Christian Leaders Close Church of Holy Sepulcher In Protest of Israeli Tax and Land Policies

Greek Orthodox, Roman Catholic and Armenian church leaders have closed the Church of the Holy Sepulcher (believed to be the site of Jesus' crucifixion and burial) in Jerusalem in protest of two legal moves by Israeli government officials. YNet News today describes the disputed actions:

As part of a battle with Finance Ministry over budgets to the capital, the Jerusalem Municipality informed the Finance, Interior and Foreign ministry and the Prime Minister's Office that it had started collecting property tax debts of more than NIS 650 million from some 887 properties across the city which belong to churches and United Nations institutions.

Municipality officials said these properties did not include houses of worship, which are exempt from paying property taxes by law, but rather properties used for non-prayer activities, including commercial activities.

Churches are exempt from paying property taxes as part of an agreement with the state, but the Jerusalem Municipality says it is not being compensated by the state for the money it is losing by not collecting these taxes.

Later on Sunday, an Israeli cabinet committee is due to consider a bill that would allow the state to expropriate land in Jerusalem sold by churches to private real estate firms in recent years.

The stated aim of the bill is to protect homeowners against the possibility that private companies will not extend their leases. The churches, major landowners in the city, say such a law would make it harder for them to find buyers for their land.

A statement from church leaders calls the moves a "systematic and unprecedented attack against Christians in the Holy Land."

State Appeals Court Rejects Religious Defense By B&B That Rejected Lesbian Couple

In Cervelli v. Aloha Bed & Breakfast, (HI App., Feb. 23, 2018), a Hawaii sate appeals court held that a 3-room bed & breakfast violated the state's public accommodation law when the B&B owner refused on religious grounds to accept a room reservation from a lesbian couple.  The law prohibits discrimination on the basis of sexual orientation. The court held that an exemption in a separate housing discrimination statute for small rooming houses does not apply to the public accommodation law.  The court also rejected defendant's state and federal constitutional privacy and free exercise defenses, finding that the state has a compelling interest in prohibiting discrimination in public accommodations.  Hawaii News Now reports on the decision.

Court Says Enforcing Contraceptive Mandate Against Christian College Violates RFRA

Last October, the Trump Administration issued Interim Final Rules that expanded exemptions from the Affordable Care Act contraceptive coverage mandate for organizations, colleges and businesses that have religious or moral objections to furnishing coverage for employees (or enrolled students), as well as for employees who object to having such coverage. (See prior posting.)  Shortly thereafter, the government entered settlement agreements in at least 13 cases conceding that the mandate imposes a substantial burden on plaintiffs’ exercise of religion and, thus, cannot be legally enforced against them under RFRA. (See prior posting).  In December, two separate federal district courts issued nationwide preliminary injunctions against enforcement of the Trump Administration's expanded exemptions. (See prior postings 1, 2).

Now this week in Wheaton College v. Azar, (ND IL, Feb. 22, 2018),  an Illinois federal district court granted Wheaton College a permanent injunction barring enforcement against it of the contraceptive coverage mandate to the extent that the mandate violates Wheaton College's conscience.  Wheaton is a Christian liberal arts college.  The court's decision came after the government conceded that enforcement of the mandate against the college would violate the Religious Freedom Restoration Act. Becket issued a press release announcing the decision.

Christian Group Challenges College's Speech Zone Policy

A lawsuit was filed this week in a Georgia federal district court by a Christian apologetics club against administrators of Kennesaw State University challenging the school's speech zone policy.  The complaint (full text) in Ratio Christi of Kennesaw State University v. Olens, (ND GA, filed 2/20/2018) complains that the school would not allow the group to set up a pro-life display on the Campus Green.  Instead it limited the display to a small area set aside as a "speech zone." The suit alleges in part:

Defendants prohibit individual students from reserving space on campus and require registered student organizations (“RSO”) to submit reservation requests between three and thirty days in advance.... These policies give KSU officials unbridled discretion, both over whether to grant, deny, or modify an RSO’s reservation request and over whether and how much to charge in security fees, and they quarantine any expressive activities KSU officials deem “controversial” to the small, less accessible “speech zone.”

ADF issued a press release announcing the filing of the lawsuit.

