Ryan Appoints 2 USCIRF Members

In a press release yesterday, the U.S. Commission on International Religious Freedom announced that on May 13, House Speaker Paul Ryan reappointed Villanova University faculty member Dr. Daniel Mark for a second 2-year term on the Commission.  Ryan also appointed Kristina Arriaga de Bucholz, executive director of the Becket Fund for Religious Liberty, to a 2-year term replacing Dr. Robert George whose term has expired. Appointments to the 9-member Commission are made by the President and by Congressional leaders of each party.

Colombia Court Ends Municipal Council Invocations

Fox News Latino reports that on May 10 a trial court judge in Cartagena, Colombia ordered a stop to invocations at the beginning of Municipal Council meetings and events of other public entities. Yesterday 1000 people demonstrated against the decision in front of city hall, carrying signs with messages such as:   "Cartagena is Christ's" and "God demands that we pray without ceasing."

Nevada Trial Court Rejects State Constitutional Challenge To School Choice Law

In Duncan v. Sate of Nevada, (NV Dist. Ct., May 18, 2016), a Nevada state trial court judge dismissed state constitutional challenges to Nevada's new Educational Savings Account program. The program, more extensive than any other in the country, allows parents of any child who has attended a public or charter school for at least 100 days to receive into an educational savings account a portion of the state's funding for use at an eligible alternative private (including religious) school. Finding that plaintiffs had standing only to bring facial challenges, the court held that the program does not violate Nevada Constitution Art. XI, Sec. 2 that requires the legislature to provide a uniform public school system nor Art. XI, Sec. 10 that prohibits use of public funds for sectarian purposes.

In a wide-ranging 45-page opinion, the court held that the state constitution does not limit the legislature to providing education only through a uniform public school system. It may also use other suitable means.  It also held that the prohibition on using public funds for sectarian purposes only imposes restrictions co-extensive with the federal Establishment Clause.

In January, another trial court judge enjoined implementation of the program. (See prior posting.) Reacting to yesterday's court's decision, Nevada Attorney General Adam Paul Laxalt said  in part (full text of statement): "The decision today clears the way for the Nevada Supreme Court to meaningfully address the remaining uncertainty caused by the injunction in the other case challenging Nevada’s ESA program. We are one giant step closer to helping thousands of Nevada families choose the best educational option for their children." AP reports on the decision and the ACLU's reaction to it.

6th Circuit Remands RLUIPA "Equal Terms" Zoning Challenge

In Tree of Life Christian Schools v. City of Upper Arlington, (6th Cir., May 18, 2016), the U.S. 6th Circuit Court of Appeals in a 2-1 decision reversed and remanded in a RLUIPA land use case, finding that material facts remain as to the application of RLUIPA's "equal terms" provision.  At issue is an Ohio city's refusal to rezone a large office building for use as a religious school. The office building is in an area zoned as an "Office and Research District" -- an area designed for uses that would maximize the city's tax revenues. The majority said in part:

The religious land use that TOL Christian Schools proposes is, we assume without deciding, deleterious to the purpose of the regulation at issue (which we assume to be increasing income-tax revenue). But the nonreligious uses that the government concedes it would allow seem to be similarly situated to the regulation..... [T]he government suggested at oral argument that it would prefer that [the property] be used for an ambulatory care center or outpatient surgery center. But we cannot assume as a fact... that an ambulatory care center (or an outpatient surgery center, or a data and call center, or office space for a not-for-profit organization, or a daycare) would employ higher-income workers than TOL Christian Schools would.... 

Proposed RFRA Amendment Would Bar Its Use To Discriminate or Injure 3rd Parties

Yesterday two members of the U.S. House of Representatives, Joe Kennedy III and Bobby Scott, announced the introduction of the Do No Harm Act (full text). The bill would amend the Religious Freedom Restoration Act to preclude its use in ways that result in discrimination or harm to third parties or impose one person's religious views on another. More specifically, the bill would preclude using RFRA to create religious exemptions from various civil rights laws or labor laws, or accommodations which limit access to health care, or receipt of goods or services from the government or from government contractors or grantees.

