Guantanamo Bay Detainees Argue Hobby Lobby Decision Makes RFRA Applicable To Them

AlJazeera reports on emergency motions filed last week in D.C.'s federal district court on behalf of two Guantanamo Bay detainees for temporary restraining orders to prohibit the government from denying the detainees the right to participate in communal prayer during Ramadan. The motions in Hasan v. Obama (full text) and Rabbani v. Obama (full text), both filed July 3 by the British advocacy organization Reprieve, argue that the previous D.C. Circuit decision in Rasul v. Myers holding that Guantanamo Bay detainees are not persons protected by the Religious Freedom Restoration Act has effectively been overruled by the Supreme Court's recent Hobby Lobby decision. As the argument is framed in the Rabbani motion:

The holding and express reasoning in Hobby Lobby makes Rasul a dead letter. Rasul relied on Supreme Court case law that predated Smith and excluded nonresident aliens from the scope of constitutional protections guaranteed by the Fourth and Fifth Amendments. Hobby Lobby wholly undermines Rasul by holding that the pre-Smith Supreme Court case law does not restrict the scope of “person[s]” protected by the RFRA, which Congress intended to exceed the scope of constitutional protection as set forth in the pre-Smith case law. Hobby Lobby instructs that the scope of “person[s]” protected by the RFRA is to be determined by reference to the definition of “person” in the Dictionary Act, not by reference to the pre-Smith case law.

... The Guantanamo Bay detainees, as flesh-and-blood human beings, are surely "individuals," and thus they are no less "person[s]" than are the for-profit corporations in Hobby Lobby or the resident noncitizens whom Hobby Lobby gives as an example of persons to whom the RFRA must apply.

A hearing on the emergency motions is scheduled for tomorrow morning.

Connecticut Synagogue Files RLUIPA Challenge To Zoning Denial

In Greenwich, Connecticut the Greenwich Reform Synagogue has filed a federal lawsuit challenging the Planning and Zoning Board of Appeals' refusal, on a 2-2- vote, to grant it a zoning exemption needed for final approval of its planned new building.  As reported by Greenwich Time, the suit, presumably invoking the Religious Land Use and Institutionalized Persons Act, alleges that the denial is burdensome and discriminatory, and treats the synagogue less favorably that the city has treated requests from churches and non-religious institutions.

Court Rules On Various Establishment Clause Challenges To Veterans Memorial

Hewett v. City of King, (MD NC, July 8, 2014), is a challenge to various religious practices at the Veterans Memorial in a King, North Carolina park. The most controversial of the practices were: (1) the flying of a Christian flag along with ten other military, U.S., state and city flags. In a policy that changed over time, ultimately the Christian flag was flown 47 weeks a year on a pole that was designated a limited public forum. And (2) the placing of a stature of a soldier kneeling in front of a cross as part of the memorial. In a 110-page opinion, a North Carolina federal district court ruled that the question of whether these violated the Establishment Clause should proceed to trial on issues of disputed fact.

Plaintiff also objected to various memorial events held at the Veterans Memorial. The court concluded as a matter of law that the city's involvement in arranging and participating in events at which speakers deliver overtly Christian messages violated the Establishment Clause. However the appearance of the city's fire truck at these events, the granting of perpetual permits to host annual ceremonies, installation of pavers, the participation of the mayor in non-religious ways in memorial ceremonies and certain other activities did not amount to endorsement by the city or excessive entanglement. Americans United issued a press release announcing the decision.

Episcopal Diocese Settles With Break-Away Congregations Without Lawsuit

Episcopal News Service yesterday reported on the final steps in an amicable settlement between the Episcopal Diocese of Olympia, Washington and two break-away congregations that ultimately joined the more conservative Anglican Church In North America. (Background.)  Unusual in this time of litigation, the settlement was reached over ten years without any lawsuits being filed.  Two years after the 2004 split, the parties signed a covenant agreement that called for no legal action to be taken before 2014, and for the break-away congregations to temporarily continue to meet in the meantime in their traditional buildings. Now those properties have been returned fully to the Episcopal Diocese, and the break-away congregations have found worship space elsewhere.

EEOC Sues Over Nursing Home's Ban On Hijab

The EEOC announced Monday that it filed suit last month against an Alabama nursing home for refusing to accommodate a Muslim employee's request to wear her hijab. Tracy Martin, hired as a certified nursing assistant by Shadecrest Healthcare Center filed an EEOC complaint after she was told to remove her head covering. Several weeks after the nursing home received notice of the complaint, Martin was summarily fired.

