In 6th Circuit: Christian School Loses RLUIPA Equal Terms Challenge

In Tree of Life Christian Schools v. City of Upper Arlington, Ohio, (6th Cir., Sept. 18, 2018), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that a private Christian school had failed to establish a prima facie case under the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act.  At issue was the prohibition in Upper Arlington's zoning master plan of the operation of schools-- both secular and religious-- in the area zoned as an office and research center district.  The majority held that the ordinance is "no more onerous to Tree of Life than it is to nonreligious entities that generate comparably small amounts of revenue for the City."  Judge Thapar dissented, arguing that the majority was incorrect in holding that comparator institutions under RLUIPA's equal terms provision must be "similarly situated" in regard to legitimate zoning criteria. Columbus Dispatch reports on the decision. [Thanks to Tom Rutledge for the lead.]

President Sends Yom Kippur Greetings

The Jewish holy day of Yom Kippur begins this evening.  President Trump issued a Presidential Message (full text) today sending greetings to all Jewish people, saying in part:

Melania and I pray that you are all inscribed in the Book of Life and hope this period of reflection and repentance leads to a deeper relationship with God. 

Cert. Petition Filed In Case On Cross In Public Park

A petition for certiorari was filed with the U.S. Supreme Court yesterday in City of Pensacola, Florida v. Kondrat'yev. In the case a 3-judge panel of the 11th Circuit Court of Appeals, feeling bound by prior 11th Circuit and Supreme Court precedent, affirmed a Florida district court's Establishment Clause decision ordering Pensacola to remove a 34-foot Latin cross from a public park. (See prior posting). Becket issued a press release announcing the filing of the petition for review.

European Court Says Hijab Must Be Allowed In Courtroom

In Lachiri v. Belgium, (ECHR, Sept. 18, 2018) (full text in French), the European court of Human Rights in a Chamber Judgment held that a Belgian court's excluding an ordinary citizen-- not a state employee-- from the courtroom because she refused to remove her hijab infringed her right to freedom of religion guaranteed by Art. 9 of the European Convention on Human Rights. One member of the 7 judge panel dissented and two judges filed a concurring opinion.  A press release from the Court in English provides more details. [Thanks to Paul de Mello Jr. for the lead.]

Mahwah Settles New Jersey;'s Suit Against It Over Anti-Jewish Ordinances

A settlement agreement (full text) was reached yesterday in Grewal v. Towship of Mahwah. (D NJ).  In the case, New Jersey's attorney general charged the Town of Mahwah with religious discrimination aimed at preventing an influx of Orthodox Jews.  In particular, the suit pointed to an ordinance banning out-of-state residents from using public parks, and another aimed at preventing the construction of eruvs. (See prior posting.) The settlement acknowledges repeal of the parks ordinance and affirms the right of residents to build eruvs in the township. $350,000 in penalties and attorneys' fees were suspended so long as terms of the settlement are not violated in the next four years. Various record keeping and reporting requirements are also included in the settlement. NJ.com reports on the settlement. [Thanks to Steven H. Sholk for the lead.]

Suit Seeks More Information On Clergy Abuse In Pennsylvania

Yesterday a class action lawsuit was filed in a Pennsylvania state trial court alleging that eight Pennsylvania Catholic dioceses continue to cover up sexual abuse by priests despite the recent Pennsylvania grand jury report on clergy abuse. The suit was brought on behalf of victims of clergy sexual abuse and children currently enrolled in Catholic schools. The lawsuit seeks injunctive relief ordering dioceses to release all information in their possession regarding predatory priests, including the names of predatory priests that were redacted from the grand jury report. AP and York Daily Record report on the lawsuit.

In a related report, yesterday the Pittsburgh Post-Gazette published a background story on Daniel Dye, the state Attorney General's prosecutor who led the grand jury investigation of abuse by Catholic clergy.  The paper says that since the release of the grand jury report, the Attorney General's office has received 1,000 calls from people reporting abuse.

