Israel's High Court Upholds Chief Rabbinate's Monopoly On Kosher Certification

In Israel on Monday, a 3-judge panel of the High Court of Justice in a 2-1 ruling upheld the official Chief Rabbinate's monopoly on kosher certification.  As reported by the Times of Israel, at issue was the ability of restaurants to use a alternative private kosher supervision service which issues certificates that do not use the term "kosher" in attesting to compliance with Jewish religious dietary requirements. The restaurants involved only displayed the Private Supervision certificate on their websites.  However, the High Court majority held:

a business is prohibited from presenting its kashrut status in writing, whether by using the word kosher or not, unless it was given a kosher certificate by the body authorized by law to do so.

The majority however said that the Chief Rabbinate would have to make reforms in its certification process within two years to eliminate the requirement that restaurants pay the salaries of inspectors who certify them.  The restaurants say they will seek review of the ruling by an expanded bench of the High Court.

Court Issues Preliminary Injunction Against College's Speech Permit Policy

In Grace Christian Life v. Woodson, (ED NC, June 4, 2016), a North Carolina federal district court issued a preliminary injunction barring North Carolina State University from enforcing its non-commercial speech permit policy that requires students to obtain prior written permission before distributing leaflets or soliciting passersby on campus. The suit was brought by a Christian student organization that proselytizes on campus. (See prior posting.) According to a press release by ADF, the court issued the preliminary injunction two days after a hearing in the case.  The court adopted plaintiff's allegations as its findings of fact. The preliminary injunction allows the University to still ban disruption of University activities, obstruction of buildings or sidewalks, or interference with educational activities or ceremonies.

In UK, Proposed Counter Extremism Bill Will Include Provisions Aimed At Unregistered Orthodox Jewish High Schools

The Independent reported Saturday that a Counter Extremism Bill being drafted by Britain's Home Office will contain new provisions aimed at unregistered Orthodox Jewish high schools which educate boys only in religious subjects.  Classes are taught in Yiddish. Former pupils have alleged that physical beatings are common and teachers often encourage students to enter arranged marriages at age 18.  Some students leave school unable to speak English. The schools serve the ultra-Orthodox Jewish community of north London.  Apparently Hackney Council officials have been aware of the schools for several years, but cooperated with religious schools to destroy records of students disappearing from the rolls of registered schools.  Britain's Department of Education says it is intensifying investigations into unregistered schools. The new focus by the government apparently stemmed from a report published in April by The Independent. [Thanks to Law & Religion UK for the lead.]

EEOC Sues Claiming Inadequate Accommodation of Refusal To Take Flu Shot

The EEOC announced last week that it has filed suit in a Massachusetts federal district court against Baystate Medical Center in Springfield, Massachusetts for failing to accommodate an employee who, for religious reasons, refused to get a flu vaccination.  The medical center allows employees with religious objections to instead wear a mask at work.  Stephanie Clarke, a recruiter in Baystate's human resources department, initially wore the mask, but job applicants could not understand her when they spoke to her. So she removed her mask and requested Baystate to find a different accommodation. Instead Baystate put her on indefinite, unpaid leave, and when she complained it terminated her employment. EEOC argues that an accommodation under Title VII must both respect the employee's religious beliefs and permit her to do her job effectively. Here she was terminated because she complained about religious discrimination. BNA Daily Labor Report has more on the suit.

County Settles Lawsuit By Removing Cross Decals From Sheriff's Cars

Austin American-Statesman reports that last week Brewster County, Texas commissioners approved a settlement in Freedom From Religion Foundation, Inc. v. Brewster County, Texas, which had been filed in federal district court in March.  In the case, FFRF sued challenging 8-inch tall Latin cross decals placed by the sheriff on six county law enforcement vehicles. (See prior posting.)  Three weeks after the suit was filed, the county Commissioners Court approved a ban on all political, religious, commercial and personal symbols and messages on county vehicles. In the proposed consent decree (full text) embodying the settlement, the court will enjoin the county from displaying Latin cross decals on Sheriff's Office vehicles, order defendants to pay plaintiffs' attorneys' fees and cost totaling slightly over $22,000, and award nominal damages of $1 each to two individual plaintiffs in the lawsuit.