Pakistan Officials Agree On Creating National Commission For Minorities

The Nation today reports that after a year of deliberations, the government and the opposition party in Pakistan have agreed on the framework and composition of a National Commission for Minorities. The Commission will be comprised of ten members from different religions. Finance Minister Ishaq Dar says that four of the commissioners will be Muslim, two Christians, two Hindus, one Parsi and one Sikh. Names of the ten have been agreed upon.

Another Challenge To Idaho's Same-Sex Marriage Laws-- Now By Lesbian Veteran Over Burial Rights

A federal court challenge to Idaho's refusal to recognize same-sex marriages performed elsewhere was filed yesterday by a 74-year old Navy veteran who wants to be cremated and have her ashes interred together with those of her already-deceased same-sex spouse. Plaintiff Madelynn Lee Taylor brought her spouse's ashes with her back to Idaho where the couple had lived together. The complaint (full text) in Taylor v. Brasuell, (D ID, filed 7/7/2014), alleges that the sole reason the Idaho State Veterans Cemetery refused her request to make these advance arrangements is Idaho's laws prohibiting recognition of Taylor's 2008 California marriage to her long-time partner. NCLR issued a press release and AP reports on the case. In an unrelated case in May, a magistrate judge in the same federal district court struck down Idaho's laws barring same-sex marriage. (See prior posting.) However subsequently the 9th Circuit in Latta v. Otter (May 20, 2014), granted a stay of the decision while it is on appeal.

Belfast Bakery Faces Suit Over Refusal To Decorate Cake In Support of Gay Marriage

Mail Online reported yesterday on the latest clash in Britain between Christian business owners and gay rights proponents. Activist Gareth Lee ordered a cake from Christian-run Ashers Baking Company in Belfast.  He wanted the cake decorated with the name of his organization, QueerSpace, two Sesame Street characters and the words "Support Gay Marriage."  A bakery staff member accepted the order, but the owners and manager of the family-run company called Lee, offering a refund and refusing to produce the cake on religious grounds. Lee complained to Northern Ireland's Equality Commission which wrote the bakery saying that the refusal violates the public accommodation non-discrimination provisions (Regulation Five) of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.  The Commission said it would file suit within 7 days of the letter.

Diocese Objects To Louisiana Supreme Court Decision On Priest-Penitent Privilege

The Baton Rouge (LA) Advocate reported yesterday on the Louisiana Supreme Court's per curiam opinion and a concurrence in Parents of Minor Child v. Charlet, (LA Sup. Ct., April 4, 2014), a clergy sex-abuse case decided three months ago but only now receiving attention. As summarized by The Advocate:

The case involves a young girl who claims she was sexually abused by a now-deceased church parishioner but that her confession to a local priest fell on deaf ears.

The decision resuscitates a five-year-old lawsuit against the Roman Catholic Church of the Diocese of Baton Rouge, the Rev. Jeff Bayhi and others, and gave the girl, now an older teenager, the green light to testify and introduce evidence of “her own confession.”

At the same time, the state high court sent the case back to 19th Judicial District Court Judge Mike Caldwell, saying there is still a dispute “concerning whether the communications between the child and the priest were confessions per se and whether the priest obtained knowledge outside the confessional that would trigger his duty to report” sexual abuse allegations.

Yesterday the Diocese of Baton Rouge posted a statement (full text) on its website strongly criticizing the Supreme Court's decision. The statement reads in part:

The Supreme Court of Louisiana ... remanded for further proceedings in the District Court to hold a hearing concerning whether or not there was a “confession.” We contend that such a procedure is a clear violation of the Establishment Clause of the U. S. Constitution. The Supreme Court of Louisiana cannot order the District Court to do that which no civil court possibly can—determine what constitutes the Sacrament of Reconciliation in the Catholic Church. Indeed, both state and federal jurisprudence make clear that there is no jurisdiction to adjudicate claims that turn upon such purely religious questions.

India's Supreme Court Rules Sharia Courts Legal As Advisory Bodies, But Should Not Issue Rulings Unless Requested By Party Affected

In Madan v. Union of India, (India Sup. Ct., July 7, 2014), petitioner challenged the legality of Muslim Sharia Courts set up around the country and supported by the All India Muslim Personal Law Board.  The suit was filed after publicity about a case in which a Muslim Court ruled that a married woman who was raped by her father-in-law could no longer remain married to the son. The Fatwah in the case was apparently issued without its being requested by any of the parties immediately involved.  A 2-judge panel of India's Supreme Court refused to order Muslim courts dissolved, saying:

A Qazi or Mufti has no authority or powers to impose his opinion and enforce his Fatwa on any one by any coercive method.... It has no legal sanction and can not be enforced by any legal process.... The person or the body concerned may ignore it ....