College Coach Sues Alleging He Was Not Hired Because of His Jewish Heritage

A Title VII lawsuit was filed in Louisiana federal district court this week by a former assistant football coach at the Baptist-affiliated Louisiana College.  Plaintiff Joshua Bonadona, whose mother is Jewish, was raised in the Jewish religion.  He converted to Christianity while a student at Louisiana College, and was employed as an assistant football coach there for two years after he graduated.  He then went to Southeast Missouri State University for graduate work combined with a coaching position.  Two years after that he applied for an Assistant Coach opening that had arisen back at Louisiana College.  The complaint (full text) in Bonadona v. Louisiana College,  (WD LA, filed 2/21/2018), alleges that Bonadona received assurances from Louisiana College's head coach that he would be hired for the position.  In reliance on that he resigned his Southeast Missouri position.  However Louisiana College president, Dr. Rick Brewer, vetoed the hiring because of Bonadona's "Jewish blood." The lawsuit contends:

People of Jewish heritage are protected as a distinct race under Title VII of the Civil Rights Act of 1964.  Sharre Tefila Congregation v. Cobb, 481 U.S. 615 (1987).  As such, employment discrimination against an individual based upon his Jewish ethnic heritage is prohibited under 42 U.S.C. 2000e-2.

Yahoo Sports and the Bayou Brief report on the lawsuit.

UPDATE: Louisiana College issued a statement denying allegations in the lawsuit.

Americans United Names New Executive Director

Americans United for Separation of Church and State announced yesterday that  Rachel K. Laser has been appointed its new Executive Director.  Laser has had extensive experience in non-profit advocacy, having worked for Planned Parenthood, the National Women’s Law Center, Third Way and the Religious Action Center of Reform Judaism.  She succeeds Rev. Barry W. Lynn who retired last year after 25 years as AU's leader. Washington Post carries an extensive article on Laser's appointment. [Thanks to Michael Lieberman for the lead.]

Supreme Court Defines Prisoner Contributions To Attorney Fee Awards

The U.S. Supreme Court yesterday in Murphy v. Smith, (Sup. Ct., Feb. 21, 2018), in a 5-4 decision, decided on the proper interpretation of a statutory provision relating to award of attorneys' fees in damage actions by prisoners, including actions alleging a violation of an inmate's First Amendment free exercise rights.  At issue is the provision in 42 USC § 1997e(d) relating to the amount an inmate must contribute out of his or her recovery toward attorneys' fees when the inmate has been awarded such fees.  The majority, in an opinion by Justice Gorsuch, held that the statutory reference to the inmate's contribution of up to 25% of the monetary judgment toward satisfying the award does not give the trial court discretion to require less than 25%.  Justice Sotomayor, joined by Justices Ginsberg, Breyer and Kagan, dissented arguing that the statute permits the exercise of discretion in determining the percentage (up to 25%) of a judgment that must be applied toward an attorneys' fee award.

Rev. Billy Graham Dies At Age 99

The New York Times chronicling his life, reports this morning:

The Rev. Billy Graham, a North Carolina farmer’s son who preached to millions in stadium events he called crusades, becoming a pastor to presidents and the nation’s best-known Christian evangelist for more than 60 years, died on Wednesday at his home. He was 99.

Suit Challenges Ban On Lesbian Foster Parents In Federally Funded Refugee Program

A lawsuit was filed yesterday against the federal government and the U.S. Conference of Catholic Bishops challenging discrimination against same-sex couples in administration of the Unaccompanied Refugee Minor Program and the Unaccompanied Alien Children Program. The complaint (full text) in Marouf v. Azar, (D DC, filed 2/20/2018), alleges that various federal agencies use taxpayer funds to finance grants to the USCCB to implement these programs based on impermissible religious criteria.  Plaintiffs, a lesbian couple, were told by Catholic Charities of Fort Worth, a sub-grantee of USCCB, that they did not qualify to become foster parents of an unaccompanied refugee child. An official of the organization told them that foster parents must "mirror the holy family."  The complaint alleges in part:

By working to ensure that none of the children for which they are responsible are placed in homes of same-sex spouses based on USCCB’s religious beliefs, USCCB and its sub-grantees not only discriminate against same-sex spouses, but also effectively erase the non-Catholic identities and beliefs of many of the unaccompanied refugee children for which they are responsible. This conduct potentially increases those children’s alienation and vulnerability, while denying them access to loving homes that could serve them best—all at federal taxpayers’ expense.

Lambda Legal issued a press release announcing the filing of the lawsuit. Washington Post reports on the filing of the suit.