Australian Agency Refuses to Approve Trademark For "McKosher"

Australia's ABC News reported last week that the Australian Trademark Office has refused to approve an application to trademark the name "McKosher" because of the danger of contextual confusion.  The application was submitted by New South Wales resident Mark Glaser who wants to open a Scottish-Jewish restaurant in Maclean, an Australian city with Scottish ties.  However the international McDonald's chain objected because it is in negotiations with Rabbinical leaders in Jerusalem to use the McKosher title as the name for kosher certified McDonald's restaurants in Israel.  Currently the Israeli rabbinate refuses to certify kosher branches of McDonald's for fear that the public will confuse the branches which are kosher with those that are not.

"Philly Jesus" Says Trespassing Charge Reflects Religious Discrimination

Recovered drug addict Michael Grant who is well known as "Philly Jesus" in Center City Philadelphia is defending against defiant trespassing and disorderly conduct charges by claiming religious discrimination.  NJ.com reported on Monday's Municipal Court hearing. Grant was arrested for blocking a pathway inside a local Apple store with the cross he was carrying. At the time he was charging his phone. His attorney says he was evicted because of his religious beliefs. Referring to his white iPhone, Grant says: "I'm on the family plan. Father, son and Holy Ghost."

Suit In France Says Social Media Failed To Remove Anti-Semitic, Racist, Homophobic and Terrorist Posts

According to the Economic Times, on Sunday in Paris three French groups filed a lawsuit against Twitter, YouTube and Facebook charging that they failed to adequately comply with a 2004 French law that requires deletion within a reasonable time of posts that are racist, anti-Semitic, homophobic or which defend terrorism.  Plaintiffs Jewish Students of France (UEJF), SOS-Racisme,  and SOC Homophobie say that between March 31 and May 10 they discovered 586 such posts, but that the number removed within a reasonable time was 4% by Twitter, 7% by YouTube and 34% by Facebook.

Same-Sex Couple's Newest Battle Is With Catholic Cemetery

NewNowNext and Advocate reported yesterday that Greg Bourke and Michael De Leon, a same-sex couple who were among the plaintiffs in one of the same-sex marriage cases decided by the Supreme Court along with Obergefell v. Hodges, are now at odds with a Catholic cemetery in Louisville, Kentucky. The couple, who have been together for 34 years and members of Our Lady of Lourdes Parish for 28 years purchased a joint burial plot in Saint Michael Cemetery. However the cemetery has refused to approve the headstone design which the couple submitted.  It features their names, interlocking wedding bands, a cross and a depiction of the U.S. Supreme Court building.  A letter from the cemetery informed the couple that it could not approve depictions of wedding rings and the Supreme Court on the headstone because this conflicts with teachings of the Church. In 2015, National Catholic Reporter named Bourke and De Leon "persons of the year" for "their historic roles as plaintiffs in Obergefell v. Hodges and for their faithful public witness as gay Catholics."

Suit Against Jeweler Says Employee Was Fired For Saying That Jews Killed Jesus

The New York Daily News last week reported on a lawsuit filed in federal district court in Manhattan by a former marketing executive at the upscale jeweler, Tiffany & Co.  Kristin Rightnour, a devout Catholic, says she was reprimanded and placed on probation for telling a Jewish colleague, in a conversation about Easter, that Catholics believe the Jewish people killed Jesus. Then, she alleges, she was skipped over for promotion and eventually fired after she filed a complaint with the EEOC.

Court Places Control of Historic Touro Synagogue In Hands of Newport, Rhode Island Congregation

Yesterday, in a 106 page opinion in Congregation Jeshuat Israel v. Congregation Shearith Israel, (D RI, May 16, 2016), a Rhode Island federal district court held that Newport, Rhode Island's Touro Synagogue is owned in charitable trust for the purpose of preserving a permanent place of Jewish public worship and that the trustee of the synagogue should be Newport's Congregation Jeshuat Israel.  In appointing the local congregation as trustee, the court removed New York's Shearith Israel congregation from that role finding that it had breached its duties.  The court also held that a  pair of historic silver Torah ornaments worth some $7 million previously owned by Newport's early Jewish residents are now owned by the local congregation which is free to sell them to raise funds to keep the synagogue open. New York Times reports on the decision. (See prior related posting.)

