4th Circuit Hears Employment Discrimination Case

The U.S. 4th Circuit Court of Appeals yesterday heard oral arguments in Abeles v. Metropolitan Washington Airports Authority. (Audio of full oral argument.) In April, a Virginia federal district court rejected plaintiff's claim that she was discriminated against because of her Orthodox Jewish faith when she was suspended for five days after stayed off work on the last two days of Passover. (District court opinion.) Among the issues on appeal are whether plaintiff followed proper procedures in requesting time off, and whether RFRA and the Virginia Religious Freedom Act apply to the case.  Becket Fund has links to documents in the case.

Congress Gives Final Passage To Defense Authorization Act-- Some Sections Impact Religion

Yesterday the Senate gave final approval to S.2943 as amended by Conference Report 114-840, the National Defense Authorization Act for Fiscal Year 2017. (Full text). The 975-page bill, which now goes to the President for his signature, contains the following provisions of interest to those who follow church-state and religious liberty developments:

• Sec. 549 which calls for data collection on hazing notes that victims are often members of protected classes such as race and religion.
• Sec. 585 authorizes award of the distinguished service cross posthumously to Chaplain Joseph Verbis LaFleur for acts of valor while a Japanese prisoner of war during World War II.
• Sec. 591. Repeals the requirement for a chaplain at the United States Air Force Academy appointed by the President.
• Sec. 1085. A sense of Congress resolution that there should be within the National Security Council a Special Adviser to the President on International Religious Freedom who should serve as liaison with the Ambassador at Large for International Religious Freedom, the United States Commission on  International Religious Freedom, Congress and religious nongovernmental organizations.
• Sec. 1263 (Part of the ‘Global Magnitsky Human Rights Accountability Act). Authorizes the President to impose sanctions on any foreign person who is responsible for extrajudicial killings, torture or other gross human rights violations against individuals in a foreign country who, among other things, exercise, defend or promote freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections.
• Section 2829F provides for return of certain lands at Fort Wingate, New Mexico to the Zuni Tribe and Navajo Nation. Certain of the land is to be held in trust with shared cultural and religious access by the Zuni and Navajos.

The final bill did not include the controversial Russell Amendment which would have allowed religious organizations that enter government contracts to require that their employees adhere to the organization's religious tenets. This would have permitted religious organizations that oppose same-sex marriage to refuse to hire those in same-sex relationships. (Background).

Company Using FLDS Child Labor Held In Contempt

In Perez v. Paragon Contractors Corp., (D UT, Dec. 6, 2016), a Utah federal district court held that a construction company which had previously been enjoined from using child labor was in contempt for now, in cooperation with the FLDS Church, using unpaid child labor to harvest pecans at a Ranch with which the construction company contracted. The court found that

The FLDS church closed its non-public schools during the pecan harvest. In contrast, the public schools in the area were not closed. Instead of going to school for their education, the children congregated at the schools, loaded into vans, and were sent to the Ranch, in good weather and bad.

The children’s working conditions were often harsh. The children did not have an opportunity to rest if they wanted and often were not given any lunch.

The court required the construction company to pay $200,000 into a fund to be used to compensate children who were forced to work on the Ranch at a rate equal to minimum wage plus overtime. The court also appointed a special master to evaluate ongoing compliance with the injunction for 5 years. Salt Lake Tribune and Fox 13 reports on the decision. (See prior related posting.)

Church Lacks Standing In Recall Petition Counterclaim

In City of El Paso, Texas v. Tom Brown Ministries, (TX App., Dec. 7, 2016), a Texas state appeals court dismissed on standing grounds a counterclaim by a church that had been involved in recall efforts against the mayor of El Paso who supported re-establishing domestic partnership benefits for city employees. In this phase of the long-running case, at issue was the Church's counterclaim against the city and the Mayor in his official capacity contending that they violated the Church's constitutional right to circulate recall petitions when they brought suit claiming that the Church's recall activities violated election laws. The court concluded in part:

[T]he City never took any unconstitutional actions against Appellees and never applied any unconstitutional policies against them. Rather, it was Cook [the Mayor], in his individual capacity, who sought redress for private injuries arising from Appellees’ alleged violations of the Election Code in circulating the recall petitions, and it was this Court that directed the City to decertify the recall petitions and to cancel the recall election.... The City never engaged in any past unconstitutional conduct toward Appellees, and there is no basis for any fear the City will unlawfully enforce the Election Code against Appellees in the future.