However the court was troubled by Fatwas issued at the behest of third parties, saying that they create "serious psychological impact" on the person who chooses to ignore them.  Therefore, it ruled that Muslim courts should not issue Fatwas affecting the rights, status or obligation of an individual unless that person has asked for a ruling. AP reports on the decision.

County Clerk Asking Supreme Court To Stay Decision Allowing Same-Sex Marriage In Pennsylvania

The Schuylkill County, Pennsylvania clerk of courts continues her efforts to intervene in order to appeal a federal district court's invalidation of Pennsylvania's ban on same-sex marriage.  Last week, the 3rd Circuit in Whitewood v. Secretary Pennsylvania Department of Health, (3d Cir., July 3, 2014) issued a summary order affirming the district court's refusal to permit her to intervene. Remaining unhappy with the Governor's decision not to appeal the underlying decision permitting same-sex marriage, county clerk Theresa Santai-Gaffney is now asking the U.S. Supreme Court to stay pending appeal the district court's order striking down the state's laws banning same-sex marriage.  In a petition filed Friday with Justice Alito (full text), she argues that when the Supreme Court granted a stay pending appeal to the state of Utah in a similar case, it signaled all lower federal courts that they should do the same. SCOTUS Blog reports more details.

Algeria Plans To Reopen Synagogues, Though Few Jews Left In Country

According to JTA, Algeria's Religious Affairs Minister last week said that the country is prepared to reopen synagogues. They were closed down in the 1990's for security reasons.  However security arrangements need to be set up before the step is taken. It is estimated that only a tiny number of Jews remain in Algeria.

Recent Articles and Books of Interest

From SSRN:

• Benjamin L. Berger, Poetry, Mercy, and the Phenomenology of Justice, (Forthcoming in Ehud Ben Zvi, Claudia V. Camp, David M. Gunn and Aaron W. Hughes, eds., Poets, Prophets, and Texts in Play: Studies in Biblical Poetry and Prophecy in Honour of Francis Landy (London: T & T Clark, 2014)).
• Marie A. Failinger, Twenty-Five Years of Law and Religion Scholarship: Some Reflections, (Touro Law Review, Vol. 30, p. 9 (2014)).
• Wojciech Sadurski, Searching for Illicit Motives: Constitutional Theory of Freedom of Speech, Equal Protection, and Separation of State and Religion, (Sydney Law School Research Paper No. 14/61, July 2014).
• Michael J. T. McMillen & Sheikh Yusuf Talal DeLorenzo, Islamic Finance and the Shari'Ah: The Dow Jones Fatwa and Permissible Variance as Studies in Letheanism and Legal Change, (June 23, 2014).
• András Koltay, The Appearance of the Clear and Present Danger Doctrine In Hungarian Hate Speech Laws and the Jurisprudence of the European Court of Human Rights, (June 23, 2014).

Recent and Forthcoming Books:

• Matthew Stewart, Nature's God: The Heretical Origins of the American Republic, (W.W. Norton & Co., July 2014).
• Al-Qadi al-Nuʿman, Disagreements of the Jurists: A Manual of Islamic Legal Theory, (Edited and translated by Devin Stewart), (NYU Press, Jan. 2015).
• J. Judd Owen, Making Religion Safe for Democracy: Transformation from Hobbes to Tocqueville, (Cambridge University Press, Jan. 2015).

Recent Prisoner Free Exercise Cases

In Ford v. Bureau of Prisons, (3d Cir., June 30, 2014), the 3rd Circuit dismissed the complaint of a Nation of Islam inmate that he was not provided a meal after his fast on two holy days. The court also rejected his claim that discipline for a radical sermon he gave was retaliation.

In Lackey v. Midget, 2014 U.S. Dist. LEXIS 87289 (ED VA, June 25, 2014), a Virginia federal district court adopted a magistrate's recommendations and dismissed a Muslim inmate's complaint that on one evening he received an incomplete Ramadan meal.

In Lewis v. Hirsh, 2014 U.S. Dist. LEXIS 84648 (ED CA, June 20, 2014), a California federal magistrate judge gave an inmate 30 days to amend his pleadings, or else face dismissal of his complaint that  prison authorities are attempting to cause him to violate his Christian Science faith by classifying him as a high medical risk.

