Recent Articles and Book

From SSRN:

• Sally Tyler, Of Temples and Territory: The ICJ's Preah Vihear Decision and Implications for Regional Dispute Resolution, (University of the District of Columbia Law Review, Forthcoming).
• 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, (Potchefstroom Electronic Law Journal, Vol. 19, 2016).
• Nancy Levit, After Obergefell: The Next Generation of LGBT Rights Litigation, (84 UMKC L. Rev. 605 (2016)).
• Ashraf Booley, The Rights and Freedoms of Moroccan Women: Has the 2004 Reforms Benefited Moroccan Women?, (Potchefstroom Electronic Law Journal, Vol. 19, 2016).
• R.P.C.R. Rajapakse & Hiruni Nirmali Kaushala, Islamic Banking in Sri Lanka - A Literature Review, (Imperial Journal of Interdisciplinary Research (IJIR) Vol 2. Issue 6 pp. 1346-1352 (2016)).
• Mohamed Badar, The Self-Declared Islamic State (ISIS / Da‘Esh) and Ius Ad Bellum Under Islamic International Law, (The Asian Yearbook of Human Rights and Humanitarian Law (2017) vol. 1).
• Muhammad Masum Billah, Extensive Use of Ḥilah in Islamic Banking and Finance, ((2015) 59.1 Islamic Quarterly 65-88).

From SmartCILP and elsewhere:

• F. Peter Phillips, Ancient and Comely Order: The Use and Disuse of Arbitration by New York Quakers, 2016 Journal of Dispute Resolution 81-114.
• Neil Foster, Freedom of Religion and Balancing Clauses in Discrimination Legislation, Oxford Journal of Law and Religion (2016).

New Book:

• Leslie C. Griffin, Law and Religion: Cases and Materials, Fourth Edition, (Foundation Press, 2016).

Recent Prisoner Free Exercise Cases

In Sioleski v. Capra, 2016 U.S. Dist. LEXIS 150556 (SD NY, Oct. 31, 2016), a New York federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that authorities refuse to recognize him as a Native American because he did not prove tribal affiliation; thus he is unable to attend Native American religious services, festivals and dances.

In Sokolsky v. California, 2016 U.S. Dist. LEXIS 150754 (ED CA, Oct. 31, 2016), a California federal magistrate judge denied a preliminary injunction to a civil detainee complaining that his rights to practice his Jewish religion were infringed and he was denied medically appropriate food.

In Chesser v. Rivas, 2016 U.S. Dist. LEXIS 151944 (SD IL, Nov. 2, 2016), a California federal district court adopted a magistrate's recommendations and, while dismissing a number of claims, permitted a Muslim inmate to move ahead with his equal protection challenge to restrictions on his teaching or learning Arabic and wearing shortened pants.

In Chesser v. Walton, 2016 U.S. Dist. LEXIS 151940 (SD IL, Nov. 2, 2016), an Illinois federal district court dismissed a Muslim inmate's challenge to the congregate prayer policy that limited limited Muslims to once a week instead of the five daily group prayers. However plaintiff was permitted to proceed with his retaliation claim.

In Quezada v. Cate, 2016 U.S. Dist. LEXIS 152213 (ED CA, Nov. 1, 2016),  a California federal magistrate judge recommended concluding that plaintiff met the criteria for a "vexatious litigant" and should be required to post $10,000 in security before proceeding with his complaint that he was denied Jewish kosher meals.

EEOC Sues Over Job Denial To Pentecostal Who Rejected Dress Code Mandate

On Thursday, the EEOC announced that it had filed a religious discrimination suit against the Michigan-based Akebono Brake Corp.  The complaint charges that the company's dress code requires all employees to wear pants.  The company refused to hire as a temporary laborer Clintoria Burnet, a member of the Apostolic Faith Church of God and True Holiness, whose religious beliefs require her as a woman to wear skirts or dresses and not pants. The company failed to offer any religious accommodation to meet Burnet's Pentecostal Christian beliefs.

Another Challenge Filed To "Church Plan" Status of Retirement Plan

Another religiously affiliated health care system has been sued by participants in its retirement plan who claim that the plan is not exempt from ERISA as a "church plan."  The complaint (full text) in Sheedy v. Adventist Health System Sunbelt Healthcare Corp., (MD FL, filed 10.28/2016), contends that the plans are underfunded by $134 million. The complaint alleges that:

the Plans do not meet ERISA's requirements for the "church plan" exemption because they were not "established,"and are not "maintained" by a church.