4th Circuit Hears Oral Arguments In Two Religion Cases

Yesterday the U.S. 4th Circuit Court of Appeals heard arguments in American Humanist Association v. Maryland-National Capital Park and Planning Commission (audio of oral arguments). In the case, a Maryland federal district court rejected an Establishment Clause challenge to the 90-year old Peace Cross, a 40-foot tall Veteran's Memorial in the shape of a cross. (See prior posting.) Reporting on the oral arguments, the Washington Post said in part:

Two appeals court judges clearly stated that there is no way to view the Peace Cross in Bladensburg other than as a symbol of Christianity.

The third judge on the appeals panel just as strongly said that the marble-and-cement monument is a secular war memorial honoring the death and sacrifice of those lost in battle.

Yesterday the 4th Circuit also heard oral arguments in EEOC v. COMSO: Energy, Inc. (audio of oral arguments). In the case, a West Virginia federal district court awarded damages to an Evangelical Christian mine employee who who objected to biometric hand scanning to track time and attendance, believing that it involves the Mark of the Beast forbidden in the Book of Revelation. (See prior posting.)

German Top Court Says Muslim School Girl Must Take Part In Mixed Swim Classes

Germany's Federal Constitutional Court-- the country's highest court-- yesterday ruled that an 11-year old Muslim school girl must take part in mixed gender swim classes. According to The Guardian, the girl's parents objected to her taking part even wearing the full-body burkini, saying it still revealed the shape of her body in violation of Islamic law.  The court concluded that there are no binding rules in Islam to define proper clothing.

Israeli Rabbinate Will Adopt New Standards Likely To Validate Conversion of Ivanka Trump

As previously reported, in Israel in July the country's Supreme Rabbinical Court (which hears appeals in personal status matters) ruled that it will not recognize religious conversions performed by U.S. modern Orthodox Rabbi Haskel Lookstein.  Lookstein is the New York rabbi who officiated in the conversion of Donald Trump's daughter Ivanka. In recent years, the Israeli Rabbinate has become more restrictive in recognizing conversions performed abroad.  Now however it appears that Donald Trump's victory in the U.S. presidential election has even impacted the Israeli Rabbinate.  According to JTA, in separate announcements yesterday both Israel's Ashkenazi and Sephardi chief rabbis announced that they will convene a meeting next week with the Chief Rabbinate Council and the Supreme Rabbinical Court to create standards for determining which rabbis' conversions will be recognized.  Once a rabbi is on the list, his conversions will be automatically recognized without further investigation. Chief Rabbi Yitzhak Yosef suggested that the standards will result in recognition of Ivanka Trump's conversion.

Wedding Videographers Sue To Refuse Same-Sex Couples

The owners of a St. Cloud, Minnesota film and media production company filed suit yesterday in federal district court claiming that the Minnesota Human Rights Act violates their rights under the 1st and 14th Amendments by requiring them "to produce videos promoting a conception of marriage that directly contradicts their religious beliefs if they produce videos promoting marriages between one man and one woman."  The complaint (full text) in Telescope Media Group v. Lindsey, (D MN, filed 12/6/2016), alleges that Carl Larsen and Angel Larsen "desire to counteract the current powerful cultural narrative undermining the historic, biblically-orthodox definition of marriage as between one man and one woman by magnifying God’s beautiful design and purpose for marriage through their creative storytelling and promotional talents." Plaintiffs argue:

The First Amendment prevents the government from compelling people to create, express, support, or promote a message not of their own choosing or to speak when they would rather remain silent.

KSTP-TV News reports on the lawsuit.

Catholic Principal's Suit Dismissed On Ministerial Exception Ground

In Ginalski v. Diocese of Gary, 2016 U.S. Dist. LEXIS 168014 (ND IN, Dec. 5, 2016), an Indiana federal magistrate judge dismissed employment discrimination claims brought by a former principal of a Catholic high school whose contract was not renewed. The principal contended that she was fired because of her sex, age and disability.  The court held that the ministerial exception requires dismissal of her claims, saying:

requiring Andrean High School to reinstate Ginalski as principal or by punishing it for not renewing her contract would violate Andrean High School's freedom under the Religion Clauses to select its own ministers.