Recent Articles of Interest

From SSRN:

• Kyle Fields, Tohono O'odham Legal Systems, (August 1, 2018).
• Shahbaz Ahmad Cheema, Indigenization of Restitution of Conjugal Rights in Pakistan: A Plea for its Abolition, (August 28, 2018).
• Stephen M. Bainbridge, Restoring Confidence in the Roman Catholic Church: Corporate Governance Analogies, (UCLA School of Law, Public Law Research Paper No. 18-32 (2018).
• Amanda Shanor, First Amendment Coverage, (93 New York University Law Review 318 (2018)).
• Steven Douglas Smith, 'Fixed Star' or Twin Star? the Ambiguity of Barnette, (San Diego Legal Studies Paper No. 18-363 (2018)).
• Serena Mayeri, Intersectionality and the Constitution of Family Status, (Constitutional Commentary, Vol. 32, Pg. 377, 2017).
• Lisa Chiyemi Ikemoto, Reproductive Rights and Justice: A Multiple Feminist Theories Account, (in Research Handbook on Feminist Jurisprudence (Robin West and Cynthia Bowman eds., Elgar Press, Forthcoming).
• Shannon Gilreath, A Comprehensive Rethinking of Equal Protection Post-Obergefell: A Plea for Substantivity in Law, (Wake Forest Univ. Legal Studies Paper (2018)).
• Shahbaz Ahmad Cheema, Revisiting Abdul Kadir v Salima: Locus Classicus on Civil Nature of Marriage?, (August 01, 2018).
• Avishai Benish, Dana Halevy & Shimon Spiro, Regulating Social Welfare Services: Between Compliance and Learning, (Forthcoming in International Journal of Social Welfare).

From SSRN (Legal issues relating to sexual orientation and religion):

• John G. Culhane, The Right to Say, But Not to Do: Balancing First Amendment Freedom of Expression with the Anti-Discrimination Imperative, (Widener Law Review, Vol. 24, 2018).
• Robert Leckey, Religion and Same-Sex Marriage, (In David Koussens, Benjamin Prud’homme & Safa Ben Saad (eds), La religion en droit de la famille: Le religieux comme variable de prise de décision dans un droit familial laïcisé [2019 Forthcoming]).
• Nausica Palazzo, The Strange Pairing: Building Alliances between Queer Activists and Conservative Groups to Recognize New Families, )Michigan Journal of Gender & Law, Vol. 25, No. 2, Fall 2018, Forthcoming).
• Thomas C. Berg, Masterpiece Cakeshop: A Romer for Religious Objectors?, (2017 Cato Supreme Court Review 139).
• Jordan Blair Woods, Religious Exemptions and LGBTQ Child Welfare, (Minnesota Law Review, Vol. 103 (May 2019, Forthcoming)).
• Robert C. Blitt, Leveraging Regional Human Rights Mechanisms Against Universal Human Rights: The OIC Independent Permanent Human Rights Commission Study on Sexual Orientation, (William & Mary Law Review Online, Vol. 60(1) 2018).
• Steven Douglas Smith, Obergefell and the Reconstituting of America, (San Diego Legal Studies Paper No. 18-364 (2018)).
• Justin O'Neill, The Queer Case of the LGBT Movement, (41 University of Hawaii Law Review (2019 Forthcoming)).

From SmartCILP:

• Ziaulrahman Mushkalamzai, Justifications for the Three-Tiered Judicial System in Afghanistan: Comparative Perspectives on Islamic Jurisprudence, 48 California Western International Law Journal 85-121 (2017).
• Faraz Siddiqui & Aleea Stanton, Blocking the Means to Exploit: Ending Kafala Under the Principle of Sadd al-Dhara'i, [Abstract], 61 Howard Law Journal 341-368 (2018).
• Nicole B. Godfrey, Holding Federal Prison Officials Accountable: The Case for Recognizing a Damages Remedy for Federal Prisoners' Free Exercise Claims, 96 Nebraska Law Review 924-976 (2018).
• JD Hsin, Defending the Public's Forum: Theory and Doctrine In the Problem of Provocative Speech, 69 Hastings Law Journal 1099-1145 (2018).

Recent Prisoner Free Exercise Cases

In Ackerman v. Washington, 2018 U.S. Dist. LEXIS 151742 (ED MI, Sept. 6, 2018), a Michigan federal district court reinstated Orthodox Jewish inmates claim that providing a vegan diet instead of a kosher diet imposes a substantial burden on the sincere religious beliefs that plaintiffs must eat meat on the Sabbath and Jewish holidays and dairy on Shavuot.

