French Court Suspends Municipal By-Law Banning Religious Symbols At Beach

In France, last Saturday a Versailles Administrative Court suspended, pending a final ruling on the merits, a by-law adopted by the town of Wissous that banned wearing of religious symbols on the town's beach. AFP reports that the prior week, Wissous Mayor Richard Trinquier, invoking the by-law, had turned away two mothers wearing hijabs (Muslim headscarves) who had brought their children to the beach. This led to an emergency court action being brought by the French government and an organization that combats Islamophobia, in which they argued that the by-law infringes the fundamental freedom of religious belief.  The mayor had claimed that the by-law protects France's commitment to secularism.

Ohio Enacts Released Time Program, Effective In September

This weekend, the Cleveland Plain Dealer carried op-ed columns supporting and opposing Ohio House Bill 171 (full text) which was signed into law by the governor last month. (Legis. status report.) The law, which will go into effect in September, allows school districts to approve "released time" programs during which students can be excused from school to attend a program of religious instruction elsewhere. High school students can earn up to two units of course credit for participation in a released time offering.  No public funds or school personnel may be used in the religious instruction.

Recent Articles of Interest

From SSRN:

• Steven H. Resnicoff, Circumcision Safety: A Case Study in the Failure of Leaderships, (Looking Forward, Vol. 1, No. 3, pp. 1-7, June 2014).
• Archana Mishra, Rights in Separate Property of Hindu Female – Challenge to Acquire a New Self , (June 20, 2014).
• Hendrik Gommer, The Biological Foundations of Global Ethics and Law, (Archives for Philosophy of Law and Social Philosophy (ARSP), 2014, Vol. 100, nr. 2, p. 151-175).
• Frederick Mark Gedicks, Religion, Meaning, Life, Truth, (San Diego Law Review, 2014, Forthcoming).
• Richard W. Garnett, Accommodation, Establishment, and Freedom of Religion, (67 Vand. L. Rev. En Banc 39 (2014)).
• Steve Sanders, Is the Full Faith and Credit Clause Still 'Irrelevant' to Same-Sex Marriage?: Toward a Reconsideration of the Conventional Wisdom, (Indiana Law Journal, Vol. 89, No. 1, 2014).
• Steve Sanders, Mini-DOMAs as Political Process Failures: The Case for Heightened Scrutiny of State Anti-Gay Marriage Amendments, (Northwestern University Law Review Online (June 2014)).

From SSRN (Islamic Law):

• Amir B. Izadyar & Feroza Ragnath, A New Perspective of Benevolent Loan, QARD Al-Hassan, Using Upfront Payment ‘Mesbah Point’, (International Journal of Economics 1:3, pp. 45-58, 2014).
• Jamhari Makruf, Jamhari & Iim Halimatussa'diyah, Shari’a and Regional Governance in Indonesia: A Study of Four Provinces, (Australian Journal of Asian Law, Vol. 15, No. 1, Article 4, 2014).

From SmartCILP:

• Mark Goldfeder, The Story of Jewish Polygamy, [Abstract], 26 Columbia Journal of Gender & Law 234-315 (2014).
• Peter T. Leeson, "God Damn": The Law and Economics of Monastic Malediction, 30 Journal of Law, Economics & Organization 193-216 (2014).
• Marin Lim, The Sanity of Faith: What Religious Fundamentalism Teaches About the Insanity Defense and the First Amendment, [Abstract], 17 New Criminal Law Review 252-311 (2014).

Recent Prisoner Free Exercise Cases

In Holland v. Goord, (2d Cir., July 10, 2014), the 2nd Circuit, reversing in part a district court's decision, held that ordering a Muslim inmate to drink water in violation of his Ramadan fast in order to provide a urine sample substantially burdened his free exercise rights.

In McCormack v. Reinke, 2014 U.S. Dist. LEXIS 91356 (D ID, July 2, 2014), an Idaho federal district court dismissed for failure to prosecute a Native American inmate's complaint regarding tearing down of the prison's sweat lodge and alleged retaliation for complaining that failure to provide wood for the sweat lodge violated a previous settlement agreement.

In Villapando v. CDCR, 2014 U.S. Dist. LEXIS 91965 (ED CA, July 3, 2014), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that a change in allowable religious property omitted certain items necessary for Native American religious practices.

In Hines v. Illinois Department of Corrections, 2014 U.S. Dist. LEXIS 92474 (SD IL, July 8, 2014), an Illinois federal district court permitted a Muslim inmate to proceed with various 1st Amendment, RLUIPA and 8th Amendment claims alleging that the vegetarian diet provided to him did not meet Halal requirements, and that he was retaliated against for complaining about non-halal turkey chili served to him.

