11th Circuit: Florida Prisons Must Offer Kosher Food

In United States v. Secretary, Florida Department of Corrections, (11th Cir., July 14, 2016), the US 11th Circuit Court of Appeals held that under the Religious Land Use and Institutionalized Persons Act, Florida must provide kosher meals for inmates with a sincere religious basis for demanding such meals. The court wrote in part:

The Secretary argues that denying a kosher diet statewide is the least restrictive means of furthering Florida’s interest in cost containment, but she fails to rebut three arguments to the contrary. First, she fails to explain why the Department cannot offer kosher meals when the Federal Bureau of Prisons and other states do so.... Second, the Secretary fails to explain why the Department cannot offer kosher meals when it offers vegan, medical, and therapeutic diets at similar marginal costs.... Third, the Secretary fails to explain why the less restrictive alternative of enforcing rules that limit access to, and continued participation in, the program would not further her stated interest. The United States produced evidence that the Department is not screening out insincere applicants or enforcing the rules of participation in the program, and the Secretary does not contest that evidence. She instead responds that enforcing the rules would be too time intensive....

AP reports on the decision, pointing out that it was handed down only two days after oral argument in the case.

Israel Finally Appoints Rabbinical Appellate Judges

After months of controversy, nine new judges have finally been appointed to Israel's Supreme Rabbinical Court, the court which hears appeals in Jewish divorce and certain other personal status matters.  Jerusalem Post reports that nine judges were appointed on Tuesday, bringing the court up to its required complement of ten. Facing a large backlog of cases, the court was operating with temporary appointments which were about to expire. (Haaretz. June 16).  The new appointees for the first time include 5 judges who have served in the IDF.  However women's groups strongly criticized one of the new appointees.

New Blog Focuses On Religious Freedom and LGBT Rights

Michigan State Law Professor Frank Ravitch has launched a new blog, Freedom's Edge.  The blog will focus on the relationship between Religious Freedom, LGBT Rights, and Reproductive Freedom. Freedom's Edge is now listed in the Religion Clause sidebar.  Welcome to the blogosphere!

Anti-Islamic Group Sues Claiming Federal Law Shields Social Media Censorship

Yesterday the American Freedom Defense Initiative, its President Pamela Geller, its Vice President and the organization Jihad Watch sued the federal government contending that Section 230 of the Communications Decency Act shields Facebook, Twitter and YouTube when they censor anti-Islamic postings by plaintiffs.  The complaint (full text) in American Freedom Defense Initiative v. Lynch, (D DC, filed 7/13/2016), alleges that censorship and discrimination by social media outlets violate California anti-discrimination laws, but the CDA section on "Protection for 'Good Samaritan' blocking and screening of offensive material" allows Facebook, Twitter and YouTube to engage in discriminatory conduct. Among the allegations in the complaint against the social media sites are:

The discriminatory way in which Facebook applies its restrictions is evidenced by the fact that Facebook allows vicious posts and pages against Israel to stand, but when Plaintiff Geller and others expose the truth behind that Islamic hatred, the speech is prohibited.,,,

The Twitter policy, in effect, mirrors Islamic blasphemy standards as applied to censor speech critical of Islam, such as Plaintiffs’ speech.

The Center for Security Policy issued a press release announcing the filing of the lawsuit.

Mississippi AG Will Not Appeal Injunction Against Conscience Protection Act, Despite Governor's Appeal of Decision [UPDATED]

In a strong statement (full text) issued yesterday, Mississippi state Attorney General Jim Hood announced that he will not appeal a federal district court's injunction against enforcing HB 1523 , Mississippi's anti-LGBT Conscience Protection Act, (See prior posting.) Hood said in part:

First, both HB 1523’s critics and supporters acknowledge that the bill did not change state or federal law. For example, there is no state law requiring pastors to marry same-sex couples, and I doubt that the Legislature would ever pass one.  Moreover, the Mississippi Legislature has already passed the Religious Freedom Restoration Act which protects a person’s right to exercise his or her religious beliefs.  HB 1523’s critics and supporters also recognize that HB 1523 cannot overturn or preempt federal law.  As acknowledged by our Governor, HB 1523 is not a defense to a federal lawsuit.