In Spight v. Davidson, 2014 U.S. Dist. LEXIS 85671 (MD TN, June 23, 2014), a Tennessee federal district court dismissed a suit by a Seventh Day Adventist inmate who complained that officials would only allow him a vegetarian diet, and not a kosher diet that includes meat.

In Mingo v. Fischer, 2014 U.S. Dist. LEXIS 87231 (ND NY, June 26, 2014), a New York federal district court dismissed an inmate’s complaint that a prison staff member made disparaging remarks about his religion.

In Tate v. Dickinson, 2014 U.S. Dist. LEXIS 86577 (ED CA, June 24, 2014), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that he is limited to purchasing only 5 pre-selected fragrances of prayer oils.

In Joe v. Nelson, 2014 U.S. Dist. LEXIS 87560 (MD GA, June 27, 2014), a Georgia federal district court dismissed an inmate's complaint that unsanitary conditions in his cell meant that he had to wipe the floor before his daily prayers and on one day he could not perform 4 of his 5 daily prayers because of water flooding his cell.

In Johnson v. Corrections Corporation of America, 2014 U.S. Dist. LEXIS 87978 (SD CA, June 23, 2014), a California federal district court dismissed, with leave to amend, an inmate's complaint that the assistant warden would not authorize him to participate in the Ramadan fast.

In Mohamad v. Wenerowicz, 2014 U.S. Dist. LEXIS 89225 (ED PA, June 30, 2014), a Pennsylvania federal district court dismissed a Muslim inmate's complaint that he was unable to pray on a single day when he was kept in handcuffs for over two hours.

In Taylor v. Pearson, 2014 U.S. Dist. LEXIS 87657 (SD AL, June 27, 2914), an Alabama federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 88358, June 2, 2014) and dismissed without prejudice a suit by an inmate claiming his free exercise rights were infringed when he was required to cut his hair and sideburns in an unsanitary barbering facility. The dismissal was a sanction for plaintiff's failure to list in his application for in forma pauperis status 6 prior suits he had filed.

In Williams v. Roberts, 2014 U.S. Dist. LEXIS 89015 (ED CA, June 27, 2014), a California federal magistrate judge dismissed an inmate's claim that his free exercise rights were infringed when a commissioner at his parole hearing questioned his repeated changes in religious belief. Plaintiff had failed to follow through on either Alcoholics Anonymous or an Islam-based program for rehabilitation.

Preacher Sues To Gain Access To Sidewalk Outside Iowa State Fair

The Des Moines Register reports on a federal lawsuit filed last month by Jason Powell who wants to share his Christian message with persons going to the Iowa State Fair next month.  He seeks a ruling that police acted unconstitutionally last year when they detained and photographed him after he insisted on holding a sign and preaching on the sidewalk just outside the entrance gate to the Fair. A police officer told Powell he had to move to the other side of the street. Powell's attorney says that the recent U.S. Supreme Court decision in McCullen v. Coakley striking down the abortion clinic buffer zone set up by Massachusetts law supports their case.

Lawsuit Challenges Lack of Availability of Plans Without Abortion Coverage On Health Insurance Exchange

The Providence (RI) Journal reports today on a lawsuit with a new twist on free exercise objections to the Affordable Care Act.  Barth Bracy, director of the Rhode Island Right to Life Committee and a resident of Connecticut, along with his wife, filed suit two months ago because the only health care plans available through the Health Insurance Exchange in Connecticut include abortion coverage.  All enrollees must pay a small separate fee for that coverage.

The complaint (full text) in Bracy v. Sebelius, (D CT, filed 5/1/2014), alleges that if the Bracys purchase a plan through the Exchange, they will receive nearly a 100% subsidy for its cost.  But they can only obtain a plan that excludes abortion coverage by purchasing outside the Exchange and receive no subsidy.  The premium on such a plan would be nearly double the $494 per month premium they are now paying. They allege that this violates their rights protected by the Free Exercise Clause, RFRA and the Connecticut Religious Freedom Restoration Act. They also claim that their 1st Amendment right to receive information is infringed by regulations that prohibit insurers or exchanges from advertising whether plans cover abortions, from informing enrollees prior to the time of enrollment whether the plan covers abortion, and prohibits telling enrollees the portion of their total premium that is allocated to abortion coverage.