Injunction Against Serving As Temple Director Upheld

In Sikh Temple Turlock, California v. Chahal, (CA App, Feb 20, 2018), a California state appeals court upheld the trial court's resolution of a governance dispute between two factions in a Sikh Temple.  As described by the court:

Following a bench trial, the [trial] court found the election of the First Board was valid. The court further concluded the April 2013 election did not occur and that appellants took control of the Temple by usurpation. Accordingly, the trial court reinstated the First Board and ordered that a judicially supervised election take place. The court also enjoined five of the appellants from serving as officers or directors of the Temple for five years.

The appeals court rejected challenges to the trial court's decision, including a a free exercise challenge to the 5-year injunction.  The court said in part:

 Appellants submitted evidence that a Sikh has a general obligation to perform selfless service. However, there was no testimony that serving on the board is itself a religious act, constitutes a religious practice, or is required to satisfy the seva obligation. In fact, the evidence suggests otherwise.... Thus, appellants’ claim that the ban infringes on the free exercise of their religion has no support in the record.

Christmas As Legal Holiday Does Not Violate County Employee's Rights

In Edelstein v. Stephens, (SD OH, Feb. 16, 2018), a Ohio federal magistrate judge recommended dismissing many of the claims of a state court staff attorney/magistrate who was fired after she requested eight days off for Jewish holidays. One of plaintiff's claims was that the county violated her free exercise and equal protection rights by designating Christmas as a legal holiday without similarly protecting the rights of non-Christians to celebrate their holidays.  The court said in part:

Butler County's policy establishing Christmas as a paid legal holiday for county employees is a neutral law that does not discriminate against a particular religion or set of religious beliefs or prohibit any conduct because it is undertaken for religious reasons.... The Sixth Circuit has acknowledged that because there are "legitimate secular purposes for establishing Christmas as a legal public holiday," it follows that the establishment of Christmas day as a legal public holiday neither violates an individual's fundamental rights nor discriminates against her based on her religion.

The Butler County Journal-News reports on the decision.

"Parody Marriage" Bills Are Newest Attempt To Challenge To Same-Sex Marriage

A bill titled Marriage and Constitution Restoration Act (H 4949) was introduced into the South Carolina legislature last week (Feb. 15). A similar bill with the same title (HB 0167) was received for introduction in the Wyoming legislature on Feb. 14.  Taking a new approach to challenging same-sex marriage, the bills define marriage that does not involve one man and one woman as "parody marriage."  The bills then declare that parody marriages, as well as treating sexual orientation as a suspect class, violate the Establishment Clause because they are part of the religion of Secular Humanism.  They declare, on the other hand, that marriages between one man and one woman are secular because they arise "out of the nature of things" and are "natural, neutral and noncontroversial."   According to the Charleston City Paper, the bills in both states were written with the advice of Chris Sevier. Sevier has gained notice by filing lawsuits seeking to have his marriage to his computer recognized--- suits filed in an attempt to discredit non-traditional marriages. (See prior posting.)

Recent Articles and Book of Interest

From SSRN:

• Jeremy Patrick, 'A La Carte' Spirituality and the Future of Freedom of Religion, (January 31, 2018).
• Rafael Domingo, Penal Law in the Roman Catholic Church, (Ecclesiastical Law Journal 20 (2018), Forthcoming).
• Nelson Tebbe, Conscience and Equality, (Journal of Civil Rights and Economic Development (2018 Forthcoming)).
• Andrew P. Cicero, III, Is It Well with Your Soul? The Surprising Divide within the Baptist Community Concerning Trinity Lutheran Church of Columbia, Inc. v. Comer, (February 1, 2018).
• Ryan T. Anderson, Marriage, the Court, and the Future, (Harvard Journal of Law and Public Policy, Vol. 40, No. 2, 2017).
• Courtney G. Joslin, Discrimination In and Out of Marriage, (98 Boston University Law Review 1 (2018)).
• Emily Warwick, Title IX, Tax-Exemption, and Transgender Students: Using Federal Guidelines to Determine the Tax-Exempt Status of Single-Sex Institutions, (January 31, 2018).

From SSRN (Law of charities):

• Natalie Silver, Regulating the Foreign Activities of Charities: A Comparative Perspective, (Report for the Pemsel Case Foundation, 2017).
• Brian D. Galle, Design and Implementation of a Charitable Regulation Regime, (January 28, 2018).
• Paul B. Miller, The Identification of Fiduciary Relationships, (Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff, eds., The Oxford Handbook of Fiduciary Law (New York: Oxford University Press, 2018)).