Simply stated, all HB 1523 has done is tarnish Mississippi’s image while distracting us from the more pressing issues of decaying roads and bridges, underfunding of public education, the plight of the mentally ill and the need to solve our state’s financial mess....

Second, to appeal HB 1523 and fight for an empty bill that dupes one segment of our population into believing it has merit while discriminating against another is just plain wrong. I don’t believe that’s the way to carry out Jesus’ primary directives to protect the least among us and to love thy neighbor....

Misinformation that, without HB 1523, pastors, churches, bakers, wedding planners or other private service providers will be forced to violate their religious beliefs has been used repeatedly to frighten our citizens into supporting the dogmatic politicians who use religion for political gain.

Hood added however that depending on the wording of the final order he might appeal a separate federal court decision extending the injunction in an earlier same-sex marriage case to all court clerks who were not parties.(See prior posting.)

UPDATE: It should be noted that Mississippi Governor Phil Bryant has already filed a Notice of Appeal in the case, so presumably he will pursue the appeal using counsel other than the Attorney General.

Ark Encounter and Public High Schools

According to Tuesday's Lexington Herald-Leader, now that Ark Encounter has opened in Kentucky, the Freedom From Religion Foundation has sent letters to more than 1,000 school districts in Kentucky, Tennessee, Ohio, Indiana and West Virginia telling them that field trips to the Noah's Ark theme park would violate the Establishment Clause. FFRF says it would expose students to proselytizing.  In response, Kentucky Education Commissioner Stephen Pruitt told schools that field trips should be an extension of classroom learning, and that neither outside groups nor the state Department of Education should dictate selection. Meanwhile FFRF has also protested the participation of two Kentucky high school marching bands in Ark Encounter's July 5 opening ceremonies. (FFRF press release.)

EEOC Sues For Rastafarian Fired From Disney World Hotel

The EEOC announced yesterday that it has filed a religious discrimination lawsuit against HospitalityStaff, an Orlando, Florida based staffing company that fired Courtney Joseph, a Rastafarian employee who was assigned to work as a prep cook at a Walt Disney World resort hotel.  Joseph grew his hair into dreadlocks because of his religious beliefs.  For over a year, he worked with his dreadlocks tucked under his hat. However after a 2013 inspection of the kitchen by a Disney staff member for compliance with the company's appearance standards, the staffing company told Joseph he must cut his hair. When he refused, he was fired. The lawsuit alleges that HospitalityStaff made no effort to accommodate Joseph's religious beliefs. Orlando Sentinel reports on the lawsuit.

House Holds Hearing On HR 2802, First Amendment Defense Act

The House Committee on Oversight and Government Reform yesterday held a hearing on Religious Liberty and H.R. 2802, The First Amendment Defense Act (FADA). The Committee's website has extensive video and transcripts of the hearing.  As described by the Committee, FADA (full text of HR 2802) is a reaction to the Supreme Court's Obergefell  decision and would prohibit the federal government from taking discriminatory action against a person because the person believes, speaks, or acts in accordance with a sincerely held religious belief or moral conviction about marriage. Among the witnesses was the lead plaintiff in the Obergefell case. Washington Blade reports on the hearing. Think Progress focuses on Rep. Cummings statements. On Monday, a group of interfaith religious and advocacy organizations sent the committee a letter (full text) opposing the bill.

Title VII Is Sole Basis For Claims of Religious Discrimination Against Federal Employee

In Holly v. Jewell, (ND CA, July 11, 2016), a California federal magistrate judge held that Title VII is the sole remedy for discrimination in federal employment.  Neither the First Amendment nor RFRA may be used as the basis for a religious discrimination claim by a federal employee.  In the case, plaintiff who was employed as a maintenance worker at the  San Francisco Maritime National Historic Park was also a Baptist minister.  While on a break and out of uniform, he performed a baptism at the seashore adjoining the park.  He was terminated for this-- though plaintiff also complained that he was questioned about a Bible that he kept to read on breaks.  The court dismissed plaintiff's RFRA claim, holding that recent Supreme Court RFRA decisions have not changed the rule that Title VII is the exclusive remedy for discrimination in federal employment.  The court also dismissed plaintiff's free exercise claim to the extent that it challenges conduct protected by Title VII, but held that plaintiff can file an amended complaint to the extent that he has a First Amendment claim that is separate from his Title VII claim.