Supreme Court In Post-Term Order Enjoins Non-Profit Contraceptive Accommodation, Pending Appeal

It turns out that the U.S. Supreme Court was not completely finished with its work last Monday.  Yesterday it granted an injunction to a religiously-affiliated liberal arts college that objects to complying with the Affordable Care Act contraceptive coverage accommodation for religious non-profits.  Wheaton College, which was denied a preliminary injunction by an Illinois federal district court (see prior posting), applied to Justice Kagan for an emergency injunction pending appeal. Justice Kagan referred the application to the full court. In an order issued last Monday, separate from the full Order List for the day, the Court issued a temporary injunction and called for a response by Wednesday.  On Thursday in Wheaton College v. Burwell, (S.Ct., July 3, 2014), in an unsigned order the court held:

If the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators....

[T]he applicant has already notified the Government—without using EBSA Form 700—that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds. Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.

In light of the foregoing, this order should not be construed as an expression of the Court’s views on the merits.

Justice Scalia noted that he concurs in the result. Justice Sotomayor, in a strongly worded dissent, Joined by Justices Ginsburg and Kagan, said in part:

[J]ust earlier this week in Burwell v. Hobby Lobby Stores, Inc., ... the Court described the accommodation as “a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.” ...  Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might ... retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution....

... I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so.

The Washington Post and SCOTUS Blog both report on the Court's action.

Anti-Christian Video Clips Did Not Create Hostile Work Environment

Parker v. Side By Side, Inc., (ND IL, June 27, 2014), is a suit by a former employee of a Chicago bar that caters primarily to single gay men.  Among other things, plaintiff, a non-denominational Christian, claimed religious harassment by co-workers that created a hostile work environment. The court concluded that it could not determine at the summary judgment stage whether the harassment had a religious character, or instead was political in nature, aimed at the political ideology of conservative Christians:

The line between religious and political beliefs—and, thus, the line between protected and non-protected characteristics under Title VII—is often muddy, especially in the context of social policy issues....

However the court rejected the claim that videos played at the bar amounted to religious harassment, saying:

... [T]he allegedly offensive anti-Christian video clips ... do not contribute to the alleged hostility of his work environment. Sidetrack played the video clips during “Comedy Nights,” and it obtained all or at least a vast majority of the clips from mainstream broadcasts. None of the allegedly offensive material was directed at Plaintiff. Sidetrack, moreover, is known for playing comedic and other video clips on screens around the bar. The Court must evaluate the “totality of the circumstances” ..., but it need not—and must not—abandon common sense and sensitivity to social context in evaluating the alleged hostility. Just as a reasonable professional football player would not consider his working environment to be severely or pervasively hostile “if the coach smacks him on the buttocks as he heads onto the field,”..., a reasonable person in Plaintiff’s position would not view mainstream video clips played as part of Sidetrack’s Comedy Night events to create or even contribute to an allegedly hostile work environment.

Volokh Conspiracy has more on the decision.

China Orders Muslims In Northwest Not To Observe Ramadan Fast

AP reports that schools, government agencies and Communist Party organizations in China's northwestern Xinjiang region have ordered students and civil servants in the region to avoid observing the traditional Ramadan fast that began Saturday night. The move comes in the midst of tightened security in the heavily Muslim region after attacks in May and June led to over 50 deaths.  China blames the unrest on Muslim extremists with foreign terrorist ties, and fears that religious activities could become a rallying point for anti-government activity. Apparently earlier this week authorities in some towns held celebrations of the founding of the Communist Party and served food to find out whether Muslim attendees were fasting.

Christian Hip-Hop Group Sues Top Music Star For Copyright Infringement

The St. Louis Post Dispatch reports that earlier this week the members of the Christian hip-hop music group Flame filed a federal copyright infringement lawsuit against pop singer Katy Perry, Capitol Records and others involved in creating Perry's "mega-hit" song and music video, Dark Horse. The complaint (full text) in Gray v. Perry, (ED MO, filed 7/1/2014), alleges:

By any measure, the Dark Horse song also constitutes an infringement of Plaintiffs’ copyright in their Christian gospel song Joyful Noise, released five years before Dark Horse..... And by any measure, the devoutly religious message of Joyful Noise has been irreparably tarnished by its association with the witchcraft, paganism, black magic, and Illuminati imagery evoked by the same music in Dark Horse. Indeed, the music video of Dark Horse generated widespread accusations of blasphemy.... 

Rapzilla has comparative sound clips from the two songs designed to show that they differ only in pitch and tempo. The lawsuit asks for damages and injunctive relief.