Probation Requirement To Stay Away From Church Is Too Broad

In People v. Saltekoff, (CA App., Nov. 30, 2016), a California appellate court reversed and remanded to the trial court a condition of probation imposed on Jonathan Saltekoff who pleaded guilty to attempted kidnapping of a 9-month old infant. The trial court had required that Saltekoff stay at least 100 yards away from Bethel Church, the church to which Saltekoff's parents belonged.  It was also the church in which the kidnapping victim's family was very active, and they did not want to have to worry about Saltekoff showing up. The appeals court said:

Here, we assume the challenged condition burdens defendant’s exercise of religion, because it bars him completely from going to his family’s church. This bar is in place regardless of whether the victim is present or not. The record supports a restriction on defendant’s occupying the same space as the victim at any given time, but it likely does not support banning defendant from his family’s church absent the victim’s presence there. Of course, the church itself may choose to place limits and restrictions on its attendees. But government restrictions on defendant’s free exercise of his religion must be narrowly tailored to support a compelling state interest.

Merkel Calls For Burqa Ban In Germany

The Los Angeles Times reports that yesterday German Chancellor Angela Merkel called for a ban in Germany on the burqa and niqab that fully cover the face of Muslim women who wear them.  In a policy speech to her party's congress, she said, "Here, we show our faces, so full veiling is not appropriate." She called for a ban to be enacted wherever it is legally possible, such as in courtrooms, public schools and universities, and at traffic stops and police checks. Focusing on the need for acceptance of German cultural norms, Merkel said:

Our law takes precedence over honor codes, tribal or family rules and over sharia law. That has to be spelled out clearly.

Britain Releases Report On Integration of Ethnic Communities

Britain's Department for Communities and Local Government yesterday released a report (full text) (Executive Summary) by Dame Louise Casey on integration and opportunity in isolated and deprived communities. It examines immigration and settlement patterns. As reported by BBC News, the report gives attention to the rapid increase in Britain's Muslim population which stands at 2.8 million-- a 72% increase from 2001 to 2011.  In its section on religion, the report says in part:

We remain an officially Christian country with our Head of State, Her Majesty the Queen, also Supreme Governor of the established Church in England, while at the 2011 Census, 59% of us described ourselves as Christian. But that figure had fallen significantly from 72% a decade earlier. And the Church of England has seen a steady decline in church attendance over the last half century, with the proportion of the population attending Sunday services now only one third of that in the 1960s.

At the same time there has been a shift away from mainstream Christian denominations and a growth in evangelical and Pentecostal churches, largely reflecting changes in ethnic diversity.

There has also been an increase in the variety of faiths being practiced. Fifty years ago, Judaism – at less than 1% of the population – was the largest non-Christian faith in the UK. Now it is the fourth largest non-Christian faith with 269,000 people identifying as Jewish in the 2011 Census behind Islam (2.8 million people), Hinduism (833,000), and Sikhism (432,000).

Congress Passes State Department Authorization Act Including Various Religious Liberty Provisions

Yesterday evening the U.S. House of Representatives passed S. 1635, the Department of State Operations Authorization and Embassy Security Act, Fiscal Year 2016 (full text). The bill, which had been passed by the Senate in April, now goes to the President for signature. The 160-page bill includes these provisions relating to religious liberty and religious discrimination:

• Section 105 calling for a report assessing the U.S.-China Dialogue, including among many other items an assessment the treatment of political dissidents, media representatives, and ethnic and religious minorities;
  
• Section 106 calling for a report which "(1) describes in detail all known widespread or systematic civil or political rights violations, including violations that may constitute crimes against humanity against ethnic, racial, or religious minorities in Burma, including the Rohingya people; and (2) provides recommendations for holding perpetrators of the violations described in paragraph (1) accountable for their actions."
  
• Section 107 appropriating $500,000 "to be used in support of efforts by American and European Jewish and other civil society organizations, focusing on youth, to combat anti-Semitism and other forms of religious, ethnic, or racial intolerance in Europe."
  
• Section 122 which expresses the sense of Congress opposing anti-Israel and anti-Semitic incitement in the Palestinian Authority.
  
• Section 131 authorizing an Interagency Atrocities Prevention Board.
  
• Section 133 authorizing a bilateral joint action plan with the European Union to combat prejudice and discrimination.
  
• Section 141 sense of Congress calling for additional sanctions against North Korea including "specific designations relating to human rights abuses."
  