In Mauwee v. Cox, 2014 U.S. Dist. LEXIS 93241 (D NV, July 9, 2014), a Nevada federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 93239, June 17, 2014) and dismissed a Native American inmate's complaint that a corrections officer desecrated his religious group's ceremonial deer antlers. Defendant mistakenly ordered the antlers to be blunted to 8 inches instead of the allowable 18 inches.

In Salas v. Gomez, 2014 U.S. Dist. LEXIS 93536 (ND CA, July 9, 2014), a California federal district court permitted a Jewish inmate to proceed with his complaint that his food has been inedible and does not meet kosher standards, and that he is being denied access to Jewish scriptures.

In Baumgarten v. Maryland Division of Corrections, 2014 U.S. Dist. LEXIS 93601 (D MD, July 10, 2014), a Maryland federal district court dismissed both for failure to exhaust administrative remedies and on the merits a claim by a Jewish inmate that he was denied kosher meals, and a corrections officer ripped the cover off his religious book.

In Irvin v. James, 2014 U.S. Dist. LEXIS 94064 (ED CA, July 9, 2014), a California federal magistrate judge recommended permitting a Muslim inmate to proceed on his complaint that after the former chaplain left officials denied chapel access, special food for festivals, and receipt of religious packages, and delayed hiring a new Muslim chaplain.

Christian College Gets Title IX Religious Exemption For Housing Of Transgender Students

George Fox University, a Christian University with Quaker roots, reports that on May 23 the U.S. Department of Education granted it a religious exemption from the Title IX Education Amendments of 1972 relating to non-discrimination in housing and facilities. The Oregon-based school says it applied for the exemption "to preserve its right to draw on its religious convictions to handle situations related to students experiencing gender identity issues."  It adds that other colleges have received similar exemptions in the past.

The facts need to be pieced together from the University's posting, an article last Friday in PQ Monthly and an earlier report by PQ Monthly.  Apparently an African-American transgender student, who is entering his junior year, was living in female-only campus housing when the student began the medical, social and legal gender transition.  Last April the student, "Jayce M." requested to move from female-only on-campus housing to male-only on-campus housing. The University denied the request, but presented the option of living off campus with other males (conditioned on completing name and gender changes on his driver's license and Social Security records) or living on campus in a single room.

As Jayce M prepared to appeal the school's denial of male on-campus housing to the Department of Education as a violation of Title IX's anti-discrimination provisions, the school applied for the Title IX exemption and was granted it in an unusually speedy two-months. On the basis of the newly-granted exemption the Department of Education earlier this month closed Jayce M's appeal. His lawyer says that they now plan to appeal the Department of Education's ruling.

Senate Democrats Propose Bill To Overrule Hobby Lobby Decision

On Wednesday, Senators Patty Murray and Mark Udall announced that they have introduced the "Protect Women's Health From Corporate Interference Act" (full text) (summary). The bill is designed to overrule the Supreme Court's recent Hobby Lobby decision by excluding Affordable Care Act requirements from the provisions of the Religious Freedom Restoration Act.  The bill provides in part:

(a) ... An employer that establishes or maintains a group health plan for its employees ... shall not deny coverage of a specific health care item or service with respect to such employees (or dependents) where the coverage of such item or service is required under any provision of Federal law or the regulations promulgated thereunder....

... Subsection (a) shall apply notwithstanding any other provision of Federal law, including Public Law 103–141 [Religious Freedom Restoration Act].

According to The Hill, the Senate Bill has 35 co-sponsors.

UPDATE: In a July 16 vote, the Senate failed to invoke cloture so it could move to consideration of the bill. The vote, largely along party lines, was 56-43.  Sixty votes are required to invoke cloture.

Canadian Trial Court Awards Damages Against Religious Order In Sex Abuse Class Action

According to Canadian Press, a Quebec trial court ruled yesterday that the Catholic order of priests, the Redemptorist Order, is liable in a class action to all sexual assault victims who attended Saint-Alphonse Seminary in Quebec City between 1960 and 1987. Nine priests are also named in the suit, but 6 of them are dead and the other 3 say they are living in poverty.  Under the court's verdict, each victim will receive at least $75,000, and some will receive $150,000.  So far, 70 former students have have filed alleging they were abuse victims.

Supreme Court Rejects Attempt By County Clerk To Appeal Pennsylvania Same-Sex Marriage Decision

As reported by SCOTUS Blog, on July 9 U.S. Supreme Court Justice Samuel Alito denied an application for a stay filed by a Pennsylvania clerk of courts.  The applicant was seeking to intervene in a lawsuit decided by a district court in order to appeal the district court's invalidation of Pennsylvania's ban on same-sex marriage. State officials had declined to appeal.  The Supreme Court's docket entry in Santai-Gaffney v. Whitewood denying the application to intervene cited  the Court's denial of a stay last month in an attempt by the National Organization for Marriage to intervene to appeal the invalidation of Oregon's same-sex marriage ban.