Another Challenge Filed To Mississippi's Freedom of Conscience Law

As reported by AP, on Friday a third lawsuit was filed challenging Mississippi's House Bill 1523, the Protecting Freedom of Conscience From Government Discrimination Act. Mississippi Center for Justice announced the filing of the federal lawsuit which was brought by a group of clergy, community leaders, activists and a Hattiesburg church.  The complaint (full text) contends:

With the passage and approval of that bill, the Legislature and the Governor breached the separation of church and state, and specifically endorsed certain narrow religious beliefs that condemn same-sex couples who get married, condemn unmarried people who have sexual relations, and condemn transgender people.

Last month the ACLU filed a lawsuit challenging the new law (see prior posting) and plaintiffs in a suit that helped bring down the barriers to same-sex marriage in Mississippi have moved to challenge the law by reopening their lawsuit.

Ramadan Begins Today; Obama Issues Greetings

Al Arabiya reports that Saudi Arabia's Supreme Court (after confirming seeing the moon crescent) has declared that Ramadan begins today.  UAE, Jordan and the Palestinian Authority have issued similar declarations. In the United States and a number of other countries, Muslims generally rely on astronomical calculations-- rather than actual sighting of the new moon-- for the beginning of Ramadan. (Background.) Yesterday President Obama issued a statement (full text) on behalf of himself and Michelle extending best wishes to Muslims in the United States and around the world. His statement said in part:

As Muslim Americans celebrate the holy month, I am reminded that we are one American family.  I stand firmly with Muslim American communities in rejection of the voices that seek to divide us or limit our religious freedoms or civil rights. 

Pope Issues Apostolic Letter On Procedure For Removal of Bishops In Abuse Cases

In the Vatican on Saturday, Pope Francis issued motu proprio (i.e. on his own initiative) an Apostolic Letter (full text in Italian) establishing a procedure for the removal of Bishops (and those of equivalent Canon Law rank) who through their negligence have caused grave harm to others. The Letter titled Come una madre amorevole ("As a Loving Mother") clarifies that negligence in cases of sexual abuse against children or vulnerable adults are among the "grave causes" that justify removal.  Vatican Radio reports:

Father Lombardi [Director of the Holy See Press Office] drew attention especially to two points in the Apostolic Letter. First, the “lack of diligence” necessary for removal from office can exist even be “without grave moral fault” on the part of the Bishop.

Second, in cases concerning the abuse of minors “it is sufficient that the lack of diligence be ‘grave,’ while in other cases it is required that the lack of diligence be ‘very grave’.” This effectively lowers the standard necessary for a Bishop to be removed from office when there is negligence with regard to cases of sexual abuse.

In cases involving important decisions regarding Bishops, including those foreseen in the Apostolic Letter, the specific approval of the Holy Father is necessary. Father Lombardi noted that this is not a new disposition.

However, the Apostolic Letter does introduce a new “dedicated College of jurists” (It.: “apposito Collegio di giuristi"), which will assist the Holy Father before he makes a definitive decision. Father Lombardi said the College would be expected to be composed of Cardinals and Bishops.

[Thanks to Tom Rutledge for the lead.]

UPDATE: Victim advocates are skeptical of the new policy. (Statement by SNAP.)