In Luther v. White, 2018 U.S. Dist. LEXIS 151896 (W KY, Sept. 6, 2018), a Kentucky federal district court allowed a Rastafarian inmate to supplement his prior complaint by adding a claim that he was denied the right to purchase and use incense.

In Ritter v. Davis, 2018 U.S. Dist. LEXIS 152028 (ND OH, Sept. 6, 2018), an Ohio federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 152036, Aug. 20, 2018) and refused to dismiss a Jewish inmate's complaint that his request for kosher meals was denied.

In Pleasant-Bey v. Luttrell, 2018 U.S. Dist. LEXIS 152864 (WD TN, Sept. 7, 2018), a Tennessee federal district court dismissed a Muslim inmate's challenges to the prison's limitations on Jumu'ah services, food service policies regarding Ramadan, and its policies regarding the hiring of an imam.

In Soriano v. Spearman, 2018 U.S. Dist. LEXIS 153187 (ED CA, Sept. 6, 2018), a California federal magistrate judge recommended allowing a Muslim inmate to move ahead with his complaint that Muslim inmates, unlike others, were not allowed to perform their prayers in the chapel, requiring them to pray outside in extreme weather conditions.

In Harvey v. Baker, 2018 U.S. Dist. LEXIS 153802 (WD VA, Sept. 10, 2018), a Virginia federal district court allowed an inmate to move ahead with his free exercise claim for damages for denial of a pork-free diet that conformed to his Sunni Muslim beliefs.

In Burroughs v. Mitchell, 2018 U.S. Dist. LEXIS 153808 (ND NY, Sept. 6, 2018), a New York federal district court, sorting through a wide-ranging complaint, dismissed an inmate's complaint that on one occasion defendants refused to provide a Koran, prayer rug, Kufi, and Ramadan meal, but allowed him to move ahead with his claim that one defendant refused to provide him with his religious items in retaliation for his refusal to respond to questions about two other inmates' escape.

In Dent v. Dennison, 2018 U.S. Dist. LEXIS 153950 (SD IL, Sept.10, 2018), an Illinois federal district court rejected a magistrate's recommendation (2018 U.S. Dist. LEXIS 153946, July 13, 2018) and refused to require prison authorities to allow an inmate to attend both Catholic and Protestant religious services.

Appeals Court Remands Employment Discrimination Claim Against NJ Corrections Department

In Roseus v. State of New Jersey, (NJ App., Sept. 10, 2018), a New Jersey state appeals court remanded to the trial court a suit in which plaintiff claimed the Department of Corrections (DOC) violated the state's Law Against Discrimination when it dismissed him from a training program for corrections officers. DOC refused to grant  Marven Roseus, who for religious reasons does not shave his face or head, a religious accommodation to depart from the Department's grooming rules. The appeals court held:

[D]efendants moved for dismissal... Consequently, there is no record.... [W]e do not have a record of the DOC's actual grooming policy, the rationale for that policy, whether the DOC has granted accommodations to others from its grooming policy, whether the DOC engaged in a "bona fide effort" to accommodate plaintiff, and whether an accommodation to plaintiff would impose an "undue hardship" on the DOC. 

Muslim Inmate Wins $25,000 Damages Against Correctional Officer

In an unusual success for a prisoner case, a Nevada judge has awarded $15,000 in compensatory damages and $10,000 in punitive damages against a prison correctional officer in a suit by a Muslim inmate.  In Howard v. Foster, 2018 U.S. Dist. LEXIS 151629 (D NV, Sept. 6, 2018), the court described the correctional officer's conduct:

On the morning of August 19, 2012, somewhere between 40 and 60 Muslim inmates were holding Eid prayer services in the SDCC gymnasium....  The room was quiet enough for the individual leading the prayer to be heard by the other prayer participants.

During the prayer service, however, [correctional officer] Dicus began talking loudly enough for Howard and other prayer participants to hear. At first, Dicus asked the other officers why the inmates were in the gymnasium for prayer services. Then, Dicus began cursing and disparaging Muslims.... Dicus stated that he hoped Muslims would die....