• Section 215 barring racial, ethnic or religious discrimination in assignments of foreign service personnel to work in particular geographic areas.
  
• Section 223: requiring an international religious freedom training program for Foreign Service Officers be developed and implemented.

Questions On Abortion and Gay Marriage Violated Rights of Constable Candidate

In Lloyd v. Birkman, (WD TX, Dec. 2, 2016), a Texas federal district court held that members of the Williamson County (TX) Commissioners' Court violated the equal protection rights of plaintiff when, in an interview for appointment as interim County Constable, they asked him his views on same-sex marriage, abortion and religious affiliation.  The Commissioners had argued that the purpose of their questions was to determine whether the appointee was likely to be electable for a full term to the position in the next popular election. KXAN News reports on the decision.

Azerbaijan and Jewish Groups Will Hold (Competing?) Hanukkah Party At Trump's Hotel

For a number of years, the White House has hosted an annual Hanukkah party.  Yesterday's Jerusalem Post reports that this year there will apparently be competition to President Obama's scheduled Dec. 14 event.  The nation of Azerbaijan, which has developed increasing ties with Israel, has booked space for Dec. 14 at the Trump International Hotel in Washington, D.C., not far from the White House for a Hanukkah Party that will be co-hosted by the Conference of Presidents of Major Jewish Organizations. Invitations for Azerbaijan's party say it will celebrate freedom and diversity. It is not clear from press reports whether the times of the two Hanukkah parties overlap. The Conference of Presidents is made up of over 50 Jewish organizations and represents the organized Jewish community to the Executive Branch.

Victory For Sioux: Army Says Dakota Pipeline Must Find Alternative Route

In a major victory for cultural and religious rights of the  Sioux Tribe, the U.S. Army announced yesterday that will not approve an easement that would allow the proposed Dakota Access Pipeline to cross under Lake Oahe in North Dakota. The pipeline, whose original route would run only a half mile from the Standing Rock Sioux reservation, impinged on sacred tribal burial and historical sites and also created oil spill concerns by the tribe.  Alternative sites will now need to be explored. The Minneapolis Star-Tribune reports on the Army's decision as well as on the background of the dispute. In September, a federal district court had refused to enjoin construction of the pipeline. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Bruce Ledewitz, The Role of Religiously Affiliated Law Schools in the Renewal of American Democracy, (University of Massachusetts Law Review, Forthcoming).
• Mario Ricca, A Modest Proposal: An Overgrown Constitutional Path to Cultural/Religious Pluralism in Italy, (CALUMET – Intercultural Law and Humanities Review, p. 1-46, 11.9.2016).
• Aziz Z. Huq, The Uses of Religious Identity, Practice, and Dogma in 'Soft' and 'Hard' Counterterrorism, (Forthcoming in Security and Human Rights, (Liora Lazarus & Benjamin Goold, eds. Hart Pub. 2017)).
• Jeffrey A. Redding, Formal Marriage, (60 St. Louis U. L.J. 671 (2016)).
• Raphael Cohen-Almagor, Discrimination Against Jewish Women in Halacha (Jewish Law) and in Israel, (British Journal of Middle Eastern Studies, December 2016).
• Jenni Millbank, Reflecting the ‘Human Nature’ of IVF Embryos: Disappearing Women in Ethics, Law, and Fertility Practice, (J Law Biosci (2016)).
• Nqobizwe Mvelo Ngema, Polygamy Versus Equality Rights: Is Polyandry a Solution?, (OIDA International Journal of Sustainable Development, Vol. 09, No. 07, pp. 11-14, 2016).
• Mark A. Drumbl, The Kapo on Film: Tragic Perpetrators and Imperfect Victims, (Washington & Lee Legal Studies Paper No. 2016-13 (2016)).
• Adam Parachin, Charity, Politics and Neutrality, (The Charity Law & Practice Review, Volume 18, 2015).

Recent Prisoner Free Exercise Cases

In Mikell v. Sibanda, 2016 U.S. Dist. LEXIS 163345 (WD PA, Nov. 28, 2016), a Pennsylvania federal magistrate judge dismissed a Muslim inmate's complaint that he did not receive Ramadan meals in 2012 even though he was on the Ramadan list.