Religious Organizations Challenge NY Regulator's Required Abortion Coverage

In a May 10 press release, the Roman Catholic Diocese of Albany, New York announced that it, along with the Episcopal Diocese and several other religious groups has filed suit in New York state court challenging the constitutionality of Model Language adopted by the New York State Department of Financial Services that requires individual and small group employers offering health insurance to their employees to include in renewal contracts coverage for therapeutic abortions, and for non-therapeutic abortions in the case of rape, incest or fetal malformation. The complaint (full text) in Roman Catholic Diocese of Albany v. Vullo, (NY Sup. Ct. Albany Cty., filed 5/4/2016), contends that the abortion mandate violates religious freedom and liberty of conscience in violation of various provisions of the state and federal constitutions as well as of New York law. [Thanks to Jeff Pasek for the lead.]

Supreme Court "Punts" On Contraceptive Mandate Case

The U.S. Supreme Court today took the unusual step of sending the controversial dispute over the Obama administration's contraceptive mandate compromise for religious non-profits back to the relevant Courts of Appeals without giving those courts any guidance on the merits.  In a per curiam opinion in Zubik v. Burwell  (Sup. Ct., May 16, 2016), the Court said in part:

In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D. C. Circuits. Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.” ....

The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.  Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans “obtain, without cost, the full range of FDA approved contraceptives.” ... Through this litigation, petitioners have made the Government aware of their view that they meet “the requirements for exemption from the contraceptive coverage requirement on religious grounds.” ...  Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice....

Justice Sotomayor, joined by Justice Ginsburg, filed a concurring opinion emphasizing that the Court has decided nothing about the merits of the case, warning that in the past some court had incorrectly read similar disclaimers by the Court as signaling something about the merits.

In separate orders, the Court applied its decision to six additional cases posing the same legal issue in which certiorari petitions were pending.  The Court's actions no doubt reflect a 4-4 split on the merits.  In its per curiam opinion today, the Court-- eternally hopeful--added:

We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.

New York Times reports on the decision.

Supreme Court Denies Review In Two Religious Rights Cases

The U.S. Supreme Court today denied certiorari in Wayne County v. Bible Believers, (Docket No. 15-1090, cert. denied 5/16/2016) (Order List).  In the case, the U.S. 6th Circuit Court of Appeals, sitting en banc, upheld the right of Bible Believers, a Christian group, to engage in provocative and offensive proselytizing of Muslims at the annual Dearborn, Michigan Arab International Festival. (See prior posting.)

The Supreme Court also denied certiorari in Rogers v. Roman Catholic Archbishop, (Docket No. 15-1105, cert. denied 5/16/2016) (Order List).  In the case, the Appeals Court of Massachusetts upheld an injunction against former parishioners of Frances X. Cabrini Church in Scituate who have held a 24-hour vigil in the church for over ten years in order to protest plans to close it. (See prior posting.)

Obama Appoints 2 USCIRF Commissioners

In a press release issued Friday, the U,S. Commission on International Religious Freedom announced appointments by President Obama to the Commission,  On May 12 the President announced his intention to reappoint Rev. Thomas J. Reese, S.J.and to appoint Dr. John Ruskay to two year terms.  Reese is a senior analyst for the National Catholic Reporter.  Ruskay is Executive Vice President-Emeritus of the United Jewish Appeal (UJA) Federation of Jewish Philanthropies of New York. Ruskay replaces Eric Schwartz whose term is expiring,

Man Pleads Guilty To Forcibly Removing Airline Passenger's Hijab

According to a Justice Department press release, on Friday a 37-year old North Carolina man pleaded guilty to one count of using force or the threat of force to intentionally obstruct a Muslim woman's free exercise of religion. In the plea agreement (full text) filed in New Mexico federal district court, defendant Gil Parker Payne admits that last December while on a Southwest Airlines flight from Chicago to Albuquerque he forcibly pulled the hijab off the head of a Muslim woman on the flight, telling her "Take it off! This is America!"  In the plea agreement, the government recommends a sentence of probation, with two months home detention, plus any fine or restitution set by the court.

Head of the Justice Department's Civil Rights Division, Vanita Gupta, mentioned this case among others in reviewing the government's recent hate crime prosecutions.  Her remarks came in a speech (full text) at the Muslim Advocates annual gala at which she accepted the Justice Thurgood Marshall Award.