Reporting on the lawsuit, BNA Daily Report for Executives (Nov. 1, 2016) [subscription required] says:

 The 12-count lawsuit against Adventist Health differs from many of its predecessors because it targets several pension plans, including a multiemployer plan covering several Adventist-affiliated entities and a group of frozen plans in which participants are no longer accruing benefits.

The case is also noteworthy for being the first to target a hospital system with ties to the Seventh-Day Adventist Church. The vast majority of the nearly 40 church plan lawsuits have targeted Catholic health-care providers.

Petitions for certiorari in other cases posing the same issue are pending before the U.S. Supreme Court. (See prior posting).

Georgia Drops Demands For Copies of Sermons In Discrimination Case

As previously reported, last month the Georgia Department of Public Health created significant controversy when, as part of its discovery requests in a religious discrimination lawsuit filed against it by a Seventh Day Adventist lay minister, it asked its former employee to furnish notes or transcripts of his sermons. Christian Post reported this week that Georgia has now dropped that demand, but is still asking for his ministerial credentials; proof he has served with the Seventh Day Adventist church; his contracts with the Church; and details any compensation for his sermons.

3rd Circuit Hears Oral Arguments In Contraceptive Coverage Mandate Case

Yesterday the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Real Alternatives, Inc. v. Burwell. In the case, a Pennsylvania federal district court rejected a challenge by a non-profit, non-religious pro-life group to the scope of the Affordable Care Act contraceptive coverage mandate.  The non-profit argued, among other things, that it should be extended the same exemption from furnishing its employees contraceptive coverage as is given to religious employers. (See prior posting.)

British Court Rejects Imam's Defamation Claim Against BBC

In Begg v. British Broadcasting Corp., (EWHC, Oct. 28, 2016), a British trial court dismissed a defamation claim brought against the BBC by the chief imam of a London mosque.  The claimant,  Shakeel Begg, sued over a description of him included in a BBC current affairs television program. The court concluded however that:

the words complained of ... are substantially true in their meanings: (1) The Claimant is an extremist Islamic speaker who espouses extremist Islamic positions. (2) The Claimant had recently promoted and encouraged religious violence by telling Muslims that violence in support of Islam would constitute a man’s greatest deed.

In an interesting portion of its analysis, the court said:

I turn to consider what is properly to be considered “extreme” in the context of Islam and Islamic doctrinal positions. It is necessary to do so in order to determine that the BBC’s plea of justification for the [words complained of] is made out, viz. “The Claimant is an extremist Islamic speaker who espouses extremist Islamic positions”. The various speeches and posts relied upon by the BBC were given by the Claimant on Islamic issues in his capacity as an Imam and directed to predominantly Muslim audiences. The analysis of what is “extreme” and what are “extremist Islamic positions” is, therefore, necessarily to be judged initially through the prism of Islam.

Then the court (beginning in paragraph 118) sets out ten teachings or beliefs that meet the definition of Islamic extremism. Out-Law.com reporting on the decision notes that this is one of the last cases based on laws that preceded the 2013 Defamation Act.  That Act changed the defense of "justification" to the defense of "truth".

Interview On State of Church-State Relations

For readers who may be interested, Christianity Today's Church Law & Tax today published an interview with me titled Q&A: The Current State of Church-State Relations.

Brazilian Court Awards Damages Against Priest Who Prevented An Abortion

Life Site News reported yesterday that Brazil's appellate court, the Superior Tribunal de Justiça, has ruled in favor of a couple that brought suit against an activist Catholic priest who in 2005 convinced a court to halt an abortion sought by the couple.  The parents had sought a court order to permit the abortion when it became clear that the fetus suffered a severe deformity. Fr. Luiz Carlos Lodi da Cruz, at the time a law student, intervened and successfully sought habeas corpus on behalf of the fetus. Ultimately the child died eight days after birth. The appellate court, in awarding the parents damages equivalent to $18,537 (US), held that the priest had recklessly abused the legal process, causing useless suffering and intense moral damage to the parents.