Court Rejects Churches' Challenge To California's Abortion Coverage Requirement

In Foothill Church v. Rouillard, (ED CA, July 11, 2016), a California federal district court rejected challenges brought by three churches to letters issued by the California Department of Managed Health Care to seven health insurance companies informing them that under California law they cannot exclude abortion services from coverage when they cover maternity services.  Initially finding that the churches have standing to challenge the directive, the court dismissed with leave to amend plaintiffs' free exercise and equal protection challenges.  The court concluded that the directive was a neutral law of general applicability that survives the rational basis test.  The court dismissed without leave to amend the churches' free speech and establishment clause claims. (See prior related posting.)

Brexit Apparently Does Not Threaten Britain's European Human Rights Obligations

Reuters reports that in Britain, Interior Minister Theresa May will become the country's new Prime Minister tomorrow. She will be responsible for steering Britain's exit from the European Union.  She said yesterday  that there could be no second referendum and would be no attempt to rejoin the EU by the back door. According to a review by Law & Religion UK,  before the referendum May favored staying in the EU but withdrawing from the European Convention on Human Rights.  However on June 30 she said:

I’ve set my position on the ECHR out very clearly but I also recognise that this is an issue that divides people, and the reality is there will be no Parliamentary majority for pulling out of the ECHR, so that is something I’m not going to pursue.

Florida County Elections Supervisor Removes Mosque As Polling Site After Complaints

The Palm Beach Sun-Sentinel last week reported that Palm Beach County, Florida Elections Supervisor Susan Bucher has reversed her decision to make the Islamic Center of Boca Raton a polling location in the August state primary elections. After receiving some 50 complaints, she moved the polling site to a public library.  A CAIR press release yesterday called the move discriminatory, and said it would request reinstatement of the original decision, in light of the fact that churches and synagogues regularly serve as polling stations. CAIR also says it will file a public records request for all communications relating to the move. A CAIR spokesperson said:

The supervisor of elections is evidently targeted by an organized lobbying campaign spreading fear and Islamophobia. Her discretion to designate or remove polling sites must never be based on religious, racial or ethnic bias...

Religion Clause Blog Gets Press Coverage

Religion Clause blog received press coverage today in the Detroit Legal News in an article titled Faith and light: Professor's blog helps keep 'church-state' debate alive.

NYT Investigates Religious Fundamentalism In Saudi Arabia Today

The New York Times carries a very long investigative piece on the state of fundamentalist Islam in Saudi Arabia today. Beginning on the front page of today's print edition, the article in the Times online edition is titled A Saudi Morals Enforcer Called for a More Liberal Islam. Then the Death Threats Began. It focuses in part on a former employee of the Commission for the Promotion of Virtue and the Prevention of Vice who earned the wrath of fundamentalists when he decided that much of what Saudis practice as religion is in fact merely Arabian cultural norms.

Recent Articles of Interest

From SSRN:

• Shaun Alberto de Freitas, Doctrinal Sanction and the Protection of the Rights of Religious Associations: Ecclesia De Lange v the Presiding Bishop of the Methodist Church of Southern Africa, (726/13) [2014] ZASCA 151 (July 1, 2016).
• Joanna Diane Caytas, Disposing of Relics: Overt and Covert Blasphemy Statutes in Europe, (Columbia Journal of European Law: Preliminary Reference (April 1, 2016)).
• Sylvia Ann Law, Scott Skinner-Thompson & Hugh Baran, Marriage, Abortion and Coming Out, (Columbia Law Review Sidebar, Vol. 116, Forthcoming).
• Lucia Ann Silecchia, Laudato Si' and Care for Our Common Home: What Does it Mean for the Legal Professional?, (6 Seattle J. of Envtl. L. 1 (2016)).
• Adedayo Damilola Oyebade, Human Rights Protection: A Panacea for the Use and Involvement of Women in Terrorism, (June 29, 2016).