In Bizzell v. King County Department of Adult & Juvenile Detention, 2016 U.S. Dist. LEXIS 163639 (WD WA, Nov. 28, 2016), a Washington federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 163725, Oct. 24, 2016) and dismissed without prejudice for failing to exhaust administrative remedies a Muslim inmate's complaint that his request to attend Jum'ah services was denied, as was his request for a kufi and his request to be added to the Ramadan meal list. However the federal magistrate indicated that had plaintiff exhausted his remedies the court would have found the denials of Ramadan meals under an all or none policy and denial of a kufi to violate RLUIPA.

In Hamrick v. Baird, 2016 U.S. Dist. LEXIS 164426 (SD IL, Nov. 29, 2016), an Illinois federal district court allowed an inmate to proceed with his claims that his free exercise, RFRA and equal protection rights were infringed by a policy that barred Muslim inmates from participating in group prayer or group religious activity.

In Salik v. Illinois Department of Corrections, 2016 U.S. Dist. LEXIS 166242 (SD IL, Dec. 1, 2016), an Illinois federal district court permitted a Muslim inmate to move ahead against some of the defendants on his complaint that he was removed from the Ramadan meal list for refusing to attend chapel services; and that he was initially denied a halal diet and then was placed on a diet more restrictive that his religion required.

In Ferguson-El v. Horton, 2016 U.S. Dist. LEXIS 166244 (WD VA, Nov. 30, 2016), a Virginia federal district court dismissed an inmate's complaint that he was threatened with segregation for teaching Sovereign Citizen ideology as part of a meeting for Moorish Science Temple of America adherents.

In Bennett v. Burt, 2016 U.S. Dist. LEXIS 166452 (WD MI, Dec. 2, 2016), a Michigan federal district court dismissed an inmate's complaint that he lost 4 days work until he was transferred from a work assignment that would have required him to work on Saturday (his Sabbath) to another assignment.

In Winnett v. Bray, 2016 U.S. Dist. LEXIS 166560 (ED AR, Dec. 2, 2106), an Arkansas federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 166666, Nov. 18, 2016) and allowed an inmate to move ahead on his complaint that he was denied Sabbath meals prepared in compliance with the requirements of his religion.

In Arendas v. Mesa County, 2016 U.S. Dist. LEXIS 166732 (D CO, Nov. 29, 2016), a Colorado federal magistrate judge recommended dismissing an action by an inmate seeking an injunction and $1 million in damages who contended the requirement that he wear an identification wrist band violates his Catholic religious belief that he may not wear a non-medically related unremovable item on his body.

In Etterson v. Newcome, 2016 U.S. Dist. LEXIS 166986 (ED VA, Dec. 1, 2016), a Virginia federal district court dismissed without prejudice for failure to exhaust administrative remedies a Muslim inmate's complaint that he was removed from the list for Ramadan meals after he was observed eating during the fast.

Britain's Equality Commission Publishes New Study On Religion In the Workplace

On Friday, Britain's Equality and Human Rights Commission announced the publication of a lengthy new study titled Religion or Belief: Is the Law Working?. The report focuses on four questions: Is the legal approach to defining a religion or a belief effective? Are the Equality Act exceptions allowing religion or belief requirements to influence employment decisions sufficient and appropriate? Does the law sufficiently protect employees wishing to manifest a religion or
belief at work? Does the law sufficiently protect service users and service providers in relation to religion or belief? The Commission also published an updated Guide for employers to religion and belief in the workplace.  Law & Religion UK has more on the Commission's conclusions.

Satanic Temple Will Challenge Texas' New Fetal Remains Rules

As reported yesterday by Jezebel, the Satanic Temple says that it plans to challenge Texas' new rules requiring burial or cremation of fetal remains as a violation of its members' rights under the Texas Religious Freedom Restoration Act.  A spokesman for Satanic Temple said:

Texas health officials are baldly imposing the view that the fetal tissue is elevated to personhood—a religious opinion that conflicts with our own. If Texas is going to treat the disposal of fetal tissue differently from the disposal of any other biological material, in contradiction to our own religious beliefs, they need to present a compelling state interest for doing so. Of course, there is no such state interest, and it’s perfectly clear the demand for fetal tissue burial is a punitive measure imposed by sadistic theocrats. It’s clear these officials deem harassment an acceptable form of pushing their misguided religious agendas.

The organization plans to file for an injunction as soon as the state attempts to apply the new rules to one of its members. [Thanks to Scott Mange for the lead.]