Howard heard Diggle warn Dicus that the Muslim inmates would file grievances regarding his statements. Dicus responded, "Mother fucker grievance. . . . . I kill[ ] Muslims, you know. . . . They need to get their ass up out of here. What the hell we allowing them to be down there doing whatever they doing?"...

Dicus' outburst began very early on in the Eid prayer service and made the service unbearable to the participants. Because Dicus' comments were so disruptive, the Muslim inmates were not able to complete the  Eid prayer service, and they did not have the Eid feast that they had planned to share in after prayer.

Court Refuses To Dismiss Challenge To Michigan's Protection of Catholic Adoption Agencies

In an important decision, a Michigan federal district court in Dumont v. Lyon, (ED MI, Sept. 14, 2018), held that same-sex couples can move ahead with their Establishment Clause and equal protection claims against the Michigan Department of Health and Human Services for permitting child placing agencies that contract with the state and receive state funds to use religious criteria to refuse to place children with same-sex couples.  Laws enacted by the Michigan legislature in 2015 protect child-placing agencies from being required to provide adoption or foster care placements that conflict with their sincerely held religious beliefs, or being penalized for doing so. (See prior posting.)

In a 93-page opinion, the court first concludes that plaintiffs have Article III (but not taxpayer) standing to bring their challenges. Then, denying defendants' motion to dismiss, the court says in part:

Plaintiffs plausibly allege ... that the State’s practice of contracting with and permitting faith-based child placing agencies to turn away same-sex couples has both the subjective purpose of discriminating against those who oppose the view of the faith-based agencies ... and objectively endorses the religious view of those agencies that same-sex marriage is wrong, sending a “‘message [to Plaintiffs] that they are outsiders, not full members of the community.’”....

The child placing agencies are, in many ways, the gateway for a family seeking to adopt or foster a child into Michigan’s adoption and foster care system. The scope of their duties, and hence any “government exclusivity” of the functions they perform, must be the subject of further discovery. For purposes of analyzing Plaintiffs’ Establishment Clause claim, the Court must accept the allegations of the Complaint as true and such allegations surely “implicate” the Establishment Clause and plausibly suggest “excessive entanglement” such that the Court will allow Plaintiffs’ Establishment Clause claim to proceed further....

Plaintiffs are entitled to an opportunity to conduct discovery to support their claim that the State’s practice of continuing to contract with faith-based agencies that invoke PA53’s religious belief protection to turn away same-sex couples lacks a rational basis and to further develop their Equal Protection claim.

ACLU issued a press release announcing the decision.

Sikhs Ask DOE For Title VI Coverage

According to Huff Post, United Sikhs has asked the U.S. Department of Education to treat Sikhs as an ethnic group as well as a religion so that discrimination against Sikhs would fall under Title VI of the 1964 Civil Rights Act. That provision bars racial, but not religious, discrimination by educational institutions. As previously reported, the Department of Education has decided to reopen a case charging Rutgers University with allowing a hostile environment for Jewish students, defining Jews as an ethnic group.

Alaska Christian Women's Shelter Challenges Requirement It Serve Transgender Women

In Anchorage, Alaska, a Christian soup kitchen and women's shelter-- the Hope Center-- has filed a federal lawsuit against the Anchorage Equal Rights Commission seeking to end the Commission's investigation of the Center. According to KTTU News, The controversy grows out of the Hope Center's denial of shelter services to a transgender woman and her filing of a discrimination complaint. The suit seeks to end the Commission's investigation of the Center for violation of the city's anti-discrimination law that protects against discrimination on the basis of gender identity. The Center's complaint alleges in part:

It would not only be dangerous and against common sense, but would violate the Hope Center’s sincerely held religious beliefs to admit biological men into its shelter and allow them to sleep side by side and disrobe next to women, some of whom have been assaulted by men and fear for their safety.

Russian Law Enforcement Targets Jehovah's Witnesses

According to a Forum 18 report yesterday, in Russia since January of this year law enforcement agencies have been raiding the homes of Jehovah's Witnesses, charging many with violating the country's ban on extremist organizations. So far some 69 individuals are under investigation or on trial. Most of the cases follow on the 2017 ban on all activities of the Jehovah's Witness Administrative Center and its local affiliates.