From SmartCILP and elsewhere:

• Alex Reed, RFRA v. ENDA: Religious Freedom and Employment Discrimination, 23 Virginia Journal of Social Policy and Law 1-37 (2016).
• Vincent J. Samar, Toward a New Separation of Church and State: Implications for Analogies to the Supreme Court Decision in Hobby Lobby by the Decision in Obergefell v. Hodges, 36 Boston College Journal of Law & Social Justice 1-31 (2016).
• 21st International Law and Religion Symposium. Keynote address by Sen. Orrin G. Hatch; articles by Neville Rochow, Vanja-Ivan Savic, Asma T. Uddin and Jean-Paul Willaime; comments by students Jarom R. Jones & Zachary D. Smith. 2015 BYU L. Rev. 585-874.
• Joseph D. Kearney, The Supreme Court and Religious Liberty, 99 Marquette Law Review 427-445 (2015).
• Mark Strasser, Free Exercise and Substantial Burdens Under Federal Law. 94 Nebraska Law Review 633-684 (2016).
• Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection. Article by Fr. Frank Brennan; response by Mary Ellen O'Connell. 39 Boston College International & Comparative Law Review 47-95 (2016).
• Women in the Revolution: Gender and Social Justice After the Arab Spring. Introduction by Adrien K. Wing; articles by Mounira Maya Charrad, Shafiqa Ahmadi, Karima Bennoune, Sahar F. Aziz, Seval Yildirim and Fatina Abdrabboh; roundtable participation by Adrien K. Wing, moderator; Fatina Abdrabboh, Shafiqa Ahmadi, Sahar F. Aziz, Karima Bennoune, Mounira Maya Charrad, Sara Ghadiri, Ahmad E. Souaiaia, Seval Yildirim, discussants; interview of Mounira Maya Charrad. 18 Journal of Gender Race & Justice 341-476 (2016).
• Symposium, Public Religion, Private Communities and Human Rights, Law & Ethics of Human Rights, Vol. 10, Issue 1 (May 2016).

Russian President Signs Anti-Terrorism Law That Restricts Religious Proselytizing

According to reports from USCIRF, Russia Religion News, and Forum18, last week Russian President Vladimir Putin signed into law a package of anti-terrorism measures that were passed by the Russian State Duma in late June. The measures, part of which place extensive new restrictions on religious missionary activity, take effect on July 20. As explained by USCIRF:

The anti-terrorism measures would, among other provisions, amend the 1997 Russian religion law by redefining "missionary activities" as religious practices that take place outside of state-sanctioned sites. The new law thus would ban preaching, praying, proselytizing, and disseminating religious materials outside of these officially-designated sites, and authorize fines of up to $15,000 for these activities conducted in private residences or distributed through mass print, broadcast or online media.  Foreign missionaries also must prove they were invited by state-registered religious groups and must operate only in regions where their sponsoring organizations are registered; those found in violation face deportation and major fines.

According to Forum18:

Another part of the package of laws sharply increases Criminal Code Article 282.2 punishments for those convicted of allegedly "extremist" activity, who are often Jehovah's Witnesses and Muslims who study the works of theologian Said Nursi. These punishments were last increased in February 2014.

[Thanks to Scott Mange for the lead.] 

Recent Prisoner Free Exercise Cases

In Gilbert v. Fox, 2016 U.S. Dist. LEXIS 86811 (D CO, June 9, 2016), a Colorado federal district court held that an inmate's claim that his free exercise rights are violated by refusal to recognize his Nuwaupian Certificate of Live Birth Name is a challenge to conditions of confinement and cannot be decided in a habeas corpus proceeding.