From SSRN (European law):

• Evina Heydari, A Post-Secular Europe? – A Critical Discourse Analysis of European Rulings Regarding Religious Symbols in the Public Sphere, (November 18, 2017).
• Natalie Alkiviadou, Regulating Hate Speech in the EU, (Online Hate Speech in the European Union. A Discourse-Analytic Perspective. Springer briefs in Linguistics (2017)).

From SSRN (Islam and Islamic Law):

• Fajri Muhammadin, Should Muslims Argue Exceptionalism/Particularism in International Law?, (February 8, 2018).
• Marco Longobardo, The Self-Proclaimed Statehood of the Islamic State between 2014 and 2017 and International Law, ((2017) 33 Anuario español de derecho internacional 205-228).
• Ending Solehudin, The System Zakat Reform of Management and the Zakat in Indonesia (A Study of the Fatwa of Islamic Organization Persis and MUI on the Management of Zakat), (International Journal of Financial Management (IJFM), Vol. 7, Issue 1, Dec – Jan 2018, 1-20).
• Reza Banakar, Double-Thinking and Contradictory Arrangements in Iranian Law and Society, (Digest of Middle East Studies, Forthcoming).

From SmartCILP:

• Douglas Laycock, Churches, Playgrounds, Government Dollars -- and Schools? 131 Harvard Law Review 133-169 (2017).
• Stacey A. Tovino, On Health, Law, and Religion, 74 Washington & Lee Law Review 1623-1691 (2017).

Recent Book:

• Monroe Price & Nicole Stremlau (eds.), Speech and Society in Turbulent Times: Freedom of Expression in Comparative Perspective, (Cambridge Univ. Press, Dec. 2017).

Mother Held In Contempt For Ignoring Custody Order Giving Father Control of Religious Decisions

The Charlotte Observer last week reported that a North Carolina state Superior Court judge has upheld a contempt conviction of 36-year old Kendra Stocks for disobeying a court order regarding custody of her daughter. One day after a district court judge gave full custody, specifically including decisions concerning religion, of Stocks' 3-year old daughter to the child's father, Stocks went ahead with a previously-planned baptism of the child. She did not inform the father of the planned ceremony; he learned of it through Stocks' Facebook postings. The Superior Court reduced Stocks contempt sentence from ten to seven days. [Thanks to Scott Mange for the lead.]

Recent Prisoner Free Exercise Cases

In Mikell v. Folino, (3d Cir., Feb. 13, 2018), the 3rd Circuit affirmed the dismissal of an inmate's complaint that he did not receive Ramadan meals.

In Corbett v. Annucci, 2018 U.S. Dist. LEXIS 24291 (SD NY, Feb. 13, 2018), a New York federal district court allowed an inmate to move ahead with claims for injunctive relief alleging that he did not receive Halal meals.

In Jones v. Annucci, 2018 U.S. Dist. LEXIS 24359 (SD NY, Feb. 13, 2018), a New York federal district court dismissed an inmate's complaint that he was required to change his religious registration from Islam to Shia before he could participate in Shia religious events.

In Thomas v. Slusher, 2018 U.S. Dist. LEXIS 25916 (ND OH, Feb. 16, 2018), an Ohio federal district court dismissed an inmate's complaint that he was transferred out of the faith-based prison unit.

In Woods v. Paramo, 2018 U.S. Dist. LEXIS 25989 (SD CA, Feb. 15, 2018), a California federal court allowed an inmate to move ahead with his suit challenging delays in providing a kosher diet when he is transferred for extensive periods.

No Free Exercise Defense To Charge of Attending Cockfight

In United States v. Cruz, (SD NY, Feb. 15, 2018), a New York federal magistrate judge rejected a Free Exercise defense to a charge of knowingly attending a cockfight in violation of 7 USC §2156.  The court said in part:

Here, Cruz has failed to make a showing that the act of engaging in animal fighting ventures stems from sincerely held beliefs that are religious in nature. Although Cruz continually refers to the “God given” dominion of man over animals, he does not identify any specific religious tenets or practices that are burdened by the statute. Nor does he identify any religion or denomination from which his beliefs derive. Indeed, in “attest[ing] to the importance of the God given rights of the American farmer,” Cruz cites quotations in which the founding fathers, including Thomas Jefferson, John Adams, James Madison, and Benjamin Franklin, exalted agriculture.... This suggests that Cruz’s beliefs are philosophical or political in nature.