Sex Abuse Suit Filed Against Guam Archdiocese

As previously reported, in September Guam retroactively eliminated its statute of limitations for civil suits alleging child sexual abuse. In the wake of this, according to AP, a civil lawsuit has now been filed by four former altar boys alleging that decades ago they were molested-- three in the 1970's by Archbishop Anthony Apuron and one in the 1950's by Father Louis Brouillard. The suit names the Archdiocese as well as Apuron and Brouillard as defendants.  Archbishop Apuron, who was relieved of his duties by  the Vatican in June when charges first surfaced, was replaced Monday by Bishop Michael Jude Byrnes, the auxiliary bishop of Detroit, who has been named coadjutor bishop of the Guam archdiocese.

Obama: Army Corps Looking For Alternative Pipeline Route To Protect Sioux Lands

As previously reported, the Sioux Tribe has been embroiled in litigation attempting to stop construction of an oil pipeline near the Standing Rock Indian Reservation in in North and South Dakota, contending that the construction will destroy sacred ancestral Tribal lands.  A federal district court has refused to enjoin the construction. Nevertheless the federal government said it would delay approval of the construction.  Now, NPR reports that on Tuesday President Obama told an interviewer that the U.S. Army Corps of Engineers is examining possible alternate routes for the Dakota Access Pipeline. Obama said in part:

We're monitoring this closely and I think, as a general rule, my view is that there's a way for us to accommodate sacred lands of Native Americans. I think right now the Army Corps is examining whether there are ways to reroute this pipeline in a way. So we're going to let it play out for several more weeks and determine whether or not this can be resolved in a way that I think is properly attentive to the traditions of the first Americans.

In Israel, Egalitarian Protesters Confront Western Wall Authorities

In Israel today, the conflict between ultra-Orthodox Jewish groups and egalitarian streams of Judaism led to physical clashes at the Western Wall.  Haaretz reports that leaders of the Conservative and Reform movements as well as Women of the Wall broke through security guards and carried Torah scrolls to the Wall in protest of the government's continuing failure to follow through on an agreement to create a separate egalitarian prayer space at the Wall. The group had obtained a permit from police for the demonstration; however the Western Wall Heritage Foundation that controls the area was not informed of this.  Young ultra-Orthodox boys confronted the group with scuffles breaking out. In a statement, Prime Minister Netanyahu's office criticized the protest saying: "unilateral breaches of the status quo in the Kotel harm our attempts to reach a compromise."  But a spokesperson for the protesters said that waiting has yielded no results.

Amish Say They Are Targets of Law Requiring Horses To Wear Collection Bags

The Bowling Green Kentucky Daily News reported last week that Amish defendants are challenging an Auburn, Kentucky ordinance (Sec. 90.088(B)) that requires horses and other large animals on city streets to wear collection bags to catch their excrement.  Auburn officials say the law is needed to keep city streets clean and prevent the spread of disease, but the Amish say the bags will frighten their horses.  Defendants in some of the 30 pending cases are arguing that the law unconstitutionally targets a particular group of Amish residents. [Thanks to Scott Mange for the lead.]

Trinity Western Law School Wins Appeal In British Columbia

In Trinity Western University v. Law Society of British Columbia, (BC Ct. App., Nov. 1, 2016), the Court of Appeal for the Canadian province of British Columbia held that the province's Law Society acted unreasonably when it denied approval to a proposed new law school at the Christian-affiliated Trinity Western University. The Law Society's vote was a reaction to a requirement at the University that students sign a Community Covenant that, among other things, does not recognize same-sex marriage. The court summarized its decision in part as follows:

The issue on appeal is whether the Law Society met its statutory duty to reasonably balance the conflicting Charter rights engaged by its decision: the sexual orientation equality rights of LGBTQ persons and the religious freedom and rights of association of evangelical Christians. The Benchers initially voted to approve TWU’s law school. That decision was met with a backlash from members of the Law Society who viewed it as endorsement of discrimination against LGBTQ persons. The Benchers decided to hold a referendum and to be bound by the outcome. A majority of lawyers voted against approval. The Benchers then reversed their earlier position and passed a resolution not to approve TWU’s law school.

In doing so, the Benchers abdicated their responsibility to make the decision entrusted to them by the Legislature. They also failed to weigh the impact of the decision on the rights engaged. It was not open to the Benchers to simply adopt the decision preferred by the majority. The impact on Charter rights must be assessed concretely, based on evidence and not perception.