In Gadbury v. California, 2016 U.S. Dist. LEXIS 86891 (ED CA, July 1, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's attempt to obtain a vegetarian diet (which also meets his medical needs) for religious reasons.

In Ryan v. Graham, 2016 U.S. Dist. LEXIS 87477 (ND NY, July 5, 2016), a New York federal magistrate judge recommended dismissing a complaint by a Muslim inmate that his free exercise rights were infringed by limiting him to having eleven books in his cell while in special housing unit.

In Deen v. Albritton, 2016 U.S. Dist. LEXIS 87607 (ND CA, July 6, 2016), a California federal magistrate judge allowed a Muslim inmate to move ahead with his complaint that Muslim inmates are not allowed to pray in groups of more than four.

In Davis v. Bateman, 2016 U.S. Dist. LEXIS 88532 (ED PA, July 7, 2016), a Pennsylvania federal district court dismissed an inmate's complaint that he was denied access to attend religious services on four occasions. He had attended both Christian and Muslim services a total of 61 times.

In Pierre v. Geo Group, 2016 U.S. Dist. LEXIS 88698 (MD GA, June 3, 2016), a Georgia federal magistrate judge recommended that a Muslim inmate be permitted to move ahead with his complaint that he was forced to shave rather than being allowed to grow a beard as required by his religious beliefs.

Jehovah's Witnesses Win Another Round In Bid To Access Gated Communities In Puerto Rico

Watchtower Bible Tract Society of New York, Inc. v. Municipality of Ponce, (D PR, July 6, 2016), is the latest installment in a 12-year battle by Jehovah's Witnesses to gain access to gated communities in Puerto Rico in order to proselytize door-to-door.  In prior decisions, the federal courts have ordered communities to grant access to Jehovah's Witnesses.  However in response certain gated communities argued that they are not subject to the court's orders because their roads and streets are completely private.  In this 50-page opinion, a Puerto Rico federal district court ruled that the streets within Estancias del Golf Club in the Municipality of Ponce are subject to the court's earlier orders  The court said in part:

Up to 2012, the residents of EGC went above and beyond to complete the last steps of the transfer of their streets to the Municipality. Suddenly, they took a one hundred eighty degree turn and demanded their streets now be private, when it became convenient to them. This Court will not allow Plaintiffs’ First  Amendment protected activity to be held hostage by the whim of residents associations within gated communities....

It has become quite common for urbanizations and some of their residents to believe it is unacceptable to have non-residents walk the streets within their gated communities. This constitutes a discriminatory pattern that our Constitution forbids....  Community gates in Puerto Rico narrow the concept of community and of individual through decisions about group social worth and social threat, about who is redeemable and who is dispensable, about who is “good” and allowable, and about who is “bad” and made to “go away.”

Texas Proposes Rule Change On Handling of Fetal Tissue

As reported by Catholic News Agency, on July 1 the Texas Health and Human Services Commission proposed rule amendments (full text) that would change the way in which health care facilities dispose of fetal tissue from an abortion or miscarriage.  Fetal tissue, regardless of how early in a pregnancy, would need to be disposed of by cremation or burial, instead of being treated in the same way as other pathological waste. The proposed change comes less than one week after the U.S. Supreme Court struck down Texas' restrictive regulation of abortion clinics. (See prior posting.)

In New Suit, 10 States Challenge Feds' Interpretation of Transgender Rights

Yesterday, Nebraska and nine other states filed suit against the federal government challenging interpretations of the anti-discrimination provisions of Title VII and Title IX by the Department of Justice, the Department of Education, OSHA and the EEOC.  Federal agencies have asserted that the ban on discrimination on the basis of "sex" includes a ban on discrimination based on gender identity. The complaint (full text) in State of Nebraska v. United States, (D NE, filed 7/8/2016) contends that these interpretations were adopted in violation of the Administrative Procedure Act and various constitutional provisions.  Joining Nebraska in the lawsuit are Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota and Wyoming. Omaha World-Herald reports on the lawsuit. In May, eleven other states filed a similar lawsuit in federal district court in Texas. (See prior posting.)