected facial constitutional challenges by parents to the statutory ban on intentionally (subject to a "reasonable discipline" defense) causing bodily harm to their children.  Alina and Matthew Caminiti were convicted of regularly using "rod discipline" on their two young children beginning when the children were 2 to 3 months old. Matthew was an "elder" in a Christian church and believed that the Biblical injunction: "He who spares his rod hates his son, but he who loves him disciplines him diligently" requires him to use a wooden spoon or wooden dowel to spank his children. The court rejected arguments that the intentional physical abuse ban unjustifiably interferes with the substantive due process rights of parents under the 14th Amendment , or with their free exercise rights under the 1st Amendment or their freedom of conscience rights under Wisconsin's constitution.

Friday, April 15, 2016

Texas Supreme Court Dismisses Attempt To Void Early Same-Sex Marriage

As reported by the Austin Statesman, the Texas Supreme Court today unanimously dismissed as moot a petition for mandamus filed by Texas Attorney General Ken Paxton seeking to invalidate a same-sex marriage performed in the state four months before the U.S. Supreme Court decided the Obergefell case creating marriage equality throughout the United States.  However in the Texas case, In re State of Texas, (April 15, 2016), Justice Willett in a concurring opinion joined by Justice Devine (full text) took the lower court to task for ignoring a procedural statute in Texas that requires Texas courts to notify the attorney general of state constitutional challenges and give the state 45 days to weigh in before the case is decided. Justice Brown in a concurring opinion joined by Justice Devine (full text) argued that the trial court procedurally should not have used the device of a temporary restraining order to allow the same-sex marriage to go forward, after which plaintiffs dismissed their lawsuit. [Thanks to How Appealing for the lead.]

Trump Noncommittal On Religious Liberty Questions

JTA and The Forward report on a question-and-answer session held yesterday by Donald Trump with two dozen Jewish reporters and Orthodox Jewish activists.  The questions focused on religious liberty and on Israel.  JTA reports:
Here’s Trump’s answer to a question on whether religious employers should have the right to discriminate on the basis of religion when it comes to hiring:
“That’s the question that’s been asked and discussed very brilliantly on many different levels over the last short period of time,” Trump said. “And I’m going to really leave that decision to you. That’s your personal decision. What would your answer be to that question?”
When asked about tax-exempt status for religious groups, Trump said, “It’s really become a very big point of discussion and a very complex point of discussion and it’s something that I’m very interested in and I’m really forming policy on it and I’m actually going to be announcing something that I actually think you’re going to be very happy with. OK?”

Tennessee Governor Vetoes Bill Making Bible The State's Official Book

Yesterday Tennessee Governor Bill Haslam vetoed House Bill 615  that would have made the Holy Bible Tennessee's official book. In his veto message (full text), Haslam cited a state attorney general's opinion finding that the bill was unconstitutional, and added:
In addition to the constitutional issues with the bill, my personal feeling is that this bill trivializes the Bible, which I believe is a sacred text.  If we believe that the Bible is the inspired word of God, then we shouldn't be recognizing it only as a book of historical and economic significance.  If we are recognizing the Bible as a sacred text, then we are violating the Constitution....
According to The Tennessean,  legislative sponsors plan to seek a veto override which, in Tennessee, only requires a majority vote in both chambers of the legislature. [Thanks to Tom Rutledge for the lead.]

ISIS Threatens Two Prominent U.S. Muslims

UPI reports that in the latest issue of Dabiq, ISIS's online English-language magazine, the Islamic terrorist organization calls for the death of two prominent Muslim U.S. political figures-- Huma Abedin (aide to Hillary Clinton) and U.S. Rep. Kieth Ellison.  The threats appear in Issue 14 of the magazine (full text) in an article titled Kill Imams of Kufur in the West (article begins at pg.8; specific threats at pg. 17).  It lists the two along with several others that the article describes as those who "directly involve themselves in politics and enforcing the laws of kufr."

Thursday, April 14, 2016

Powers of Saudi Religious Police Are Curbed

Al Jazeera reports that Saudi Arabia's cabinet yesterday voted to strip the country's religious police-- the Commission for the Promotion of Virtue and Prevention of Vice-- of their power to detain or arrest those charged with violations of Islamic religious law.  The new regulations say: "Neither the heads nor members of the Haia are to stop or arrest or chase people or ask for their IDs or follow them - that is considered the jurisdiction of the police or the drug unit." Religious police were told that they should "carry out the duties of encouraging virtue and forbidding vice by advising kindly and gently."

Chinese Court In First Ruling of Its Kind Rejects Same-Sex Marriage

A court in China yesterday ruled that same-sex marriages are not legal.  As reported by the New York Times, this is the first case of its kind adjudicated in China.  In a decision handed down a few hours after the hearing, the court upheld a decision by the civil affairs bureau in Changsha, Hunan Province, to deny Sun Wenlin and Hu Mingliang a marriage license.  The two men plan an appeal.