Non-Religious Non-Profit Sues To Challenge Contraceptive Coverage Mandate

In another permutation of the challenges to the Affordable Care Act contraceptive coverage mandate, a federal lawsuit was filed earlier this week by March for Life. The complaint (full text) in March for Life v. Burwell, (D DC, file 7/7/2014), alleges that while plaintiff is a non-profit pro-life organization that opposes providing certain contraceptive coverage to its employees, it does not qualify for the "accommodation" that permits an opt out in favor of coverage directly from the insurance company because March for Life does not hold itself out as a "religious organization." The complaint goes on to allege that the mandate violates the religious freedom rights of March for Life employees by requiring them to accept insurance plans that provide coverage for abortifacients. It also claims that the mandate violates its equal protection rights and the Administrative Procedure Act. ADF issued a press release on the case.

ABA Opens Nominations For Best Legal Blogs of 2014

The ABA Journal announced yesterday that it is opening nominations for its "2014 Blawg 100" awards.  Religion Clause has been honored to be on the Blawg 100 list for 5 out of the last 7 years.  If you would like to nominate Religion Clause, or any other legal blog, as one of the top 100, you may do so in 500 characters or less at this link. The nominations-- so-called "friend-of-the-blawg briefs"-- must be submitted by 5 p.m. ET on Aug. 8, 2014.

LGBT Rights Groups Withdraw Support For ENDA Over Religious Exemptions

US News reported yesterday that a number of LGBT and civil rights groups have decided to withdraw their support for the Employment Non-Discrimination Act  (ENDA), now believing that the religious exemption in the version that has passed the Senate (S. 815) is too broad. The shift in attitude has been prompted by increased assertion of religious beliefs as a basis for discriminating against gays and lesbians. Among the groups withdrawing their support are the National Gay and Lesbian Task Force, the ACLU, Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center.

Archdiocese Settles Abuse Suit While Denying Its Validity

Last Monday, the Catholic Archdiocese of St. Louis issued a press release disclosing that it has settled a lawsuit brought by a female plaintiff identified as Jane Doe 92. Doe 92 claimed that she was sexually abused by Joseph Ross, a priest who was removed from the ministry in 2002. In 1988 Ross plead guilty to a misdemeanor stemming from his inappropriate touching of a young boy. The Archdiocese said that Ross is a known abuser and it is not defending him. However it continues to assert that Jane Doe's allegations are false, saying that she:

has been diagnosed, by her own treating doctors, with a medical condition that causes her to falsify claims, exaggerate symptoms and make inconsistent statements. Her own doctors and expert witnesses voiced doubts about her allegations and noted that they contained multiple inconsistencies. 

Religion Becomes Issue In Arkansas Senate Race

Earlier this week, ABC News reported on the prominent place that religion has assumed in the race for U.S. Senate in Arkansas. In a television interview last week, Republican Rep. Tom Cotton, seeking to capture the Senate seat from incumbent Sen. Mark Pryor, commented on the Supreme Court's Hobby Lobby decision, saying:

It's another example of how Obamacare infringes on the liberties of all Arkansans. Barack Obama and Mark Pryor think that faith is something that only happens at 11 on Sunday mornings.

In response, in a television ad running state-wide,Pryor, holding a Bible, says:

I'm not ashamed to say that I believe in God, and I believe in His word. The Bible teaches us no one has all the answers, only God does.

Report Says Muslim-Americans Included In NSA-FBI E-mail Monitoring

According to a lengthy report at The Intercept today, documents from whistleblower Edward Snowden reveal that the NSA and FBI have secretly monitored e-mails of several prominent Muslim-Americans, including Nihad Awad (executive director of CAIR),  Agha Saeed (former Cal State professor and Muslim civil liberties activist); Hooshang Amirahmadi (Iranian-American Rutgers professor); Asim Ghafoor (attorney who has represented clients in terrorism cases); and Faisal Gill (Republican Party operative who served in Department of Homeland Security). The FBI is listed as the "responsible agency" for monitoring of these five individuals.  The reasons for including their e-mail addresses in the nearly 7,500 monitored remain classified.

UPDATE: The Office of the Director of National Intelligence and the Department of Justice on July 9 issued a statement (full text) apparently in response to The Intercept report, saying in part:

It is entirely false that U.S. intelligence agencies conduct electronic surveillance of political, religious or activist figures solely because they disagree with public policies or criticize the government, or for exercising constitutional rights..... On the other hand, a person who the court finds is an agent of a foreign power under this rigorous standard is not exempted just because of his or her occupation.

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.