... [D]enying approval would not enhance access to law school for LGBTQ students. In contrast, a decision not to approve TWU’s law school would have a severe impact on TWU’s rights.... 

In a diverse and pluralistic society, government regulatory approval of entities with differing beliefs is a reflection of state neutrality. It is not an endorsement of a group’s beliefs.

CBC News reports on the decision. [Thanks to David Fernandes for the lead.]

4th Circuit Grants En Banc Review In Legislative Prayer Case

The U.S. Fourth Circuit Court of Appeals announced this week that it has granted en banc review in Lund v. Rowan County, North Carolina. In the case, a 3-judge panel of the 4th Circuit held in a 2-1 decision that the practice of the Rowan County Board of Commissioners to open its meetings with an invocation led on a rotating basis by one of the commissioners is constitutional under the Supreme Court's Town of Greece decision. (See prior posting.)

Smithsonian Gets Curator of American Religious History

The Washington Post reported last week that the Smithsonian Institution for the first time since the 1890's has hired a Curator of American Religious History.  The post is held by Peter Manseau, the son of a former nun and a priest. (Background.) Funded by a $5 million grant from the Lilly Foundation, Manseau will curate new exhibits on American religious history and add important religious objects to the museum’s collections.  He is planning a 5-year series of events and exhibitions, the first of which will open in June 2017 at the National Museum of American History in Washington.

Judge Wants Greater Restrictions In Settlement of NYPD Muslim Surveillance Suit

As previously reported, in January the parties to a long-running class action challenging practices of the New York Police Department in surveillance Muslims reached a settlement agreement offering greater protections.  However, in Handschu v. Police Department of the City of New York, (SD NY, Oct. 28, 2016), the court rejected the proposed settlement, insisting on three additional restrictions.  As discussed in an ACLU press release on the decision:

The judge ... called for alterations that would:

Clarify the authority of an individual outside the NYPD (a civilian representative) to ensure the NYPD’s compliance with the “Handschu Guidelines” — which govern NYPD surveillance of political and religious activity — even beyond the terms of the reforms proposed by the settlement.

Require that the civilian representative established by the settlement report periodically to the court on the NYPD’s compliance. 

Require the mayor to seek court approval before abolishing the position of civilian representative.

New York Times reports on the decision.

Cert Denied In Ministerial Exception Case

The U.S. Supreme Court today denied certiorari in Melhorn v. Baltimore-Washington Conference of the United Methodist Church, (Docket No. 16-245, cert. denied 10/31/2016) (Order List.) In the case, the Maryland Court of Special Appeals in an unreported opinion (set out in Appendix 1 to the Petition for Certiorari), applied the ministerial exception doctrine to bar a wrongful discharge suit by a pastor who was fired after refusing to accept the $600,000-plus portion of a bequest for upkeep of a cemetery that the church no longer owned.

Recent Articles, Book and Video of Interest

From SSRN:

• Arthur J. Jacobson, The Messiah and the Law, (Cardozo Legal Studies Research Paper No. 502 (2016)).
• Alan C. Weinstein, Regulation of Religious Uses Under the Religious Land Use and Institutionalized Persons Act, (Cleveland-Marshall Legal Studies Paper No. 16-296 (2016)).
• Nomi Maya Stolzenberg, It's about Money: The Fundamental Contradiction of Hobby Lobby, (Southern California Law Review, Vol. 88, 2015).
• Yinka Olomojobi, Legal Dimensions to Religious Freedom in Nigeria, (September 24, 2016).
• James Hill, Whose Best Interest? Why Michigan's New Adoption Law Is Unconstitutional and Prevents the Michigan Department of Health and Human Services from Helping Adoptable Children, (2 Admin. Law Rev. Accord 17, 2016).
• Paola Bergallo & Agustina Michel, Constitutional Developments in Latin American Abortion Law, (International Journal of Gynecology and Obstetrics 135 (2016) 228–231).
• Yinka Olomojobi, Radical Islam & E-Terrorism in Africa, (October 24, 2016).
• Robert W. McGee, Toilets, Transgenders, and the Supreme Court, (October 29, 2016).
• Robert W. McGee, The New Prohibitionism: The Movement to Regulate Personal Behavior, (October 26, 2016).