Ohio Court Gives Custody of Transgender Teen To Grandparents

CNN reports that an Ohio trial court judge today gave custody of a 17-year old transgender male to his grandparents after his parents sought to bar the hormonal transition treatment strongly recommended by the youth's medical team.  Grandparents will now be able to make medical decisions for the teen.  The parents argued that the teen was not old enough to make such a consequential decision.  A county prosecutor contended that the parents objected because of their religious beliefs. Court testimony revealed that the parents, in addition to opposing treatment, refused to call the youth by his chosen name, triggering suicidal feelings in him.

EEOC Sues Over Accommodation For Religious Objection To Flu Vaccine

The EEOC announced this week that it has filed a religious discrimination lawsuit against the Owossso, Michigan based Memorial Healthcare.  The company revoked its job offer to Yvonne Bair to work as a medical transcriptionist after she objected on religious grounds to receiving an influenza shot or spray immunization.  Memorial refused her suggested accommodation of allowing her to wear a mask, even though company policy allowed masks as an alternative for those who cannot take a vaccine for other reasons.  MarketWatch reports on the lawsuit.

4th Circuit En Banc Says Trump's Third Travel Ban Violates Establishment Clause

The U.S. 4th Circuit Court of Appeals en banc today, in opinions spanning 285 pages, affirmed a Maryland federal district court's grant of a preliminary injunction against the Proclamation setting out the third version of President Trump's travel ban.  In International Refugee Assistance Project v. Trump, (4th Cir. en banc, Feb. 15, 2018), the court by a vote of 9-4 held that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.  Chief Judge Gregory's majority opinion said in part:

[H]ere the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.....

While the majority ultimately concluded that it would not rely on President Trump's pre-election statements in reaching its conclusion, it nevertheless indicated that it would have been permissible to do so:

Perhaps in implicit recognition of the rawness of the religious animus in the President’s pre-election statements, the Government urges us to disregard them. This is a difficult argument to make given that the President and his advisors have repeatedly relied on these pre-election statements to explain the President’s post-election actions related to the travel ban....  [I]n McCreary, the Supreme Court reminded us that “the world is not made brand new every morning.” .... Because “reasonable observers have reasonable memories,” these statements certainly provide relevant context when examining the purpose of the Proclamation.

The majority concluded:

In sum, the face of the Proclamation, read in the context of President Trump’s official statements, fails to demonstrate a primarily secular purpose. To the objective observer, the Proclamation continues to exhibit a primarily religious anti-Muslim objective. Our constitutional system creates a strong presumption of legitimacy for presidential action and we often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on “religious animosity.”

Six of the judges would have also found a likelihood of success on at least some of plaintiffs' statutory challenges to the Proclamation. Four concurring opinions and two dissenting opinions were also filed. Pursuant to an earlier U.S. Supreme Court order, the court stayed the injunction pending a petition for certiorari to the Supreme Court. Richmond Times-Dispatch reports on today's decision.

NY Governor Issues Executive Order Barring State Contracts With Entities That Fail To Address Discrimination

Earlier this month (Feb. 3), New York Governor Andrew Cuomo issued an Executive Order (full text)  directing all state agencies and departments to amend their procurement procedures to prevent entering into contracts "with entities that have institutional policies or practices that fail to address the harassment and discrimination of individuals on the basis of their age, race, creed, color, national origin, sexual orientation, gender identity, military status, sex, marital status, disability, or other protected basis."  State departments and agencies must include non-discrimination provisions in all contracts for goods, services, technology or construction.  In a press release announcing the Executive Order, the governor's office said in part:

The Trump administration has banned transgender people from serving in the U.S. Military, removed guidance nationwide that helped protect young transgender students at school, and completely removed the LGBTQ community from the National Survey of Older Americans. Additionally, in October 2017, the federal government rescinded a contraceptive coverage mandate under the Affordable Car Act. This action has permitted employers and organizations to claim broad exemptions from nondiscrimination laws, which has increased the vulnerability of LGBTQ rights.

Following these actions, which perpetuate and tolerate discrimination and taken this nation in the wrong direction, New York is once again stepping up to ensure the rights of individuals across the state are protected.

The Director of Public Policy of the Archdiocese of New York strongly criticized the new Executive Order, saying in part:

the target of this new action is the very existence of religious agencies, and the intent is to suppress any deviation from the new orthodoxy of gender and sexual ideology.

LifeSite News reports further on these developments.