Recent Articles of Interest

From SSRN:

• Craig B. Mousin, You Were Told to Love the Immigrant, But What if the Story Never Happened? Hospitality and United States Immigration Law, (Vincentian Heritage Journal: Vol. 33: Iss. 1, Article 8).
• Richard Moon, Neutrality and Prayers: Mouvement Laique v Saguenay, (Oxford Journal of Law and Religion, 2015, 4, 512–519).
• Stephen M. Bainbridge, The Parable of the Talents, (UCLA School of Law, Law-Econ Research Paper No. 16-10 (2016)).
• Douglas Laycock & Steven T. Collis, General Applicable Law & the Free Exercise of Religion, (Nebraska Law Review, Vol. 95, 2016).
• Edward Stein, Plural Marriage, Group Marriage and Immutability in Obergefell v. Hodges and Beyond, (University of Missouri-Kansas City Law Review, Vol. 84, No. 3, 2016).
• Mitchell L. Engler & Edward Stein, Not Too Separate or Unequal: Marriage Penalty Relief after Obergefell, (Washington Law Review, Vol. 91, 2016).

From elsewhere:

• Symposium on "Substantial Burden" Under RFRA, University of Illinois Law Review Online (2016).

Recent Prisoner Free Exercise Cases

In Longoria v. Kansas Department of Corrections, 2016 Kan. App. Unpub. LEXIS 414 (KA App., May 27, 2016), a Kansas appellate court dismissed an inmate's complaint that among items taken by a correctional officer from his cell were 5 pages he had torn out from the Bible.

In Isby-Israel v. Lemmon, 2016 U.S. Dist. LEXIS 71092 (SD IN, June 1, 2016), an Indiana federal district court dismissed a Hebrew Israelite inmate's complaint regarding the form that was required to be signed in order to obtain kosher meals.

In Skates v. Shusda, 2016 U.S. Dist. LEXIS 71446 (ND NY, May 31, 2106), a New York federal magistrate judge recommended that a Nation of Islam inmate be permitted to move ahead with his complaint that he did not received a Sahoor bag meal on one occasion that he needed to consume before down in order to observe the NOI Holy Day of Atonement fast.

In Jackson v. Russell, 2016 U.S. Dist. LEXIS 71842 (D DE, June 2, 2016), a Delaware federal district court dismissed an inmate's claim that he was relieved of his duties as chapel photographer and not chosen as Nehemiah Chapel Clerk because he is a Mormon.

In Doering v. Reed, 2016 U.S. Dist. LEXIS 72638 (WD AR, June 3, 2016), an Arkansas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 72639, April 29, 2016) and dismissed an inmate's complaint that a correctional officer asked to see his religious accommodation form that allowed him to wear a beard, and when shown it threw it to the floor and said he hoped plaintiff "got mange."

In Shakur v. Thomas, 2016 U.S. Dist. LEXIS 72707 (ND NY, June 2, 2016), a New York federal magistrate judge recommended that a Muslim inmate be allowed to move ahead with his complaint that he was denied an Eid ul-Adha festival meal, was denied halal meals and sahur bags for 6 days during Ramadan when there was a prison shutdown, was denied participation in congregational prayer and a halal meal during the Muslim holiday of Shawwal, and was subjected to retaliation. However he recommended dismissal of various other claims, including and equal protection claim.

In Kindred v. King, 2016 U.S. Dist. LEXIS 72851 (ED CA, June 2, 2016), a California federal magistrate judge recommended dismissing with leave to amend a suit by a Native American civil detainee who alleged a series of infringements of his Native American religious practices.

Challenge To Holiday Law Moves Ahead In German Courts

As reported by The Local, in Germany last Thursday the High Court in North Rhine-Westphalia upheld a 100 Euro fine that had been imposed on Martin Budich, the organizer of Religious Freedom in the Ruhr.  Budich was fined for breaking the state's so-called "holiday law" which, among other things, prohibits showing films that are not approved by the state on holidays.  Every year since 2013, on Good Friday Budich has shown the classic British comedy which satirizes the life of Jesus, "The Life of Brian".  His goal has been to test the constitutionality of the holiday law. Now with the High Court's decision, Budich is able to appeal and mount that challenge in Germany's Federal Constitutional Court.  Friendly Atheist has more on the decision. [Thanks to Scott Mange for the lead.]