Teacher Lacks Standing To Challenge Contraceptive Mandate Exemptions

In Campbell v. Trump, (D CO, Sept. 11, 2018), a Colorado federal district court held that a teacher in a private school lacks standing to challenge the Trump administration rules that allow employers to refuse on religious or moral grounds to provide health insurance coverage for contraceptive services. Plaintiff currently has coverage in her employer's policy but argues that she fears her employer might withdraw coverage.  The court held:

There are no factual allegations in the complaint that support an inference that injury to plaintiff, economic or otherwise, is “actual and imminent” as required to constitute an injury in fact under Article III standing principles.

Israeli Court Orders Recognition of Conversion Performed Outside of Official Rabbinate

Haaretz and Times of Israel report today that in a first of its kind decision in Israel, a Jerusalem district court has ordered Israel's Interior Ministry to register as Jewish in the Population Registry a woman converted by a rabbinical court operating outside of the official Rabbinate.  The conversion was performed by Orthodox rabbis through Giyur K’Halakha, a private initiative of prominent religious Zionist rabbis that is less stringent in its conversion requirements.

Suit Charges Catholic Church With Defamation

The Morning Call yesterday reported on a lawsuit filed in a Pennsylvania state trial court by Juliann Bortz based on information which she learned for the first time from the recently released Pennsylvania state grand jury report on sexual abuse by Catholic clergy.  The lawsuit, alleging defamation and intentional infliction of emotional distress, claims that Church officials gathered “irrelevant, unrelated [or] false ‘dirt’ ” on Bortz to discredit her reports of abuse by a priest.

DOE Reopens Case Against Rutgers For Allowing Anti-Semitism On Campus

The New York Times reported yesterday:

The new head of civil rights at the Education Department has reopened a seven-year-old case brought by a Zionist group against Rutgers University, saying the Obama administration, in closing the case, ignored evidence that suggested the school allowed a hostile environment for Jewish students.

The move by Kenneth L. Marcus, the assistant secretary of education for civil rights and a longtime opponent of Palestinian rights causes, signaled a significant policy shift on civil rights enforcement — and injected federal authority in the contentious fights over Israel that have divided campuses across the country. It also put the weight of the federal government behind a definition of anti-Semitism that targets opponents of Zionism, and it explicitly defines Judaism as not only a religion but also an ethnic origin.

Ball State Settles Suit By Pro-Life Student Group

The Muncie Star Press reported last week on the recent settlement of a lawsuit (see prior posting) against Ball State University by "Students for Life at BSU." The suit alleged viewpoint discrimination in distribution of student activity fees. The pro-life student group's request for $300 from student activity fees was denied, apparently under the Guideline excluding from funding "[a]ny Organization which engages in activities, advocacy, or speech in order to advance a particular political interest, religion, religious faith, or ideology." Under the Settlement Agreement (full text), the University will adopt new rules that require that student activity fees be allocated in a viewpoint-neutral manner The school will also pay $300 in damages to the student group and pay the group's $12,000 in attorneys' fees to Alliance Defending Freedom.

Religious Themed Ad Reinstated On Football Field Amid Broader Litigation

As previously reported, in February four parents sued the Bossier Parish, Louisiana school board alleging widespread Establishment Clause violations. Recently, amidst settlement talks in the litigation, the Benton High School Booster Club sold advertising space on the school's football field to Christ Fit Gym. The business' logo that was placed on the field in the end zone includes a cross and a citation to a bible verse.  KTBS News  and KTAL report that at the recommendation of legal counsel the ad was removed just before the school's homecoming game on Friday, pending consultation with the court. But apparently Christ Fit Gym filed suit in state court against the Booster Club challenging removal of the ad, and a temporary restraining order was issued against the Club.  The Booster Club is not a defendant in the federal lawsuit. The School Board that is a party to the federal lawsuit was not previously aware of the logo, but met yesterday to discuss it.  As reported by Bossier Now, amid increasing pressure the Board, after a two hour executive session, decided to fight the federal lawsuit rather than settle it and to allow back Christ Fit Gym's ad.