Recent Articles of Interest

From SSRN:

• Shivaraj S. Huchhanavar, Introduction to Traditional and Modern Natural Law Theories, (May 5, 2016).
• Brett G. Scharffs, Religious Majorities and Restrictions on Religion, (Notre Dame Law Review, Forthcoming).
• Farrah Ahmed, Remedying Personal Law Systems, (International Journal of Law, Policy and the Family, Forthcoming).
• Brian Leiter, Why Tolerate Religion, Again? A Reply to Michael Mcconnell, (May 8, 2016).
• Kathleen A. McKee, Book Review: An Alternative to Business as Usual: Evangelical Christian Executives: A New Model for Business Corporations, (December 11, 2016).
• Engy Abdelkader, When Islamophobia Turns Violent: The 2016 U.S. Presidential Elections, (The Bridge Initiative, Georgetown University, 2016).
• Nasiru Wada Khalil, Perception and Reaction: The Representation of the Shari’a in Nollywood and Kanywood Films, (May 4, 2016).

From SmartCILP:

• Stephen R. Munzer, Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy, 37 University of Pennsylvania Journal of International Law 503-581 (2015).
• Symposium: Religion and the Law. Articles by Marc O. DeGirolami, Kevin C. Walsh, Benjamin Justice, Joshua A. Decker and Jonathan E. Amgott. 26 Stanford Law & Policy Review 385-553 (2015).

Paper Reviews Recent Use of Egypt's Blasphemy Law

Ahram Online today carries an interesting article on the use of Egypt's blasphemy law in recent months. Prosecutors have just begun to investigate a complaint against the satirical performance art troupe Atfal El-Shawaree (Street Children) over a video that they posted online mimicking the hosts on the state-owned religious radio station Al-Quran Al-Karim (The Holy Quran). At least one member of Parliament is proposing repeal of Article 98(f) of the criminal code that prohibits promoting "contempt of any divine religion or its adherents."

Recent Prisoner Free Exercise Cases

In Harvey v. Segura, (10th Cir., May 10, 2016), the 10th Circuit affirmed the dismissal of an inmate's complaint that authorities confiscated his  kufi.

In Vazquez v. Maccone, 2016 U.S. Dist. LEXIS 60372 (ED NY, May 6, 2016), a New York federal district court held that plaintiff's inability to kneel on the floor to silently pray while temporarily held in the squad room for arrest processing did impose a substantial burden on his religious exercise.

In Jones v. Arizona Department of Corrections, 2016 U.S. Dist. LEXIS 60454 (D Z, May 5, 2016), an Arizona federal district court permitted a Muslim inmate to proceed with his complaint that he was not permitted to grow his beard longer than one-quarter inch, and that the feeding time for Ramadan began too late.

In Phillips v. Cobb, 2016 U.S. Dist. LEXIS 60716 (WD LA, May 6, 2016), a Louisiana federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 60717, April 4, 2016) and dismissed a complaint by a Muslim inmate that he was not allowed to attend congregational jumu'ah services, receive a prayer rug or kufi or receive adequate meals during Ramadan.

In Desmond v. Phelps, 2016 U.S. Dist. LEXIS 61406 (D DE, May 9, 2016), a Delaware federal district court refused to dismiss, but ordered an amended complaint with a more definite statement of plaintiffs' claims that authorities refused to allow Catholic inmates to worship, assemble, and celebrate on all religious holidays, and engaged in other sorts of retaliation.

In Jones v. Western Tidewater Regional Jail, 2016 U.S. Dist. LEXIS 61425 (ED VA, May 6, 2016), a Virginia federal district court dismissed a complaint by a Rastafarian inmate that the food service provider and kitchen supervisor refused to serve him his religiously required vegan diet.

In Tillman v. Allen, 2016 U.S. Dist. LEXIS 62260 (ED VA, May 9, 2016), a Virginia federal district court dismissed on various grounds a complaint by a Wiccan inmate that he could not attend Wiccan services, possess Wiccan objects or partake in the Common Fare diet.

EU Criticizes New State Laws In U.S. Which Restrict LGBT Rights

On Thursday the European External Action Service (the European Union's diplomatic service) issued a statement (full text) criticizing laws recently enacted in several U.S. states dealing with religious objections to same-sex relationships and with transgender restroom concerns.  The EU's statement reads in part:

The recently adopted laws including in the states of Mississippi, North Carolina and Tennessee, which discriminate against lesbian, gay, bisexual, transgender and intersex persons in the United States contravene the International Covenant on Civil and Political Rights, to which the US is a State party, and which states that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection.

As a consequence, cultural, traditional or religious values cannot be invoked to justify any form of discrimination, including discrimination against LGBTI persons. These laws should be reconsidered as soon as possible.