Sewer Connection To Amish Must Be Made In Least Religiously Intrusive Means

In Yoder v. Sugar Grove Area Sewer Authority, (PA Commw., June 3, 2016), a Pennsylvania appellate court remanded to the trial court a suit by an Old Order Amish family seeking to avoid connecting their property to the public sewer system.  In an earlier decision, the trial court had concluded that the interest in protecting public health through a sewer connection outweighed the Amish family's free exercise rights, but required that the connection to the sewer system be made in accordance with the family's religious convictions. The current suit stems from disagreements on how to carry out this prior order and the trial court's improper belated modification of it. According to the court, the Amish family has religious objections to having electricity power anything associated with the use of their outhouse, and risk excommunication if they use a privy tainted with the use of electric power. In remanding and requiring the trial court to reconsider the method by which a sewer connection would be made to the family's property, the court said in part:

The trial court’s analysis regarding the threat to public safety pertained to the lack of any sewer connection at all, not a connection by nonelectric means, or, failing that, electricity generated by natural, non-electricity provider means. Importantly, the trial court also did not address Owners’ alleged clear right to the least intrusive means of a mandatory connection. 

Federal Court Dismisses Challenge To State Custody Order

In Goffstein v. Sieve, (SD OH, June 2, 2016), an Ohio federal district court dismissed a suit claiming that an Ohio domestic relations court judge in removing custody of four children from their Orthodox Jewish mother had infringed the mother's right to control the education of her children and the children's right to practice their religion. The court gave custody to the father who was no longer practicing Orthodox Judaism and who sent the children to public school instead of to yeshivas. The court held that its review of the claims is precluded by the Rooker-Feldman doctrine which bars lower federal courts from conducting appellate review of final state-court judgments.

Indian Court Convicts 24 In Killing of Muslims In 2002 Gujarat Riots

Al Jazeera reports that a court in India yesterday convicted 24 people in the 2002 killings of 69 Muslims during religious riots in Gujarat state.  36 others were acquitted for lack of evidence.  The killings took place when a Hindu mob stormed a cluster of buildings in Ajmedabad where Muslims were hiding.  The mob burned and hacked the victims to death.

Muslim Prof Says Administrators Discriminated In Favor of Nigerian Christians

The New Orleans Times-Picayne reports that on Tuesday a Muslim biology professor at Southern University in New Orleans sued in federal district court claiming that administrators discriminated against him and other Muslim professors in order to get rid of them and hire Nigerian Christians, favored by the school's Chancellor Victor Ukpolo. Plaintiff Ibrahim Ekaidi contends that administrators encouraged non-Nigerian faculty to leave by denying them committee assignments, pay raises promotion and tenure.

Third Canadian Special Prosecutor Can Bring Polygamy Charges Against FLDS Leader

In Blackmore v. British Columbia (Attorney General), (BC CA, June 1, 2016), the British Columbia Court of Appeal upheld the appointment of the third special prosecutor since 2007 to bring polygamy charges against FLDS Church leader Winston Blackmore who lives in Bountiful, British Columbia.  In 2011, a British Columbia court upheld most applications of Canada's anti-polygamy law. (See prior posting.) In yesterday's decision, the appeals court rejected the argument that the first special prosecutor's decision not to approve charges was final. The Province reports on the decision. [Thanks to Religion News for the lead.]

3rd Circuit: Challenge To Abortion Clinic Buffer Zones May Move Ahead

In Bruni v. City of Pittsburgh, (3d Cir., June 1, 2016), the U.S. 3rd Circuit Court of Appeals reversed the dismissal of a challenge to Pittsburgh's law creating a 15-foot buffer zone around abortion clinics in which demonstrators and pickets are barred.  The majority held:

the First Amendment claims are sufficient to go forward at this stage of the litigation. The speech at issue is core political speech entitled to the maximum protection afforded by the First Amendment, and the City cannot burden it without first trying, or at least demonstrating that it has seriously considered, substantially less restrictive alternatives that would achieve the City’s legitimate, substantial, and content-neutral interests.