Suit Challenges District's Definition of Catholic Schools

Wisconsin Watchdog reports that a state court lawsuit was filed last week claiming that Wisconsin's Friess Lake School District infringed the religious freedom of 3 students when it denied them free transportation to St. Augustine School, an independent school that teaches Catholic doctrine. Under Wisconsin law, public school districts are required to provide transportation for students in religious schools who live more than a mile away from the school in their attendance zone.  If there are multiple religious schools in a district, they must create their own non-overlapping zones. Friess Lake School District authorities have ruled that St. Augustine and another Catholic school that is operated by the Archdiocese are both Catholic schools in the district and must have non-overlapping attendance zones before students are entitled to free transportation.  St. Augustine says it is separate and should be able to get transportation for students from anywhere in the Friess Lake District.  It contends that it is improper for public school authorities to determine that a school which says it is independent is instead Catholic. The Wisconsin Institute for Law & Liberty announced the filing of the lawsuit.

Court OK's Distribution of Gospel Tracts At Motorcycle Rally

In McMahon v. City of Panama City Beach, Florida, (ND FL, April 12, 2016), a Florida federal district court issued a preliminary injunction to allow plaintiff to hand out Christian Gospel tracts at the Thunder Beach Motorcycle Rally event held at Frank Brown Park in Panama City Beach. The court concluded that the city cannot rid the park of its "public forum" status by issuing a private party a permit to for exclusive use of the Festival Site in the park for an event, explaining:
If it looks like a duck, and it walks like a duck, and it quacks like a duck, then it’s probably a duck..... Thunder Beach, a large gathering of people interested in motorcycles, though organized by a private corporation, is free and open to the public and has no barriers limiting or restricting ingress and egress.... Thunder Beach looks like a public forum, and so is a public forum, and McMahon retains the rights to free speech that he would possess in any public forum. 

Wednesday, April 13, 2016

Court Says Flying Spaghetti Monster Is Not a "Religion"

In Cavanaugh v. Bartelt, (D NE, April 12, 2016), a Nebraska federal district court became one of the few to undertake a serious analysis of whether "FSMism"-- the doctrine of the Flying Spaghetti Monster whose followers are called "Pastafarians"-- qualifies as a "religion" for purposes of RLUIPA or the 1st Amendment.  In a suit by a prisoner seeking accommodation of his Pastafarian faith, the court (in a 16-page opinion) said:
The Court finds that FSMism is not a "religion" within the meaning of the relevant federal statutes and constitutional jurisprudence. It is, rather, a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education. Those are important issues, and FSMism contains a serious argument—but that does not mean that the trappings of the satire used to make that argument are entitled to protection as a "religion."
Later in the opinion, the court explained:
This case is difficult because FSMism, as a parody, is designed to look very much like a religion. Candidly, propositions from existing caselaw are not particularly well-suited for such a situation, because they developed to address more ad hoc creeds, not a comprehensive but plainly satirical doctrine. Nonetheless, it is evident to the Court that FSMism is not a belief system addressing "deep and imponderable" matters: it is, as explained above, a satirical rejoinder to a certain strain of religious argument.....
This is not a question of theology: it is a matter of basic reading comprehension. The FSM Gospel is plainly a work of satire, meant to entertain while making a pointed political statement. To read it as religious doctrine would be little different from grounding a "religious exercise" on any other work of fiction..... Of course, there are those who contend ... that the Bible or the Koran are just as fictional as those books. It is not always an easy line to draw. But there must be a line beyond which a practice is not "religious" simply because a plaintiff labels it as such. The Court concludes that FSMism is on the far side of that line.

1st Circuit Applies Obergefell To Puerto Rico

In In re Conde-Vidal, (1st Cir., April 7, 2016), the U.S. 1st Circuit Court of Appeals repudiated the holding by a federal district court in Puerto Rico (see prior posting) that the Supreme Court's Obergefell marriage equality decision does not bind Puerto Rico.  The appeals court said in part:
The district court's ruling errs in so many respects that it is hard to know where to begin....
In ruling that the ban is not unconstitutional because the applicable constitutional right does not apply in Puerto Rico, the district court both misconstrued that right and directly contradicted our mandate. And it compounded its error (and signaled a lack of confidence in its actions), by failing to enter a final judgment to enable an appeal in ordinary course.
Error of this type is not so easily insulated from review. This court may employ mandamus jurisdiction when a district court has misconstrued or otherwise failed to effectuate a mandate issued by this court....
[T]he case is remitted to be assigned randomly by the clerk to a different judge to enter judgment in favor of the Petitioners promptly....
LifeSite News reports on the opinion.