From SmartCILP:

• Symposium: Religious Liberty and the Free Society: Celebrating the 50th Anniversary of Dignitatis Humanae. Keynote address by John H. Garvey; articles by Paul Horwitz, Thomas C. Berg, Christopher C. Lund, Vincent Phillip Munoz, Brett G. Scharffs, Anna Su, Marc O. DeGirolami, Mark L. Movsesian and Steven D. Smith. 91 Notre Dame Law Review 1287-1569 (2016).
• Karyn Ball, Post-Secular Messianism Against the Law: Judith Butler on Walter Benjamin and 'Sacred Life', [Abstract], 27 Law & Critique 205-227 (2016).
• Janeanne Lubin-Szafranski & Gregory J. Pepe, Catholic Doctrine and Aid in Dying, 34 Quinnipiac Law Review 667-689 (2016).
• Jennifer A. Marshall, Burwell v. Hobby Lobby: Protecting Religious Freedom in a Diverse Society, [Abstract], 10 N.Y.U. Journal of Law & Liberty 327-345 (2016).

Recent Book:

• Daniel P. Dalton, Litigating Religious Land Use Cases, Second Edition, (ABA Book Publishing, Oct. 2016).

New Video:

• European Court of Human Rights, (Oct. 17, 2016).

Recent Prisoner Free Exercise Cases

In Smith v. Lind, 2016 U.S. Dist. LEXIS 146953 (WD WI, Oct. 24, 2016), a Wisconsin federal magistrate judge allowed a Muslim inmate to move ahead with various of his claims relating to denial of adequate Ramadan meals, Eid-ul-Fitr feast foods, and a non-vegan Halal diet, as well as the prohibition on inmate-led services.

In Malone v. Duvall, 2016 U.S. Dist. LEXIS 147031 (SD IL, Oct. 24, 2016), an Illinois federal district court dismissed with leave to amend an inmate's complaint that on one occasion he was denied religious services.

In Houston v. Collerman, 2016 U.S. Dist. LEXIS 148106 (ND NY, Oct 26, 2016), a New York federal district court dismissed without prejudice a Muslim inmate's claim that his free exercise rights were infringed when, because of a false misbehavior report, he was unable to participate in Ramadan and denied his religious meals.

In Goulding v. Kaemingk, 2016 U.S. Dist. LEXIS 148020 (D SD, Oct. 25, 2016), a South Dakota federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 148327, Sept. 23, 2016), and dismissed an inmate's claim that his religious rights were infringed when authorities denied his request to hold his own non-denominational Christian worship services and Bible study on Saturdays.

 In Padilla v. Kernan, 2016 U.S. Dist. LEXIS 148386 (SD CA, Oct. 24, 2016), a California federal district court dismissed for failure to pay a filing fee an inmate's complaint that he was denied kosher meals for a 15 month period.

In Wofford v. Austin, 2016 U.S. Dist. LEXIS 148907 (WD MI, Oct. 27, 2016), a Michigan federal district court dismissed a Nation of Islam inmate's complaint that he was not provided a replacement meal when his Ramadan meal was cross-contaminated by spillage from one part of the meal onto another, and that he was verbally harassed when he complained.

In Espinoza v. Irby, 2016 U.S. Dist. LEXIS 149178 (D AZ, Oct. 25, 2016), an Arizona federal district court dismissed without prejudice for failure to exhaust administrative remedies an inmate's complaint that his kosher diet was discontinued.

In Booker v. Graham, 2016 U.S. Dist. LEXIS 149332 (ND NY, Oct. 26, 2016), a New York federal magistrate judge dismissed a Nation of Islam inmate's complaint that Ramadan observance was impeded by a facility-wide lockdown and that he was denied access to weekly congregate religious services while in administrative segregation. However the court allowed plaintiff to move ahead with his claim of retaliation for filing grievances over the Ramadan lockdown.

In Raines v. Guembe, 2016 U.S. Dist. LEXIS 149978 (ED CA, Oct. 27, 2016), a California federal magistrate judge dismissed a complaint by a Wiccan inmate that there was a 6 week delay in his beginning to receive vegetarian religious meals after he requested them.

UPDATE: In Watkins v. Secretary, Florida Department of Corrections, (11th Cir., Oct. 28, 2016), the 11th Circuit in a brief per curiam opinion affirmed a trial court injunction ordering the state to furnish a kosher diet to an inmate, rejecting the state's const containment and security arguments.