Judge Fuentes concurred in the judgment, but filed an opinion disagreeing with the majority's reasoning, arguing that requiring governments that place significant burdens on speech to prove that less restrictive means either failed or were seriously considered and rejected distorts the "narrow-tailoring" doctrine by eliminating the government's latitude to adopt regulations that are not the least intrusive means of serving the government's interest. Pittsburgh Post-Gazette reports on the decision.

4th Circuit Puts Transgender Case On Fast Track to Supreme Court

As previously reported, in April, in a 2-1 decision, 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 filed a motion for a rehearing en banc, but this week in G.G. v. Gloucester County School Board, (4th Cir., May 31, 2016), the court issued an order denying the rehearing petition.  However Judge Niemeyer, who had dissented in the April decision, filed a dissent from the denial of a rehearing, but said:

While I could call for a poll of the court in an effort to require counsel to reargue their positions before an en banc court, the momentous nature of the issue deserves an open road to the Supreme Court to seek the Court’s controlling construction of Title IX for national application. And the facts of this case, in particular, are especially “clean,” such as to enable the Court to address the issue without the distraction of subservient issues.

Lyle Denniston at SCOTUSblog reports on developments.

EU Court Adviser Says Hijab Ban By Private Business Is Permissible

The Advocate General of the Court of Justice of the European Union has recommended to the Court that it interpret the EU's employment equality directive (Directive 2000/78/EC) as permitting businesses to ban Muslim employees from wearing a headscarf as part of an employer's broader policy seeking to achieve religious and ideological neutrality.  The case arose from a request from the Belgian Court of Cassation for clarification of the Directive's provisions. The EU Advocate's full opinion in Achbita v. G4S Secure Solutions NV (May 31, 2016) observes:

Ultimately, the legal issues surrounding the Islamic headscarf are symbolic of the more fundamental question of how much difference and diversity an open and pluralistic European society must tolerate within its borders and, conversely, how much assimilation it is permitted to require from certain minorities.

The opinion concludes in part:

The fact that a female employee of Muslim faith is prohibited from wearing an Islamic headscarf at work does not constitute direct discrimination based on religion ... if that ban is founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. That ban may, however, constitute indirect discrimination based on religion....

Such discrimination may be justified in order to enforce a policy of religious and ideological neutrality pursued by the employer in the company concerned, in so far as the principle of proportionality is observed in that regard. In that connection, the following factors in particular must be taken into account: – the size and conspicuousness of the religious symbol, – the nature of the employee’s activity, – the context in which she has to perform that activity, and – the national identity of the Member State concerned.

The Court of Justice issued a press release on the Advocate's opinion, and Reuters reports further on it.

Christian Camp Says Nearby Dairy Farm Approval Violates RLUIPA

A lawsuit was filed last month in an Indiana state trial court by a Christian youth camp which objects to a zoning board's approval of a large dairy farm nearby. The complaint (full text) in House of Prayer Ministries, Inc. v. Rush County Board of Zoning Appeals, (filed 5/16/2016), alleges that the 1400 cows and three large waste lagoons on the farm will expose campers to noxious odors and harmful air emissions that will "interfere with Harvest Christian Camp's thirty-year mission and ability to provide a safe, healthy, and Christian rural setting for thousands of children and teens to be educated, enriched spiritually, and enhanced by the outdoors...."  This, the complaint alleges, amounts to a substantial burden that violates the camp's rights under RLUIPA, the Indiana Religious Freedom Restoration Act, the First and 14th Amendments and the state constitution's equal privileges and immunities clause. RLUIPA Defense blog reports on the case.